FOURTH AMENDMENT TO LOAN AGREEMENT
EXHIBIT
4.6
FOURTH AMENDMENT TO LOAN
AGREEMENT
THIS
AMENDMENT is made and entered into as of the 22nd day of
June, 2007, by and among X.X.X.
TRANSPORT, INC., an Arkansas corporation, whose chief executive office
and principal place of business is located at Xxxxxxx 000 Xxxx, X.X. Xxx
000, Xxxxxxxxx, Xxxxxxxx 00000, party of the first part, hereinafter called
"Borrower," FIRST TENNESSEE
BANK NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States, with its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, party of the second
part, hereinafter called "Bank," X.X.X. TRANSPORTATION SERVICES,
INC., a Delaware corporation, whose principal place of business and chief
executive office is located at Xxxxxxx 000 Xxxx,
X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxx 00000, party of the third part,
hereinafter called "Guarantor," CHOCTAW EXPRESS, INC., an
Oklahoma corporation, whose principal place of business and chief executive
office is located at Xxxxxxx 000 Xxxx, X.X. Xxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, party of the fourth part, hereinafter called
"Choctaw," XXXXX FREIGHT
SERVICES, INC., a Missouri corporation, whose principal place of business
and chief executive office is located at Highway 412 West, P. O. Xxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, party of the fifth part, hereinafter called "Xxxxx",
X.X.X. DEDICATED SERVICES,
INC., an Ohio corporation, whose principal place of business and chief
executive office is located at Highway 412 West, P. O. Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, party of the sixth part, hereinafter called "Dedicated",
and XXXXXX TRANSPORT
CO., INC., an Ohio corporation, whose principal place of business and
chief executive office is located at Highway 412 West, P. O. Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, party of the seventh part, hereinafter called
"Xxxxxx."
Recitals of
Fact
Pursuant
to the terms and provisions of that certain Loan Agreement, bearing date of the
26th day of July, 1994, as amended by Amendment dated June 27, 1995
("Loan Agreement"), among the Borrower, the Bank, the Guarantor and Choctaw, the
Bank committed to make loans and advances and extensions of credit to the
Borrower on a revolving credit basis, in an amount not to exceed, at any one
time outstanding, the principal sum of Ten Million Dollars ($10,000,000.00),
which amount was increased under the terms of the Second Amendment to Loan
Agreement dated July 3, 1996, among the Borrower, the Bank, the Guarantor,
Choctaw, and Xxxxx, in an amount not to exceed at any one time outstanding the
principal sum of Fifteen Million Dollars ($15,000,000.00) which amount was
increased under the terms of the Third Amendment to Loan Agreement dated April
26, 2001, among the Borrower, the Bank, the Guarantor, Choctaw, Xxxxx, Dedicated
and Xxxxxx in an amount not to exceed at any one time outstanding the principal
sum of Twenty Million Dollars ($20,000,000.00). The Borrower has
requested and the Bank has agreed to increase the Bank's commitment in an amount
not to exceed Thirty Million Dollars ($30,000,000.00) (the "Committed
Amount").
By reason
of such increased commitment, it is necessary to modify and amend the Loan
Agreement as hereinafter provided. In addition, the parties have
agreed to make certain other changes in the Loan Agreement, as heretofore
amended, all as are set forth herein.
NOW,
THEREFORE, for and in consideration of the premises, as set forth in the
Recitals of Fact, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, it is agreed by the parties as
follows:
Agreements
1. To
induce the Bank to enter into this Amendment, the Borrower, the Guarantor,
Choctaw, Xxxxxx, Dedicated and Xxxxx do hereby absolute and unconditionally,
jointly and severally, certify, represent and warrant to the Bank, and covenant
and agree with the Bank, that:
(a) All
representations and warranties made by the Borrower, Choctaw, Allen, Decker,
Dedicated or the Guarantor in the Loan Agreement, as amended hereby, in the
Security Agreement, as amended, in the Choctaw Security Agreement, as amended,
in the Xxxxx Security Agreement as amended, in the Xxxxxx Security Agreement, in
the Dedicated Security Agreement, and in all other loan documents (all of which
are herein sometimes called the "Loan Documents"), are true, correct and
complete in all material respects as of the date of this Amendment.
(b) As of
the date hereof and with the execution of this Amendment, there are no existing
events, circumstances or conditions which constitute, or would, with the giving
of notice, lapse of time, or both, constitute Events of Default.
(c) There
are no existing offsets, defenses or counterclaims to the respective obligations
of the Borrower, the Guarantor, Choctaw, Xxxxxx, Dedicated or Xxxxx as set forth
in the Note, the Security Agreement, as amended, the Choctaw Security Agreement,
as amended, the Xxxxx Security Agreement, as amended, the Xxxxxx Security
Agreement, the Dedicated Security Agreement, the Loan Agreement, as amended, or
in any other Loan Document executed by the Borrower, the Guarantor, Choctaw,
Xxxxxx, Dedicated or Xxxxx, respectively, in connection with the
Loan.
(d)
Neither the Borrower nor the Guarantor, Choctaw, Xxxxxx, Dedicated or Xxxxx has
any existing claim for damages against the Bank arising out of or related to the
Loan; and, if and to the extent (if any) that the Borrower, the Guarantor,
Choctaw, Xxxxxx, Dedicated or Xxxxx has or may have any such existing claim
(whether known or unknown), the Borrower, the Guarantor, Choctaw Xxxxxx,
Dedicated and Xxxxx do hereby forever release and discharge, in all respects,
the Bank with respect to such claim.
(e) The
Loan Documents, as amended by this Amendment and by the respective Amendments
(also of even date herewith) to the Security Agreement, the Xxxxx Security
Agreement, the Choctaw Security Agreement, the Xxxxxx Security Agreement and the
Dedicated Security Agreement, are valid, genuine, enforceable in accordance with
their respective terms, and in full force and effect.
2.
Section 2.1 is hereby modified to read as follows:
2.1 The Commitment.
Subject to the terms and conditions herein set out, the Bank agrees and commits,
from time to time, until the Termination Date, to make loan advances to the
Borrower and to issue commercial and standby letter of credit, all in an
aggregate principal amount not to exceed, at any one time outstanding the lesser
of (a) Thirty Million Dollars ($30,000,000.00); or (b) the Borrower's Borrowing
Base, as defined in Article One.
3. The
definitions of "Loan Agreement" and "Note," as set forth in Article One of
the Loan Agreement, are hereby modified and amended to read as
follows:
1.15 "Loan
Agreement" means this Loan Agreement among the Borrower, the Guarantor, the
Bank, Choctaw, Xxxxxx, Dedicated and Xxxxx, as same has been or may be amended
from time to time, with Xxxxxx and Dedicated being added as parties under
certain of the amendments.
1.18 "Note"
means the Note given to evidence the Loan, said Note being a consolidated,
amended and restated note of even date herewith and being in the principal sum
of Thirty Million Dollars ($30,000,000.00), as said Note may be modified,
renewed, amended, restated or extended, in whole or in part, from time to time;
and any other note or notes executed at any time hereafter to evidence the
Loan.
4.
Article One is further modified and amended by deleting Sections 1.25A and 1.25B
in their entirety and inserting in lieu thereof the following:
1.25 "Termination
Date" shall mean the 31st day of May, 2009, unless such date is extended
pursuant to the provisions of Section 10.12 hereof, in which event such extended
date shall be the Termination Date.
5. The
first sentence of Section 2.3(a) is hereby modified and amended to read as
follows:
All
advances with respect to the Loan shall be evidenced by the promissory note of
the Borrower, payable to the order of the Bank, in the principal amount of
Thirty Million Dollars ($30,000,000.00), in form substantially the same as the
Note attached hereto as Exhibit "2.3" (the
"Consolidated Amended and Restated Revolving Credit Note").
6. Sections 3.1,
8.1 and 8.2 of the Loan Agreement are hereby modified and amended to read as
follows:
3.1 Required
Repayments. (a) In the event that the outstanding
principal balance of the Loan shall at any time exceed the Borrowing Base, the
Borrower will, immediately upon discovery of the existence of such excess, make
a principal payment which will reduce the outstanding principal balance of the
Loan to an amount which does not exceed the Borrowing Base.
8.1 Net
Worth. Maintain at all times a Net Worth (as defined in
Article One) of not less than One Hundred Twenty-Five Million Dollars
($125,000,000.00).
8.2 Debt to Equity
Ratio. Maintain at all times a ratio of total liabilities to
Net Worth (as defined in Article One) of not more than 2.0 to 1.0.
7.
Sections 8.3, 8.5 and 8.6 of the Loan Agreement are hereby deleted in their
entirety.
8.
Section 10.12 is hereby modified to read as follows:
10.12(a) Extensions of Termination
Date; Continuing Security. (i) The specific
Termination Date mentioned in Article One may, in the sole and unrestricted
discretion of the Bank, by written notice to the Borrower, be extended one or
more times to a subsequent date or dates unless, not later than thirty (30) days
prior to the specific Termination Date mentioned in Article One, or, in the
event of the extension of such Termination Date, not later than thirty (30) days
prior to any such then effective extended Termination Date, or the Borrower
shall notify the Bank in writing that this Agreement shall not be further
extended. The Bank shall be under no obligation whatsoever to extend
the initial Termination Date, or to further extend any subsequent Termination
Date to which the Bank has previously agreed in writing, any extensions of the
initial or any subsequent Termination Date being in the sole and unrestricted
judgment and discretion of the Bank.
(b) Upon
the specific Termination Date, as applicable so fixed in Article One, or in the
event of the extension of this Agreement to a subsequent Termination Date (when
no effective extension is in force), the Loan, or portion thereof required to be
prepaid pursuant to Section 3.1 hereof and all other extensions of credit
(unless sooner declared to be due and payable by the Bank pursuant to the
provisions hereof) shall become due and payable for all
purposes. Until all such indebtednesses, liabilities and obligations
secured by the Security Agreement, the Choctaw Security Agreement, the Xxxxx
Security Agreement, the Dedicated Security Agreement and the Xxxxxx Security
Agreement are satisfied in full, such termination shall not affect the security
interest granted to Bank pursuant to the Security Agreement, the Choctaw
Security Agreement, the Xxxxx Security Agreement, the Dedicated Security
Agreement and the Xxxxxx Security Agreement, nor the duties, covenants, and
obligations of the Borrower or Guarantor therein and in this Agreement; and all
of such duties, covenants and obligations shall remain in full force and effect
until the Loan and all other indebtednesses, liabilities and obligations of the
Borrower to the Bank shall have been fully paid and satisfied in all
respects.
9. The
Loan Agreement is further modified and amended by deleting Exhibit "2.3",
Exhibit "2.3(a)" and Exhibit "2.3(b)", and inserting in lieu thereof a new
Exhibit "2.3" in form and substance substantially the same as Exhibit "2.3" attached to this
Amendment.
10. (a) Except
as the context may otherwise require, throughout the Loan Agreement, the phrase
"Borrower or Guarantor" or "Borrower, Guarantor, Choctaw or Xxxxx" (or words of
similar import) is changed to "Borrower, Guarantor, Choctaw, Xxxxxx, Dedicated
or Xxxxx"; and the phrase "Borrower and Guarantor" or "Borrower, Guarantor,
Choctaw and Xxxxx" (or words of similar import) is changed to "Borrower,
Guarantor, Choctaw, Xxxxxx, Dedicated and Xxxxx."
(b)
All terms and provisions of the Loan Agreement which are inconsistent with the
provisions of this Amendment are hereby modified and amended to conform hereto;
and, as so modified and amended, the Loan Agreement is hereby ratified, approved
and confirmed. Except as otherwise may be expressly provided herein,
this Amendment shall become effective as of the date set forth in the initial
paragraph hereof.
11. All
references in all Loan Documents to the Loan Agreement shall, except as the
context may otherwise require, be deemed to constitute references to the Loan
Agreement as heretofore amended and as further amended hereby.
12. The
Guarantor does further (a) consent to and approve of all of the terms and
provisions of this Amendment, the Fourth Amendment to the Security Agreement,
the Third Amendment to the Choctaw Security Agreement, the Second Amendment to
the Xxxxx Security Agreement, the First Amendment to the Xxxxxx Security
Agreement, and the First Amendment to the Dedicated Security Agreement all of
which are of even date herewith, insofar as its rights are or may be affected
hereby, and (b) acknowledge the continued effectiveness of its Amended and
Restated Guaranty if even date herewith guaranteeing the principal
sum of Thirty Million Dollars ($30,000,000.00), plus interest and expenses] in
accordance with the terms thereof.
IN
WITNESS WHEREOF, Borrower, Guarantor, Choctaw, Allen, Decker, Dedicated and Bank
have caused this Amendment to be executed by their respective officers, duly
authorized so to do, on this the day and year first above written.
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ATTEST:
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X.X.X.
TRANSPORT, INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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BORROWER
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ATTEST:
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X.X.X.
TRANSPORTATION SERVICES, INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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GUARANTOR
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ATTEST:
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CHOCTAW
EXPRESS, INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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CHOCTAW
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ATTEST:
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XXXXX
TRANSPORTATION SERVICES, INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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XXXXX
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ATTEST:
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X.X.X.
DEDICATED SERVICES, INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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DEDICATED
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ATTEST:
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XXXXXX
TRANSPORT CO., INC.
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/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Secretary
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President
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XXXXXX
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FIRST
TENNESSEE BANK NATIONAL
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ASSOCIATION
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By:
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Title:
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BANK
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EXHIBIT
"2.3"
TO LOAN
AGREEMENT
CONSOLIDATED AMENDED AND
RESTATED REVOLVING CREDIT NOTE
$30,000,000.00 Memphis,
Tennessee
June
22, 2007
ON OR
BEFORE May 31, 2009 (the "Termination Date"), the undersigned, X.X.X. TRANSPORT, INC.
("Maker"), promises to pay to the order of FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association having its principal place of
business in Memphis, Tennessee (the "Bank"), the principal sum of THIRTY MILLION
DOLLARS ($30,000,000.00), value received, together with interest from date until
paid, upon disbursed and unpaid principal balances, at the Contract Rate
hereinafter specified, said interest being payable monthly on the first day of
each month hereafter, commencing on the 1st day of July, 2007, with the final
installment of interest being due and payable concurrently on the same date that
the principal balance is due hereunder.
The
Termination Date may be extended one or more times pursuant to the provisions of
that certain Loan Agreement dated the 26th day of
July, 1994, as amended by amendments dated June 27, 1995, July 3,
1996, April 26, 2001, and of even date herewith, among Maker, Bank and certain
guarantors and other parties therein mentioned and described (as same has been
and may hereafter be amended, the "Loan Agreement"), and if so extended, such
extended date shall thereupon constitute the Termination Date.
The
interest rate on this Note is subject to change from time to time based on
changes in an independent index (the "Index") which is the LIBOR Rate (as
hereinafter defined) adjusted and determined, 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" (the
"Index") 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,
at its sole discretion, choose a substitute source for the LIBOR Rate, which
LIBOR Rate plus the Margin (hereinafter defined) 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 Index is not necessarily the lowest rate charged by
Bank on its loans. If the Index becomes unavailable during the term
of this loan, Bank may designate a substitute index after notice to
Maker. Bank will tell Maker the current Index rate upon Maker's
request. The interest rate change will not occur more often than each
month. Maker understands that Bank may make loans based on other
rates as well. The Index is currently five and thirty two hundredths
percent (5.32%) per annum. The Index plus a margin of one and
one-quarter percent (1.25%) (the "Margin") results in an initial interest rate
of six and fifty seven hundredths percent
(6.57%). NOTICE: Under no circumstances will the
interest rate on the Note be more than the maximum rate allowed by applicable
law.
The
annual interest rate for this Note is computed on a 365/360 basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding.
Notwithstanding
the foregoing, upon the occurrence of an Event of Default (as defined in the
Loan Agreement), the Bank, at its option, may charge, and the Maker agrees to
pay, interest on disbursed and unpaid principal balances at the default rate
(the "Default Rate") equal to a rate per annum equal to the lesser of
(a) the Maximum Rate or (b) (i) the base commercial rate of interest
(the "Base Rate") established from time to time by the Bank plus (ii) three
percent (3%).
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 the
lesser of the Maximum Rate or the base commercial rate of interest ("Base Rate")
established from time to time by the Bank. Each change in the Base
Rate shall become effective, without notice to the undersigned, on the same date
that the Base Rate changes. The undersigned hereby agrees promptly to
pay the Bank, upon demand, any costs incurred by the Bank in making any
conversion in accordance with this paragraph, including any interest or fees
payable by the Bank to lenders of funds obtained by it in order to maintain its
LIBOR Rate loans.
Any
amounts not paid when due hereunder (whether by reason of acceleration,
maturity, or otherwise) shall bear interest after maturity at the lesser of (a)
twenty percent (20%) per annum, or (b) the maximum effective variable contract
rate for which it is lawful for the holder hereof to charge.
For
purposes hereof, the following terms shall have the following meanings unless
the context otherwise requires:
"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.
In the
event that the foregoing provisions should be construed by a court of competent
jurisdiction not to constitute a valid, enforceable designation of a rate of
interest or method of determining same, the indebtedness hereby evidenced shall
bear interest at the maximum effective contract rate which may be charged by the
Bank under applicable statutes and laws from time to time in
effect.
For any
payment which is not made within ten (10) days of the due date for such payment,
the Maker shall pay a late fee. The late fee shall equal five percent
(5%) of the unpaid portion of the past-due payment.
This Note
is secured by one or more Security Agreement ("Security Agreements") dated
July 26, 1994, as amended, covering Maker's Accounts Receivable, and other
collateral, as is more particularly described in said Security Agreement(s), and
may now or hereafter be secured by other mortgages, trust deeds, assignments,
security agreements, or other instruments of pledge or hypothecation, including
a Security Agreement ("Choctaw Security Agreement"), dated June 27, 1995,
as amended, executed by Choctaw Express, Inc., an Oklahoma corporation in favor
of the Bank, a Security Agreement ("Xxxxx Security Agreement"), dated
July 3, 1996 herewith, executed by Xxxxx Freight Services, Inc., a Missouri
corporation, in favor of the Bank, a Security Agreement ("Dedicated Security
Agreement") dated April 26, 2001, as amended, executed by X.X.X. Dedicated
Services, Inc., an Ohio corporation, in favor of the Bank, and a Security
Agreement ("Xxxxxx Security Agreement") dated April 26, 2001, as amended,
executed by Xxxxxx Transport Co., Inc., an Ohio corporation, in favor of the
Bank.
This Note
is payable at the offices of Bank, 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx
00000, 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.
On the
Termination Date, or, at the option of the Bank (a) if the undersigned
shall fail to make payment of any installment of interest, as above provided, or
(b) upon any default in the terms and provisions of any of the Security
Agreement(s), the Choctaw Security Agreement, the Xxxxx Security Agreement, the
Dedicated Security Agreement or the Xxxxxx Security Agreement or any trust deed,
mortgage, or other instrument of pledge or hypothecation which now or hereafter
secures the payment of the indebtedness evidenced hereby, or (c) upon the
occurrence of any Event of Default as that term is defined in the Loan
Agreement, or (d) upon the death or dissolution of the Maker or any
endorser or guarantor or (if the Maker, or any endorser or guarantor is a
partnership) the death or dissolution of any general partner thereof, or
(e) upon default in the payment when due of any other indebtednesses,
liabilities, or obligations of the Maker to the Bank, whether now existing or
hereafter created or arising, the entire unpaid balance of the indebtedness
hereby evidenced, together with all interest then accrued, shall at once become
due and payable for all purposes.
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. These include, but are not
limited to, the Bank's reasonable attorney's fees and legal expenses, whether or
not there is a lawsuit, including attorney's fees for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction) and
appeals.
The
Bank and the Maker hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Bank or Maker against the
other.
To the
extent permitted by applicable law, the Bank reserves a right of setoff in all
the Maker's accounts with the Bank (whether checking, savings, or some other
account). This includes all accounts the Maker may open in the
future. However, this does not include any XXX or Xxxxx accounts, or
any trust accounts for which setoff would be prohibited by law. The
Maker authorizes the Bank, to the extent permitted by applicable law, to charge
or setoff all sums owing on the indebtedness against any and all such accounts,
and, at the Bank's option, to administratively freeze all such accounts to allow
the Bank to protect the Bank's charge and setoff rights provided in this
paragraph.
To help
the government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each business entity that opens an
account. What this means to Maker: When Maker opens an
account, the Bank will ask for Federal Tax Identification Number, physical
street address, full legal name of the Maker and other information that will
allow the Bank to identify Maker. The Bank may also ask Maker to
provide copies of certain documents that will aid in confirming this
information.
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, and without notice to them and without affecting their
liability thereon.
It is the
intention of the Bank and the Maker to comply strictly with all applicable usury
laws; and, accordingly, in no event and upon no contingency shall the holder
hereof 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 evidenced hereby; 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. All interest
paid or agreed to be paid by the Maker shall, to the maximum extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal, so that the interest hereon for
such full period shall not exceed the maximum amount permitted by applicable
law. 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 lawful contract 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 statute) 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 effective rate permitted by such applicable law, from time to
time in effect.
This Note
evidences a straight line of credit. Once the total amount of
principal has been advanced, the Maker is not entitled to further loan
advances. Advances under this Note may be requested either orally or
in writing by the Maker or by an authorized person. The Bank may, but
need not, require that all oral requests be confirmed in writing. All
communications, instructions, or directions by telephone or otherwise to the
Bank are to be directed to the Bank at the Bank's address. The Maker
agrees to be liable for all sums either: (a) advanced in accordance
with the instructions of an authorized person or (b) credited to any of the
Maker's accounts with the Bank. The unpaid principal balance owing on
this Note at any time may be evidenced by endorsements on this Note or by the
Bank's internal records, including daily computer print-outs. The
Bank will have no obligation to advance funds under this Note if: (a) the
Maker or any guarantor is in default under the terms of this Notes or any
agreement that the Maker or any guarantor has with the Bank, including any
agreement made in connection with the signing of this Note; (b) the Maker or any
guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with the Bank; or (d) the Maker has
applied funds provided pursuant to this Note for purposes other than those
authorized by the Bank.
This Note
constitutes a consolidation, increase, renewal and extension of that certain
promissory note dated June 27, 1995, in the principal amount of Two Million
Five Hundred Thousand Dollars ($2,500,000.00), that certain promissory note
dated July 3, 1996, in the principal amount of Five Million Dollars
($5,000,000.00), that certain consolidated, amended and restated promissory note
dated April 26, 2001, in the principal amount of Seven Million Five Hundred
Thousand Dollars ($7,500,000.00), that certain promissory note dated
April 26, 2001, in the principal amount of Five Million Dollars
($5,000,000.00), and that amended and restated revolving credit note dated
April 26, 2001, in the principal amount of Seven Million Five Hundred
Thousand Dollars ($7,500,000.00) (the "Prior Notes"), being payable to the order
of the Bank, and being executed by the Maker. The indebtedness
heretofore evidenced by such Prior Notes is not discharged or cancelled by the
execution hereof. From and after the date hereof, said indebtedness
evidenced by the Prior Notes [and the additional sum of Ten Million Dollars
($10,000,000.00)] shall be evidenced by, and shall be payable in accordance
with, the provisions of this Note; and the collateral security which secured the
indebtedness heretofore evidenced by said Prior Notes shall continue to secure
the indebtedness evidenced hereby.
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ATTEST:
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X.X.X. TRANSPORT,
INC.
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/s/ Xxxxx X.
Xxxxxxx
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/s/ Xxxxxx X.
Xxxxxx
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Secretary
President
