1
EXECUTION COPY
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement dated as of July 11, 1997 (this
"Amendment") amends the Amended and Restated Credit Agreement dated as of
February 21, 1996, as amended by the First Amendment Agreement dated as of
January 31, 1997 (as so amended, the "Credit Agreement"), among Arkansas Best
Corporation, a Delaware corporation (the "Borrower"), the banks party thereto
(the "Banks"), Societe Generale, Southwest Agency, as Managing Agent and
Administrative Agent, and NationsBank of Texas, N.A., as Documentation Agent.
Capitalized terms defined in the Credit Agreement and not otherwise defined or
redefined herein are used herein with the meanings so defined.
WHEREAS pursuant to the Consent and Agreement dated as of the date
hereof among the Borrower, the Agent and the Banks (the "Consent Agreement"),
the Banks and the Agent have consented to the Borrower's sale of all of the
capital stock of its subsidiary Cardinal Freight Carriers, Inc. (the "Cardinal
Sale"), subject to the terms and conditions set forth therein;
WHEREAS the Borrower has requested that the Credit Agreement be
amended to (i) extend the Maturity Date, (ii) reflect that the Term Advances
are being prepaid in full with the proceeds of the Cardinal Sale and that the
Liquidity Facility is being terminated, and (iii) amend certain other terms
therein; and the Banks have agreed to so amend the Credit Agreement on the
terms and conditions set forth herein; and
WHEREAS certain Banks have decided to assign all of their rights and
obligations under the Credit Agreement, and several other Banks have agreed to
assume the Revolving Commitments and the outstanding Revolving Advances of such
assigning Banks as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendment of Credit Agreement. The Credit Agreement is hereby amended as
follows:
1.1. Table of Contents. The Table of Contents is amended by deleting
the references to "Exhibit B - Form of Term Note," "Exhibit L-2 - Form of
Interim Receivables Report," "Exhibit R - Form of Intercreditor Agreement", and
"Schedule 1.01(d) - Excess Revenue Equipment", and by retitling the reference
to Schedule 1.01(a) as "Revolving Commitments."
1.2. Section 1.01. Section 1.01 is hereby amended as follows:
(a) The terms "Anticipated Reinvestment Amount," "Asset Sale," "Excess
Revenue Equipment," "Interim Receivables Report," "Intercreditor Agreement,"
"Liquidity Agent," "Liquidity Banks," "Liquidity Facility," "Reinvestment
Election," "Reinvestment Notice," "Reinvestment Prepayment Amount,"
"Reinvestment Prepayment Date," "Term Advance," "Term Borrowing," "Term Note"
are deleted in their entirety.
5
2
(b) Paragraph (d) is deleted from the definition of the term "Interest
Period" in its entirety, and "; and" at the end of paragraph (c) is replaced
with a period.
(c) The phrase "the Intercreditor Agreement," is deleted from the term
"Credit Documents".
(d) The phrase "or, in the case of ABF, any later Interim Receivables
Report," is deleted from the term "Eligible Receivables".
(e) The following new terms are added in appropriate alphabetical
order:
"Authorized Sale of Property" means any sale by the Borrower
or any Guarantor of (i) real property owned by the Borrower or such
Guarantor which is to be sold to a third party for fair market value,
or (ii) Revenue Equipment owned by the Borrower or such Guarantor, to
the extent such sale is in the ordinary course of business; provided
that in each case, such sale would not, after giving effect to such
sale, cause any Default.
"Calculation Day" means the Second Amendment Effective Date,
the last day of each calendar month during 1997, and thereafter, the
last day of each calendar quarter.
"Calculation Period" means, (i) with respect to the Second
Amendment Effective Date, the twelve-month period ending June 30,
1997, (ii) with respect to any Calculation Day in 1997 other than the
Second Amendment Effective Date, the twelve-month period ending on
such day, and (iii) with respect to any Calculation Day after 1997,
the period of the four consecutive calendar quarters ending on such
day.
"Second Amendment" means the Second Amendment Agreement dated
as of July 11, 1997 among the Borrower, the Agent, and the Banks which
amended this Agreement.
"Second Amendment Effective Date" means the date the Second
Amendment became effective in accordance with its terms.
"SocGen" means Societe Generale, Southwest Agency.
(f) The definitions for the terms "Advance," "Applicable Margin,"
"Banks," "Borrowing," "Maturity Date," "Maximum Borrowing Base Real Property
Amount," "Net Cash Proceeds," "Notes," "Permitted Priority Liens," and "Real
Estate Value" are restated in their entirety, in each case as set forth below:
"Advance" means either a Revolving Advance or a Swingline
Advance, any such Revolving Advance being either a Prime Rate Advance
or a Eurodollar Rate Advance.
"Applicable Margin" means, at any time with respect to any
Advance, commitment fees or letter of credit fees hereunder, the
following percentages determined as a function of the ratio of the
Borrower's Consolidated Indebtedness to its Consolidated EBITDA
calculated as of the most recent Calculation Day for the applicable
Calculation Period:
6
3
Eurodollar Letter of
Indebtedness/ Rate Prime Rate Commitment Credit
EBITDA Advances Advances Fees Fees
----------- --------- -------- ------ ------
less than 2.50 1.00% -0-% .25% 1.00%
>2.50 - <3.50 1.25% .25% .25% 1.25%
-
>3.50 - <4.00 1.50% .50% .375% 1.50%
-
>4.00 - <4.50 1.75% .75% .375% 1.75%
-
>4.50 - <4.75 2.00% 1.00% .50% 2.00%
-
>4.75 2.50% 1.50% .50% 2.50%
-
The foregoing ratio (a) shall be determined for the period prior to
the Second Amendment Effective Date as set forth in this Agreement
prior to giving effect to the Second Amendment, (b) shall be
recalculated on the Second Amendment Effective Date in accordance with
the terms of Section 2 of the Second Amendment and the ratio
determined on such day shall be deemed to be in effect at all times
from and including the Second Amendment Effective Date to the date the
Agent receives the unaudited Consolidated financial statements of the
Borrower for the month ending July 31, 1997, and (c) shall thereafter
be determined from the financial statements of the Borrower and its
Consolidated Subsidiaries most recently delivered pursuant to Section
5.06(a) or Section 5.06(l) and certified to by an authorized financial
officer of the Borrower in accordance with such Sections. Any change
in the Applicable Margin shall be effective upon the date of delivery
of the financial statements pursuant to Section 5.06(a) or Section
5.06(l), as the case may be, and receipt by the Agent of the
Compliance Certificate required by such Sections. If the Borrower
fails to deliver any financial statements within the times specified
in Section 5.06(a) or 5.06(l), as the case may be, such ratio shall be
(i) deemed to be greater than or equal to 4.75 from the date such
financial statements should have been delivered until the Borrower
delivers such financial statements to the Agent and the Banks, and
(ii) when such financial statements are in fact received by the Agent
and the Banks, if it is determined that the actual ratio was less than
4.75, then the Applicable Margin for the period from the date such
financial statements should have been delivered until the date the
Agent and the Banks actually received such financial statements shall
be recalculated to reflect the actual ratio for such period of time,
and if interest or fees have been paid in the period prior to such
recalculation, appropriate adjustment shall be made to the next
scheduled payment of interest or fees to be made by the Borrower.
"Banks" means each of the lenders party to this Agreement,
including without limitation each Eligible Assignee that shall become
a party to this Agreement pursuant to Section 9.06.
"Borrowing" means a Revolving Borrowing or the making of a
Swingline Advance by SocGen.
"Maturity Date" means August 11, 1999.
"Maximum Borrowing Base Real Property Amount" means
$115,000,000.
7
4
"Net Cash Proceeds" means (a) the aggregate cash proceeds
(including without limitation, insurance proceeds) received by the
Borrower or any Guarantor in connection with any Capitalization Event,
minus (b) the reasonable expenses of the Borrower or such Guarantor in
connection with such Capitalization Event.
"Note" means a Revolving Note or the Swingline Note.
"Permitted Priority Liens" means (i) Existing Liens, and (ii)
Liens permitted by paragraphs (c) and (d) of Section 6.01 solely to
the extent such Liens are afforded priority under applicable law.
"Real Estate Value" means, with respect to any Eligible Real
Property, (a) the appraised value of such Property if an appraisal
less than two years old is available in connection with such Property,
and otherwise the net book value of such Eligible Real Property as of
the date of the most recent Borrowing Base Certificate (or, if
applicable, Property Adjustment Report) delivered to the Banks less
(b) the aggregate amount of Indebtedness (other than the Obligations
and bond Indebtedness which is supported by a Letter of Credit)
secured by Liens on such Property.
1.3. Section 2.01. Section 2.01 is amended by deleting the text
of paragraph (b) thereof in its entirety and by substituting therefor
"[INTENTIONALLY LEFT BLANK]," and is further amended by deleting the number
"$10,000,000" in paragraph (c) thereof and substituting therefore the number
"$15,000,000."
1.4. Section 2.02. Section 2.02 is amended by restating paragraphs
(b) and (g) of such Section in their entirety as follows:
(b) Conversions and Continuations. In order to elect to Convert or
continue Advances comprising part of the same Revolving Borrowing
under this Section, the Borrower shall deliver an irrevocable Notice
of Conversion or Continuation to the Agent at the Agent's office no
later than 11:00 a.m. (Dallas, Texas time) (i) on the Business Day of
the proposed conversion date in the case of a Conversion of such
Advances to Prime Rate Advances and (ii) at least three Business Days
in advance of the proposed Conversion or continuation date in the case
of a Conversion to, or a continuation of, Eurodollar Rate Advances.
Each such Notice of Conversion or Continuation shall be in writing or
by telecopier, specifying (i) the requested Conversion or continuation
date (which shall be a Business Day), (ii) the Borrowing amount and
Type of the Advances to be Converted or continued, (iii) whether a
Conversion or continuation is requested, and if a Conversion, into
what Type of Advances, and (iv) in the case of a Conversion to, or a
continuation of, Eurodollar Rate Advances, the requested Interest
Period. Revolving Advances may only be Converted or continued as
Revolving Advances. Swingline Advances may not be converted or
continued. Promptly after receipt of a Notice of Conversion or
Continuation under this paragraph, the Agent shall provide each Bank
with a copy thereof and, in the case of a Conversion to or a
Continuation of Eurodollar Rate Advances, notify each Bank of the
applicable interest rate under Section 2.06(b). For purposes other
than the conditions set forth in Section 3.02, the portion of
Revolving Advances comprising part of the same Revolving Borrowing
that are Converted to Revolving Advances of another Type shall
constitute a new Revolving Borrowing.
8
5
(g) Notes. The indebtedness of the Borrower to each Bank resulting
from Revolving Advances owing to such Bank shall be evidenced by the
Revolving Note of the Borrower payable to the order of such Bank in
substantially the form of Exhibit A. The indebtedness of the Borrower
to SocGen resulting from Swingline Advances owing to SocGen shall be
evidenced by the Swingline Note of the Borrower payable to the order
of SocGen in substantially the form of Exhibit T.
1.5. Section 2.04. Section 2.04 is amended by deleting from paragraph
(a) the phrase "Provided that the Liquidity Facility has terminated and all
obligations thereunder have been paid in full," and by capitalizing the word
"the" immediately thereafter, and is further amended by deleting paragraph (d)
thereof in its entirety and by restating paragraph (c) thereof in its entirety
as follows:
(c) Capitalization Event. Upon the occurrence of any Capitalization
Event, the aggregate Revolving Commitments shall reduce by an amount
equal to 100% of the Net Cash Proceeds of such Capitalization Event.
1.6. Section 2.05. Section 2.05 is amended by deleting paragraph
(b) thereof in its entirety and by relettering paragraph (c) as paragraph (b).
1.7. Section 2.07. Section 2.07 of the Credit Agreement is
restated in its entirety as follows:
Section 2.07. Prepayments.
(a) Right to Prepay. The Borrower shall have no right
to prepay any principal amount of any Advance except as
provided in this Section 2.07.
(b) Optional Prepayments. The Borrower may elect to prepay
any of the Advances, after giving notice thereof to the Agent
(i) by 11:00 a.m. (Dallas, Texas time) on the day of
prepayment of any Swingline Advance, and (ii) by 11:00 a.m.
(Dallas, Texas time) at least three Business Days' prior to
the day of prepayment of any Eurodollar Rate Advances, and at
least one Business Day prior to the day of prepayment of any
Prime Rate Advances. Such notice must state the proposed date
and aggregate principal amount of such prepayment, whether
such prepayment should be applied to reduce outstanding
Revolving Advances or Swingline Advances, and if applicable,
the relevant Interest Period for the Advances to be prepaid.
If any such notice is given, the Borrower shall prepay
Advances comprising part of the same Borrowing in whole or
ratably in part in an aggregate principal amount equal to the
amount specified in such notice, and shall also pay accrued
interest to the date of such prepayment on the principal
amount prepaid and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such prepayment being
made on such date; provided, however, that each partial
prepayment shall be in an aggregate principal amount not less
than $1,000,000 or an integral multiple of $1,000,000.
9
6
(c) Mandatory Prepayments.
(i) Change of Control. On the fifth
Business Day following the Borrower's receipt of a
Termination Notice pursuant to Section 2.04 (b)
hereof, the Borrower shall be required to prepay all
outstanding Advances in full and to deposit with the
Agent into the Cash Collateral Account an amount
equal to the Letter of Credit Exposure.
(ii) Borrowing Base Deficiency. On each
Borrowing Base Determination Date, the Borrower
shall be required to prepay Revolving Advances in an
aggregate amount equal to the excess of (A) the
aggregate amount of outstanding Revolving Advances
and Letter of Credit Exposure on such date over (B)
the Borrowing Base, as determined on such Borrowing
Base Determination Date (or, upon payment in full of
all outstanding Revolving Advances, to deposit with
the Agent into the Cash Collateral Account an amount
equal to the amount of the Letter of Credit Exposure
which exceeds the Borrowing Base).
(iii) Reduction of Revolving Commitments.
In the event the Revolving Commitments are reduced
in accordance with Section 2.04(c), the Borrower
shall prepay Revolving Advances to the extent the
outstanding Revolving Advances plus the Letter of
Credit Exposure exceed the reduced Revolving
Commitments (or, upon payment in full of all
outstanding Revolving Advances, to deposit with the
Agent into the Cash Collateral Account an amount
equal to the amount of the Letter of Credit Exposure
which exceeds the Revolving Commitments as so
reduced).
(iv) Accrued Interest. Each prepayment
pursuant to this Section 2.07(c) shall be
accompanied by accrued interest on the amount
prepaid to the date of such prepayment and amounts,
if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such
date.
(v) Avoidance of Breakage Costs. In the
event that the amount of any mandatory prepayment of
Advances under this Section 2.07(c) exceeds the
aggregate principal amount of Advances which consist
of Prime Rate Advances (the amount of such excess
being the "Excess Amount"), the Borrower shall have
the right, in lieu of making such prepayment in
full, to prepay such outstanding Advances which are
Prime Rate Advances and to deposit an amount equal
to the Excess Amount with the Agent in the Cash
Collateral Account maintained by and in the sole
dominion and control of the Agent for the ratable
benefit of the Banks. Any amount so deposited shall
be held by the Agent as collateral for the
Obligations and applied to the prepayment of
Advances which are Eurodollar Rate Advances at the
end of the current Interest Period(s) applicable
thereto. On any day on which amounts collected in
the Cash Collateral Account remain on deposit in or
to the credit of the Cash Collateral Account after
giving effect to the payment made on such day
pursuant to this Section 2.07(c), and the Borrower
shall have delivered to the Agent a written request
or a telephonic request (which shall be promptly
confirmed in writing) prior to 10:00 am (Dallas,
Texas time) that such
10
7
remaining collected amounts be invested in cash
equivalents specified in such request, the Agent
shall invest such funds, to the extent the Agent is
reasonably able to do so, in such cash equivalents
as are acceptable to, and with no risk to, the Agent
on an overnight basis or with maturities such that
amounts will be available to pay the Obligations
secured thereby as they become due, whether at
maturity, by acceleration or otherwise; provided,
however, that any loss resulting from such
investments shall be charged to and be immediately
payable by the Borrower on demand by the Agent.
(d) Ratable Payments. Each payment of any Advance pursuant to
this Section 2.07 or any other provision of this Agreement
shall be made in a manner such that all Advances comprising
part of the same Borrowing are paid in whole or ratably in
part.
(e) Effect of Notice. All notices given pursuant to
this Section 2.07 shall be irrevocable and binding upon
the Borrower.
1.8. Section 2.14. Section 2.14 is amended by deleting paragraph (b)
in its entirety and substituting therefore the phrase "[INTENTIONALLY LEFT
BLANK]".
1.9. Section 2.17. Section 2.17 is hereby amended by adding a new
paragraph (f) at the end thereof as follows:
(f) Authorized Sales of Property and Release of Liens by
Agent. The Banks hereby acknowledge and agree that the
Borrower and any Guarantor may from time to time elect to
make an Authorized Sale of Property. In connection with any
such Authorized Sale of Property, each of the Banks hereby
agrees that the Agent is authorized to release, or to provide
for the release, of any Lien held by the Agent for the
benefit of the Banks upon the Property to be sold without
further notice to, or consent from, the Banks; provided that
on the date of the requested release of Lien and on the date
of the sale of any such Property, no Default has occurred
which is continuing (it being agreed by the Borrower that
each request for a release of Lien shall constitute a
representation and warranty from the Borrower in favor of the
Banks, effective on the date of such release of Lien and on
the date of the sale of such Property, that no Default has
occurred and is continuing on such date or would result from
the sale of such Property).
1.10. Section 4.08. Section 4.08 is hereby amended by deleting
paragraph (b) thereof and relettering paragraphs (c) and (d) as new paragraphs
(b) and (c).
1.11. Section 5.06. Section 5.06 is amended by deleting the text of
subparagraph (ii) of paragraph (i) thereof in its entirety and substituting
therefore the phrase "[INTENTIONALLY LEFT BLANK]", and is further hereby
amended by deleting the year "1996" from paragraph (l) thereof and substituting
therefore the year "1997".
1.12. Section 6.01. Section 6.01 is amended by deleting from paragraph
(a) the phrase "and securing the Liquidity Facility."
1.13. Section 6.04. Section 6.04 is amended by deleting from clause
(b) thereof the phrase "unless the proceeds of any such sale are applied in
accordance with Section 2.07(c)."
11
8
1.14. Section 6.05. Section 6.05 is amended by deleting the phrase
"(A) there are no Term Advances outstanding and (B)" in subclause (ii) of
clause (b) of such Section, and each reference therein to "WWC" shall be deemed
to mean "the Borrower" after the date of WWC's merger with and into the
Borrower.
1.15. Section 6.10. Section 6.10 is amended by deleting the phrase "in
the Liquidity Facility and" from such Section.
1.16. Section 6.13. Section 6.13 is amended by restating such Section
in its entirety as follows:
Section 6.13. Net Worth.
(a) The Borrower will not permit its Consolidated Net Worth
at any time, tested on the last day of each month, to be less
than (a) from the Second Amendment Effective Date to and
including August 31, 1997, $117,500,000 and (b) from
September 1, 1997 to and including December 31, 1997,
$120,000,000.
(b) The Borrower will not permit its Consolidated Net Worth
at any time on or after January 1, 1998, tested on the last
day of each calendar quarter, to be less than an amount equal
to $125,000,000 plus (A) 50% of cumulative Consolidated Net
Income of the Borrower (without deduction for quarterly
losses) for the period from January 1, 1998 to the date of
determination plus (B) 100% of the net cash proceeds of any
issuance of equity by the Borrower after the Effective Date.
For purposes of calculating "Net Worth" pursuant to this Section 6.13,
all earnings and losses of Treadco after December 31, 1996 shall be
excluded therefrom.
1.17. Section 6.14. Section 6.14 is amended by restating paragraph (b)
thereof in its entirety as follows:
(b) The Borrower will not permit its Adjusted Consolidated
EBITDA, as of the last day of any fiscal quarter on and after
March 31, 1998 and for the Rolling Period ending on such
date, to be less than $68,000,000 calculated on a cumulative
basis.
1.18. Section 6.15. Section 6.15 is amended by adding the following at
the end of such Section before the period: "and (d) Capital Expenditures in an
aggregate amount not to exceed $50,000,000 in fiscal year 1999."
1.19. Section 6.16. Section 6.16 is amended by deleting the text of
paragraph (a) and substituting the phrase "[INTENTIONALLY LEFT BLANK];"
therefore.
1.20. Section 7.01. Section 7.01 is amended by adding the word "or"
after paragraph (i) thereof, deleting paragraph (l) thereof in its entirety,
and putting a period instead of "; or" at the end of paragraph (j).
1.21. Section 8.01. Section 8.01 is amended by deleting the phrase
"and enforcement of the Intercreditor Agreement" inside the first parenthetical
in the second sentence, and by deleting the phrase "(including without
limitation the Intercreditor Agreement)" in the proviso of the second sentence.
12
9
1.22. Section 9.01. Section 9.01 is amended by deleting the phrase "or
3.03" from the proviso at the end of such Section, and is further amended by
adding the following phrase before the comma at the end of clause (g) thereof:
"or as provided in Section 2.17(f)."
1.23. Section 9.06. Section 9.06 is amended by deleting the phrase
"and Term Advances" from clause (i) of paragraph (a) thereof; by adding the
word "Revolving" before the word "Advances" in clause (ii) of paragraph (a)
thereof; by deleting the word "Notes" in clause (iv) of paragraph (a) thereof
and in the first sentence of paragraph (e) thereof, and substituting in each
place the words "Revolving Note"; by deleting the phrase "or the final
scheduled maturity date of Term Advances pursuant to Section 2.05(b)" from
clause (v) of paragraph (e) thereof; and by restating paragraph (d) thereof in
its entirety as follows:
(d) Procedures. Upon its receipt of an Assignment and
Acceptance executed by a Bank and an Eligible Assignee,
together with the Revolving Note or, in the case of an
assignment to another Bank, Revolving Notes subject to such
assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the
form of the attached Exhibit H, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein
in the Register, and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such
notice, the Borrower shall execute and deliver to the Agent
in exchange for such Note or Notes, a new Revolving Note
payable to the order of such Eligible Assignee in amount
equal to the Revolving Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has
retained any Revolving Commitment hereunder, a new Revolving
Note payable to the order of such Bank in an amount equal to,
respectively, the Revolving Commitment retained by it
hereunder. Such new Notes shall be dated the effective date
of such Assignment and Acceptance and shall otherwise be in
substantially the form of the attached Exhibit A.
1.24. Exhibits and Schedules to Credit Agreement. Exhibits B, L-2 and
R attached to the Credit Agreement are hereby deleted in their entirety;
Xxxxxxxx X, X-0, X-0, X, X and T attached to the Credit Agreement are hereby
deleted and replaced with Xxxxxxxx X, X-0, X-0, X, X and T attached hereto; and
Schedule 1.01(a) is hereby deleted and replaced with Schedule 1.01(a) attached
hereto.
2. Consummation of Cardinal Sale. The Borrower confirms to the Banks
that the Cardinal Sale is being consummated on the terms and conditions set
forth in paragraphs (a) and (b) of the Consent Agreement concurrently with the
effectiveness of this Amendment.
3. Termination of Liquidity Facility and Intercreditor Agreement. Upon
the satisfaction of all conditions precedent to the effectiveness of this
Amendment, the Borrower, the Agent, and each of the Banks (and in the case of
each Bank which is also a Liquidity Bank, such Bank acting in its capacity also
as a Liquidity Bank for purposes of this provision) agree that (i) the
"Commitments" under Liquidity Facility are terminated, (ii) the Intercreditor
Agreement has no further force or effect, (iii) all references in the Mortgages
executed prior to the date hereof to the "Liquidity Credit Agreement" and
parties thereto and to the "Intercreditor Agreement" shall have no further
force or effect and the sole beneficiaries of the Liens thereunder are the
Banks under the Credit Agreement, as amended hereby and as
13
10
it may further be amended hereafter, and (iv) the phrase ", except as otherwise
set forth in the Intercreditor Agreement," in Section 8.5(a) of each of the
Borrower Security Agreement and the Guarantors Security Agreement is deemed to
have been deleted.
4. Assignments and Assumptions by Certain Banks.
(a) As of the Amendment Effective Date described herein, (i) each
of the Banks named on Annex A hereto under the heading Assigning
Banks (each herein called an "Assigning Bank,") hereby sells and
assigns and delegates to the Assuming Banks described herein all of
its interest in and all of its rights and obligations under the
Credit Agreement in connection with its Revolving Commitment and
the Revolving Advances owing to it on such date (after giving
effect to any prepayment of Revolving Advances on such date), the
participation interest in the Letter of Credit Obligations held by
it on such date, and the Revolving Note held by it, and (ii) each
of the Banks named on Annex A hereto under the heading Assuming
Banks (each herein called an "Assuming Bank") hereby purchases and
assumes from the Assigning Banks a percentage of the "Aggregate
Assigned Commitment Amount" (as set forth on Annex A to this
Amendment) of such rights and obligations of the Assigning Banks,
so as to result (after giving effect to such assumption) in such
Assuming Bank having (A) a Revolving Commitment as set forth beside
such Assuming Bank's name on Annex A attached to this Amendment,
and (B) an aggregate amount of outstanding Revolving Advances owing
to it (after giving effect to any prepayment of Revolving Advances
on such date) equal to its Pro Rata Share of all Revolving Advances
on such date (after giving effect to any prepayment of Revolving
Advances on such date), and a participation interest in the Letter
of Credit Obligations on such date equal to its Pro Rata Share of
the Letter of Credit Exposure on such date (its Pro Rata Share in
each case being determined using the Revolving Commitment of such
Bank set forth on Annex A). Such assignments by the Assigning Banks
are without recourse to such Assigning Banks and without
representation or warranty except for the representations and
warranties specifically set forth in paragraph (b) below.
(b) Each Assigning Bank (i) represents and warrants that (A) its
Revolving Commitment prior to giving effect to the assignment
herein is as set forth on Annex A attached to this Amendment, (B)
it is the holder of a Pro Rata Share (based on such Revolving
Commitment) of all outstanding Revolving Advances and has not
transferred, and will not transfer on or prior to the Amendment
Effective Date (except in connection with the assignment herein),
any interest in such Revolving Advances, and (C) it is the holder
of a Pro Rata Share (based on such Revolving Commitment) of the
Letter of Credit Exposure; (ii) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it
and that such interest is free and clear of any adverse claim;
(iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties, or
representations made in or in connection with the Credit Agreement
or any other Credit Document or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the Credit
Agreement or any other Credit Document or any other instrument or
document furnished pursuant thereto; (iv) makes no representation
or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Guarantor or the
14
11
performance or observance by the Borrower or any Guarantor of any
of its obligations under the Credit Agreement or any other Credit
Document or any other instrument or document furnished pursuant
thereto; and (v) has delivered its Revolving Note to the Agent to
be cancelled upon issuance of the replacement Revolving Notes
referred to in paragraph (d) below.
(c) Each Assuming Bank confirms all of its obligations in
connection with the Credit Agreement and all representations of
such Bank therein with respect to its increased Revolving
Commitment and the Revolving Advances and the Letter of Credit
Exposure assumed by it hereunder and confirms that it has delivered
its Revolving Note to the Agent to be exchanged for the Revolving
Notes referred to in paragraph (d) below.
(d) The Borrower hereby agrees to execute and deliver to the Agent
for the benefit of each Assuming Bank a replacement Revolving Note
in favor of such Assuming Bank in the amount of such Assuming
Bank's Revolving Commitment as set forth on Annex A hereto, and
upon the Agent's receipt of such replacement Revolving Notes, each
Assigning Bank and each Assuming Bank authorizes the Agent to
deliver to the Borrower its prior Revolving Note marked cancelled.
(e) Each of the Banks and the Borrower agrees that upon the
Amendment Effective Date (as defined in paragraph 6 below), the
assignments set forth herein shall become effective without the
necessity of executing any Assignment and Acceptance in connection
therewith, and that upon each Assigning Bank's receipt of payment
of all outstanding Advances owing to it under the Credit Agreement
and all accrued but unpaid interest and fees thereunder, such
Assigning Bank shall thereafter be deemed to have relinquished all
of its rights (other than rights against the Borrower pursuant to
Sections 2.09, 2.11(c) and 9.07 of the Credit Agreement, which
shall survive the assignments set forth herein) and shall be
released from its respective obligations under the Credit
Agreement.
(f) Prior to 11:00 a.m. on the Amendment Effective Date (Dallas,
Texas time), the Agent shall notify each Assuming Bank of the
amount payable by such Assuming Bank in connection with effecting
such assignment in its favor, which amount shall equal (i) such
Assuming Bank's percentage of the "Aggregate Assigned Commitment
Amount" (as such percentage is set forth on Annex A hereto),
multiplied by (ii) the aggregate outstanding Revolving Advances of
the Assigning Banks after giving effect to any prepayments of
Revolving Advances on such date. Each Assuming Bank will pay such
amount to the Agent prior to 1:00 p.m. (Dallas, Texas time) on the
Amendment Effective Date, and upon the Agent's receipt of such
payments from the Assuming Banks (or its confirmation of such
payments) the Agent shall pay to each Assigning Bank prior to the
close of business on the Amendment Effective Date (or on the next
Business Day, together with interest on such amount at the Federal
Funds Rate) the amount owed to such Assigning Bank on account of
the principal amount of its outstanding Revolving Advances (after
giving effect to any prepayment of Revolving Advances on such
date).
(g) Following the Amendment Effective Date, each of the Banks
agrees that the Agent shall make all payments under the Credit
15
12
Agreement and the Revolving Notes in respect of the interests
assigned hereby (including, without limitation, all payments of
principal, interest, and commitment fees) to the respective
Assuming Banks in accordance with their Revolving Commitments as
set forth on Annex A hereto and on revised Schedule 1.01(a) to the
Credit Agreement.
(h) The Agent hereby agrees to waive its right to collect any
administrative fees payable for the account of the Agent in
connection with these assignments and assumptions pursuant to
Section 9.06(a) of the Credit Agreement.
5. Representations and Warranties. The Borrower hereby represents and
warrants to the Banks that each of the representations and warranties set forth
in the Credit Agreement and in Section 7 of the Guaranty and in each Security
Agreement are true and correct as of the date of this Amendment.
6. Effectiveness of Amendment. This Amendment (and the assignments and
assumptions described in paragraph 4 hereof) shall become effective on the date
(the "Amendment Effective Date") the Agent has received the following:
(a) counterparts of this Amendment executed by the Borrower and each
of the Banks, a new Swingline Note payable to SocGen duly executed by the
Borrower, and new Revolving Notes payable to each Assuming Bank duly executed
by the Borrower;
(b) a Certificate of Secretary or Assistant Secretary executed on
behalf of the Borrower in a form satisfactory to the Agent which certifies the
title, authority and true signature of the officer of the Borrower executing
this Amendment, the new Swingline Note and the new Revolving Notes on behalf of
the Borrower;
(c) an amendment fee for the account of each Bank (other than the
Assigning Banks) in an amount equal to .08% of the Revolving Commitment of such
Bank as set forth on the revised Schedule 1.01(a) attached to this Amendment;
(d) an amount for the ratable benefit of the Banks equal to the sum of
(i) all accrued but unpaid interest on account of Revolving Advances (to the
extent not paid in connection with the application of the proceeds of the
Cardinal Sale described in the Consent Agreement) and (ii) all fees accrued
hereunder but unpaid as of such date;
(e) evidence that the Cardinal Sale has been, or will be, consummated
on and as of such date, and that proceeds of the Cardinal Sale, to the extent
provided in the Consent Agreement, will be paid directly to the Agent for
application against all obligations of the Borrower in connection with the Term
Advances and, to the extent provided in the Consent Agreement, prepayment of
Revolving Advances;
(f) a Guarantors Consent duly executed by each Guarantor in
substantially the form of Annex A to the Consent Agreement; and
(g) evidence that the Liquidity Agent has received for the benefit of
the Liquidity Banks and the Liquidity Agent all amounts owing by the Borrower
in connection with the Liquidity Facility.
16
13
7. Counterparts. This Amendment may be executed in any number of
counterparts which together shall constitute an instrument.
8. Governing Law. This Amendment shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
9. ENTIRE AGREEMENT. THIS AMENDMENT, THE CONSENT AGREEMENT, AND THE
CREDIT AGREEMENT AND OTHER CREDIT DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT
AMONG THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, UNDERTAKINGS,
UNDERSTANDINGS, REPRESENTATIONS OR OTHER ARRANGEMENTS, WHETHER EXPRESS OR
IMPLIED, WRITTEN OR ORAL, OF THE PARTIES IN CONNECTION HEREWITH EXCEPT TO THE
EXTENT EXPRESSLY INCORPORATED OR SPECIFICALLY REFERRED TO HEREIN OR THEREIN.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
17
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers duly authorized as of the date first
written above.
BORROWER:
ARKANSAS BEST CORPORATION
-----------------------------
Xxxxx X. Xxxxxxxx
Vice President and
Chief Financial Officer
AGENT:
SOCIETE GENERALE,
SOUTHWEST AGENCY
------------------------------
By:
---------------------------
Title:
------------------------
BANKS:
SOCIETE GENERALE,
SOUTHWEST AGENCY
------------------------------
By:
---------------------------
Title:
------------------------
NATIONSBANK OF TEXAS, N.A.
------------------------------
By:
---------------------------
Title:
------------------------
18
15
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
------------------------------
By:
---------------------------
Title:
------------------------
ABN AMRO BANK N.V., HOUSTON AGENCY
------------------------------
By:
---------------------------
Title:
------------------------
------------------------------
By:
---------------------------
Title:
------------------------
NATIONSBANK, N.A. (successor to Boatmen's
National Bank of St. Louis)
------------------------------
By:
---------------------------
Title:
------------------------
CREDIT LYONNAIS NEW YORK BRANCH
------------------------------
By:
---------------------------
Title:
------------------------
BANKBOSTON, N.A. (formerly known
as The First National Bank of Boston)
------------------------------
By:
---------------------------
Title:
------------------------
THE FIRST NATIONAL BANK OF CHICAGO
------------------------------
By:
---------------------------
Title:
------------------------
DEPOSIT GUARANTY NATIONAL BANK
------------------------------
By:
---------------------------
Title:
------------------------
19
16
PNC BANK, N.A.
------------------------------
By:
---------------------------
Title:
------------------------
ROYAL BANK OF CANADA
------------------------------
By:
---------------------------
Title:
------------------------
XXXXX FARGO BANK (TEXAS), N.A.
------------------------------
By:
---------------------------
Title:
------------------------
20
17
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
------------------------------
By:
---------------------------
Title:
------------------------
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
------------------------------
By:
---------------------------
Title:
------------------------
UNITED STATES NATIONAL BANK
OF OREGON
------------------------------
By:
---------------------------
Title:
------------------------
NATEXIS BANQUE BFCE
(formerly known as Banque Francaise
du Commerce Exterieur)
------------------------------
By:
---------------------------
Title:
------------------------
------------------------------
By:
---------------------------
Title:
------------------------
21
