SECOND MODIFICATION AGREEMENT
Exhibit
10.1
SECOND
BY
THIS
SECOND MODIFICATION AGREEMENT (the "Agreement"), made and entered into as of
the
30th day of March, 2007, XXXXX FARGO BANK, NATIONAL ASSOCIATION (the "Lender"),
and KNIGHT TRANSPORTATION, INC., an Arizona corporation (the "Borrower"), in
consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby confirm and agree as follows:
SECTION
1. RECITALS;
ACKNOWLEDGEMENTS.
1.1 The
Borrower and the Lender entered into that Credit Agreement dated
September 15, 2005 (as amended from time to time, the "Credit Agreement")
to provide financial accommodations to the Borrower as provided
therein.
1.2 Borrower
and the Lender desire to modify the Credit Agreement as set forth
herein.
1.3 All
undefined capitalized terms used herein shall have the meaning given them in
the
Credit Agreement as modified by that Modification Agreement dated October 6,
2006.
SECTION
2. CREDIT
AGREEMENT.
2.1 The
following definition in Section 1.1 of the Credit Agreement is hereby amended
to
read as follows:
"RLC
Maturity
Date" shall mean September 30, 2009.
2.2 The
following definition in Section 1.1 of the Credit Agreement is hereby
deleted:
"Quick
Ratio".
2.3 Section
5.11(a) of the Credit Agreement is hereby amended to read as
follows:
(a) [Intentionally
left blank].
2.4 Exhibit
"E" to the Credit Agreement is hereby amended to read as attached
hereto.
SECTION
3. OTHER
MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All
references to the Credit Agreement in the other Loan Documents are hereby
amended to refer to the Credit Agreement as hereby amended.
3.2 Borrower
hereby reaffirms to the Lender each of the representations, warranties,
covenants and agreements of Borrower set forth in the Credit Agreement, with
the
same force and effect as if each were separately stated herein and made as
of
the date hereof.
3.3 Borrower
hereby ratifies, reaffirms, acknowledges, and agrees that the Note and the
Credit Agreement represent valid, enforceable and collectible obligations of
Borrower, and that there are no existing claims, defenses, personal or
otherwise, or rights of setoff whatsoever with respect to any of these documents
or instruments. Borrower further acknowledges and represents that no event
has
occurred and no condition exists that, after notice or lapse of time, or both,
would constitute a default under this Agreement, the Note or the Credit
Agreement.
3.4 All
terms, conditions and provisions of the Credit Agreement are continued in full
force and effect and shall remain unaffected and unchanged except as
specifically amended hereby. The Credit Agreement, as amended hereby, is hereby
ratified and reaffirmed by Borrower, and Borrower specifically acknowledges
the
validity and enforceability thereof.
SECTION
4. GENERAL.
4.1 This
Agreement in no way acts as a release or relinquishment of those rights securing
payment of the Loans. Such rights are hereby ratified, confirmed, renewed and
extended by Borrower in all respects.
4.2 The
modifications contained herein shall not be binding upon the Lender until the
Lender shall have received all of the following:
(a) An
original of this Agreement fully executed by the Borrower.
(b) A
Consent
and Agreement of Guarantors, fully executed by the Guarantors.
(c) Such
resolutions or authorizations and such other documents as the Lender may require
relating to the existence and good standing of the Borrower and the Guarantors
and the authority of any person executing this Agreement or other documents
on
behalf of the Borrower and the Guarantors.
4.3 Borrower
shall execute and deliver such additional documents and do such other acts
as
the Banks may reasonably require to fully implement the intent of this
Agreement.
4.4 Borrower
shall pay all costs and expenses, including, but not limited to, reasonable
attorneys' fees incurred by the Lender in connection herewith, whether or not
all of the conditions described in Paragraph 4.2 above are satisfied. The
Lender, at its option, but without any obligation to do so, may advance funds
to
pay any such costs and expenses that are the obligation of the Borrower, and
all
such funds advanced shall bear interest at the highest rate provided in the
Note
and shall be due and payable upon demand.
4.5 Notwithstanding
anything to the contrary contained herein or in any other instrument executed
by
Borrower or the Lender, or in any other action or conduct undertaken by Borrower
or the Lender on or before the date hereof, the agreements, covenants and
provisions contained herein shall constitute the only evidence of the Lender's
consent to modify the terms and provisions of the Credit Agreement. Accordingly,
no express or implied consent to any further modifications involving any of
the
matters set forth in this Agreement or otherwise shall be inferred or implied
by
the Lender's consent to this Agreement. Further, the Lender's consent to this
Agreement shall not constitute a waiver (either express or implied) of the
requirement that any further modification of the Credit Agreement shall require
the express written consent of the Lender; no such consent (either express
or
implied) has been given as of the date hereof.
4.6 Time
is
hereby declared to be of the essence hereof of the Credit Agreement, and the
Lender requires, and Borrower agrees to, strict performance of each and every
covenant, condition, provision and agreement hereof, of the Credit
Agreement.
4.7 This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their heirs, personal representatives, successors and
assigns.
4.8 This
Agreement is made for the sole protection and benefit of the parties hereto,
and
no other person or entity shall have any right of action hereon.
4.9 This
Agreement shall be governed by and construed according to the laws of the State
of Arizona.
IN
WITNESS WHEREOF, these presents are executed as of the date indicated
above.
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XXXXX
FARGO BANK, NATIONAL
ASSOCIATION
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By:
/s/ Xxxx Xxxxxxx
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Name:
Xxxx Xxxxxxx
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Its:
Vice President
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LENDER
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KNIGHT
TRANSPORTATION, INC.
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By:
/s/ Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Its:
Chief Financial Officer
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BORROWER
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Exhibit
to Second Modification Agreement available upon
request.
