EXHIBIT 10.34
REVOLVING CREDIT AGREEMENT
Revolving Credit Agreement, dated June 28, 1996 by and among FLEET
ACQUISITION CORPORATION, a Delaware corporation ("Company"), and ASSOCIATES
COMMERCIAL CORPORATION ("Secured Party").
PRELIMINARY STATEMENT
The Company has requested the Secured Party to provide the Company with
a credit facility in the amount of $10,000,000.
The Secured Party is willing to provide the Company with a credit
facility upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby the parties hereto agree as follows:
SECTION 1
THE CREDIT
1.1 REVOLVING CREDIT LOANS. Secured Party agrees to make loans (herein
called "Revolving Credit Loans" or "Loans") to the Company from time to time
during the period commencing on the date hereof and ending June 30, 1998 or on
any earlier date as provided in Section 6.1 hereof (herein called the
"Termination Date"), in principal amounts not to exceed at any one time
outstanding, in the aggregate, the amount of $10,000,000 (such sum being
referred to herein as the "Commitment Amount"), subject to the Borrowing Base
requirements set forth below and all other terms and conditions herein,
including, without limitation, Sections 4.2 and 5.2 below (such agreement to
make Loans is referred to herein as the "Commitment").
Each Revolving Credit Loan shall be in the minimum principal amount of
$100,000 or if greater, then in multiples of $100,000. Within the limits of the
lower of the Commitment Amount or the Borrowing Base, the Company may borrow,
prepay and reborrow from time to time.
1.2 EVIDENCE OF DEBT. The Secured Party's books and records shall be prima
facie evidence of the aggregate amount from time to time owing under the
Revolving Credit Loans.
1.3 FUNDING PROCEDURES FOR REVOLVING CREDIT LOANS. Each Revolving Credit
Loan shall be requested by delivery to the Secured Party of a written loan
request signed by an officer of the Company designated by resolution of the
Board of
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Directors of the Company from time to time (the "Approved Officers") in
substantially the form attached hereto as Exhibit A ("Revolving Loan Request").
Each Revolving Loan Request shall be delivered to, and shall be received by
Secured Party not less than three Business Days prior to the date of the
proposed Loan. "Business Day" shall mean any day that is not a Saturday, Sunday
or other day in which banking institutions in Dallas, Texas are authorized or
required by law or executive order to close. Each Revolving Loan Request shall
be accompanied by a certificate ("Borrowing Base Certificate"), in substantially
the form attached hereto as Exhibit B, signed by an Approved Officer of the
Company.
1.4 COMMITMENT FEE. In consideration for Secured Party issuing the
Commitment, the Company agrees to pay Secured Party a fee ("Commitment Fee")
computed monthly at the rate of .04167% per month on the difference between the
Commitment Amount and the average daily unpaid principal balance owing under the
Revolving Credit Loans during the preceding month. The Commitment Fee shall be
paid on the fifth day of each month commencing on the first such day after the
date hereof. The Commitment Fee shall be calculated on the basis of a 365 or
366-day year, as the case may be, for the actual number of days elapsed.
1.5 REVOLVING CREDIT LOAN PREPAYMENTS. Under Section 5.2(a), the Company
may be obligated to make certain mandatory prepayments on the unpaid principal
amount of the Revolving Credit Loans. In addition, the Company may prepay the
Revolving Credit Loans in whole at any time or in part from time to time, in
either case with accrued interest to the date of such prepayment on the
principal amount being prepaid, provided that each such partial prepayment shall
be in the principal amount of $100,000 or an integral multiple thereof.
Prepayments shall be without premium or penalty.
1.6 TERM LOAN. Subject to the terms and conditions set forth herein,
Secured Party agrees to extend, on June 30, 1998 the time for the payment of the
then remaining aggregate principal balance of the Revolving Credit Loans. The
Company's obligations under such extension shall be referred to herein as the
"Term Loan".
1.7 TERM LOAN REQUEST. The Company must request the Term Loan by delivering
to Secured Party, in sufficient time such that it is received by Secured Party
prior to June 30, 1998 a written extension request signed by an Approved Officer
of the Company in substantially the form attached hereto as Exhibit C (the "Term
Loan Request"). The Term Loan shall be due in forty-eight (48) equal consecutive
monthly installments of principal due on the first day of each month commencing
on August 1, 1998. Each installment shall be rounded upwards to the next whole
dollar except in the case of the final installment which shall be in an amount
sufficient to pay in full the remaining unpaid principal amount of the Term
Loan. Each principal installment shall be accompanied by a payment of interest
accrued to the date of such installment.
1.8 TERM LOAN PREPAYMENTS. Under Section 5.2(a), the Company may be
obligated to make certain mandatory prepayments on the unpaid principal amount
of the
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Term Loan. In addition, the Company shall have the right to prepay the Term
Loan in whole at any time or in part from time to time, together with accrued
interest to the date of such prepayment on the principal amount being prepaid.
Each prepayment shall be in the amount of $100,000 or an integral multiple
thereof and shall be applied first to accrued interest and then to principal
installments remaining on the Term Loan in the inverse order of their
maturities.
1.9 INTEREST. The Company will pay interest on the unpaid principal balance
of each Revolving Credit Loan and the Term Loan, accrued from the date of such
loan until the principal amount thereof is paid in full, at a rate per annum
equal to the following:
the interest rate on the interest
rate
the Revolving Credit on the Term
If the Prime Rate is: Loan shall be: Loan shall be:
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Equal to or less than 6.5% The Prime Rate The Prime
Rate plus 1 1/2% plus 1 1/2%
Less than or equal to 6.75%
and greater than 6.5% 8.1875% 8.625%
Less than or equal to 7%
and greater than 6.75% 8.3750% 8.75%
Less than or equal to 7.25%
and greater than 7% 8.5625% 8.875%
Less than or equal to 7.5%
and greater than 7.25% 8.7500% 9.0%
Less than or equal to 7.75%
and greater than 7.5% 8.9375% 9.125%
Less than or equal to 8%
and greater than 7.75% 9.1250% 9.250%
Less than or equal to 8.25%
and greater than 8% 9.3125% 9.375%
Less than or equal to 8.5%
and greater than 8.25% 9.5% 9.5%
Greater than 8.5% The Prime Rate The Prime
Rate plus .75% plus .75%
The Prime Rate shall mean the per annum lending rate publicly announced
from time to time by Corestates Bank, N.A. (or any successor bank(s) thereof) as
the base rate for unsecured short term business loans, such rate being the rate
presently referred to by some banks as its base rate or as its reference rate or
as its corporate base rate or as its prime rate for unsecured loans of the
shortest maturity to corporate borrowers. Interest shall be calculated on the
basis of a 365 or 366-day year as the case may be for the actual number of days
elapsed and shall
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change as and when the Prime Rate shall change. Interest shall be payable
on the first day of each month commencing with the first such day after the date
of each Revolving Credit Loan, or the Term Loan, as applicable, and on the
Termination Date. In the event any Event of Default (as defined herein) shall
have occurred and be continuing and provided all related notices have been
given, a default rate (the "Default Rate") shall be payable monthly on the first
day of each month, or on demand by the Secured Party from and after the date of
occurrence and until such time as no Event of Default shall continue to exist.
Such Default Rate shall be a rate per annum equal to two percent (2.0%) in
excess of the interest rate then applicable to the Revolving Credit Loan or Term
Loan.
1.10 PAYMENTS GENERALLY. All payments of principal, interest and fees or
other amounts payable hereunder, shall be remitted to the Secured Party at the
address set forth opposite its name on the signature pages hereof in immediately
available funds. In the event any payment is stated as due on a day which is not
a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day and interest shall continue to accrue during such
extension.
SECTION 2
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Secured Party that:
2.1 ORGANIZATION, STANDING. Chemical Xxxxxx Corporation and the Company
each is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority necessary to own its assets, carry on its business and enter into
and perform its obligations hereunder, under the Revolving Credit Loans, under
the Term Loan and under all related loan documents (this Agreement, the
Revolving Loan Requests, the Term Loan Request, the Security Agreement (defined
in Section 3.1) and all related loan documents being referred to herein,
individually as a "Loan Document" and collectively, as the "Loan Documents").
Except as set forth in Exhibit D hereof, the Company is qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in which
it is required to so qualify unless the failure to so qualify would not (i) have
a material adverse effect on the Company or (ii) affect the validity or
enforceability of any Loan Document. Exhibit E attached hereto contains an
officer's certificate listing each state in which the Company has filed for or
obtained approval to operate and each state in which the Company provides
intra-state service under the jurisdiction of any state regulatory agency.
2.2. CORPORATE AUTHORITY, 2 The making and performance of the Loan
Documents are within its power and authority and have been duly authorized by
all necessary corporate action. The making and performance of the Loan Documents
do not and will not require any consent or approval of any of its shareholders
or any other person which has not been obtained, do not and will not violate any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award, do not violate any provision of its
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charter or by-laws, do not and will not result in any breach of any
agreement for payment of money where the indebtedness thereof exceeds $250,000
or any lease having a present value in excess of $50,000 to which it is a party,
by which it is bound or to which any of its assets is or may be subject, and do
not and will not give rise to any lien or charge upon any of its assets except
in favor of the Secured Party. It is not in default in any material respect
under any of the foregoing. Exhibit F attached hereto is a copy of the
resolution of the Company's Board of Directors authorizing it to enter into this
Agreement, the other Loan Documents, and the transactions contemplated pursuant
hereto and thereto, and naming by Approved Officers who are duly authorized to
execute this Agreement and the other Loan Documents and to take other actions
pursuant hereto and thereto.
2.3 VALIDITY OF DOCUMENTS. Each Loan Document, when executed and delivered,
will be the legal, valid and binding obligation of the Company enforceable
against it in accordance with its terms. The Guaranty, when executed and
delivered, will be the legal, valid, binding obligation of Chemical Xxxxxx
Company enforceable in accordance with its terms. Each Loan Document which
purports to create a lien or security interest, when executed and delivered,
will be effective to create the lien or security interest it purports to create.
Except as has been duly obtained and recited in Exhibit G attached hereto, no
authorization, consent, approval, license, exemption of or filing or
registration with any court, governmental agency or other tribunal is or will be
necessary to the validity or performance of any Loan Document.
2.4 LITIGATION. There are no actions, suits or proceedings pending or
threatened against or affecting it or any of its assets before any court,
government agency, or other tribunal, which would have a material adverse effect
on its or its Affiliates' financial condition, operation or assets or upon its
ability to perform under the Loan Documents. "Affiliate" means any person who
directly or indirectly controls or is controlled by or is under common control
with the Company. "Control" means the power to direct or cause direction of the
management and policies of the controlled person.
2.5 ERISA. Each employee benefit plan of the Company or multi-employer plan
(the "Plans") in which any employee of the Company participates that is subject
to any provision of the Employee Retirement Income Security Act of 1974 or the
Multiemployer Pension Plan Amendments Act of 1980 and of the regulations adopted
pursuant thereto (hereinafter collectively called "ERISA") is being administered
in accordance with the documents and instruments governing such Plan, and such
documents and instruments are substantially consistent with the applicable
provisions of ERISA. None of the Plans or the trusts created thereunder have
engaged in a "Prohibited Transaction" which could subject any such Plan or trust
to a material tax or penalty on prohibited transactions imposed by the Internal
Revenue Code of 1986, as amended (the "Code"), or ERISA. None of the Plans which
are "Employee Pension Benefit Plans" or the trusts created thereunder have been
terminated; nor has any such Plan incurred any material liability to the Pension
Benefit Guaranty Corporation established pursuant to ERISA, other than for
required insurance premiums which have been paid when due. or incurred any
material "Accumulated Funding
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Deficiency" whether or not waived; nor has there been any "Reportable
Event," or other event or condition, which represents a material risk of
termination or any such Plan by the Pension Benefit Guaranty Corporation. With
respect to multiemployer plans to which the Company makes contributions but does
not participate in the administration of such plans, the Company's
representations are based on information received by it concerning each such
plan. All contributions required under collective bargaining agreements to which
the Company is a party or by which it is bound have been paid. The Company has
not withdrawn from participation in any "Multiemployer Plan" to which it makes
contributions, and the Company has not received any notice and is not aware that
any multiemployer plan to which it contributes is insolvent or in reorganization
status within the meaning of ERISA. As used herein, the terms "Prohibited
Transaction" and "Multiemployer Plans" shall have the respective meanings
assigned to them in the Code and in ERISA, and the terms "Employee Benefit
Plans", "Employee Pension Benefit Plans", "Accumulated Funding Deficiency",
"Reportable Event" and "Withdrawal" shall have the respective meanings assigned
to them in ERISA.
2.6 FINANCIAL STATEMENTS. The consolidated financial statements of Chemical
Xxxxxx Corporation as of December 31, 1995 and for the period then ending,
consisting of a balance sheet, related statement of changes in financial
position and statement of operations and changes in shareholders' equity, and
accompanying footnotes, and the interim financial statements dated March 31,
1996 furnished to the Secured Party in connection herewith are in each case
complete and correct in all material respects and fairly present the financial
condition, results of operations and changes in shareholders' equity as of the
date and for the period referred to, all in accordance with generally accepted
accounting principles consistently applied, subject to fiscal year-end audit
adjustments in the case of the interim financial statements. There has been no
material adverse change in the financial condition or operation of Chemical
Xxxxxx Corporation (consolidated) since the date of the interim financial
statements except as may have heretofore been disclosed to the Secured Party in
writing with a copy being attached hereto as Exhibit H.
2.7 MARGIN REGULATIONS. No proceeds of any Loan hereunder will be applied
for the purpose of purchasing or carrying or trading in any securities,
including "Margin Stock" as defined from time to time by the Board of Governors
of the Federal Reserve System, or refinancing any credit previously extended for
any such purpose.
2.8 NOT IN DEFAULT. No Event of Default or other event which, with the
giving of notice or the passage of time or both, would constitute an Event of
Default under any Loan Document has occurred and is continuing.
2.9 APPROVAL OF REGULATORY AGENCIES. No consent, approval or authorization,
or designation, declaration or filing with any governmental agency or authority
which could in any way now or hereafter affect the validity or enforceability of
any Loan Document is required which has not been obtained.
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2.10 TAX RETURNS. The Company has filed all federal, state and local tax
returns and reports which it is required by law to file and has paid all taxes,
assessments, withholdings and other governmental charges which are presently due
and payable.
2.11 PERMITS, LICENSES, ETC. The Company possesses all permits, licenses,
franchises, trademarks, copyrights and patents necessary to the conduct of its
business as presently conducted or as presently proposed to be conducted, the
absence of which would (i) have a material adverse effect on the Company, or
(ii) affect the validity or enforceability of any Loan Document.
2.12 DISCLOSURE GENERALLY. The representations and statements made by or
on behalf of the Company in connection with this credit facility and Loans
hereunder, including representations and statements in each of the Loan
Documents, do not and will not contain any untrue statement of a material fact
or omit to state a material fact or any fact necessary to make the
representations made not materially misleading. No written information, exhibit,
report, brochure or financial statement furnished by the Company to the Secured
Party in connection with this credit facility, Loans hereunder, or any Loan
Document contains or will contain any material misstatement of fact or omit to
state a material fact or any fact necessary to make the statements contained
herein not misleading.
SECTION 3
SECURITY
3.1 SECURITY DOCUMENTS. As security for the Obligations, as defined herein,
the Secured Party shall have a valid, perfected first lien on and security
interest in those assets of the Company specified in the Revolving Security
Agreement of even date between the Company and the Secured Party and all
Schedule A's attached to the Revolving Security Agreement now or at any time in
the future pursuant to the terms thereof (as amended and supplemented, the
"Security Agreement"). "Obligations" shall mean the Revolving Obligations, as
defined in Section 5.2(a), and all other absolute and contingent obligations and
liabilities of the Company to the Secured Party now existing or hereafter
arising, whether under this Agreement or any other agreement, including without
limitation, liabilities arising as a result of preference claims under Section
547 of the Bankruptcy Code.
3.2 RELEASE OF COLLATERAL. Provided the Company is not in default under any
agreement between the Company and the Secured Party, upon the payment in full of
the Revolving Obligations and the termination of the Commitment, the Secured
Party shall release the lien and security interest of the Secured Party in the
assets of the Company as specified in each of the Loan Documents and shall do
such things as are reasonably requested by the Company to effect such release.
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SECTION 4
CONDITIONS PRECEDENT
4.1 OBLIGATIONS OF SECURED PARTY. The obligation of Secured Party to make
any Loan or to permit the conversion of the Revolving Credit Loans to the Term
Loan is conditioned upon the following:
(a) DOCUMENTS. The Company shall have delivered and the Secured Party
shall have received, as applicable, a Revolving Loan Request or a Term Loan
Request, and a Borrowing Base Certificate (dated a date which is the last
day of the immediately preceding calendar month or a day in the instant
calendar month, as the Company may elect), and the Secured Party shall also
have received a certificate dated the date of such Loan or Term Loan and
signed by an Approved Officer of the Company to the effect set forth in
Section 4.1(c).
(b) CONDITIONS. The amount of such Loan, when added to the Revolving
Obligations, would not exceed the lesser of (i) the Borrowing Base on the
date of such Loan or (ii) the Commitment Amount and, after giving effect to
such Loan no Event of Default or event, which with the giving of notice or
the lapse of time or both, would constitute an Event of Default, shall
exist.
(c) COMPLIANCE; REPRESENTATIONS AND WARRANTIES. The Company and
Chemical Xxxxxx Corporation shall have complied and be in compliance with
all covenants, agreements and conditions in each Loan Document and each
representation and warranty contained in each Loan Document shall be true
with the same effect as though such representation and warranty had been
made on the date of such Loan.
(d) EVIDENCE OF AUTHORIZATION. The Secured Party shall have received
certified copies of all corporate or other action taken by the Company and
Chemical Xxxxxx Corporation to authorize its execution, delivery and
performance of the Loan Documents and to authorize the Loans hereunder,
together with such other related papers as the Secured Party shall
reasonably require.
(e) INCUMBENCY. The Secured Party shall have received a certificate
signed by the secretary or assistant secretary of the Company together with
the true signature of such officer or officers, upon which the Secured
Party shall be entitled to rely conclusively until it shall have received a
further certificate of the appropriate secretary or assistant secretary
amending the prior certificate and submitting the signature of the officer
or officers named in the new certificate.
(f) SECURITY AGREEMENT. The Secured Party shall have received a
Supplemental Schedule A to the Security Agreement in the form attached
hereto as Exhibit I describing the additional Revenue Equipment, if any,
which is necessary to satisfy the Borrowing Base requirements below,
together with all instruments, certificates of title, financing statements
and other documents then
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required to be delivered pursuant to the Security Agreement, in each
instance in form and substance satisfactory to the Secured Party.
(g) EVIDENCE OF PRIORITY. The Secured Party shall have received
evidence it deems reasonably appropriate that it has a first priority and
perfected security interest and lien on the Revenue Equipment.
(h) GUARANTIES. The Continuing Guaranty dated of even date herewith
which was executed by Chemical Xxxxxx Corporation for the benefit of the
Secured Party relating to the Company's obligations (the "Guaranty") shall
continue to apply to future obligations incurred by the Company and shall
be in full force and effect.
4.2 REVOLVING CREDIT LOANS UNDER THIS AGREEMENT. The obligation of Secured
Party to make the first Revolving Credit Loan under this Agreement is further
conditioned upon the following:
(a) LEGAL OPINION. The Secured Party has received the favorable
written opinion of counsel for the Company which shall be addressed to the
Secured Party and dated the date of this Agreement, in form and substance
satisfactory to the Secured Party.
(b) SECURITY AGREEMENT. The Secured Party shall have received the
Security Agreement together with all instruments, certificates of title,
financing statements and other documents then required to be delivered
pursuant to the Security Agreement in each instance in form and substance
satisfactory to Secured Party.
4.3 TERM LOAN. The obligation of Secured Party to make the Term Loan is, in
addition to the other conditions stated in this Article 4 (including, without
limitation, those with respect to a Borrowing Base Certificate, the Term Loan
Request and the absence of any defaults), further conditioned upon receipt by
the Secured Party of copies of all consents, approvals or authorizations, each
in form and substance reasonably acceptable to the Secured Party, of all
governmental agencies and authorities which may be required in connection with
the Term Loan. If the conditions precedent herein relating to the Term Loan are
not satisfied prior to the Termination Date, the Secured Party shall have no
obligation to make the Term Loan and the Revolving Credit Loans shall then be
immediately due and payable.
SECTION 5
COVENANTS OF COMPANY
The Company agrees that, so long as either the Commitment remains in
effect, or any Revolving Obligation is outstanding:
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5.1 REPORTING REQUIREMENTS.
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available but in any event
within 120 days after the end of each fiscal year, the Company will deliver
to Secured Party financial statements of the Company and Chemical Xxxxxx
Corporation (consolidated) for such fiscal year. "Financial Statements"
shall mean a balance sheet, a statement of earnings or loss, and a
statement of change in financial position for the fiscal year and the
immediately preceding fiscal year in comparative form. Financial Statements
shall be in reasonable detail with appropriate notes and be prepared in
accordance with generally accepted accounting principles applied on a
consistent basis and certified by an officer of Chemical Xxxxxx
Corporation. Except as provided in this Subsection 5.1(a), the Annual
Financial Statements of Chemical Xxxxxx Corporation shall be certified
(without any material qualification, exception or limiting statement or
disclosure) by independent public accountants of nationally recognized
standing who shall be acceptable to the Secured Party, which acceptance
shall not be unreasonably withheld.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available but in any
event within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, the Company will deliver to Secured Party
financial statements of the Company and Chemical Xxxxxx Corporation
(consolidated) for comparable period of the preceding fiscal year and in
each instance the cumulative year to date. Quarterly financial statements
shall be certified by the president, chief executive or chief financial
officer of Chemical Xxxxxx Corporation and by an Approved Officer of the
Company, as applicable, as being complete and correct in all material
respects, subject to normal year-end audit adjustments.
(c) OTHER STATEMENTS AND REPORTS. Promptly following request by the
Secured Party, the Company also will furnish such additional information,
reports or statements as the Secured Party from time to time may reasonably
request.
(d) ANNUAL AND QUARTERLY DEFAULT CERTIFICATES. Each annual and
quarterly financial statement will be accompanied by a certificate signed
by an Approved Officer of the Company stating whether in his opinion an
Event of Default or event which with notice or lapse of time or both would
become an Event of Default exists on the date of said certificate together
with a statement of the details and action taken or to be taken if any
Event of Default or event exists. Each annual financial statement also will
be accompanied by a statement of the firm of independent public accountants
which reported on statements of Chemical Xxxxxx Corporation to the effect
that in the course of, and based solely upon their regular audit of the
financial statements of Chemical Xxxxxx Corporation nothing came to their
attention which caused them to believe that on the date of such statements
any Event of Default or event which with notice or lapse of time or both
would become an Event of Default existed. relating to Section 5.2 hereof,
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or, in the alternative that an Event of Default or event which with notice
or lapse of time or both would become an Event of Default existed, relating
to Section 5.2 hereof, and setting forth the details thereof.
(e) INTERIM DEFAULT CERTIFICATES. The Company will deliver to Secured
Party forthwith upon occurrence of any Event of Default or event which with
notice or lapse of time or both would become an Event of Default a
certificate signed by an Approved Officer of the Company stating the
details and action taken or to be taken with respect thereto.
(f) MONTHLY REPORTS. The Company will deliver to the Secured Party
within 30 days after the end of each month a Borrowing Base Certificate
dated the last day of such month together with appropriate schedules
reflecting the Revenue Equipment included in the Borrowing Base.
5.2 BORROWING BASE, FINANCIAL CONDITION AND RATIOS. The Company will
maintain a Borrowing Base as follows and the Company will maintain and agrees
that this Section 5.2 will be deemed breached if Chemical Xxxxxx Corporation (on
a consolidated basis) does not also maintain, minimum financial conditions and
ratios, as follows:
(a) BORROWING BASE. The total amount of the unpaid principal of the
Loans and the Term Loan, the accrued and unpaid interest owing under the
Loans and the Term Loan, and the accrued and unpaid fees and expenses owed
by the Company to Secured Party under this Agreement, (collectively, the
"Revolving Obligations"), shall not, in the aggregate, exceed the Borrowing
Base, provided such covenant shall not be deemed breached if, within
twenty-seven (27) days after each date on which the Revolving Obligations
exceed the Borrowing Base, a prepayment on the Revolving Obligations is
made in an amount sufficient to assure continued compliance with the
covenant going forward or additional equipment which is satisfactory to
Secured Party and which is of a Value sufficient to cause the Borrowing
Base to exceed the Revolving Obligations is added to the Revenue Equipment.
"BORROWING BASE" shall be determined on the first date of each month
and shall mean an amount equal to the then aggregate Book Value of all
Revenue Equipment on such date.
"BOOK VALUE" for an item of Revenue Equipment as of any date of
determination shall mean (a) the Value thereof plus Refurbishments thereto
less Depreciation thereto as of such date (b) times 85%. Any item of
Revenue Equipment which is lost, stolen or destroyed or which is materially
damaged but not repaired within thirty (30) days shall have a Book Value of
zero.
"VALUE" of an item of Revenue Equipment shall mean:
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(1) with respect to all Revenue Equipment listed in Schedule A to
the Security Agreement ("Schedule A") as of _________________,
the respective values thereof;
(2) with respect to each used item of equipment to be added as
Revenue Equipment to Schedule A at a later date, (i) the value of
similarly equipped Revenue Equipment of the same manufacturer, model
and year listed in the appraisal prepared by Xxxx Xxxxxxx of The Xxxx
Xxxxx Co. dated May 15, 1996 (the "Appraisal") less Depreciation and
(ii) which does not meet the parameters of subsection (i) of this
paragraph (2), the value which Secured Party and Company shall agree
upon, and (iii) if subsections (i) and (ii) of this paragraph (2) are
not applicable, then the appraised value which Xxxx Xxxxxxx of The
Xxxx Xxxxx Co. shall determine in accordance with the method used by
Xxxx Xxxxxxx of The Xxxx Xxxxx Co. under the Appraisal;
(3) with respect to each item of equipment purchased new by the
Company, which has not been used by the Company or anyone else for
more than ninety (90) days at the time it is to be added as Revenue
Equipment to Schedule A at a later date, the purchase cost to Company
of such new item of Revenue Equipment.
"REFURBISHMENTS" shall mean an amount equal to 80% of the cost to
Company of the work performed by independent, unaffiliated third parties
constituting material rebuilding or replacement of the superstructure,
undercarriage, tanks, liners, cryogenic equipment or the like of the Revenue
Equipment. Such costs shall constitute Refurbishments only in the event the
related work is performed on an item of Revenue Equipment subsequent to the date
such item of Revenue Equipment is added to Schedule A as Revenue Equipment. In
no event shall all aggregate Refurbishments, for purposes of determining the
Borrowing Base, exceed $1,000,000.00 per year. Repairs to damaged Revenue
Equipment shall not be deemed Refurbishments.
"DEPRECIATION" for an item of Revenue Equipment as of any date of
determination shall mean an amount equal to .83% of its original value when new
as determined by Xxxx Xxxxxxx of The Xxxx Xxxxx Company times (a) in the case of
Revenue Equipment whose Value is determined under paragraphs (1), (2)(ii),
(2)(iii) or (3) above, the number of months such item of Revenue Equipment has
been listed as Revenue Equipment on Schedule A and (b) in the case of Revenue
Equipment whose Value is determined under paragraph (b)(i) above, the number of
months from the effective date hereof to the date of determination.
"REVENUE EQUIPMENT" shall mean all the Company's trucks,
tractors, trailers and similar equipment described in Schedule A to the Security
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Agreement as such Schedule A shall be amended or supplemented from time to time,
in which Secured Party has a first priority and perfected security interest.
(b) CURRENT RATIO. A current ratio (Current Assets to Current
Liabilities exclusive of the current portion of long term liabilities) of not
less than 1:1. Current Assets and Current Liabilities shall mean, respectively,
all assets or liabilities of the Company which would, in accordance with
generally accepted accounting principles, be classified as current assets or
current liabilities, as applicable; provided, however, that the term Current
Liabilities shall exclude the Company's obligations under this Agreement.
(c) TANGIBLE NET WORTH. Tangible net worth (tangible assets i.e.,
total assets excluding patents, copyrights, capitalized research and development
costs, goodwill, operating rights and other intangible assets, minus total
liabilities (excluding all operating leases)) of the Company of not less than
$2,100,000. Tangible net worth of the Chemical Xxxxxx Corporation (on a
consolidated basis) of not less than $20,000,000.
(d) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH. A ratio of Total
Funded Debt to Tangible Net Worth of Chemical Xxxxxx Corporation which is not at
any time more than 5.50:1 "Total Funded Debt shall mean the total outstanding
amount of all indebtedness for borrowed money of Chemical Xxxxxx Corporation
("CLC") and its subsidiaries on a consolidated basis, including, without
limitation, (i) amounts owing to CoreStates Bank, N.A. under and pursuant to its
Credit Agreement with Chemical Xxxxxx Tank Lines, Inc. ("CLTL"); (ii) all
obligations of Borrower and CLTL in favor of Secured Party; (iii) all
indebtedness of CLC's subsidiaries pursuant to equipment loans and capital
leases; (iv) all obligations of CLC's subsidiaries under operating leases
discounted to present value at the rate of return which the lessee will pay on
each lease; and (v) all other obligations of CLC's subsidiaries for borrowed
money.
(e) DEBT COVERAGE. With respect to Chemical Xxxxxx Corporation
(on a consolidated basis), a ratio of Current Income to Current Obligations at
all times specified not less than 1.00:1.
"CURRENT INCOME" shall mean the net income of Chemical Xxxxxx
Corporation (on a consolidated basis) for the fiscal period plus depreciation
deducted during the period and amounts added to or subtracted from, as
applicable, any reserve for deferred tax liability during the period minus any
dividends or distributions paid or declared during the period.
"CURRENT OBLIGATIONS" shall mean (i) the amount of all
obligations of Chemical Xxxxxx Corporation (on a consolidated basis) maturing
within the next succeeding 365 days excluding the obligations of Chemical Xxxxxx
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Tank Lines, Inc. under the revolving credit facility with CoreStates
Bank, N.A. and the Receivables Purchase Agreement between Chemical Xxxxxx Tank
Lines, Inc., Quala Systems, Inc. and Xxxxxxxxx Way Funding Corp.; plus (ii) 20%
of the principal balance of the Loans and Term Loan outstanding hereunder. In
calculating this ratio, Current Income shall be determined for each period based
upon actual Current Income for the preceding four fiscal quarters.
5.3 PERFORMANCE OF LOAN DOCUMENTS; FURTHER ASSURANCES. The Company will
duly and punctually perform each and every undertaking under each Loan Document
and execute and deliver all such other and further instruments, and do and
perform all such further acts and things as the Secured Party may reasonably
request to assure the rights and benefits afforded by the Loan Documents or
which are intended so to be afforded, including but not limited to rights and
benefits of any security interest therein granted.
5.4 COMPLIANCE WITH LAWS. The Company will comply with all applicable laws,
rules, regulations and orders of any governmental authority to which it may be
subject, the failure to which would (i) have a material adverse effect on the
Company or (ii) affect the validity or enforceability of the Loan Documents,
including but not limited to the payment and discharge of all taxes, assessments
and governmental charges upon it, its income and its assets and properties prior
to the dates on which penalties are attached thereto, except to the extent such
compliance shall be contested in good faith and by appropriate proceedings.
5.5 MAINTENANCE OF ASSETS; PERMITS, LICENSES, ETC. The Company will
maintain and preserve the Revenue Equipment and substantially all of its other
assets in good working order and condition, ordinary wear and tear excepted, and
will continue to possess all permits, licenses, franchises, trademarks,
copyrights, and patents necessary to the conduct of its business as conducted or
as proposed to be conducted, the failure to which would (i) have a material
adverse effect on the Company or (ii) affect the validity or enforceability of
the Loan Documents. As set forth in the definition of "Book Value" in Section
5.2 herein, any item of Revenue Equipment which is lost, stolen or destroyed or
which is materially damaged and not repaired within thirty (30) days shall have
a Book Value of zero, but shall not otherwise constitute a breach of this
covenant by the Company.
5.6 CORPORATE EXISTENCE. The Company and Chemical Xxxxxx Corporation each
will maintain itself in good standing as a business corporation under the
jurisdiction of its incorporation and qualify and remain qualified to do
business in all jurisdictions where the nature of the business it transacts or
the character of the assets or properties owned or leased by it makes such
qualification necessary, the failure to which would (i) have a material adverse
effect on the Company or (ii) affect the validity or enforceability of the Loan
Documents.
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5.7 BOOKS AND RECORDS. The Company will keep adequate records and books of
account in which complete and correct entries will be made in accordance with
generally accepted accounting principles, reflecting all its financial
transactions. The Company will permit the Secured Party, or the representative
of the Secured Party to examine and make copies of and abstracts from the
records and books of account, visit the properties of the Company, and discuss
the affairs, finances, assets and accounts of the Company with any officer,
director or other executive of the Company from time to time during normal
business hours upon reasonable notice to the Company.
5.8 MERGER; PURCHASE OR SALE OF ASSETS. The Company will not (a) dissolve,
(b) adopt or enter into any plan or agreement of liquidation, (c) enter into any
merger or consolidation with or acquire all or substantially all of the assets
of any other person unless the surviving entity shall be the Company, or (d)
sell or otherwise suffer a transfer of any shares of its capital stock to any
person other than Chemical Xxxxxx Corporation or a subsidiary or affiliate.
5.9 NATURE OF BUSINESS. The Company shall not change the nature of its
business to the extent that the Revenue Equipment would not be appropriate to
service its business. In this regard, the Company acknowledges that (i)
currently, the nature of the Company's business is over the road haulage of bulk
products, chemicals, petroleum, natural gas and the like (the "Basic Business")
and (ii) the Company has selected and purchased the Revenue Equipment
specifically to serve the Basic Business.
SECTION 6
DEFAULT
6.1 EVENTS OF DEFAULT. The Company shall be in default if any one or more
of the following events ("Event of Default") occurs:
(a) PRINCIPAL OR INTEREST. The Company fails to pay any installment of
principal of or interest on the Loans or the Term Loan within 5 days after
the date it is due and payable (whether at maturity, by notice of intention
to prepay, or otherwise) or fails to pay within 10 days after written
notice that any other amount is due and payable under any Loan Document;
(b) LIMITED NOTICE COVENANTS. The Company fails to observe or perform
any covenant or agreement contained in Sections 5.1, 5.2, 5.6, 5.7, 5.8 or
5.9 for 5 days after written notice thereof has been given by the Secured
Party specifying the default and requiring that it be remedied;
(c) NOTICE COVENANTS. The Company fails to observe or perform any
covenant or agreement contained in any Loan Document other than those
contemplated in clause (b) above for 30 days after written notice thereof
has been given by the Secured Party specifying the default and requiring
that it be remedied;
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(d) REPRESENTATIONS, WARRANTIES, ETC. Any representation or warranty
made by the Company in any Loan Document or any statement or representation
made in any certificate (including, without limitation, the Revolving Loan
Request, the Term Loan Request and the Borrowing Base Certificates), report
or opinion delivered in connection with any Loan Document shall prove to
have been incorrect in any material respect when made;
(e) CROSS DEFAULT. Any obligation of the Company or Chemical Xxxxxx
Corporation owed to Secured Party shall be declared in default; any
obligation of the Company or Chemical Xxxxxx Corporation to any other
person for payment of money where the indebtedness thereof exceeds
$1,000,000, becomes or is declared to be due and payable prior to its
stated maturity; or any obligation of the Company or Chemical Xxxxxx
Corporation under any lease having a present value in excess of $1,000,000,
whether operating or capital in nature, shall be declared in default the
effect of which will permit the lease to be terminated or money damages to
be collected;
(f) BANKRUPTCY, ETC. The Company or Chemical Xxxxxx Corporation is
dissolved or liquidated, makes an assignment for the benefit of creditors,
files a petition in Bankruptcy, is adjudicated insolvent or bankrupt,
petitions or applies to any tribunal for any receiver or trustee, commences
any proceeding relating to itself under any bankruptcy, reorganization,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, has commenced against it any such proceeding which remains
undismissed for a period of 60 days, indicates its consent to, approval of
or acquiescence in any such proceeding or any receiver of or trustee for
the Company or Chemical Xxxxxx Corporation for any substantial part of the
property of either is appointed, or the Company or Chemical Xxxxxx
Corporation suffers any such receivership or trusteeship to continue
undischarged for a period of 60 days;
(g) JUDGMENT. Any judgments against the Company or any attachments
against its assets or property for amounts in excess of $200,000 in the
aggregate remain unpaid, unstayed on appeal, undischarged, unbonded and
undismissed for a period of 30 days;
(h) ERISA. Any Reportable Event (as such term is defined in ERISA) or
any other fact or circumstance which the Secured Party in good faith
determines constitutes ground for the termination of any employee benefit
plan maintained for employees of the Company or Chemical Xxxxxx Corporation
and covered by Title IV of ERISA or grounds for the appointment by an
appropriate United State District Court of a trustee to administer any such
plan, shall have occurred and be continuing for 5 days, or any such plan
shall be terminated within the meaning of such Title IV, or a trustee shall
be appointed by the appropriate United States District Court to administer
such plan or the Pension Benefit
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Guaranty Corporation shall institute proceedings to terminate any such plan
or to appoint a trustee to administer such plan, if upon the termination of
the plan or plans with respect to which any of the foregoing events shall
have occurred there is or would be, in the reasonable judgment of the
Secured Party, a material resultant liability of the Company or Chemical
Xxxxxx Corporation;
(i) OWNERSHIP. Control or ownership of the Company is transferred,
modified or changed in any manner, either directly or indirectly except to
a subsidiary or affiliate of Chemical Xxxxxx Corporation;
THEN and in every such event other than those specified in clause (f)
above, Secured Party may, in its sole discretion, terminate the Commitment in
writing (the date of such termination being a Termination Date as defined in
Section 1.1) and declare in writing the Obligations payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company. Upon the occurrence of any event specified in
clause (f) above, the Commitment shall automatically terminate and the
Obligations shall immediately be due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Company.
SECTION 7
MISCELLANEOUS
7.1 WAIVER. No failure or delay on the part of the Secured Party exercising
any right, power or remedy under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy under any Loan Document. The remedies provided
under the Loan Documents are cumulative and not exclusive of any remedies
provided by law.
7.2 AMENDMENTS. No amendment, modification, termination or waiver of any
Loan Document or any provision thereof nor any consent to any departure by the
Company or Chemical Xxxxxx Corporation therefrom shall be effective unless the
same shall be in writing and be signed by the Secured Party and the Company and
then any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on the
Company shall entitle the Company to any other or further notice or demand in
similar or other circumstances. No amendment, modification, termination or
waiver shall affect the payment of principal, interest or any fee provided
herein, or change the Commitment unless signed by the parties hereto.
7.3 GOVERNING LAW. The Loan Documents and all rights and obligations of the
parties hereunder shall be governed by and be construed and enforced in
accordance with the laws of Pennsylvania.
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7.4 ASSIGNMENT. Each Loan Document shall bind and inure to the benefit of
the Company and Secured Party and their respective successors and assigns,
except that the Company shall not have the right to assign any of its rights,
obligations or any interest of it under any Loan Document without the prior
written consent of the Secured Party. No person not a party to any Loan
Documents is intended to be benefited thereby.
7.5 SEVERABILITY. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without affecting the
validity or enforceability of such provision in any other jurisdiction.
7.6 CAPTIONS. Captions in the Loan Documents are included for convenience
of reference only and shall not constitute a part of any Loan Document for any
other purpose.
7.7 NOTICES. All notices, requests, demands, directions, declarations and
other communications between the Secured Party and the Company provided for in
any Loan Document shall be in writing and shall be deemed to have been duly
given (i) on the date of delivery if delivered personally or by telecopy, (ii)
on the first Business Day following the date of dispatch if delivered by Federal
Express or other next-day courier service, or (iii) on the third Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered to the address indicated by the respective signature on the signature
page hereto. Any party may change its address by a communication in accordance
herewith.
7.8 EXPENSES OF THE SECURED PARTY. The Company will from time to time
reimburse the Secured Party on demand for all expenses (including the reasonable
fees and expenses of legal counsel) in connection with the preparation of the
Loan Documents, the making of any Revolving Credit Loans, the ordinary
administration of the Loan Documents, including all out-of-pocket expenses
incurred by the Secured Party with respect to obtaining, amending, or releasing
certificates of title, the enforcement of the Loan Documents, appraisals under
Section 5.2 hereof, and except for liabilities and damages arising from the
Secured Party's gross negligence, willful misconduct or breach of this Agreement
or any Loan Document, all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits and costs expenses and disbursements which may be
imposed on, incurred by or asserted against the Secured Party in any way
relating to or arising out of this Agreement or any Loan Document or any action
taken or omitted by the Secured Party hereunder or thereunder.
7.9 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendment hereto or
waiver hereof may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement and any amendments hereto or
waivers hereof shall become effective when the Secured Party shall have received
signed counterparts or notice by telecopy of the signature page that the
counterpart has been signed and is being
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delivered to the Secured Party or telex that such counterparts have been signed
by all of the parties hereto or thereto.
7.10 FINANCING STATEMENTS. Secured Party has filed against the Company
financing statements with collateral descriptions covering all of the Company's
present and future trailers and semi-trailers. In the event the Company (i)
seeks financing from a source other than Secured Party and such source requires
as a condition to such financing a lien against trailers and semi-trailers other
than the Revenue Equipment (the "Additional Equipment"), or (ii) elects to sell,
transfer or otherwise dispose of any item of Additional Equipment, upon the
Company's written request Secured Party agrees to promptly release its interest
in the Additional Equipment and execute and deliver to the Company such
documents and instruments as the Company may reasonably request to evidence such
release. The agreement within this Section shall not be construed as waiver of
any of the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the Company and the Secured Party have caused this
Agreement to be executed by their proper corporate officers thereunto duly
authorized as of the day and year first above written.
FLEET ACQUISITION CORPORATION
000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
Chief Financial Officer ---------------------------
Telecopy #(000) 000-0000 Title: Executive Vice President
------------------------
ASSOCIATES COMMERCIAL CORPORATION
000 X. Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx ----------------------------
Telecopy #(000) 000-0000 Title: Vice President
-------------------------
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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This First Amendment dated effective as of December 31, 1996 is by and
between Fleet Transport Company, Inc., a Delaware corporation ("Company") and
ASSOCIATES COMMERCIAL CORPORATION ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to a Revolving Credit
Agreement dated June 28, 1996 ("Agreement");
WHEREAS, the Company and Secured Party hereby desire to amend the Agreement
but only to the extent specifically set forth herein. All capitalized terms used
herein and not otherwise defined shall have the respective meanings ascribed to
them in the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, intending to be legally bound hereby and subject to the
satisfaction of the conditions hereinafter set forth, the parties hereto agree
as follows:
1. Section 5.2(c) TANGIBLE NET WORTH. Section 5.2(d) is hereby deleted and
the following language is hereby substituted therefor:
(c) TANGIBLE NET WORTH. Tangible net worth (tangible assets i.e., total
assets excluding patents, copyrights, capitalized research and development
costs, goodwill, operating rights and other intangible assets, minus total
liabilities (excluding all operating leases)) of the Company of not less than
$2,100,000. Tangible net worth of Chemical Xxxxxx Corporation (on a consolidated
basis including the book value of all outstanding Series A, B and C Preferred
Stock and including the stock subscription loan receivable in the amount of
$1,520,000 due from Xxxxx X. Xxxxxxxx) of not less than $20,000,000.
2. Section 5.2(d) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH. Section 5.2(e)
is hereby deleted and the following language is substituted therefor:
(d) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH. A ratio of Total Funded
Debt to Tangible Net Worth of Chemical Xxxxxx Corporation which is not at
any time more than 5.50:1. "Total Funded Debt" shall mean the total outstanding
amount of all indebtedness for borrowed money of Chemical Xxxxxx Corporation
("CLC") and its subsidiaries on a consolidated basis, including without
limitation, (i) amounts owing to CoreStates Bank, N.A. under and pursuant to its
Credit Agreement with the Company; (ii) all obligations of the Company and Fleet
Transport Company, Inc. in favor of Secured Party; (iii) all indebtedness of
CLC's subsidiaries pursuant to equipment loans and capital leases; (iv) all
obligations of CLC's subsidiaries under operating leases discounted to present
value at the rate of return which the lessee will pay on each lease; and (v) all
other obligations of CLC's subsidiaries for borrowed money. Total Funded Debt
shall be reduced by the amount of restricted cash contained in the Seller
Sub-Account as that term is defined in the Xxxxxxxxx Way Funding Trust Pooling
and Servicing Agreement dated as of May 14, 1993.
3. Representations and Warranties. The Company restates the representations
and warranties made in Article IV of the Agreement on and as of the date hereof
as if originally given on such date.
4. Covenants. The Company warrants that it is in compliance and has
complied with each and every covenant set forth in Article V of the Agreement on
and as of the date hereof.
5. Corporate Authorization. As a condition of the Secured Party's agreement
to enter into and perform this Amendment, the Company will provide to Secured
Party (i) certified resolutions of the Company's board of directors authorizing
the execution and delivery of this Amendment and (ii) an incumbency certificate
specifying the officer(s) of the Company duly authorized to execute this
Amendment.
6. Effect of Amendment, This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized effective as of the day and year first above written.
FLEET TRANSPORT COMPANY, INC. ASSOCIATES COMMERCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ --------------------------------
Title: Executive Vice President Title: Vice President
--------------------------- -----------------------------
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
This Second Amendment dated effective as of March 30, 1997 is by and
between Fleet Transport Company, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to a Revolving Credit
Agreement dated as of June 28, 1996 (the "Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the Agreement but
only to the extent specifically set forth herein. All capitalized terms used
herein and not otherwise defined shall have the respective meanings ascribed to
them in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows;
1. Section 6.2. The language "85%" in the definition of BOOK VALUE in Section
5.2(a) of the Agreement is hereby deleted and replaced with the following
language: "90%".
2. Representations and Warrenties. The Company restates the representations
and warranties made in Article 2 of the Agreement on and as of the date
hereof as if originally given on such date.
3. Covenants. The Company warrants that it is in compliance and has complied
with each and every covenant set forth In Article 5 of the Agreement on and
as of the date hereof.
4. Corporate Authorization. As a condition of the Secured Party's agreement to
enter into and perform this Amendment, the Company will provide to Secured
Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an
incumbency certificate specifying the of officer(s) of the Company duly
authorized to execute this Amendment.
5. Effect of Amendment. This Amendment amends the Agreement only to the extent
and in the manner herein set forth, and in all other respects the Agreement
is ratified and confirmed.
6. Counterparts. This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this Amendment to
be executed by their proper corporate officers thereunto duly authorized
effective as of the day and year first above written.
FLEET TRANSPORT COMPANY, INC. ASSOCIATES COMMERCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ --------------------------------
Title: Executive Vice President Title: Vice President
--------------------------- -----------------------------
