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CREDIT AGREEMENT
$12,500,000
between
CHEMICAL XXXXXX TANK LINES, INC.
and
CORESTATES BANK, N.A.
July 31, 1995
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Table of Contents
Preliminary Statement.................................................................................. 1
1. The Credit.......................................................................................... 1
1.1 Credit Facilities........................................................................ 1
(a) Revolving Credit Loans.......................................................... 1
(b) Letters of Credit............................................................... 2
(c) Term Loans...................................................................... 2
1.2 Notes.................................................................................... 3
1.3 Funding Procedures for Revolving Credit Loans............................................ 3
1.4 Commitment Fee........................................................................... 3
1.5 Termination or Reduction of Commitment................................................... 4
1.6 Refunding Term Loan...................................................................... 4
1.7 Refunding Term Note...................................................................... 4
1.8 Prepayments.............................................................................. 5
1.9 Funding Costs; Loss of Earnings.......................................................... 5
1.10 Payments Generally....................................................................... 5
1.11 Interest................................................................................. 6
(a) Definitions. ................................................................... 6
(b) Interest Rate Election. ........................................................ 7
(c) Procedure for Determining Interest Periods and Rates of Interest. .............. 7
(d) Payment and Calculation of Interest. ........................................... 7
(e) Reserves. ...................................................................... 8
(f) Special Provisions Applicable to Adjusted Libor Rate. .......................... 8
(1) Increased Costs............................................................ 8
(2) Unavailability of Eurodollar Funds......................................... 8
(3) Illegality................................................................. 9
(g) Default Rate. .................................................................. 9
1.12 Regulatory Changes in Capital Requirements............................................... 9
2. Representations and Warranties...................................................................... 10
2.1 Organization and Good Standing........................................................... 10
2.2 Corporate Authority; No Violation........................................................ 10
2.3 Validity of Documents.................................................................... 10
2.4 Litigation............................................................................... 11
2.5 ERISA.................................................................................... 11
2.6 Financial Statements..................................................................... 12
2.7 Margin Regulations....................................................................... 12
2.8 Not in Default........................................................................... 12
2.9 Tax Returns.............................................................................. 12
2.10 Compliance with Law; Permits, Licenses, Etc.............................................. 12
2.11 Indebtedness............................................................................. 12
2.12 Capital Stock............................................................................ 13
2.13 Hazardous Wastes, Substances and Petroleum Products...................................... 13
2.14 Disclosure Generally..................................................................... 14
Credit Agreement, July 31, 1995 - i - Chemical Xxxxxx Tank Lines, Inc.
3. Security............................................................................................ 14
3.1 Security Documents....................................................................... 14
3.2 Release of Collateral.................................................................... 14
4. Conditions to Lending............................................................................... 15
4.1 All Loans................................................................................ 15
(a) Documents. ..................................................................... 15
(b) Conditions. .................................................................... 15
(c) Compliance; Representations and Warranties; No Material Adverse Change.......... 15
(d) Charter Documents; Evidence of Authorization. .................................. 15
(e) Legal Opinion. ................................................................. 15
(f) Incumbency. .................................................................... 15
(g) Note; Security Documents. ...................................................... 15
(h) Other Closing Deliveries. ...................................................... 16
(i) Other Documents. ............................................................... 16
4.2 Refunding Term Loan...................................................................... 16
4.3 Term Loan(s)............................................................................. 16
5. Covenants........................................................................................... 16
5.1 Reporting Requirements................................................................... 16
(a) Annual Financial Statements. ................................................... 16
(b) Quarterly Financial Statements. ................................................ 17
(c) Annual and Quarterly Default and Compliance Certificates. ...................... 17
(d) Monthly Borrowing Base Statements. ............................................. 17
(e) Interim Default Certificates. .................................................. 17
(f) Other Statements and Reports. .................................................. 17
5.2 Financial Condition and Ratios........................................................... 18
(a) Borrowing Base. ................................................................ 18
(b) Current Ratio. ................................................................. 18
(c) Tangible Net Worth. ............................................................ 19
(d) Liabilities to Tangible Net Worth. ............................................. 19
(e) Debt Coverage. ................................................................. 19
(f) Interest Coverage. ............................................................. 20
5.3 Performance of Loan Documents; Further Assurances........................................ 20
5.4 Compliance with Laws..................................................................... 20
5.5 Maintenance of Assets; Permits, Licenses, Etc............................................ 20
5.6 Insurance................................................................................ 20
5.7 Environmental Matters.................................................................... 20
5.8 ERISA.................................................................................... 21
5.9 Corporate Existence...................................................................... 21
5.10 Books and Records........................................................................ 21
5.11 Merger; Purchase or Sale of Assets....................................................... 22
5.12 Equipment................................................................................ 22
5.13 Acquisitions and Investments............................................................. 22
5.14 Loans; Advances.......................................................................... 22
Credit Agreement, July 31, 1995 - ii - Chemical Xxxxxx Tank Lines, Inc.
5.15 Guarantees............................................................................... 22
5.16 Use of Proceeds......................................................................... 22
6. Default............................................................................................. 22
6.1 Events of Default........................................................................ 22
(a) Principal or Interest. ......................................................... 23
(b) No Notice Covenants. ........................................................... 23
(c) 10 Day Notice Covenants. ....................................................... 23
(d) 30 Day Notice Covenants. ....................................................... 23
(e) Representations and Warranties. ................................................ 23
(f) Cross Default. ................................................................. 23
(g) Bankruptcy, Etc. ............................................................... 23
(h) Judgments. ..................................................................... 23
(i) ERISA. ......................................................................... 24
(j) Ownership of CLC. .............................................................. 24
(k) Material Adverse Change. ....................................................... 24
(l) Associates Loan. ............................................................... 24
(m) Accounts Receivable Funding Documents. ......................................... 24
7. Miscellaneous....................................................................................... 25
7.1 Waiver................................................................................... 25
7.2 Amendments............................................................................... 25
7.3 Governing Law............................................................................ 25
7.4 Assignment............................................................................... 25
7.5 Severability............................................................................. 25
7.6 Captions................................................................................. 25
7.7 Notices.................................................................................. 26
7.8 Set-Off.................................................................................. 26
7.9 Indemnification.......................................................................... 26
7.10 Expenses of the Bank..................................................................... 26
7.11 Counterparts; Effectiveness.............................................................. 26
7.12 1993 Agreement Superseded................................................................ 26
EXHIBITS:
1 Form of Revolving Credit Note (ss.1.2)
2 Form of Term Note (ss.1.2)
3 Form of Request for Revolving Credit Loan (ss.1.3)
4 Form of Refunding Term Note (ss.1.7)
5 Form of Default and Compliance Certificate (ss.5.1(c))
SCHEDULES:
2.11 Indebtedness
2.12 Capital Stock
Credit Agreement, July 31, 1995 - iii - Chemical Xxxxxx Tank Lines, Inc.
CREDIT AGREEMENT
Credit Agreement, dated July 31, 1995 (this "Agreement"), by and between
CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation ("CLTL"), and
CORESTATES BANK, N.A., a national banking association (the "Bank"), which amends
and restates in its entirety the Amended and Restated Revolving Credit
Agreement, dated May 14, 1993 as amended from time to time subsequent to said
date (the "1993 Agreement"), among CLTL, the Bank and Chemical Xxxxxx
Corporation, a Pennsylvania corporation (the "CLC").
Preliminary Statement
CLC owns all the issued and outstanding capital stock of CLTL and Quala
Systems, Inc., a Delaware corporation ("QSI"). CLTL owns all of the issued and
outstanding capital stock of CLT Services, Inc. a Delaware corporation ("CLT").
CLTL and QSI collectively own all of the issued and outstanding capital stock of
Xxxxxxxxx Way Funding Corp., a Delaware corporation ("Xxxxxxxxx Way").
CLTL and CLC have requested that the Bank amend and restate the 1993
Agreement to increase the Commitment from $10,000,000 to $12,500,000 and to
extend the Commitment Period under the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, CLTL and the Bank hereby
agree that the 1993 Agreement shall be and hereby is amended and restated in its
entirety, and the parties hereby agree as follows:
1. The Credit
1.1 Credit Facilities.
(a) Revolving Credit Loans. The Bank, under the terms and subject to the
conditions of this Agreement, agrees to make loans (herein called "Revolving
Credit Loans" or "Loans") to CLTL from time to time during the period (the
"Commitment Period") commencing on the date hereof and ending on May 31, 1996,
or on any earlier date as provided in ss.ss.1.5 and 6.1 hereof (herein called
the "Termination Date"), in amounts not to exceed at any one time outstanding,
in the aggregate, $12,500,000 (such amount, as reduced pursuant to ss.1.5, being
referred to herein as the "Commitment" of the Bank). Each Revolving Credit Loan
shall bear interest as provided in ss.1.11 hereof.
Notwithstanding the foregoing, CLTL shall not be entitled to any Revolving
Credit Loan if, after giving effect to such Loan, the aggregate unpaid amount of
the Revolving Credit Loan, when added to the aggregate amount of Letters of
Credit and any Term Loans outstanding as provided below, would exceed the
Commitment. Further, CLTL shall not be entitled to any Revolving Credit Loan if,
after giving effect to such Loan, the unpaid amount of the Revolving Credit Loan
when added to the aggregate amount of Letters of Credit and any Term Loans
outstanding would exceed CLTL's current Borrowing Base, as stated in the most
recent Borrowing Base Certificate furnished to the Bank as provided herein.
Within the limits of the Commitment and the Borrowing Base, CLTL may borrow,
prepay and reborrow.
Credit Agreement, July 31, 1995 - 1 - Chemical Xxxxxx Tank Lines, Inc.
(b) Letters of Credit. The Bank, under the terms and subject to the
conditions of this Agreement, agrees to provide standby letters of credit to
CLTL, from time to time during the Commitment Period, as requested by CLTL,
provided that:
(1) the aggregate amount of Letters of Credit outstanding at any one
time shall not exceed $8,500,000, at any time hereafter, or such lesser amount,
if any, as will, when added to the amount of the Revolving Credit Loan and any
Term Loans then outstanding, aggregate $12,500,000 (or such lesser amount as
CLTL is entitled to borrow hereunder at such time by reason of the limitation of
the Borrowing Base or otherwise);
(2) no Letter of Credit shall be issued after the Termination Date and
no Letter of Credit shall be for a term longer than one year; and
(3) no Letter of Credit shall be issued for other than regulatory
bonding or insurance purposes.
As used in this Agreement, "Letter of Credit" shall mean only those standby
letters of credit issued pursuant to a completed application on the form of
letter of credit application required by the Bank at the time of the request for
each Letter of Credit.
CLTL shall request a Letter of Credit by delivering a completed letter of
credit application to the Bank not less than one Business Day prior to the date
specified by CLTL as the date the Letter of Credit is to be issued. The term
"Business Day" shall mean a day on which the Bank is open for business at its
principal office.
Letters of Credit shall not bear interest until drawn upon but shall each
be subject to an annual charge, payable quarterly in arrears from the date of
issuance, equal to two percent (2%) of the amount of the Letter of Credit.
Within the foregoing limit, CLTL may request issuance of Letters of Credit,
pay them upon a drawing thereunder and request new issuances. Any obligation of
CLTL to pay money in connection with any Letter of Credit shall be secured as if
made as a Loan hereunder. In the event CLTL shall terminate the Commitment as
provided in ss.1.5 and shall pay the outstanding principal amount of the
Revolving Credit Loan in full and with interest or the Termination Date shall
occur at a time when one or more Letters of Credit remain outstanding, then CLTL
shall furnish to the Bank within three Business Days such amount of cash, to be
held as cash collateral and invested in certificates of deposit of the Bank, as
will pay the maximum amount which may be drawn by beneficiaries of Letters of
Credit outstanding at the date of such termination or Termination Date, as
applicable; provided, however, that if CLTL has requested, is entitled pursuant
to ss.1.6 hereof, and consummates a Refunding Term Loan, then in such
circumstance cash collateral shall not be required.
(c) Term Loans. During the Commitment Period, the Bank agrees to consider,
on a case by case basis, making term loans (herein called "Term Loans") to CLTL,
each in the minimum principal amount of $400,000, for the purpose of financing
the purchase of tractors and trailers and repowered tractors under the terms and
subject to the conditions of this Agreement and such other terms and conditions
as the Bank may require at such time. Any such Term Loan will be secured by the
Security Documents (defined in ss.3.1), which shall include a lien on the
tractor or trailer being financed by the Term Loan, and shall bear interest and
amortize pursuant to a schedule agreed upon by CLTL and the Bank at the time of
such Term Loan.
Credit Agreement, July 31, 1995 - 2 - Chemical Xxxxxx Tank Lines, Inc.
Notwithstanding the foregoing, CLTL shall not be entitled to any Term Loan
if, after giving effect to such Term Loan, the amount of the Term Loan, when
added to the aggregate amount of the Revolving Credit Loan, Letters of Credit
and other Term Loans outstanding, would exceed the Commitment.
1.2 Notes.
(a) The Revolving Credit Loan shall be evidenced by a single promissory
note executed by CLTL, in the form attached hereto as Exhibit 1 (the "Revolving
Credit Note"), which shall be due and payable on the Termination Date and shall
be in principal amount equal to the Commitment, or so much thereof as shall have
been advanced and remain unpaid. The Revolving Credit Note shall be substituted
for and replace, but will not discharge the indebtedness of CLTL under, the
Refunding Term Note dated January 15, 1993 issued by CLTL to the Bank in the
originally stated principal amount of $15,973,102.89.
(b) Each Term Loan, if any, made as contemplated by ss.1.1(c) shall be
evidenced by a separate promissory note executed by CLTL in the principal amount
of the Term Loan and in the form attached hereto as Exhibit 2 or such other form
and substance satisfactory to CLTL and the Bank at the time of such Term Loan
(each a "Term Loan Note").
1.3 Funding Procedures for Revolving Credit Loans.
(a) Each Revolving Credit Loan shall be initiated by delivery to the
Bank of a written loan request signed by the chief executive or chief financial
officer of CLTL in substantially the form attached hereto as Exhibit 3 (the
"Loan Request"). Each Loan Request shall be delivered not less than one Business
Day prior to the date of the proposed Loan. No Loan Request shall be effective
until actually received by the Bank.
(b) Unless the Bank has knowledge that any applicable condition
specified herein has not been satisfied, the Bank will make the funds available
to CLTL not later than 12:00 P.M. (Philadelphia time) on the requested date of
each Loan, by a credit to the account of CLTL at the Bank.
1.4 Commitment Fee. CLTL agrees to pay the Bank as compensation for its
Commitment, a fee ("Commitment Fee") computed at the rate of one-half of one
percent (1/2%) per annum on the average daily amount of the unused portion of
the Commitment accrued from and after the date hereof. The unused portion of the
Commitment shall mean the Commitment less the principal amount of the
outstanding Revolving Credit Loan and the aggregate amount of any and all
outstanding Term Loans and Letters of Credit issued hereunder. The Commitment
Fee shall be calculated and be payable quarterly in arrears and on the
Termination Date. The Commitment Fee shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
1.5 Termination or Reduction of Commitment. CLTL may at any time prior to
the Termination Date, on not less than one Business Day's prior written notice,
terminate or permanently reduce the Commitment. In the event the Commitment is
terminated, CLTL simultaneously shall pay or prepay (as applicable) the
Revolving Credit Loan and any Term Loans in full with interest as provided
herein. In the event the Commitment is permanently reduced, CLTL simultaneously
shall make a payment or prepayment (as applicable) in respect of the Revolving
Credit Loan and any Term Loans (as applicable), with interest as provided
herein, in such amount as is necessary to assure that the aggregate amount of
the Revolving Credit Loan, Letters of Credit and any Term Loans outstanding
immediately after such reduction will not exceed the Commitment as reduced. Any
prepayment of the Revolving Credit Loan that is based upon Adjusted Libor Rate
or any Term Loan shall be subject to a prepayment penalty pursuant to ss.1.9
hereof.
Credit Agreement, July 31, 1995 - 3 - Chemical Xxxxxx Tank Lines, Inc.
1.6 Refunding Term Loan. Upon request therefor by CLTL and subject to the
terms and conditions set forth herein, the Bank agrees to refund on the
Termination Date (or, if so elected by CLTL by written notice to the Bank at
least 20 days prior to such refunding date, on any date which is within 20 days
immediately prior to the Termination Date), which for purposes of this ss.1.6
shall not include any date that would be a Termination Date by reason of ss.6.1,
the principal amount of the Revolving Credit Loan outstanding at the said
Termination Date, by making a term loan ("Refunding Term Loan") in principal
amount equal to the principal amount of the Revolving Credit Loan outstanding.
The Refunding Term Note issued in connection with such Refunding Term Loan shall
also include the maximum amount which may be drawn by beneficiaries of Letters
of Credit outstanding as the said Termination Date and the amounts drawn under
such Letters of Credit after the date of execution and delivery by CLTL of the
Refunding Term Note shall be deemed added to the amount of the Refunding Term
Loan.
1.7 Refunding Term Note. The Refunding Term Loan shall be evidenced by a
single promissory note executed by of CLTL, in the form attached hereto as
Exhibit 4 (the "Refunding Term Note") in principal amount equal to the sum of
(a) the unpaid principal amount of the Revolving Credit Loan due and (b) in the
event the Termination Date shall occur at a time when one or more Letters of
Credit remain outstanding, the maximum amount which may be drawn by
beneficiaries of Letters of Credit outstanding at the Termination Date. The
Refunding Term Note shall be due in forty-eight (48) equal consecutive monthly
installments of principal due on the first day of each month commencing with the
first such date following the date of the Refunding Term Note, provided that
such first payment shall not be due less that fifteen (15) days following the
date of the Refunding Term Note. Each installment shall be rounded upwards to
the next whole dollar except in the case of the final installment which shall be
in an amount sufficient to pay in full the remaining unpaid principal amount of
the Refunding Term Note. Each principal installment shall be accompanied by a
payment of interest accrued to the date of such installment. The Refunding Term
Loan shall bear interest on the outstanding principal amount thereof from the
date of the Refunding Term Loan at the Base Rate plus one percent (1%), which
rate, at CLTL's election made on the date the Refunding Term Loan is made, shall
change when and as the Base Rate changes or remain fixed at the Base Rate in
effect of the date the Refunding Term Loan is made. After the issuance of the
Refunding Term Note, any amounts received by the Bank under the Refunding Term
Note in excess of the unpaid principal amount of the Revolving Credit Loan,
together with interest thereon as provided herein, shall be held as cash
collateral by the Bank and deposited in an interest bearing account with the
Bank, up to a maximum amount equal to the amount which may be drawn by
beneficiaries of all Letters of Credit outstanding, as such Letters of Credit
may be amended from time to time. The Bank will surrender to CLTL the Revolving
Credit Note held by it duly marked canceled against issuance and delivery of the
Refunding Term Note. Payments of principal other than the regular monthly
installments of principal to be made by CLTL in respect of the Refunding Term
Note shall be applied to payments of principal due in the inverse order of
maturity. No adjustment shall be made in the amount of the monthly installment
of principal due in respect of the Refunding Term Note by reason of the
cancellation or termination of any letter of credit after the date of issuance
of the Refunding Term Note. Interest shall accrue only on the principal balance
actually outstanding from time to time under the Refunding Term Note. The two
percent annual charge in respect of Letters of Credit as set forth in ss.1.1(b)
shall continue in effect for so long as any Letter of Credit shall remain in
effect.
1.8 Prepayments. Pursuant to ss.1.5 hereof, CLTL may make certain
prepayments of the unpaid principal amount of the Revolving Credit Loans and any
Term Loan in connection with the termination or reduction of the Commitment.
Pursuant to ss.5.2(a) hereof, CLTL may be obligated to make certain mandatory
prepayments of the unpaid principal amount of the Revolving Credit Loan or the
Refunding Term Loan (as applicable). In addition, CLTL shall have the right, on
not less than one Business Day's notice to the Bank,
Credit Agreement, July 31, 1995 - 4 - Chemical Xxxxxx Tank Lines, Inc.
to prepay the Revolving Credit Loan, any Term Loan or the Refunding Term Loan
(as applicable) in whole at any time or in part from time to time, in either
case with accrued interest to the date of such prepayment on the principal
amount being prepaid. Each partial prepayment shall be applied to principal
installments remaining on the Revolving Credit Loan, any Term Loans or the
Refunding Term Loan (as applicable) in the inverse order of their maturities. In
the event no specification is made concerning the Loan to which the payment is
to be applied, the Bank shall in its sole discretion, make such specification.
Prepayment of any portion of the Revolving Credit Loan which is based upon an
Adjusted Libor Rate or any Term Loan shall be subject to a prepayment penalty
pursuant to ss.1.9 hereof.
1.9 Funding Costs; Loss of Earnings. Prepayments of Base Rate Loans shall
be without premium or penalty. In connection with any prepayment of an Adjusted
Libor Rate Loan or any Term Loan, whether such prepayment is voluntary,
mandatory, by demand, acceleration or otherwise, CLTL shall pay to the Bank, in
addition to such prepayment and the accrued interest thereon, an amount equal to
the excess of (a) the aggregate present value of the scheduled principal and
interest payments eliminated by the prepayment over (b) the principal amount
being prepaid. The discount rate used for such calculation shall be the yield to
maturity at the time of the prepayment on U.S. Treasury securities having a
maturity which most closely approximates the final maturity date of the
principal balance then outstanding.
1.10 Payments Generally. All payments of principal, interest, fees, or
other amounts payable hereunder, shall be remitted to the Bank at the address
set forth opposite its name on the signature page hereof in immediately
available funds. Whenever any payment is stated as due on a day which is not a
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day and interest shall continue to accrue during such
extension. CLTL authorizes the Bank (but the Bank shall not be obligated) to
deduct from any account maintained by CLTL at the Bank any amount payable
hereunder on or after the date upon which it is due and payable. Such
authorization shall include but not be limited to amounts payable with respect
to principal, interest, fees and expenses plus any amounts payable with respect
to any drawing under any Letter of Credit.
1.11 Interest.
(a) Definitions. As used in this ss.1.11, the following words and terms
shall have the meanings specified below:
"Adjusted Libor Rate" shall mean, for any Interest Period, as
applied to a Loan, the rate per annum (rounded upward, if
necessary to the next 1/16th of 1%) determined pursuant to the
following formula:
Adjusted Libor Rate = Libor Rate
----------------------
1 - Reserve Percentage
"Base Rate" shall mean higher of (i) the Federal Funds Rate plus
three-quarters of one percent (3/4%) per annum, and (ii) the
Prime Rate.
"Federal Funds Rate" shall mean for any day the effective rate of
interest for such day, as announced from time to time by the
Board of Governors of the Federal Reserve System as shown in
publication H.15 as the "Federal Funds Rate."
Credit Agreement, July 31, 1995 - 5 - Chemical Xxxxxx Tank Lines, Inc.
"Interest Period" shall mean a period of one (1), three (3) or
six (6) months' duration, as CLTL may elect, during which the
Adjusted Libor Rate is applicable; provided, however, that (a)
interest shall accrue from and including the first day of each
Interest Period to, but excluding, the day on which any Interest
Period expires; (b) any Interest Period which would otherwise end
on a day which is not a London Business Day shall be extended to
the next succeeding London Business Day unless such London
Business Day in another calendar month, in which case such
Interest Period shall end on the next preceding London Business
Day; and (c) with respect to an Interest Period which begins on
the last London Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period
shall end on the last London Business Day of a calendar month.
"Libor Rate" shall mean the arithmetic average of the rates of
interest per annum (rounded upward, if necessary to the next
1/16th of 1%) at which the Bank is offered deposits of United
States Dollars in the London Interbank Market on or about eleven
o'clock (11:00) a.m. London time three (3) Business Days prior to
the commencement of such Interest Period in amounts substantially
equal to such amount of the Revolving Credit Loan as to which
CLTL may elect the Adjusted Libor Rate to be applicable with a
maturity of comparable duration to the Interest Period selected
by CLTL.
"London Business Day" shall mean any Business Day on which banks
in London, England are open for business.
"Prime Rate" shall mean the rate of interest per annum announced
by the Bank from time to time as its prime rate.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System, comprising Part 204 of Title 12,
Code of Federal Regulations, as amended and as may be amended
from time to time, and any successor thereto.
"Reserve" shall mean, for any day, that reserve (expressed as a
decimal) which is in effect (whether or not actually incurred)
with respect to the Bank on such day, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor or
any other banking authority to which the Bank is subject
including any board or governmental or administrative agency of
the United States or any other jurisdiction to which the Bank is
subject), for determining the maximum reserve requirement
(including without limitation any basic, supplemental, marginal
or emergency reserves) for Eurocurrency liabilities as defined in
Regulation D.
"Reserve Percentage" shall mean, for the Bank on any day, that
percentage (expressed as a decimal) prescribed by the Board of
Governors of the Federal Reserve System (or any successor or any
other banking authority to which the Bank is subject, including
any board or governmental or administrative agency of the United
States or any other jurisdiction to which the Bank is subject),
for determining the reserve requirement (including without
limitation any basic, supplemental, marginal or emergency
reserves) for deposits of United States Dollars in a non-United
States or an international banking office of the Bank used to
fund a Loan bearing interest based on the Adjusted Libor Rate or
any loan made with the
Credit Agreement, July 31, 1995 - 6 - Chemical Xxxxxx Tank Lines, Inc.
proceeds of such deposit. The Adjusted Libor Rate shall be
adjusted on and as of the effective day of any change in the
Reserve Percentage.
(b) Interest Rate Election. At CLTL's election in accordance with the
provisions of ss.1.3 hereof, each advance under the Revolving Credit Loan shall
bear interest on the outstanding principal amount thereof from the date of the
advance at (i) the Base Rate plus three-quarters of one percent (3/4%) per
annum, such rate to change when and as the Base Rate changes, or (ii) the
Adjusted Libor Rate plus three percent (3%). In the event CLTL shall fail to
make an interest rate election, the advance to be made shall bear interest as
provided in this ss.1.11(b).
(c) Procedure for Determining Interest Periods and Rates of Interest. If
CLTL elects the Base Rate to be applicable to a Revolving Credit Loan advance,
CLTL must notify the Bank of such election prior to eleven o'clock (11:00) a.m.
Philadelphia time on the date of the proposed application of such rate. If CLTL
elects the Adjusted Libor Rate to be applicable to a Revolving Credit Loan
advance, CLTL must notify the Bank of such election and the Interest Period
selected prior to eleven o'clock (11:00) a.m. Philadelphia time at least three
(3) London Business Days prior to the date of the proposed application of such
rate. If CLTL does not provide the applicable notice for the Adjusted Libor
Rate, then CLTL shall be deemed to have requested that the Base Rate apply to
any Revolving Credit Loan advance as to which the Interest Period is expiring
and to any new advance until CLTL shall have given proper notice of a change in
or determination of the rate of interest in accordance with this ss.1.11(c).
(d) Payment and Calculation of Interest. Interest shall be due and payable
on the last day of each Interest Period for each advance bearing interest based
on the Adjusted Libor Rate; provided, however, that with respect to advances
which bear interest at the Adjusted Libor Rate having Interest Periods in excess
of six (6) months, CLTL shall pay interest on the ninetieth (90th) day of the
Interest Period and on the last day of the Interest Period. With respect to
advances which bear interest at the Base Rate, CLTL shall pay interest on the
first Business Day of each month commencing on the first such date after the
advance which bears interest at such rate. Interest shall be calculated in
accordance with the provisions of ss.1.11(b) hereof. Interest based on the Base
Rate shall be calculated on the basis of the actual number of days elapsed over
a year of three hundred sixty-five (365) or three hundred sixty-six (366) days,
as the case may be, and interest based on the Adjusted Libor Rate shall be
calculated on the basis of the actual number of days elapsed over a year of
three hundred sixty (360) days.
(e) Reserves. If at any time when any advance is subject to the Adjusted
Libor Rate, and the Bank is subject to and incurs a Reserve, CLTL hereby agrees
to pay within five (5) Business Days of demand thereof from time to time, as
billed by the Bank, such additional amount as is necessary to reimburse the Bank
for its costs in maintaining such Reserve. The determination by the Bank of such
costs incurred and the allocation, if any, of such costs among CLTL and other
customers which have similar arrangements with the Bank shall be prima facie
evidence of the correctness of the fact and the amount of such additional costs.
(f) Special Provisions Applicable to Adjusted Libor Rate. The following
special provisions shall apply to the Adjusted Libor Rate as well as to the rate
apply in the case of any Term Loan as contemplated by ss.1.1(c):
(1) Increased Costs. The Adjusted Libor Rate or the rate on any Term
Loan (a "Term Loan Rate")(as applicable) may be automatically adjusted by the
Bank on a prospective basis to take into account the additional or increased
cost of maintaining any necessary reserves for Eurodollar deposits or increased
costs
Credit Agreement, July 31, 1995 - 7 - Chemical Xxxxxx Tank Lines, Inc.
due to changes in applicable law or regulation or the interpretation thereof by
a governmental authority occurring subsequent to the commencement of the then
applicable Interest Period, including but not limited to changes in tax laws
(except changes of general applicability in corporate income tax laws) and
changes in the reserve requirements imposed by the Board of Governors of the
Federal Reserve System (or any successor), excluding the Reserve Percentage,
that increase the cost to the Bank of funding the advance bearing interest at
the Adjusted Libor Rate or any Term Loan at a Term Loan Rate (as applicable) and
are generally applicable to the Bank's borrowers. The Bank shall give CLTL
notice of such a determination and adjustment within 30 days of any such
adjustment, including a calculation of the determination, which determination
shall be prima facie evidence of the correctness of the fact and the amount of
such adjustment.
(2) Unavailability of Eurodollar Funds. In the event that CLTL shall
have requested an Adjusted Libor Rate in accordance with ss.1.11(c) hereof and
the Bank shall have reasonably determined that Eurodollar deposits equal to the
amount of the principal of the advance for which the rate is requested and for
the Interest Period specified are unavailable, or that the rate based on the
Adjusted Libor Rate will not adequately and fairly reflect the cost of making or
maintaining the principal amount of the advance specified by CLTL during the
Interest Period specified or that by reason of circumstances affecting
Eurodollar markets, adequate and reasonable means do not exist for ascertaining
the Adjusted Libor Rate applicable to the specified Interest Period, the Bank
shall promptly give notice of such determination to CLTL that the rate based on
the Adjusted Libor Rate is not available. A determination by the Bank hereunder
shall be prima facie evidence of the correctness of the fact and amount of such
additional costs. Upon such a determination, the Bank's obligation to advance or
maintain an advance at the Adjusted Libor Rate shall be suspended until the Bank
shall have notified CLTL that such conditions shall have ceased to exist, and
the Base Rate shall then be applicable to the Revolving Credit Loan.
(3) Illegality. In the event that it becomes unlawful for the Bank to
maintain Eurodollar liabilities sufficient to fund any advance based upon an
Adjusted Libor Rate, then the Bank shall immediately notify CLTL thereof and the
Bank's obligations hereunder to make or maintain any advances based upon an
Adjusted Libor Rate shall be suspended until such time as the Bank may again
cause the rate based on the Adjusted Libor Rate to be applicable to any advance,
and the Base Rate shall then be applicable to the Revolving Credit Loan.
(g) Default Rate. Notwithstanding the foregoing, upon the occurrence and
during the continuance of an Event of Default, including after maturity and
before and after the entry of any judgment, CLTL hereby agrees to pay to the
Bank interest on the outstanding principal balance of the Revolving Credit Loan
and each Term Loan which may be outstanding at the rate of two percent (2%) per
annum in excess of the rates then available to and elected by CLTL for each Loan
then outstanding (the "Default Rate"), and with respect to advances bearing
interest based on the Adjusted Libor Rate, at the end of the applicable Interest
Periods and thereafter, such advances shall bear interest at the rate of two
percent (2%) per annum in excess of the Base Rate, such rate to change when and
as the Base Rate changes.
1.12 Regulatory Changes in Capital Requirements. If the Bank shall have
determined in good faith that the adoption or the effectiveness after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy, or
any change in any of the foregoing or in the interpretation or administration of
any of the foregoing by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank (or any lending office of the Bank) or the Bank's holding company,
if any, with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has the effect of reducing
Credit Agreement, July 31, 1995 - 8 - Chemical Xxxxxx Tank Lines, Inc.
the rate of return on the Bank's capital or on the capital of the Bank's holding
company as a consequence of this Agreement, the Commitment, Letters of Credit or
Loans made by the Bank pursuant hereto to a level below that which the Bank or
its holding company would have achieved but for such adoption, change or
compliance (taking into consideration the Bank's policies and the policies of
the Bank's holding company with respect to capital adequacy) by an amount deemed
by the Bank to be material, then from time to time CLTL shall pay to the Bank,
within five (5) Business Days after receiving the Bank's demand therefor and the
certificate referred to below, such additional amount or amounts as will
compensate the Bank or its holding company for any such reduction suffered,
which amount, if not paid within such period of five (5) Business Days, shall
bear interest from the date due until payment in full thereof at the Default
Rate. The Bank will notify CLTL of any event occurring after the date of this
Agreement that will entitle the Bank to compensation pursuant to this Section
within 90 days after the date of such occurrence or the date from which the Bank
requests additional compensation, whichever is later.
A certificate of the Bank setting forth in detail such amount or amounts as
shall be necessary to compensate the Bank or its holding company as specified
above shall be delivered to CLTL and shall be conclusive absent manifest error.
For purposes of the application of this Section to CLTL and in calculating any
amount that may be necessary to compensate a Bank under this Section, the Bank
shall determine the applicability of this provision to CLTL and calculate the
amount payable to the Bank hereunder in a manner consistent with the manner in
which it shall apply and calculate similar compensation payable to it by other
borrowers having provisions in their credit agreements comparable to this
Section.
Failure on the part of the Bank to demand compensation for increased costs
or reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of the Bank's right to
demand compensation with respect to any other period.
2. Representations and Warranties
CLTL and CLC each represent and warrant to the Bank that:
2.1 Organization and Good Standing. Each of CLC and CLTL is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the corporate power and authority
necessary to own its assets, carry on its business and, to the extent it is a
party hereto or thereto, enter into and perform its obligations hereunder, under
the Revolving Credit Note, any Term Notes and any Refunding Term Note (the
Revolving Credit Note, any Term Notes and any Refunding Term Note being referred
to herein, individually, as a "Note" and collectively, as the "Notes"), and
under all related loan documents (this Agreement, the Notes and the Security
Documents (as defined in ss.3.1) being referred to herein, individually, as a
"Loan Document" and collectively, as the "Loan Documents"). Each of CLC and CLTL
is qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which it is required to so qualify and the failure to
qualify could have a material adverse effect on it. CLC and CLTL each has filed
for or obtained approval, as necessary, to operate in each state in which either
CLC or CLTL, as applicable, provides intra-state service under the jurisdiction
of any state regulatory agency.
2.2 Corporate Authority; No Violation. To the extent each is a party
thereto, the execution, delivery and performance of the Loan Documents are
within each of CLC's and CLTL's power and authority and have been duly
authorized by all necessary corporate action on the part of CLC and CLTL. To the
extent each is a party thereto, the execution, delivery and performance of the
Loan Documents by each of CLC and CLTL (a) do not and under present law will not
require any consent or approval of any of its shareholders or
Credit Agreement, July 31, 1995 - 9 - Chemical Xxxxxx Tank Lines, Inc.
any other person, and (b) do not and under present law will not violate any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award, do not and will not violate any provision of its charter or by-laws, do
not and will not result in any breach of any agreement, lease or instrument to
which it is a party, by which it is bound or to which any of its assets is or
may be subject, and do not and will not give rise to any lien or charge upon any
of its assets except in favor of the Bank. Neither CLC nor CLTL is in default in
any material respect under any of the foregoing.
2.3 Validity of Documents. Each Loan Document, when executed and delivered,
will be the legal, valid and binding obligation of CLC and CLTL, to the extent
each is a party thereto, enforceable against CLC and CLTL, as applicable, in
accordance with its terms. To the extent any Loan Document purports to be the
undertaking of a party other than CLC, CLTL or the Bank, each such Loan
Document, when executed and delivered, will be the legal, valid, binding
obligation of each of such other party enforceable against each such other party
in accordance with its terms. Each Loan Document which purports to create a lien
or security interest, when executed and delivered, will be effective to create
the lien or security interest it purports to create. Except for the obtaining of
an Abbreviated Securities Certificate from the Pennsylvania Public Utility
Commission (for which application was made June 27, 1995), no authorization,
consent, approval, license, exemption of or filing or registration with any
court, governmental agency or other tribunal is or under present law will be
necessary to the validity or performance of any Loan Document.
2.4 Litigation. Except as disclosed to the Bank in writing (including in
financial statements delivered hereunder), there are no actions, suits or
proceedings pending or threatened against or affecting either CLC or CLTL, or
any assets of either CLC or CLTL before any court, government agency, or other
tribunal, which if adversely determined could have a Material Adverse Effect on
CLC or CLTL (as applicable).
"Material Adverse Effect" shall mean any event or condition
which, in the good faith determination of the Bank, could
result in a material adverse effect in the financial
condition, assets, operations or prospects of CLC or CLTL (as
applicable), or which gives reasonable grounds to conclude
that CLC or CLTL (as applicable) may not or will not be able
to perform or observe (in the normal course) its obligations
under the Loan Documents to which it is a party, including but
not limited to the Notes.
2.5 ERISA. Each employee benefit plan of CLC or CLTL (the "Plans") in which
any employees of CLC or CLTL participate that is subject to any provision of the
Employee Retirement Income Security Act of 1974 or the Multiemployer Pension
Plan Amendments Act of 1980 and of the regulations adopted pursuant thereto
(hereinafter collectively called "ERISA") is being administered in accordance
with the documents and instruments governing such Plans, and such documents and
instruments are substantially consistent with the applicable provisions of
ERISA. There are no "prohibited transactions" which could subject CLC or CLTL to
a material tax or penalty on prohibited transactions imposed by the Internal
Revenue Code of 1986, as amended (the "Code"), or ERISA. None of the Plans which
are "employee pension benefit plans" or the trusts created thereunder have been
terminated since September 2, 1974; nor has any such Plan incurred any material
liability to the Pension Benefit Guaranty Corporation established pursuant to
ERISA, other than for required insurance premiums which have been paid when due,
or incurred any material "accumulated funding deficiency," whether or not
waived; nor has there been any "reportable event," or other event or condition,
which represents a material risk of termination of any such Plan by the Pension
Benefit Guaranty Corporation. With respect to multiemployer plans to which CLC
or CLTL makes contributions but does not participate in the administration of
such plans, none of CLC or CLTL has received any information from any such
multiemployer plan which would indicate that any of the foregoing representation
would be incorrect as
Credit Agreement, July 31, 1995 - 10 - Chemical Xxxxxx Tank Lines, Inc.
applied to such multiemployer plan. All contributions required under collective
bargaining agreements to which CLC or CLTL is a party or by which either is
bound have been paid. Since April 29, 1980, none of CLC or CLTL has withdrawn
from participation in any "multiemployer plan" to which it makes contributions
such that any withdrawal liability has been or may be assessed and remains
unpaid, and none of CLC or CLTL has received any notice and is not aware that
any multiemployer plan to which it contributes is insolvent or in reorganization
status within the meaning of ERISA. As used herein, the terms "prohibited
transactions" and "multiemployer plans" shall have the respective meanings
assigned to them in the Code and in ERISA, and the terms "employee benefit
plans," "employee pension benefit plans," "accumulated funding deficiency,"
"reportable event," and "withdrawal" shall have the respective meanings assigned
to them in ERISA.
2.6 Financial Statements. The consolidated financial statements of CLTL and
the consolidated financial statements of CLC as of December 31, 1994 and for the
periods then ending, consisting in each case of a balance sheet, related
statements of changes in financial position and statements of operations and
changes in shareholders' equity, and accompanying footnotes, and the interim
financial statements of each, dated as of March 31, 1995 furnished to the Bank
in connection herewith in each case fairly present the financial condition,
results of operations and changes in shareholders' equity of each as of the date
and for the period referred to, all in accordance with generally accepted
accounting principles consistently maintained ("GAAP"), subject to fiscal
year-end audit adjustments in the case of the interim financial statements.
There has been no Material Adverse Change with respect to CLC or CLTL since the
date of the interim financial statements referred to above, except as may have
heretofore been disclosed to the Bank in writing (including in financial
statements delivered hereunder).
"Material Adverse Change" shall mean any event or condition
which, in the good faith determination of the Bank, could
result in a material adverse change in the financial
condition, assets, operations or prospects of CLC or CLTL (as
applicable), or which gives reasonable grounds to conclude
that CLC or CLTL (as applicable) may not or will not be able
to perform or observe (in the normal course) its obligations
under the Loan Documents to which it is a party, including but
not limited to the Notes.
2.7 Margin Regulations. No proceeds of any Loan or advance hereunder will
be applied for the purpose of purchasing or carrying or trading in any
securities, including "margin stock" as defined from time to time by the Board
of Governors of the Federal Reserve System, or refinancing any credit previously
extended for any such purpose.
2.8 Not in Default. No Event of Default or event which, with the giving of
notice or the passage of time or both, would constitute an Event of Default
under any Loan Document has occurred and is continuing.
2.9 Tax Returns. Each of CLC and CLTL has filed all federal, state and
local tax returns and reports which each is required by law to file and has paid
all taxes, assessments, withholdings and other governmental charges which are
presently due and payable.
2.10 Compliance with Law; Permits, Licenses, Etc. Each of CLC and CLTL (a)
is in compliance in all material respects with all laws, regulations and
requirements applicable to its business, (b) has obtained all material
authorizations, consents, approvals, orders, licenses, exemptions from, or has
accomplished all material filings or registrations or qualifications with, any
court or governmental department, public body or authority, commission, board,
bureau, agency, or instrumentality, that is necessary for the transaction of its
Credit Agreement, July 31, 1995 - 11 - Chemical Xxxxxx Tank Lines, Inc.
business, and (c) possesses all material permits, licenses, franchises,
trademarks, copyrights and patents necessary to the conduct of its business as
presently conducted or as presently proposed to be conducted.
2.11 Indebtedness. On the date of this Agreement, neither CLC or CLTL has
any outstanding Indebtedness or obligations, including contingent obligations
and obligations under leases of property from others, except the Indebtedness
and obligations described either on Schedule 2.11 hereto or in CLC's or CLTL's
financial statements which have been furnished to the Bank pursuant to this
Agreement.
"Indebtedness" of any person shall mean all obligations of
such person which, in accordance with GAAP, shall be
classified on a balance sheet of such person as liabilities of
such person and in any event shall include all (i) obligations
of such person for borrowed money or which have been incurred
in connection with acquisition of property or assets, (ii)
obligations secured by any lien upon property or assets owned
by such person, notwithstanding that such person has not
assumed or become liable for the payment of such obligations,
(iii) obligations created or arising under any conditional
sale or other title retention agreement with respect to
property acquired by such person, notwithstanding the fact
that the rights and remedies of the seller, lender or lessor
under such agreement in the event of default are limited to
repossession or sale of property, (iv) capital leases, (v)
guarantees and (vi) letters of credit and letter of credit
reimbursement obligations.
2.12 Capital Stock. The number of shares and classes of the capital stock
of CLC and its Subsidiaries (including CLTL), and the ownership thereof (and
whether owned of record or beneficially or both), are accurately set forth on
Schedule 2.12 hereto; all such shares are validly existing, fully paid and
non-assessable, and the issuance and sale thereof were in compliance with all
applicable federal and state securities and other similar laws; each
shareholders' ownership thereof is free and clear of any liens or encumbrances
or other contractual restrictions, except in favor of the Bank in the case of
the capital stock of CLTL. Further in the case of CLTL, the assets of CLTL's
Subsidiaries other than Xxxxxxxxx Way and CLT, taken as a whole, do not exceed
five percent (5%) of the assets of CLTL and its Subsidiaries taken as a whole.
Xxxxxxxxx Way's business is limited to purchasing accounts receivable and
issuing notes and CLT's business is limited to holding intellectual property
rights.
"Subsidiary" of any person shall mean any corporation or
partnership of which such person, directly or indirectly, owns
more than ten percent (10%) of any outstanding class or
classes of securities.
2.13 Hazardous Wastes, Substances and Petroleum Products. Except as
disclosed to the Bank in writing (including in financial statements delivered
hereunder):
(a) Each of CLC and CLTL: (i) is in compliance in all material respects
with all federal, state and local laws and regulations governing the control,
removal, spill, release or discharge of hazardous or toxic wastes, substances
and petroleum products, including without limitation as provided in the
provisions of and the regulations promulgated under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendment and Reauthorization Act of 1986, the Solid Waste
Disposal Act, as amended by the Hazardous and Solid Waste Amendments of 1984,
the Federal Water Pollution Control Act, as amended by the Clean Water Act of
1976, the Clean Air Act, the Resource Conservation and Recovery Act of 1976, the
Hazardous Materials Transportation Act, the Emergency Planning and Community
Right to Know Act of 1986, the National Environmental Policy Act of 1975, the
Oil Pollution
Credit Agreement, July 31, 1995 - 12 - Chemical Xxxxxx Tank Lines, Inc.
Act of 1990 (all of the foregoing enumerated and non-enumerated statutes,
including without limitation all regulations promulgated thereunder and any
similar state or local statutes, as amended, collectively the "Environmental
Control Statutes"); and (ii) has received all permits and filed all
notifications pursuant to the Environmental Control Statutes necessary to carry
on its business, the absence of which could have a Material Adverse Effect on
CLTL.
(b) Neither CLC nor CLTL has been given any written or oral notice to
the Environmental Protection Agency ("EPA") or any similar state or local agency
with regard to any actual or imminently threatened removal, spill, release or
discharge ("Release") of hazardous or toxic wastes, substances or petroleum
products on properties owned or leased by it or in connection with the conduct
of any of its business and operations, where such Release is a violation of any
Environmental Control Statute and such violation could have a Material Adverse
Effect on CLTL.
(c) Neither CLC nor CLTL has received notice that it is potentially
responsible for costs of clean-up of any actual or imminently threatened spill,
release or discharge of hazardous or toxic wastes or substances or petroleum
products pursuant to any Environmental Control Statute, where such Release and
the resulting liability could have a Material Adverse Effect on CLC or CLTL.
2.14 Disclosure Generally. Except with respect to general economic
conditions affecting companies in CLTL's line of business, (a) the
representations and warranties made by or on behalf of CLC and CLTL in
connection with this Agreement and the Loans hereunder including, without
limitation, the representations and warranties in each of the Loan Documents, do
not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the representations made not misleading;
and (b) no written information, exhibit, report, brochure or financial statement
furnished by either CLC or CLTL to the Bank required to be furnished in
connection with this Agreement, the Loans hereunder, or any Loan Document
contains or will contain any material misstatement of fact or omit to state a
material fact necessary to make the statements contained therein not materially
misleading.
3. Security
3.1 Security Documents. As security for the punctual payment in full of all
installments of principal, interest, fees and other amounts payable under any
Loan Document, the Bank shall continue to have a valid, perfected first lien on
and security interest in the Collateral (as that term is defined in the Security
Agreement, dated July 31, 1995, executed by CLTL in favor of the Bank, which
agreement amends and restates the Amended and Restated Equipment Security
Agreement, dated May 14, 1993, executed by CLTL in favor of the Bank). As
additional security for said obligations, the Bank shall have the rights and
benefits specified in (a) the Guarantee Agreement, dated July 31, 1995, executed
by CLC in favor of the Bank, which agreement amends and restates the Amended and
Restated Guarantee Agreement, dated May 14, 1993, executed by CLC in favor of
the Bank, and (b) the Pledge Agreement, dated July 31, 1995, executed by CLC in
favor of the Bank, which agreement amends and restates the Amended and Restated
Pledge Agreement, dated May 14, 1993, executed by CLC in favor of the Bank (all
the documents referred to in this ss.3.1 are collectively referred to herein as
the "Security Documents").
3.2 Release of Collateral. Upon the payment in full of the entire principal
balance, and any interest, fees and other amounts payable under all Loan
Documents, the termination of the Commitments of the Bank and the cash
collateralization of all Letters of Credit, the Bank shall release the lien and
security interest of the
Credit Agreement, July 31, 1995 - 13 - Chemical Xxxxxx Tank Lines, Inc.
Bank in the assets of CLTL and such other persons as specified in each of the
Security Documents and shall do such things as are reasonably requested by CLTL
to effect such release.
4. Conditions to Lending
4.1 All Loans. The obligation of the Bank to make any advance under the
Revolving Credit Loan, or the Refunding Term Loan or to issue any Letter of
Credit is conditioned upon the following:
(a) Documents. CLTL shall have delivered in accordance with ss.ss.1.1,
1.3 or 1.6 (as applicable) and the Bank shall have received, a written request
for an advance under the Revolving Credit Loan, a Letter of Credit or the
Refunding Term Loan (as applicable).
(b) Conditions. The amount of the requested advance under the Revolving
Credit Loan, face amount of a Letter or Credit or funding of the Refunding Term
Loan, when added to the aggregate amount of all advances under the Revolving
Credit Loan and Letters of Credit outstanding would not exceed the lesser of (i)
the Borrowing Base or (ii) the Commitment, on the date of such advance under the
Revolving Credit Loan, issuance of a Letter of Credit or funding of the
Refunding Term Loan; and, after giving effect to such advance, Letter or Credit
or the Refunding Term Loan, no Event of Default or event, which with the giving
of notice or the lapse of time or both, would constitute an Event of Default
shall exist.
(c) Compliance; Representations and Warranties; No Material Adverse
Change. Each of CLC and CLTL shall have complied and be in compliance with all
covenants, agreements and conditions in each Loan Document to which it is a
party; each representation and warranty contained in each Loan Document to which
either CLC or CLTL is a party shall be true with the same effect as though such
representation and warranty had been made on the date of such Loan; and there
shall have been no Material Adverse Change with respect to CLC or CLTL.
(d) Charter Documents; Evidence of Authorization. The Bank shall have
received certified copies of (i) the articles or certificate (as applicable) of
incorporation and bylaws of CLC and CLTL, and (ii) all corporate or other action
taken by CLC and CLTL to authorize its execution, delivery and performance of
the Loan Documents to which it is a party and to authorize the Loans hereunder,
together with such other related papers as the Bank shall reasonably require.
The Bank shall also have received good standing certificates of CLC and CLTL
from their respective states of incorporation.
(e) Legal Opinion. The Bank have received the favorable written opinion
of counsel for CLC and CLTL, which opinion shall be addressed to the Bank, dated
July 31, 1995, and in form and substance satisfactory to the Bank.
(f) Incumbency. The Bank shall have received a certificate signed by
the secretary or assistant secretary of each of CLC and CLTL, together with the
true signature of such officer or officers of each such entity authorized to
sign the Loan Documents on behalf of such entity, upon which the Bank shall be
entitled to rely conclusively until it shall have received a further certificate
of the appropriate secretary or assistant secretary amending the prior
certificate and submitting the signature of the officer or officers named in the
new certificate.
(g) Note; Security Documents. The Bank shall have received duly
executed and delivered copies of this Agreement (and all exhibits and schedules
hereto), the Revolving Credit Note and the Security
Credit Agreement, July 31, 1995 - 14 - Chemical Xxxxxx Tank Lines, Inc.
Documents, together with all instruments, financing statements and other
documents then required to be delivered pursuant to each Security Document, in
each instance in form and substance satisfactory to the Bank.
(h) Other Closing Deliveries. The Bank shall have received copies of
the Abbreviated Securities Certificate from the Pennsylvania Public Utility
Commission, the certificates of insurance required pursuant to ss.5.6 hereof,
and the financial information required pursuant to ss.2.6 hereof.
(i) Other Documents. The Bank shall have received such additional
documents or information as it may reasonably request.
4.2 Refunding Term Loan. The obligation of the Bank to make the Refunding
Term Loan is, in addition to the other conditions stated herein (including those
with respect to the Borrowing Base and the absence of any defaults), further
conditioned upon receipt by the Bank of a request from CLTL for a Refunding Term
Loan as provided in ss.1.6, the Refunding Term Note duly executed and delivered
by CLTL, and copies of all consents, approvals or authorizations, each in form
and substance reasonably acceptable to the Bank, of all governmental agencies
and authorities which may be required in connection with the issuance of valid
and enforceable Refunding Term Note. If the provisions of this ss.4.2 are not
satisfied prior to the maturity of the Revolving Credit Loan, the Bank shall
have no obligation to make the Refunding Term Loan and the Revolving Credit Loan
will be immediately due and payable upon maturity.
4.3 Term Loan(s). The Bank shall have no obligation to make any Term Loan
to CLTL as described in ss.1.1(c) or otherwise. If the Bank decides to make a
Term Loan to CLTL as provided herein, such loan may, in addition to the other
conditions stated herein (including those with respect to the absence of any
defaults), be further conditioned upon such other terms and conditions as the
Bank in its sole discretion may require at the time of the proposed Term Loan,
including without limitation, delivery of a Term Note duly executed and
delivered by CLTL and copies of all consents, approvals or authorizations, each
in form and substance acceptable to the Bank, of all governmental agencies and
authorities which may be required in connection with the issuance of valid and
enforceable Term Note, and delivery of valid and binding first priority security
interests in the collateral for each such Term Loan (including valid
certificates of title to tractors).
5. Covenants
CLC and CLTL agree that, so long as the Commitment remains in effect or any
amount is outstanding under any Loan Document (including any Notes) remains
unpaid:
5.1 Reporting Requirements.
(a) Annual Financial Statements. As soon as available but in any event
within 120 days after the end of each fiscal year, CLC will deliver to the Bank
financial statements of CLC (on a consolidated basis including CLTL) for such
fiscal year. "Financial statements" shall mean a balance sheet, a statement of
earnings or loss, a statement of cash flows and a statement of changes in
financial position for the fiscal year and the immediately preceding fiscal year
in comparative form, and shall contain appropriate notes and be prepared in
accordance with GAAP. All financial statements shall be on a consolidated basis
and include consolidating information and shall be in reasonable detail. All
annual financial statements shall be certified (without any qualification,
exception or limiting statement or disclosure deemed material by the Bank) by
Xxxxxx Xxxxxxxx & Co. or such other independent public accountants of nationally
recognized standing who shall be acceptable to the Bank, which acceptance shall
not be unreasonably withheld.
Credit Agreement, July 31, 1995 - 15 - Chemical Xxxxxx Tank Lines, Inc.
(b) Quarterly Financial Statements. As soon as available but in any
event within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, CLC and CLTL, respectively, will deliver to the Bank financial
statements of CLC and CLTL (each on a consolidated basis) for such fiscal
quarter. Said financial statements shall be accompanied by financial statements
for the comparable period of the preceding fiscal year and in each instance the
cumulative year to date. Quarterly financial statements shall be certified by
the president, chief executive or chief financial officer of CLC or CLTL, as
applicable, as being complete and correct in all material respects, subject to
normal year-end audit adjustments.
(c) Annual and Quarterly Default and Compliance Certificates. Each
annual and quarterly financial statement will be accompanied by a certificate in
substantially the form attached hereto as Exhibit 5 (the "Default and Compliance
Certificate"), signed by the president, chief executive or chief financial
officer of CLTL (in his capacity as president, chief executive or chief
financial officer of CLTL and not personally) (i) stating whether in his opinion
an Event of Default or event which with notice or lapse of time or both would
become an Event of Default exists on the date of said certificate together with
a statement of the details and action taken or to be taken if any such Event of
Default or event exists and (ii) attaching an analysis of the extent to which
CLTL is in compliance with the Financial Condition and Ratios set forth in
ss.5.1 hereof. Each annual financial statement also will be accompanied by a
statement of the firm of independent public accountants which reported on the
statements of CLC and CLTL to the effect that in the course of, and based solely
upon, their regular audit of the financial statements of CLC and CLTL nothing
came to their attention which caused them to believe that on the date of such
statements any Event of Default or event which with notice or lapse of time or
both would become an Event of Default existed or, in the alternative, that such
an Event of Default or event existed and setting forth the details thereof.
(d) Monthly Borrowing Base Statements. Within 30 days after the end of
each calendar month, CLTL will deliver to the Bank a borrowing base certificate
in the form specified by the Bank from time to time (the "Borrowing Base
Certificate"), signed by the chief executive or chief financial officer of CLTL,
and dated the last day of such month, together with appropriate schedules
reflecting the Revenue Equipment included in the Borrowing Base.
(e) Interim Default Certificates. CLTL will deliver to the Bank
forthwith upon the occurrence of any Event of Default or event which with notice
or lapse of time or both would become an Event of Default a certificate signed
by the president, chief executive or chief financial officer of CLTL stating the
details and action taken or to be taken with respect thereto.
(f) Other Statements and Reports. Promptly following request by the
Bank, CLC and CLTL also will furnish such additional information, reports or
statements as the Bank from time to time may reasonably request.
5.2 Financial Condition and Ratios. CLC and CLTL will maintain or cause to
be maintained, as applicable, and CLTL agrees that this ss.5.2 will be deemed
breached if CLC (on a consolidated basis) does not also maintain (as
applicable), minimum financial conditions and ratios, as follows:
(a) Borrowing Base. The aggregate principal amount of the Revolving
Credit Loans, Term Loans and the face amount of all Letters of Credit
outstanding hereunder (or the Refunding Term Loan, as applicable) shall not at
any time exceed the Borrowing Base; provided, however, that this covenant shall
not be deemed breached if, with respect to any time such aggregate amount
exceeds said level, within five Business Days after
Credit Agreement, July 31, 1995 - 16 - Chemical Xxxxxx Tank Lines, Inc.
the earlier of (i) the date CLTL first has knowledge of such breach, (ii) the
date of the next Borrowing Base Certificate disclosing the existence of such
breach, or (iii) the delivery of the annual appraisal of the Equipment provided
in ss.7(c) of the Security Agreement, dated July 31, 1995, executed by CLTL in
favor of the Bank, disclosing the existence of such breach, a prepayment of the
Revolving Credit Loan, Term Loan or the Refunding Term Loan, as applicable,
shall be made in an amount sufficient to assure continued compliance with this
covenant in the future.
"Appraised Value" shall mean that value determined annually on
or about July 1 of each year by an independent appraiser of
recognized standing who shall be selected by CLTL with the
consent of the Bank (which consent shall not be unreasonably
withheld) as the aggregate of the fair market values of each
item of Revenue Equipment listed on Schedule A to the Security
Agreement as such schedule shall exist at the time of the
annual appraisal. Appraised value shall be adjusted at the
time any item of Revenue Equipment is withdrawn or added to
Schedule A during the course of each year with the fair market
value of deletions and additions to be determined in good
faith by CLTL at the time of the deletion or addition on a
basis consistent with that employed by the appraisal in
connection with the most recent annual appraisal, provided,
however, if the Bank shall object to the value placed on any
deletion or addition the fair market value of any deletion
shall be that placed on the item of Revenue Equipment being
withdrawn at the time of the most recent annual appraisal and
the proposed addition shall have no value for this purpose
until a valuation is completed for such item of Revenue
Equipment at the time of the next annual appraisal.
"Borrowing Base" shall mean an amount equal to the sum of 75%
of the aggregate Appraised Value of all Revenue Equipment.
"Revenue Equipment" shall mean all CLTL's trucks, tractors,
trailers and similar equipment described in Schedule A to the
Security Agreement dated July 31, 1995 by CLTL in favor of the
Bank, as such Schedule A shall have been or be amended or
supplemented from time to time; provided, however, that the
term Revenue Equipment shall not include any trucks, tractors,
trailers or similar equipment financed by a Term Loan, even if
such item of equipment is listed on such Schedule A for
purposes of granting a lien on such equipment to the Bank.
(b) Current Ratio. A Current Ratio of CLTL which is not at any time
less than 1.25:1.
"Current Ratio" for CLTL shall mean the ratio of its Current
Assets to its Current Obligations, exclusive of the current
portion of long term liabilities.
"Current Assets" and "Current Obligations" shall mean,
respectively, all assets or liabilities of CLTL which would,
in accordance with GAAP, be classified as current assets or
current liabilities, as applicable; provided, however, that
the term Current Assets shall exclude any cash or cash
equivalents which for any reason is restricted and not
currently usable to pay Current Obligations, and the term
Current Obligations shall exclude CLTL's obligations under (i)
the notes issued by it in connection with Accounts Receivable
Funding Documents, or (ii) the Associates Loan.
Credit Agreement, July 31, 1995 - 17 - Chemical Xxxxxx Tank Lines, Inc.
"Accounts Receivable Funding Documents" shall mean that
certain Receivables Contribution and Purchase Agreement dated
as of May 14, 1993 among CLC, CLTL, QSI and Xxxxxxxxx Way
together with a Pooling and Servicing Agreement dated as of
May 14, 1993 among CLC, Xxxxxxxxx Way and Fidelity Bank,
National Association, as Trustee, and all other documents and
agreements referred to therein, as amended from time to time.
(c) Tangible Net Worth. Tangible Net Worth at any time of not less than
$21,000,000 in the case of CLC and $30,000,000 in the case of CLTL.
"Tangible Net Worth" shall mean Tangible Assets less total
liabilities shown on the balance sheet.
"Tangible Assets" shall mean total assets, (i) excluding
patents, copyrights, capitalized research and development
costs, goodwill, operating rights and other intangible assets
on a consolidated basis, and (ii) in the case of CLC,
including in stockholders' equity the book value of all
outstanding Series A preferred stock.
(d) Liabilities to Tangible Net Worth. A ratio of Total Liabilities to
Tangible Net Worth (as defined above) which is not at any time more than 5.50:1
in the case of CLC and 3.40:1 in the case of CLTL.
"Total Liabilities" shall mean (i) the total liabilities shown
on the balance sheet, plus (ii) to the extent not shown on
such balance sheet, the value of all leases, including all
operating leases discounted to present value at the rate of
return which the lessee will pay on each lease, less (iii) the
amount of all subordinated debt, the terms of which are
acceptable to the Bank in its sole discretion.
(e) Debt Coverage. A ratio of Current Income to Adjusted Current
Obligations of CLC which is not at any time less than 1.00:1. In calculating
this ratio, Current Income and Current Obligations shall be determined for each
period based on the actual Current Income and Current Obligations for the
preceding four fiscal quarters.
"Current Income" with respect to CLC shall mean its (i)
consolidated net income for the fiscal period, plus (ii)
depreciation deducted during the period and amounts added to
or subtracted from, as applicable, any reserve for deferred
tax liability during the period, minus (iii) any dividends or
distributions paid or declared during the period.
"Adjusted Current Obligations" with respect to CLC shall mean,
as applicable, (i) the amount of all its obligations maturing
within the next succeeding 365 days, excluding its obligations
under the Associates Loan, the Revolving Credit Loan, the
notes issued by it in connection with Accounts Receivable
Funding Documents and any Letter of Credit issued as
contemplated herein, plus (ii) 20% of the principal balance
outstanding under the Associates Loan and 25% of the principal
balance of the Revolving Credit Loan and all such Letters of
Credit.
(f) Interest Coverage. A ratio of EBITD plus interest expense to
interest expense of CLC which is not at any time less than 2.75:1. In
calculating this ratio, EBITD and interest expense shall be determined for each
period based on the actual EBITD and interest expense for the preceding four
fiscal quarters.
Credit Agreement, July 31, 1995 - 18 - Chemical Xxxxxx Tank Lines, Inc.
"EBITD" with respect to CLC shall mean its consolidated net
income, before taxes, interest expense, depreciation and
extraordinary items.
5.3 Performance of Loan Documents; Further Assurances. CLC and CLTL each
will duly and punctually perform each and every obligation under each Loan
Document to which it is a party and execute and deliver all such other and
further instruments, and do and perform all such further acts and things as the
Bank may reasonably request to confirm to the Bank the rights and benefits of
any security interests therein granted.
5.4 Compliance with Laws. CLC and CLTL each will comply in all material
respects with all applicable laws, rules, regulations and orders of any
governmental authority to which it may be subject, including but not limited to
the payment and discharge of all taxes, assessments and governmental charges
upon it, its income and its assets and properties prior to the dates on which
penalties are attached thereto, except to the extent such compliance shall be
contested in good faith and by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP.
5.5 Maintenance of Assets; Permits, Licenses, Etc. CLC and CLTL each will
maintain and preserve all its assets necessary for the proper conduct of its
business in good working order and condition, ordinary wear and tear excepted,
and will continue to possess all material permits, licenses, franchises,
trademarks, copyrights, and patents necessary to the conduct of its business as
conducted or as proposed to be conducted.
5.6 Insurance. CLTL shall keep and maintain all of its property and assets
fully covered by insurance with reputable and financially sound insurance
companies against such hazards and in such amounts as is customary in the
industry and reasonably satisfactory to the Bank (including up to $2,000,000 of
self-insurance), under policies requiring the insurer to furnish thirty (30)
days' prior notice to the Bank and opportunity to cure any non-payment of
premiums prior to termination of coverage; and furnish the Bank with
certificates of such insurance and cause the Bank to be named as and additional
insured and the loss payee thereof, as its interest may appear.
5.7 Environmental Matters.
(a) CLC and CLTL each shall comply in all material respects with all
the Environmental Control Statutes, and the provisions and requirements of all
franchises, permits, certificates of compliance and approvals issued by
regulatory authorities thereunder and other like grants of authority held by it;
and shall notify the Bank immediately in detail of any actual or alleged failure
to comply with or perform, or any breach, violation or default under, any such
laws or regulations or under the terms of any of such franchises or licenses,
grants of authority, or of the occurrence or existence of any facts, events or
circumstances which with the passage of time, the giving of notice, or both,
could create such a breach, violation or default or could occasion the
termination of any of such franchises or grants of authority, where any such
failure, breach, violation or default could have a Material Adverse Effect on
CLTL. "Material Adverse Effect," for purposes of this ss.5.7(a) shall mean any
event or condition which, which is reasonably likely to exceed $500,000 or
result in termination of any material business operations.
(b) CLC or CLTL (as applicable) shall notify the Bank when, in
connection with the conduct of its business or operations, any person, the
Environmental Protection Agency or any state or local agency provides oral or
written notification to it with regard to an actual or imminently threatened
removal, spill,
Credit Agreement, July 31, 1995 - 19 - Chemical Xxxxxx Tank Lines, Inc.
release or discharge of hazardous or toxic wastes, substances or petroleum
products when such notice specifies that CLC or CLTL is liable for costs of
remedying the Release and liability therefore could have a Material Adverse
Effect on CLC or CLTL; and CLC or CLTL (as applicable) shall notify the Bank in
detail immediately upon the receipt by it of an assertion of liability under any
of the Environmental Control Statutes, any actual or alleged failure to comply
with or perform, breach, violation or default under any such laws or regulations
or under the terms of any of such franchises or grants of authority, or of the
occurrence or existence of any facts, events or circumstances which with the
passage of time, the giving of notice, or both, could create such a breach,
violation or default or could occasion the termination of any of such franchises
or grants of authority, where any such failure, breach, violation or default
could have a Material Adverse Effect on CLC or CLTL.
5.8 ERISA. CLC and CLTL each shall comply in all material respects with the
provisions of ERISA to the extent applicable to any Plan. Neither CLC nor CLTL
shall incur any material accumulated funding deficiency (within the meaning of
ERISA and the regulations thereunder), or any material liability to the PBGC
established by ERISA) or not permit any "reportable event" (as defined in ERISA)
or other event to occur which may indicate that its Plans are not sound or which
may be the basis for PBGC to assert a material liability against it or which may
result in the imposition of a lien on its properties or assets; and notify the
Bank in writing promptly after it has come to the attention of senior management
of CLC or CLTL (as applicable) of the assertion or threat of any "reportable
event," the existence of any "reportable threat" or other event which may
indicate that a Plan is not sound or may be the basis for PBGC to assert a
material liability against it or impose a lien on CLTL's or CLC's properties or
assets.
5.9 Corporate Existence. CLC and CLTL each shall maintain itself in good
standing as a business corporation under the jurisdiction of its incorporation
and qualify and remain qualified to do business in all jurisdictions where the
nature of the business it transacts or the character of the assets or properties
owned or leased by it makes such qualification necessary.
5.10 Books and Records. CLC and CLTL each shall keep adequate records and
books of account in which complete and correct entries will be made in
accordance with GAAP, reflecting all its financial transactions. CLC and CLTL
each shall permit the Bank, or the representative of the Bank, to examine and
make copies of and abstracts from its records and books of account, visit its
properties, and discuss its affairs, finances, assets and accounts with any of
its officers, directors or other executives.
5.11 Merger; Purchase or Sale of Assets. Neither CLC nor CLTL will (a)
dissolve, (b) adopt or enter into any plan or agreement of liquidation, or (c)
enter into any merger or consolidation with or acquire all or substantially all
of the assets of any other person unless the surviving entity shall be CLC or
CLTL (as applicable). CLTL will not sell or otherwise suffer a transfer of any
shares of its capital stock to any person other than the current holder thereof.
5.12 Equipment. CLTL will grant to the Bank and the Bank shall continue to
have a valid, perfected first lien on and security interest in all equipment set
forth in Schedule A to the Security Agreement dated July 31, 1995, as provided
in such agreement.
5.13 Acquisitions and Investments. CLTL shall not (a) purchase or otherwise
acquire any part or amount of the capital stock or assets of, or make any
investments in, any other firm or corporation not related to its present
business, except for (i) CLT and Xxxxxxxxx Way, (ii) as permitted by ss.5.14
hereof and (iii) Permitted Investments, (b) enter into any new business
activities or ventures not directly related to its present
Credit Agreement, July 31, 1995 - 20 - Chemical Xxxxxx Tank Lines, Inc.
business, or (c) create any new subsidiary corporations or partnerships. The
term "Permitted Investments" shall mean (i) investments in commercial paper
maturing in 180 days or less from the date of issuance which is rated A1 or
better by Standard & Poor's Corporation or P1 or better by Xxxxx'x Investors
Services, Inc.; (ii) investments in direct obligations of the United States of
America or obligations of any agency thereof which are guaranteed by the United
States of America, provided that such obligations mature within twelve months of
the date of acquisition thereof; and (iii) investments in certificates of
deposit maturing within one year from the date of acquisition thereof issued by
a bank or trust company organized under the laws of the United States or any
state thereof, having capital, surplus and undivided profits aggregating at
least $1,000,000,000 and the long-term deposits of which are rated A1 or better
by Xxxxx'x Investors Services, Inc. or the equivalent by Standard & Poor's
Corporation.
5.14 Loans; Advances. CLTL shall not make any additional loans or advances
to others, except that CLTL may make loans and advances to (a) its Subsidiaries,
CLC and CLC's Subsidiaries in an aggregate amount not to exceed $28,000,000 at
any time outstanding, and (b) its owner/operators (who are individuals) in an
aggregate amount not to exceed $100,000 at any time outstanding.
5.15 Guarantees. CLTL shall not create, incur, assume or in any manner
become liable upon any guarantee of indebtedness or other obligations at any
time outstanding in excess of $5,000,000 in the aggregate.
5.16 Use of Proceeds. CLTL shall not use any of the proceeds of the
Revolving Credit Loan, any Letter of Credit, any Term Loan or the Refunding Term
Loan, as applicable, directly or indirectly, to purchase or carry margin
securities within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System, or engage as its principal business in the extension of
credit for purchasing or carrying such securities for equipment purchases and
general corporate purposes.
6. Default
6.1 Events of Default. CLTL shall be in default if any one or more of the
following events (each an "Event of Default") occurs:
(a) Principal or Interest. CLTL (i) fails to pay any installment of
principal of or interest on any Note issued by it in connection herewith within
five (5) days after the date it is due and payable (whether at maturity, upon
acceleration, by notice of intention to prepay, or otherwise), or (ii) fails to
pay within ten (10) days after the date it is due and payable any other amount
payable under any Loan Document to which it is a party.
(b) No Notice Covenants. Either CLTL or CLC fails to observe or perform
any covenant or agreement contained in Sections 5.2, 5.7, 5.9, 5.10, 5.11, 5.12,
5.13, 5.15 or 5.16 hereof without regard to whether or not any notice of such
failure has been given by the Bank.
(c) 10 Day Notice Covenants. Either CLTL or CLC fails to observe or
perform any covenant or agreement contained in Sections 5.1, 5.6, 5.8 or 5.14
hereof for 10 days after the earlier of the following to occur: (i) written
notice thereof has been given by the Bank specifying the default and requiring
that it be remedied, and (ii) senior management of CLC or CLTL becomes aware of
the default.
Credit Agreement, July 31, 1995 - 21 - Chemical Xxxxxx Tank Lines, Inc.
(d) 30 Day Notice Covenants. Either CLC or CLTL fails to observe or
perform any covenant or agreement contained herein or in any other Loan
Document, other than those contemplated in clauses (a), (b) and (c) above, for
30 days after the earlier of the following to occur: (i) written notice thereof
has been given by the Bank specifying the default and requiring that it be
remedied, and (ii) senior management of CLC or CLTL becomes aware of the
default.
(e) Representations and Warranties. Any representation or warranty made
by either CLC or CLTL in any Loan Document or any statement or representation
made in any certificate, report or opinion delivered in connection with any Loan
Document shall prove to have been incorrect in any material respect when made.
(f) Cross Default. Any obligation of any of CLC or CLTL to any person
for payment of money borrowed, in excess of $1,000,000, is not paid when due, or
becomes or is declared to be due and payable prior to its stated maturity or any
event of default shall have occurred the effect of which will permit the holder
of any such obligation to demand payment of such obligation prior to its stated
maturity, or any obligation of any of CLC or CLTL under any lease, in excess of
$1,000,000 in the aggregate for all leases, whether operating or capital in
nature, shall be in default the effect of which will permit the lease to be
terminated or money damages to be collected.
(g) Bankruptcy, Etc. Any of CLC or CLTL is dissolved or liquidated,
makes an assignment for the benefit of creditors, files a voluntary petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any
tribunal for any receiver or trustee, commences any proceeding relating to
itself under any bankruptcy, reorganization, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, has commenced against it any
such proceeding which remains undismissed for a period of 60 days, indicated its
consent to, approval of or acquiescence in any such proceeding or any receiver
of or trustee for any of CLC or CLTL or any substantial part of the property of
any of them is appointed or any of CLC or CLTL suffers any such receivership or
trusteeship to continue undischarged for a period of 60 days.
(h) Judgments. Any judgments against any of CLC or CLTL or any
attachments against any of CLC's or CLTL's assets or property for amounts in
excess of $1,000,000 in the aggregate remain unpaid, unstayed on appeal,
undischarged, unbonded and undismissed for a period of 60 days.
(i) ERISA. Any Reportable Event (as such term is defined in ERISA) or
any other fact or circumstance which the Bank in good faith determines
constitutes ground for the termination of any employee benefit plan maintained
for employees of CLC or CLTL and covered by Title IV of ERISA or grounds for the
appointment by an appropriate United States District Court of a trustee to
administer any such plan, shall have occurred and be continuing for five days,
or any such plan shall be terminated within the meaning of such Title IV, or a
trustee shall be appointed by the appropriate United States District Court to
administer such plan or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any such plan or to appoint a trustee to administer
such plan, if upon the termination of the plan or plans with respect to which
any of the foregoing events shall have occurred there is or would be, in the
reasonable judgment of the Bank, a material resultant liability of CLC or CLTL.
(j) Ownership of CLC. Xx. Xxxxx X. Xxxxxxxx, Xx. Xxxxxx XxXxxxxx, Mr.
Xxxx XxXxxxxx and the Estate of Xxxxxx X. Xxxxx, the members of their immediate
families, and trusts they control for the benefit of the members of their
immediate families, shall own, in the aggregate, beneficially and of record,
less than thirty percent (30%) of the outstanding common stock of CLC.
Credit Agreement, July 31, 1995 - 22 - Chemical Xxxxxx Tank Lines, Inc.
(k) Material Adverse Change. There occurs a Material Adverse Change
with respect to CLC or CLTL.
(l) Associates Loan. There occurs an Event of Default under, and as
defined in, the Revolving Credit Agreement, dated November 30, 1990, (such
Revolving Credit Agreement, together with all the Loan Documents referred to
therein, as amended from time to time, collectively the "Associates Loan"), or
the revolving credit facility thereunder is converted into a term loan.
(m) Accounts Receivable Funding Documents. There occurs a Termination
Event under any of the Accounts Receivable Funding Documents (capitalized terms
used in this clause (m) and not defined in this Agreement shall have the
meanings assigned to them in the Accounts Receivable Funding Documents).
THEN and in every such event other than those specified in clauses (f) and
(j) above, the Bank may, in its sole discretion, terminate the Commitment (the
date of such termination being a Termination Date as defined in ss.1.1) and
declare the Notes together with accrued interest thereon and all other amounts
payable under any Loan Document to be, and the same shall thereupon become, due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by CLTL. Upon the occurrence of any event
specified in clause (f) above, the Commitment shall automatically terminate and
the Notes together with accrued interest thereon and all other amounts payable
under any Loan Document shall immediately be due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by CLTL. Upon the occurrence of any event specified in clause (j)
above, the Bank may, in its sole discretion, immediately and without any lapse
of time reduce the Commitment to the aggregate principal amount of the Revolving
Credit Loan then outstanding, and upon the continuance of such event, the Bank
may, in its sole discretion, terminate the Commitment and declare the Notes
together with accrued interest thereon and all other amounts payable under any
Loan Document to be, and the same shall thereupon become, due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by CLC and CLTL. Upon the occurrence of an Event of Default,
in addition to the rights set forth above, the Bank shall have the immediate
right to enforce or realize on any collateral security granted to it in any
manner or order it deems expedient without regard to any equitable principles of
marshalling or otherwise. In addition to any rights granted hereunder or in any
of the other Loan Documents, the Bank shall have all the rights and remedies
granted by applicable law, all of which shall be cumulative in nature.
7. Miscellaneous
7.1 Waiver. No failure or delay on the part of the Bank in exercising any
right, power or remedy under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy under any Loan Document. The remedies provided
under the Loan Documents are cumulative and not exclusive of any remedies
provided by law or equity.
7.2 Amendments. No amendment, modification, termination or waiver of any
Loan Document or any provision thereof nor any consent to any departure by CLC
or CLTL therefrom shall be effective unless the same shall have been approved by
the Bank, be in writing and be signed by the Bank and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on CLC or CLTL shall entitle CLC
or CLTL to any other or further notice or demand in similar or other
circumstances.
Credit Agreement, July 31, 1995 - 23 - Chemical Xxxxxx Tank Lines, Inc.
7.3 Governing Law. The Loan Documents and all rights and obligations of the
parties thereunder shall be governed by and be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania. CLC and CLTL each
hereby consents to the jurisdiction of the courts of such state in any action or
proceeding which may be brought against it under or in connection with any Loan
Document, and in the event any such action or proceeding shall be brought
against it, CLC and CLTL each agrees not to raise any objection to such
jurisdiction or to the laying of the venue thereof in such state.
7.4 Assignment.
(a) The provisions of each Loan Document shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that no party other than the Bank may assign or
otherwise transfer any of its rights under any Loan Document without the prior
written consent of the Bank.
(b) No person not a party to any Loan Document is intended to be
benefitted thereby.
7.5 Severability. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without affecting the
validity or enforceability of the remainder of such Loan Document or the
enforceability of such provision in any other jurisdiction.
7.6 Captions. Captions in the Loan Documents are included for convenience
of reference only and shall not constitute a part of any Loan Document for any
other purpose.
7.7 Notices. All notices, requests, demands, directions, declarations and
other communications between the Bank, CLC and CLTL provided for in any Loan
Document shall, except as otherwise expressly provided, be mailed by registered
or certified mail, return receipt requested, or telegraphed, or sent by
facsimile transmission or delivered in hand to the applicable party at its
address indicated by its signature on the signature page hereto. The foregoing
shall be effective when deposited in the mails, postage prepaid, addressed as
aforesaid and shall whenever sent by telegram or facsimile or delivered in hand
be effective when received. Any party may change its address by a communication
in accordance herewith.
7.8 Set-Off. CLC and CLTL each agrees, to the fullest extent each may
effectively do under applicable law, that the Bank may exercise rights of
set-off or counterclaim and other rights as a direct creditor of CLC or CLTL, as
applicable.
7.9 Indemnification. CLTL agrees to indemnify the Bank from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Bank in
any way relating to or arising out of this Agreement or any other Loan Document
or any action taken or omitted to be taken by the Bank hereunder or thereunder;
provided that CLTL shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Bank.
7.10 Expenses of the Bank. CLTL will from time to time reimburse the Bank
on demand for all reasonable costs and expenses (including the reasonable fees
and expenses of legal counsel) in connection with the preparation of the Loan
Documents, the making of any advances, the ordinary administration of the Loan
Credit Agreement, July 31, 1995 - 24 - Chemical Xxxxxx Tank Lines, Inc.
Documents, including all out-of-pocket expenses incurred by the Bank with
respect to obtaining, amending or releasing certificates of title, the
enforcement of the Loan Documents and auditing CLTL's books and records.
7.11 Counterparts; Effectiveness. This Agreement and any amendment hereto
or waiver hereof may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement and any amendments hereto
or waivers hereof shall become effective when the Bank shall have received
signed counterparts or notice by telecopy of the signature page that the
counterpart has been signed and is being delivered to the Bank.
7.12 1993 Agreement Superseded. This Agreement shall become the entire
agreement of the parties hereto and shall supersede and replace in all respects
the 1993 Agreement and all other agreements, written or oral, between or among
CLC, CLTL and the Bank.
IN WITNESS WHEREOF, CLTL and the Bank have caused this Agreement to be
executed by their proper corporate officers thereunto duly authorized as of the
day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC.
By: /S/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Notices To:
Xx. Xxxxx X. Xxxxxxx
Chemical Xxxxxx Tank Lines
000 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000-0000
FAX No. (000) 000-0000
Credit Agreement, July 31, 1995 - 25 - Chemical Xxxxxx Tank Lines, Inc.
CORESTATES BANK, N.A.
By: /S/ XXXXX D'XXXXXXX
Name: Xxxxx D'Antonio
Title: Vice President
Notices To:
Mr. David D'Antonio
Vice President
CoreStates Bank, N.A.
Transportation, Leasing and Equipment Finance Services
FC 1-3-19-21
0000 Xxxxxx Xxxxxx Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
FAX No. (000) 000-0000
CLC HAS SIGNED BELOW FOR THE PURPOSE OF CONFIRMING THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT
AND AGREEING TO THE COVENANTS CONTAINED HEREIN.
CHEMICAL XXXXXX CORPORATION
By: /S/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Notices To:
Xx. Xxxxx X. Xxxxxxx
Senior Vice President and Chief Financial Officer
Chemical Xxxxxx Corporation
000 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000-0000
FAX No. (000) 000-0000
Credit Agreement, July 31, 1995 - 26 - Chemical Xxxxxx Tank Lines, Inc.
REFERENCE TABLE OF DEFINITIONS
DEFINITION PAGE DEFINED
1993 Agreement.................................................................1
Accounts Receivable Funding Documents.........................................19
Accumulated funding deficiency................................................11
Adjusted Current Obligations..................................................20
Adjusted Libor Rate............................................................6
Agreement......................................................................1
Appraised Value...............................................................18
Associates Loan...............................................................24
Bank...........................................................................1
Base Rate......................................................................6
Borrowing Base................................................................18
Borrowing Base Certificate....................................................17
Business Day...................................................................2
CLC............................................................................1
CLT............................................................................1
CLTL...........................................................................1
Code..........................................................................11
Commitment.....................................................................1
Commitment Fee.................................................................3
Commitment Period..............................................................1
Current Assets................................................................19
Current Income................................................................19
Current Obligations...........................................................19
Current Ratio.................................................................18
Default and Compliance Certificate............................................17
Default Rate...................................................................9
EBITD.........................................................................20
Employee benefit plans........................................................11
Employee pension benefit plans................................................11
Environmental Control Statutes................................................13
EPA...........................................................................14
ERISA.........................................................................11
Event of Default..............................................................22
Federal Funds Rate.............................................................6
Financial statements..........................................................16
GAAP..........................................................................12
Indebtedness..................................................................13
Interest Period................................................................6
Letter of Credit...............................................................2
Libor Rate.....................................................................6
Loan Document.................................................................10
Loan Documents................................................................10
Loan Request...................................................................3
Credit Agreement, July 31, 1995 - 27 - Chemical Xxxxxx Tank Lines, Inc.
Loans..........................................................................1
London Business Day............................................................6
Margin stock..................................................................12
Material Adverse Change.......................................................12
Material Adverse Effect.......................................................11
Material Adverse Effect,......................................................21
Multiemployer plan............................................................11
Multiemployer plans...........................................................11
Note..........................................................................10
Notes.........................................................................10
Permitted Investments.........................................................22
Xxxxxxxxx Way..................................................................1
Plans.........................................................................11
Prime Rate.....................................................................6
Prohibited transaction........................................................11
QSI............................................................................1
Refunding Term Loan............................................................4
Refunding Term Note............................................................4
Regulation D...................................................................7
Release.......................................................................14
Reportable event..............................................................11
Reportable event,.............................................................11
Reserve........................................................................7
Reserve Percentage.............................................................7
Revenue Equipment.............................................................18
Revolving Credit Loans.........................................................1
Revolving Credit Note..........................................................3
Security Documents............................................................14
Subsidiary....................................................................13
Tangible Assets...............................................................19
Tangible Net Worth............................................................19
Term Loan Note.................................................................3
Term Loan Rate.................................................................8
Term Loans.....................................................................2
Termination Date...............................................................1
Total Liabilities.............................................................19
Withdrawal....................................................................11
Credit Agreement, July 31, 1995 - 28 - Chemical Xxxxxx Tank Lines, Inc.
EXHIBIT 1
Revolving Credit Note
$12,500,000 July 31, 0000
Xxxxxxxxxxxx, XX
For Value Received, CHEMICAL XXXXXX TANK LINES, INC., a Delaware
corporation ("CLTL"), hereby promises to pay to the order of CORESTATES BANK,
N.A., a national banking association (the "Bank"), the principal amount of
TWELVE MILLION FIVE HUNDRED THOUSAND DOLLARS ($12,500,000), or so much thereof
as shall have been advanced by the Bank as the Revolving Credit Loan under the
Credit Agreement hereinafter referred to and shall then be outstanding.
This Note is the Revolving Credit Note referred to in, is entitled to the
benefits of and is secured by certain security interests referred to in the
Credit Agreement (as such may be amended from time to time, the "Credit
Agreement"), dated July 31, 1995, between CLTL and the Bank. Capitalized terms
used herein and not defined shall have the meanings assigned to them in the
Credit Agreement.
Payments of principal shall be made as provided in the Credit Agreement.
CLTL promises to pay interest on the aggregate unpaid principal amount of the
Revolving Credit Loan on the dates and at the rate or rates provided for in the
Credit Agreement and as elected by them pursuant to loan requests delivered
pursuant to ss.1.3 of the Credit Agreement. The Credit Agreement also contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events and also for payments of principal prior to the maturity hereof
upon the terms and conditions specified therein. The principal of and interest
on this Note is payable in full on the Termination Date (as defined in the
Credit Agreement) unless the maturity hereof is accelerated under the terms of
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in immediately available funds at the
office of the Bank, Broad and Chestnut Streets, Philadelphia, Pennsylvania.
This Note shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
In addition to and not in limitation of the foregoing and the provisions of
the Credit Agreement, CLTL further agrees, subject only to any limitation
imposed by applicable law, to pay all reasonable expenses, including reasonable
attorneys' fees and legal expenses, incurred by the holder of this Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
Presentment for payment, demand, protest, dishonor and notice of dishonor
are hereby waived.
IN WITNESS WHEREOF, and intending to be legally bound hereby, CLTL has
caused this Note to be executed by its duly authorized officer as of the day and
year first above written.
CHEMICAL XXXXXX TANK LINES, INC.
By: /S/ XXXXXX X. XXXXXXXX
Title: Vice President
EXHIBIT 2
Term Note
$[00,000,000] _________, 19__
Philadelphia, PA
For Value Received, CHEMICAL XXXXXX TANK LINES, INC., a Delaware
corporation ("CLTL"), hereby promises to pay to the order of CORESTATES BANK,
N.A., a national banking association, (the "Bank"), the principal amount of
[insert amount] DOLLARS ($[00,000,000]).
This Note is a Term Note as referred to in, is entitled to the benefits of
and is secured by certain security interests referred to in the Credit Agreement
(as such may be amended from time to time, the "Credit Agreement"), dated July
31, 1995, between CLTL and the Bank. Capitalized terms used herein and not
defined shall have the meanings assigned to them in the Credit Agreement.
CLTL promises to pay interest on the unpaid principal amount of this Note
at the annual rate of [insert rate] percent ([ ]%) per annum subject to increase
upon the occurrence and continuance of an Event of Default as provided for in
the Credit Agreement. The Credit Agreement also contains provisions for the
acceleration of the maturity hereof upon the happening of certain events and
also for payments of principal prior to the maturity hereof upon the terms and
conditions specified in the Credit Agreement. The principal of and interest on
this Note is payable in [insert number] equal monthly installments of principal
plus interest accrued to the date of each payment payable on the [insert day]
day of each month hereafter unless the maturity hereof is accelerated under the
terms of the Credit Agreement. All such payments of principal and interest shall
be made in lawful money of the United States in immediately available funds at
the office of CoreStates Bank at Xxxxx xxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX
00000.
This Note shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
In addition to and not in limitation of the foregoing and the provisions of
the Credit Agreement, CLTL further agrees, subject only to any limitation
imposed by applicable law, to pay all reasonable expenses, including reasonable
attorneys' fees and legal expenses, incurred by the holder of this Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
Presentment for payment, demand, protest, dishonor and notice of dishonor
are hereby waived.
IN WITNESS WHEREOF, and intending to be legally bound hereby, CLTL has
caused this Note to be executed by its duly authorized officer as of the day and
year first above written.
CHEMICAL XXXXXX TANK LINES, INC.
By:_____________________________
Title:
EXHIBIT 3
Request for Revolving Credit Loan
In accordance with ss.1.3(a) of the Credit Agreement (as amended from time
to time, the "Credit Agreement"), dated July 31, 1995, between CHEMICAL XXXXXX
TANK LINES, INC. ("CLTL") and CORESTATES BANK, N.A., CLTL hereby requests a
Revolving Credit Loan under the Credit Agreement.
On the date hereof and as of the date of the requested Revolving Credit
Loan, CLTL represents, warrants and certifies that:
(1) the proposed date of the requested Revolving Credit Loan advance is
_______________, 19___;
(2) the amount of the requested Revolving Credit Loan advance is
$___________________;
(3) the interest rate option which CLTL elects to apply to the requested
Revolving Credit Loan advance is the __________ Rate [with an Interest
Period of _____ months]1.
(4) all conditions precedent to the issuance of a Revolving Credit Loan
advance contained in the Credit Agreement are satisfied on the date
hereof and as of the date of the requested Revolving Credit Loan
advance after giving effect to such Revolving Credit Loan advance and
the application of proceeds therefrom;
(5) the representations and warranties set forth in the Credit Agreement
are true and correct as if made on the date hereof and as of the date
of the requested Revolving Credit Loan advance after giving effect to
such Revolving Credit Loan advance and the application of proceeds
therefrom; and
(6) immediately before the making of the Revolving Credit Loan advance and
immediately after giving effect to such Revolving Credit Loan advance
and the application of proceeds therefrom, no Event of Default or event
which with the passage of time or the giving of notice or both would
constitute an Event of Default has occurred, will be caused by the
Revolving Credit Loan advance, or is then continuing.
Capitalized terms used herein which are not defined herein shall have the
respective meanings set forth in the Credit Agreement.
--------
1 In the case of an Adjusted LIBOR Rate Loan.
IN WITNESS WHEREOF, CLTL by its duly authorized officer, has executed this
Request for a Revolving Credit Loan advance this _____ day of
______________________, 19____.
CHEMICAL XXXXXX TANK LINES, INC.
By:___________________________
Title:
Credit Agreement, July 31, 1995 - 2 - Chemical Xxxxxx Tank Lines, Inc.
EXHIBIT 4
Refunding Term Note
$[00,000,000] , 19
--------------
Philadelphia, PA
For Value Received, CHEMICAL XXXXXX TANK LINES, INC., a Delaware
corporation ("CLTL"), hereby promises to pay to the order of CORESTATES BANK,
N.A., a national banking association, (the "Bank"), the principal amount of
[insert amount] DOLLARS ($[00,000,000]).
This Note is the Refunding Term Note referred to in, is entitled to the
benefits of and is secured by certain security interests referred to in the
Credit Agreement (as such may be amended from time to time, the "Credit
Agreement"), dated July 31, 1995, between CLTL and the Bank. Capitalized terms
used herein and not defined shall have the meanings assigned to them in the
Credit Agreement.
Payments of principal shall be made as provided in the Credit Agreement.
CLTL promises to pay interest on the aggregate unpaid principal amount of the
Refunding Term Loan on the dates and at the rate or rates provided for in the
Credit Agreement. The Credit Agreement also contains provisions for the
acceleration of the maturity hereof upon the happening of certain events upon
the terms and conditions specified therein. The principal of and interest on
this Note is payable in forty-eight (48) equal consecutive monthly installments
of principal plus interest accrued to the date of each payment payable on the
first day of each month commencing with the first such date following the date
hereof, provided that such first payment shall not be due less than fifteen (15)
days following the date hereof, unless the maturity hereof is accelerated under
the terms of the Credit Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in immediately available
funds at the office of the Bank, Broad and Chestnut Streets, Philadelphia,
Pennsylvania.
This Note shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
In addition to and not in limitation of the foregoing and the provisions of
the Credit Agreement, CLTL further agrees, subject only to any limitation
imposed by applicable law, to pay all reasonable expenses, including reasonable
attorneys' fees and legal expenses, incurred by the holder of this Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
Presentment for payment, demand, protest, dishonor and notice of dishonor
are hereby waived.
IN WITNESS WHEREOF, and intending to be legally bound hereby, CLTL has
caused this Note to be executed by its duly authorized officer as of the day and
year first above written.
CHEMICAL XXXXXX TANK LINES, INC.
By:_____________________________
Title:
EXHIBIT 5
Default and Compliance Certificate
The undersigned, [president, chief executive or chief financial officer] of
Chemical Xxxxxx Tank Lines, Inc. does hereby certify that as of this date there
exists no Event of Default as defined under the Credit Agreement dated July 31,
1995, as such has been amended from time to time (the "Credit Agreement"),
between Chemical Xxxxxx Tank Lines, Inc. and CoreStates Bank, N.A., or does
there exist any event which with notice or lapse of time or both would become an
Event of Default. Further, the undersigned does hereby certify the accuracy of
the attached analysis of the extent to which Chemical Xxxxxx Tank Lines, Inc. is
in compliance with the Financial Condition and Ratios set forth in ss.5.1 of the
Credit Agreement.
------------------------------------------
[Name]
[Title]
DATE:_________________
CHEMICAL XXXXXX TANK LINES, INC.
CREDIT AGREEMENT
Financial Condition and Ratios
(ss.5.2)
ss.5.2(a) BORROWING BASE - CLTL
REQUIREMENT: aggregate principal amount of the Revolving Credit
Loans, Term Loans and the face amount of all Letters of Credit
outstanding (or the Refunding Term Loan, as applicable) shall not
exceed 75% of aggregate Appraised Value of all Revenue Equipment.
At [date], aggregate Appraised Value (75%) = $
=============
less:
Revolving Credit Loans $____________
Term Loans $____________
Letters of Credit (face amount) ____________
Refunding Term Loan ____________
Total $
============
NET AVAILABILITY $____________
ss.5.2(b) CURRENT RATIO - CLTL
REQUIREMENT: Current Assets (excluding cash and cash equivalents
which for any reason are restricted and not currently usable to pay
Current Obligations) to Current Obligations (excluding current
portion of long term liabilities) must equal or exceed 1.25:1.
Current Assets $____________
less: cash and cash equivalents which are restricted
and not currently usable to pay Current
Obligations $____________
============
Current Obligations $____________
less: obligations under the notes issued by CLTL in
connection with Accounts Receivable Funding
Documents or the Associates Loan $____________
============
CURRENT RATIO ____________
Credit Agreement, July 31, 1995 - 1 - Chemical Xxxxxx Tank Lines, Inc.
ss.5.2(c) TANGIBLE NET WORTH
REQUIREMENT: CLC - Not less than $21,000,000.
Tangible Net Worth at [date] = $
============
REQUIREMENT: CLTL - Not less than $30,000,000.
Tangible Net Worth at [date] = $
===========
ss.5.2(d) TOTAL LIABILITIES TO TANGIBLE NET WORTH
REQUIREMENT: CLC - Not in excess of 5.50 to 1 (liabilities include
value of operating leases).
Total Liabilities (shown on balance sheet excluding
operating lease "obligations") = $____________
plus:
Operating lease "obligations" $____________
Any other leases (to the extent not shown on
balance sheet) $____________
less:
Subordinated Debt (if any) $____________
Total Liabilities $
============
Tangible Net Worth $
============
RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH ============
REQUIREMENT: CLTL - Not in excess of 3.40 to 1 (liabilities include
value of operating leases).
Total Liabilities (shown on balance sheet excluding operating lease
"obligations") = $____________
plus:
Operating lease "obligations" $____________
Any other leases (to the extent not shown on
balance sheet) $____________
less:
Subordinated Debt (if any) $____________
Total Liabilities $
============
Tangible Net Worth $
============
RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH
============
Credit Agreement, July 31, 1995 - 2 - Chemical Xxxxxx Tank Lines, Inc.
ss.5.2(e) DEBT COVERAGE
REQUIREMENT: CLC - ratio of Current Income to Adjusted Current
Obligations of not less than 1.00:1 for the preceding four fiscal
quarters.
Current Income: [IDENTIFY PERIOD]
Net income $______________
+ depreciation _______________
+ additions to any reserve for deferred tax liabilities _______________
- dividends or distributions paid or declared ( )
---------------
- reductions to any reserve for deferred tax liabilities ( )
---------------
CURRENT INCOME $
===============
Adjusted Current Obligations:
Obligations due within next succeeding 365 days:
Associates Loan (outstanding balance) $_______________
x 0.20
Amount of Associates Loan deemed due
within the next succeeding 365 days $ [1]
===============
CoreStates Revolving Credit Loans and
Letters of Credit (aggregate balance) $_______________
x 0.25
Amount of CoreStates Revolving Credit
Loans and Letters of Credit deemed due
within next 365 days $ [2]
================
All other obligations (excluding equipment
obligations) due within next succeeding
365 days $ [3]
==============
Total ([1]+[2]+[3]) _______________
ADJUSTED CURRENT OBLIGATIONS _______________
$
===============
RATIO OF CURRENT INCOME TO CURRENT OBLIGATIONS ---------------
Credit Agreement, July 31, 1995 - 3 - Chemical Xxxxxx Tank Lines, Inc.
ss.5.2(f) INTEREST COVERAGE
REQUIREMENT: CLC - a ratio of EBITD (as defined) to interest expense
not less than 2.75:1. EBITD means consolidated net income, before
taxes, interest expense, depreciation and extraordinary items.
[IDENTIFY PERIOD]
Net income $____________
Taxes ____________
Interest expense ____________
Depreciation ____________
Extraordinary Items _____________
EBIDT $
=============
Interest expense $
=============
RATIO OF EBIDT TO INTEREST EXPENSE =============
Credit Agreement, July 31, 1995 - 4 - Chemical Xxxxxx Tank Lines, Inc.
SCHEDULE 2.11
Indebtedness
See Attached.
SCHEDULE 2.12
Capital Stock
See Attached.
AMENDMENT NO. 1
to
Credit Agreement
Amendment No. 1, dated May 31, 1996, (herein called the "AMENDMENT") to
Credit Agreement, dated July 31, 1995, (herein called the "AGREEMENT") by and
between CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation (herein called
"CLTL") and CORESTATES BANK, N.A., a national banking association (herein called
the "BANK"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed to them in the Agreement.
Preliminary Statement
WHEREAS, CLTL has requested that a new Termination Date be established 61
days immediately following the existing Termination Date as contemplated by
ss.1.1(a) of the Agreement.
WHEREAS, the Bank agrees to the request of CLTL on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and promises hereinafter
set forth and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Section 1.1 of the Agreement. The date "May 31, 1996" set forth in the
first sentence of ss.1.1 of the Agreement is hereby deleted and shall be and
hereby is replaced by the date "July 31, 1996."
2. Representations and Warranties. CLTL hereby restates the representations
and warranties made in the Agreement, including but not limited to Article 2
thereof, on and as of the date hereof as if originally given on this date.
3. Covenants. CLTL hereby represents and warrants that it is in compliance
and has complied with each and every covenant set forth in the Agreement,
including but not limited to Article 5 thereof, on and as of the date hereof.
4. Proceedings, Instruments, Etc. All proceedings and actions taken on or
prior to the date hereof in connection with this Amendment and all instruments
incident thereto and hereto shall be in form and substance satisfactory to the
Bank, and the Bank shall have received copies of all documents that it may
request in connection with such proceedings, actions and transactions
(including, without limitation, (i) certified resolutions of the Board of
Directors of CLTL and Chemical Xxxxxx Corporation authorizing the execution and
delivery of this Amendment, and (ii) incumbency certificates specifying the
officer(s) of CLTL and Chemical Xxxxxx Corporation duly authorized to execute
and deliver this Amendment).
5. Affirmation. CLTL hereby affirms its absolute and unconditional promise
to pay to the Bank the Loans and all other amounts due under the Agreement and
any other Loan Document on the maturity date(s) provided in the Agreement or any
other Loan Document, as such documents may be amended hereby.
6. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
Amendment No. 1 to
Credit Agreement - 1 - May 31, 1996
7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed by their duly authorized representatives as of the date first
above written.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX TANK LINES, INC.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name:
Title:
Transportation Leasing and CORESTATES BANK, N.A.
Construction Industry Services
FC 1-8-11-24
0000 Xxxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxxxxxxxx, XX 00000 ------------------------
Attn: Xxxxxx X. Xxxxxx Name:
Title:
The undersigned, as guarantor of the obligations of CLTL under and in connection
with the Agreement, hereby acknowledges the foregoing Amendment to said
Agreement as indicated above and affirms its absolute and unconditional
obligations as set forth in the Guarantee Agreement dated July 31, 1995.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX CORPORATION
Xxxxxxxxx, XX 00000
Attention:
Dated: May 31, 1996
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name:
Title:
Amendment No. 1 to
Credit Agreement - 2 - May 31, 1996
AMENDMENT NO. 2
to
Credit Agreement
Amendment No. 2, dated July 31, 1996, (herein called the "AMENDMENT") to
Credit Agreement, dated July 31, 1995, (herein called the "AGREEMENT") by and
between CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation (herein called
"CLTL") and CORESTATES BANK, N.A., a national banking association (herein called
the "BANK"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed to them in the Agreement.
Preliminary Statement
WHEREAS, CLTL has requested that a new Termination Date be established and
that certain other modifications be made to the Agreement as hereinafter set
forth.
WHEREAS, the Bank agrees to the requests of CLTL on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and promises hereinafter
set forth and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Section 1.1 of the Agreement. The date "July 31, 1996" set forth in the
first sentence of ss.1.1 of the Agreement is hereby deleted and shall be and
hereby is replaced by the date "January 1, 1998."
2. Section 1.9 of the Agreement. The phrase "prepayment of an Adjusted
Libor Rate Loan or" set forth in the second sentence of ss.1.9 of the Agreement
is hereby deleted and shall be and hereby is replaced by the phrase "prepayment
of any Loan based upon an Adjusted Libor Rate."
3. Section 1.11(b) of the Agreement. ss.1.11(b) of the shall be and hereby
is amended and restated in its entirety to be as follows:
"(b) Interest Rate Election. At CLTL's election in accordance with the
provisions of ss.1.3 hereof, each advance under the Revolving Credit Loan
shall bear interest on the outstanding principal amount thereof from the
date of the advance at (i) the Base Rate plus the Applicable Base Rate
Margin set forth in the table below, such rate to change when and as the
Base Rate changes, or (ii) the Adjusted Libor Rate plus the Applicable
Libor Margin set forth in the table below. In the event CLTL shall fail to
make an interest rate election, the advance to be made shall bear interest
as provided in clause (i) of this ss.1.11(b).
Amendment No. 2 to
Credit Agreement - 1 - July 31, 1996
"APPLICABLE BASE RATE MARGIN" and "APPLICABLE LIBOR MARGIN"
shall mean the percentages as listed in the following table
based on the Leverage Ratio at the date of determination.
Leverage Ratio Applicable Base Applicable Libor
Rate Margin Margin
Greater than 5.0:1 3/4% 300 basis points
Equal to or less than 5.0:1 1/2% 275 basis points
The term "LEVERAGE RATIO" shall mean the ratio of Total
Liabilities to Tangible Net Worth as those terms are defined in
ss.5.2(c) and (d) of this Agreement."
4. Section 5.2(a) of the Agreement. ss.5.2(a) of the Agreement shall be and
hereby is amended to add a definition of Adjusted Appraised Value and to amend
and restate, in its entirety, the definitions of Appraised Value and Borrowing
Base as follows:
""Adjusted Appraised Value" shall mean the Appraised Value
multiplied by a percentage which shall be 100% through
September 30, 1996 and which shall thereafter reduce by 2% as
of the first day of each calendar quarter thereafter. For
example, the percentage shall be 98% during the period October
1, 1996 through December 31, 1996; the percentage shall be 96%
during the period January 1, 1997 through March 31, 1997; the
percentage shall be 94% during the period April 1, 1997
through June 30, 1997; and so on.
"Appraised Value" shall mean (a) that value determined
annually on or about July 1 of each year by an independent
appraiser of recognized standing who shall be selected by CLTL
with the consent of the Bank (which consent shall not be
unreasonably withheld) as the aggregate of the fair market
values of each item of Revenue Equipment listed on Schedule A
to the Security Agreement as such schedule shall exist at the
time of the annual appraisal other than Revenue Equipment set
forth in Exhibit 6 to the Agreement and (b) the values of the
items of Revenue Equipment as set forth in said Exhibit 6 to
the Agreement. Appraised value shall be adjusted at the time
any item of Revenue Equipment is withdrawn or added to
Schedule A during the course of each year with the fair market
value of deletions and additions to be the value of each item
of Revenue Equipment as such is listed on the most recent
annual appraisal for items other than items listed in Exhibit
6 and at the amounts listed for items listed in said Exhibit
6. In the event an item of Revenue Equipment to be added to
Schedule A is not listed on the most recent annual appraisal,
the fair market value of such addition shall be determined in
good faith by CLTL at the time of the addition on a basis
consistent with that employed by the appraiser in connection
with the most recent annual appraisal, provided, however, if
the Bank shall object to the value placed on any such addition
the proposed addition shall have no value for this purpose
until a valuation is completed for such item at the time of
the next annual appraisal.
Amendment No. 2 to
Credit Agreement - 2 - July 31, 1996
"Borrowing Base" shall mean an amount equal to the sum of 80%
of the aggregate Adjusted Appraised Value of all Revenue
Equipment."
5. Section 5.2(d) of the Agreement. The first sentence of ss.5.2(d) of the
Agreement shall be and hereby is amended in its entirety to be as follows:
"(d) Liabilities to Tangible Net Worth. A ratio of Total
Liabilities to Tangible Net Worth (as defined above) which is
not at any time more than the following:
Dates CLC CLTL
On or before June 29, 1997 7.0:1 3.6:1
June 30, 1997 through December 30, 1997 6.5:1 3.6:1
December 31, 1997 through June 29, 1998 5.8:1 3.6:1
June 30, 1998 through December 30, 1998 5.5:1 3.6:1
On or after December 31, 1998 5.0:1 3.6:1"
6. Section 5.14 of the Agreement. ss.5.14 of the Agreement shall be and
hereby is amended and restated in its entirety to be as follows:
"5.14 Loans; Advances. CLTL shall not make any loans or
advances to others, except that CLTL may make loans and advances to (a)
its Subsidiaries, CLC and CLC's Subsidiaries in an aggregate amount not
to exceed $28,000,000 at any time outstanding, and (b) its
owner/operators (who are individuals) in an aggregate amount not to
exceed $100,000 at any time outstanding. Neither CLC nor CLTL shall
make any loans or advances, directly or indirectly, to, nor refinance
any loan or advance to, any shareholder of CLC after July 31, 1996 in
excess of $1,000,000. Any loan to any person purchasing capital stock
of CLC or CLTL in exchange for the delivery of a promise to pay and not
involving the delivery of any cash or asset of the selling corporation
shall not be deemed a loan or advance for purposes of this ss.5.14."
7. Exhibit 5 to the Agreement. The reference to the Financial Condition and
Ratios in the form of Default and Compliance Certificate set forth as Exhibit 5
to the Agreement shall be changed from "ss.5.1" to "ss.5.2", and the form of the
analysis of compliance with the Financial Condition and Ratios set forth in
ss.5.2 to be attached to said Default and Compliance Certificate shall set forth
the requirements and analysis of each subsection of ss.5.2 of the Agreement in
conformity with ss.5.2 as it shall exist at the time of submission.
8. Exhibit 6 to the Agreement. A new exhibit to be named Exhibit 6 shall be
deemed added to the Agreement hereby which exhibit shall consist of the listing
of certain Revenue Equipment acquired from Xxx Plastics Corporation which also
sets forth a value for each item of Revenue Equipment, all as set forth in
Exhibit 6 attached hereto.
9. Representations and Warranties. CLTL hereby restates the representations
and warranties made in the Agreement, including but not limited to Article 2
thereof, on and as of the date hereof as if originally given on this date.
Amendment No. 2 to
Credit Agreement - 3 - July 31, 1996
10. Covenants. CLTL hereby represents and warrants that it is in compliance
and has complied with each and every covenant set forth in the Agreement,
including but not limited to Article 5 thereof, on and as of the date hereof.
11. Security Agreement, ss.3(c). The Bank hereby waives the requirement set
forth in ss.3(c) of the Security Agreement, dated July 31, 1995, executed by
CLTL in favor of the Bank, that a schedule of the Equipment in form satisfactory
to the Bank be delivered to it not later than the thirtieth day of each month
for so long as CLTL shall deliver such schedule of Equipment to the Bank on each
June 30th and December 31st beginning December 31, 1996.
12. Proceedings, Instruments, Etc. All proceedings and actions taken on or
prior to the date hereof in connection with this Amendment and all instruments
incident thereto and hereto shall be in form and substance satisfactory to the
Bank, and the Bank shall have received copies of all documents that it may
request in connection with such proceedings, actions and transactions
(including, without limitation, (i) certified resolutions of the Board of
Directors of CLTL and Chemical Xxxxxx Corporation authorizing the execution and
delivery of this Amendment, and (ii) incumbency certificates specifying the
officer(s) of CLTL and Chemical Xxxxxx Corporation duly authorized to execute
and deliver this Amendment).
13. Affirmation. CLTL hereby affirms its absolute and unconditional promise
to pay to the Bank the Loans and all other amounts due under the Agreement and
any other Loan Document on the maturity date(s) provided in the Agreement or any
other Loan Document, as such documents may be amended hereby.
14. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
15. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed by their duly authorized representatives as of the date first
above written.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX TANK LINES, INC.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Amendment No. 2 to
Credit Agreement - 4 - July 31, 1996
Transportation Leasing and CORESTATES BANK, N.A.
Construction Industry Services
FC 1-8-11-24
0000 Xxxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxxxxxxxx, XX 00000 --------------------
Attn: Xxxxx D'Antonio Name: Xxxxxx X. Xxxxxx
Title: Commericial Officer
The undersigned, as guarantor of the obligations of CLTL under and in connection
with the Agreement, hereby acknowledges the foregoing Amendment to said
Agreement as indicated above and affirms its absolute and unconditional
obligations as set forth in the Guarantee Agreement dated July 31, 1995.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX CORPORATION
Xxxxxxxxx, XX 00000
Attention:
Dated: July 31, 1996
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Amendment No. 2 to
Credit Agreement - 5- July 31, 1996
AMENDMENT NO. 3
to
Credit Agreement
Amendment No. 3, dated November 22, 1996, (herein called the "AMENDMENT")
to Credit Agreement, dated July 31, 1995, (herein called the "AGREEMENT") by and
between CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation (herein called
"CLTL") and CORESTATES BANK, N.A., a national banking association (herein called
the "BANK"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed to them in the Agreement.
Preliminary Statement
WHEREAS, CLTL has requested that ss.5.2(d) of the Agreement be amended to
relax the Liabilities to Tangible Net Worth test with respect to CLC through
December 30, 1996 as hereinafter set forth.
WHEREAS, the Bank agrees to the request of CLTL on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and promises hereinafter
set forth and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Section 5.2(d) of the Agreement. The first sentence of ss.5.2(d) of the
Agreement shall be and hereby is amended in its entirety to be as follows:
"(d) Liabilities to Tangible Net Worth. A ratio of Total Liabilities to
Tangible Net Worth (as defined above) which is not at any time more than
the following:
Dates CLC CLTL
On or before December 30, 1997 8.0:1 3.6:1
December 31, 1997 through June 29, 1998 7.0:1 3.6:1
June 30, 1998 through December 30, 1998 6.5:1 3.6:1
On or after December 31, 1998 6.0:1 3.6:1"
2. Representations and Warranties. CLTL hereby restates the
representations and warranties made in the Agreement, including but not
limited to Article 2 thereof, on and as of the date hereof as if originally
given on this date.
3. Covenants. CLTL hereby represents and warrants that it is in
compliance and has complied with each and every covenant set forth in the
Agreement, including but not limited to Article 5 thereof, on and as of the
date hereof.
4. Proceedings, Instruments, Etc. All proceedings and actions taken on
or prior to the date hereof in connection with this Amendment and all
instruments incident thereto and hereto shall be in form and substance
satisfactory to the Bank, and the Bank shall have received copies of all
documents that it may request in connection with such proceedings, actions
and transactions (including, without limitation, (i) certified resolutions
Amendment No. 3 to
Credit Agreement - 1 - November 22, 1996
of the Board of Directors of CLTL and Chemical Xxxxxx Corporation authorizing
the execution and delivery of this Amendment, and (ii) incumbency certificates
specifying the officer(s) of CLTL and Chemical Xxxxxx Corporation duly
authorized to execute and deliver this Amendment).
5. Affirmation. CLTL hereby affirms its absolute and unconditional promise
to pay to the Bank the Loans and all other amounts due under the Agreement and
any other Loan Document on the maturity date(s) provided in the Agreement or any
other Loan Document, as such documents may be amended hereby.
6. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed by their duly authorized representatives as of the date first
above written.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX TANK LINES, INC.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Transportation Leasing and CORESTATES BANK, N.A.
Construction Industry Services
FC 1-8-11-24
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice
President
Amendment No. 3 to
Credit Agreement - 2 - November 22, 1996
The undersigned, as guarantor of the obligations of CLTL under and in connection
with the Agreement, hereby acknowledges the foregoing Amendment to said
Agreement as indicated above and affirms its absolute and unconditional
obligations as set forth in the Guarantee Agreement dated July 31, 1995.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX CORPORATION
Xxxxxxxxx, XX 00000
Attention:
Dated: November 22, 1996
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Amendment No. 3 to
Credit Agreement - 3 - November 22, 1996
AMENDMENT NO. 4
to
Credit Agreement
Amendment No. 4, dated January 13, 1997, (herein called the "AMENDMENT") to
Credit Agreement, dated July 31, 1995, (herein called the "AGREEMENT") by and
between CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation (herein called
"CLTL") and CORESTATES BANK, N.A., a national banking association (herein called
the "BANK"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed to them in the Agreement.
Preliminary Statement
WHEREAS, CLTL has requested that the Agreement be amended to include, as
Collateral and for the purpose of the Borrowing Base, certain life insurance
policies listed in Exhibit 7 attached hereto which are to be assigned by CLTL
and CLC to the Bank as security for the payment, promptly when due, and the
punctual performance of all of the Liabilities (as defined in the Security
Agreement referred to in the Agreement).
WHEREAS, the Bank agrees to the request of CLTL on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and promises hereinafter
set forth and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Section 2.15 of the Agreement. A new Section 2.15 shall hereby be deemed
added to the Agreement which shall be as follows:
"2.15 Life Insurance Policy Collateral. CLTL or CLC, as applicable, is
the absolute owner of each life insurance policy listed in Exhibit 7
attached hereto (the "Life Insurance Policy Collateral") and the
information set forth in Exhibit 7 with respect to each policy is true and
correct as of the date of this Amendment; further, (i) each policy is in
full force and effect, (ii) no default, lien or other encumbrance exists
with respect to any policy, (iii) all premiums owed under each policy have
been paid when due, (iv) no policy loan, borrowing or debt exists with
respect to any policy, (v) CLTL or CLC has not been notified of the death
of any person listed in the column "Insured Life" in Exhibit 7, (vi) no
policy has been assigned to any person other than CLTL or CLC, and (vii)
CLTL or CLC, as applicable, has full and unrestricted legal authority to
assign, transfer, set over and deliver to the Bank, and such assignment
will have the effect of transferring, setting over and conveying to the
Bank, ownership of each policy free and clear of any liens, encumbrances,
or security interests whatsoever, to the full extent of CLTL's or CLC's
interest in said policy, the value of which interest in each policy is at
least equal to the amount set forth in the column "Net Cash Surrender Value
12.31.96" in Exhibit 7."
2. Section 3.1 of the Agreement. Section 3.1 of the Agreement shall be and
hereby is amended in its entirety to be as follows:
"3.1 Security Documents. As security for the punctual payment in full
of all installments of principal, interest, fees and other amounts payable
under any Loan Document, the Bank shall (i) continue to have a valid,
perfected first lien on and security interest in the Collateral (as that
term is defined in the Security Agreement, dated July 31, 1995, executed by
CLTL in favor of the Bank, which agreement amends and restates the Amended
and Restated
Amendment No. 4 to
Credit Agreement - 1 - January 13, 1997
Equipment Security Agreement, dated May 14, 1993, executed by CLTL in favor
of the Bank), and (ii) have and continue to have a valid, perfected first
lien on and security interest in the Life Insurance Policy Collateral as
assignee under an assignment of each life insurance policy as collateral on
the appropriate forms for such an assignment. As additional security for
said obligations, the Bank shall have the rights and benefits specified in
(a) the Guarantee Agreement, dated July 31, 1995, executed by CLC in favor
of the Bank, which agreement amends and restates the Amended and Restated
Guarantee Agreement, dated May 14, 1993, executed by CLC in favor of the
Bank, and (b) the Pledge Agreement, dated July 31, 1995, executed by CLC in
favor of the Bank, which agreement amends and restates the Amended and
Restated Pledge Agreement, dated May 14, 1993, executed by CLC in favor of
the Bank (all the documents referred to in this ss.3.1 are collectively
referred to herein as the "Security Documents")."
3. Section 3.2 of the Agreement. Section 3.2 of the Agreement shall be and
hereby is amended in its entirety to be as follows:
"3.2 Release of Collateral. Upon the payment in full of the entire
principal balance, and any interest, fees and other amounts payable under
all Loan Documents, the termination of the Commitments of the Bank and the
cash collateralization of all Letters of Credit, the Bank shall release the
lien and security interest of the Bank in the assets of CLTL and such other
persons as specified in each of the Security Documents and shall do such
things as are reasonably requested by CLTL to effect such release. At the
election of CLTL and upon receipt of written notice to the Bank therefor,
the Bank shall release the lien and security interest of the Bank in the
Life Insurance Policy Collateral, provided that (i) no Event of Default or
event, which with the giving of notice or the lapse of time or both, would
constitute an Event of Default, shall exist immediately prior to such
release or immediately following such release, and (ii) the request by CLTL
for release of the Life Insurance Policy Collateral shall be for not less
than all of the Life Insurance Policy Collateral then in effect."
4. Section 5.1(g) of the Agreement. A new Section 5.1(g) shall hereby be
deemed added to the Agreement which shall be as follows:
"5.1(g) Life Insurance Policy Collateral Report. Within 30 days after
the end of each calendar quarter, CLTL will deliver to the Bank a letter
report from each insurer (or each such insurer's authorized agent) that has
written a policy which is part of the Life Insurance Policy Collateral
setting forth the net cash surrender value of each such policy at the end
of the previous calendar quarter, and certifying (i) the nonexistence of
any loan, borrowing or debt with respect to each policy, (ii) whether the
insurer has received notice of the death of an insured individual, (iii)
the payment of all premiums due with respect to each policy, and (iv)
whether each policy remains in full force and effect. In addition, CLTL
shall immediately provide the Bank with copies of any and all notices,
reports and correspondence received by it or CLC in respect of any of the
policies."
5. Section 5.2(a) of the Agreement. Section 5.2(a) of the Agreement shall
be and hereby is amended to amend and restate, in its entirety, the definition
of Borrowing Base as follows:
"Borrowing Base" shall mean an amount equal to the sum of (i) 80% of
the aggregate Adjusted Appraised Value of all Revenue Equipment and (ii)
the net cash surrender value of the
Amendment No. 4 to
Credit Agreement - 2 - January 13, 1997
Life Insurance Policy Collateral at December 31, 1996 for those policies
which remain in effect at the date of the calculation of the Borrowing
Base.
6. Section 5.17 of the Agreement. A new Section 5.17 shall hereby be deemed
added to the Agreement which shall be as follows:
"5.17 Life Insurance Policy Collateral. CLTL or CLC, as applicable,
will pay when due all premiums and other amounts due in respect of each
policy constituting a part of the Life Insurance Policy Collateral in order
to maintain each such policy in full force and effect."
7. Exhibit 5 to the Agreement. Exhibit 5 to the Agreement shall be and
hereby is amended and restated in its entirety to be as set forth in Exhibit 5
attached hereto.
8. Exhibit 7 to the Agreement. A new exhibit to be named Exhibit 7 shall be
deemed added to the Agreement hereby which exhibit shall be as set forth in
Exhibit 7 attached hereto.
9. Representations and Warranties. CLTL hereby restates the representations
and warranties made in the Agreement, including but not limited to Article 2
thereof, on and as of the date hereof as if originally given on this date.
10. Covenants. CLTL hereby represents and warrants that it is in compliance
and has complied with each and every covenant set forth in the Agreement,
including but not limited to Article 5 thereof, on and as of the date hereof.
11. Proceedings, Instruments, Etc. All proceedings and actions taken on or
prior to the date hereof in connection with this Amendment and all instruments
incident thereto and hereto shall be in form and substance satisfactory to the
Bank, and the Bank shall have received copies of all documents that it may
request in connection with such proceedings, actions and transactions
(including, without limitation, (i) certified resolutions of the Board of
Directors of CLTL and CLC authorizing the execution and delivery of this
Amendment, all assignments of life insurance policies as collateral and all
related documents, (ii) incumbency certificates specifying the officer(s) of
CLTL and CLC duly authorized to execute and deliver this Amendment), (iii) the
legal opinion of Messrs. Pepper, Xxxxxxxx & Xxxxxxx in form and substance
satisfactory to the Bank and (iv) such other documents, matters, proceedings and
actions as the Bank shall request).
12. Assignments of Life Insurance Policies. All assignments of life
insurance policies written by Massachusetts Mutual Life Insurance Company
("MassMutual") and the Manufacturers Life Insurance Company ("ManuLife") shall
be in the form and substance attached hereto as Attachments 1 (MassMutual split
dollar policies and key person policies) and 2 (ManuLife policies),
respectively.
13. Affirmation. CLTL hereby affirms its absolute and unconditional promise
to pay to the Bank the Loans and all other amounts due under the Agreement and
any other Loan Document on the maturity date(s) provided in the Agreement or any
other Loan Document, as such documents may be amended hereby.
14. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
15. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
Amendment No. 4 to
Credit Agreement - 3 - January 13, 1997
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed by their duly authorized representatives as of the date first
above written.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX TANK LINES, INC.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Transportation Leasing and CORESTATES BANK, N.A.
Construction Industry Services
FC 1-8-11-24
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx D'Xxxxxxx
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice
President
The undersigned, as guarantor of the obligations of CLTL under and in connection
with the Agreement, hereby acknowledges the foregoing Amendment to said
Agreement as indicated above and affirms its absolute and unconditional
obligations as set forth in the Guarantee Agreement dated July 31, 1995.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX CORPORATION
Xxxxxxxxx, XX 00000
Attention:
Dated: January 13, 1997
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Amendment No. 4 to
Credit Agreement - 4 - January 13, 1997
EXHIBIT 5
Default and Compliance Certificate
The undersigned, [president, chief executive or chief financial officer] of
Chemical Xxxxxx Tank Lines, Inc. does hereby certify that as of this date there
exists no Event of Default as defined under the Credit Agreement dated July 31,
1995, as such has been amended from time to time (the "Credit Agreement"),
between Chemical Xxxxxx Tank Lines, Inc. and CoreStates Bank, N.A., or does
there exist any event which with notice or lapse of time or both would become an
Event of Default. Further, the undersigned does hereby certify the accuracy of
the attached analysis of the extent to which Chemical Xxxxxx Tank Lines, Inc. is
in compliance with the Financial Condition and Ratios set forth in ss.5.2 of the
Credit Agreement.
---------------------------------
[Name]
[Title]
DATE:_________________
CHEMICAL XXXXXX TANK LINES, INC.
CREDIT AGREEMENT
Financial Condition and Ratios
(ss.5.2)
ss.5.2(a) BORROWING BASE - CLTL
REQUIREMENT: aggregate principal amount of the Revolving Credit Loans,
Term Loans and the face amount of all Letters of Credit outstanding (or
the Refunding Term Loan, as applicable) shall not exceed the sum of (i)
80% of aggregate Appraised Value of all Revenue Equipment and (ii) the
net cash surrender value of the Life Insurance Policy Collateral at
December 31, 1996 for those policies which remain in effect at the date
of the calculation of the Borrowing Base.
At [date], aggregate Appraised Value (80%) = $________________
Net cash surrender value at December 31, 1996
of Life Insurance Policy Collateral = $________________
Total $
================
less:
Revolving Credit Loans $________________
Term Loans $_____________
Letters of Credit (face amount) ________________
Refunding Term Loan ________________
Total $
================
NET AVAILABILITY $________________
ss.5.2(b) CURRENT RATIO - CLTL
REQUIREMENT: Current Assets (excluding cash and cash equivalents which
for any reason are restricted and not currently usable to pay Current
Obligations) to Current Obligations (excluding current portion of long
term liabilities) must equal or exceed 1.25:1.
Current Assets $________________
less: cash and cash equivalents which are restricted and not
currently usable to pay Current Obligations - $________________
================
Current Obligations $________________
less: obligations under the notes issued by CLTL in connection
with Accounts Receivable Funding Documents or the
Associates Loan - $________________
================
CURRENT RATIO ________________
Amendment No. 4 to
Credit Agreement - 1 - January 13, 1997
ss.5.2(c) TANGIBLE NET WORTH
REQUIREMENT: CLC - Not less than $21,000,000.
Tangible Net Worth at [date] = $
================
REQUIREMENT: CLTL - Not less than $30,000,000.
Tangible Net Worth at [date] = $
================
ss.5.2(d) TOTAL LIABILITIES TO TANGIBLE NET WORTH
REQUIREMENT: CLC - Not in excess of 8.0 to 1 (on or before December 30,
1997), 7.0 to 1 (December 31, 1997 through June 29, 1998), 6.5 to 1
(June 30, 1998 through December 30, 1998) or 6.0 to 1 (on or after
December 31, 1998). Liabilities include value of operating leases.
Total Liabilities (shown on balance sheet excluding operating lease
"obligations") = $_________________
plus:
Operating lease "obligations" $__________________
Any other leases (to the extent not shown on balance sheet) $__________________
less:
Subordinated Debt (if any) $__________________
Total Liabilities $
=================
Tangible Net Worth $
==================
RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH
REQUIREMENT: CLTL - Not in excess of 3.60 to 1 (liabilities include
value of operating leases).
Total Liabilities (shown on balance sheet excluding operating lease
"obligations") = $_________________
plus:
Operating lease "obligations" $_________________
Any other leases (to the extent not shown on balance sheet) $_________________
less:
Subordinated Debt (if any) $_________________
Total Liabilities $
=================
Tangible Net Worth $
=================
RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH =================
Amendment No. 4 to
Credit Agreement - 2 - January 13, 1997
ss.5.2(e) DEBT COVERAGE
REQUIREMENT: CLC - ratio of Current Income to Adjusted Current
Obligations of not less than 1.00:1 for the preceding four fiscal
quarters.
Current Income: [IDENTIFY PERIOD]
Net income $_______________
+ depreciation ______________
+ additions to any reserve for deferred tax liabilities _______________
- dividends or distributions paid or declared (_____________)
- reductions to any reserve for deferred tax liabilities (_____________)
CURRENT INCOME $
=============
Adjusted Current Obligations:
Obligations due within next succeeding 365 days:
Associates Loan (outstanding balance) $_______________
x 0.20
Amount of Associates Loan deemed due
within the next succeeding 365 days $ [1]
================
CoreStates Revolving Credit Loans and
Letters of Credit (aggregate balance) $_______________
x 0.25
Amount of CoreStates Revolving Credit
Loans and Letters of Credit deemed due
within next 365 days $ [2]
================
All other obligations (excluding equipment
obligations) due within next succeeding
365 days $ [3]
================
Total ([1]+[2]+[3]) ______________
ADJUSTED CURRENT OBLIGATIONS _______________
$
==============
RATIO OF CURRENT INCOME TO CURRENT OBLIGATIONS --------------
Amendment No. 4 to
Credit Agreement - 3 - January 13, 1997
ss.5.2(f) INTEREST COVERAGE
REQUIREMENT: CLC - a ratio of EBITD (as defined) to interest expense
not less than 2.75:1. EBITD means consolidated net income, before
taxes, interest expense, depreciation and extraordinary items.
[IDENTIFY PERIOD]
Net income $_______________
Taxes _______________
Interest expense _______________
Depreciation _______________
Extraordinary Items ______________
EBIDT $
===============
Interest expense $
=============
RATIO OF EBIDT TO INTEREST EXPENSE ===============
Amendment No. 4 to
Credit Agreement - 4 - January 13, 1997
EXHIBIT 7
Life Insurance Policy Collateral
Owner of Insurer(1) Policy Policy Face Net Cash Surrender Insured
Policy Number Value Value 12.31.96 Life
-------- --------- ------ ----------- ------------------ -------
CLC MMLIC 7 409 421 $100,000.00 $9,527.66 Xxxxx, Xxxxx
CLC MMLIC 7 719 174 $25,000.00 $1,716.53 Xxxxx, Xxxxx
CLC MMLIC 7 467 532 $150,000.00 $22,518.45 Xxxxxxxxx, X.X.
CLC MMLIC 7 017 196 $150,000.00 $36,066.17 Xxxxxxxxxx, A.
CLC MMLIC 7 026 814 $150,000.00 $36,193.57 Xxxxxxxxx, X.X.
CLC MMLIC 7 450 800 $100,000.00 $10,926.18 Xxxxx, X.X.
CLC MMLIC 7 108 025 $87,500.00 $32,404.36 Xxxxxxx, X.X.
CLC MMLIC 7 381 116 $1,370,000.00 $249,034.25 Xxxxxxxx, D.R.
CLC MMLIC 7 479 421 $430,000.00 $62,964.13 Xxxxxxxxx, X.X.
CLC MMLIC 7 698 737 $194,000.00 $21,703.10 Xxxxxxxxx, X.X.
CLC MMLIC 7 333 916 $325,000.00 $47,520.24 Xxxxxxxxx, X.X.
CLTL MF 4930909-9 $152,000.00 $20,038.66 Xxxxxx, C.
CLTL MF 4904658-4 $271,000.00 $17,914.95 Xxxxxxx, C.
CLTL MF 4904657-6 $167,000.00 $40,304.58 Xxxxxxxxxx, R.
CLTL MF 4904656-8 $317,000.00 $68,007.42 Shertz, R.
TOTAL $3,713,500.00 $676,840.25
(1) MMLIC = Massachusetts Mutual Life Insurance Company.
MF = Manufacturers Life Insurance Company.
