September 28, 2001
[LOGO] First Union
Xx. Xxxxxxx X. Xxxxxxx, Executive Vice President & CFO
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Loan Agreement dated as of November 5, 1999
Dear Xxxx;
Reference is made to that certain Loan Agreement dated as of November 5, 1999
(the "Agreement") between Nations Express, Inc. (the "Borrower") and First Union
National Bank (the "Bank"). The Agreement and all other documents executed and
delivered in connection therewith are collectively referred to herein as the
"Loan Documents". All capitalized terms used but not defined herein shall have
the meanings assigned in the Loan Documents.
The Agreement provides:
Total Liabilities to Effective Tangible Net Worth Ratio. Borrower shall, at all
-------------------------------------------------------
times, maintain a ratio of Total Liabilities to Effective Tangible Net Worth of
not more than 2.00 to 1.00. "Effective Tangible Net Worth" shall mean total
assets minus Total Liabilities. For purposes of this computation, the aggregate
amount of any intangible assets of Borrower including without limitation,
goodwill, franchises, licenses, patents, trademarks,, trade names, copyrights,
service marks, and brand names, shall be subtracted from total assets. "Total
Liabilities" shall mean all liabilities of Borrower, excluding debt fully
subordinated to Bank on terms and conditions acceptable to Bank, and including
capitalized leases and all reserves for deferred taxes and other deferred sums
appearing on the liabilities side of a balance sheet, in accordance with
generally accepted accounting principles applied on a consistent basis.
The Bank has determined that the Borrower has violated the above-referenced
provision due to the following:
Borrower did not maintain a ratio of Total Liabilities to Effective Tangible Net
Worth of not more than 2.00 to 1.00 as of June 30, 2001.
The Borrower has requested the Bank's waiver, and the Bank does hereby waive the
Borrower's default under this provision for the fiscal year ended June 30, 2001,
subject to Borrower's execution of and return of this letter. This waiver is
limited to the default recited above and shall not be construed to be a waiver
of any subsequent default under the referenced provision, or of any existing or
future defaults under any other provision of any Loan Document.
The Borrower, by signature below, represents and warrants that there exist no
defaults or event of default under the Loan Documents other than those
specifically waived herein, that the Loan Documents are in full force and
effect, and that Borrower does not have any defenses to its obligations under
the Loan Documents nor any claims against Bank.
Please evidence your acceptance of the terms of this waiver by signing and
returning to the Bank a copy of this letter bearing original authorized
signature of each of the parties indicated.
Sincerely,
FIRST UNION NATIONAL BANK
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President
ACCEPTED AND AGREED TO:
Nations Express, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx Date:
---------------------- ----------
Xxxxxxx X. Xxxxxxx
Executive Vice President & CFO
