EX-10.1
2
ex10-1.htm
EXHIBIT 10.1
Exhibit 10.1
LOAN
AGREEMENT
THIS
LOAN AGREEMENT (“
Loan Agreement”)
is made as of April 6, 2010, by and among XXXXXX INDUSTRIES, INC., a
Tennessee corporation, APACO,
INC., a Delaware corporation, CENTURY HOLDINGS, INC., a
Tennessee corporation, CHAMPION
CARRIER CORPORATION, a Delaware corporation, CHEVRON, INC., a Pennsylvania
corporation, XXXXXX FINANCIAL
SERVICES GROUP, INC., a
Tennessee corporation, XXXXXX/GREENEVILLE, INC., a
Tennessee corporation, XXXXXX
INDUSTRIES INTERNATIONAL, INC., a
Tennessee corporation, XXXXXX INDUSTRIES TOWING EQUIPMENT
INC., a Delaware corporation (singularly and collectively, the
“Borrower”), whose address is c/o Miller Industries, Inc, 0000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx 00000 and FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under
the statutes of the United States of America, with offices at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereinafter referred to as the
“Bank”).
Recitals of
Fact
Borrower has requested that the Bank
commit to make loans and advances to it on a master revolving credit basis, for
purchase cards, letters of credit and other forms of lending, in an amount not
to exceed at any one time outstanding the principal sum of Twenty Million and
NO/100 Dollars ($20,000,000.00). The Bank has agreed to make such
loan and advances on the terms and conditions herein set forth.
NOW,
THEREFORE, incorporating the Recitals of Fact set forth above and in
consideration of the mutual agreements herein contained, the parties agree as
follows:
AGREEMENTS
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SECTION
1:
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DEFINITIONS
AND ACCOUNTING TERMS
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1.1 Certain
Defined Terms. For the purposes
of this
Loan Agreement, the following terms shall have the following meanings
(such meanings to be applicable equally to both the singular and plural forms of
such terms) unless the context otherwise requires:
“Business
Day” means a banking business day of the Bank.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee which, in accordance with GAAP, is
or should be accounted for as a capital lease on the balance sheet of that
Person.
“Cash”
shall having the meaning prescribed in accordance with GAAP.
“Chassis
Financing” shall have the meaning ascribed to such term in paragraph (e) of the
definition of Permitted Encumbrances.
“Closing
Date” means the date set out in the first paragraph of this
Loan
Agreement.
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“Consolidated Companies” or “Consolidated Company” means Xxxxxx
Industries, Inc. and each of its Subsidiaries.
“EBITDA”
means for the applicable period, the sum, without duplication, of (a) Net Income
Before Taxes of the Consolidated Companies on a consolidated basis for such
period and (b) to the extent deducted in determining such Net Income Before
Taxes on a consolidated basis: (A) Interest Expenses of the Consolidated
Companies on a consolidated basis for such period; (B) depreciation and
amortization expenses of the Consolidated Companies on a consolidated basis for
such period; and (C) other non-cash charges of the Consolidated Companies on a
consolidated basis for such period.
“Environmental
Laws” means all local, state or federal laws, rules or regulations pertaining to
environmental regulation, contamination or cleanup, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, the Resource Conservation and Recovery Act of 1976 or any state
lien or superlien or environmental cleanup statutes.
“Event of
Default” has the meaning assigned to that phrase in Section 8.
“FLSA”
means the Fair Labor Standards Act of 1938, as amended.
“GAAP”
means generally accepted accounting principles in the United States applied on a
consistent basis.
“Guaranty
Obligations” means, with respect to any Person, without duplication, any
obligations (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness, leases, dividends or other obligations of any Person
(other than another Borrower) in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or other obligation or any Property constituting
security therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters, take or
pay arrangements, put agreements or similar agreements or arrangements) for the
benefit of the holder of Indebtedness of such other Person, (c) to lease or
purchase Property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation, or (d) to otherwise assure or hold
harmless the owner of such Indebtedness or obligation against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is
made.
“Hazardous
Substances” shall mean and include all hazardous and toxic substances, wastes or
materials, any pollutants or contaminants (including, without limitation,
asbestos and raw materials which include hazardous constituents), or any other
similar substances or materials which are included under or regulated by any
Environmental Laws.
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“Indebtedness”
of any Person means all liabilities, obligations and indebtedness of that Person
at any date and of any and every kind and nature but limited to, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations, including,
without limitation, intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such Person which
would appear as liabilities on a balance sheet of such Person, (d) all
indebtedness secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed,
(e) all Guaranty Obligations of such Person, (f) the principal portion of all
obligations of such Person under (i) Capital Leases and (ii) any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product of such Person where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP (collectively “Synthetic Leases”), (g)
all obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other interest or exchange
rate or commodity price hedging agreement, (h) the maximum amount of all
commercial letters of credit and the maximum amount of all performance and
standby letters of credit issued or bankers’ acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed), and (i) all preferred stock issued by such Person
and required by the terms thereof to be redeemed, or for which mandatory sinking
fund payments are due, by a fixed date. The Indebtedness of any
Person shall include the Indebtedness of any partnership or unincorporated joint
venture in which such Person is legally obligated or has a reasonable
expectation of being liable with respect thereto.
“Interest
Expense” means, for any period, with respect to the Consolidated Companies on a
consolidated basis, all interest expense, including the interest component under
Capital Leases, as determined in accordance with GAAP.
“Letters
of Credit” means any letter of credit issued for the account of a Borrower that
is included as part of this Revolving Credit Loan pursuant to this
Loan
Agreement.
“Leverage
Ratio” means, as of the end of each fiscal quarter of the Consolidated
Companies, for the twelve (12) month period ending on such date, with respect to
the Consolidated Companies on a consolidated basis, the ratio of (1)
Indebtedness for borrowed money (other than any Chassis Financing) to (2)
EBITDA, plus Cash.
“Lien”
means any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on
the common law, statute or contract, and including but not limited to the
security interest or lien arising from a deed of trust, mortgage, encumbrance,
pledge, conditional sale or trust receipt, interest of a lessor under a Capital
Lease or consignment or bailment for security purposes, and including but not
limited to reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases, and other title exceptions and
encumbrances affecting Property but not including the interest of any lessor
under a lease which is not a Capital Lease. For the purposes of this
Loan Agreement, the Borrower shall be deemed to be the owner of any Property
which it has acquired or holds subject to a conditional sale agreement, lease,
financing lease or other arrangement pursuant to which title to the Property has
been retained by or is vested in some other Person.
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“
Loan
Agreement” means this
Loan Agreement between the Borrower and the Bank as the
same may be amended, supplemented or otherwise modified from time to time in
accordance therewith.
“Material
Adverse Effect” means a materially adverse effect on (a) the business,
assets, liabilities or financial condition of the Consolidated Companies, taken
as a whole or (b) the ability of the Borrower to perform its obligations
under this
Loan Agreement or the Note.
“Material
Debt” shall have the meaning ascribed to such term in Section
8.2.
“Maximum
Rate” means the maximum variable contract rate of interest which the Bank may
lawfully charge under applicable statutes and laws from time to time in
effect.
“Negative
Pledge Agreement” means the Negative Pledge Agreement(s) executed by any
Borrower in favor of Bank and any similar negative pledge financing statements
covering Property of any Borrower.
“Net
Income Before Taxes” means the consolidated net income before income taxes of
the Consolidated Companies for the applicable period determined in accordance
with GAAP.
“Note”
means the Master Revolving Credit Note executed by the Borrower to the Bank, of
even date herewith, as such note may be modified, renewed or extended from time
to time; and any other note or notes executed by any Borrower at any time to
evidence the indebtedness under this Loan Agreement, in whole or in part, and
any renewals, modifications and extensions thereof, in whole or in
part.
“Permitted
Assignee” shall mean any successor in interest to Bank who has acquired all of
the equity interests or all or substantially all of the assets of
Bank.
“Permitted
Borrowing” shall mean loans obtained by Consolidated Companies from lenders
other than the Bank from time to time not exceeding $8,000,000.00 in the
aggregate at any time.
“Permitted
Encumbrances” shall mean and include:
(a) liens for
taxes, assessments or similar governmental charges not in default or which are
being contested in good faith by appropriate proceedings;
(b) workmen’s,
vendors’, mechanics’ and materialmen’s liens and other liens imposed by law
incurred in the ordinary course of business, and easements and encumbrances
which are not substantial in character or amount and do not materially detract
from the value or interfere with the intended use of the properties subject
thereto and affected thereby;
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(c) pledges
or deposits of money securing bids, tenders, contracts (other than contracts for
the payment of money), leases to which any Borrower is a party as lessee made in
the ordinary course of business or liens in respect of pledges or deposits under
social security laws, worker’s compensation laws, unemployment insurance or
similar legislation and in respect of pledges or deposits to secure bids,
tenders, contracts (other than contracts for the payment of money), leases or
statutory obligations;
(d) any liens
and security interests on equipment and machinery securing the financing of that
equipment and machinery not exceeding a secured amount of more than the
Permitted Borrowing;
(e) any liens
related to chassis financing provided by the dealers and/or manufacturers of the
chassis;
(f) zoning
restrictions, easements, licenses, or other restrictions on the use of any real
property or other minor irregularities in title (including leasehold title)
thereto, so long as the same do not materially impair the use, value, or
marketability of such real property;
(g) normal
and customary rights of setoff and security interests arising under applicable
law (including Section 4-210 of the Uniform Commercial Code) upon deposits of
cash in favor of banks or other depository institutions; and
(h) such
other liens and encumbrances to which Bank shall consent in
writing.
“Permitted
Refinancing” means Indebtedness constituting a refinancing or extension of
Indebtedness, which exists as of the date of this Loan Agreement or is otherwise
not prohibited by this Loan Agreement, that (a) has an aggregate outstanding
principal amount not greater than the aggregate principal amount of the
Indebtedness being refinanced or extended, (b) has a weighted average maturity
(measured as of the date of such refinancing or extension) and maturity no
shorter than that of the Indebtedness being refinanced or extended, (c) is not
entered into as part of a sale leaseback transaction, (d) is not secured by a
Lien on any assets other than the collateral securing the Indebtedness being
refinanced or extended, (e) the obligors of which are the same as the obligors
of the Indebtedness being refinanced or extended and (f) is otherwise on terms
no less favorable to the Borrower, than those of the Indebtedness being
refinanced or extended.
“Person”
means an individual, partnership, corporation, trust, unincorporated
organization, association, joint venture or a government or agency or political
subdivision thereof.
“Property”
means as to any Borrower, all of that Borrower’s property, whether real,
personal, tangible, intangible or mixed, and other assets at any time owned,
leased or operated by such Borrower.
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“Related
Person” shall mean any Borrower, all of Borrowers’ subsidiaries and any other
Person (a) which now or hereafter directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
Borrower, or (b) which now or hereafter beneficially owns or holds five
percent (5%) or more of the capital stock (partnership interests, of membership
interests or other form of ownership interest of Borrower, or (c) five
percent (5%) or more of the capital stock, partnership interest, membership
interests or other form of ownership interest of which is beneficially owned or
held by Borrower. For the purposes hereof, “control” shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock or interests, by contract or otherwise.
“Revolving
Credit Advances” means advances of principal on the Revolving Credit Loan by the
Bank under the terms of this Loan Agreement to any Borrower during the term of
the Revolving Credit Loan pursuant to Section 3 of this Loan
Agreement.
“Revolving
Credit Loan” means the Borrower’s revolving credit indebtedness to the Bank
pursuant to Section 2 of this Loan Agreement.
“Revolving
Credit Note” means the Note as described in Section 2.3
hereof.
“Subsidiary” of a Person means any
corporation, association, limited liability company, partnership, joint venture
or other business entity of which more than fifty percent (50%) of the voting
Stock, is owned or controlled directly or indirectly by the Person, or one or
more of the Subsidiaries of the Person, or a combination
thereof.
“Tangible
Net Worth” means the excess of the book value of the assets of the Consolidated
Companies on a consolidated basis over its liabilities calculated in accordance
with GAAP, provided, however, that in performing such calculation there shall be
(a) excluded from the assets of the Consolidated Companies (i) any amount in
respect of goodwill, (ii) any amounts owed to Consolidated Companies by a
Related Person, and (iii) any amounts owed to Consolidated Companies by an
employee of any Consolidated Company or of any Related Person to a Consolidated
Company, and (b) included, as equity, any indebtedness owed by any Consolidated
Company to any Person which indebtedness has, by formal, binding agreement (in
form and substance satisfactory to Bank) been deferred and subordinated in
priority of payment to the indebtednesses and obligations of Borrower to
Bank.
“Termination
Date of Revolving Credit Loan” shall mean the earlier of (a) March 31, 2012, or
in the event that the Bank and Borrower shall hereafter mutually agree in
writing that the Revolving Credit Loan and the Bank’s commitment hereunder shall
be extended to another date, and the Note shall be modified or amended to
reflect such extension, such extended date pursuant to the foregoing, or
(b) the date as of which Borrower shall have terminated the Bank’s
commitment under the provisions of Section 2.5 hereof.
1.2
Accounting
Terms. All accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in the
preparation of the financial statements required to be delivered from time to
time pursuant to Section 6.5 hereof.
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SECTION
2:
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COMMITMENT,
FUNDING AND TERMS OF REVOLVING CREDIT
LOAN
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2.1
The
Commitment. Subject to the
terms and conditions herein set out, Bank agrees and commits to make loan
advances to the Borrower from time to time, from the Closing Date until the
Termination Date of Revolving Credit Loan, in an aggregate principal amount not
to exceed, at any one time outstanding Twenty Million and NO/100 Dollars
($20,000,000.00). Purchase cards, letters of credit issued for the
benefit of the Borrower, and treasury risk exposure that is allocated to the
Revolving Credit Loan by the Bank shall by the Bank shall be treated as loan
advances against the Twenty Million and NO/100 Dollars ($20,000,000.00)
loan.
2.2
Funding
the Loan. Each loan advance
hereunder shall be made upon the written request of the Borrower to the Bank,
specifying the date and amount thereof. All advances hereunder shall
be made by depositing the same to the checking account of Borrower at the
Bank.
2.3
The Note
and Interest. The Revolving
Credit Loan shall be evidenced by one (1) promissory note of the Borrower,
payable to the order of the Bank in the principal amount of Twenty Million and
NO/100 Dollars ($20,000,000.00), in form substantially the same as the copy of
the Revolving Credit Note attached hereto as Exhibit ”A.” The entire
principal amount of the Loan shall be due and payable on the Termination Date of
Revolving Credit Loan. The unpaid principal balances of the Revolving
Credit Loan shall bear interest from the Closing Date on disbursed and unpaid
principal balances at a rate per annum described in the Note.
2.4
Non-Usage
Fee. The Borrower
agrees that with respect to any unused portion of the Loan, there shall be a
non-usage fee of between .15% per annum and .35% per annum multiplied by the
unused portion of the Revolving Credit Loan based upon the average Consolidated
Companies’ collected deposit business with the Bank for the previous twelve (12)
month period (“Average Balance”), in accordance with the following Pricing
Table. The fee shall be paid by the Borrower to the Bank each quarter
commencing on June 30, 2010 and continuing on each September 30, December 31,
March 31 and June 30 thereafter. Purchase cards and
letters of credit issued for the benefit of the Borrower by the Bank shall be
treated as loan advances (usages) against the Twenty Million and NO/100 Dollars
($20,000,000.00) loan and shall not be included in the non-usage fee
calculation. “Pricing Table” shall mean (a) if the Bank remains the
primary treasury management and depository bank for the Borrowers and the
Average Balance is equal to or greater then $6,000,000.00, the non-usage fee
shall be .15% per annum and if the Average Balance is less than $6,000,000.00
the non-usage fee shall be .20% per annum; and (b) if the Bank is not the
primary treasury management and depository bank for the Borrowers, the non-usage
fee shall be .35% per annum.
2.5
Prepayments
or Termination of the Revolving Credit Loan. The Borrower may,
at its option, from time to time, subject to the terms and conditions hereof,
without penalty, borrow, repay and reborrow amounts under the Revolving Credit
Loan. By notice to the Bank in writing, Borrower shall be entitled to
terminate the Bank’s commitment to make further advances on the Revolving Credit
Loan.
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SECTION
3:
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REQUIRED
PAYMENTS, PLACE OF PAYMENT, ETC.
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3.1 Required
Repayments. In the event that
the outstanding principal balance of the Revolving Credit Loan shall at any time
exceed Twenty Million and NO/100 Dollars ($20,000,000.00), the Borrower will
immediately upon discovery of the existence of such excess borrowings, make a
principal payment which will reduce the outstanding principal balance of the
Revolving Credit Loan in the amount of such excess.
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3.2
Place of
Payments. All payments of
principal and interest on the Revolving Credit Loan and all payments of fees
required hereunder shall be made to the Bank, at its address listed in
Section 9.2 of this Agreement or such other location as the Bank may
designate in writing or accept such payments in immediately available
funds.
3.3
Payment
on Non-Business Days. Whenever any
payment of principal, interest or fees to be made on the indebtednesses
evidenced by the Note shall fall due on a Saturday, Sunday or public holiday
under the laws of the State of
Tennessee, such payment shall be made on the next
succeeding Business Day.
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SECTION
4:
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CONDITIONS
OF LENDING
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4.1
Conditions
Precedent to Closing and Funding Initial Advance. The obligation of the
Bank to fund the initial Revolving Credit Loan Advance hereunder is subject to
the condition precedent that the Bank shall have received, on or before the
Closing Date, all of the following in form and substance satisfactory to the
Bank:
(a)
This Loan
Agreement.
(b)
The
Negative Pledge Agreement.
(c)
A current
10K and 10Q of the Borrower.
(d)
Certified
copy of Borrower’s charters, articles of incorporation, articles of formation,
by-laws, operating agreements, partnership agreements and certificates of
limited partnership, and all amendments thereto.
(e) Certified
corporate resolutions or consents of Borrower, and certificate(s) of good
standing for Borrower from the state of its formation and certificates of
existence in each jurisdiction where Borrower is qualified to do
business.
(f) UCC lien
searches from such recording offices as Bank shall specify.
(g) The
opinion of counsel for Borrower that the transactions herein contemplated have
been duly authorized by all requisite corporate, partnership or limited
liability company authority, that this Loan Agreement and the other instruments
and documents herein referred to have been duly authorized, validly executed and
are in full force and effect, and pertaining to such other matters as the Bank
may reasonably require.
(h) A
certificate from an insurance broker, reasonably satisfactory to Bank setting
forth the information concerning insurance which is required by this Loan
Agreement.
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(i)
Such
other information and documentation as Bank shall deem to be necessary or
desirable in its reasonable credit judgment in connection with the funding of
the Loan, including but not limited to the items shown on the Checklist for
Closing, attached hereto, marked Exhibit “B” and made a part
hereof.
4.2
Conditions
Precedent to All Revolving Credit Loan Advances. The obligation of
the Bank to make Revolving Credit Advances pursuant hereto (including the
initial advance at the Closing Date) shall be subject to the following
additional conditions precedent:
(a) No Event
of Default shall have occurred and be continuing.
(b) Each of
the Warranties and Representations of the Borrower, as set out in Section 5
hereof shall remain true and correct in all material respects as of the date of
such Loan advance except to the extent such representation or warranty was made
as of a specific date, in which case the same shall be true and correct in all
material respect as of such date.
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SECTION
5:
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REPRESENTATIONS
AND WARRANTIES
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Borrower
represents and warrants that:
5.1
Incorporation
Status/Partnership Status/Limited Liability Company Status. It is either a
corporation, partnership or limited liability company as shown on Exhibit “D” attached hereto,
duly organized, validly existing and in good standing under the laws of the
State shown on Exhibit
“D;” it has the power and authority to own its properties and assets and
is duly qualified to carry on its business in every jurisdiction wherein such
qualification is necessary except to the extent that the failure to comply could
not reasonably be expected to have a Material Adverse Effect.
5.2
Power and
Authority. The execution,
delivery and performance of the Loan Agreement, the Note, the Negative Pledge
Agreement and the other loan documents have been duly authorized by all
requisite action and will not violate any material provision of law, any order
of any court or other agency of government, the certificate of incorporation or
bylaws, the partnership agreement, articles of formation or operating agreement
of the Borrower, any provision of any indenture, agreement or other instrument
to which Borrower is a party, or by which Borrower’s respective properties or
assets are bound, or be in conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of Borrower, except for Permitted Encumbrances and such other liens
and other encumbrances permitted by or securing the indebtedness covered by this
Loan Agreement and except, in each case, where such violation, conflict or
breach could not reasonably be expected to have a Material Adverse
Effect.
5.3
Financial
Condition. (a) (i)
The 10K of the Borrower dated December 31, 2009, and (ii) the unaudited
consolidating balance sheet/financial statement of the Borrower dated as of
December 31, 2009, a copy of each of which has been furnished to the Bank,
together with any explanatory notes therein referred to and attached thereto,
are correct and complete and fairly present the financial condition of Borrower
in all material respects as at the date of such items for such periods and as of
the date of closing of this Loan Agreement and related transactions,
respectively. All such financial statements have been prepared in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis maintained through the period involved.
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(b)
There has
been no material adverse change in the business, properties or condition,
financial or otherwise, of Borrower since December 31, 2009.
5.4 Title to
Assets. Borrower has good
and marketable title to all its properties and assets reflected on the balance
sheet referred to in Section 5.3 hereof, except for (i) such assets as
have been disposed of since said date as no longer used or useful in the conduct
of business, (ii) inventory sold in the ordinary course of business and
thereafter accounted for as accounts receivable or cash, (iii) accounts
receivable collected and properly accounted for, and (iv) items which have
been amortized in accordance with GAAP applied on a consistent basis; and all
such properties and assets are free and clear of Liens except for Permitted
Encumbrances or as otherwise expressly permitted by the provisions
hereof.
5.5 Litigation. There is no
action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or, to the knowledge of the
Borrower threatened against or affecting Borrower, or any properties or rights
of Borrower, which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
5.6 Taxes. Borrower has
filed or caused to be filed all federal, state or local tax returns which are
required to be filed, and has paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due, except
where such taxes or other assessments are being contested in good faith with
adequate reserves therefore and as otherwise permitted by the provisions of this
Agreement or to the extent that the failure to pay such taxes or assessments
could not reasonably be expected to have a Material Adverse Effect.
5.7 Contracts
or Restrictions Affecting Borrower. Borrower is not a party to
any agreement or instrument or subject to any charter or other corporate
partnership agreement or other company restrictions that could reasonably be
expected to have a Material Adverse Effect.
5.8 No
Default. Borrower is not
in default in the performance, observance or fulfillment of any of the
obligations, covenants, or conditions contained in any agreement or instrument
to which it is a party, which default if not cured could reasonably be expected
to have a Material Adverse Effect.
5.9 Patents
and Trademarks. Borrower
possesses all necessary patents, trademarks, trade names, copyrights, and
licenses necessary to the conduct of its businesses in all material
respects.
5.10 ERISA. Borrower is in
compliance in all material respects with all applicable provisions of the
Employees Retirement Income Security Act of 1974 (“ERISA”) and all other laws,
state or federal, applicable to any employees’ retirement plan maintained or
established by it.
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5.11 Hazardous
Substances. No Hazardous
Substances are located on or have been stored, processed or disposed of on or
released or discharged (including ground water contamination) from any property
owned by Borrower and no above or underground storage tanks exist on such
property other than substances that are properly stored and in material
compliance with applicable Environmental Laws or where the failure to so comply
could not reasonably be expected to have a Material Adverse
Effect. No private or governmental lien or judicial or administrative
notice or action related to Hazardous Substances or other environmental matters
has been filed against any property owned by Borrower or otherwise issued to or
received by Borrower.
5.12 No
Subsidiaries. As of the Closing
Date, Borrower does not own all or a substantial part of the stock (or other
ownership interest) in any other corporation (or other form of business
organization), except as shown in Exhibit “E” attached
hereto.
|
SECTION
6:
|
AFFIRMATIVE
COVENANTS OF BORROWER
|
Borrower
covenants and agrees that from the date hereof and until payment in full of the
principal of and interest on indebtednesses evidenced by the Note, unless the
Bank shall otherwise consent in writing, such consent to be at the discretion of
the Bank, Borrower will:
6.1
Business
and Existence. Perform all
things necessary to preserve and keep in full force and effect its existence,
rights and franchises, comply with all laws applicable to it and continue to
conduct and operate its business substantially as conducted and operated during
the present and preceding calendar years except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.2
Maintain
Property. Maintain,
preserve, and protect all leases, franchises, and trade names and preserve all
the remainder of its properties used or useful in the conduct of its business
substantially as conducted and operated during the present and preceding fiscal
year; keep all of its properties used or useful in the conduct of its business
in good repair, working order and condition, and from time to time make, or
cause to be made, all needed and proper repairs, renewals, replacements,
betterments and improvements thereto so that the business carried on in
connection therewith may be properly conducted at all times except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.3
Insurance. (a) At
all times maintain with some company or companies having a Best’s rating of A:XI
or better or otherwise approved by the Bank in its reasonable
discretion:
(i)
Comprehensive
liability insurance covering claims for bodily injury, death, and property
damage, with minimum limits satisfactory to the Bank, but in any event not less
than those amounts customarily maintained by companies in the same or
substantially similar business;
(ii) Business
interruption insurance and/or loss of rents insurance in a minimum amount
reasonably consistent with industry standards, with a loss payable clause in
favor of Bank; and
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(iii) Hazard
insurance insuring Borrower’s property and assets against loss by fire (with
extended coverage) and against such other hazards and perils (including but not
limited to loss by windstorm, hail, explosion, riot, aircraft, smoke, vandalism,
malicious mischief and vehicle damage), all such insurance to be issued in such
form, with such deductible provision, and for such amount as shall be reasonably
consistent with industry standards. Borrower shall not be obligated
to have any loss payable clause in favor of Bank.
(b) The
Borrower will deliver to Bank satisfactory certificates of insurance, and, as
often as Bank may reasonably request, a report of a reputable insurance broker
with respect to such insurance, provided, however, Borrower shall not be
obligated to have Bank named as additional insured.
6.4 Obligations,
Taxes and Liens. Pay all of its
indebtednesses and obligations promptly in accordance with normal terms and
practices of its business and pay and discharge or cause to be paid and
discharged promptly all taxes, assessments, and governmental charges or levies
imposed upon it or upon any of its income and profits, or upon any of its
properties, real, personal or mixed, or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor, materials, and
supplies which otherwise, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that the Borrower shall not
be required to pay and discharge or to cause to be paid and discharged any such
tax, assessment, trade payable, charge, levy or claim so long as the validity
thereof shall be contested in good faith by appropriate proceedings with
appropriate reserves taken.
6.5 Financial
Reports and Other Data. Furnish to the
Bank as soon as available and in any event within ninety (90) days after the end
of each fiscal year of Borrower the 10K of the Borrower and within forty five
(45) days after the end of each fiscal calendar quarter of Borrower the 10Q of
the Borrower.
6.6 Notice of
Default. At the time of
Borrower’s first knowledge or notice, furnish the Bank with written notice of
the occurrence of any event or the existence of any condition which constitutes
or upon written notice or lapse of time or both would constitute an Event of
Default under the terms of this Loan Agreement.
6.7 Additional
Information. Furnish such
other information regarding the operations, business affairs and financial
condition of the Borrower as Bank may reasonably request, including but not
limited to accounts payable aging reports, written confirmation of requests for
loan advances, true and exact copies of its books of account and tax returns,
and all material information furnished to any governmental authority, and permit
the copying of the same.
6.8 Right of
Inspection. Permit any person
designated by the Bank in writing, at the Bank’s expense, to visit and inspect
any of the properties, books and financial reports of the Borrower and to
discuss its affairs, finances and accounts with its principal officers, at all
such reasonable times as a Bank may reasonably request.
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6.9 Environmental
Laws. Maintain at all
times all of Borrower’s property in compliance with all Environmental Laws in
all material respects, and immediately notify the Bank of any notice, action,
lien or other similar action alleging either the location of any Hazardous
Substances or the material violation of any Environmental Laws with respect to
any of Borrower’s property or operations.
6.10 [RESERVED]
6.11 Notice of
Adverse Change in Assets. At the time of
Borrower’s first knowledge or notice, immediately notify the Bank of any
information that may adversely affect in any material manner the assets of the
Borrower.
6.12 Non-Default
Certificate. Furnish forty
five (45) days after each of the first three (3) calendar quarters of the
calendar year and ninety (90) days after the end of the calendar year, a
Non-Default Certificate substantially in the form of Exhibit “C” attached hereto,
certified by the Chief Financial Officer of Borrower.
6.13 Minimum
Tangible Net Worth. Maintain at all
times beginning on the Closing Date, a Tangible Net Worth of not less than
Ninety Five Million and NO/100 Dollars ($95,000,000.00).
6.14 Leverage
Ratio. Maintain at all
times beginning on the Closing Date, a Leverage Ratio of less than 2.00 to
1.00.
6.15 Use. Only use the Loan
proceeds for general corporate purposes, including working capital, letters of
credit, transactional risk exposure (such as purchase cards) and capital
expenditures.
|
SECTION
7:
|
NEGATIVE
COVENANTS OF BORROWER
|
Borrower
covenants and agrees that at all times from and after the Closing Date, unless
the Bank shall otherwise consent in writing, such consent to be at the
discretion of the Bank, it will not, either directly or indirectly:
7.1
Indebtedness. Incur, create,
assume or permit to exist any Indebtedness, except:
(a) Indebtednesses
to the Bank arising under this Loan Agreement and evidenced by the
Note;
(b)
Indebtednesses
for borrowed money under notes and lease obligations reflected in Borrower’s
most recently filed 10Q and Permitted Refinancings thereof, but excluding the
indebtednesses and obligations which are concurrently herewith being paid and
satisfied;
(c)
Trade
accounts payable, taxes payable, deferred sales, accrued employees’ bonuses and
withheld amounts, accrued liabilities with respect to contributions to pension
plans and other similar short-term obligations incurred by Borrower in the
normal course of operating its business, provided that Borrower shall not be in
default (subject to applicable grace periods) with respect to any of such
obligations where such default could reasonably expected to have a Material
Adverse Effect;
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(d)
Indebtedness
related to Permitted Encumbrances;
(e) Intercompany
loans and balances, made and existing in the normal course of business, among
the Consolidated Companies, which will not have a Material Adverse
Effect;
(f)
The
Permitted Borrowing.
7.2 Mortgages,
Liens, Etc. Create, assume or suffer to exist Lien of any
nature whatsoever on any of its assets, now or hereafter owned, except
for:
(a)
Liens, if
any, securing payment of the Note;
(b)
Existing
Liens securing Indebtednesses permitted under Section 7.1(b)
above;
(c)
Permitted
Encumbrances; and
(d)
Other
liens on assets with a value not exceeding $500,000.00 or securing indebtedness
with a principal amount not exceeding $500,000.00.
7.3 Guarantees. Guarantee or
otherwise in any way become or be responsible for any Guaranty Obligations of
any other Person, by any means whatsoever, without the prior written consent of
the Bank, except for (i) the endorsement of negotiable instruments by the
Borrower in the ordinary course of business for collection, (ii) repurchase
obligations under dealer floor plan arrangements and (iii) Guaranty Obligations
of Indebtedness permitted pursuant to Section 7.1.
7.4 Sale of
Assets. Sell, lease,
transfer or dispose (other than in the normal course of business or as permitted
pursuant to Section 7.8) of all or a substantial part of its
assets.
7.5 Loans and
Investments. Make any loans to
or investments in, or, except as provided in Section 7.8, purchase any
stock, other securities or evidence of indebtedness of any Person, except as
follows: (i) direct obligations of the United States of America or
obligations for which the full faith and credit of the United States of America
is pledged to provide for the payment of principal and interest,
(ii) marketable securities issued by an agency of the United States
government, (iii) commercial paper issued by the Bank or rated A-1 by
Standard and Poors Corporation, or P-1 by Xxxxx’x Investors Service, Inc.,
(iv) certificates of deposit of or bankers’ acceptances accepted by the
Bank or by domestic commercial banks in the United States of America having a
combined capital and surplus of at least Ninety Million Dollars
($90,000,000.00), (v) repurchase agreements with respect to any of the
foregoing contained in clauses (i) through (iv), (vi) new loans or new
investments in new or existing subsidiaries, which would not have a Material
Adverse Effect or result in those new loans or new investments equaling 10% or
more of the assets of the Consolidated Companies being transferred out of the
United States, except those which occur in the ordinary course of business or
those which exceed 10% as a result of a currency translation adjustment, (vii)
loans or investments permitted by the provisions of Section 7.10 hereof,
(viii) investments permitted by the provisions of Section 7.8 hereof, (ix)
existing investments as of the Closing Date, (x) loans permitted pursuant to
Section 7.1(e) or 7.1(f), or (xi) other investments in an amount not to exceed
$2,000,000.00.
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7.6 Sale of
Accounts Receivable. Sell, discount or
otherwise dispose of any of its accounts receivable or any promissory note or
obligation held by it, with or without recourse; provided, that the foregoing
shall not prohibit (i) discounts on accounts receivable given in the ordinary
course of business and/or consistent with past practices, or (ii) the sale of
other disposal of accounts receivable that have been determined in the
reasonable business judgment of Borrower to be uncollectible.
7.7 New
Business. Expand, acquire
or enter into any business other than its present business or a related
business, or any management contract whereby the effective management or control
of Borrower is delegated to third parties, without the prior written consent of
the Bank.
7.8 Consolidation
or Merger; Acquisition of Assets. Except for merger or
consolidation among the Borrower entities themselves or among any other
subsidiaries of Borrower (where one of the Borrowers is the survivor), (a) enter
into any transaction of merger or consolidation, which would have a Material
Adverse Effect , (b) acquire any other business or corporation, which would have
a Material Adverse Effect, or (c) acquire all or substantially all of the
property or assets of any other Person, which would have a Material Adverse
Effect.
7.9 Dividends,
Redemptions and Other Payments. Unless same will
not result in a breach of the Borrower’s financial covenants contained in
Sections 6.13 and 6.14 of this Loan Agreement, declare or pay, or set apart any
funds for the payment of, any dividends on any shares of capital stock of
Borrower, any distributions on any partnership interest in Borrower, or apply
any of its funds, properties, or assets to or set apart any funds properties or
assets for, the purchase, redemption or other retirement of or make any other
distribution (whether by reduction of capital or otherwise) in respect of, any
shares of capital stock of Borrower.
7.10 Loans to
Officers and Employees. Permit or allow
loans to officers and employees of Borrower, in the aggregate, to exceed One
Million Dollars ($1,000,000.00).
7.11 Trademarks
and Trade Names. Sell, transfer,
convey, grant any security interest in, or otherwise encumber any existing or
hereafter acquired material trademarks or trade names owned by the Borrower that
are used or useful in Borrower’s business.
|
SECTION
8:
|
EVENTS
OF DEFAULT
|
An “Event
of Default” shall exist if any of the following shall occur:
8.1 Payment
of Principal, Interest. The Borrower
defaults in the prompt payment as and when due of (a) principal on the Note and
such payment is not made within 3 business days of its due date, (b) interest on
the Note and such payment is not made within 5 business days of its due date or
(c) any fees due with respect to this Agreement or any related loan documents
and such payment is not made within 10 business days of its due date under this
Loan Agreement.
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8.2 Payment
of Other Obligations. The Borrower
defaults on the payment when due of any Indebtedness for borrowed money in a
principal amount exceeding $2,000,000.00 (“Material Debt”) or the performance of
any other obligation incurred in connection with such Material Debt, if the
effect of such default is to accelerate the maturity of such Material Debt or
permit the holder thereof to cause such Material Debt to become due prior to its
stated maturity; or
8.3 Representation
or Warranty. Any
representation or warranty made by the Borrower herein, or in any report,
certificate, financial statement or other writing furnished in connection with
or pursuant to this Loan Agreement shall prove to be false, misleading or
incomplete in any material respect on the date as of which made; or
8.4 Bankruptcy,
Etc. Any Borrower shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, petition or apply to any tribunal for
the appointment of a custodian, receiver or any trustee for it or him or a
substantial part of its or his assets, or shall commence any proceeding under
any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or if there shall have been filed any such petition or application, or
any such proceeding shall have been commenced against any Borrower, in which an
order for relief is entered or which remains undismissed for a period of sixty
(60) days or more; or Borrower by any act or omission shall indicate its or his
consent to, approval of or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of a custodian, receiver or
any trustee for it or him or any substantial part of any of its properties, or
shall suffer any such custodianship, receivership or trusteeship to continue
undischarged for a period of sixty (60) days or more; or Borrower shall
generally not pay its debts as such debts become due; or
8.5 Concealment
of Property, Etc. The Borrower shall have concealed, removed,
or permitted to be concealed or removed, any part of its or his property, with
intent to hinder, delay or defraud its or his creditors or any of them, or made
or suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law; or shall have made any
transfer of its or his property to or for the benefit of a creditor at a time
when other creditors similarly situated have not been paid; or shall have
suffered or permitted, while insolvent, any creditor to obtain a lien upon any
of its or his property through legal proceedings or distraint which is not
vacated within thirty (30) days from the date thereof.
8.6 Management
Change/ Change in
Ownership. Any of the
following changes shall have occurred:
(i) Any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than
Xxxxxxx X. Xxxxxx (or Persons, 100% of the Equity Interests of which are owned
by Xxxxxxx X. Xxxxxx) is or becomes the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to
have “beneficial ownership” of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than thirty five percent (35)% of the
total voting power of the then outstanding voting stock of Xxxxxx Industries,
Inc.;
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(ii) During
any period of twelve (12) consecutive months ending after the date of this Loan
Agreement, individuals who at the beginning of any such twelve (12) month period
constituted the Board of Directors of Xxxxxx Industries, Inc. (together with any
new directors whose election by such Board or whose nomination for election by
the shareholders of Xxxxxx Industries, Inc. was approved by a vote of a majority
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of Xxxxxx Industries, Inc. then in office;
(iii) If
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, or J. Xxxxxxx Xxxx cease for
any reason to be principally involved in the senior management of Xxxxxx
Industries, Inc., and Xxxxxx Industries, Inc. shall have failed to replace the
resulting vacancies in senior management with reasonable replacements in a
reasonable time period; or
(iv) If
the Borrower shall sell all or substantially all of its assets other than
pursuant to Section 7.4 or 7.8.
8.7 Loan
Documents Terminated or Void. This Loan
Agreement, the Note, the Negative Pledge Agreements or any other loan documents
executed or delivered in connection herewith shall, at any time after their
respective execution and delivery and for any reason, cease to be in full force
and effect or shall be declared to be null and void; or any Borrower shall deny
it has any or further liability under this Loan Agreement and the
Note.
8.8 Covenants. The Borrower
defaults in the performance or observance of any other covenant, agreement or
undertaking on its part to be performed or observed, contained herein, in the
Negative Pledge Agreement, or in any other instrument or document which now or
hereafter evidences or secures all or any part of the Revolving Credit Loan and
the same shall remain unremedied for 30 days.
8.9 Remedy. Upon the
occurrence and during the continuance of any Event of Default, as specified
herein, the Bank shall, at its option, be relieved of any obligation to make
further Revolving Credit Advances under this Agreement; and the Bank may, at its
option, thereupon declare the entire unpaid principal balances of the Note, all
interest accrued and unpaid thereon and all other amounts payable under this
Loan Agreement to be immediately due and payable for all purposes, and may
exercise all rights and remedies available to it under the Loan Agreement, any
other instrument or document which secures the Note, or available at law or in
equity. All such rights and remedies are cumulative and nonexclusive,
and may be exercised by the Bank concurrently or sequentially, in such order as
the Bank may choose.
9.1 Amendments. The provisions of
this Loan Agreement, the Note or any instrument or document executed pursuant
hereto or securing the Indebtednesses hereunder may be amended or modified only
by an instrument in writing signed by the parties hereto.
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9.2 Notices. All notices and
other communications provided for hereunder shall be in writing and shall be
mailed, certified mail, return receipt requested, or delivered, if to (i) the
Borrower, to it at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxxx Xxxx and Xxxxx Xxxxxxx, Telecopy: (000) 000-0000,
(ii) the Lender to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Lending, Telecopy: (000)
000-0000, or (iii) as to any such person at such other address as shall be
designated by such person in a written notice to the other parties hereto
complying as to delivery with the terms of this Section 9.2. All
such notices and other communications shall be effective (i) if mailed,
when received or three (3) business days after mailing, whichever is earlier; or
(ii) if delivered by national overnight courier company or other personal
delivery, upon delivery; or (iii) if delivered by electronic mail or
facsimile, upon delivery. Notice shall be deemed given upon receipt
or refusal to accept delivery.
9.3 No
Waiver, Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Bank, any right, power
or privilege hereunder, shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. Waiver of any right, power, or privilege hereunder or
under any instrument or document now or hereafter securing the indebtedness
evidenced hereby or under any guaranty at any time given with respect thereto is
a waiver only as to the specified item. The rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law.
9.4 Indemnification. Borrower agrees
to indemnify Bank from and against any and all claims, losses and liabilities
actually incurred, including, without limitation, reasonable attorneys’ fees
actually incurred, growing out of or resulting from this Agreement (including,
without limitation, enforcement of this Agreement), but subject to the
limitations set forth in Section 9.14 and
except relating to claims, losses or liabilities resulting solely and directly
from Bank’s gross negligence or willful misconduct. The
indemnification provided for in this Section shall survive the payment in full
of the loans.
9.5 Survival
of Agreements. All agreements,
representations and warranties made herein shall survive the delivery of the
Note. This Loan Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns,
except that (i) the Borrower shall not have the right to assign its rights
hereunder or any interest therein and (ii) so long as no Event of Default is
continuing, Bank shall not assign this Loan Agreement or any of the documents or
instruments executed in connection therewith, or its rights thereunder or any
interests therein to any person (other than a Permitted Assignee) without the
Borrower’s written consent.
9.6 Liens;
Setoff by Bank. Borrower hereby
acknowledges that Bank has a statutory banker’s lien and right of set off with
respect to all of Borrower’s monies, securities and other property and the
proceeds thereof, now or hereafter held or received by the Bank from or for
Borrower, and also upon any and all deposits (general or special, matured or
unmatured) and credits of the Borrower against the Bank, at any time
existing. Upon the occurrence of any Event of Default as specified
above, the Bank is hereby authorized at any time and from time to time, without
notice to Borrower to exercise such rights of set off, appropriate, and apply
any and all items hereinabove referred to against any or all Indebtednesses of
the Borrower to the Bank pursuant to this Agreement.
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9.7 Governing
Law. This Loan
Agreement shall be governed and construed in accordance with the laws of the
State of
Tennessee, except that the provisions hereof which relate to the
payment of interest shall be governed by (i) the laws of the United States
or, (ii) the laws of the State of
Tennessee, whichever permits the Bank to
charge the higher rate, as more particularly set out in the Note.
9.8 Execution
in Counterparts. This Loan
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
9.9 Terminology;
Section Headings. All personal
pronouns used in this Loan Agreement whether used in the masculine, feminine, or
neuter gender, shall include all other genders; the singular shall include the
plural, and vice versa. Section headings are for convenience only and
neither limit nor amplify the provisions of this Loan Agreement.
9.10 Enforceability
of Agreement. Should any one or
more of the provisions of this Loan Agreement be determined to be illegal or
unenforceable, all other provisions, nevertheless, shall remain effective and
binding on the parties hereto.
9.11 Interest
Limitations. (a) The
loans and the Note evidencing the loan, including any renewals or extensions
thereof, may provide for the payment of any interest rate (i) permissible
at the time of the contract to make the loans is executed, (ii) permissible
at the time of the loan is made or any advance thereunder is made, or
(iii) permissible at the time of any renewal or extension of the loan or
the Note.
(b)
It is the
intention of the Bank and the Borrower to comply strictly with applicable usury
laws; and, accordingly, in no event and upon no contingency shall the Bank ever
be entitled to receive, collect, or apply as interest any interest, fees,
charges or other payments equivalent to interest, in excess of the maximum rate
which the Bank may lawfully charge under applicable statutes and laws from time
to time in effect; and in the event that the holder of the Note ever receives,
collects, or applies as interest any such excess, such amount which, but for
this provision, would be excessive interest, shall be applied to the reduction
of the principal amount of the indebtedness thereby evidenced; and if the
principal amount of the indebtedness evidenced thereby, and all lawful interest
thereon, is paid in full, any remaining excess shall forthwith be paid to the
Borrower, or other party lawfully entitled thereto. In determining
whether or not the interest paid or payable, under any specific contingency,
exceeds the highest rate which Bank may lawfully charge under applicable law
from time to time in effect, the Borrower and the Bank shall, to the maximum
extent permitted under applicable law, characterize any non-principal payment as
a reasonable loan charge, rather than as interest. Any provision
hereof, or of any other agreement between the Bank and the Borrower, that
operates to bind, obligate, or compel the Borrower to pay interest in excess of
such maximum rate shall be construed to require the payment of the maximum rate
only. The provisions of this paragraph shall be given precedence over
any other provision contained herein or in any other agreement between the Bank
and the Borrower that is in conflict with the provisions of this
paragraph.
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The Note
shall be governed and construed according to the statutes and laws of the State
of
Tennessee from time to time in effect, except to the extent that
Section 85 of Title 12 of the United States Code (or other applicable
federal statue) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether state or federal, from
time to time in effect, which permit the charging of a higher rate of interest,
shall govern and control; provided, always, however, that in no event and under
no circumstances shall the Borrower be liable for the payment of interest in
excess of the maximum rate permitted by such applicable law, from time to time
in effect.
9.12 Non-Control. In no event shall
the Bank’s rights hereunder be deemed to indicate that the Bank is in control of
the business, management or properties of the Borrower or has power over the
daily management functions and operating decisions made by the
Borrower.
9.13 Renewal. No later than December
15, 2010 (and each December 15, thereafter if the Loan is renewed), the Bank may
provide the Borrower with written notice of its intent to renew or not renew the
Note for one (1) additional year after the Termination Date of Revolving Credit
Loan, provided, however, the Bank is not obligated to provide such notice and if
the Bank fails to provide such notice, regardless of the reason therefor, the
Bank shall not be obligated to renew the Note and the Note shall remain due and
payable in full on the Termination Date. If the Bank so notifies the
Borrower of its intent to renew the definition of “Termination Date” shall
automatically be amended to reflect such additional year (i.e. March 31, 2012
shall become March 31, 2013, etc.).
9.14 Fees and
Expenses. The Borrower
agrees to pay, or reimburse the Bank for, the actual out-of-pocket expenses,
including reasonable counsel fees actually incurred for one counsel of Bank and
fees of any accountants, inspectors or other similar experts, as deemed
necessary by the Bank, incurred by the Bank in connection with the development,
preparation, execution, amendment, recording, administration (excluding the
salary of Bank’s employees and Bank’s normal and usual overhead expenses) or
enforcement of, or the preservation of any rights under this Loan Agreement, the
Note, the Negative Pledge Agreement, and any instrument or document now or
hereafter securing the Revolving Credit Loan indebtedness.
9.15 Time of
Essence. Time is of the
essence of this Loan Agreement, the Note, and the other instruments and
documents executed and delivered in connection herewith.
9.16 Bank’s
Consent. Except as
otherwise expressly provided herein, in any instance hereunder where Bank’s
approval or consent is required or the exercise of its judgment is required, the
granting or denial of such approval or consent and the exercise of such judgment
shall be within the reasonable discretion of Bank, and Bank shall not, for any
reason or to any extent, be required to grant such approval or consent or
exercise such judgment. Bank may consult with counsel, and the
written advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
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9.17 Venue of
Actions. As an integral
part of the consideration for the making of the loans, it is expressly
understood and agreed that no suit or action shall be commenced by the Borrower,
or by any successor, or permitted assignee of any of them, with respect to the
Revolving Credit Loan, or with respect to this Loan Agreement or any other
document or instrument which now or hereafter evidences or secures all or any
part of the Revolving Credit Loan, other than in a state court of competent
jurisdiction in and for the County of Xxxxxxxx, Tennessee, or in the United
States District Court for the Eastern District of Tennessee, and not
elsewhere. Nothing in this paragraph contained shall prohibit Bank
from instituting suit in any court of competent jurisdiction for the enforcement
of its rights hereunder or in any other document or instrument which evidences
or secures the Revolving Credit Loan.
9.18 Waiver of
Right to Trial By Jury. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING; AND EACH PARTY HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
9.19 Conflict. In the event of
any conflict between the provisions hereof and the provisions of the Negative
Pledge Agreement, the Note or any other document executed in connection herewith
during the continuance of this Loan Agreement the provisions of this Loan
Agreement shall control.
9.20 Removal
of Liens. Notwithstanding
anything contained in this Loan Agreement to the contrary, the Borrower agrees
to cause to be cancelled of record the recorded liens in favor of Wachovia, Bank
of America, CIT and Xxxxxxx Xxxxxx within sixty (60) days from the date of this
Loan Agreement.
- 21
-
IN
WITNESS WHEREOF, the Borrower and the Bank have caused this Loan Agreement to be
executed by their duly authorized officers, all as of the day and year first
above written.
| | XXXXXX INDUSTRIES,
INC. |
| | |
| | By: | /s/ J. Xxxxxxx
Xxxx | |
| | Name: | J. Xxxxxxx
Xxxx |
| | Title: | Executive Vice
President and |
| | | Chief Financial
Officer |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Executive Vice President and Chief Financial Officer of XXXXXX
INDUSTRIES, INC. (the “Maker”) and is authorized by the Maker to execute this
instrument on behalf of the Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | |
| | | /s/ Xxxxx X. Xxxxx | |
| | | Notary
Public | |
| My Commission
Expires: | |
| | |
| July 6,
2010 | |
| | |
| (Notary
Seal) | |
- 22
-
| | APACO,
INC. |
| | |
| | By: | /s/ J. Xxxxxxx
Xxxx | |
| | Name: | J. Xxxxxxx
Xxxx |
| | Title: | Vice
President |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of APACO, INC. (the “Maker”) and is authorized by the
Maker to execute this instrument on behalf of the Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | |
| | | /s/
Xxxxx X. Xxxxx | |
| | | Notary
Public | |
| My Commission
Expires: | |
| | |
| July 6,
2010 | |
| | |
| (Notary
Seal) | |
- 23
-
| | CENTURY HOLDINGS,
INC. |
| | |
| | By: | /s/ J. Xxxxxxx
Xxxx | |
| | Name: | J. Xxxxxxx
Xxxx |
| | Title: | Vice
President |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CENTURY HOLDINGS, INC. (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | |
| | | /s/
Xxxxx X. Xxxxx | |
| | | Notary
Public | |
| My Commission
Expires: | |
| | |
| July 6,
2010 | |
| | |
| (Notary
Seal) | |
- 24
-
| | CHAMPION CARRIER
CORPORATION |
| | |
| | By: | /s/ J. Xxxxxxx
Xxxx | |
| | Name: | J. Xxxxxxx
Xxxx |
| | Title: | Vice
President |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CHAMPION CARRIER CORPORATION (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | |
| | | /s/
Xxxxx X. Xxxxx | |
| | | Notary
Public |
| My Commission
Expires: | |
| | |
| July 6,
2010 | |
| | |
| (Notary
Seal) | |
- 25
-
| | CHEVRON,
INC. |
| | |
| | By: | /s/ J. Xxxxxxx
Xxxx | |
| | Name: | J. Xxxxxxx
Xxxx |
| | Title: | Vice
President |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CHEVRON, INC. (the “Maker”) and is authorized by the
Maker to execute this instrument on behalf of the Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | |
| | | /s/
Xxxxx X. Xxxxx | |
| | | Notary
Public |
| My Commission
Expires: | |
| | |
| July 6,
2010 | |
| | |
| (Notary
Seal) | |
- 26
-
| | XXXXXX
FINANCIAL SERVICES GROUP, INC. |
| | | | |
|
|
By:
| /s/
J. Xxxxxxx Xxxx | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the President of XXXXXX FINANCIAL SERVICES GROUP, INC. (the “Maker”) and
is authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS
my hand, at office, this 2nd day
of April, 2010.
| | /s/ Xxxxx X. Xxxxx | |
| | Notary
Public |
My
Commission Expires:
|
July 6,
2010
| |
| | |
| (Notary
Seal) | |
- 27
-
| | XXXXXX/GREENEVILLE, INC. |
| | | | |
|
|
By:
| /s/
J. Xxxxxxx Xxxx | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX/GREENEVILLE, INC. (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this 2nd day
of April, 2010.
| | /s/
Xxxxx X. Xxxxx | |
| | Notary
Public |
My
Commission Expires:
|
July 6,
2010
| |
| | |
| (Notary
Seal) | |
- 28
-
| |
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
|
| | | | |
|
|
By:
| /s/
J. Xxxxxxx Xxxx | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX INDUSTRIES INTERNATIONAL, INC. (the “Maker”)
and is authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this 2nd day
of April, 2010.
| | /s/
Xxxxx X. Xxxxx | |
| | Notary
Public |
My
Commission Expires:
|
July 6,
2010
| |
| | |
| (Notary
Seal) | |
- 29
-
| |
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
|
| | | | |
|
|
By:
| /s/
J. Xxxxxxx Xxxx | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, Xxxxx X. Xxxxx, a Notary Public in and for said State and
County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I am
personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX INDUSTRIES TOWING EQUIPMENT INC. (the
“Maker”) and is authorized by the Maker to execute this instrument on behalf of
the Maker.
WITNESS my
hand, at office, this 2nd day
of April, 2010.
| | /s/
Xxxxx X. Xxxxx | |
| | Notary
Public |
My
Commission Expires:
|
July 6,
2010
| |
| | |
| (Notary
Seal) | |
- 30
-
| |
FIRST
TENNESSEE BANK NATIONAL ASSOCIATION
|
| | | | |
|
|
By:
| /s/
Xxxxx X. Xxxxxx | |
| | Name: | Xxxxx
X. Xxxxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Before me, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxx X.
Xxxxxx, with whom I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged herself to be
a
Vice President of
FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, the within named bargainor, a
national banking association, and that she as such Vice President, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the association by herself as such Vice
President.
WITNESS my
hand, at office, this 2nd day
of April, 2010.
| | /s/
Xxxxx X. Xxxxx | |
| | Notary
Public |
My
Commission Expires:
|
July 6,
2010
| |
| | |
| (Notary
Seal) | |
- 31
-
EXHIBIT
“A”
REVOLVING
CREDIT NOTE
MASTER
REVOLVING CREDIT NOTE
|
$20,000,000.00
|
Chattanooga,
Tennessee
Dated
as of April 6, 2010
|
Except as may be
otherwise extended pursuant to the Loan Agreement (hereinafter defined), on
March 31, 2012 (the “Termination Date”) the undersigned, XXXXXX
INDUSTRIES, INC., a Tennessee corporation, APACO,
INC., a Delaware corporation, CENTURY
HOLDINGS, INC., a Tennessee corporation, CHAMPION
CARRIER CORPORATION, a Delaware corporation, CHEVRON,
INC., a Pennsylvania corporation, XXXXXX
FINANCIAL SERVICES GROUP, INC., a Tennessee corporation, XXXXXX/GREENEVILLE,
INC., a Tennessee corporation, XXXXXX
INDUSTRIES INTERNATIONAL, INC., a Tennessee corporation, XXXXXX
INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation, (singularly and
collectively, the “Maker”), promises to pay to the order of FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association
having a principal place of business in Chattanooga, Tennessee (the “Bank”), the
principal sum of Twenty Million and NO/100 Dollars ($20,000,000.00), or, if
less, the aggregate unpaid principal amount of all Revolving Credit Advances
made to the undersigned pursuant to the Loan Agreement (as hereinafter defined),
together with interest upon disbursed and unpaid principal balances of the
Revolving Credit Advances, at the rate hereinafter specified, said interest
being payable quarterly on the last day of each quarter hereafter commencing
March 31, 2010, and continuing on each June 30, September 30, December 31 and
March 31, thereafter, with the final installment of interest being due and
payable concurrently on the same date that the remaining principal balance is
due hereunder.
This Note is being
executed in connection with that certain Loan Agreement, dated as of even date
herewith, among Maker and Bank (as amended, supplemented or otherwise modified
from time to time, the “Loan Agreement”). To the extent that any
provisions of this Note are inconsistent with the Loan Agreement, the Loan
Agreement shall govern and control. Any capitalized terms used herein
and not otherwise defined herein, shall have their respective meanings in the
Loan Agreement.
The interest
rate on this Note shall be the LIBOR Rate plus
1.75% (the “Margin”), as determined and adjusted in accordance with the
definition of LIBOR Rate, without notice to Maker, as of the date of this Note
and on the first day of each calendar month hereafter (the “Interest Rate Change
Date”). The “LIBOR Rate” shall mean the London Interbank Offered Rate
of interest for an interest period of one (1) month, which appears on Bloomberg
page BBAM under the column heading “USD” on the day that is two (2) London
Business Days preceding
each Interest Rate Change Date (the “Reset Date”). If the LIBOR Rate
as defined above is not available or is not published for any Reset Date, then
Bank shall, in its reasonable and good faith credit judgment, choose a
substitute source of publication for the LIBOR Rate, which LIBOR Rate plus the
Margin shall become effective on the next Interest Rate Change
Date. “London Business Day” shall mean any day on which commercial
banks in London, England are open for general business. The interest
rate change will not occur more often than each month. The
initial interest rate is 2.00075% per
annum. NOTICE: Under no circumstances will the
interest rate on the Note be more than the maximum rate allowed by applicable
law (the “Maximum Rate”).
Notwithstanding any
other provisions herein, if any Change in Law (as hereinafter defined) shall
make it unlawful for the Bank to make or maintain a LIBOR Rate loan as
contemplated by this Note, the principal outstanding hereunder shall, if
required by law and if the Bank so requests, be converted on the date required
to make the loan evidenced by this Note legal to a loan accruing interest at a
rate comparable to the former LIBOR Rate as determined by the Bank its
reasonable and good faith credit judgment.
The
undersigned hereby indemnifies the Bank and holds the Bank harmless from any
loss or expense which Bank may sustain in accordance with the Loan
Agreement.
“Change in
Law” shall mean the adoption of any law, rule, regulation, policy, guideline or
directive (whether or not having the force of law) or any change therein or in
the interpretation or application thereof, in all cases by any Governmental
Authority having jurisdiction over the Bank, in each case after the date
hereof.
“Governmental
Authority” shall mean any nation or government, any state or other political
subdivision thereof and any entity exercising regulatory functions of or
pertaining to government.
Until the
Termination Date, subject to Section 8.9 of the Loan Agreement, the Maker may
borrow, repay and reborrow the principal amount of this
Note.
This Note is
unsecured.
All installments of
interest, and the principal hereof, are payable at the office of First Tennessee
Bank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or at such
other place as the holder may designate in writing, in lawful money of the
United States of America, which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment.
Any amounts not paid
when due hereunder (whether by acceleration or otherwise and subject to
applicable grace periods) shall bear interest after maturity at the lesser of
(a) the Bank’s Base rate plus three percent (3%) per annum or (b) the
Maximum Rate. For purposes hereof, the Base Rate shall mean that rate
announced by Bank from time to time as Bank’s “base rate” and shall not
necessarily be the lowest or best rate charged by Bank.
For any payment
which is not made within ten (10) days of the due date for such payment, the
Borrower shall pay a late fee, including without limitation loans which are
renewed more than ten (10) days after the due date even though the renewal may
be dated as of the past-due payment date. The late fee shall equal
five percent (5%) of the unpaid portion of the past-due
payment.
If an Event of
Default shall have occurred and be continuing (subject to applicable cure
periods), all after the Bank mails written notice of such Event of Default to
the Maker, then, in any of such events, the entire unpaid principal balance of
the indebtedness evidenced hereby together with all interest then accrued,
shall, at the absolute option of the Bank, at once become due and payable,
without demand or notice, the same being expressly
waived. Notwithstanding the foregoing, upon the maturity date of this
Note set forth on page one of this Note, no notice or cure period shall be
required.
If this Note is
placed in the hands of an attorney for collection, by suit or otherwise, or to
protect the security for its payment, or to enforce its collection, or to
represent the rights of the Bank in connection with any loan documentation
executed in connection herewith, or to defend successfully against any claim,
cause of action or suit brought by the Maker against the Bank, the Maker shall
pay on demand all costs of collection and litigation (including court costs),
together with a reasonable attorney’s fee all in accordance with the Loan
Agreement.
The Maker and any
endorsers or guarantors hereof waive protest, demand, presentment, and notice of
dishonor, and agree that this Note may be extended, in whole or in part, without
limit as to the number of such extensions or the period or periods thereof,
without notice to them and without affecting their liability
hereon.
It is the intention
of the Bank and the Maker to comply strictly with applicable usury laws; and,
accordingly, in no event and upon no contingency shall the Bank ever be entitled
to receive, collect, or apply as interest any interest, fees, charges or other
payments equivalent to interest, in excess of the maximum rate which the Bank
may lawfully charge under applicable statutes and laws from time to time in
effect; and in the event that the holder hereof ever receives, collects, or
applies as interest any such excess, such amount which, but for this provision,
would be excessive interest, shall be applied to the reduction of the principal
amount of the indebtedness hereby evidenced; and if the principal amount of the
indebtedness evidenced hereby, and all lawful interest thereon, is paid in full,
any remaining excess shall forthwith be paid to the Maker, or other party
lawfully entitled thereto. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the highest rate which
Bank may lawfully charge under applicable law from time to time in effect, the
Maker and the Bank shall, to the maximum extent permitted under applicable law,
characterize any non-principal payment as a reasonable loan charge, rather than
as interest. Any provision hereof, or of any other agreement between
the Bank and the Maker, that operates to bind, obligate, or compel the Maker to
pay interest in excess of such maximum rate shall be construed to require the
payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between the Bank and the Maker that is in conflict with the
provisions of this paragraph.
This Note shall be
governed and construed according to the statutes and laws of the State of
Tennessee from time to time in effect, except to the extent that Section 85 of
Title 12 of the United States Code (or other applicable federal statue) may
permit the charging of a higher rate of interest than applicable state law, in
which event such applicable federal statute, as amended and supplemented from
time to time shall govern and control the maximum rate of interest permitted to
be charged hereunder; it being intended that, as to the maximum rate of interest
which may be charged, received, and collected hereunder, those applicable
statutes and laws, whether state or federal, from time to time in effect, which
permit the charging of a higher rate of interest, shall govern and control;
provided, always, however, that in no event and under no circumstances shall the
Maker be liable for the payment of interest in excess of the maximum rate
permitted by such applicable law, from time to time in
effect.
(Signature
on next page)
The Maker may prepay
this Note in whole or in part, prior to maturity, without premium or
penalty.
| |
XXXXXX
INDUSTRIES, INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Executive
Vice President and
| |
| | | Chief Financial Officer | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Executive Vice President and Chief Financial Officer of XXXXXX
INDUSTRIES, INC. (the “Maker”) and is authorized by the Maker to execute this
instrument on behalf of the Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
APACO,
INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of APACO, INC. (the “Maker”) and is authorized by the
Maker to execute this instrument on behalf of the Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
CENTURY
HOLDINGS, INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| | | | |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CENTURY HOLDINGS, INC. (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
CHAMPION
CARRIER CORPORATION
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CHAMPION CARRIER CORPORATION (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
CHEVRON,
INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of CHEVRON, INC. (the “Maker”) and is authorized by the
Maker to execute this instrument on behalf of the Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
XXXXXX
FINANCIAL SERVICES GROUP, INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the President of XXXXXX FINANCIAL SERVICES GROUP, INC. (the “Maker”) and
is authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
XXXXXX/GREENEVILLE,
INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX/GREENEVILLE, INC. (the “Maker”) and is
authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX INDUSTRIES INTERNATIONAL, INC. (the “Maker”)
and is authorized by the Maker to execute this instrument on behalf of the
Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
| |
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
|
| | | | |
|
|
By:
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
STATE OF
TENNESSEE
COUNTY OF
XXXXXXXX
Personally
appeared before me, _______________________, a Notary Public in and for said
State and County duly commissioned and qualified, J. Xxxxxxx Xxxx, with whom I
am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that
he is the Vice President of XXXXXX INDUSTRIES TOWING EQUIPMENT INC. (the
“Maker”) and is authorized by the Maker to execute this instrument on behalf of
the Maker.
WITNESS my
hand, at office, this ____ day of April, 2010.
My
Commission Expires:
EXHIBIT
“B”
CHECKLIST
FOR CLOSING
April 6,
2010
M
E M O R A N D U M
CHECKLIST
FOR CLOSING LOAN
XXXXXX
INDUSTRIES, INC.
($20,000,000.00
Loan)
Key:
FTB means First Tennessee Bank will prepare.
B means Borrower will
prepare or furnish.
N/A means not
applicable.
X means item
received.
W means item
waived.
| |
FTB
|
|
1.
| |
Commitment
Letter
|
| |
FTB
|
|
2.
| |
Loan
Agreement
|
| |
FTB
|
|
3.
| |
$20,000,000.00
Note
|
| |
FTB
|
|
4.
| |
Agreement
Regarding Obligation Related to
Real
Estate/ Negative Pledge Agreement
(a)
Tennessee (Xxxxxxxx County and Xxxxxx County)
(b)
Pennsylvania
|
| |
FTB
|
|
5.
| |
Financing
Statements re: negative pledge re: PP&E and AR
(a)
Tennessee
(b)
Delaware
(c)
Pennsylvania
|
| |
B
|
|
6.
| |
Opinion
of Xxxxxx Industries, Inc.’s counsel.
|
| |
B
|
|
7.
| |
Current
financial statement of Xxxxxx Industries, Inc.
|
| |
B
|
|
8.
| |
Current
financial statements for all subsidiaries shown on attached Exhibit
“A”
|
| |
B
|
|
9.
| |
Copy
of most recently filed federal tax return of Xxxxxx Industries,
Inc.
|
| |
B
|
|
10.
| |
Copy
of most recently filed federal tax returns of all subsidiaries shown on
attached Exhibit “A”
|
| |
B
|
|
11.
| |
Copy
of Form 10-K re: Xxxxxx Industries
|
| |
B
|
|
12.
| |
Copy
of Form 10-Q re: Xxxxxx Industries.
|
B-1
| |
FTB
|
|
13.
| |
UCC-11
Lien Searches
X(a)
Xxxxxx Industries, Inc. (Forwarded to FTB)
X(b)
Champion Carrier Corporation (Forwarded to FTB)
X(c)
Chevron, Inc. (Forwarded to FTB)
X(d)
Xxxxxx Industries Towing Equipment, Inc. (Forwarded to FTB)
|
| |
B
|
|
14.
| |
FTB
has approved all outstanding UCCs except the ones in favor of Xxxxxx and
Wachovia which must be terminated within 60 days from
closing
|
| |
FTB
|
|
15.
| |
Xxxxxxxx
County, Tennessee title search to determine existence of liens (SLS
performed) (Forwarded to FTB)
|
| |
B
|
|
16.
| |
Release
of Deeds of Trust which must be done within 60 days of
closing
(a)
Bank of America
(b)
CIT
(c)
Wachovia
|
| |
FTB/B
|
|
17.
| |
Release
of UCCs
(a)
Wachovia against Xxxxxx Industries, Inc.
(b)
Xxxxxxx Xxxxxx (CM is re-filing one Xxxx Xxxxxxx prepared)
|
| |
B
|
|
18.
| |
Certificate
of Existence of Xxxxxx Industries, Inc. (Tennessee)
|
| |
B
|
|
19.
| |
Certificate
of Existence for all subsidiaries shown on Exhibit “A”
|
| |
B
|
|
20.
| |
Secretary
Certificate of Xxxxxx Industries, Inc. with Consent/ Resolutions
attached
|
| |
B
|
|
21.
| |
Secretary
Certificates with Consent/Resolutions attached of all subsidiaries shown
on Exhibit “A”
|
| |
B
|
|
22.
| |
Copy
of Articles/ Certificate of Incorporation re: Xxxxxx Industries,
Inc.
|
| |
B
|
|
23.
| |
By-laws
of Xxxxxx Industries, Inc.
|
| |
B
|
|
24.
| |
Copy
of Articles/ Certificate of Incorporation, Articles of Formation,
Certificate of Partnership re: all subsidiaries shown on Exhibit
“A”
|
| |
B
|
|
25.
| |
By-law,
Operating Agreements, Partnership Agreement re: all subsidiaries shown on
Exhibit “A”
|
| |
FTB
|
|
26.
| |
Xxxxxx
Industries, Inc’s FEIN #_______________. (FTB has)
|
| |
FTB
|
|
27.
| |
Loan
Closing Statement.
|
B-2
Borrower:
Mr. J.
Xxxxxxx Xxxx
Executive
Vice President, Chief Financial Officer
Xxxxxx
Industries, Inc.
8500
Xxxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxxxx 00000
Xelephone:
_______________________
Fax:
_____________________________
E-Mail:
xxxxx@xxxxxxxxx.xxx
Borrower’s
In-House Counsel:
Xxxxx
Xxxxxxx
Executive
Vice President, Secretary and General Counsel
Xxxxxx
Industries
8500
Xxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
Xelephone:
(000) 000-0000
Facsimile :
(000) 000-0000
E-Mail: xxxxxxxx@xxxxxxxxx.xxx
Borrower’s
Outside Counsel:
Xxxxx
Xxxxxx, Esq.
Xxxxxxxxxx
Xxxxxxxx LLP
1100
Xxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxx 00000-0000
Xelephone: (000)
000-0000
Facsimile :
(000) 000-0000
E-Mail:
xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Bank:
Xxxxxx X.
Xxxx
First
Tennessee Bank
700
Xxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Xelephone:
(000) 000-0000
E-Mail: xxxxxx@xxx.xxx
Xxxxx X.
Xxxxxx
First
Tennessee Bank
700
Xxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Xelephone:
(000) 000-0000
E-Mail: XXXxxxxx@xxxxxxxxxxxxxx.xxx
B-3
Bank’s
Counsel:
Xxxxx
Xxxxxxx Xxxx
Xxxxx,
Xxxxxxxx
1800
Republic Centre
630
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000
Xelephone: (000)
000-0000
Facsimile: (000) 000-0000
Email:
xxxxx@xxxxxxxxxxxxx.xxx
E-Mail
addresses: xxxxxx@xxx.xxx; xxxxx@xxxxxxxxxxxxx.xxx; xxxxxxxx@xxx.xxx;
xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx; xxxxx@xxxxxxxxx.xxx;
xxxxxxxx@xxxxxxxxx.xxx;
B-4
EXHIBIT
“A”
|
APACO,
INC.
| |
a
Delaware corporation
|
|
CENTURY
HOLDINGS, INC.
| |
a
Tennessee corporation
|
|
CHAMPION
CARRIER CORPORATION
| |
a
Delaware corporation
|
|
CHEVRON,
INC.
| |
a
Pennsylvania corporation
|
|
XXXXXX
FINANCIAL SERVICES GROUP, INC.
| |
a
Tennessee corporation
|
|
XXXXXX/GREENEVILLE,
INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
| |
a
Delaware corporation
|
B-5
EXHIBIT
“C”
NON-DEFAULT
CERTIFICATE
As of
__________________, 20_____
The
undersigned, a duly authorized officer of the undersigned companies [hereinafter
referred to as the “Borrower” in that certain Loan Agreement (the “Loan
Agreement”) dated as of April __, 2010 among Borrower and First Tennessee Bank
National Association, Chattanooga, Tennessee (the “Bank”)], certifies to said
Bank, in accordance with the terms and provisions of said Loan Agreement, as
follows:
|
1.
|
All
of the representations and warranties set forth in the Loan Agreement are
and remain true and correct in all material respects on and as of the date
of this Certificate with the same effect as though such representations
and warranties have been made on and as of this date; provided, that, to
the extent that any representation or warranty relates to a prior specific
date, such representation or warranty shall be true and correct in all
material respects as of such prior
date.
|
|
2.
|
Borrower
certifies that the information set forth in this Non-Default Certificate
is true and correct in all material
respects.
|
|
3.
|
Borrower’s
Minimum Tangible Net Worth is currently $_____________________, which is
not less than Ninety Five Million and NO/100 Dollars
($95,000,000.00).
|
|
4.
|
Borrower’s
current Leverage Ratio is ________ to 1:00 calculated using numbers for
the previous twelve (12) month period…Indebtedness for borrowed money
(excluding Chassis Financing) ($____________) EBITDA ($____________), plus
Cash ($____________), which is less than 2.00 to
1.00.
|
|
5.
|
As
of the date hereof, Borrower is in compliance in all material respects
with all of the terms and provisions set forth in the Loan Agreement and
all of the instruments and documents executed in connection therewith, and
no Event of Default (as
|
C-1
specified
in the Loan Agreement), nor any event which, upon notice, lapse of time or both,
would constitute an Event of Default, has occurred and is continuing, except as
noted below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Dated
this _____ day of ____________________, 20___.
| |
XXXXXX
INDUSTRIES, INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Executive
Vice President and
| |
| | | Chief
Financial Officer | |
| |
APACO,
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
CENTURY
HOLDINGS, INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
| |
| |
CHAMPION
CARRIER CORPORATION
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
|
| |
CHEVRON,
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
|
C-2
| |
XXXXXX
FINANCIAL SERVICES GROUP,
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
President
|
| |
XXXXXX/GREENEVILLE,
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
|
| |
XXXXXX
INDUSTRIES INTERNATIONAL,
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
|
| |
XXXXXX
INDUSTRIES TOWING EQUIPMENT
INC.
|
| | | | |
|
| By: |
| | |
| | Name: | J.
Xxxxxxx Xxxx | |
| | Title: |
Vice
President
|
C-3
EXHIBIT
“D”
LIST
OF BORROWERS AND THEIR STATES/COUNTRIES OF ORGANIZATION
|
APACO,
INC.
| |
a
Delaware corporation
|
|
CENTURY
HOLDINGS, INC.
| |
a
Tennessee corporation
|
|
CHAMPION
CARRIER CORPORATION
| |
a
Delaware corporation
|
|
CHEVRON,
INC.
| |
a
Pennsylvania corporation
|
|
XXXXXX
INDUSTRIES, INC.
| |
a
Tennessee corporation
|
|
XXXXXX
FINANCIAL SERVICES GROUP, INC.
| |
a
Tennessee corporation
|
|
XXXXXX/GREENEVILLE,
INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
| |
a
Delaware corporation
|
D-1
EXHIBIT
“E”
SUBSIDIARY/SUBSIDIARIES
OWNED BY ANY BORROWER
|
407664
BRITISH COLUMBIA LTD.
| |
a
British Columbia company
|
|
AETEX,
INC.
| |
a
Delaware corporation
|
|
ALL
AMERICAN TOWING SERVICES, INC.
| |
a
Delaware corporation
|
|
APACO,
INC.
| |
a
Delaware corporation
|
|
B&B
ASSOCIATED INDUSTRIES, INC.
| |
a
Delaware corporation
|
|
B-G
TOWING, INC.
| |
a
Delaware corporation
|
|
BEAR
TRANSPORTATION, INC.
| |
a
Delaware corporation
|
|
BTRX,
INC.
| |
a
Delaware corporation
|
|
BTRCX,
INC.
| |
a
Delaware corporation
|
|
BASIEX,
INC.
| |
a
Delaware corporation
|
|
BBSX,
INC.
| |
a
Delaware corporation
|
|
BONIFACE
ENGINEERING, LTD.
| |
a
United Kingdom private limited company
|
|
CAL
WEST TOWING, INC.
| |
a
Delaware corporation
|
|
CBTX,
INC.
| |
a
Delaware corporation
|
|
CENTURY
HOLDINGS, INC.
| |
a
Tennessee corporation
|
|
CEX,
INC.
| |
a
Delaware corporation
|
|
CHAMPION
CARRIER CORPORATION
| |
a
Delaware corporation
|
|
CHEVRON,
INC.
| |
a
Pennsylvania corporation
|
|
CCASX,
INC.
| |
a
Delaware corporation
|
|
DVREX,
INC.
| |
a
Texas corporation
|
|
DSX,
INC.
| |
a
Delaware corporation
|
|
X.X.
XXXXXXX TRUCK EQUIPMENT, LTD.
| |
a
British Columbia company
|
|
GATX
OF DELAWARE, INC.
| |
a
Delaware corporation
|
|
HTX,
INC.
| |
a
Delaware corporation
|
|
JIGE
INTERNATIONAL
| |
a
French company
|
|
LTSX,
INC.
| |
a
Delaware corporation
|
|
LASX,
INC.
| |
a
Delaware corporation
|
|
LWKR,
INC.
| |
a
Delaware corporation
|
|
MAEJO,
INC.
| |
a
Delaware corporation
|
|
MAEX,
INC.
| |
a
Delaware corporation
|
|
MEL’S
ACQUISITION CORP.
| |
a
Delaware corporation
|
|
XXXXXX
FINANCIAL SERVICES GROUP, INC.
| |
a
Tennessee corporation
|
|
XXXXXX/GREENEVILLE,
INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES DISTRIBUTING, INC.
| |
a
Delaware corporation
|
|
XXXXXX
INDUSTRIES EUROPE B.V.
| |
a
Netherlands company
|
|
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
| |
a
Tennessee corporation
|
|
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
| |
a
Delaware corporation
|
|
MSTEX,
INC.
| |
a
Delaware corporation
|
E-1
|
MTSX,
INC.
| |
a
Delaware corporation
|
|
MGEX,
INC.
| |
a
Delaware corporation
|
|
X.X.X.,
INC.
| |
a
Delaware corporation
|
|
PEX,
INC.
| |
a
Delaware corporation
|
|
PURPOSE,
INC.
| |
a
Delaware corporation
|
|
RRIC
ACQUISITION CORP.
| |
a
Delaware corporation
|
|
RSX,
INC.
| |
a
Delaware corporation
|
|
ROAD
ONE, INC.
| |
a
Delaware corporation
|
|
ROAD
ONE EMPLOYEE SERVICES, INC.
| |
a
Delaware corporation
|
|
ROAD
ONE SERVICE, INC.
| |
a
Delaware corporation
|
E-2
