EXHIBIT 2.4
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of the 25th day of
October, 1999, by BESTWAY TRUCKING, INC., a Kentucky corporation; XXXXXXX XXXXXX
& COMPANY, INC., a Florida corporation; CONNECTION ONE TRUCKING, LLC, an Indiana
limited liability company; DLS LEASING, INC., an Indiana corporation; FOX
MIDWEST TRANSPORT, INC., a Wisconsin corporation; J&L TRUCK LEASING OF
FARMINGTON, INCORPORATED, a New York corporation; KAT, INC., an Indiana
corporation; LAND TRANSPORTATION, LLC, a Delaware limited liability company;
XXXXXXXXXX TRUCKING SERVICE, INC., a Delaware corporation; MDR CARTAGE, INC., an
Arkansas corporation; R&M ENTERPRISES, INC., a Nebraska corporation; RAINBOW
TRUCKING SERVICES, INC., an Indiana corporation; SHIPPERS DISTRIBUTION SERVICES,
INC., a Wisconsin corporation; TRANSIT GROUP TRANSPORTATION, LLC, a Delaware
limited liability company; and TRANSIT LOGISTICS, LLC, a Delaware limited
liability company (together with the other Subsidiaries that may from time to
time become party hereto by signing a counterpart hereof, collectively, the
"Subsidiary Guarantors") in favor of the Agent, for the benefit of the Lenders
and their Affiliates, under the Credit Agreements referred to below;
WITNESSETH:
WHEREAS, Transit Group, Inc., a Florida corporation (the "Principal") and
Bank One, NA, a national banking association having its principal office in
Chicago, Illinois, as Agent (the "Agent"), and certain other Lenders from time
to time party thereto have entered into the Working Capital Credit Agreement
dated as of October 25, 1999 and the Acquisition Credit Agreement dated as of
October 25, 1999 (as the same may be amended or modified from time to time, the
"Credit Agreements"), providing, subject to the terms and conditions thereof,
for extensions of credit to be made by the Lenders to the Principal;
WHEREAS, it is a condition precedent to the Agent and the Lenders executing
the Credit Agreements that each of the Subsidiary Guarantors execute and deliver
this Guaranty whereby each of the Subsidiary Guarantors shall guarantee the
payment when due, subject to Section 9 hereof, of all Guaranteed Obligations, as
defined below; and
WHEREAS, in consideration of the financial and other support that the
Principal has provided, and such financial and other support as the Principal
may in the future provide, to the Subsidiary Guarantors, and in order to induce
the Lenders and the Agent to enter into the Credit
Agreements, and because each Subsidiary Guarantor has determined that executing
this Guaranty is in its interest and to its financial benefit, each of the
Subsidiary Guarantors is willing to guarantee the obligations of the Principal
under the Credit Agreements, any Note and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.1. Selected Terms Used Herein.
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"Guaranteed Obligations" is defined in Section 3 below.
SECTION 1.2. Terms in Credit Agreement. Other capitalized terms used
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herein but not defined herein shall have the meaning set forth in the Credit
Agreements.
SECTION 2.1. Representations and Warranties. Each of the Subsidiary
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Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed upon each Borrowing Date under either Credit
Agreement) that:
(1) It is a corporation, partnership or limited liability company duly
and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
(2) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The
execution and delivery by it of this Guaranty and the performance of its
obligations hereunder have been duly authorized by proper corporate
proceedings, and this Guaranty constitutes a legal, valid and binding
obligation of such Subsidiary Guarantor enforceable against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
(3) Neither the execution and delivery by it of this Guaranty, nor the
consummation of the transactions herein contemplated, nor compliance with
the provisions hereof will violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on it or any of its
subsidiaries or (ii) its articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate
of organization, bylaws, or operating or other management agreement, as the
case may be, or (iii) the provisions of any indenture, instrument or
agreement to which it or any of its subsidiaries is a party or is subject,
or by which it, or its Property, is bound,
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or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property
of such Subsidiary Guarantor or a subsidiary thereof pursuant to the terms
of any such indenture, instrument or agreement (except under the Loan
Documents). No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained
by it or any of its subsidiaries, is required to be obtained by it or any
of its subsidiaries in connection with the execution and delivery of this
Guaranty or the performance by it of its obligations hereunder or the
legality, validity, binding effect or enforceability of this Guaranty.
SECTION 1.4. Covenants. Each of the Subsidiary Guarantors covenants that,
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so long as any Lender has any Commitment outstanding under either Credit
Agreement, or any of the Guaranteed Obligations shall remain unpaid, that it
will, and, if necessary, will enable the Principal to, fully comply with those
covenants and agreements set forth in the Credit Agreements.
SECTION 2. The Guaranty. Subject to Section 9 hereof, each of the
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Subsidiary Guarantors hereby absolutely and unconditionally guarantees, as
primary obligor and not as surety, the full and punctual payment (whether at
stated maturity, upon acceleration or early termination or otherwise, and at all
times thereafter) and performance of the Secured Obligations, including without
limitation any such Secured Obligations incurred or accrued during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, whether
or not allowed or allowable in such proceeding (collectively, subject to the
provisions of Section 9 hereof, being referred to collectively as the
"Guaranteed Obligations"). Upon failure by the Principal to pay punctually any
such amount, each of the Subsidiary Guarantors agrees that it shall forthwith on
written demand pay to the Agent for the benefit of the Lenders and, if
applicable, their Affiliates, the amount not so paid at the place and in the
manner specified in the applicable Credit Agreement, any Note or the relevant
Loan Document, as the case may be. This Guaranty is a guaranty of payment and
not of collection. Each of the Subsidiary Guarantors waives any right to
require the Lender to xxx the Principal, any other guarantor, or any other
person obligated for all or any part of the Guaranteed Obligations, or otherwise
to enforce its payment against any collateral securing all or any part of the
Guaranteed Obligations.
SECTION 3. Guaranty Unconditional. Subject to Section 9 hereof, the
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obligations of each of the Subsidiary Guarantors hereunder shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(1) any extension, renewal, settlement, compromise, waiver or release
in respect of any of the Guaranteed Obligations, by operation of law
or otherwise, or any obligation of any other guarantor of any of the
Guaranteed Obligations, or any
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default, failure or delay, willful or otherwise, in the payment or
performance of the Guaranteed Obligations;
(2) any modification or amendment of or supplement to either Credit
Agreement, any Note, or any other Loan Document;
(3) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Principal under either
Credit Agreement, any Note, the Security Agreement, any other Loan
Document, any obligations of any other guarantor of any of the
Guaranteed Obligations or any action or failure to act by the Agent,
any Lender or any Affiliate of any Lender with respect to any
collateral securing all or any part of the Guaranteed Obligations;
(4) any change in the corporate existence, structure or ownership of
the Principal or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Principal, or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Principal, or any other guarantor
of any of the Guaranteed Obligations;
(5) the existence of any claim, setoff or other rights which the
Subsidiary Guarantors may have at any time against the Principal, any
other guarantor of any of the Guaranteed Obligations, the Agent, any
Lender or any other Person, whether in connection herewith or any
unrelated transactions;
(6) any invalidity or unenforceability relating to or against the
Principal, or any other guarantor of any of the Guaranteed
Obligations, for any reason related to either Credit Agreement, any
other Loan Document, or any provision of applicable law or regulation
purporting to prohibit the payment by the Principal, or any other
guarantor of the Guaranteed Obligations, of the principal of or
interest on any Note or any other amount payable by the Principal
under either Credit Agreement, any Note or any other Loan Document; or
(7) any other act or omission to act or delay of any kind by the
Principal, any other guarantor of the Guaranteed Obligations, the
Agent, any Lender or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of any Subsidiary
Guarantor's obligations hereunder.
SECTION 4. Discharge Only Upon Payment In Full: Reinstatement In Certain
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Circumstances. Each of the Subsidiary Guarantor's obligations hereunder shall
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remain in full force and effect until all Guaranteed Obligations shall have been
indefeasibly paid in full, the
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Commitments under the Credit Agreements shall have terminated or expired. If at
any time any payment of the principal of or interest on any Note or any other
amount payable by the Principal or any other party under either Credit
Agreement, or any other Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Principal
or otherwise, each of the Subsidiary Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 5. Waivers. Each of the Subsidiary Guarantors irrevocably waives
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acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Principal, any
other guarantor of any of the Guaranteed Obligations, or any other Person.
SECTION 6. Subrogation. Each of the Subsidiary Guarantors hereby agrees
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not to assert any right, claim or cause of action, including, without
limitation, a claim for subrogation, reimbursement, indemnification or
otherwise, against the Principal arising out of or by reason of this Guaranty or
the obligations hereunder, including, without limitation, the payment or
securing or purchasing of any of the Guaranteed Obligations by any of the
Subsidiary Guarantors unless and until the Guaranteed Obligations are
indefeasibly paid in full, any commitment to lend under the Credit Agreements
and any other Loan Documents is terminated.
SECTION 7. Stay of Acceleration. If acceleration of the time for payment
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of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Principal, all such amounts otherwise subject to
acceleration under the terms of either Credit Agreement, any Note or any other
Loan Document shall nonetheless be payable by each of the Subsidiary Guarantors
hereunder forthwith on demand by the Agent made at the request of the Required
Lenders under either Credit Agreement.
SECTION 8. Limitation on Obligations.
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(a) The provisions of this Guaranty are severable, and in any action
or proceeding involving any state corporate law, or any state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Subsidiary
Guarantor under this Guaranty would otherwise be held or determined to be
avoidable, invalid or unenforceable on account of the amount of such
Subsidiary Guarantor's liability under this Guaranty, then, notwithstanding
any other provision of this Guaranty to the contrary, the amount of such
liability shall, without any further action by the Subsidiary Guarantors,
the Agent or any Lender, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action
or proceeding (such highest amount determined hereunder being the relevant
Subsidiary Guarantor's "Maximum Liability"). This Section 9(a) with respect
to the
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Maximum Liability of the Subsidiary Guarantors is intended solely to
preserve the rights of the Agent hereunder to the maximum extent not
subject to avoidance under applicable law, and neither the Subsidiary
Guarantor nor any other person or entity shall have any right or claim
under this Section 9(a) with respect to the Maximum Liability, except to
the extent necessary so that the obligations of the Subsidiary Guarantor
hereunder shall not be rendered voidable under applicable law.
(1) Each of the Subsidiary Guarantors agrees that the Guaranteed
Obligations may at any time and from time to time exceed the Maximum
Liability of each Subsidiary Guarantor, and may exceed the aggregate
Maximum Liability of all other Subsidiary Guarantors, without impairing
this Guaranty or affecting the rights and remedies of the Agent hereunder.
Nothing in this Section 9(b) shall be construed to increase any Subsidiary
Guarantor's obligations hereunder beyond its Maximum Liability.
(2) In the event any Subsidiary Guarantor (a "Paying Subsidiary
Guarantor") shall make any payment or payments under this Guaranty or shall
suffer any loss as a result of any realization upon any collateral granted
by it to secure its obligations under this Guaranty, each other Subsidiary
Guarantor (each a "Non-Paying Subsidiary Guarantor") shall contribute to
such Paying Subsidiary Guarantor an amount equal to such Non-Paying
Subsidiary Guarantor's "Pro Rata Share" of such payment or payments made,
or losses suffered, by such Paying Subsidiary Guarantor. For the purposes
hereof, each Non-Paying Subsidiary Guarantor's "Pro Rata Share" with
respect to any such payment or loss by a Paying Subsidiary Guarantor shall
be determined as of the date on which such payment or loss was made by
reference to the ratio of (i) such Non-Paying Subsidiary Guarantor's
Maximum Liability as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Subsidiary Guarantor's Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying
Subsidiary Guarantor from the Principal after the date hereof (whether by
loan, capital infusion or by other means) to (ii) the sum of the Maximum
Liabilities (which may be greater than the amount of Guaranteed
Obligations) of all Subsidiary Guarantors hereunder (including such Paying
Subsidiary Guarantor) as of such date (without giving effect to any right
to receive, or obligation to make, any contribution hereunder), or to the
extent that a Maximum Liability has not been determined for any Subsidiary
Guarantors, the aggregate amount of all monies received by such Subsidiary
Guarantors from the Principal after the date hereof (whether by loan,
capital infusion or by other means). Nothing in this Section 9(c) shall
affect any Subsidiary Guarantor's several liability for the entire amount
of the Guaranteed Obligations (up to such Subsidiary Guarantor's Maximum
Liability). Each of the Subsidiary Guarantors covenants and agrees that
its right to receive any contribution under this Guaranty from a Non-Paying
Subsidiary Guarantor shall be subordinate and junior in right of payment to
all the Guaranteed Obligations. The provisions of this
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Section 9(c) are for the benefit of both the Agent and the Subsidiary
Guarantors and may be enforced by any one, or more, or all of them in
accordance with the terms hereof.
SECTION 9. Application of Payments. All payments received by the Agent
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hereunder shall be applied by the Agent to payment of the Guaranteed Obligations
in the following order unless a court of competent jurisdiction shall otherwise
direct:
(1) FIRST, to payment of all costs and expenses of the Agent
incurred in connection with the collection and enforcement of the
Guaranteed Obligations or of any security interest granted to the Agent in
connection with any collateral securing the Guaranteed Obligations;
(2) SECOND, to payment of that portion of the Guaranteed
Obligations constituting accrued and unpaid interest and fees, pro rata
among the Lenders and their Affiliates in accordance with the amount of
such accrued and unpaid interest and fees owing to each of them; and
(3) THIRD, to payment of any Guaranteed Obligations pro rata among
those parties to whom such Guaranteed Obligations are due in accordance
with the amounts owing to each of them.
SECTION 10. Notices. All notices, requests and other communications to
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any party hereunder shall be given or made by telecopier or other writing and
telecopied, or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Agent in accordance with the provisions of Article XIII of the
Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return-receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or
addressed as aforesaid.
SECTION 11. No Waivers. No failure or delay by the Agent or any Lenders
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or any of their Affiliates in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies provided in this
Guaranty, either Credit Agreement, any Note, and the other Loan Documents shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 12. No Duty to Advise. Each of the Subsidiary Guarantors assumes
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all responsibility for being and keeping itself informed of the Principal's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed
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Obligations and the nature, scope and extent of the risks that each of the
Subsidiary Guarantors assumes and incurs under this Guaranty, and agrees that
neither the Agent nor any Lender has any duty to advise any of the Subsidiary
Guarantors of information known to it regarding those circumstances or risks.
SECTION 13. Successors and Assigns. This Guaranty is for the benefit of
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the Agent and the Lenders and their respective successors and permitted assigns
and in the event of an assignment of any amounts payable under either Credit
Agreement, any Note or the other Loan Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, shall be transferred with
such indebtedness. This Guaranty shall be binding upon each of the Subsidiary
Guarantors and their respective successors and permitted assigns.
SECTION 14. Changes in Writing. Neither this Guaranty nor any provision
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hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by each of the Subsidiary Guarantors and the Agent with the
consent of the Required Lenders under each Credit Agreement.
SECTION 15. Costs of Enforcement. Each of the Subsidiary Guarantors
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agrees to pay all costs and expenses including, without limitation, all court
costs and attorneys' fees and expenses paid or incurred by the Agent or any
Lender or any Affiliate of any Lender in endeavoring to collect all or any part
of the Guaranteed Obligations from, or in prosecuting any action against, the
Principal, the Subsidiary Guarantors or any other guarantor of all or any part
of the Guaranteed Obligations.
SECTION 16. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
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TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
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LAW OF THE STATE OF ILLINOIS. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN
DOCUMENTS) OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY
GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE SUBSIDIARY GUARANTORS, AND THE AGENT AND THE LENDERS ACCEPTING THIS
GUARANTY, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING
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ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 17. Taxes, etc. All payments required to be made by any of the
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Subsidiary Guarantors hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority thereof
(but excluding Excluded Taxes), provided, however, that if any of the Subsidiary
Guarantors is required by law to make such deduction or withholding, such
Subsidiary Guarantor shall forthwith (i) pay to the Agent, any Lender or any
Affiliate of a Lender, as applicable, such additional amount as results in the
net amount received by the Agent, any Lender or any Affiliate of a Lender, as
applicable, equaling the full amount which would have been received by the
Agent, such Lender or such Affiliate, as applicable, had no such deduction or
withholding been made, (ii) pay the full amount deducted to the relevant
authority in accordance with applicable law, and (iii) furnish to the Agent, any
Lender or any Affiliate of a Lender, as applicable, certified copies of official
receipts evidencing payment of such withholding taxes within 30 days after such
payment is made.
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IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guaranty to be duly executed, under seal, by its authorized officer as of the
day and year first above written.
BESTWAY TRUCKING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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XXXXXXX XXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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CONNECTION ONE TRUCKING, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Manager
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DLS LEASING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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FOX MIDWEST TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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J&L TRUCK LEASING OF FARMINGTON,
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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KAT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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LAND TRANSPORTATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Manager
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XXXXXXXXXX TRUCKING SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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MDR CARTAGE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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R&M ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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RAINBOW TRUCKING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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SHIPPERS DISTRIBUTION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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TRANSIT GROUP TRANSPORTATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Manager
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TRANSIT LOGISTICS, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Manager
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