Exhibit 4.7.4
THIRD AMENDMENT AND AGREEMENT
THIS THIRD AMENDMENT AND AGREEMENT ("Agreement") is made as of the 31st
day of May, 2002, by and among WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association (formerly known as First Union National Bank) with offices
at 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
("Bank"); OLD DOMINION FREIGHT LINE, INC., a Virginia corporation with its
principal place of business at 000 Xxx Xxxxxxxx Xxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx
00000 ("Company"); and XXXX, INC., a Delaware corporation ("Guarantor").
WITNESSETH:
WHEREAS, the Company and the Bank are parties to a certain Credit
Agreement dated as of May 31, 2000 (the "Credit Agreement"), pursuant to which
the Bank extended to the Company financial accommodations in the form of a
revolving line of credit in the original maximum principal amount of Fifty
Million Dollars ($50,000,000) (the "Revolving Loans") and a standby letter of
credit facility in the original maximum principal amount of Twelve Million Five
Hundred Thousand Dollars ($12,500,000);
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Credit Agreement;
WHEREAS, the Revolving Loans are evidenced by that certain Revolving
Credit Note dated May 31, 2000, executed by the Company in favor of the Bank in
the original maximum principal amount of Fifty Million Dollars ($50,000,000)(the
"Note");
WHEREAS, the Obligations are guaranteed by that certain Guaranty
Agreement dated May 31, 2000, executed by the Guarantor in favor of the Bank
(the "Guaranty");
WHEREAS, the documents and instruments evidencing and/or securing the
foregoing indebtedness, as heretofore amended, are referred to herein
collectively as the "Loan Documents;"
WHEREAS, the Bank, the Borrower and the Guarantor executed that certain
First Amendment and Agreement dated February 1, 2001, amending certain of the
Loan Documents as provided therein;
WHEREAS, the Bank, the Borrower and the Guarantor executed that certain
Second Amendment and Agreement dated May 31, 2001, amending certain of the Loan
Documents as provided therein;
WHEREAS, the Borrower has requested that the Bank increase the
available amount of the Letter of Credit Facility, and the Bank has agreed to
provide such additional financing subject to the terms and conditions of this
Agreement; and
NOW THEREFORE, for value received and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Credit Agreement.
-----------------------------
(a) The definition entitled "Letter of Credit Facility Commitment" in
Section 1.1 of the Credit Agreement is amended in its entirety to read as
follows:
"`Letter of Credit Facility Commitment' shall mean Twenty Million
Dollars ($20,000,000)."
(b) The definition entitled "Termination Date for Letter of Credit
Facility" in Section 1.1 of the Credit Agreement is amended in its entirety to
read as follows:
"`Termination Date for Letter of Credit Facility' shall mean the
earliest of:
(i) May 30, 2003;
(ii) The date of termination of the Letter of Credit Facility by
Bank after the occurrence of an Event of Default;
(iii) Such date of termination of the Letter of Credit Facility as
is mutually agreed upon by Bank and Borrower; and
(iv) The date that all Obligations have been paid in full and Bank
is no longer obligated to issue Letters of Credit hereunder."
(c) The following Schedules to the original Credit Agreement are hereby
amended by replacing such Schedules with the corresponding Schedules attached
hereto:
Schedule 1.1A Letters of Credit
Schedule 6.9 Places of Business and Principal Place of Business
Schedule 6.22A Capitalized Leases
Schedule 8.3 Funded Debt
Schedule 8.4 Permitted Liens
2. Ratification. Except as the same have been amended hereby, the
Credit Agreement, the Note, the Guaranty, and the other Loan Documents shall in
all respects remain in full force and effect and are in all respects hereby
ratified and affirmed, and the amendments effected by this Agreement shall not
constitute a novation of any of the Borrower's or the Guarantor's obligations
under such documents. Each of such documents shall be deemed to be amended as
necessary to the extent necessary to be consistent with the amendments effected
by this Agreement.
3. Execution by Guarantor. By its execution below, the Guarantor hereby
consents to the terms and conditions of this Agreement and reaffirms and
ratifies its obligations under the Guaranty, which shall in all respects remain
in full force and effect and is hereby ratified and affirmed. The Guarantor
hereby acknowledges that its obligations under the Guaranty shall include,
without limitation, its guarantee of the Company's obligations to the Bank under
the Note, as amended hereby.
4. Representations and Warranties.
(a) The Company hereby affirms each covenant made by it in the Credit
Agreement as if set forth herein in full (together with any modifications
provided for herein), and represents and warrants to the Bank that the
representations and warranties set forth in the Credit Agreement remain true,
correct and complete in all material respects as of the date hereof, except (i)
representations and warranties that relate
solely to an earlier date or which are no longer true due to an action or event
specifically permitted by the provisions of the Credit Agreement, and (ii)
representations and warranties modified by the Schedules attached hereto, which
representations and warranties are reaffirmed to the extent of the additional
information provided by the Schedules attached hereto. The Guarantor hereby
affirms each representation, warranty and covenant made by it in the Guaranty as
if set forth herein in full.
(b) Each of the Company and the Guarantor acknowledges and confirms
that there are no defenses, claims or setoffs available to Company or to the
Guarantor which would operate to limit its obligations under the Credit
Agreement, the Note, the Guaranty, or the other Loan Documents to which is a
party thereto, or under any of such documents as amended hereby.
(c) Each of the Company and the Guarantor covenants, represents and
warrants as follows:
(i) each of the Company and the Guarantor has the full
corporate power and authority to enter into this Agreement and the documents and
instruments contemplated hereby to which it is a party and to perform its
obligations hereunder and thereunder; and
(ii) no default or event of default under any of the Loan
Documents, or event, condition, act or circumstance which with the giving of
notice or the passage of time or both could constitute a default or event of
default under any of the Loan Documents, has occurred and is continuing on the
date hereof.
5. Fees and Expenses. The Company shall pay all out-of-pocket expenses,
costs and charges incurred by Bank (including reasonable fees and disbursements
of counsel) in connection with the preparation and implementation of this
Agreement.
6. Condition Precedent. As express conditions precedent to the
effectiveness of this Agreement, the Company shall (a) provide to the Bank
certified copies of resolutions of the Board of Directors of the Company and the
Guarantor authorizing the execution and delivery of, and performance under, this
Agreement, and a current Certificate of Existence or Good Standing for the
Company and the Guarantor issued by the Secretary of State of Virginia and
Delaware, respectively; and (b) pay to the Bank the $10,000 amendment fee.
[BALANCE OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
ATTEST: OLD DOMINION FREIGHT LINE, INC.
XXXX XxXXXXX, XX. By: J. XXX XXXX
----------------- --------------------------------------
Secretary Title: Senior Vice President - Finance
[ CORPORATE SEAL ]
ATTEST: XXXX, INC.
XXXX XxXXXXX, XX. By: J. XXX XXXX
----------------- --------------------------------------
Secretary Title: Senior Vice President - Finance
[ CORPORATE SEAL ]
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: XXXXXX XXXXX
---------------------
Title: Vice President
STATE OF NORTH CAROLINA
COUNTY OF GUILFORD
In Greensboro on the _____ day of ______________, 2002, before me
personally appeared _________________, _______________ of OLD DOMINION FREIGHT
LINE, INC., known by me to be the party executing the foregoing instrument and
he/she acknowledged said instrument by him/her so executed to be his/her free
act and deed and the free act and deed of Old Dominion Freight Line, Inc.
--------------------------------------
Notary Public
My commission expires:
-------------------------
STATE OF NORTH CAROLINA
COUNTY OF GUILFORD
In Greensboro on the _____ day of ______________, 2002, before me
personally appeared _________________, _______________ of XXXX, INC., known by
me to be the party executing the foregoing instrument and he/she acknowledged
said instrument by him/her so executed to be his/her free act and deed and the
free act and deed of XXXX, Inc.
--------------------------------------
Notary Public
My commission expires:
-------------------------
Schedule 1.1A
Letters of Credit
LOC# Beneficiary Letter of Credit
---- ----------- ----------------
S034701 GA SI Guaranty Trust $ 500,000
S039135 Utica Mutual - Xxxxxx 500,000
SO36413 Pacific Emp Ins Co. 3,800,000
SO36416 Van Liner Ins Co. 500,000
SM408316C Protective Ins Co. 4,860,000
$10,160,000
Schedule 6.9
Places of Business and
Principal Place of Business
Corporate Headquarters:
000 Xxx Xxxxxxxx Xxx
Xxxxxxxxxxx, XX 00000
See listing of terminal locations attached hereto.
Schedule 6.22A
Capitalized Leases
Lessor Description of Location Outstanding
------ -------------- -------- -----------
Leased Property Balance
--------------- -------
TransAmerica Various trailers obtained through Xxxxxx Various $49,049
Business Credit Truck Line, Inc. acquisition
Schedule 8.3
Funded Debt
Debtholder Amount
---------- ------
See Schedule 1.1A.
See Funded Debt secured by liens noted on
Schedule 8.4.
See Operating Lease noted on Schedule 6.22A.
Schedule 8.4
Permitted Liens
Secured Party Description of Property Outstanding Balance Location
------------- ----------------------- ------------------- --------
IBM Credit Corporation IBM AS/400-740 Processor; $ 623,854 Corporate
IBM AS/400-740 Processor Upgrade; 9406 SYSTEM
Office UNITS; AS/400 OPERATING SYSTEM; with
various Peripherals and other units
Bank One Various Trailers-Xxxxxx Acquisition $ 872,417 various
Total $1,496,271
