EXHIBIT 10.1
AMENDMENT ONE TO AGENTED REVOLVING
CREDIT AGREEMENT
This AMENDMENT ONE TO AGENTED REVOLVING CREDIT AGREEMENT dated as of
the 14th day of November, 2003, among SCS TRANSPORTATION, INC., a Delaware
corporation (the "Borrower"), and BANK OF OKLAHOMA, N.A., U.S. BANK NATIONAL
ASSOCIATION, BANK ONE, NA, and XXXXXX TRUST AND SAVINGS BANK (individually a
"Bank" and collectively the "Banks"), and BANK OF OKLAHOMA, N.A., as agent for
the Banks hereunder (in such capacity the "Agent").
RECITALS
A. Reference is made to the Agented Revolving Credit Agreement
dated September 20, 2002 (the "Credit Agreement"). Among the Borrower and the
Banks, pursuant to which the Banks established a $50,000,000 Revolving Credit
Commitment in favor of Borrower. Terms used herein shall have the meaning
ascribed in the Credit Agreement.
B. Borrower has requested that the Banks increase the amount of
the Revolving Credit Commitment from the aggregate amount of $50,000,000 to
$75,000,000; and the Banks have agreed to accommodate such request pursuant to
the terms and conditions set forth below.
AGREEMENT
For valuable consideration received, the parties hereto agree to the
following:
1. Amendments to Credit Agreement. The Credit Agreement is
amended as follows.
1.1. Section 1.01(6) (Borrowing Base) is hereby amended to
reflect that the reference to "eighty percent (80%)" shall now mean and
read "eighty-five percent (85%)". In addition, the Borrowing Base
Certificate (attached to the Credit Agreement as Schedule "1.01(7)") is
hereby amended to reflect that the reference to "80%" in line 1.d.
shall now mean and read "85%".
1.2. Section 1.01(68)(i) is hereby deleted in its
entirety.
1.3. Section 1.01(75) (Revolving Credit Commitment) is
hereby amended to evidence that any reference to the amount
"$50,000,000" shall now mean and read "$75,000,000".
1.4. Section 1.01(85) (Termination Date) shall now mean
and read "September 20, 2006".
1.5. Section 2.01 (Revolving Credit) is hereby amended to
evidence that from and after the date hereof, each Bank's Commitment is
increased to the amount set opposite each Bank's name below:
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"Name of Bank Amount
------------- ------
Bank of Oklahoma, N.A. $21,000,000
U.S. Bank National Association $18,000,000
Bank One, NA $18,000,000
Xxxxxx Trust and Savings Bank $18,000,000
Total $75,000,000"
1.6. The following is hereby deleted from Section 2.02(1)
(Letters of Credit - Issuance): "(i) the aggregate undrawn stated
amount under all Letters of Credit outstanding at such time shall not
exceed $35,000,000 and (ii)".
1.7. The table of Section 2.10 (Letter of Credit Fees) is
hereby deleted and replaced with the following:
FUNDED DEBT TO EBITDA RATIO
(as determined using Borrower's most recent financial
statements [and, in the case of the year-end financial statements,
audit report] for the fiscal quarter then ended) LETTER OF CREDIT FEE
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Greater than or equal to 2.25 to 1 2.00%
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Greater than or equal to 1.75 to 1 but less than 2.25 to 1 1.75%
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Greater than or equal to 1.25 to 1 but less than 1.75 to 1 1.50%
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Less than 1.25 to 1 1.25%
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The applicable interest rate set forth above shall be effective
immediately, notwithstanding the fact that Borrower's third quarter 2003
financial statements have been received by Agent prior to the date of this
Amendment.
1.8. The table of Section 2.08 (Interest) is hereby
deleted and replaced with the following:
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FUNDED DEBT TO EBITDA RATIO ADJUSTED LIBOR RATE ADJUSTED PRIME RATE
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Greater than or equal to 2.25 to 1 LIBOR Rate plus 2.00% Prime Rate plus .25%
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Greater than or equal to 1.75 to 1 but less than 2.25 to 1 LIBOR Rate plus 1.75% Prime Rate
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Greater than or equal to 1.25 to 1 but less than 1.75 to 1 LIBOR Rate plus 1.50% Prime Rate
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Less than 1.25 to 1 LIBOR Rate plus 1.25% Prime Rate
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The applicable interest rate set forth above shall be effective
immediately, notwithstanding the fact that Borrower's third quarter 2003
financial statements have been received by Agent prior to the date of this
Amendment.
1.9. Section 2.10 (Unused Portion Fee) is hereby deleted
and replaced with the following:
"2.10 UNUSED PORTION FEE. The Borrower agrees to pay to the
Agent for the account of each Bank an Unused Portion Fee on
the average daily unused portion of such Bank's Commitment
from the date of this Agreement until the Termination Date at
a rate to be calculated, on any date of determination thereof,
as follows:
FUNDED DEBT TO EBITDA RATIO
(as determined using Borrower's most recent financial statements
[and, in the case of the year-end financial statements, audit report] for UNUSED PORTION
the fiscal quarter then ended) FEE
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Greater than or equal to 2.25 to 1 .375%
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Greater than or equal to 1.75 to 1 but less than 2.25 to 1 .375%
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Greater than or equal to 1.25 to 1 but less than 1.75 to 1 .30%
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Less than 1.25 to 1 .30%
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Such Unused Portion Fee shall be payable on the first (1st)
day of each quarter during the term of such Bank's Commitment,
ending on the Termination Date. Upon receipt of any Unused
Portion Fees, the Agent will promptly thereafter cause to be
distributed such payments to the Banks in accordance with each
Bank's Pro Rata Share of such payments."
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2. Conditions Precedent. The obligations of the Banks to perform
under the Credit Agreement, as amended hereby, are subject to the satisfaction
of the following.
2.1. Notes. The Amended Notes, as set forth on Schedule
"2.1" hereto, shall be executed and delivered to the Agent for
distribution.
2.2. Commitment Fee. A fee on the increased amount of the
Revolving Credit Commitment in the amount of $50,000 shall be paid to
the Agent, upon receipt of which Agent agrees to distribute to each
Bank its Pro Rata Share of such fee.
2.3. Corporate Action by Borrower. Certified (as of the
date of this Amendment), copies of all corporate action taken by
Borrower, including resolutions of its Board of Directors authorizing
the execution, delivery, and performance of this Amendment and all
documents executed and delivered in connection herewith.
2.4. Incumbency and Signature Certificate of Borrower. A
certificate (dated as of the date of this Amendment) of the secretary
of Borrower certifying the names and true signatures of the officers of
the Borrower authorized to sign this Amendment and all related
documents, set forth on Schedule "2.4" hereto.
2.5. Corporate Action by Guarantor. Certified (as of the
date of this Amendment), copies of all corporate action taken by each
Guarantor, including resolutions of its Board of Directors authorizing
the execution, delivery, and performance of this Amendment and all
documents executed and delivered in connection herewith.
2.6. Incumbency and Signature Certificate of Guarantor. A
certificate (dated as of the date of this Amendment) of the secretary
of each Guarantor certifying the names and true signatures of the
officers of each Guarantor authorized to sign this Amendment and all
related documents, set forth on Schedule "2.6(a)" and "2.6(b)" hereto.
2.7. Opinion of Borrower's Counsel. An opinion from
Borrower's legal counsel, substantially in the form of Schedule "2.7"
attached hereto.
2.8. Opinion of Guarantor's Counsel. An opinion from each
Guarantor's legal counsel, substantially in the form of Schedule
"2.8(a)" and "2.8(b)" attached hereto.
2.9. Chattel Checks. The current Chattel Checks shall be
delivered to Agent, evidencing no conflicting interests to those
granted to Agent.
2.10. Amendments to Guaranty Agreement. The Amendments to
Guaranty Agreement, as set forth on Schedule "2.10(a)" and "2.10(b)",
shall be executed by each Guarantor and delivered to Agent.
2.11. Default. No Default or Event of Default has occurred
and is continuing, or will result from the execution and delivery of
this Amendment.
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3. Representations and Warranties. The Borrower and each of the
Guarantors, respectively, hereby ratify and confirm all representations and
warranties set forth in the Credit Agreement, and all other loan documents
executed in connection therewith.
4. Ratification. Borrower hereby ratifies and confirms the Credit
Agreement, and all instruments, documents, and agreements executed by and in
connection therewith.
5. Amendment of Guaranty and Ratification of Guarantors. Each
Guarantor, Xxxx Motor Freight Line, Inc. and Jevic Transportation, Inc., by
execution hereof, hereby acknowledges and agrees that its Guaranty Agreement is
hereby amended to evidence that all references therein to "$50,000,000" shall
now mean and read "$75,000,000". In addition, each Guarantor, hereby ratifies
and confirms its Guaranty Agreement, and agrees that it remains in full force
and effect, and that the guaranteed obligations additionally include those set
forth under the Amended Notes.
6. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of Oklahoma.
7. Multiple Counterparts. This Amendment may be executed in any
number of counterparts, and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
8. Costs, Expenses and Fees. Borrower agrees to pay all costs,
expenses and fees incurred by Agent in connection herewith, including without
limitation the reasonable attorney fees of Riggs, Abney, Neal, Turpen, Orbison
and Xxxxx.
[Signature Pages Follow]
5
SCS TRANSPORTATION, INC., a
Delaware corporation
By /s/ Xxxxx X. Xxxxxxxxxxxxx
----------------------------------
Name Xxxxx X. Xxxxxxxxxxxxx
Title V.P.-Finance, CFO & Secretary
6
BANK OF OKLAHOMA, N.A., as a
Bank and as Agent
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice
President
Principal Office and Lending Office
for Prime and LIBOR Loans:
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
7
U.S. BANK NATIONAL
ASSOCIATION
By /s/ Xxxx X. Xxxxx
----------------------------------
Name Xxxx X. Xxxxx
Title Vice President
Principal Office and Lending Office
for Prime Loans and LIBOR Loans:
0000 Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
8
BANK ONE, NA
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name Xxxxx X. Xxxxxx
Title Vice President
Principal Office and Lending Office
for Prime Loans and LIBOR Loans:
000 Xxxxxxxx Xxxxxx, XX0-0000
Xxxxxxxxxxxx, Xxxxxxx 00000
9
XXXXXX TRUST AND SAVINGS
BANK
By /s/ Xxxxxx X. XxXxxxx
----------------------------------
Name Xxxxxx X. XxXxxxx
Title Managing Director
Principal Office and Lending Office
for Prime Loans and LIBOR Loans:
000 Xxxx Xxxxxx, 00-X
Xxxxxxx, Xxxxxxxx 00000
10
INSOFAR AS SECTION 5 OF THIS AGREEMENT PURPORTS TO BIND THE GUARANTOR,
THE GUARANTOR, BY EXECUTION BELOW, AGREES TO BE BOUND THEREBY.
XXXX MOTOR FREIGHT LINE, INC.
By /s/ Xxxxxxx X. O'Dell
----------------------------------
Name Xxxxxxx X. O'Dell
Title President
11
INSOFAR AS SECTION 5 OF THIS AGREEMENT PURPORTS TO BIND THE GUARANTOR,
THE GUARANTOR, BY EXECUTION BELOW, AGREES TO BE BOUND THEREBY.
JEVIC TRANSPORTATION, INC.
By /s/ Xxxx X. Xxxxxxx
----------------------------------
Name Xxxx X. Xxxxxxx
Title President & CEO
12
SCHEDULE 2.1
AMENDED NOTE
$21,000,000 November 14, 2003
Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, SCS TRANSPORTATION, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order of
BANK OF OKLAHOMA, N.A. (the "Bank") to BANK OF OKLAHOMA, N.A., as Agent, at the
Agent's Office located at Bank of Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx, Xxxxxxxx
00000, for the account of the applicable Lending Office of the Bank, in lawful
money of the United States and in immediately available funds, the principal
amount of TWENTY-ONE MILLION AND NO/100 DOLLARS ($21,000,000) or the aggregate
unpaid principal amount of all Loans made to the Borrower by the Bank pursuant
to the Agented Revolving Credit Agreement (as amended, the "Credit Agreement")
between Borrower, Bank, and certain other parties, dated September 20, 2002, and
amended of even date herewith, whichever is less, on the Termination Date, or
such earlier date as may be required pursuant to the terms of the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount of this Note and on any past due interest, at said office, on the dates
and at the rates set forth in Article II of the Credit Agreement. All or any
portion of the principal amount of this Note may be prepaid or required to be
prepaid as provided in the Credit Agreement.
The Bank is hereby authorized by the Borrower to endorse on the
schedule attached to the Note held by it the amount and type of each Revolving
Credit Loan and each renewal, conversion, and payment of principal amount
received by the Bank for the account of the applicable Lending Office on account
of its Revolving Credit Loans, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Revolving
Credit Loans made by the Bank; provided, however, that the failure to make such
notation with respect to any Revolving Credit Loan or renewal, conversion, or
payment shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have their defined meanings when used herein. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
This Note shall be governed by laws of the State of Oklahoma provided
that as to the maximum rate of interest which may be charged or collected, if
the laws applicable to the Bank permit it to charge or collect a higher rate
than the laws of the State of Oklahoma, then such laws applicable to the Bank
shall apply to the Bank under this Note.
This Note constitutes an extension and change in form of, and replaces
and supercedes, the $14,000,000 Promissory Note between Borrower and Bank dated
September 20, 2002.
SCS TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: VP-Finance, CFO & Secretary
13
SCHEDULE TO NOTE
Date Made, Amount of Principal
Renewed, Renewed,
Converted, Type of Amount Converted, Unpaid Principal Name of Person
or Paid Loan of Loan or Paid Balance of Note Making Notation
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AMENDED NOTE
$18,000,000 November 14, 2003
Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, SCS TRANSPORTATION, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order of
BANK ONE, N.A. (the "Bank") to BANK OF OKLAHOMA, N.A., as Agent, at the Agent's
Office located at Bank of Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx, Xxxxxxxx 00000,
for the account of the applicable Lending Office of the Bank, in lawful money of
the United States and in immediately available funds, the principal amount of
EIGHTEEN MILLION AND NO/100 DOLLARS ($18,000,000) or the aggregate unpaid
principal amount of all Loans made to the Borrower by the Bank pursuant to the
Agented Revolving Credit Agreement (as amended, the "Credit Agreement") between
Borrower, Bank, and certain other parties, dated September 20, 2002, and amended
of even date herewith, whichever is less, on the Termination Date, or such
earlier date as may be required pursuant to the terms of the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount of this
Note and on any past due interest, at said office, on the dates and at the rates
set forth in Article II of the Credit Agreement. All or any portion of the
principal amount of this Note may be prepaid or required to be prepaid as
provided in the Credit Agreement.
The Bank is hereby authorized by the Borrower to endorse on the
schedule attached to the Note held by it the amount and type of each Revolving
Credit Loan and each renewal, conversion, and payment of principal amount
received by the Bank for the account of the applicable Lending Office on account
of its Revolving Credit Loans, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Revolving
Credit Loans made by the Bank; provided, however, that the failure to make such
notation with respect to any Revolving Credit Loan or renewal, conversion, or
payment shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have their defined meanings when used herein. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
This Note shall be governed by laws of the State of Oklahoma provided
that as to the maximum rate of interest which may be charged or collected, if
the laws applicable to the Bank permit it to charge or collect a higher rate
than the laws of the State of Oklahoma, then such laws applicable to the Bank
shall apply to the Bank under this Note.
This Note constitutes an extension and change in form of, and replaces
and supercedes, the $12,000,000 Promissory Note between Borrower and Bank dated
September 20, 2002.
SCS TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: VP-Finance, CFO & Secretary
15
SCHEDULE TO NOTE
Date Made, Amount of Principal
Renewed, Renewed,
Converted, Type of Amount Converted, Unpaid Principal Name of Person
or Paid Loan of Loan or Paid Balance of Note Making Notation
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16
AMENDED NOTE
$18,000,000 November 14, 2003
Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, SCS TRANSPORTATION, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order of
XXXXXX BANK (the "Bank") to BANK OF OKLAHOMA, N.A., as Agent, at the Agent's
Office located at Bank of Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx, Xxxxxxxx 00000,
for the account of the applicable Lending Office of the Bank, in lawful money of
the United States and in immediately available funds, the principal amount of
EIGHTEEN MILLION AND NO/100 DOLLARS ($18,000,000) or the aggregate unpaid
principal amount of all Loans made to the Borrower by the Bank pursuant to the
Agented Revolving Credit Agreement (as amended, the "Credit Agreement") between
Borrower, Bank, and certain other parties, dated September 20, 2002, and amended
of even date herewith, whichever is less, on the Termination Date, or such
earlier date as may be required pursuant to the terms of the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount of this
Note and on any past due interest, at said office, on the dates and at the rates
set forth in Article II of the Credit Agreement. All or any portion of the
principal amount of this Note may be prepaid or required to be prepaid as
provided in the Credit Agreement.
The Bank is hereby authorized by the Borrower to endorse on the
schedule attached to the Note held by it the amount and type of each Revolving
Credit Loan and each renewal, conversion, and payment of principal amount
received by the Bank for the account of the applicable Lending Office on account
of its Revolving Credit Loans, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Revolving
Credit Loans made by the Bank; provided, however, that the failure to make such
notation with respect to any Revolving Credit Loan or renewal, conversion, or
payment shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have their defined meanings when used herein. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
This Note shall be governed by laws of the State of Oklahoma provided
that as to the maximum rate of interest which may be charged or collected, if
the laws applicable to the Bank permit it to charge or collect a higher rate
than the laws of the State of Oklahoma, then such laws applicable to the Bank
shall apply to the Bank under this Note.
This Note constitutes an extension and change in form of, and replaces
and supercedes, the $12,000,000 Promissory Note between Borrower and Bank dated
September 20, 2002.
SCS TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: VP-Finance, CFO & Secretary
17
SCHEDULE TO NOTE
Date Made, Amount of Principal
Renewed, Renewed,
Converted, Type of Amount Converted, Unpaid Principal Name of Person
or Paid Loan of Loan or Paid Balance of Note Making Notation
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AMENDED NOTE
$18,000,000 November 14, 2003
Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, SCS TRANSPORTATION, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order of
U.S. BANK NATIONAL ASSOCIATION (the "Bank") to BANK OF OKLAHOMA, N.A., as Agent,
at the Agent's Office located at Bank of Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx,
Xxxxxxxx 00000, for the account of the applicable Lending Office of the Bank, in
lawful money of the United States and in immediately available funds, the
principal amount of EIGHTEEN MILLION AND NO/100 DOLLARS ($18,000,000) or the
aggregate unpaid principal amount of all Loans made to the Borrower by the Bank
pursuant to the Agented Revolving Credit Agreement (as amended, the "Credit
Agreement") between Borrower, Bank, and certain other parties, dated September
20, 2002, and amended of even date herewith, whichever is less, on the
Termination Date, or such earlier date as may be required pursuant to the terms
of the Credit Agreement, and to pay interest from the date hereof on the unpaid
principal amount of this Note and on any past due interest, at said office, on
the dates and at the rates set forth in Article II of the Credit Agreement. All
or any portion of the principal amount of this Note may be prepaid or required
to be prepaid as provided in the Credit Agreement.
The Bank is hereby authorized by the Borrower to endorse on the
schedule attached to the Note held by it the amount and type of each Revolving
Credit Loan and each renewal, conversion, and payment of principal amount
received by the Bank for the account of the applicable Lending Office on account
of its Revolving Credit Loans, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Revolving
Credit Loans made by the Bank; provided, however, that the failure to make such
notation with respect to any Revolving Credit Loan or renewal, conversion, or
payment shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have their defined meanings when used herein. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
This Note shall be governed by laws of the State of Oklahoma provided
that as to the maximum rate of interest which may be charged or collected, if
the laws applicable to the Bank permit it to charge or collect a higher rate
than the laws of the State of Oklahoma, then such laws applicable to the Bank
shall apply to the Bank under this Note.
This Note constitutes an extension and change in form of, and replaces
and supercedes, the $12,000,000 Promissory Note between Borrower and Bank dated
September 20, 2002.
SCS TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: VP-Finance, CFO & Secretary
19
SCHEDULE TO NOTE
Date Made, Amount of Principal
Renewed, Renewed,
Converted, Type of Amount Converted, Unpaid Principal Name of Person
or Paid Loan of Loan or Paid Balance of Note Making Notation
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SCHEDULE 2.4
CERTIFICATE OF THE
SECRETARY
OF
SCS TRANSPORTATION, INC.
On this day the undersigned, Xxxxx X. Xxxxxxxxxxxxx, as the Secretary of SCS
Transportation, Inc., a Delaware corporation (the "COMPANY"), for purposes of
inducing agent and the Banks (each defined below) to enter into Amendment One to
Agented Revolving Credit Agreement and all related documents (collectively, the
"AMENDMENT") which amends that certain Agented Revolving Credit Agreement dated
September 20, 2002, among the Company and Bank of Oklahoma, N.A. as an agent for
U.S. Bank National Association, Bank One, N.A., and Xxxxxx Trust and Savings
Bank and itself (collectively, the "BANKS"), pursuant to Section 2.3 of the
Amendment, certifies that:
1. Attached hereto as Schedule 1 is a full, true and correct copy of
the resolutions duly adopted by the directors of the Company at a
duly convened meeting of all the directors of the Company on
October 24, 2003. Said resolutions have not been amended or
otherwise modified and remain in full force and effect, and the
directors have, and at the time of the adoption of said
resolutions had, full power and lawful authority to adopt said
resolutions and to confer the powers thereby granted to the
authorized persons therein named, who have full power and lawful
authority to exercise the same.
2. The following persons are, on the date hereof, the duly elected,
qualified and acting officers of the Company holding the offices
set forth opposite their respective names and for whom their
respective signatures are set forth opposite their respective
names, are authorized to execute, deliver and perform the
Amendment and all other documents connected therewith:
Name Office Signature
X.X. Xxxxxxxxx, III President /s/ X.X. Xxxxxxxxx, III
-----------------------
Xxxxx X. Xxxxxxxxxxxxx Secretary /s/ Xxxxx X. Xxxxxxxxxxxxx
--------------------------
IN WITNESS WHEREOF, this Certificate has been duly executed as
of November 14, 2003.
SCS TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxxxxxxx,
Secretary
SCHEDULE 2.6(a)
STATEMENT OF UNANIMOUS CONSENT
TO ACTION TAKEN IN LIEU OF A
SPECIAL MEETING OF THE BOARD OF DIRECTORS
OF
XXXX MOTOR FREIGHT LINE, INC.
In lieu of a special meeting of the board of directors of XXXX
MOTOR FREIGHT LINE, INC., a Louisiana corporation (the "CORPORATION"), the
undersigned, being all the directors of said Corporation entitled to vote on the
resolutions set forth below, do hereby consent to the adoption of, and do hereby
adopt, the following resolutions and declare them to be in full force and effect
as if they had been duly adopted at a meeting of the directors of the
Corporation, duly called, noticed and held.
GUARANTY OF AGENTED REVOLVING CREDIT AGREEMENT
WHEREAS, the Board of Directors of the Corporation having
previously executed a guaranty agreement guarantying the obligations of SCS
Transportation, Inc. ("SCST") pursuant to that certain Agented Revolving Credit
Agreement (the "REVOLVING CREDIT AGREEMENT"), which is now being amended by
Amendment One to Agented Revolving Credit Agreement ("AMENDMENT"), by and among
SCST and the Bank of Oklahoma, N.A. as an agent for itself and certain other
lenders named therein (collectively the "LENDERS"), wherein SCST will amend its
previous borrowing facility for the purpose of among other things increasing its
borrowing capacity by $25,000,000 up to a total amount of $75,000,000 from the
Lenders. A copy of the form of Amendment is attached hereto.
NOW THEREFORE, BE IT RESOLVED, that the original Guaranty
Agreement from the Corporation in favor of the Lenders (the "GUARANTY
AGREEMENT") and Amendment together with all exhibits and schedules thereto and
all notes, instruments, documents and agreements contemplated therein, having
been reviewed by the Board of Directors, be and hereby are ratified and
approved.
RESOLVED, that each officer of the Corporation be, and each of
them, acting jointly or singly, hereby is, authorized, empowered and directed,
for and in the name and on behalf of the Corporation, to execute and deliver all
documents, agreements, waivers and consents received by the Lenders to evidence
the Corporation's obligations to Lenders as a guarantor of the obligations of
SCST, all substantially in the same form as approved by the Board of Directors
with such changes as the signing officer deems necessary or appropriate
(collectively "AMENDMENT DOCUMENTS").
RESOLVED, that each officer of the Corporation be, and each of
them hereby is authorized, directed and empowered, for and in the name of and on
behalf of the Corporation, to take all such further action and to execute and
deliver all such Amendment Documents and such further instruments, certificates
and documents contemplated by the Amendment as in his or her judgment shall be
necessary, proper or advisable in order to fully carry out the intent and
purposes of the transactions contemplated therein and authorized and approved
herein.
This consent may be executed in multiple counterparts, each of which shall be
deemed to be an original for all purposes and all of which together shall be one
and the same instrument. This consent shall be filed in the minute book of the
Corporation and become a part of the records of the Corporation.
Dated: November 14, 2003.
/s/ Xxxxxxx X. O'Dell
------------------------------
Xxxxxxx X. O'Dell
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxxxx
/s/ X.X. Xxxxxxxxx, III
------------------------------
X. X. Xxxxxxxxx, III
SCHEDULE 2.6(b)
STATEMENT OF UNANIMOUS CONSENT
TO ACTION TAKEN IN LIEU OF A
SPECIAL MEETING OF THE BOARD OF DIRECTORS
OF
JEVIC TRANSPORTATION, INC.
In lieu of a special meeting of the board of directors of
JEVIC TRANSPORTATION, INC., a New Jersey corporation (the "CORPORATION"), the
undersigned, being all the directors of said Corporation entitled to vote on the
resolutions set forth below, do hereby consent to the adoption of, and do hereby
adopt, the following resolutions and declare them to be in full force and effect
as if they had been duly adopted at a meeting of the directors of the
Corporation, duly called, noticed and held.
GUARANTY OF AGENTED REVOLVING CREDIT AGREEMENT
WHEREAS, the Board of Directors of the Corporation having
previously executed a guaranty agreement guarantying the obligations of SCS
Transportation, Inc. ("SCST") pursuant to that certain Agented Revolving Credit
Agreement (the "REVOLVING CREDIT AGREEMENT"), which is now being amended by
Amendment One to Agented Revolving Credit Agreement ("AMENDMENT"), by and among
SCST and the Bank of Oklahoma, N.A. as an agent for itself and certain other
lenders named therein (collectively the "LENDERS"), wherein SCST will amend its
previous borrowing facility for the purpose of among other things increasing its
borrowing capacity by $25,000,000 up to a total amount of $75,000,000 from the
Lenders. A copy of the form of Amendment is attached hereto.
NOW THEREFORE, BE IT RESOLVED, that the original Guaranty
Agreement from the Corporation in favor of the Lenders (the "GUARANTY
AGREEMENT") and Amendment together with all exhibits and schedules thereto and
all notes, instruments, documents and agreements contemplated therein, having
been reviewed by the Board of Directors, be and hereby are ratified and
approved.
RESOLVED, that each officer of the Corporation be, and each of
them, acting jointly or singly, hereby is, authorized, empowered and directed,
for and in the name and on behalf of the Corporation, to execute and deliver all
documents, agreements, waivers and consents received by the Lenders to evidence
the Corporation's obligations to Lenders as a guarantor of the obligations of
SCST, all substantially in the same form as approved by the Board of Directors
with such changes as the signing officer deems necessary or appropriate
(collectively "AMENDMENT DOCUMENTS").
RESOLVED, that each officer of the Corporation be, and each of
them hereby is authorized, directed and empowered, for and in the name of and on
behalf of the Corporation, to take all such further action and to execute and
deliver all such Amendment Documents and such further instruments, certificates
and documents contemplated by the Amendment as in his or her judgment shall be
necessary, proper or advisable in order to fully carry out the intent and
purposes of the transactions contemplated therein and authorized and approved
herein.
This consent may be executed in multiple counterparts, each of which shall be
deemed to be an original for all purposes and all of which together shall be one
and the same instrument. This consent shall be filed in the minute book of the
Corporation and become a part of the records of the Corporation.
Dated: November 14, 2003.
/s/ X. X. Xxxxxxxxx III
------------------------------
X. X. Xxxxxxxxx, III
/s/ Xxxxx X. Xxxxxxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxxxxxx
/s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx
SCHEDULE 2.7, 2.8(a) & 2.8(b)
November 14, 0000
Xxxx xx Xxxxxxxx, X.X., individually and as Agent
Xxxxxx Trust and Savings Bank
U.S. Bank National Association
Bank One, NA
c/o Agent
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We are counsel for SCS Transportation, Inc., a Delaware corporation (the
"COMPANY"), Saia Motor Freight Line, Inc., a Louisiana corporation ("SAIA"), and
Jevic Transportation, Inc., a New Jersey corporation ("JEVIC") (Saia and Xxxxx,
collectively, the "GUARANTORS"), in connection with the Amendment One to Agented
Revolving Credit Agreement (the "AMENDMENT"), dated of even date herewith,
between the Company and Bank of Oklahoma, N.A. ("BOK"), individually and as
agent ("AGENT") for U.S. Bank National Association ("U.S. BANK"), Bank One, NA
("BANK ONE") and Xxxxxx Trust and Savings Bank ("XXXXXX BANK") (collectively,
the "BANKS"), pursuant to which the Company has issued to you today: (i) an
Amended Note dated of even date herewith, of the Company in favor of U.S. Bank
in the principal amount of $18,000,000 (the "U.S. BANK NOTE"); (ii) an Amended
Note dated of even date herewith, of the Company in favor of Bank One in the
principal amount of $18,000,000 (the "BANK ONE NOTE"); (iii) an Amended Note
dated of even date herewith, of the Company in favor of Xxxxxx Bank in the
principal amount of $18,000,000 (the "XXXXXX NOTE"); (iv) an Amended Note dated
of even date herewith, of the Company in favor of Agent in the principal amount
of $21,000,000 (the "BOK NOTE"); and (v) the Amendment. The U.S. Bank Note, Bank
One Note, Xxxxxx Note and BOK Note are hereinafter collectively referred to as
the "NOTES". As a part of the Amendment and pursuant to two separate amended
Guaranties both dated of even date herewith, Saia has acknowledged and agreed to
the amendment of the Guaranty Agreement dated as of September 20, 2002, made by
Saia in favor of Agent and the Banks ("SAIA GUARANTY") and Jevic has
acknowledged and agreed to the amendment of the Guaranty Agreement dated as of
September 20, 2002, made by Jevic in favor of Agent and the Banks ("JEVIC
GUARANTY") (the Saia Guaranty and the Jevic Guaranty, collectively, the
"GUARANTIES"). All terms used herein that are defined in the Amendment or in the
Agented Revolving Credit Agreement dated as of September 20, 2002 (the
"AGREEMENT") have the same meaning herein as set forth in the Amendment or the
Agreement, as applicable. When used herein in relation to the Company, the term
"material" refers to the Company and its Subsidiaries considered together on a
consolidated basis. This letter is being delivered to you in satisfaction of the
condition requiring such legal
opinion as set forth in the Amendment and with the understanding that you are
accepting the U.S. Bank Note, the Bank One Note, the Xxxxxx Note and the BOK
Note (collectively, the "NOTES") in reliance on the opinions expressed herein.
The Amendment, the amendments to the Guaranties and the Notes are collectively
referred to herein as the "AMENDMENT DOCUMENTS".
In connection herewith, we have examined such certificates of public officials,
certificates of officers of the Company, Saia and Jevic and copies certified to
our satisfaction of corporate documents and records of the Company, Saia and
Xxxxx and of other papers, and have made such other investigations, as we have
deemed relevant and necessary as a basis for our opinion hereinafter set forth.
We have relied upon such certificates of public officials and of officers of the
Company, Saia and Jevic with respect to the accuracy of material factual matters
contained therein which were not independently established.
In reaching the opinions set forth in Paragraphs two, four and six of this
letter, we have assumed, and to our actual knowledge there are no facts
inconsistent with, the following:
a. Each of the parties to any Amendment Document, other than the
Company, Saia and Xxxxx, have duly and validly executed and
delivered such Amendment Document and each such instrument,
document and agreement (or duplicate original counterparts
thereof) to be executed in connection with the loan transactions
(collectively, the "LOAN") described in the Amendment, and the
obligations of each such party (other than the Company, Saia and
Jevic) set forth in any Amendment Document and in such
instruments, documents and agreements are its legal, valid and
binding obligations, enforceable against such party in accordance
with their respective terms;
b. Each person executing any Amendment Document, other than on
behalf of the Company, Saia and Xxxxx, whether individually or on
behalf of an entity, is duly authorized to do so;
c. Each natural person executing any Amendment Document is legally
competent to do so;
d. All signatures on the Amendment Documents will be genuine;
e. The Amendment Documents and all other documents submitted to us
as originals are authentic;
f. The Amendment Documents and all other documents submitted to us
as certified or photostatic copies conform to the original
document and all public records reviewed are accurate and
complete;
g. The execution, delivery and performance of the Amendment
Documents by the Agent and Banks:
(i) have been duly authorized by all necessary corporate or
other appropriate action on the part of the Agent and Banks;
and
(ii) do not contravene or conflict with any term or provision of
the articles of incorporation, by-laws or other governing
documents of the Agent and Banks;
h. The terms and conditions of the Loan as reflected in the
Amendment Documents have not been amended, modified or
supplemented, directly or indirectly, by any other agreement or
understanding of the parties or waiver of any of the material
provisions of the Amendment Documents that would define,
supplement or qualify the terms of the Amendment Documents;
i. The Agent and Banks and their successors and assigns will: (i)
act in good faith and in a commercially reasonable manner in the
exercise of any rights or enforcement of any remedies under the
Amendment Documents; (ii) not engage in any conduct in the
exercise of such rights or enforcement of such remedies that
would constitute anything other than fair dealing; and (iii)
comply with all requirements of applicable procedural and
substantive law in exercising any rights or enforcing any
remedies under the Amendment Documents;
j. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence; and
k. The amendments to the Guaranties have been duly issued for value.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware.
2. The Amendment and the Notes have been duly authorized by all requisite
corporate action and duly executed and delivered by authorized officers
of the Company. If Missouri law were to apply to the Amendment and the
Notes, the Amendment and the Notes would be valid obligations of the
Company, legally binding upon and enforceable against the Company in
accordance with their respective terms.
3. Based solely upon the Certificate of Good Standing issued by the Office
of the Louisiana Secretary of State and dated as of November 10, 2003
("SAIA CERTIFICATE OF GOOD STANDING"), Saia is a corporation duly
organized and validly existing in good standing under the laws of the
State of Louisiana.
4. The execution of the Amendment to effect the amendment of the Saia
Guaranty, as set forth in Section 5 of the Amendment, and the execution
of the amended Guaranty applicable to Saia, have been duly authorized by
all requisite corporate action and duly executed and delivered by
authorized officers of Saia. If Missouri law were to apply to the
amendment of the Saia Guaranty, the amendment of the Saia Guaranty would
be the legally valid, binding and enforceable obligation of Saia in
accordance with its terms.
5. Based solely upon the Certificate of Good Standing issued by the Office
of the New Jersey Secretary of State and dated November 10, 2003 ("JEVIC
CERTIFICATE OF GOOD STANDING"), Jevic is a corporation duly organized and
validly existing in good standing under the laws of the State of New
Jersey.
6. The execution of the Amendment to effect the amendment of the Jevic
Guaranty, as set forth in Section 5 of the Amendment, and the execution
of the amended Guaranty applicable to Jevic, have been duly authorized by
all requisite corporate action and duly executed and delivered by
authorized officers of Jevic. If Missouri law were to apply to the
amendment of the Jevic Guaranty, the amendment of the Jevic Guaranty
would be the legally valid, binding and enforceable obligation of Jevic
in accordance with its terms.
7. The extension, arranging and obtaining of the credit represented by the
Notes does not result in any violation of Regulations T, U or X of the
Board of Governors of the Federal Reserve System. In providing the
opinion in the immediately preceding sentence, we have relied on factual
matters set forth in the Officer's Certificate attached hereto as Exhibit
A.
8. The execution and delivery by the Company of the Amendment and the Notes
and the performance by the Company of its obligations thereunder do not
violate or result in a breach or default under any existing obligation of
the Company under any agreement listed as a material contract under
Exhibit 10 of the Form 10 filed by the Company with the Securities and
Exchange Commission on July 19, 2002 (as amended on August 23, 2002 and
further amended on September 6, 2002), nor does such action result in any
violation by the Company of the provisions of the Certificate of
Incorporation or By-Laws of the Company, any provision of applicable law,
or any order, writ, judgment or decree known to us of any court or
governmental agency or body that names the Company or is specifically
directed to the Company or any of its material properties or assets.
9. Based upon the Officers Certificate attached hereto as Exhibit A, no
consent, approval, authorization or other action by, and no notice to or
filing with, any governmental agency or regulatory body is required for
the due execution, delivery and performance by the Company of its
obligations under the Amendment and the Notes.
10. A court sitting in the State of Missouri will look to the conflict of law
rules of the State of Missouri to determine which law governs. Under
Missouri law the parties to a contract may agree that the contract will
be governed by the law of a particular state so long as some element of
the contract is properly referable to that state. Courts applying
Missouri law have not enforced agreements that the law of a certain state
shall govern where the agreement is made to evade otherwise applicable
law or where the agreement infringes upon a fundamental policy of the
State of Missouri. In our opinion, a state or federal court in the State
of Missouri applying Missouri law (a) should not find that the selection
of Oklahoma law as the governing law under the Amendment and the Notes
constitutes an infringement of a fundamental policy of the State of
Missouri, unless it is determined that such selection is, in fact, made
to evade otherwise applicable law of the State of Missouri and therefore
(b) should give effect to the provisions in the Amendment and the Notes
which select the laws of the State of Oklahoma as the governing law
thereof. Provided, however, with respect to
the creation, perfection, priority and enforcement of any judgment
liens, the laws of Missouri will apply with respect to assets located
within Missouri.
In addition to the assumptions set forth above, the opinions set forth above are
also subject to the following qualifications:
A. Enforceability of the Amendment Documents is subject to:
(1) the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally, including:
(a) the United States Bankruptcy Code of 1978, as amended, and
thus comprehends, among others, matters of turn-over,
automatic stay, avoiding powers, fraudulent transfer,
preference, discharge, conversion of a non-recourse
obligation into a recourse claim and limitations on ipso
facto and anti-assignment clauses;
(b) all other federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and
assignment for the benefit of creditors laws that affect the
rights and remedies of creditors generally;
(c) state fraudulent transfer and conveyance laws; and
(d) judicially developed doctrines relevant to any of the
foregoing laws, such as substantive consolidation of
entities;
(2) the effect of general principles of equity, whether applied by a
court of law or equity, including principles:
(a) governing the availability of specific performance,
injunctive relief or other equitable remedies, which
generally place the award of such remedies, subject to
certain guidelines, in the discretion of the court to which
application for such relief is made;
(b) affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement;
(c) requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its
enforcement;
(d) requiring reasonableness in the performance and enforcement
of an agreement by the party seeking enforcement of the
contract;
(e) requiring consideration of the materiality of a breach and
the consequences of the breach to the party seeking
enforcement;
(f) requiring consideration of the impracticability or
impossibility of performance at the time of attempted
enforcement; and
(g) affording defenses based upon the unconscionability of the
enforcing party's conduct after the parties have entered
into the contract;
(3) the effect of generally applicable rules of law that:
(a) limit or affect the enforcement of provisions of a contract
that purport to require waiver of the obligations of good
faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum selected;
(c) limit the availability of a remedy under certain
circumstances where another remedy has been elected;
(d) limit the right of a creditor to use force or cause a breach
of the peace in enforcing rights;
(e) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own action
or inaction, to the extent public policy limits the
enforceability of such indemnification or the action or
inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct;
(f) may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an
essential part of the agreed exchange;
(g) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees
and other costs; and
(h) may permit a party who has materially failed to render or
offer performance required by the contract to cure that
failure unless (A) permitting a cure would unreasonably
hinder the aggrieved party from making substitute
arrangements for performance, or (B) it was important in the
circumstances to the aggrieved party that performance occur
by the date stated in the contract.
B. Except as otherwise specifically set forth in this opinion, we are
expressing no opinion as to the validity or accuracy of any warranty or
representation made in connection with the Amendment Documents and assume
all representations of the Company and Guarantors made in the Agreement,
Guaranties and Amendment Documents are true.
C. For purposes of the opinions expressed herein, "applicable law" shall
mean all applicable constitutional, legislative, judicial and
administrative provisions, statutes, regulations, decisions, rulings and
other laws, whether federal, state or local.
We express no opinion as to the enforceability of any clause requiring
additional payments upon, or otherwise limiting, prepayment or termination to
the extent construed as a penalty.
We express no opinion on any other matters pertaining to the transactions
contemplated by or related to the Amendment Documents, except as hereinabove
specifically provided, and no further or other opinion shall be implied. The
matters set forth herein or upon which this opinion is based are as of the date
hereof, and we hereby undertake no, and disclaim any, obligation to advise the
Agent and Banks of any change in any matters set forth herein or any matters
upon which this opinion is based.
When an opinion is stated to be "to our actual knowledge", or other words of
similar import appear, the language means only that we have no actual knowledge
to the contrary and does not indicate or imply any investigation or inquiry of
the Company, the Guarantors or others on our part. For this purpose, "we" means
only those attorneys within our Firm who have done substantive work on this
opinion.
This opinion is given with respect to the laws of the State of Missouri and the
laws of the United States of America, and we do not purport to be experts on, or
to express any opinion concerning, any laws other than the laws of the State of
Missouri and the laws of the United States of America (with respect to opinions
in Paragraphs seven, eight and nine), and, with respect to opinion numbers one
through two above concerning the Company, our review of the Delaware General
Corporation Law. With respect to the opinion expressed in the first sentence of
Paragraph four above, we have assumed the laws of the State of Louisiana are
substantially similar to the laws of Missouri. With respect to the opinion
expressed in the first sentence of Paragraph six above, we have assumed the laws
of the State of New Jersey are substantially similar to the laws of Missouri.
The opinions above are subject to this limitation in all respects.
This opinion is rendered solely to the addressees hereof, to be relied upon
solely in connection with the transactions contemplated by the Amendment. In any
event, this opinion may not be relied upon by any person (other than the
addressees hereof and subsequent holders of the Notes) or for any other purpose
without our prior written consent.
Very truly yours,
/s/ Xxxxx Xxxx LLP
XXXXX XXXX LLP
CERTIFICATE OF THE
CHIEF FINANCIAL OFFICER
OF
SCS TRANSPORTATION, INC.
On this day the undersigned, Xxxxx X. Xxxxxxxxxxxxx, as the Chief Financial
Officer of SCS Transportation, Inc., a Delaware corporation (the "COMPANY"),
known to be the person whose name is subscribed below and who being first duly
sworn, did on his oath state and represent to Xxxxx Xxxx LLP ("XXXXX XXXX") for
purposes of inducing Xxxxx Xxxx to render a legal opinion (the "OPINION LETTER")
regarding Amendment One to Agented Revolving Credit Agreement and all related
documents (collectively, the "AMENDMENT") which amends that certain Agented
Revolving Credit Agreement dated September 20, 2002, among the Company and Bank
of Oklahoma, N.A. as an agent for U.S. Bank National Association, Bank One,
N.A., and Xxxxxx Trust and Savings Bank and itself (collectively, the "Banks").
Capitalized terms not otherwise defined herein will be used herein as defined in
the Opinion Letter. The undersigned certifies that:
1. None of the proceeds from the Notes issued under the
Amendment shall be used by the Company for the purpose of buying or carrying
"margin stock" which is defined by Regulation U of the Board of Governors of the
Federal Reserve, 12 CFR 221, as the following:
a) Any equity security registered or having
unlisted trading privileges on a national securities exchange;
b) Any OTC security designated as qualified for
trading in the National Market System under a designation plan
approved by the Securities and Exchange Commission (NMS
security);
c) Any debt security convertible into a margin
stock or carrying a warrant or right to subscribe to or
purchase a margin stock;
d) Any warrant or right to subscribe to or
purchase a margin stock; or
e) Any security issued by an investment company
registered under section 8 of the Investment Company Act of
1940 (15 U.S.C. 80a - 8), other than:
i) A company licensed under the Small
Business Investment Company Act of 1958, as
amended (15 U.S.C. 661); or
ii) A company which has at least 95
percent of its assets continuously invested
in exempted securities (as defined in 15
U.S.C. 78c(a)(12)); or
iii) A company which issues faceamount
certificates as defined in 15 U.S.C. 80a -
2(a)(15), but only with respect of such
securities; or
iv) A company which is considered a
money market fund under XXX Xxxx 0x - 0 (00
XXX 270.2a - 7).
2. No consent, approval, authorization or other action
by, and no notice to or
filing with, any governmental agency or regulatory body is required for the due
execution, delivery and performance by the Company of its obligations under the
Amendment (other than routine filings after the date hereof with the Securities
and Exchange Commission and/or state Blue Sky authorities).
3. I have reviewed the Opinion Letter and have had an
opportunity to ask questions and receive answers from Xxxxx Xxxx concerning the
content of the Opinion Letter. There are no items or disclosures within the
Opinion Letter that are factually untrue.
4. I hereby deliver this Officer's Certificate to Xxxxx
Xxxx in consideration of Xxxxx Xxxx issuing its Opinion Letter in connection
with the transactions described therein. I acknowledge and agree that this
Certificate is being materially relied upon by Xxxxx Xxxx in the issuance of
such Opinion Letter.
IN WITNESS WHEREOF, this Certificate has been duly executed as
of November 14, 2003.
SCS TRANSPORTATION, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxxxxxx
Chief Financial Officer
SCHEDULE 2.10(a)
FIRST AMENDMENT TO GUARANTY AGREEMENT
This First Amendment to Guaranty Agreement is made and entered into
effective as of November 14, 2003, by and among XXXX MOTOR FREIGHT LINE, INC., a
Louisiana corporation (the "Guarantor"), and BANK OF OKLAHOMA, N.A., U.S. BANK
NATIONAL ASSOCIATION, BANK ONE, NA, and XXXXXX TRUST AND SAVINGS BANK
(individually a "Bank" and collectively the "Banks"), and BANK OF OKLAHOMA,
N.A., as agent for the Banks hereunder (in such capacity the "Agent").
R E C I T A L S
9. Reference is made to that certain Guaranty Agreement dated as
of September 20, 2002, entered into by and among Guarantor, Banks and Agent
wherein Guarantor agreed to guaranty the obligations of SCS TRANSPORTATION,
INC. (the "Borrower") to Banks under the terms of the Agented Revolving
Credit Agreement (the "Credit Agreement") dated September 20, 2002 among
Borrower, Banks and Agent.
10. Borrower has requested that the Banks increase the amount of
the Revolving Credit Commitment under the Credit Agreement from the
aggregate amount of $50,000,000 to the aggregate amount of $75,000,000.
11. Guarantor will benefit directly and indirectly from the
increase of the Revolving Credit Commitment.
12. Banks have agreed to Borrower's request to increase the
Revolving Credit Commitment, subject to certain requirements, including the
execution of this Amendment by Guarantor.
AGREEMENT
NOW, THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Guaranty Agreement. Guarantor by execution hereof
acknowledges and agrees that the Guaranty Agreement is hereby amended to
evidence that all references therein to "$50,000,000" shall now mean and read
"$75,000,000". Guarantor further agrees that the Guaranty Agreement is hereby
amended to evidence that the defined term "Obligations" shall additionally
include all obligations of Borrower under the Amendment One to Agented Revolving
Credit Agreement and the Amended Notes executed in conjunction therewith, all
dated November 14, 2003.
2. Ratification of Guaranty Agreement. All terms and conditions
of the Guaranty Agreement, unless expressly modified herein, are hereby ratified
and confirmed and shall continue in full force and effect.
"Guarantor"
XXXX MOTOR FREIGHT LINE, INC.
By /s/ Xxxxxxx X. O'Dell
--------------------------
Name Xxxxxxx X. O'Dell
Title President
SCHEDULE 2.10(b)
FIRST AMENDMENT TO GUARANTY AGREEMENT
This First Amendment to Guaranty Agreement is made and entered into
effective as of November 14, 2003, by and among JEVIC TRANSPORTATION, INC., a
New Jersey corporation (the "Guarantor"), and BANK OF OKLAHOMA, N.A., U.S. BANK
NATIONAL ASSOCIATION, BANK ONE, NA, and XXXXXX TRUST AND SAVINGS BANK
(individually a "Bank" and collectively the "Banks"), and BANK OF OKLAHOMA,
N.A., as agent for the Banks hereunder (in such capacity the "Agent").
R E C I T A L S
13. Reference is made to that certain Guaranty Agreement dated as
of September 20, 2002, entered into by and among Guarantor, Banks and Agent
wherein Guarantor agreed to guaranty the obligations of SCS TRANSPORTATION,
INC. (the "Borrower") to Banks under the terms of the Agented Revolving
Credit Agreement (the "Credit Agreement") dated September 20, 2002 among
Borrower, Banks and Agent.
14. Borrower has requested that the Banks increase the amount of
the Revolving Credit Commitment under the Credit Agreement from the
aggregate amount of $50,000,000 to the aggregate amount of $75,000,000.
15. Guarantor will benefit directly and indirectly from the
increase of the Revolving Credit Commitment.
16. Banks have agreed to Borrower's request to increase the
Revolving Credit Commitment, subject to certain requirements, including the
execution of this Amendment by Guarantor.
AGREEMENT
NOW, THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Guaranty Agreement. Guarantor by execution hereof
acknowledges and agrees that the Guaranty Agreement is hereby amended to
evidence that all references therein to "$50,000,000" shall now mean and read
"$75,000,000". Guarantor further agrees that the Guaranty Agreement is hereby
amended to evidence that the defined term "Obligations" shall additionally
include all obligations of Borrower under the Amendment One to Agented Revolving
Credit Agreement and the Amended Notes executed in conjunction therewith, all
dated November 14, 2003.
2. Ratification of Guaranty Agreement. All terms and conditions
of the Guaranty Agreement, unless expressly modified herein, are hereby ratified
and confirmed and shall continue in full force and effect.
"Guarantor"
JEVIC TRANSPORTATION, INC.
By /s/ Xxxx X. Xxxxxxx
--------------------------
Name Xxxx X. Xxxxxxx
Title President & CEO
