EXHIBIT 4.5.1
LOAN AGREEMENT
dated as of November 22, 2000
between
X.X.X. TRANSPORT, INC.
as Borrower
and
SUNTRUST BANK
as Lender
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION.......................................... 1
Section 1.1 Definitions................................................ 1
Section 1.2 Accounting Terms and Determination......................... 9
Section 1.3 Terms Generally............................................ 9
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS............................... 9
Section 2.1 Revolving Loans and Revolving Credit Note.................. 9
Section 2.2 Procedure for Revolving Loans.............................. 10
Section 2.3 Termination of Commitment.................................. 10
Section 2.4 Repayment of Loan.......................................... 10
Section 2.5 Interest on Loans.......................................... 10
Section 2.6 Letter of Credit Fees...................................... 11
Section 2.7 Computation of Interest and Fees........................... 11
Section 2.11 Payments Generally......................................... 11
Section 2.12 Letters of Credit.......................................... 11
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.............. 14
Section 3.1 Conditions To Effectiveness................................ 14
Section 3.2 Each Credit Event.......................................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................... 15
Section 4.1 Existence; Power........................................... 15
Section 4.2 Organizational Power; Authorization........................ 15
Section 4.3 Governmental Approvals; No Conflicts....................... 15
Section 4.4 Financial Statements....................................... 16
Section 4.6 Compliance with Laws and Agreements........................ 16
Section 4.7 Investment Company Act, Etc................................ 16
Section 4.8 Taxes...................................................... 16
Section 4.9 Margin Regulations......................................... 17
Section 4.10 ERISA...................................................... 17
Section 4.11 Ownership of Property...................................... 17
Section 4.12 Disclosure................................................. 17
Section 4.13 Labor Relations............................................ 17
Section 4.14 Subsidiaries............................................... 17
ARTICLE V AFFIRMATIVE COVENANTS.............................................. 18
Section 5.1 Financial Statements and Other Information.................. 18
Section 5.2 Notices of Material Events................................. 19
Section 5.3 Existence; Conduct of Business............................. 19
Section 5.4 Compliance with Laws, Etc.................................. 19
Section 5.5 Payment of Obligations..................................... 19
Section 5.6 Books and Records.......................................... 20
Section 5.7 Visitation, Inspection, Etc................................ 20
Section 5.8 Maintenance of Properties; Insurance....................... 20
Section 5.9 Use of Proceeds and Letters of Credit...................... 20
Section 5.10 Additional Subsidiaries.................................... 20
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ARTICLE VI FINANCIAL COVENANTS................................................ 21
Section 6.1 Leverage Ratio.............................................. 21
Section 6.2 Adjusted Funded Debt to EBITDAR Ratio....................... 21
Section 6.3 Consolidated Tangible Net Worth............................. 21
Section 6.4 Profitability............................................... 21
ARTICLE VII NEGATIVE COVENANTS................................................ 21
Section 7.1 Fundamental Changes......................................... 21
Section 7.2 Accounting Changes.......................................... 22
ARTICLE VIII EVENTS OF DEFAULT................................................ 22
Section 8.1 Events of Default............................................ 22
ARTICLE IX MISCELLANEOUS...................................................... 24
Section 9.1 Notices..................................................... 24
Section 9.2 Waiver; Amendments.......................................... 25
Section 9.3 Expenses; Indemnification................................... 26
Section 9.4 Successors and Assigns...................................... 27
Section 9.5 Governing Law; Jurisdiction; Consent to Service of Process.. 28
Section 9.6 WAIVER OF JURY TRIAL........................................ 28
Section 9.7 Right of Setoff............................................. 29
Section 9.8 Counterparts; Integration................................... 29
Section 9.9 Survival.................................................... 29
Section 9.10 Severability................................................ 29
Section 9.11 Confidentiality............................................. 30
Section 9.12 Interest Rate Limitation.................................... 30
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Exhibits
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Exhibit A - Revolving Credit Note
Exhibit B - Form of Subsidiary Guarantee Agreement
Exhibit C - Form of Parent Corporation Guarantee Agreement
Exhibit 2.2 - Notice of Revolving Borrowing
Exhibit 4.14 - List of Subsidiaries
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EXHIBIT 4.5.1
LOAN AGREEMENT
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THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
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November 22, 2000 by and between X.X.X. TRANSPORT, INC., an Arkansas
corporation (the "Borrower") and SUNTRUST BANK, a Georgia banking corporation
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(the "Lender").
WITNESSETH:
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WHEREAS, the Borrower has requested that the Lender establish a
$15,000,000 revolving credit facility;
WHEREAS, subject to the terms and conditions of this Agreement,
the Lender is willing to establish the requested revolving credit facility.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower and the Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
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Section 1.1 Definitions. In addition to the other terms defined herein,
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the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean the rate per annum equal to the LIBOR
Rate plus one and fifteen hundredths of one percent (1.15%) per annum.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Availability Period" shall mean the period from the Closing Date to the
Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Lender publicly announces from time to time to be its prime lending rate, as in
effect from time to time, and (ii) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (0.50%). The Lender's prime lending
rate is a reference rate and does not necessarily represent the lowest or best
rate charged to customers. The Lender may make commercial loans or other loans
at rates of interest at, above or below the Lender's prime lending rate. Each
change in the Lender's prime lending rate shall be effective from and including
the date such change is publicly announced as being effective.
"Borrower" shall mean X.X.X. Transport, Inc., and its permitted
successors and assigns.
"Borrowing Base" means the sum of 100% of the book value of Pledged
Vehicles.
"Borrowing Base Certificate" means the certificate to be delivered by
Borrower to Lender monthly, setting forth in reasonable detail the
identification of Pledged Vehicles and the book value thereof, as certified by
a Responsible Officer of Borrower.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Nashville, Tennessee are authorized or
required by law to close and (ii) any day on which dealings in Dollars are
carried on in the London interbank market.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of 30% or more of the outstanding shares of the voting stock of
the Borrower; or (c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither
(i) nominated by the current board of directors or (ii) appointed by directors
so nominated.
"Closing Date" shall mean the date on which the conditions precedent set
forth in Section 3.1 and Section 3.2 have been satisfied or waived in
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accordance with Section 9.2.
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"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean the Revolving Commitment.
"Commitment Termination Date" shall mean the earliest of (i) November
30, 2002 or (ii) the date on which all amounts outstanding under this Agreement
have become due and payable (by acceleration or otherwise).
"Consolidated EBITDA" shall mean, for the Borrower, the Parent
Corporation and its Subsidiaries for any period, an amount equal to the sum of
(a) Consolidated Net Income for such period plus (b) to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation and amortization and (iv)
all other non-cash charges, determined on a consolidated basis in accordance
with GAAP in each case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower, the Parent
Corporation and its Subsidiaries for any period, an amount equal to the sum of
(a) Consolidated EBITDA and (b) Consolidated Lease Expense.
"Consolidated Interest Expense" shall mean, for the Borrower, the Parent
Corporation and its Subsidiaries for any period determined on a consolidated
basis in accordance with GAAP, the sum of (i) total cash interest expense,
including without limitation the interest component of any payments in respect
of Capital lease obligations capitalized or expensed during such period
(whether or not actually paid during such period) plus (ii) the net amount
payable (or minus the net amount receivable) under Hedging Agreements during
such period (whether or not actually paid or received during such period).
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"Consolidated Lease Expense" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower, the Parent
Corporation and its Subsidiaries with respect to leases of real and personal
property (excluding Capital lease obligations) determined on a consolidated
basis in accordance with GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net income (or
loss) of the Borrower, the Parent Corporation and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, but
excluding therefrom (to the extent otherwise included therein) (i) any
extraordinary gains or losses, (ii) any gains attributable to write-ups of
assets and (iii) any equity interest of the Borrower, the Parent Corporation or
any Subsidiary of the Borrower in the unremitted earnings of any Person that is
not a Subsidiary and (iv) any income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary or is merged into or consolidated with the
Borrower, the Parent Corporation or any Subsidiary on the date that such
Person's assets are acquired by the Borrower, the Parent Corporation or any
Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the total
assets of the Borrower, the Parent Corporation and its Subsidiaries that would
be reflected on their consolidated balance sheet as of such date prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus the
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sum of (i) the total liabilities of the Borrower, the Parent Corporation and
its Subsidiaries that would be reflected on the consolidated balance sheet as
of such date prepared in accordance with GAAP and (ii) the amount of any
write-up in the book value of any assets resulting from a revaluation thereof
or any write-up in excess of the cost of such assets acquired reflected on the
consolidated balance sheet of the Borrower as of such date prepared in
accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, as of any date, (i) the
total assets of the Borrower, the Parent Corporation and its Subsidiaries that
would be reflected on the consolidated balance sheet as of such date prepared
in accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus the
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sum of (i) the total liabilities of the Borrower, the Parent Corporation and
its Subsidiaries that would be reflected on the consolidated balance sheet as
of such date prepared in accordance with GAAP, (ii) the amount of any write-up
in the book value of any assets resulting from a revaluation thereof or any
write-up in excess of the cost of such assets acquired reflected on the
consolidated balance sheet as of such date prepared in accordance with GAAP and
(iii) the net book amount of all assets of the Borrower, the Parent Corporation
and its Subsidiaries that would be classified as intangible assets on a
consolidated balance sheet as of such date prepared in accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date of determination,
all Indebtedness of the Borrower, the Parent Corporation and its Subsidiaries
that would be reflected on a consolidated balance sheet prepared in accordance
with GAAP as of such date.
"Consolidated Total Funded Debt" shall mean, with respect to Borrower,
the Parent Corporation and its Subsidiaries, without duplication, the sum of
(i) all Indebtedness represented by money borrowed, (ii) purchase money
indebtedness, (iii) principal portion of capitalized leases, (iv) the present
value of all minimum lease payment commitments with respect to operating leases
determined based upon a discount rate of 10% in accordance with the discounted
present value analytical methodology, (v) outstandings under asset
securitization
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vehicles, (vi) conditional sales contracts and similar title
retention debt instruments, including any current maturities of such
indebtedness which by its terms matures more than one year from the date of any
calculation thereof and/or which is renewable or extendible at the option of
the obligor to a date beyond one year from such date, (vii) commercial letters
of credit and the maximum amount of all performance and standby letters of
credit issued or bankers' acceptances created for the account of the Borrower,
the Parent Corporation or any Subsidiary, (viii) all Funded Debt of other
entities or persons which has been guaranteed by the Borrower, the Parent
Corporation or any Subsidiary or which is supported by a letter of credit
issued for the account of the Borrower, the Parent Corporation or any
Subsidiary, (ix) liability under any bond, indenture, note or similar
instrument, and (x) the redemption amount with respect to any redeemable
preferred stock of the Borrower, the Parent Corporation or any Subsidiary
required to be redeemed within the next 12 months.
"Control" shall mean the power, directly or indirectly, either to (i)
vote 5% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section 2.5(b).
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"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower or the Parent Corporation, is
treated as a single employer under Section 414(b) or (c) of the Code or, solely
for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower, the Parent Corporation
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower, the
Parent Corporation or any ERISA Affiliate from the PBGC or a plan administrator
appointed by the PBGC of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower, the Parent Corporation or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower, the Parent Corporation or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan
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from the Borrower, the Parent Corporation or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Event of Default" shall have the meaning provided in Article VIII.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100/th/ of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Lender from three Federal funds brokers of
recognized standing selected by the Lender.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.2.
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"Guarantor" shall mean each Subsidiary required to execute the
Subsidiary Guarantee Agreement and the Parent Corporation with respect to the
Parent Guarantee Agreement.
"Guarantee Agreements" shall mean collectively the Parent Guaranty
Agreement and the Subsidiary Guaranty Agreement, as they may be amended,
supplemented or restated from time to time.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business; provided, that for purposes of Section 8.1(f), trade
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payables overdue by more than 120 days shall be included in this definition
except to the extent that any of such trade payables are being disputed in good
faith and by appropriate measures), (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all capital lease obligations of such Person, (vi)
all obligations, contingent or otherwise, of such Person in respect of letters
of credit, acceptances or similar extensions of credit, (vii) all guaranties of
such Person of the type of Indebtedness described in clauses (i) through (vi)
above, (viii) all Indebtedness of a third party secured by any lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such
Person, (ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of
such Person, and (x) off-balance sheet liabilities. The Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Person is not
liable therefor.
"LC Commitment" shall mean that portion of the Revolving Commitment that
may be used by the Borrower for the issuance of Letters of Credit in an
aggregate face amount not to exceed $15,000,000.
"LC Disbursement" shall mean a payment made by the Lender pursuant to a
Letter of Credit.
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"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.12 by the Lender for the account of the Borrower pursuant to the LC
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Commitment.
"Leverage Ratio" shall mean, as of any date of determination with
respect to the Borrower, the ratio of (i) Consolidated Total Debt as of such
date to (ii) Consolidated Tangible Net Worth as of such date.
"LIBOR" shall mean the rate per annum for deposits in Dollars for one
month periods equal to such appearing on the display designated as Page 3750 on
the Dow Xxxxx Markets Service (or such other page on that service or such other
service designated by the British Banker's Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) initially for November 21, 2000 and thereafter on the
first Business Day of each calendar month or if such Page 3750 is unavailable
for any reason at such time, the rate which appears on the Reuters Screen ISDA
Page as of such date and such time; provided, that if the Lender determines
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that the relevant foregoing sources are unavailable for the relevant Interest
Period, LIBOR shall mean the rate of interest determined by the Lender to be the
average (rounded upward, if necessary, to the nearest 1/100/th/ of 1%) of the
rates per annum at which deposits in Dollars are offered to the Lender on the
first Business Day of each calendar month by leading banks in the London
interbank market as of 10:00 a.m. for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Loan to the Lender.
"Loan Documents" shall mean, collectively, this Agreement, the Note, the
LC Documents, the Subsidiary Guarantee Agreement, the Parent Guarantee
Agreement, the Security Agreement and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower, the Parent Corporation and each
Subsidiary Guarantor.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not related, a
material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and of the Borrower, the Parent Corporation and its Subsidiaries
taken as a whole, (ii) the ability of the Loan Parties to perform any of their
respective obligations under the Loan Documents, (iii) the rights and remedies
of the Lender under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
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"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit), of any one or more of the Borrower, the Parent
Corporation and the Subsidiaries in an aggregate principal amount exceeding
$500,000.
"Maturity Date" shall mean November 30, 2002.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)
(3) of ERISA.
"Note" shall mean the Revolving Credit Note.
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.2.
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"Obligations" shall mean all amounts owing by the Borrower to the Lender
pursuant to or in connection with this Agreement or any other Loan Document,
including without limitation, all principal, interest (including any interest
accruing after the filing of any petition in bankruptcy or the commencement of
any insolvency, reorganization or like proceeding relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Lender incurred pursuant to this Agreement
or any other Loan Document), whether direct or indirect, absolute or
contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, together with all renewals, extensions, modifications
or refinancings thereof.
"Participant" shall have the meaning set forth in Section 9.4(c).
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"Payment Office" shall mean the office of the Lender located at 000
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or such other location as to
which the Lender shall have given written notice to the Borrower.
"Parent Corporation" shall mean X.X.X. Transportation Services, Inc. and
its permitted successors and assigns.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit C, executed by the Parent Corporation in
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favor of Lender.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledged Vehicles" shall mean the motor vehicles from time to time
described in the Borrowing Base Certificate and pledged by Borrower (or a
Guarantor) to Lender as security for
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the Obligations under the terms of the Security Agreement or a security
agreement executed by the applicable Guarantor in substantially similar form as
the Security Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer,
the treasurer, secretary or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Lender; and, with respect to the
financial covenants only, the chief financial officer or the treasurer of the
Borrower.
"Revolving Commitment" shall mean the obligation of the Lender to make
Revolving Loans to the Borrower in an aggregate principal amount not exceeding
the lesser of (a) $15,000,000, or (b) an amount equal to the Borrowing Base.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of the Lender in the principal amount of the Revolving
Commitment, in substantially the form of Exhibit A.
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"Revolving Loan" or "Loans" shall mean the extension of credit made by
the Lender to the Borrower under its Revolving Commitment.
"Security Agreement" means that certain Security Agreement dated as of
the date hereof, executed by Borrower in favor of Lender, and any amendments
thereto or restatements thereof.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (ii) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent. Unless otherwise indicated, all references to "Subsidiary"
hereunder shall mean a Subsidiary of the Borrower or the Parent Corporation.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit B, executed by a Subsidiary in
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favor of the Lender.
"Subsidiary Guarantor" shall mean each Subsidiary required to execute
the Subsidiary Guarantee under the terms hereof.
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"TRAC Leases" shall mean any lease agreements with respect to motor
vehicles leased from time to time by Borrower (or an Affiliate thereof), as
lessee, and Lender (or an Affiliate of Lender), as lessor.
"TRAC Lease Exposure" shall mean at any time, the aggregate outstanding
unpaid principal amount (or rentals expressed as such principal amount) of all
TRAC Leases.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Accounting Terms and Determination. Unless otherwise defined
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or specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP
as in effect from time to time, applied on a basis consistent (except for such
changes approved by the Borrower's independent public accountants) with the
most recent audited consolidated financial statement of the Borrower delivered
pursuant to Section 5.1(a); provided, that if the Borrower notifies the Lender
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that the Borrower wishes to amend any covenant in Article VI to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the
Lender notifies the Borrower that it wishes to amend Article VI for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Lender.
Section 1.3 Terms Generally. The definitions of terms herein shall apply
---------------
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the word "to"
means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as it was originally executed or as it may from time to time be
amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in
the city and state of the Lender's principal office, unless otherwise
indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1 Revolving Loans and Revolving Credit Note.
-----------------------------------------
9
(a) Subject to the terms and conditions set forth herein, the
Lender agrees to make Revolving Loans to the Borrower, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in the sum of the principal
amount of Revolving Loans then outstanding plus the outstanding LC
Exposure and the TRAC Lease Exposure to exceed the Revolving Commitment.
During the Availability Period, the Borrower shall be entitled to
borrow, prepay and reborrow Revolving Loans in accordance with the terms
and conditions of this Agreement; provided, that the Borrower may not
--------
borrow or reborrow should there exist a Default or Event of Default.
Borrower shall deliver its Borrowing Base Certificate to Lender on or
before the fifteenth (15th) day of each calendar month. If such
Borrowing Base Certificate is not delivered, Lender shall have no
obligation to make additional Loans and any outstanding Revolving Credit
Loans will be reduced, upon demand by Lender, to a Borrowing Base as
calculated by Lender.
(b) The Borrower's obligation to pay the principal of, and
interest on, the Revolving Loans shall also be evidenced by the
Revolving Credit Note. The entries made in the records of Lender shall
be prima facie evidence of the existence and amounts of the obligations
of the Borrower therein recorded.
Section 2.2 Procedure for Revolving Loans. The Borrower shall give the
-----------------------------
Lender written notice (or telephonic notice promptly confirmed in writing) of
each Revolving Loan substantially in the form of Exhibit 2.2 (a "Notice of
Revolving Borrowing") prior to 11:00 a.m. on the Business Days of the requested
Loan. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i) the principal amount of the Revolving Loan, (ii) the proposed date
of such Revolving Loan (which shall be a Business Day). The aggregate principal
amount of each Revolving Loan shall be not less than $100,000. Upon the
satisfaction of the applicable conditions set forth in Article III hereof, the
Lender will make the proceeds of each Revolving Loan available to the Borrower
at the Payment Office on the date specified in the applicable Notice of
Revolving Borrowing by crediting an account maintained by the Borrower with the
Lender or at Borrower's option, by effecting a wire transfer of such amount to
an account designated by the Borrower to the Lender.
Section 2.3 Termination of Commitment. Unless previously terminated, the
-------------------------
Revolving Commitment shall terminate on the Commitment Termination Date.
Section 2.4 Repayment of Loan. The outstanding principal amount of all
-----------------
Revolving Loans shall be due and payable (together with accrued and unpaid
interest thereon) on the Commitment Termination Date.
Section 2.5 Interest on Loans.
-----------------
(a) The Borrower shall pay interest on all Loans at the
Adjusted LIBO Rate.
(b) While an Event of Default exists or after acceleration, at
the option of the Lender, the Borrower shall pay interest ("Default
Interest") and all other Obligations hereunder (other than Loans), at
the Base Rate, plus an additional 2% per annum.
(c) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding the
date of any repayment
10
thereof. Interest on all outstanding Loans shall be payable monthly in
arrears on the first Business Day of each calendar month and on the
Maturity Date, as the case may be.
Section 2.6 Letter of Credit Fees. The Borrower agrees to pay to the
---------------------
Lender a letter of credit fee of 115 basis points (1.15%) per annum of the face
amount of the Letter of Credit, as well as the Lender's standard fees with
respect to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Letter of Credit fees shall be payable upon
issuance of the Letter of Credit.
Section 2.7 Computation of Interest and Fees. All computations of
--------------------------------
interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Each determination by the
Lender of an interest amount or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.
Section 2.8 Payments Generally.
------------------
The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.10, or otherwise) prior to 12:00 noon, on
------------
the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Lender, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Lender at its Payment Office. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be made payable for
the period of such extension. All payments hereunder shall be made in Dollars.
Section 2.9 Letters of Credit.
-----------------
(a) During the Availability Period, the Lender agrees to issue,
at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; provided,
--------
that (i) each Letter of Credit shall expire on the earlier of (A) the
date one year after the date of issuance of such Letter of Credit (or in
the case of any renewal or extension thereof, one year after such
renewal or extension) and (B) the date that is five (5) Business Days
prior to the Commitment Termination Date; and (ii) the Borrower may not
request any Letter of Credit, if, after giving effect to such issuance
(A) the LC Exposure would exceed the LC Commitment or (B) the LC
Exposure, plus the TRAC Lease Exposure, plus the outstanding Revolving
----
Loans would exceed the Revolving Commitment.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Lender irrevocable written notice at least three
(3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may
be), the expiration date of such Letter of Credit, the amount of such
Letter of Credit , the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the
11
conditions in Article III, the issuance of such Letter of Credit (or any
amendment which increases the amount of such Letter of Credit) will be
subject to the further conditions that such Letter of Credit shall be in
such form and contain such terms as the Lender shall approve and that
the Borrower shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of
Credit as the Lender shall reasonably require; provided, that in the
--------
event of any conflict between such applications, agreements or
instruments and this Agreement, the terms of this Agreement shall
control.
(c) The Lender shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower of such demand for payment and whether the Lender has made
or will make a LC Disbursement thereunder; provided, that any failure
--------
to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the Lender with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally
obligated to reimburse the Lender for any LC Disbursements paid by the
Lender in respect of such drawing, without presentment, demand or other
formalities of any kind.
(d) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Lender
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Lender, in the name of the
Lender and for the benefit of the Lender, an amount in cash equal to the
LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided, that the obligation to deposit such cash collateral
--------
shall become effective immediately, and such deposit shall become
immediately due and payable, with demand or notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Section 8.1. Such deposit shall be
-----------
held by the Lender as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Lender shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the
option and sole discretion of the Lender and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest and profits, if
any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Lender to reimburse itself for LC
Disbursements for which it had not been reimbursed and to the extent so
applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent not
so applied as aforesaid) shall be returned to the Borrower with three
Business Days after all Events of Default have been cured or
waived.
(e) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
12
(i) Any lack of validity or enforceability of any Letter of Credit
or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may
have at any time against a beneficiary or any transferee of any Letter
of Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), the Lender or any other Person, whether in
connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Lender under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does
not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Lender nor any Related Party of the Lender shall have any liability
or responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Lender; provided, that the foregoing shall not be construed
--------
to excuse the Lender from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Lender's failure to exercise
care when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree, that in the absence of gross negligence or willful misconduct on the
part of the Lender (as finally determined by a court of competent
jurisdiction), the Lender shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
that appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Lender may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
13
(f) Each Letter of Credit shall be subject to the Uniform Customs
and Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be amended from
time to time, and, to the extent not inconsistent therewith, the governing
law of this Agreement set forth in Section 10.5.
------------
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
---------------------------------------------------
Section 3.1 Conditions To Effectiveness. The obligations of the Lender to
---------------------------
make the initial Revolving Loan and to issue the initial Letter of Credit
hereunder is subject to the receipt by the Lender of the following documents in
form and substance reasonably satisfactory to the Lender:
(a) this Agreement duly executed and delivered by the Borrower;
(b) a duly executed Note;
(c) a duly executed Security Agreement (and any title documentation
to evidence the liens granted thereby), the Subsidiary Guarantee
Agreements (executed by each of the Subsidiary Guarantors) and the Parent
Guarantee Agreement;
(d) a certificate of the Secretary or Assistant Secretary of the
Borrower, and the Subsidiary Guarantors, attaching and certifying copies
of their bylaws and of the resolutions of their respective boards of
directors, authorizing the execution, delivery and performance of the Loan
Documents to which they are a party and certifying the name, title and
true signature of each officer of the Borrower and the Subsidiary
Guarantors executing the Loan Documents to which it is a party;
(e) certified copies of the articles of incorporation or other
charter documents of the Borrower and the Parent Corporation, together
with certificates of good standing or existence, as may be available from
the Secretary of State of the jurisdiction of incorporation of the
Borrower and the Parent Corporation;
(f) a duly executed funds disbursement agreement.
As a condition subsequent, Borrower shall deliver within forty-five
(45) days of the Closing Date, a certificate of the Secretary or Assistant
Secretary of the Parent Corporation, attaching by-laws and a resolution of its
board of directors authorizing the Parent Guarantee.
Section 3.2 Each Credit Event. The obligation of the Lender to make any
-----------------
Loan or to issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to such Loan
or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects
on and as of the date of
14
such Loan or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the most recent financial statements of the
Borrower described in Section 5.1(a), there shall have been no change
----------- -
which has had or could reasonably be expected to have a Material Adverse
Effect; and
(d) the Lender shall have received such other documents,
certificates, information or legal opinions as it may reasonably request,
all in form and substance reasonably satisfactory to the Lender.
The making of each Loan and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
-----------
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lender as follows:
Section 4.1 Existence; Power. The Borrower, the Parent Corporation and
----------------
each of their Subsidiaries (i) is duly organized, validly existing and in good
standing as a corporation under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business, and is
in good standing, in each jurisdiction where such qualification is required,
except where a failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.
Section 4.2 Organizational Power; Authorization. The execution, delivery
-----------------------------------
and performance by each Loan Party of the Loan Documents to which it is a party
are within such Loan Party's organizational powers and have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Borrower, and constitutes, and each other Loan
Document to which any Loan Party is a party, when executed and delivered by
such Loan Party, will constitute, valid and binding obligations of the Borrower
or such Loan Party (as the case may be), enforceable against it in accordance
with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery
------------------------------------
and performance by the Borrower of this Agreement, and by each Loan Party of
the other Loan Documents to which it is a party (a) do not require any consent
or approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect or where the failure to do so, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower, the Parent Corporation or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate
or result in a default under any indenture, material agreement or other
material instrument binding on the Borrower, the Parent Corporation or any of
its Subsidiaries or any of its assets or give rise to a right thereunder to
require any payment
15
to be made by the Borrower, the Parent Corporation or any of its Subsidiaries
and (d) will not result in the creation or imposition of any lien on any asset
of the Borrower, the Parent Corporation or any of its Subsidiaries, except
liens (if any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished to the Xxxxx
--------------------
(i) the audited consolidated balance sheet of the Borrower as of December 31,
1999 and the related consolidated statements of income, shareholders' equity
and cash flows for the fiscal year then ended and (ii) the unaudited
consolidated balance sheet of the Borrower as at the end of September 30, 2000,
and the related unaudited consolidated statements of income and cash flows for
the fiscal quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present the consolidated
financial condition of the Borrower, the Parent Corporation and its
Subsidiaries as of such dates and the consolidated results of operations for
such periods in conformity with GAAP consistently applied, subject to year end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii). Since September 30, 2000, there have been no
changes with respect to the Borrower, the Parent Corporation and its
Subsidiaries which have had or could reasonably be expected to have a Material
Adverse Effect.
Section 4.5 Litigation No litigation, investigation or proceeding of or
----------
before any arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened against or affecting the Borrower,
the Parent Corporation or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect or (ii) which in any manner draws into question the validity or
enforceability of this Agreement or any other Loan Document.
Section 4.6 Compliance with Laws and Agreements. The Borrower, the Parent
-----------------------------------
Corporation and each Subsidiary is in material compliance with (a) all
applicable laws, rules, regulations and orders of any Governmental Authority,
and (b) all indentures, agreements or other instruments binding upon it or its
properties, except where non-compliance, either singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
Section 4.7 Investment Company Act, Etc. Neither the Borrower, the Parent
---------------------------
Corporation nor any of its Subsidiaries is (a) an "investment company", as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended or (c)
otherwise subject to any other regulatory scheme limiting its ability to incur
debt.
Section 4.8 Taxes. The Borrower, the Parent Corporation and its
-----
Subsidiaries have timely filed or caused to be filed all Federal income tax
returns and all other material tax returns that are required to be filed by
them, and have paid all taxes shown to be due and payable on such returns or on
any assessments made against it or its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority, except (i) to the extent the failure to do so would not have a
Material Adverse Effect or (ii) where the same are currently being contested in
good faith by appropriate proceedings and for which the Borrower, the Parent
Corporation or such Subsidiary, as the case may be, has set aside on its books
adequate reserves.
16
Section 4.9 Margin Regulations. None of the proceeds of any of the Loans
------------------
or Letters of Credit will be used for "purchasing" or "carrying" any "margin
stock" with the respective meanings of each of such terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the applicable Margin Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is reasonably expected
-----
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$250,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $250,000 the fair market value of the assets of
all such underfunded Plans.
Section 4.11 Ownership of Property. Each of the Borrower, the Parent
---------------------
Corporation and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, trade names, copyrights
and other intellectual property material to its business.
Section 4.12 Disclosure. The Borrower has disclosed to the Lender all
----------
material agreements, instruments, and corporate or other restrictions to which
the Borrower, the Parent Corporation or any of its Subsidiaries is subject, and
all other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. None of
the reports, financial statements, certificates or other information furnished
by Borrower to the Lender in connection with this Agreement or any other Loan
Document (as modified or supplemented by any other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, taken as a whole, in light of the
circumstances under which they were made, not misleading.
Section 4.13 Labor Relations. There are no strikes, lockouts or other
---------------
material labor disputes or grievances against the Borrower, the Parent
Corporation or any of its Subsidiaries, or, to the Borrower's knowledge,
threatened against or affecting the Borrower, the Parent Corporation or any of
its Subsidiaries, and no significant unfair labor practice, charges or
grievances are pending against the Borrower, the Parent Corporation or any of
its Subsidiaries, or to the Borrower's knowledge, threatened against any of
them before any Governmental Authority.
Section 4.14 Subsidiaries. Exhibit 4.14 sets forth the name of, the
------------
ownership interest of the Borrower in, the jurisdiction of incorporation of,
and the type of, each Subsidiary and identifies each Subsidiary as of the
Closing Date.
17
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as the Lender has a
Revolving Commitment hereunder or any fee or any LC Disbursement remains unpaid
or any Letter of Credit remains outstanding:
Section 5.1 Financial Statements and Other Information. The Borrower
------------------------------------------
will deliver to the Lender:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of Borrower, a copy of the annual audited report
for such fiscal year for the Borrower, the Parent Corporation and its
Subsidiaries, containing a consolidated balance sheet of the Borrower, the
Parent Corporation and its Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, stockholders' equity
and cash flows (together with all footnotes thereto) of the Borrower, the
Parent Corporation and its Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and reported on by Xxxxxx Xxxxxxxx LLC or
other independent public accountants of nationally recognized standing
(without a "going concern" or like qualification, exception or explanation
and without any qualification or exception as to scope of such audit) to
the effect that such financial statements present fairly in all material
respects the financial condition and the results of operations of the
Borrower, the Parent Corporation and its Subsidiaries for such fiscal year
on a consolidated basis in accordance with GAAP and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(b) as soon as available and in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of
the Borrower, an unaudited consolidated balance sheet of the Borrower,
the Parent Corporation and its Subsidiaries as of the end of such fiscal
quarter and the related unaudited consolidated statements of income and
cash flows of the Borrower, the Parent Corporation and its Subsidiaries
for such fiscal quarter and the then elapsed portion of such fiscal year,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's
previous fiscal year, all certified by the chief financial officer or
treasurer of the Borrower as presenting fairly in all material respects
the financial condition and results of operations of the Borrower, the
Parent Corporation and its Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a Responsible
Officer, (i) certifying as to whether there exists a Default or Event of
Default on the date of such certificate, and if a Default or an Event of
Default then exists, specifying the details thereof and the action which
the Borrower has taken or proposes to take with respect thereto, and (ii)
setting forth in reasonable detail calculations demonstrating compliance
with Article VI;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial
18
statements stating whether they obtained any knowledge during the course of
their examination of such financial statements of any Default or Event of
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed
with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, or with
any national securities exchange, or distributed by the Parent
Corporation to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial
condition of the Borrower, the Parent Corporation or any Subsidiary as
the Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to the
--------------------------
Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the
knowledge of the Borrower, affecting the Borrower, the Parent Corporation
or any Subsidiary which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect; and
(c) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event
requiring such notice and any action taken or proposed to be taken with respect
thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence
and its respective material rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently
conducted or such other businesses that are reasonably related thereto;
provided, that nothing in this Section shall prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 7.1.
-----------
Section 5.4 Compliance with Laws, Etc. The Borrower will, and will cause
-------------------------
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 5.5 Payment of Obligations. The Borrower will, and will cause each
----------------------
of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such
19
Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.6 Books and Records. The Borrower will, and will cause each of
-----------------
its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will, and will cause
---------------------------
each of its Subsidiaries to, permit any representative of the Lender to visit
and inspect its properties, to examine its books and records and to make copies
and take extracts therefrom, and to discuss its affairs, finances and accounts
with any of its officers and with its independent certified public accountants,
all at such reasonable times as the Lender may reasonably request after
reasonable prior notice to the Borrower.
Section 5.8 Maintenance of Properties; Insurance. The Borrower will, and
------------------------------------
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear except where the failure to do so, either individually
or it the aggregate, could not reasonably be expected to result in a Material
Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar
businesses operating in the same or similar locations.
Section 5.9 Use of Proceeds and Letters of Credit. The Borrower will use
-------------------------------------
the proceeds of all Loans to finance working capital needs, acquisitions,
capital expenditures, repurchases of shares and for other general corporate
purposes of the Borrower, the Parent Corporation and its Subsidiaries. No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that would violate any rule or regulation of the Board of Governors
of the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
Section 5.10 Guaranty by Subsidiaries. Borrower represents that the
------------------------
following Subsidiaries are inactive and have no revenues or material assets:
X.X.X. Special Services, Inc., X.X.X. Logistics Services, Inc. and Choctaw
Brokerage, Inc. In the event any of such inactive Subsidiaries shall become
active, the Borrower will, within thirty (30) Business Days after such
Subsidiary becomes active, notify the Lender and cause such Subsidiary to
become a Loan Party by executing or assuming the Subsidiary Guarantee in
accordance with its terms. If any additional Subsidiary is acquired or formed
after the Closing Date, the Borrower will, within thirty (30) Business Days
after such Subsidiary is acquired or formed, notify the Lender thereof and will
cause such Subsidiary to become a Loan Party by executing or assuming the
Subsidiary Guarantee Agreement in accordance with its terms.
20
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as the Lender has its
Revolving Commitment hereunder or any LC Disbursement remains unpaid or any
Letter of Credit remains outstanding:
Section 6.1 Leverage Ratio. The Borrower will have, as of the end of each
--------------
fiscal quarter of the Borrower, commencing with the fiscal quarter ending
December 31, 2000 a Leverage Ratio of not greater than 3.0 to 1.0.
Section 6.2 Consolidated Total Consolidated Total Funded Debt to EBITDAR
------------------------------------------------------------
Ratio. The Borrower will have, as of the end of each fiscal quarter of the
-----
Borrower, commencing with the fiscal quarter ending December 31, 2000, a ratio
Consolidated Total Funded Debt to EBITDAR of not greater than 3.0 to 1.0.
Section 6.3 Consolidated Tangible Net Worth. The Borrower will not permit
-------------------------------
its Consolidated Tangible Net Worth at any time to be less than $42,000,000 as
at December 31, 1999 plus 50% of Consolidated Net Income on a cumulative basis
for all fiscal quarters of the Borrower, commencing with the fiscal quarter
ending December 31, 2000; provided, that if Consolidated Net Income is negative
--------
in any fiscal quarter the amount added for such fiscal quarter shall be zero
and such negative Consolidated Net Income shall not reduce the amount of
Consolidated Net Income added from any previous fiscal quarter. The amount of
Consolidated Tangible Net Worth set forth above shall be increased by 100% of
the amount by which the Borrower's "total stockholders' equity" is increased as
a result of any public or private offering of common stock of the Borrower
after the Closing Date.
Section 6.4 Profitability. The Borrower, on a consolidated basis, will
-------------
have positive earnings (pre-tax) for each fiscal year.
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that so long as the Lender has its
Revolving Commitment hereunder or any LC Disbursement remains unpaid or
any Letter of Credit remains outstanding:
Section 7.1 Fundamental Changes.
-------------------
(a) The Borrower and the Parent Corporation will not, and will not
permit any Subsidiary to, merge into or consolidate into any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in each
case, whether now owned or hereafter acquired) or all or substantially all
of the stock of any of its Subsidiaries (in each case, whether now owned
or hereafter acquired) or liquidate or dissolve; provided, that if at the
--------
time thereof and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing (i) the Borrower,
the Parent Corporation or any Subsidiary may merge with a Person if the
21
Borrower (or such Parent Corporation or Subsidiary if the Borrower is not
a party to such merger) is the surviving Person, (ii) any Subsidiary may
merge into another Subsidiary; provided, that if any party to such merger
--------
is a Loan Party, the Loan Party shall be the surviving Person, and (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower, the Parent Corporation or
to a Loan Party.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on
the date hereof and businesses reasonably related thereto.
Section 7.2 Accounting Changes. The Borrower will not make any significant
------------------
change in accounting treatment or reporting practices, except as required by
GAAP, or change the fiscal year of the Borrower or of any Subsidiary, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of
the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
Section 8.1 Events of Default. If any of the following events (each an
-----------------
"Event of Default") shall occur:
----------------
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of fifteen (15) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower, the Parent Corporation or any Subsidiary in or in
connection with this Agreement or any other Loan Document, or in any
certificate, financial statement or other document submitted to the Lender
by any Loan Party or any representative of any Loan Party in connection
with this Agreement or any other Loan Document shall prove to be incorrect
in any material respect when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 4.1 or 4.2 (with respect to the Borrower's
------------ ---
existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in
clauses (a), (b) and (d) above), and such failure shall remain unremedied
for 30 days after the earlier of (i) any officer of the Borrower becomes
aware of such failure, or (ii) notice thereof shall have been given to the
Borrower by the Lender; or
22
(f) the Borrower, the Parent Corporation or any Subsidiary (whether
as primary obligor or as guarantor or other surety) shall fail to pay any
principal of or premium or interest on any Material Indebtedness that is
outstanding, when and as the same shall become due and payable (whether at
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall exist
under any agreement or instrument relating to such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable; or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or
any offer to prepay, redeem, purchase or defease such Indebtedness shall
be required to be made, in each case prior to the stated maturity
thereof; or
(g) the Borrower, the Parent Corporation or any Subsidiary shall (i)
commence a voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its
property, (ii) consent to the institution of , or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (i) of this Section, (iii) apply for or consent to the appointment
of a custodian, trustee, receiver, liquidator or other similar official
for the Borrower, the Parent Corporation or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, or (vi) take any
action for the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower, the Parent Corporation or any
Subsidiary or its debts, or any substantial part of its assets, under any
federal, state or foreign bankruptcy, insolvency or other similar law now
or hereafter in effect or (ii) the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower, the
Parent Corporation or any Subsidiary or for a substantial part of its
assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
(i) the Borrower, the Parent Corporation or any Subsidiary shall
become unable to pay, shall admit in writing its inability to pay, or
shall fail to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, when taken together
with other ERISA Events that have occurred, could reasonably be expected
to result in liability to the Borrower and the Subsidiaries in an
aggregate amount exceeding $500,000; or
23
(k) any judgment or order for the payment of money in excess of
$500,000 in the aggregate shall be rendered against the Borrower, the
Parent Corporation or any Subsidiary, and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be a period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower, the Parent Corporation or any Subsidiary that could reasonably
be expected to have a Material Adverse Effect, and there shall be a period
of 30 consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(m) a Change in Control shall occur or exist;
(n) any provision of the Parent Guarantee Agreement or any
Subsidiary Guarantee Agreement shall for any reason cease to be valid and
binding on, or enforceable against, any Loan Party;
(o) An Event of Default under that certain Credit Agreement dated
June 19, 2000 by and among the Parent Corporation, First Tennessee Bank
National Association as Agent and Lender, and the Lenders named therein.
(o) A default occurs and is continuing under any Loan Document,
subject to any cure period or grace period set forth therein.
then, and in every such event (other than an event with respect to the Borrower
or the Parent Corporation described in clause (g) or (h) of this Section) and
at any time thereafter during the continuance of such event, the Lender may, by
notice to the Borrower, take any or all of the following actions, at the same
or different times: (i) terminate its Revolving Commitment; (ii) declare the
principal of and any accrued interest on the Loans, and all other Obligations
owing hereunder, to be, whereupon the same shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower and (iii) exercise all remedies
contained in any other Loan Document; and that, if an Event of Default
specified in either clause (g) or (h) shall occur, the Revolving Commitment
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.1 Notices.
-------
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
to any party herein to be effective shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
24
To the Borrower: X.X.X. Transport, Inc.
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, CFO
Telecopy Number: (000) 000-0000
To the Lender: SunTrust Bank
000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxx or Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the mails or if delivered, upon delivery; provided, that
--------
notices delivered to the Lender shall not be effective until actually
received by the Lender at its address specified in this Section 9.1.
-----------
(b) Any agreement of the Lender herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Borrower. The Lender shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Lender shall not have any liability
to the Borrower or other Person on account of any action taken or not
taken by the Lender in reliance upon such telephonic or facsimile notice.
The obligation of the Borrower to repay the Loans and all other
Obligations hereunder shall not be affected in any way or to any extent by
any failure of the Lender to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Lender of a
confirmation which is at variance with the terms understood by the Lender
to be contained in any such telephonic or facsimile notice.
Section 9.2 Waiver; Amendments.
------------------
(a) No failure or delay by the Lender in exercising any right
or power hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Lender, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any
other right or power hereunder or thereunder. The rights and remedies of
the Lender hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to
any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a
Letter of Credit shall not be construed as a waiver
25
of any Default or Event of Default, regardless of whether the Lender may
have had notice or knowledge of such Default or Event of Default at the
time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Lender and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 9.3 Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay all reasonable, out-of-pocket costs
and expenses of the Lender (including, without limitation, the reasonable
fees, charges and disbursements of counsel in the enforcement of its
rights in connection with this Agreement or in connection with the Loans
made or any Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Lender and each Related
Party of the Lender (each, an "Indemnitee") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, which may be incurred by or asserted against
any Indemnitee arising out of, in connection with or as a result of (i)
the execution or delivery of any this Agreement or any other agreement or
instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of any of the
transactions contemplated hereby, (ii) any Loan or Letter of Credit or any
actual or proposed use of the proceeds therefrom (including any refusal by
the Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort, or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that
--------
the Borrower shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final
and nonappealable judgment.
(c) The Borrower shall pay, and hold the Lender harmless from
and against, any and all fees with respect to any collateral described in
the Loan Documents or any payments due thereunder, and save the Lender
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the transactions contemplated therein, any
Loan or the Letter of Credit or the use of proceeds thereof.
26
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
Section 9.4 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or transfer any of
its rights hereunder without the prior written consent of the Lender.
(b) The Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Revolving
Commitment and the Loans and LC Exposure at the time owing to it);
provided, that the Borrower must give its prior written consent (which
--------
consent shall not be unreasonably withheld or delayed) to any assignment,
except an assignment to an Affiliate of the Lender or during the
occurrence and continuation of a Default or an Event of Default. Upon the
execution and delivery of an assignment agreement by the Lender and such
assignee and payment by such assignee of an amount equal to the purchase
price agreed between the Lender and such assignee, such assignee shall
become a party to this Agreement and the other Loan Documents and shall
have the rights and obligations of a Lender under this Agreement, and the
Lender shall be released from its obligations hereunder to a corresponding
extent. Upon the consummation of any such assignment hereunder, the
Lender, the assignee and the Borrower shall make appropriate arrangements
to have new Notes issued to reflect such assignment.
(c) The Lender may at any time, without the consent of the
Borrower, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of the Lender's rights and obligations
-----------
under this Agreement; provided, that (i) the Lender's obligations under
--------
this Agreement shall remain unchanged, (ii) the Lender shall remain solely
responsible to the other parties hereto for the performance of its
obligations hereunder, and (iii) the Borrower shall continue to deal
solely and directly with the Lender in connection with the Lender's rights
and obligations under this Agreement and the other Loan Documents. Any
agreement between the Lender and the Participant with respect to such
participation shall provide that the Lender shall retain the sole right
and responsibility to enforce this Agreement and the other Loan Documents
and the right to approve any amendment, modification or waiver of this
Agreement and the other Loan Documents; provided, that such participation
--------
agreement may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver of this
Agreement described in the first proviso of Section 9.2(b) that affects
----------- -
the Participant. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.10, to the same extent as if it
-------------
were a Lender hereunder and had acquired its interest by assignment
pursuant to paragraph (b); provided, that no Participant shall be entitled
--------
to receive any greater payment under Section 2.10 than the Lender would
------------
have been entitled to receive with respect to the participation sold to
such Participant unless the sale of such participation is made with the
Borrower's prior written consent.
(d) The Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and the
Notes to secure its obligations to
27
a Federal Reserve Bank without complying with this Section; provided, that
--------
no such pledge or assignment shall release the Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
Section 9.5 Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving
effect to the conflict of law principles thereof) of the State of
Tennessee.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of
the United States District Court of Middle District of Tennessee and of
any Chancery Court of Davidson County, Tennessee, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such
Tennessee state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives
any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in paragraph (b) of this
Section. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 9.1.
-----------
Nothing in this Agreement or in any other Loan Document will affect the
right of any party hereto to serve process in any other manner permitted
by law.
Section 9.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO
--------------------
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
28
TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.7 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law and not by way of limitation of any such rights,
the Lender shall have the right, at any time or from time to time upon the
occurrence and during the continuance of an Event of Default, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, to set off and apply against all
deposits (general or special, time or demand, provisional or final) of the
Borrower at any time held or other obligations at any time owing by the Lender
to or for the credit or the account of the Borrower against any and all
Obligations held by the Lender, irrespective of whether the Lender shall have
made demand hereunder and although such Obligations may be unmatured. The
Lender agrees promptly to notify the Borrower after any such set-off and any
application made by the Lender; provided, that the failure to give such notice
--------
shall not affect the validity of such set-off and application.
Section 9.8 Counterparts; Integration. This Agreement may be executed by
-------------------------
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Lender constitute the entire agreement
among the parties hereto and thereto regarding the subject matters hereof and
thereof and supersede all prior agreements and understandings, oral or written,
regarding such subject matters.
Section 9.9 Survival. All covenants, agreements, representations and
--------
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Revolving Commitment has not expired or terminated. The
provisions of Sections 2.10, and 9.3 shall survive and remain in full force and
------------- ---
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
other Loan Documents, and the making of the Loans.
Section 9.10 Severability. Any provision of this Agreement or any other
------------
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such
illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
29
Section 9.11 Confidentiality. The Lender agrees to take normal and
---------------
reasonable precautions to maintain the confidentiality of any information
designated in writing as confidential and provided to it by the Borrower, the
Parent Corporation or any Subsidiary, except that such information may be
disclosed (i) to any Related Party of the Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to
the extent that such information becomes publicly available other than as a
result of a breach of this Section, or which becomes available to the Lender or
any Related Party of the Lender on a nonconfidential basis from a source other
than the Borrower, (v) in connection with the exercise of any remedy hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, and (ix) subject to provisions substantially similar to
this Section 9.11, to any actual or prospective assignee or Participant, or
------------
(vi) with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
Section 9.12 Interest Rate Limitation. Notwithstanding anything herein to
------------------------
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "Charges"), shall exceed the
maximum lawful rate of interest (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of repayment, shall
have been received by the Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
X.X.X. TRANSPORT, INC.
By:/s/ Xxxxx X.Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President - Finance
SUNTRUST BANK
By /s/
--------------------------------------
Name:
Title:
30
EXHIBIT A
REVOLVING CREDIT NOTE
$15,000,000 Nashville, Tennessee
November _____, 2000
FOR VALUE RECEIVED, the undersigned, X.X.X. Transport, Inc., an Arkansas
corporation (the "Borrower"), hereby promises to pay to SunTrust Bank (the
"Lender") or its registered assigns at its principal office or any other office
that the Lender designates, on the Commitment Termination Date (as defined in
the Loan Agreement dated as of the date hereof (as the same may be amended,
restated or otherwise modified from time to time, the "Credit Agreement"),
between the Borrower and the Lender, the lesser of the principal sum of Fifteen
Million Dollars ($15,000,000) and the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized
to collect any amount due hereunder, the Borrower further promises to pay all
costs of collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments of
the principal hereof and the date thereof shall be endorsed by the holder
hereof on the schedule attached hereto and made a part hereof, or otherwise
recorded by such holder in its internal records; provided, that the failure of
--------
the holder hereof to make such a notation or any error in such notation shall
not affect the obligations of the Borrower to make the payments of principal
and interest in accordance with the terms of this Revolving Credit Note and the
Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TENNESSEE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
X.X.X. TRANSPORT, INC.
By:
-------------------------------------
Name:
Title:
EXHIBIT B
[FORM OF SUBSIDIARY GUARANTEE AGREEMENT]
SUBSIDIARY GUARANTEE AGREEMENT dated as of November ____, 2000, among each
of the Subsidiaries executing the signature pages hereof (each such subsidiary
individually, a "Guarantor" and collectively, the "Guarantors") of X.X.X.
--------- ----------
TRANSPORT, INC., an Arkansas corporation (the "Borrower"), and SUNTRUST BANK, a
--------
Georgia banking corporation (the "Lender")
------
Reference is made to the Loan Agreement dated as of November ___, 2000 (as
amended, restated or otherwise modified from time to time, the "Credit
------
Agreement"), between the Borrower and the Lender. Capitalized terms used herein
---------
and not defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The Lender has agreed to make Loans to and issue Letters of Credit for the
account of the Borrower, pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Each of the Guarantors is a
direct or indirect wholly-owned Subsidiary of the Borrower and acknowledges
that it will derive substantial benefit from the making of the Loans and the
issuance of the Letters of Credit by the Lender. The obligations of the Lender
to make Loans and to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Guarantors of this Subsidiary
Guarantee Agreement. As consideration therefor and in order to induce the
Lender to make Loans and to issue Letters of Credit, the Guarantors are willing
to execute this Subsidiary Guarantee Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
---------
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Lender under the
Credit Agreement and the other Loan Documents, and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents (all the monetary and other obligations referred to in the preceding
clauses (a) and (b) being collectively called the "Obligations"). Each
-----------
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or renewal of any
Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
----------------------
applicable law, each Guarantor waives presentment to, demand of payment from
and protest to the Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for nonpayment. To the
fullest extent permitted by applicable law, the obligations of each Guarantor
hereunder shall not be affected by (a) the failure of the Lender or any
Lender to assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or any other Guarantor under the provisions of the
Credit Agreement, any other Loan Document or otherwise, (b) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, this Agreement, any other Loan Document, any Guarantee or any
other agreement, including with respect to any other Guarantor under this
Agreement, or (c) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Lender or any
Lender.
SECTION 3. Guarantee of Payment. Each Guarantor further agrees that its
--------------------
guarantee constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the Lender or any
Lender to any of the security held for payment of the Obligations or to any
balance of any deposit account or credit on the books of the Lender or any
Lender in favor of the Borrower or any other person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations of
-----------------------------------------
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment
in full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Lender or any Lender to assert any
claim or demand or to enforce any remedy under the Credit Agreement, any other
Loan Document or any other agreement, by any waiver or modification of any
provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to the extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of each Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted by
---------------------------
applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability
of the Borrower, other than the final and indefeasible payment in full in cash
of the Obligations. The Lender and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or more judicial
or nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other guarantor, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, each Guarantor waives any defense arising out of
any such election even though such election operates, pursuant to applicable
law, to impair or to extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Borrower or any other
Guarantor or guarantor, as the case may be, or any security.
2
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
-------------------------------
foregoing and not in limitation of any other right that the Lender or any
Lender has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Lender for the benefit of the
Lenders in cash the amount of such unpaid Obligations. Upon payment by any
Guarantor of any sums to the Lender, all rights of such Guarantor against the
Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower now or hereafter held by any Guarantor is hereby subordinated in right
of payment to the prior payment in full in cash of the Obligations. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of the Borrower, such amount shall be held in trust for
the benefit of the Lender and the Lenders and shall forthwith be paid to the
Lender to be credited against the payment of the Obligations, whether matured
or unmatured, in accordance with the terms of the Loan Documents.
SECTION 7. Information. Each Guarantor assumes all responsibility for
-----------
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the Lender or
the Lenders will have any duty to advise any of the Guarantors of information
known to it or any of them regarding such circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents and
------------------------------
warrants as to itself that all representations and warranties relating to it
(as a Subsidiary of the Borrower) contained in the Credit Agreement are true
and correct.
SECTION 9. Termination. The guarantees made hereunder (a) shall terminate
-----------
when all the Obligations have been paid in full in cash and the Lenders have no
further commitment to lend under the Credit Agreement, the LC Exposure has been
reduced to zero and the Issuing Bank has no further obligation to issue Letters
of Credit under the Credit Agreement and (b) shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by any Lender or
any Guarantor upon the bankruptcy or reorganization of the Borrower, any
Guarantor or otherwise. In connection with the foregoing, the Lender shall
execute and deliver to such Guarantor or Guarantor's designee, at such
Guarantor's expense, any documents or instruments which such Guarantor shall
reasonably request from time to time to evidence such termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
----------------------------------------------
this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantors that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall become
effective as to any Guarantor when a counterpart hereof executed on behalf of
such Guarantor shall have been delivered to the Lender, and a counterpart
hereof shall have been executed on behalf of the Lender, and thereafter shall
be binding upon such Guarantor and the Lender and their respective successors
and assigns, and shall inure to the benefit of such
3
Guarantor, the Lender and the Lenders, and their respective successors and
assigns, except that no Guarantor shall have the right to assign its rights or
obligations hereunder or any interest herein (and any such attempted assignment
shall be void). If all of the capital stock of a Guarantor is sold, transferred
or otherwise disposed of pursuant to a transaction permitted by the Credit
Agreement, such Guarantor shall be released from its obligations under this
Agreement without further action. This Agreement shall be construed as a
separate agreement with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the Lender of
------------------
any in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and of the Lender hereunder and of the Lenders under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver and consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Lender, with the prior written consent of the Required Lenders (except
as otherwise provided in the Credit Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 14. Notices. All communications and notices hereunder shall be in
-------
writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
----------------------------------
agreements representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or the other Loan Document shall be considered to
have been relied upon by the Lender and the Lenders and shall survive the
making by the Lenders of the Loans and the issuance of the Letters of Credit by
the Issuing Bank regardless of any investigation made by any of them or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the Commitments
have not been terminated.
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity,
4
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision
in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 15. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation specified
-----------------------
in Section 1.03 of the Credit Agreement shall be applicable to this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
-------------------------------------------
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Chancery Court of Davidson
County, Tennessee or Federal court of the United States of America sitting in
Nashville, Tennessee, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Nashville, Tennessee State court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Lender, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Guarantor or
its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any Tennessee State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
--------------------
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS
5
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 19. Additional Guarantors. Pursuant to Section 5.10 of the Credit
---------------------
Agreement, each Loan Party that was not in existence on the date of the Credit
Agreement is required to enter into this Agreement as a Guarantor upon becoming
Loan Party. Upon execution and delivery after the date hereof by the Lender and
such Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Agreement shall not require
the consent of any other Guarantor hereunder. The rights and obligations of
each Guarantor hereunder shall remain in full force and effect notwithstanding
the addition of any new Guarantor as a party to this Agreement.
SECTION 20. Right of Setoff. If an Event of Default shall have occurred
---------------
and be continuing, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Lender to or for the
credit or the account of any Guarantor against any or all the obligations of
such Guarantor now or hereafter existing under this Agreement and the other
Loan Documents held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Lender under
this Section 21 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
X.X.X. Dedicated Services, Inc.
By:________________________________________
Name:
Title: Authorized Officer
Choctaw Express, Inc.
By:________________________________________
Name:
Title: Authorized Officer
6
Xxxxx Freight Services, Inc.
By:________________________________________
Name:
Title: Authorized Officer
Xxxxxx Transport Company, Inc.
By:________________________________________
Name:
Title: Authorized Officer
T.T.X., Inc.
By:________________________________________
Name:
Title: Authorized Officer
SUNTRUST BANK
By:________________________________________
Name:
Title:
7
ANNEX 1 TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Subsidiary
Guarantee Agreement (the "Guarantee Agreement") dated as of November ____, 2000
-------------------
among each of the subsidiaries listed therein (or on Schedule I thereto) (each
such Subsidiary individually, a "Guarantor" and collectively, the "Guarantors")
--------- ----------
of X.X.X. TRANSPORT, INC., an Arkansas corporation (the "Borrower"), and
--------
SUNTRUST BANK, a Georgia banking corporation, as Lender (the "Lender").
------
A. Reference is made to the Loan Agreement dated as of November ___,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower and the Lender. Capitalized terms used
----------------
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guarantee Agreement and
the Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lender to make Loans and to issue Letters of Credit. Pursuant to
Section 5.10 of the Credit Agreement, each Subsidiary which is a Loan Party
that was not in existence or not a Loan Party on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as a Guarantor upon
becoming a Loan Party. Section 19 of the Guarantee Agreement provides that
additional Subsidiaries of the Borrower shall become Guarantors under the
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Borrower (the "New
---
Guarantor") is executing this Supplement in accordance with the requirements of
---------
the Credit Agreement to become a Guarantor under the Guarantee Agreement in
order to induce the Lender to make additional Revolving Loans and to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Lender and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 19 of the Guarantee Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Lender that
this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Lender shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor
and the Lender. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Lender for its
out-of-pocket expenses in connection with this Supplement, including the fees,
disbursements and other charges of counsel for the Lender.
IN WITNESS WHEREOF, the New Guarantor and the Lender have duly executed
this Supplement to the Guarantee Agreement as of the day and year first above
written.
[Name of New Guarantor]
By:________________________________________
Name:
Title:
Address:
SUNTRUST BANK
By:________________________________________
Name:
Title:
2
EXHIBIT C
PARENT CORPORATION GUARANTEE
(To Be Substantially in the Same
Form as the Subsidiary Guarantee)
EXHIBIT 2.2
NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank
000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention:
Dear Sirs:
Reference is made to the Loan Agreement dated as of November ___, 2000 (as
amended and in effect on the date hereof, the "Credit Agreement"), between the
undersigned, as Borrower and SunTrust Bank, as Lender. Terms defined in the
Credit Agreement are used herein with the same meanings. This notice
constitutes a Notice of Revolving Borrowing, and the Borrower hereby requests a
Revolving Loan under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing
requested hereby:
(A) Principal amount of Revolving Loan:__________________________
(B) Date of Revolving Loan (which is a Business Day):____________
(C) Location and number of Borrower's account to which proceeds of
Revolving Loan are to be disbursed:____________________
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
X.X.X. TRANSPORT, INC.
By:________________________________________
Name:
Title:
EXHIBIT 4.14
LIST OF SUBSIDIARY GUARANTORS
Subsidiary Owner State of Incorporation
---------- ----- ----------------------
X.X. X. Special Services, X.X.X. Transportation Arkansas
Inc. Services, Inc.
X.X.X. Dedicated Services, X.X.X. Transportation Ohio
Inc. Services, Inc.
X.X.X. Logistics Services, X.X.X. Transportation Arkansas
Inc. Services, Inc.
Choctaw Express, Inc. X.X.X. Transportation Oklahoma
Services, Inc.
Choctaw Brokerage, Inc. X.X.X. Transportation Oklahoma
Services, Inc.
Xxxxx Freight Services, X.X.X. Transportation Missouri
Inc. Services, Inc.
Xxxxxx Transport Company, X.X.X. Transportation Ohio
Inc. Services, Inc.
T.T.X., Inc. X.X.X. Transportation Texas
Services, Inc.
