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HUB GROUP, INC.
and
HUB CITY TERMINALS, INC.
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FOURTH AMENDMENT
Dated as of March 27, 2002
to
NOTE PURCHASE AGREEMENTS
Dated as of June 15, 1999
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Re: $50,000,000 8.64% Senior Notes
Due June 25, 2009
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FOURTH AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FOURTH AMENDMENT dated as of March 27, 2002 (the or this "Fourth
Amendment") to the Note Purchase Agreements each dated as of June 15, 1999, as
amended by the First Amendment to Note Purchase Agreements dated as of February
26, 2001, the Second Amendment to Note Purchase Agreements dated as of March 30,
2001 and the Third Amendment to Note Purchase Agreements dated as of November 8,
2001, is among HUB GROUP, INC., a Delaware corporation ("Public Hub Company"),
HUB CITY TERMINALS, INC., a Delaware corporation, for itself and as successor by
merger to Hub Holdings, Inc. ("Hub Chicago"; Public Hub Company and Hub Chicago
being individually referred to herein as an "Obligor" and collectively as the
"Obligors"), and each of the institutions which is a signatory to this Fourth
Amendment (collectively, the "Noteholders").
RECITALS:
A. The Obligors and each of the Noteholders have heretofore entered
into separate and several Note Purchase Agreements each dated as of June 15,
1999 (as amended by the First Amendment to Note Purchase Agreements dated as of
February 26, 2001, the Second Amendment to Note Purchase Agreements dated as of
March 30, 2001 and the Third Amendment to Note Purchase Agreements dated as of
November 8, 2001, collectively, the "Note Purchase Agreements"). The Obligors
have heretofore issued the $50,000,000 8.64% Senior Notes Due June 25, 2009 (the
"Notes") dated June 25, 2000 pursuant to the Note Purchase Agreements.
B. The Obligors and the Noteholders now desire to amend the Note
Purchase Agreements in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this Fourth Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Fourth Amendment set forth in
Section 4.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Obligors and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Each of Section 10.2 and 10.3 to the Note Purchase
Agreements shall be amended by adding the following sentence immediately at the
end of each such Section:
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"Notwithstanding anything contained in this Agreement to the
contrary, for purposes of computing the Public Hub Company and
its Restricted Subsidiaries' compliance with this Section, the
Public Hub Company and its Restricted Subsidiaries's
adjustment of earnings for the 2001 fiscal year (which was an
aggregate earnings adjustment of $1,800,000 for such year)
shall be treated as if such adjustment had occurred evenly in
each fiscal quarter of such year (i.e. $450,000 per fiscal
quarter)."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
Section 2.1. To induce the Noteholders to execute and deliver this
Fourth Amendment (which representations shall survive the execution and delivery
of this Fourth Amendment), the Obligors, jointly and severally, represent and
warrant to the Noteholders that:
(a) this Fourth Amendment has been duly authorized, executed
and delivered by each Obligor and this Fourth Amendment constitutes the
legal, valid and binding obligation, contract and agreement of each
Obligor enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Note Purchase Agreements, as amended by this Fourth
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Obligors enforceable against them in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(c) the execution, delivery and performance by the Obligors
of this Fourth Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which any
Obligor is a party or by which any Obligor's properties or assets are
or may be bound, including, without limitation, the Credit Agreement
dated as of April 30, 1999, among the Obligors, the Lenders party
thereto and Xxxxxx Trust and Savings Bank, individually and as Agent,
and all amendments, supplements and modifications thereto, or (B)
result in a breach or constitute (alone or with due notice or lapse of
time or both) a default under any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this
Fourth Amendment, no Default or Event of Default has occurred which is
continuing;
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(e) all the representations and warranties contained in
Section 5 of the Note Purchase Agreements (other than those contained
in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all
material respects with the same force and effect as if made by the
Obligors on and as of the date hereof (other than any representation
and warranty that expressly relates to a specified earlier date, which
was true and correct in all material respects as of such date);
provided, that, notwithstanding any reference in Sections 5.4(c) and
5.4(d) of the Note Purchase Agreements to the Restricted Subsidiaries
listed on Schedule 5.4 to the Note Purchase Agreements, the
representations and warranties hereby made by the Obligors with
reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements
shall relate to the Restricted Subsidiaries existing on the date
hereof;
(f) the statements and information furnished to the
Noteholders in connection with the negotiation of this Amendment do
not, taken as a whole, and other than financial projections or
forecasts, contain any untrue statements of a material fact or omit a
material fact necessary to make the material statements contained
herein or therein not misleading, the Noteholders acknowledging that as
to any projections furnished to the Noteholders, the Obligors and the
Constituent Company Guarantors only represent that the same were
prepared on the basis of information and estimates the Obligors
believed to be reasonable; and
(g) all tax returns with respect to any income tax or other
material tax required to be filed by the Obligors and the Restricted
Subsidiaries in any jurisdiction have, in fact, been filed, and all
taxes, assessments, fees and other governmental charges upon the
Obligors or the Restricted Subsidiaries or upon any of their respective
properties, income or franchises, which are shown to be due and payable
in such returns, have been paid. The Obligors do not know of any
proposed additional tax assessment against the Obligors or any
Restricted Subsidiary for which adequate provision in accordance with
GAAP has not been made. Adequate provisions in accordance with GAAP for
taxes on the books of the Obligors and each Restricted Subsidiary have
been made for all open years, and for its current fiscal period.
SECTION 3. WAIVER.
Section 3.1. Upon and by virtue of this Fourth Amendment becoming
effective as herein contemplated, the failure of the Public Hub Company and its
Restricted Subsidiaries to comply with the obligations under Section 10.3 (Cash
Flow Leverage Ratio) for the fiscal quarters ending March 31, 2000, September
30, 2000, December 31, 2000 and September 30, 2001 which failures constitute
Events of Default under the Note Purchase Agreements shall be deemed to have
been waived by the Noteholders. The Obligors understand and agree that the
waiver contained in this Section 3.1 pertains only to the matters and to the
extent herein described and not to any other actions of the Obligors under, or
matters arising in connection with, the Note Purchase Agreements or to any
rights which the Noteholders have arising by virtue of any such other actions or
matters.
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SECTION 4. CONDITIONS TO EFFECTIVENESS OF THIS FOURTH AMENDMENT.
Section 4.1. This Fourth Amendment shall not become effective until,
and shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) executed counterparts of this Fourth Amendment, duly
executed by the Obligors and the holders of at least 51% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
(b) the Noteholders shall have received a copy of the
resolutions of the Board of Directors of each Obligor authorizing the
execution, delivery and performance by such Obligor of this Fourth
Amendment, certified by such Obligor's Secretary or an Assistant
Secretary;
(c) the representations and warranties of the Obligors set
forth in Section 2 hereof are true and correct on and with respect to
the date hereof;
(d) the Noteholders shall have received an amendment fee in
an amount equal to 0.40% times the aggregate outstanding principal
amount of the Notes held by such Noteholder; and
(e) the Noteholders shall have received a true, correct and
complete copy of the Amendment to the Bank Credit Agreement dated the
date hereof.
Upon receipt of all of the foregoing, this Fourth Amendment shall become
effective as of March 27, 2002.
SECTION 5. CONDITION SUBSEQUENT.
Section 5.1. As soon as possible, but not later than April 10, 2002,
the Obligors shall furnish to the Noteholders a copy of the consolidated balance
sheet of the Public Hub Company as of the close of the 2001 fiscal year and the
consolidated statements of income, retained earnings and cash flows of the
Public Hub Company for such period, and accompanying notes thereto, each in
reasonable detail showing in comparative form the figures for the previous
fiscal year, accompanied by an unqualified opinion thereon of Xxxxxx Xxxxxxxx
LLP or another firm of independent public accountants of recognized national
standing, to the effect that the financial statements have been prepared in
accordance with GAAP and present fairly in accordance with GAAP the consolidated
financial condition of the Public Hub Company as of the close of such fiscal
year and the results of their operations and cash flows for the fiscal year then
ended, and otherwise in conformity with Section 7.1(b) of the Note Purchase
Agreements. The Obligors acknowledge and agree that the failure to deliver such
financial statements and audit report by April 10, 2002 shall constitute and
immediate Event of Default.
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SECTION 6. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 6.1. The Obligors agrees to pay upon demand, the reasonable
fees and expenses of Xxxxxxx and Xxxxxx, counsel to the Noteholders, in
connection with the negotiation, preparation, approval, execution and delivery
of this Fourth Amendment.
SECTION 7. MISCELLANEOUS.
Section 7.1. This Fourth Amendment shall be construed in connection
with and as part of each of the Note Purchase Agreements, and except as modified
and expressly amended by this Fourth Amendment, all terms, conditions and
covenants contained in the Note Purchase Agreements and the Notes are hereby
ratified and shall be and remain in full force and effect.
Section 7.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Fourth Amendment may refer to the Note Purchase Agreements without making
specific reference to this Fourth Amendment but nevertheless all such references
shall include this Fourth Amendment unless the context otherwise requires.
Section 7.3. The descriptive headings of the various Sections or parts
of this Fourth Amendment are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
SECTION 7.4. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH ILLINOIS LAW.
Section 7.5. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Fourth
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
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IN WITNESS WHEREOF, the Obligors and the Noteholders have caused this
instrument to be executed as of March 27, 2002.
HUB GROUP, INC.
HUB CITY TERMINALS, INC.
By ______________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer for each of the
above Companies
Consented, Accepted and Agreed
as of March 27, 2002
HUB CHICAGO HOLDINGS, INC., a Constituent
Company Guarantor
By ______________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer for each of the
above Companies
HLX COMPANY, L.L.C., a Constituent
Company Guarantor
By ______________________________________
Xxxxx X. Xxxxxx
Vice Chairman and Chief Executive
Officer
QSSC, INC.
QUALITY SERVICES, L.L.C.,
QUALITY SERVICES OF KANSAS, L.L.C.
QUALITY SERVICES OF NEW JERSEY, L.L.C.
Q.S. OF ILLINOIS, L.L.C.
Q.S. OF GEORGIA, L.L.C.
By ______________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer for each of the
above Constituent Company Guarantors
HUB GROUP ALABAMA, LLC (formerly known as
Hub City Alabama, L.P.)
HUB GROUP ATLANTA, LLC (formerly known as
Hub City Atlanta, L.P.)
HUB GROUP BOSTON, LLC (formerly known as
Hub City Boston, L.P.)
HUB GROUP CANADA, L.P.
HUB GROUP CLEVELAND, LLC (formerly known
as Hub City Cleveland, L.P.)
HUB GROUP DETROIT, LLC (formerly known as
Hub City Detroit, L.P.)
HUB GROUP FLORIDA, LLC (formerly known as
Hub City Florida, L.P.)
HUB GROUP GOLDEN GATE, LLC (formerly
known as Hub City Golden Gate, L.P.)
HUB GROUP INDIANAPOLIS, LLC (formerly
known as Hub City Indianapolis, L.P.)
HUB GROUP KANSAS CITY, LLC (formerly
known as Hub City Kansas City, L.P.)
HUB GROUP LOS ANGELES, LLC (formerly
known as Hub City Los Angeles, L.P.)
HUB GROUP MID ATLANTIC, LLC (formerly
known as Hub City Mid Atlantic, L.P.)
HUB GROUP NEW ORLEANS, LLC (formerly
known as Hub City New Orleans, L.P.)
HUB GROUP NEW YORK STATE, LLC (formerly
known as Hub City New York State, L.P.)
HUB GROUP NEW YORK-NEW JERSEY, LLC
(formerly known as Hub City New
York-New Jersey, L.P.)
HUB GROUP NORTH CENTRAL, LLC (formerly
known as Hub City North Central, L.P.)
HUB GROUP OHIO, LLC (formerly known as
Hub City Ohio, L.P.)
HUB GROUP PHILADELPHIA, LLC (formerly
known as Hub City Philadelphia, L.P.)
HUB GROUP PITTSBURGH, LLC (formerly known
as Hub City Pittsburgh, L.P.)
HUB GROUP PORTLAND, LLC (formerly known
as Hub City Portland, L.P.)
HUB GROUP ST. LOUIS, LLC (formerly known
as Hub City St. Louis, L.P.)
HUB GROUP TENNESSEE, LLC (formerly known
as Hub City Tennessee, L.P.)
HUB CITY TEXAS, L.P.
HUB GROUP TRANSPORT, LLC
By ______________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer for each of the
above Constituent Company Guarantors
Consented, Accepted and Agreed as of March 27, 2002:
BAYSTATE HEALTH SYSTEM, INC.
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
C.M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Sub-Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Company Inc., as
Investment Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
INVESTORS PARTNER LIFE INSURANCE COMPANY
By______________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
XXXX XXXXXXX LIFE INSURANCE COMPANY
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
MELLON BANK, N.A., solely in its
capacity as Trustee for the Xxxx
Atlantic Master Trust (as directed by
Xxxx Xxxxxxx Life Insurance Company),
and not in its individual capacity
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
RELIASTAR LIFE INSURANCE COMPANY
By: ING INVESTMENT MANAGEMENT LLC,
as agent
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
RELIASTAR LIFE INSURANCE COMPANY OF NEW
YORK
By: ING INVESTMENT MANAGEMENT LLC,
as agent
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of March 27, 2002:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By_____________________________________
Name:
Title:
