EXHIBIT 4.7.2
FIRST AMENDMENT AND AGREEMENT
THIS FIRST AMENDMENT AND AGREEMENT ("Agreement") is made as of the 1st
day of February, 2001, by and among FIRST UNION NATIONAL BANK, a national
banking association with offices at 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Bank"); OLD DOMINION FREIGHT LINE, INC., a
Virginia corporation with its principal place of business at 0000 Xxxxxxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000 ("Company"); and XXXX, INC., a Delaware
corporation ("Guarantor").
WITNESSETH:
WHEREAS, the Company and the Bank are parties to a certain Credit
Agreement dated as of May 31, 2000 (the "Credit Agreement"), pursuant to which
the Bank extended to the Company financial accommodations in the form of a
revolving line of credit in the original maximum principal amount of Fifty
Million Dollars ($50,000,000) (the "Revolving Loans") and a standby letter of
credit facility in the original maximum principal amount of Twelve Million Five
Hundred Thousand Dollars ($12,500,000);
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Credit Agreement;
WHEREAS, the Revolving Loans are evidenced by that certain Revolving
Credit Note dated May 31, 2000, executed by the Company in favor of the Bank in
the original maximum principal amount of Fifty Million Dollars ($50,000,000)(the
"Note");
WHEREAS, the Obligations are guaranteed by that certain Guaranty
Agreement dated May 31, 2000, executed by the Guarantor in favor of the Bank
(the "Guaranty");
WHEREAS, the documents and instruments evidencing and/or securing the
foregoing indebtedness, as heretofore amended, are referred to herein
collectively as the "Loan Documents;"
WHEREAS, the Borrower has requested that the Bank increase the
available amount of the Revolving Loans from January 31, 2001 through April 30,
2001, and the Bank has agreed to provide such additional financing subject to
the terms and conditions of this Agreement; and
NOW THEREFORE, for value received and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Credit Agreement.
-----------------------------
The definition entitled "Revolving Line of Credit Commitment" in
Section 1.1 of the Credit Agreement is amended in its entirety to read as
follows:
" 'Revolving Line of Credit Commitment' shall mean (i) from January 31,
2001 through April 30, 2001, Fifty Five Million Dollars ($55,000,000); and (ii)
thereafter, Fifty Million Dollars ($50,000,000)."
2. Amendment to Note.
-----------------
(a) The first paragraph of the Note is amended in its entirety to read
as follows:
"FOR VALUE RECEIVED, the undersigned OLD DOMINION FREIGHT LINE, INC.,
a Virginia corporation ("Borrower"), promises to pay to FIRST UNION NATIONAL
BANK, a national banking association ("Bank"), or order, at the principal office
of the Bank in Greensboro, North Carolina, or at such other place as the Bank
may from time to time designate in writing, the principal sum of Fifty Five
Million
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Dollars ($55,000,000); or, if less, the unpaid balance of all Revolving Loans
made by the Bank to the Borrower under the Revolving Line of Credit extended by
the Bank to the Borrower pursuant to the Credit Agreement (as defined below),
together with the interest on the unpaid principal amount of this Note at the
rates provided in the Credit Agreement."
(b) The reference to "$50,000,000" at the top of the first page of the
Note shall be amended to read "$55,000,000."
3. Ratification.
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Except as the same have been amended hereby, the Credit Agreement, the
Note, the Guaranty, and the other Loan Documents shall in all respects remain in
full force and effect and are in all respects hereby ratified and affirmed, and
the amendments effected by this Agreement shall not constitute a novation of any
of the Borrower's or the Guarantor's obligations under such documents. Each of
such documents shall be deemed to be amended as necessary to the extent
necessary to be consistent with the amendments effected by this Agreement.
4. Execution by Guarantor.
-----------------------
By its execution below, the Guarantor hereby consents to the terms and
conditions of this Agreement and reaffirms and ratifies its obligations under
the Guaranty, which shall in all respects remain in full force and effect and is
hereby ratified and affirmed. The Guarantor hereby acknowledges that its
obligations under the Guaranty shall include, without limitation, its guarantee
of the Company's obligations to the Bank under the Note, as amended hereby.
5. Representations and Warranties.
------------------------------
(a) The Company hereby affirms each representation, warranty and
covenant made by it in the Credit Agreement as if set forth herein in full,
except representations, warranties and covenants that relate solely to an
earlier date, and the Guarantor hereby affirms each representation, warranty and
covenant made by it in the Guaranty as if set forth herein in full.
(b) Each of the Company and the Guarantor acknowledges and confirms
that there are no defenses, claims or setoffs available to Company or to the
Guarantor which would operate to limit its obligations under the Credit
Agreement, the Note, the Guaranty, or the other Loan Documents to which is a
party thereto, or under any of such documents as amended hereby.
(c) Each of the Company and the Guarantor covenants, represents and
warrants as follows:
(i) each of the Company and the Guarantor has the full
corporate power and authority to enter into this Agreement and the documents and
instruments contemplated hereby to which it is a party and to perform its
obligations hereunder and thereunder; and
(ii) no default or event of default under any of the Loan
Documents, or event, condition, act or circumstance which with the giving of
notice or the passage of time or both could constitute a default or event of
default under any of the Loan Documents, has occurred and is continuing on the
date hereof.
6. Fees and Expenses.
-----------------
The Company shall pay all out-of-pocket expenses, costs and charges
incurred by Bank (including reasonable fees and disbursements of counsel) in
connection with the preparation and implementation of this Agreement.
7. Condition Precedent.
-------------------
As an express condition precedent to the effectiveness of this
Agreement, the Company shall provide to the Bank certified copies of resolutions
of the Board of Directors of the Company and the Guarantor authorizing the
execution and delivery of, and performance under, this Agreement.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned parties have caused this
Agreement to be executed by their duly authorized officers as
of the date first above written.
ATTEST: OLD DOMINION FREIGHT LINE, INC.
XXXX X. XXXXXXX, XX. By: J. XXX XXXX
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Secretary Title: SENIOR VP FINANCE
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[CORPORATE SEAL]
ATTEST: XXXX, INC.
XXXX X. XXXXXXX, XX. By: J. XXX XXXX
------------------------------------ --------------------------------
Secretary Title: PRESIDENT
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[CORPORATE SEAL]
ATTEST: FIRST UNION NATIONAL BANK
XXXXXXXXX X. XXXXXX By: XXXXXXX X. XXXXXXXX
--------------------------- --------------------------------
Vice President Title: VICE PRESIDENT
-----------------------------
[CORPORATE SEAL]
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