FIRST AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this
"First Amendment") dated as of January 9, 2001, by and among SIMON
TRANSPORTATION SERVICES INC., a Nevada corporation ("Simon"), XXXX XXXXX
TRUCKING, INC., a Utah corporation ("Trucking", together with Simon sometimes
referred to collectively as the "Borrowers" and individually as a "Borrower"),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Lender").
RECITALS:
A. Borrowers and Lender entered into a certain Credit and
Security Agreement dated as of September 28, 1999, pursuant to which the Lender
agreed to make a Revolving Credit Loan available to Borrowers in the principal
amount of up to $20,000,000 (the "Credit Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
B. Borrowers and Lender desire to amend the Credit Agreement
and supplement the Loan Documents to (1) provide a new term loan to Borrowers in
the amount of up to $10,000,000, to be secured by a first mortgage lien upon
certain property located in Salt Lake County, Utah; (2) require a guaranty of
Borrowers' indebtedness to Lender to be executed by Xxxxx Xxxxx; (3) amend the
interest rate applicable to the Revolving Credit Loan; (4) increase the Letter
of Credit Sublimit from $5,000,000 to $9,000,000; and (5) amend certain other
terms and covenants of the Credit Agreement upon the terms and subject to the
conditions set forth herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Definitions. The following defined terms, if
presently set forth in Section 1.1 of the Credit Agreement, are hereby amended
in their entirety to provide as follows or, if not presently set forth in
Section 1.1 of the Credit Agreement, are hereby added to Section 1.1 of the
Credit Agreement:
"Applicable Margin": The Initial Applicable Margin, for the
period from the date of this First Amendment to the date on which the
Applicable Margin changes in accordance with the following provisions,
and thereafter, for any period, the percentage set forth in Section
3.1(c) of Supplement A. The Applicable Margin shall be determined by
the Lender based upon the information set forth in the annual audited
consolidated financial statements of Borrowers and the Subsidiaries for
the fiscal year ending September 30, 2000 furnished to the Lender
pursuant to Section 5.1.1(a), and thereafter based upon the information
set forth in the monthly financial statements of Borrowers and the
Subsidiaries furnished to the Lender pursuant to Section 5.1.1(d). Any
change in the Applicable Margin shall affect all outstanding and future
Advances and shall take effect on the first day of the month following
the date of Lender's receipt of the applicable financial statement.
Upon any failure of the Borrowers to deliver to the Lender the
applicable financial statements within the time provided by Section
5.1.1, the Applicable Margin shall be the highest Applicable Margin set
forth in Section 3.1(c) of Supplement A and such Applicable Margin
shall remain in effect until the first day following the date Lender
receives the applicable financial statements requiring a lower
Applicable Margin.
"Deed of Trust": The Deed of Trust and Security Agreement
dated January 9, 2001 from Trucking in favor of Lender covering the
Real Estate, as the same may be amended, supplemented or restated from
time to time.
"EBITDA": For any period, the consolidated net income of the
Borrowers and their Subsidiaries before provision for income taxes,
interest expense (including, without limitation, implicit interest
expense on Capitalized Leases), depreciation, amortization and other
non-cash expenses or charges, all as determined in accordance with
GAAP, excluding therefrom (to the extent included) non-operating gains
(including, without limitation, extraordinary or nonrecurring gains,
gains from discontinuance of operations and gains arising from the sale
of assets other than Inventory) during the applicable period.
"Environmental Indemnity Agreement": The Environmental and ADA
Indemnity Agreement dated January 9, 2001 from Borrowers in favor of
Lender, as the same may be amended from time to time.
"Fixed Charge Coverage Ratio": shall mean, with respect to any
period, the ratio of (a) consolidated EBITDA of the Borrowers and their
Subsidiaries during such period, plus Operating Lease Rentals of the
Borrowers and their Subsidiaries during such period, plus net proceeds
from the sale of trailers of the Borrowers and their Subsidiaries
during such period to the extent not included in EBITDA, minus Taxes
paid in cash by the Borrowers and their Subsidiaries on a consolidated
basis during such period, minus dividends and distributions paid in
cash by the Borrowers and their Subsidiaries on a consolidated basis
during such period, minus unfinanced capital expenditures made by the
Borrowers and their Subsidiaries on a consolidated basis during such
period, to (b) the total consolidated interest expense of the Borrowers
and their Subsidiaries (including imputed interest expense on
Capitalized Leases) during such period, plus mandatory principal
payments on Indebtedness (including obligations under Capitalized
Leases) of the Borrowers and their Subsidiaries on a consolidated basis
during such period, plus Operating Lease Rentals of the Borrowers and
their Subsidiaries on a consolidated basis during such period.
"Guarantor": Individually, Xxxxx Xxxxx, and any other Person
who may, at any time or from time to time, guaranty the Obligations.
"Guaranty": Individually, the Guaranty dated January 9, 2001
executed by Guarantor in favor of the Lender, and each other guaranty
executed by a Guarantor at any time, together with any amendments,
modifications, supplements, or replacements thereto.
"Initial Applicable Margin": With respect to Eurodollar
Advances, two and three-quarters percent (2.75%); and with respect to
Reference Rate Advances, one percent (1%). The Initial Applicable
Margin shall be in effect until changed in accordance with the
provisions defining Applicable Margin.
"Interest Bearing Debt": With respect to any Person, all
interest bearing Indebtedness of such Person including the Loans
advanced hereunder and all Capitalized Lease obligations that include a
component of imputed interest.
"Interest Period": For any Eurodollar Advance, the period
commencing on the borrowing date of such Eurodollar Advance or the date
a Reference Rate Advance is converted into such Eurodollar Advance, or
the last day of the preceding Interest Period for such Eurodollar
Advance if a Eurodollar Advance is continued, as the case may be, and
ending on the numerically corresponding day one, two, or three months
thereafter, as selected by the Borrowers pursuant to Section 2.5;
provided, that:
(i) any Interest Period which would otherwise end on
a day which is not a Business Day shall end on the next
succeeding Business Day unless such next succeeding Business
Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the
Termination Date.
"Loan Documents": This Agreement, any Note, the Guaranty, the
Deed of Trust, the Environmental Indemnity Agreement, and each other
instrument, document, guaranty, mortgage, deed of trust, chattel
mortgage, pledge, power of attorney, consent, assignment, contract,
notice, security agreement, lease, financing statement, subordination
agreement, trust account agreement, or other agreement executed and
delivered by any Borrower or any Guarantor or party granting a security
interest in connection with this Agreement, the Loans, the Letters of
Credit or the Collateral, as the same may be amended, modified,
restated or replaced from time to time.
"Loan": A Revolving Credit Loan referred to in Section
2.1(a)(i), a Term Loan referred to in Section 2.1(a)(ii) and any other
loans or advances made to the Borrowers by the lender under or pursuant
to this Agreement.
"Operating Lease Rentals": The sum of the rental and other
obligations required to be paid during such period by any Borrower or
any of their respective Subsidiaries as lessee under all leases of real
or personal property (other than Capitalized Leases), excluding any
amount required to be paid by the lessee (whether or not therein
designated as rental or additional rental) on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar
charges, provided, that if at the date of determination, any such
rental or other obligations (or portion thereof) are contingent or not
otherwise definitely determinable by the terms of the related lease,
the amount of such obligations (or such portion thereof) (a) shall be
assumed to be equal to the amount of such obligations for the period of
twelve (12) consecutive calendar months immediately preceding the date
of determination, or (b) if the related lease was not in effect during
such preceding 12-month period, shall be the amount estimated by the
chief financial officer or similar officer of the applicable Borrower
or Subsidiary on a reasonable basis in good faith.
"Real Estate": Certain real property located in Salt Lake
County, Utah, as more particularly described on Exhibit A to the Deed
of Trust.
"Revolving Credit Loan": The term "Revolving Credit Loan"
shall have the meaning given such term in Section 2.1(a)(i) hereof.
"Term Loan": The term "Term Loan" shall have the meaning given
such term in Section 2.1(a)(ii) hereof.
Section 2. Amendments.
a. Section 2.1(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(a) Amounts, Authority to Make Certain Advances.
Subject to the terms and conditions of the Loan Documents,
and in reliance upon the representations and warranties of
the Borrowers set forth herein and in the other Loan
Documents, the Lender agrees as follows:
(i) To make revolving credit loans
(individually, a "Revolving Credit Loan" and
collectively, the "Revolving Credit Loans") to the
Borrowers during the period from and after the date
hereof to the date on which the Credit terminates, in
such amounts, in the type of Advance and at such
times as the Borrowers may from time to time request,
up to but not in excess of the Loan Availability.
Revolving Credit Loans made by the Lender may be
repaid and, subject to the terms and conditions
hereof, reborrowed to the date on which the Credit
terminates.
(ii) To make a term loan (the "Term Loan")
to the Borrowers in the amount of up to $10,000,000
for the purpose of financing ongoing working capital
requirements. The Borrowers may request and obtain an
initial advance of the Term Loan in the principal
amount of up to $5,000,000 on January 9, 2001 and,
provided that the conditions set forth on Exhibit H
attached hereto have been satisfied and further
provided that no Default or Event of Default shall
have occurred or be continuing, the Borrowers may
request and obtain additional advances of the
remaining principal amount of the Term Loan in no
more than five borrowings, with each borrowing to be
in a minimum amount of $1,000,000 (or the remaining
amount of undrawn principal balance of the Term Loan,
if less) at any time prior to the earlier of (A)
September 30, 2001, or (B) the Termination Date. Each
request for an advance of the Term Loan shall specify
that the requested advance is to be made against the
Term Loan and shall otherwise be made in accordance
with the provisions of Section 2.5 hereof. Unless
otherwise required to be sooner paid pursuant to the
Credit Agreement, the outstanding principal of the
Term Loan shall mature and be payable in full on
September 30, 2001. The Borrowers may, upon three
Business Days' notice to the Lender, prepay the
principal of the Term Loan in whole or in part
without premium. Any partial prepayment of principal
of the Term Loan shall be in a minimum amount of the
lesser of (A) the outstanding principal balance of
the Term Loan, or (B) $10,000 or an integral multiple
thereof, and shall be applied to the unpaid
installments of the Term Loan in the inverse order of
their maturities. Any principal of the Term Loan
which is repaid may not be reborrowed. Any payment of
the Term Loan may be made with the proceeds of a
Revolving Credit Loan only if, immediately before and
after giving effect to such payment, no Event of
Default or Unmatured Event of Default then exists or
would result therefrom.
b. Section 2.1(d) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(d) Mandatory Prepayments. All Loans and other
Obligations hereunder shall be paid by the Borrowers on the
Termination Date unless payable sooner pursuant to the
provisions of this Agreement. Without limiting the foregoing:
(i) The Borrowers shall pay to the Lender
all proceeds of Collateral in accordance with the
provisions of this Agreement and other Loan Documents
for application against the Obligations in such order
and manner as Lender may deem appropriate.
(ii) In the event that any used trailer is
sold by a Borrower pursuant to that certain letter
agreement dated February 23, 2000 between Utility
Trailer Sales of Utah, Inc and Xxxx Xxxxx Trucking,
Inc., as the same may be amended, supplemented,
restated or replaced from time to time, or pursuant
to any successor agreement regarding the same subject
matter (all such agreements being referred to as the
"Trailer Sale Agreement") and on such sale date the
outstanding principal balance of the Term Loan
exceeds $5,000,000, the Borrowers shall pay to the
Lender for application against the Term Loan an
amount equal to the lesser of (A) the amount by which
the outstanding principal balance of the Term Loan
exceeds $5,000,000; or (B) the amount of such
proceeds. If payment of the purchase price for any
used trailer sold under the Trailer Sale Agreement is
made by allowance or is otherwise not made in cash,
the Borrowers shall be required to make a mandatory
prepayment of the Term Loan in an amount equal to the
amount of the proceeds that would otherwise be
required to be paid to the Lender pursuant to this
Section 2.1(d)(ii).
(iii) If the aggregate outstanding principal
balance of the Revolving Credit Loans exceeds the
Loan Availability or if there is a negative Loan
Availability, then, unless the Lender shall otherwise
consent in writing, the Borrowers shall immediately
and without notice of any kind make such payments as
shall be necessary to eliminate such excess or
negative Loan Availability, or take such other action
(including, without limitation, delivery of cash
collateral) as Lender may require.
c. Section 3.1(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(b) General Intangibles, including without
limitation all payment and other rights under the Trailer
Sale Agreement;
d. Section 3.1 of the Credit Agreement is hereby amended
to add a new subsection (b1) to read as follows:
(b1) all Inventory, Equipment (including without
limitation all machinery and other goods, furniture,
furnishings, trade fixtures, office supplies, tools, computer
hardware and software, communications equipment and other
office equipment, and car wash and vehicle maintenance
equipment), fixtures and other tangible property now or
hereafter located at the Borrowers' facility at 0000 Xxxx 0000
Xxxxx, Xxxx Xxxxxx Xxxx, Xxxx 00000 or otherwise now or
hereafter located on the Real Estate or the improvements
thereto, other than tractors, trailers and other motor
vehicles;
e. Section 3.1 of the Credit Agreement is hereby amended
to add a new subsection (i) to read as follows:
(i) the Real Estate, subject to a separate mortgage,
deed of trust, pledge or security interest in favor of the
Lender or in which the Lender now or hereafter has or acquires
a security interest securing any Obligations, pursuant to any
written agreement or instrument other than this Agreement, and
all replacement, substitutions, additions or accessions to or
for the foregoing, and all proceeds of the foregoing.
f. Section 3.3 of the Credit Agreement is hereby amended
in its entirety to read as follows:
3.3 Inventory. Inventory which at any time
constitutes Collateral hereunder shall at all times remain
located at the Borrowers' facility at 0000 Xxxx 0000 Xxxxx,
Xxxx Xxxxxx Xxxx, Xxxx 00000 or otherwise on the Real Estate
or the improvements thereto, except for Inventory sold, used
consumed or otherwise disposed of by the Borrowers in the
ordinary course of business.
g. Section 3.4 of the Credit Agreement is hereby amended
in its entirety to read as follows:
Section 3.4 Equipment.
(a) In the event any Equipment which
constitutes Collateral is sold, transferred or
otherwise disposed of, unless the Lender shall agree
otherwise in writing, the Borrowers shall deliver all
of the proceeds of any such sale, transfer or
disposition to the Lender in their original form for
deposit in the Collateral Account or application to
payment of the Obligations in such order and manner
as Lender shall determine.
(b) The Borrowers will, upon request of the
Lender, submit to the Lender a current listing of all
of each Borrower's Equipment which constitutes
Collateral, which listing shall indicate, as
applicable, the type, model, serial number and
location of such Equipment.
(c) Equipment and other tangible property
which at any time constitutes Collateral hereunder
shall at all times remain located at the Borrowers'
facility at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxxxx Xxxx,
Xxxx 00000 or otherwise on the Real Estate or the
improvements thereto, except for obsolete Equipment
and other tangible property disposed of by the
Borrowers in the ordinary course of business.
h. Section 5.1.1(d) of the Credit Agreement is hereby
amended in its entirety to read as follows:
(d) Monthly Financial Statement. As soon as available
and in any event within 45 days after the end of each month of
each calendar year (or, with respect to the month of January
2001, 60 days after the end of such month), a copy of the
unaudited financial statement of each Borrower and the
Subsidiaries prepared in the same manner as the audit report
referred to in Section 5.1.1(a), signed by such Borrower's
chief financial officer and consisting of at least
consolidated statements of income, cash flow and stockholders'
equity for such Borrower and the Subsidiaries for such month
and for the period from the beginning of such fiscal year to
the end of such month, and a consolidated and consolidating
balance sheet of such Borrower and the Subsidiaries as at the
end of such month.
i. A new Section 5.1.1(g) is hereby added to the end
of Section 5.1.1 of the Credit Agreement to read as follows:
(g) Guarantor's Financial Statements. As soon as
available, and in any event within 60 days following the last
day of each calendar year, a sworn statement of the Guarantor,
in the form provided by Lender, and including, without
limitation, a copy of the Guarantor's personal financial
statement and a list of the Guarantor's contingent liabilities
in such form and detail as Lender may require.
j. A new Exhibit H is hereby added to the Credit
Agreement in the form of Exhibit H attached hereto and made a
part hereof.
k. Section 2.3 of Supplement A to the Credit Agreement
is hereby amended in its entirety to read as follows:
2.3 Letter of Credit Sublimit. The term "Letter
of Credit Sublimit" shall mean $9,000,000.
l. Section 3.1 of Supplement A to the Credit Agreement
is hereby amended in its entirety to read as follows:
3.1 Loans.
(a) Interest Rates. The unpaid
principal balance of the revolving Loans (other
than Overdraft Loans and Over Advances) shall bear
interest at the following rates:
(i) Eurodollar Advances. The
unpaid principal amount of each Eurodollar
Advance shall bear interest at a rate per
annum equal to the Eurodollar Rate (Reserve
Adjusted) in effect for each Interest Period
for such Eurodollar Advance plus the
Applicable Margin;
(ii) Reference Rate Advances. The
unpaid principal amount of each Reference
Rate Advance shall bear interest at a rate
per annum equal to the Reference Rate in
effect from time to time plus the Applicable
Margin.
(b) Default Rate. The rate per annum
equal to 2% in excess of the Reference Rate plus the
Applicable Margin from time to time in effect.
(c) Applicable Margin. The Applicable
Margin shall be the applicable percentage set forth
below for Eurodollar Advances and Reference Rate
Advances, and determined in accordance with the
procedures set forth in the definition of "Applicable
Margin".
Applicable Margin Applicable Margin
Net Worth Eurodollar Advances - % Reference Rate Advances - %
Greater than or equal to 1.75% 0%
$50,000,000
$47,500,000 - $49,999,999 2.00% .25%
$45,000,000 - $47,499,999 2.25% .50%
$42,500,000 - $44,999,999 2.75% 1.00%
$38,000,000 - $42,499,999 3.25% 1.50%
m. Section 7 of Supplement A to the Credit Agreement is
hereby amended in its entirety to read as follows:
7. Additional Covenant. From the date of this Supplement A and
thereafter until all of the Borrowers' obligations under the Credit
Agreement are paid in full, the Borrowers agree that unless the Lender
shall otherwise consent in writing, they will not, and will not permit
any Subsidiary to, do any of the following:
7.1 Net Worth. Permit the Borrowers'
consolidated Net Worth to be less than $38,000,000 as of the
end of each calendar month of each year.
7.2 Fixed Charge Coverage Ratio. As of the last day
of any fiscal quarter, permit the Fixed Charge Coverage Ratio
of the Borrowers and the Subsidiaries for the period of four
consecutive fiscal quarters ending on (or most recently ended
prior to) such date of determination or for any date of
determination occurring on or prior to December 31, 2001, the
period beginning on January 1, 2001 and ending on such date of
determination, to be less than the following ratios for the
following periods:
PERIOD RATIO
------ -----
Date hereof through .90 to 1.0
March 31, 2001
April 1, 2001 1.0 to 1.0
and thereafter
Section 3. Conditions Precedent. The obligation of the Lender
to enter into this First Amendment and to make the initial advance of the Term
Loan shall be subject to the satisfaction of the following conditions precedent,
in addition to the applicable conditions precedent set forth in Section 9.2 of
the Credit Agreement:
a. No Change in Condition. No change in the condition or
operations, financial or otherwise, of any Borrower, any other Obligor
or any Subsidiary, shall have occurred which change, in the sole credit
judgment of the Lender, may constitute an Adverse Event or have a
material adverse effect on any Collateral or the Lender's interest
therein.
b. Accounting Methods. No Borrower shall have made any
material, as determined by the Lender, change in its accounting methods
or principles.
c. Survey. The Lender shall have completed its updated
survey of the business, operations and assets of each Borrower, each
Subsidiary and each other Obligor, and such survey shall provide the
Lender with results and information which, in the Lender's
determination, are satisfactory to the Lender.
d. No Material Transaction. No Borrower, Obligor or
Subsidiary shall have entered into any material, as determined by the
Lender, commitment or transaction, including, without limitation,
transactions for borrowings and Capital Expenditures, which are not in
the ordinary course of their respective businesses.
e. Litigation. No litigation shall be outstanding or
have been instituted or threatened which the Lender determines to be
material against any Borrower, any other Obligor or any Subsidiary.
f. Filing of Documents. All financing statements, deeds
of trust or mortgages, and other documents relating to the Collateral
shall have been filed or recorded, as appropriate.
g. Delivery of Documents. Each Borrower shall have delivered
or cause to be delivered to the Lender each of the following, each in
form and substance satisfactory to the Lender in all respects and each
duly executed and dated the date of the initial Loan or such earlier
date as shall be acceptable to the Lender:
(1) This First Amendment, duly executed by
Borrowers and Lender.
(2) The Guaranty, duly executed by Guarantor.
(3) The Deed of Trust, duly executed by Trucking.
(4) The Environmental Indemnity Agreement, duly
executed by Borrowers.
(5) Financing Statements, duly executed by Borrowers
for filing with the Utah Secretary of State and Salt Lake
County, Utah, in form and substance acceptable to Lender.
(6) A current rent roll and operating statement in
form and substance acceptable to the Lender with regard to the
Real Estate, certified by the chief financial officer of
Trucking, and if any Person other than Trucking is in
possession of any part of the Real Estate, tenant estoppel
letters and subordination, non-disturbance and attornment
agreements duly executed by each such Person in form and
substance acceptable to Lender.
(7) Duly executed copies of each of the Loan
Documents not specifically identified herein which the Lender
determines to be necessary or desirable, each in form and
content satisfactory to the Lender.
(8) A copy, duly certified by the secretary or an
assistant secretary of each Borrower, of (i) the resolutions
of the Board of Directors of such Borrower authorizing (A) the
borrowings by such Borrower hereunder, (B) the execution,
delivery and performance by such Borrower of the Loan
Documents to which such Borrower is a party or by which it is
bound, (C) the conveyance of a lien on assets of such Borrower
to Lender; and (ii) all documents evidencing other necessary
corporate action; and (iii) all approvals or consents, if any,
with respect to the Loan Documents.
(9) A certificate of the secretary or an assistant
secretary of each Borrower, certifying the names of the
officers of such Borrower authorized to sign the Loan
Documents to which it is a party and any Supplemental
Documentation, together with the true signatures of such
officers.
(10) A copy, duly certified by the secretary or an
assistant secretary of each Borrower, of such Borrower's
Bylaws.
(11) A copy, duly certified by the Secretary of State
of each Borrower's state of incorporation, of such Borrower's
Articles of Incorporation.
(12) Certificates of good standing as to each
Borrower issued by the Secretary of State of the state in
which such Borrower is organized, and each other state in
which the failure of such Borrower to be in good standing
would constitute an Adverse Event or have a material adverse
effect on the Lender's rights in any Collateral.
(13) A legal opinion of counsel to each Borrower
and Guarantor.
(14) Evidence satisfactory to the Lender of the
existence of insurance on the Collateral in amounts and with
insurers acceptable to the Lender, together with evidence
establishing that the Lender is named as a loss payee and, if
required by the Lender, additional insured, on all related
insurance policies and an endorsement or an independent
instrument from each issuer of an insurance policy
substantially in the form provided by the Lender.
(15) Such title insurance policies, in such form and
amount, and issued by such title insurers, and such surveys or
updated surveys, in each case as shall be acceptable to the
Lender.
(16) Evidence satisfactory to the Lender that all
obligations of the Borrower to U.S. Bank of Utah have been
paid in full and that such entity has terminated, or agreed to
terminate, all of its Liens on the property of the Borrower
and all public record filings evidencing such Liens.
(17) Such other documents, instruments or
agreements as the Lender shall determine to be necessary or
desirable.
h. Security Interest. The Lien in the Collateral
granted to the Lender to secure the Obligations shall be senior,
perfected Liens except as otherwise agreed by the Lender.
j. Effect of Law. No law or regulation affecting the
Lender's entering into the secured financing transaction contemplated
by this Agreement shall impose upon the Lender any material obligation,
fee, liability, loss, cost, expense or damage.
k. Exhibits; Schedules. All Exhibits and Schedules to the Loan
Documents, including without limitation, all documents executed in
connection with this First Amendment, shall have been completed in form
and substance satisfactory to the Lender and shall contain no material
facts or information which the Lender, in its sole judgment, determines
to be unacceptable.
Section 4. Origination Fee. In addition to all other sums
payable to Lender under the Credit Agreement and Loan Documents, Borrowers shall
pay to Lender concurrently herewith an origination fee with respect to the Term
Loan in the amount of $25,000.
Section 5. Continuing Obligation; Representations,
Warranties and Covenants.
a. Each Borrower acknowledges and agrees that the Borrowers
remain obligated for the payment of indebtedness evidenced and secured
by the Credit Agreement and the other Loan Documents, as amended and
supplemented hereby, and agrees to be bound by and to perform all of
the covenants and agreements set forth in said documents and
instruments, as amended and supplemented by this First Amendment. The
Lender and each Borrower agree that after this First Amendment becomes
effective, the Credit Agreement shall remain in full force and effect,
and payable in accordance with its terms. Except as expressly modified
under this First Amendment, all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrowers under the Credit Agreement and all
Loan Documents and any and all other documents and agreements entered
into with respect to the obligations under the Credit Agreement are
incorporated herein by reference and are hereby ratified and affirmed
in all respects by each Borrower. EACH BORROWER ACKNOWLEDGES THAT THE
LENDER HAS NOT COMMITTED, AND IS NOT COMMITTING AT THIS TIME, TO
FINANCE THE BORROWERS' LOAN REQUIREMENTS WITH RESPECT TO ANY WORKING
CAPITAL OR OTHER NEEDS FINANCED BY THE TERM LOAN FOR ANY PERIOD AFTER
SEPTEMBER 30, 2001, NOR TO EXTEND THE MATURITY DATE OF THE TERM LOAN.
ANY SUCH FUTURE LOAN OR LOANS, OR EXTENSION, MAY BE MADE SOLELY AT THE
OPTION OF THE LENDER AND ON SUCH TERMS AND CONDITIONS AS THE LENDER MAY
THEN REQUIRE. EACH BORROWER UNDERSTANDS THAT NO PRIOR COURSE OF
DEALING, NO USAGE OF TRADE, NO ORAL STATEMENTS OR COMMENTS BY THE
LENDER OR ITS EMPLOYEES OR OTHER AGENTS WILL BE DEEMED TO BE A
COMMITMENT BY THE LENDER TO LEND MONEY TO THE BORROWERS OR TO ANY OTHER
PERSON, OR TO EXTEND A MATURITY DATE, UNLESS THE SAME IS REDUCED TO
WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE LENDER.
b. Each Borrower hereby restates and reaffirms all
representations, warranties and covenants contained in the Credit
Agreement and the Loan Documents, as amended and supplemented hereby,
the same as if such covenants, representations and warranties were made
by the Borrowers on the date hereof. Without limiting the foregoing,
Schedule 4.8 of the Credit Agreement is hereby supplemented by Schedule
4.8 attached hereto.
Section 6. Fees and Expenses. Borrowers agree to pay or
reimburse the Lender for all reasonable out-of-pocket expenses (including,
without limitation, reasonable attorneys' fees, and out-of-pocket disbursements
of Lender's legal counsel) incurred by the Lender in connection with this First
Amendment and related documents.
Section 7. Execution in Counterparts. This First
Amendment may be executed in two or more counterparts each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 8. References. All references to the Credit Agreement
in any document or instrument are hereby amended and shall refer to the Credit
Agreement as amended by this First Amendment. Except as amended hereby, the
provisions of the Credit Agreement shall remain unmodified and in full force and
effect.
SECTION 9. GENERAL RELEASE. EACH BORROWER HEREBY RELEASES AND
DISCHARGES THE LENDER, AND EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
AND ATTORNEYS, FROM ANY AND ALL CLAIMS, ACTIONS AND LIABILITIES OF ANY KIND OR
NATURE THAT IT OR ANY ONE CLAIMING THROUGH OR UNDER THE BORROWER EVER HAD OR MAY
NOW HAVE, WHETHER NOW KNOWN OR HEREAFTER DISCOVERED, ARISING OUT OF OR IN ANY
WAY RELATING TO: (A) ANY LENDING RELATIONSHIP OR LOAN COMMITMENT BETWEEN THE
LENDER AND THE BORROWER PRIOR TO THE DATE OF THIS AMENDMENT (EXCEPT THAT THIS
PROVISION SHALL NOT RELEASE THE LENDER FROM ANY OBLIGATION THAT ARISES UNDER THE
LOAN DOCUMENTS OTHER THAN ANY SUCH OBLIGATION THAT WAS REQUIRED TO BE PERFORMED
PRIOR TO THE DATE HEREOF); (B) THE DOCUMENTS AND TRANSACTIONS DESCRIBED IN THE
RECITALS HEREOF (EXCEPT THAT THIS PROVISION SHALL NOT RELEASE THE LENDER FROM
ANY OBLIGATION THAT ARISES UNDER THE LOAN DOCUMENTS OTHER THAN ANY SUCH
OBLIGATION THAT WAS REQUIRED TO BE PERFORMED PRIOR TO THE DATE HEREOF); OR (C)
THE NEGOTIATIONS PRECEDING THE EXECUTION AND DELIVERY OF THIS AMENDMENT. EACH
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED THE ADVICE OF INDEPENDENT
COUNSEL SELECTED BY IT, OR THE OPPORTUNITY TO OBTAIN SUCH ADVICE, BEFORE
ENTERING INTO THIS AMENDMENT, AND HAS NOT RELIED UPON THE LENDER OR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ATTORNEYS CONCERNING ANY ASPECT OF THE
TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT.
EACH BORROWER, BY EXECUTION HEREOF, ACKNOWLEDGES THAT: (A) THIS
AMENDMENT CONTAINS A COMPLETE RELEASE OF CLAIMS AND WAIVERS OF CERTAIN RIGHTS;
(B) IT HAS READ AND UNDERSTOOD THIS AMENDMENT IN ITS ENTIRETY PRIOR TO SIGNING
AND FULLY AGREES TO EACH, ALL AND EVERY PROVISION HEREOF; AND (C) IT HAS
RECEIVED A COPY HEREOF.
[Remainder of page intentionally left blank;
signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Credit and Security Agreement to be executed as of the day and year
first above written.
Address: SIMON TRANSPORTATION SERVICES INC.
a Nevada corporation
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxx By: /s/ Xxxxx Xxxxx
Telephone: 000-000-0000 Its: President
Fax No.: 000-000-0000
Address: XXXX XXXXX TRUCKING, INC.
a Utah corporation
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxx By: /s/ Xxxxx X. Xxxx
Telephone: 000-000-0000 Its: CFO
Fax No.: 000-000-0000
Address: U.S. BANK NATIONAL ASSOCIATION,
a national banking association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Business Finance By: /s/
Telephone: 000-000-0000 Its: SVP
Fax No.: 000-000-0000
