EXHIBIT 10
FORBEARANCE AGREEMENT
THIS AGREEMENT (this "Agreement" or this "Forbearance
Agreement") is made and entered into as of August 1, 1999 (the
"Effective Date"), by and among TRISM, INC., a Delaware
corporation ("Trism"), TRISM SECURED TRANSPORTATION, INC., a
Delaware corporation ("Trism Secured") TRI-STATE MOTOR TRANSIT
CO., a Delaware corporation ("TSMT"), AERO BODY AND TRUCK
EQUIPMENT, INC., a Delaware corporation ("Aero Body"), TRI- STATE
TRANSPORTATION SERVICES, INC., a Missouri corporation ("Tri-
State"), DIABLO SYSTEMS INCORPORATED D/B/A/ DIABLO
TRANSPORTATION, INC., a California corporation ("Diablo"),
EMERALD LEASING, INC., a Nevada corporation ("XXX"), XxXXX
SPECIAL SERVICES, INC.,a Delaware corporation ("McGil"), TRISM
EASTERN, INC. D/B/A X.X. XXXXXXX TRANSFER, a Delaware corporation
("XX Xxxxxxx"), TRISM HEAVY HAUL, INC., a Delaware corporation
("Heavy Haul"), TRISM SPECIALIZED CARRIERS, INC., a Georgia
corporation ("Specialized"), TRISM SPECIAL SERVICES, INC., a
Georgia corporation ("Special Services"), E.L. XXXXXX & SONS
TRUCKING CO., INC., an Oklahoma corporation ("EL Xxxxxx"), TRISM
TRANSPORT, INC., a Delaware corporation ("Transport"), TRISM
TRANSPORT SERVICES, INC., a Utah corporation ("Transport
Services"), TRISM LOGISTICS, INC., a New Jersey corporation
("Logistics") (each of Trism, Trism Secured, TSMT, Aero Body, Tri-
State, Diablo, XXX, XxXxx, XX Xxxxxxx, Heavy Haul, Specialized,
Special Services, EL Xxxxxx, Transport, Transport Services and
Logistics being a borrower under the Loan Agreement (as defined
below) and each is herein referred to herein individually as a
"Borrower" and are collectively referred to herein as the
"Borrowers"), and each of TRISM MAINTENANCE SERVICES, INC., a
Delaware corporation ("Maintenance"), EFB, INC., a Delaware
corporation ("EFB"), TRANSPORTATION RECOVERY SYSTEMS, INC., a
Delawae corporation ("Recovery"), TRISM EQUIPMENT, INC., a
Delaware corporation ("Equipment") and TRISM BENEFITS, INC., a
Delaware corporation ("Benefits")(each of Maintenance, EFB,
Recovery, Equipment and Benefits being a guarantor pursuant to
that certain Guaranty, dated as of July 14, 1997 in favor of
Agent (as herein defined) and each is herein referred to
individually as a "Guarantor" and are collectively referred to
herein as the "Guarantors") and each of the financial
institutions party to the Loan Agreement (each is herein
referred to individually as a "Lender" and are collectively
referred to herein as the "Lenders") and THE CIT GROUP/BUSINESS
CREDIT, INC., a New York corporation, as Agent of the Lenders
under the Loan Agreement (the "Agent").
RECITALS
On July 14, 1997, Borrowers, Guarantors, Agent and Lenders
entered into various documents evidencing financial arrangements
between them, including but not limited to, a Loan and Security
Agreement (as amended, the "Loan Agreement"; capitalized terms
used herein and not otherwise defined shall have the respective
meanings ascribed thereto in the Loan Agreement), pursuant to
which Lenders agreed to extend to Borrowers a senior secured
revolving credit facility and term loan (collectively the "Credit
Facility") in the respective aggregate amounts and on the terms
and conditions set forth therein; and
Trism is party to that certain Indenture, dated as of
December 15, 1993, between Trism, as Issuer, U.S. Bank Trust
National Association, formerly known as First Trust National
Association, as Trustee (the "Trustee"), and certain of the
Borrowers, as Guarantors, relating to the issuance of
$100,000,000 of Trism's 10 3/4% Senior Subordinated Notes due
2000, as supplemented or amended from time to time (the
"Subordinated Indenture"). On June 15, 1999, Trism failed to
make a required payment of interest pursuant to the Subordinated
Indenture. As of July 15, 1999, Trism has not made such interest
payment and such failure constitutes an Event of Default under
the Subordinated Indenture (the "Subordinated Indenture
Default"). Pursuant to Section 12.1(e) of the Loan Agreement,
the Subordinated Indenture Default constitutes an Event of
Default under the Loan Agreement (the "Existing Default").
By reason of the Existing Default, Agent, on behalf of the
Lenders, is authorized to exercise all remedies available to it
under the Loan Documents, including, but not limited to, the
right to repossess and foreclose upon the Collateral. Despite
the Existing Default, Borrowers desire that Agent and Lenders (a)
forbear from exercising remedies of suit, repossession and
foreclosure otherwise available to Agent, on behalf of the
Lenders, under the Loan Documents in order to afford Borrowers an
opportunity to prepare and implement a proposed restructuring
plan, and (b) continue to make available the Credit Facility to
Borrowers and make other concessions, as set forth herein.
Agent and Lenders are willing to continue to conditionally
forbear from pursuing certain remedies in connection with the
Existing Default, continue to make available to Borrowers the
Credit Facility, as modified herein, and make other concessions
to the Borrowers (collectively the "Borrower Benefits"), on the
terms and conditions contained herein, each of which,
individually and in the aggregate, and including the performance
thereof by Borrowers, constitute the consideration to the Agent
and Lenders for entering into this Forbearance Agreement, and in
the absence of any of which Agent would not have entered into
this Forbearance Agreement or otherwise extended to Borrowers the
Borrower Benefits.
Borrowers and Guarantors each acknowledge and agree that the
Borrower Benefits hereunder are of immediate and material
benefit, financial and otherwise, to such Borrowers and
Guarantors, and that neither Agent nor Lenders was or is under
any obligation to extend to Borrowers or Guarantors the Borrower
Benefits provided hereunder.
NOW, THEREFORE, in consideration of the premises, which are
made a part of this Forbearance Agreement, and the mutual
covenants herein contained, the receipt and sufficiency of which
are acknowledged, the parties hereto agree as follows:
1. Acknowledgments by Borrowers and Guarantors. Each Borrower
and Guarantor hereby acknowledges and agrees that (a) as of the
close of business on July 15, 1999, the outstanding aggregate
respective principal balances of (i) the Revolving Credit Loans
totaled $ 7,573,420.95, (ii) outstanding Letters of Credit
totaled $12,138,127.00 and (iii) the Term Loan totaled
$2,521,833.35, in each case exclusive of accrued interest, costs
and attorney's fees chargeable to Borrowers under the Loan
Documents; (b) the Subordinated Indenture Default and the
Existing Default have occurred by reason of the matters set forth
hereinabove in the second paragraph of the Recitals (c) the
Subordinated Indenture Default and the Existing Default are
continuing and have not been cured by Borrowers or waived,
released, extinguished or compromised by Agent , Lenders or the
Trustee, as the case may be; and (d) as a result of the Existing
Default, all of the Secured Obligations under the Loan Documents,
at the election of the Required Lenders, are absolutely and
immediately due and owing by Borrowers without any defense,
deduction, setoff or counterclaim and Agent, on behalf of the
Lenders, has full legal right to exercise any and all of its
rights and remedies under the Loan Documents or otherwise
available at law and in equity. Notwithstanding the agreement of
Agent and Lenders herein to consider, in their sole and absolute
discretion, Borrowers' requests for additional Revolving Credit
Loans, in no event shall the honoring of any such request be
deemed a waiver of the Existing Default or any other Default or
Event of Default. Neither this Agreement, any forbearance
hereunder, nor the continued making of Revolving Credit Loans to
Borrowers in accordance with this Forbearance Agreement, the Loan
Agreement (as modified herein) and the Loan Documents shall be
deemed a waiver of or consent to the Existing Default or any
Default or Event of Default arising hereafter under this
Agreement or the Loan Documents and Borrowers agree that the
Existing Default shall not be deemed to have been waived,
released, extinguished, compromised or cured by virtue of such
Revolving Credit Loans, the agreement to forbear or the execution
or performance of this Forbearance Agreement.
1. Forbearance. Subject to compliance by Borrowers and
Guarantors of each of the Forbearance Conditions (as defined
below), during the period commencing on the date hereof and
ending on the earlier to occur of (a) September 30, 1999, or (b)
the occurrence of an Event of Default specified in Sections
12.1(g) or 12.1(h) of the Loan Agreement, immediately and without
notice, or (c) the date that any default with respect to, or
other failure of, the Forbearance Conditions as defined in and
set forth in Section 3 hereof occurs (the "Forbearance Period"),
Agent and Lenders agree that they will not, but only by reason of
the Existing Default:
1) exercise any remedy available to them under the Loan
Documents or under any applicable law to enforce collection from
Borrowers of any Secured Obligations or foreclose upon their
security interest(s) in any of the Collateral; or
1) institute suit against Borrowers or Guarantors.
Notwithstanding anything to the contrary contained in this
Agreement, the agreement of Agent and Lenders in this Section 2
does not, and shall not be deemed to, prevent Agent or Lenders
from exercising any other remedy or power available to such
parties, including, without limitation, the right to deliver any
notices under or with respect to the Subordinated Indenture.
1. Conditions to Forbearance. Each of the following conditions
shall constitute a forbearance condition ("Forbearance
Condition"), the continuing satisfaction of each and every one of
which shall be a continuing condition to the agreement of Agent
and Lenders to forbear as set forth above in Section 2:
1) Except with respect to Section 12.1(e) of the Loan Agreement
as it relates solely to the Existing Default (but not including
any subsequent Defaults or Events of Default irrespective of
whether the same are the same as or similar to any of the
Existing Default), Borrowers and Guarantors shall duly observe
and perform each and every obligation and covenant on their
respective parts to be performed under the Loan Documents, this
Agreement and any agreement, instrument or document executed in
connection with this Agreement including, without limitation,
Borrowers' obligations to pay to Agent, on behalf of the Lenders,
all installments of principal, interest, fees (including without
limitation any and all applicable fees set forth in Section 4.2
of the Loan Agreement), charges, and expenses, as and when the
same are due and payable (whether due at stated maturity, upon
acceleration or otherwise); and
1) No Default or Event of Default shall exist or shall have
occurred under any of the terms, conditions, provisions or
covenants of the Loan Documents or this Agreement except the
Existing Default; and
1) No Materially Adverse Effect (except for the Subordinated
Indenture Default and the Existing Default) shall occur; and
1) The representations and warranties contained in this
Agreement and any agreement, instrument or document executed in
connection herewith or pursuant hereto shall be true and correct
as of the date of this Agreement and shall continue to be true
and correct at all times hereafter (except to the extent that any
such representation or warranty, by its express terms, relates to
a prior specific date or period); and
1) Borrowers shall execute such other and further documents and
instruments as Agent may reasonably request to effect the express
provisions of this Agreement; and
(f) Not later than August 20, 1999 (with respect to the
Fiscal Month and Fiscal Year-to-date ended July 31, 1999 as to
subparagraph (i) and as to all matters specified in subparagraph
(ii) hereunder) and monthly thereafter (not later than the 20th
day following the end of each subsequent Fiscal Month), Trism
shall deliver to Agent (i) the Consolidated Balance Sheet and
Consolidating Balance Sheets of the Borrowers and the Guarantors
as at the end of the immediately preceding Fiscal Month and the
related unaudited income statement for the Borrowers and the
Guarantors for such Fiscal Month and for the portion of the
Fiscal Year through such Fiscal Month, together with
consolidating statements for the Borrowers and the Guarantors, in
each case setting forth in comparative form the figures for the
previous Fiscal Year (including, without limitation, a comparison
to the projected budget figures for the previous Fiscal Year),
certified by the Financial Officer of the Borrowers and the
Guarantors to the best of his knowledge as presenting fairly the
financial condition and results of operations of the Borrowers
and the Guarantors as at the date thereof and for the periods
ended on such date, subject to normal year end adjustments, and
(ii) forecasted monthly financial statements prepared by the
Operating Companies on a consolidated basis, consisting of
monthly consolidated balance sheets, cash flow statements and
income statements of the Operating Companies, reflecting
projected borrowings and Borrowing Base Availability hereunder
and setting forth the assumptions on which such forecasted
financial statements were prepared, covering the periods
commencing (x) July 1, 1999 through December 31, 1999 and (y)
January 1, 2000 through December 31, 2000, certified by the
Financial Officer of the Borrowers and the Guarantors to the best
of his knowledge as presenting fairly the projected financial
condition and results of operations of the Borrowers and the
Guarantors based upon the best business judgment of management of
the Borrowers and Guarantors.
(g) Upon execution of this Agreement, Borrowers shall pay
to Agent the Forbearance Fee (as hereinafter defined) and
thereafter shall pay on demand the Expenses (as hereinafter
defined).
In the event that any one or more of the Forbearance Conditions
described above is not satisfied, Agent may forthwith, and
without the necessity of any notice (except as may be required
under the Loan Agreement or applicable law, if any), exercise any
and all remedies available to it under any of the Loan Documents
or available under applicable law or in equity.
1. Modifications to Loan Agreement. The Loan Agreement is
hereby modified and amended by adding a new Section 11.16
thereto, to read in its entirety as follows:
" SECTION 11.16 Minimum Excess Availability.
Notwithstanding anything to the contrary set forth in
this Agreement, permit at any time during the
"Forbearance Period", as that term is defined in that
certain Forbearance Agreement entered into among
Borrowers, Agent and Lenders as of August 1, 1999, as
the same may be amended from time to time, Borrowing
Base Availability to be less than $5,000,000."
1. Payment of the Secured Obligations: For so long as each of
the Forbearance Conditions is satisfied, the Secured Obligations
shall be payable by Borrowers in accordance with the provisions
of the Loan Documents, as amended hereby, applicable as though no
Default or Event of Default had occurred. From and after the
date on which any of the Forbearance Conditions shall cease to be
satisfied, the Secured Obligations, at the election of the
Required Lenders, may be collected by whatever means are
authorized by the Loan Documents and by applicable law.
1. Effect and Construction of Forbearance: Except as
otherwise expressly provided herein, the Loan Agreement and the
other Loan Documents shall remain in full force and effect in
accordance with their respective terms, and this Forbearance
Agreement shall not be construed to: (a) impair the validity,
perfection or priority of any lien or security interest securing
the Secured Obligations; (b) waive or impair any rights, powers
or remedies of Agent or Lenders under the Loan Agreement and the
other Loan Documents upon termination of the Forbearance Period,
with respect to the Existing Default or otherwise; (c) constitute
an agreement by Agent or Lenders or require Agent or Lenders to
extend the Forbearance Period or grant additional forbearance
periods or extend the term of the Loan Agreement or the time for
payment of any of the Secured Obligations; (d) require Agent or
Lenders to make any Revolving Credit Loans or other extensions of
credit to Borrowers other than in Agent's or Lender's sole and
absolute discretion or after termination of the Forbearance
Period; or (e) constitute a waiver of any right of Agent or
Lenders to insist on strict compliance by Borrowers with each and
every term, condition and covenant of this Agreement and the Loan
Documents. This Forbearance Agreement does not constitute an
amendment to the Loan Agreement, but rather, constitutes a
temporary supplement thereto. The terms and provisions of the
Loan Agreement and the other Loan Documents are expressly
incorporated by reference herein except to the extent such terms
and provisions conflict with the terms and provisions of this
Forbearance Agreement, in which case, during the Forbearance
Period, but not otherwise the terms of this Forbearance Agreement
shall control.
1. No Course of Dealing or Performance: Each of Borrowers and
Guarantors acknowledges and agrees that the agreement of Agent
and Lenders to forbear from exercising their rights and remedies
under the Loan Documents with respect to the Existing Default
pursuant to and as reflected in this Forbearance Agreement, does
not and shall not create (nor shall Borrowers or Guarantors rely
upon the existence of or claim or assert that there exists) any
obligation of Agent or Lenders to consider or agree to any waiver
or any further forbearance and, in the event that Agent or
Lenders subsequently agrees to consider any waiver or any further
forbearance, neither the existence of any prior forbearance, nor
this Agreement, nor any other conduct of the Agent or Lenders, or
any of them, shall be of any force or effect on consideration or
decision with respect to any such requested waiver or
forbearance, and neither Agent nor any Lender shall have any
obligation whatsoever to consider or agree to further forbear or
to waive any other Default or Event of Default. In addition,
neither (i) the execution and delivery of this Forbearance
Agreement, (ii) the actions of Agent or Lenders in obtaining or
analyzing any information from Borrowers, whether or not related
to consideration of any waiver, modification, forbearance or
alteration of the Loan Agreement, any Default or Event of Default
thereunder, or otherwise, including, without limitation, any
discussions or negotiations (heretofore or, if any, hereafter)
between Agent or Lenders and Borrowers or Guarantors regarding
any potential waiver, modification, forbearance or amendment
related to the Loan Agreement, (iii) any failure of Agent or
Lenders to exercise any of their rights under, pursuant or with
respect to the Loan Agreement, nor (iv) any action, inaction,
waiver, forbearance, amendment or other modification of or with
respect to the Loan Agreement, shall, unless evidenced by a
written agreement (and then only to the extent provided by the
express provisions thereof):
(a) Constitute a waiver by Agent or Lender of, or,
except to the extent expressly provided herein, an agreement
by Agent or Lender to forebear from the exercise of remedies
with respect to, any Default or Event of Default under the
Loan Agreement;
(b) Constitute a waiver by or estoppel of Agent or
Lender as to the satisfaction or lack of satisfaction of any
covenant, term or condition set forth in the Loan Agreement;
or
(c) Constitute an amendment to or modification of, or
an agreement on the part of Agent or Lender to enter into
any amendment to or modification of, or an agreement to
negotiate or continue to negotiate with respect to, the Loan
Agreement.
1. Fees and Expenses. In consideration for Agent approving and
entering into this Forbearance Agreement:
1) Borrowers shall pay to Agent, for the benefit of the
Lenders, a fee of $5,000 (the "Forbearance Fee") due and payable
upon the execution of this Agreement which fee shall be fully
earned by Agent and Lenders when paid and shall not be subject to
refund or rebate.
2) Borrowers agree to pay on demand all costs and expenses of
Agent or Lenders in connection with the preparation, execution,
delivery and enforcement of this Agreement and all other
documents and any other transactions contemplated hereby, as well
as advice and consultation in connection with the rights of Agent
or Lenders, Borrowers' performance, prospects and compliance
herewith and with the Loan Agreement, as amended, and the
alternatives available to Agent or Lenders, including, without
limitation, the fees and out-of-pocket expenses of legal counsel
to Agent and Lenders (collectively, the "Expenses").
1) Borrowers hereby authorize Agent to charge the Borrowers'
loan account immediately upon the execution and delivery hereof
for the Forbearance Fee, and from time to time for the Expenses,
which charges shall constitute Revolving Credit Loans under the
Loan Agreement; provided, however, that the fees of counsel to
Agent for preparation and negotiation of this Agreement shall not
exceed $5,000.
1. Representations, Warranties and Covenants of Borrowers. To
induce Agent and Lenders to enter into this Agreement:
1) Each Borrower and Guarantor hereby represents, warrants and
covenants to Agent and Lenders that,
1) as of the date hereof, and after giving effect to
the terms hereof, except for the Existing Default, there exists
no Default or Event of Default under this Agreement, the Loan
Agreement or any of the other Loan Documents,
1) each representation and warranty made or deemed to
be made in this Agreement is true and correct on and as of the
date of this Agreement (except to the extent that any such
representation or warranty relates to a prior specific date or
period),
1) each Borrower and Guarantor have the power and is
duly authorized to enter into, deliver and perform this
Agreement, and
1) this Agreement and each of the Loan Documents is
the legal, valid and binding obligation of each Borrower
enforceable against it in accordance with its terms.
1) Each Borrower and Guarantor acknowledges and agrees that no
right of offset, defense, counterclaim, claim, causes of action
or objection in favor of any Borrower or Guarantor against Agent
or any Lender exists arising out of or with respect to, (i) the
forbearance hereunder or any of the Secured Obligations, (ii)
this Agreement, the Loan Agreement or any of the other Loan
Documents, (iii) any other documents now or heretofore
evidencing, securing or in any way relating to the foregoing, or
(iv) the administration or funding of any of the Loans, the
Secured Obligations or any Letter of Credit, and each Borrower
and Guarantor does hereby expressly waive, release and relinquish
any and all such defenses, setoffs, claims, counterclaims, causes
of action or objections, if any, against Agent or any Lender.
1. Release of Claims and Covenant Not to Xxx. As a material
inducement to Agent and Lenders to enter into this Forbearance
Agreement, to continue to make Revolving Credit Loans available
and to grant additional concessions to Borrowers reflected
herein, all in accordance with and subject to the terms and
conditions of this Forbearance Agreement and the Loan Agreement,
and all of which are to the direct advantage and benefit of each
Borrower and Guarantor, the Borrowers and the Guarantors, for
themselves and their respective successors and assigns, (a) do
hereby remise, release, acquit, satisfy and forever discharge
Agent and each Lender, and all of the respective past, present
and future officers, directors, employees, agents, attorneys,
representatives, participants, heirs, successors and assigns of
Agent and each Lender, from any and all manner of debts,
accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities,
obligations, expenses, damages, judgments, executions, actions,
claims, demands and causes of action of any nature whatsoever,
whether at law or in equity, either now accrued or hereafter
maturing and whether known or unknown, which any Borrower or
Guarantor now has or hereafter can, shall or may have by reason
of any matter, cause or thing, from the beginning of the world to
and including the date of this Forbearance Agreement, including
specifically, but without limitation, matters arising out of, in
connection with or relating to (i) the Secured Obligations,
including, but not limited to, the administration or funding
thereof, (ii) the Loan Documents or the indebtedness evidenced
and secured thereby, and (iii) any other agreement or transaction
between the Borrowers or the Guarantors and Agent or any Lender
or any subsidiary or affiliate of such parties; and (b) do hereby
covenant and agree never to institute or cause to be instituted
or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against Agent or any
Lender or any subsidiaries or affiliates of such parties, or any
of their respective past, present or future officers, directors,
employees, agents, attorneys, representatives, participants,
heirs, successors or assigns, by reason of or in connection with
any of the foregoing matters, claims or causes of action,
provided, however, that the foregoing release and covenant not to
xxx shall not apply to any claims arising after the date of this
Agreement with respect to acts, occurrences or events after the
date of this Agreement.
1. Additional Acknowledgments. Each Borrower and Guarantor
expressly acknowledges and agrees that the waivers, estoppels and
releases in favor of Agent and each Lender contained in this
Agreement shall not be construed as an admission of any
wrongdoing, liability or culpability on the part of Agent or any
such Lender, or as an admission by Agent or any such Lender of
the existence of any claims by any Borrower or Guarantor against
Agent or any such Lender. Each Borrower and the Guarantor
further acknowledges and agrees that, to the extent that any such
claims exist, they are of a speculative nature so as to be
incapable of objective valuation and that, to the extent that any
such claims may exist and may have value, such value would
constitute primarily "nuisance" value or "leverage" value in
adversarial proceedings between any Borrower or Guarantor and
Agent or any such Lender. In any event, each Borrower and
Guarantor acknowledges and agrees that the value to such Borrower
or Guarantor of the covenants and agreements on the part of Agent
and each Lender contained in this Agreement substantially and
materially exceeds any and all value of any kind or nature
whatsoever of any claims or other liabilities waived or released
by such Borrower or Guarantor hereunder.
1. Further Assurances. Borrowers and Guarantors agree to take
such further action as Agent shall reasonably request in
connection herewith to evidence the agreement herein contained.
1. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same instrument.
1. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and permitted
assigns of the parties hereto.
1. Counsel and Advisors. Each Borrower and Guarantor
acknowledges that it has consulted with counsel and with such
other expert advisors as it deemed necessary in connection with
the negotiation, execution and delivery of this Agreement. This
Agreement shall be construed without regard to any presumption or
rule requiring that it be construed more strongly against the
party causing this Agreement or any part hereof to be drafted.
1. Relationship of Parties. Nothing in this Agreement shall be
construed to alter the existing debtor-creditor relationship
between Borrowers, Agent and Lenders, nor the relationship of
each Guarantor as a Guarantor of the Borrowers' obligations to
Agent and Lenders. This Agreement is not intended, nor shall it
be construed to create, a partnership or joint venture
relationship between any of the parties hereto.
1. Modification of Agreement. This Agreement may not be
modified, altered or amended except by agreement in writing
signed by all of the parties hereto.
1. Entire Agreement. This Agreement, together with the Loan
Documents, embodies the entire understanding and agreement among
the parties hereto and thereto with respect to the subject matter
hereof and thereof and supersedes all prior agreements,
understandings and inducements, whether express or implied, oral
or written.
1. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws and decisions of the State
of New York, excluding laws and decisions related to conflicts of
laws.
1. No Novation, Etc. This Agreement is not intended to be, nor
shall it be construed to create, a novation or accord and
satisfaction, nor an election of remedies by Agent or any Lender,
and, except as otherwise expressly stated herein, the Loan
Documents shall remain in full force and effect in accordance
with their respective terms, as supplement hereby if applicable.
Notwithstanding any prior mutual temporary disregard of any of
the terms of any of the Loan Documents, the parties agree that
the terms of each of the Loan Documents shall be strictly adhered
to on and after the date hereof, except as expressly modified by
this Agreement.
1. Matters Regarding Guarantors. Each Guarantor acknowledges
and agrees that neither the execution, delivery or performance of
this Forbearance Agreement, nor any action taken in reliance
hereon or to effect this Forbearance Agreement shall have any
affect on or constitute a release, novation, satisfaction or any
modification of the obligations of the Guarantors to Agent or the
Lenders, all of which shall remain in full force and effect in
accordance with the written provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of
the date first written above.
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
Name:
Title:
LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
Name:
Title:
FLEET CAPITAL CORPORATION
By:
Name:
Title:
FINOVA CAPITAL CORPORATION
By:
Name:
Title:
BORROWERS:
TRISM, INC.
By:
Name:
Title:
TRISM SECURED TRANSPORTATION, INC.
By:
Name:
Title:
TRI-STATE MOTOR TRANSIT CO.
By:
Name:
Title:
AERO BODY AND TRUCK EQUIPMENT, INC.
By:
Name:
Title:
TRI-STATE TRANSPORTATION SERVICES, INC.
By:
Name:
Title:
DIABLO SYSTEMS INCORPORATED D/B/A/
DIABLO TRANSPORTATION, INC.
By:
Name:
Title:
EMERALD LEASING, INC.
By:
Name:
Title:
McGIL SPECIAL SERVICES, INC.
By:
Name:
Title:
TRISM EASTERN, INC.
D/B/A X.X. XXXXXXX TRANSFER
By:
Name:
Title:
TRISM HEAVY HAUL, INC.
By:
Name:
Title:
TRISM SPECIALIZED CARRIERS, INC.
By:
Name:
Title:
TRISM SPECIAL SERVICES, INC.
By:
Name:
Title:
E.L. XXXXXX & SONS TRUCKING CO., INC.
By:
Name:
Title:
TRISM TRANSPORT, INC.
By:
Name:
Title:
TRISM TRANSPORT SERVICES, INC.
By:
Name:
Title:
TRISM LOGISTICS, INC.
By:
Name:
Title:
GUARANTORS:
TRISM MAINTENANCE SERVICES, INC.
By:
Name:
Title:
EFB, INC.
By:
Name:
Title:
TRANSPORTATION RECOVERY SYSTEMS, INC.
By:
Name:
Title:
TRISM EQUIPMENT, INC.
By:
Name:
Title:
TRISM BENEFITS, INC.
By:
Name:
Title:
