EXHIBIT 10.1
FIRST AMENDMENT TO
LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered into
on August 13, 1996, to be effective as of June 28, 1996, between AMERITRUCK
DISTRIBUTION CORP., a Delaware corporation ("Borrower"), and NATIONSBANK OF
TEXAS, N.A., a national banking association ("Lender").
R E C I T A L S
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1. Borrower and Lender are parties to that certain Loan Agreement (the
"Loan Agreement") dated as of February 1, 1996, providing for a $30,000,000.00
revolving credit loan.
2. The parties hereto desire to amend the Loan Agreement, upon the terms
and subject to conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows:
1. Terms and References. Unless otherwise stated in this Amendment (a)
terms defined in the Loan Agreement have the same meanings when used in this
Amendment, and (b) references to "Sections" are to the Loan Agreement's
sections.
2. Amendments to the Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) The definition of "Applicable Margin" is hereby deleted in its
entirety and replaced with the following:
"Applicable Margin" shall mean, at the time of determination thereof,
the interest margin over the Base Rate or the Adjusted LIBOR Rate, as the
case may be, based upon the ratio of Senior Funded Debt to EBITDA as
follows:
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SENIOR FUNDED APPLICABLE MARGIN APPLICABLE MARGIN LIBOR
DEBT RATIO BASE RATE BORROWINGS BORROWINGS
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Less than 1.25 to 1.0 0% 1.50%
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Less than 2.0 to 1.0 and 0% 1.75%
greater than or equal to
1.25 to 1.0
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Greater than or equal to 2.0 0% 2.0%
to 1.0
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(ii) The following definitions are added:
"Allowable Contributions" shall mean capital contributions made in the form
of cash by the stockholders of Borrower or any of them to satisfy the Fixed
Charges Coverage Ratio set forth in Section 8.13 or the Senior Funded Debt Ratio
set forth in Section 8.14.
"Borrowing Base" shall mean, at any particular date, the amount calculated
(without duplication) as follows: (a) eighty percent (80%) of aggregate Eligible
Receivables plus (b) seventy-five percent (75%) of aggregate Eligible Equipment.
"Borrowing Base Report" shall mean, as of any date of preparation, a
certificate prepared, duly executed and certified by a duly elected officer of
Borrower showing the Borrowing Base as determined by Borrower as of the date
thereof, and which shall be in the form of Exhibit K attached hereto.
"Eligible Equipment" shall mean, at any time, revenue equipment held by
Borrower or any Subsidiary and in which Lender has a perfected, first priority
Lien, valued at the lower of original cost or appraised value (based upon the
then-most recent appraisals provided by Borrower and satisfactory to Lender),
provided that such revenue equipment is (a) usable by Borrower or a Subsidiary
in the ordinary course of its business, (b) in Borrower's or a Subsidiary's
possession, and (c) not subject to any Lien (except in favor of Lender).
"Eligible Receivables" shall mean only Receivables arising out of bona fide
sales made by Borrower or any Subsidiary in the ordinary course of business. No
Receivable shall be an Eligible Receivable if such Receivable (a) is unpaid more
than ninety (90) days from its invoice date, (b) is subject to dispute, but only
to the extent of the amount in dispute, (c) is from an account debtor that is an
Affiliate of Borrower or any of its Subsidiaries, (d) not subject to a
perfected, first-priority Lien in favor of Lender, (e) is not, in Lender's
reasonable judgment, Eligible Receivables because of the account debtor's
financial inability to pay, (f) has been placed with an attorney or collection
agency, (g) represents the consignment of goods or any advancement of goods for
which the sale is not final, (h) is payable by an account debtor that is also a
supplier or creditor of Borrower and such account debtor has not by written
agreement subordinated its rights of set off to the rights of Lender to the
reasonable satisfaction of Lender, but only to the extent of the amount of
Borrower's or its Subsidiaries' obligations to such suppliers or creditors
(other than cargo claims), (i) is payable by an account debtor that is not
located within the United States or Canada, unless such Receivable is secured by
a letter of credit reasonably acceptable to Lender, (j) arises out of a contract
with, or order from an account debtor that, by its terms, effectively makes void
or unenforceable the assignment by Borrower or any Subsidiary to Lender of the
Receivable arising with respect thereto, and (k) is payable by an account debtor
in which more than ten percent (10%) of the undisputed Receivables of such
account debtor owing to Borrower and/or any Subsidiary are unpaid for more than
ninety (90) days from its invoice date.
"Receivables" shall mean all present and future (a) accounts, receivables,
contract, rights, chattel paper, documents, tax refunds, or payments of, or
owned by, Borrower or any Subsidiary, (b) insurance proceeds, patent rights,
license rights, rights to refunds or indemnification, and other general
intangibles of very kind or nature of, or owned by, Borrower or any Subsidiary,
and
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(c) forms of obligations whatsoever owing to Borrower or any Subsidiary
together with all instruments and all documents of title representing any
of the foregoing and all right, title, and interest in, and all securities
and guaranties with respect to, each Receivable.
(b) A new Section 1.04 is hereby added as follows:
1.04. Covenant Computations. For purposes of the financial covenants
set forth in Sections 8.13 and 8.14, items of income and expense shall
include such items for any Person newly acquired during the applicable
period(s) of determination on the same basis as that of Borrower and its
other Subsidiaries, without adjustments other than in accordance with SEC
requirements; provided that such items in respect of the assets acquired by
Borrower or its Subsidiaries from the lenders or lessors of Xxxxxxxxxx
Trucking, Inc. on February 5, 1996 shall only be included from and after
the acquisition date thereof.
(c) The first sentence of Section 2.01 is hereby deleted in its entirety
and replaced with the following:
2.01. The Revolving Credit Commitment. Subject to the terms and
conditions of this Agreement, Lender agrees to extend to Borrower, from the
date hereof through the Termination Date, a revolving line of credit which
shall not exceed at any one time outstanding the lesser of (a) the
Borrowing Base or (b) the Revolving Credit Commitment.
(d) Section 2.03(a) is hereby deleted in its entirety and replaced with
the following:
(a) LC Request and Issuance. Subject to the terms and conditions of
this Agreement and applicable law, Lender (itself or through one of its
Affiliates, and references in this Section 2.03 to Lender include those
Affiliates) agrees to issue LCs upon Borrower's making or delivering an LC
Request and delivering an LC Agreement, both of which must be received by
Lender no later than 12:00 noon three (3) Business Days before the
requested LC is to be issued, provided that (i) each LC must expire on or
before the earlier of either the Stated Termination Date or one (1) year
after its issuance, and (ii) the LC Exposure may never exceed, as of any
date, the lesser of (A) $7,000,000.00 (the "LC Commitment") and (B) the
difference between (x) the lesser of the Borrowing Base and the Revolving
Credit Commitment, and (y) the Principal Debt.
(e) Section 3.03(c) is hereby deleted in its entirety and replaced with
the following:
(c) Mandatory Prepayments.
(i) If any of the limitations described in Sections 2.01 and
2.03(a) are ever exceeded, then Borrower shall prepay the Note in at
least the amount of that excess, together with (A) all accrued and
unpaid interest on the principal amount so prepaid, and (B) any
resulting Consequential Loss.
(ii) Notwithstanding anything contained herein or in the Note
to the contrary, if at any time (before or after Scheduled Termination
Date) the outstanding principal balance of the Note exceeds the
Borrowing Base, then Borrower shall immediately prepay
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in immediately available funds such excess balance, together with any
resulting Consequential Loss.
(f) A new Section 4.04 is hereby added as follows:
4.04. Appraisals. Borrower shall, at Borrower's expense (subject to the
limitations set forth in Section 10.03), provide to Lender (a) semi-annual desk-
top appraisals in a form and format reasonably acceptable to Lender on all of
Borrower's and its Subsidiaries' Eligible Equipment, and (b) upon the request of
Lender, but not more often than one (1) time during any calendar year unless an
Event of Default has occurred and is continuing, physical appraisals at terminal
locations in a form and format reasonably acceptable to Lender on up to twenty-
five percent (25%) of Borrower's and its Subsidiaries' Eligible Equipment,
provided that such physical inspections are conducted so as to not unreasonably
interfere with Borrower's or its Subsidiaries' normal business operations.
(g) Section 7.01 is hereby deleted in its entirety and replaced with the
following:
7.01. Financial Statements, Reports and Documents. Borrower shall deliver
to Lender each of the following:
(a) Periodic Statements. As soon as available, and in any event within
thirty-seven (37) days after the last day of each fiscal quarter of each fiscal
year of Borrower, copies of the consolidated and consolidating balance sheet of
Borrower and its Subsidiaries as of the end of such quarter, and statements of
income, retained earnings and changes in cash flow of Borrower and its
Subsidiaries for that quarter and for the portion of the fiscal year ending with
such quarter, in each case setting forth in comparative form the figures for the
corresponding period of the preceding fiscal year, all in reasonable detail, and
certified by the chief financial officer of Borrower as being true and correct
and as having been prepared in accordance with GAAP, subject to year-end audit
adjustments; provided that Borrower shall also provide to Lender, within thirty-
seven (37) days after the last day of each calendar month, commencing with the
calendar month ending on July 31, 1996 and through and including the calendar
month ending on February 28, 1997, copies of the consolidated and consolidating
balance sheet of Borrower and its Subsidiaries as of the end of such month, and
statements of income, retained earnings and changes in cash flow of Borrower and
its Subsidiaries for that month and for the portion of the fiscal year ending
with such month;
(b) Annual Statements. As soon as available and in any event on or
before each April 15 following the close of each fiscal year of Borrower, copies
of the consolidated and consolidating balance sheet of Borrower and its
Subsidiaries as of the close of such fiscal year and statements of income,
retained earnings and changes in cash flow of Borrower and its Subsidiaries for
such fiscal year, in each case setting forth in comparative form the figures for
the preceding fiscal year, all in reasonable detail and accompanied by an
opinion thereon (which shall not be qualified by reason of any limitation
imposed by Borrower) of independent public accountants of recognized national
standing selected by Borrower and satisfactory to Lender, to the effect that (i)
such consolidated financial statements have been prepared in accordance with
GAAP (except for changes in which such accountants concur), (ii) the examination
of such accounts in connection with such financial statements has been made in
accordance with generally accepted
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auditing standards and, accordingly, includes such tests of the accounting
records and such other auditing procedures as were considered necessary in the
circumstances, and (iii) in making their audit, such accountants have not become
aware of any condition or event which would constitute a Potential Default or an
Event of Default under any of the terms or provisions of this Agreement (insofar
as any such terms or provisions pertain to accounting matters) and, if any such
condition or event then exists, specifying the nature and period of existence
thereof;
(c) Compliance Certificate. As soon as available, and in any event
within thirty-seven (37) days after the last day of each of the first three (3)
quarterly periods of each fiscal year of Borrower, and contemporaneously with
the delivery of the financial statements set forth in (b) above, a certificate
in the form of Exhibit I attached hereto executed by the chief financial officer
or chief executive officer of Borrower, stating that a review of the activities
of Borrower during the relevant fiscal period has been made under his
supervision and that Borrower has performed each and every obligation and
covenant contained herein and is not in default under any of the same or, if any
such default shall have occurred, specifying the nature and status thereof, and
setting forth a computation in reasonable detail as of the end of the period
covered by such statements, of compliance with Sections 8.13 and 8.14; provided
that if, as of September 30, 1996, a Potential Default or Event of Default
exists (whether or not cured by any Allowable Contributions), then Borrower
shall also provide to Lender a monthly compliance certificate within thirty-
seven (37) days after the last day of each calendar month, commencing with the
calendar month ending on October 31, 1996 and through and including the calendar
month ending on February 28, 1997;
(d) Borrowing Base Report. As soon as available, and in any event
within thirty-seven (37) days after the last day of each quarterly period of
each fiscal year of Borrower, a Borrowing Base Report and an accounts receivable
aging report listing each Receivable, the account debtor, the age of such
Receivable and the amount of such Receivable; provided that if, as of September
30, 1996, a Potential Default or Event of Default exists (whether or not cured
by any Allowable Contributions), then Borrower shall also provide to Lender a
monthly Borrowing Base Report within thirty-seven (37) days after the last day
of each calendar month, commencing with the calendar month ending on October 31,
1996 and through and including the calendar month ending on February 28, 1997;
and
(e) Other Information. Such other information concerning the business,
properties or financial condition of Borrower or any Subsidiary as Lender shall
reasonably request including audit reports, registration statements or other
reports or notices provided to shareholders of Borrower or filed with the
Securities and Exchange Commission or any regulatory agency.
(g) Section 8.01 is hereby deleted in its entirety and replaced with the
following:
8.01. Limitation on Liabilities. Borrower shall not, and shall not permit
any of its Subsidiaries to, incur, guarantee or otherwise be or become, directly
or indirectly, liable in respect of any Liabilities, except:
(a) Liabilities arising out of this Agreement;
(b) without duplication, Liabilities secured by Permitted Liens;
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(c) current Liabilities for taxes and assessments incurred in the
ordinary course of business;
(d) Liabilities in respect of current accounts payable or accrued (other
than for borrowed funds or purchase money obligations) and incurred in the
ordinary course of business, provided that all such liabilities, accounts and
claims shall be promptly paid and discharged when due or in conformity with
customary trade terms;
(e) the following Liabilities, not to exceed $50,000,000.00 in the
aggregate at any one time outstanding: (i) existing Liabilities of Borrower or
its Subsidiaries described on Schedule 8.01 and secured by the financing
statements listed on Exhibit J, and all renewals, extensions, and refinancings
thereof; (ii) purchase money Liabilities to purchase equipment and capital
lease obligations either (A) incurred in the ordinary course of business, or (B)
assumed in connection with Permitted Acquisitions, and any renewals, extensions
and refinancings of either; (iii) Liabilities incurred with respect to the
financing of Borrower's or any Subsidiary's terminals and secured by real
property of Borrower or any Subsidiary; (iv) purchase money Liabilities payable
to a seller for the purchase price of assets, incurred in connection with a
Permitted Acquisition; (v) Liabilities of Borrower or its Subsidiaries with
respect to any owner-operator equipment purchase program; and (vi) Liabilities
to Volvo Truck Finance North America, Inc. pursuant to the loan agreement dated
February 21, 1996, and all renewals, extensions and refinancings thereof, but
not to exceed $10,000,000.00 at any one time outstanding; and
(f) Permitted Subordinated Debt.
(h) Section 8.13 is hereby deleted in its entirety and replaced with the
following:
8.13. Fixed Charges Coverage. Borrower shall not, as of the last day of
each fiscal quarter of Borrower during the applicable period set forth below,
permit the ratio (such ratio being the "Fixed Charges Coverage Ratio") of (a)
the sum of (i) Consolidated Adjusted Net Income, plus (ii) federal, state, local
and foreign income taxes deducted from Consolidated Adjusted Net Income in
accordance with GAAP, plus (iii) Fixed Charges, to (b) Fixed Charges, in each
case for the four (4) fiscal quarters ending on the date of determination
(except for the quarter ending June 30, 1996, which shall be annualized based
upon the six (6) month period then ended, and
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for the quarter ending September 30, 1996, which shall be annualized based upon
the nine (9) month period then ended), to be less than the ratio set forth
opposite such period below:
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Period Minimum Ratio
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June 30, 1996 through September 29, 1996 0.90 to 1.0
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September 30, 1996 through December 30, 1.00 to 1.0
1996
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December 31, 1996 through March 30, 1.05 to 1.0
1997
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March 31, 1997 through June 29, 1997 1.10 to 1.0
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June 30, 1997 through June 29, 1998 1.30 to 1.0
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June 30, 1998 and thereafter 1.35 to 1.0
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In addition, if, as of September 30, 1996, the Fixed Charges Coverage Ratio
is less than 1.00 to 1.0, then Borrower shall also not permit such ratio, as of
the last day of any calendar month during the applicable period set forth above,
commencing on October 31, 1996 through and including February 28, 1997, and
determined for the twelve (12) month period ending on the date of determination
(except for the period ending October 31, 1996, which shall be annualized based
upon the ten (10) month period then ended, and for the period ending November
30, 1996, which shall be annualized based upon the eleven (11) month period then
ended), to be less than the ratio set forth opposite such period above.
Borrower shall provide evidence of such compliance to Lender, as provided in
Section 7.01(c).
Notwithstanding the foregoing, if, as of September 30, 1996, the Fixed
Charges Coverage Ratio set forth above is less than 1.00 to 1.0, but equal to or
greater than 0.95 to 1.0, then Borrower may cure such default by obtaining
Allowable Contributions between July 1, 1996 and November 11, 1996 in an amount
equal to, but not in excess of, the amount that, when added to Consolidated
Adjusted Net Income (as adjusted above), would cause the Fixed Charges Coverage
Ratio to be equal to 1.00 to 1.0 as of September 30, 1996. Such amount shall
(without duplication) be added to Consolidated Adjusted Net Income for purposes
of testing the Fixed Charges Coverage Ratio between September 30, 1996 and March
31, 1997, but only to the extent such amount was necessary to cure the Fixed
Charges Coverage Ratio as of September 30, 1996.
(i) Section 8.14 is hereby deleted in its entirety and replaced with the
following:
8.14. Senior Funded Debt Ratio. Borrower shall not, as of the last day of
any fiscal quarter of Borrower, commencing June 30, 1996, permit the ratio (such
ratio being the "Senior Funded Debt Ratio") of (a) Senior Funded Debt to (b)
EBITDA for the four (4) fiscal quarters ending on the date of determination
(except for the quarter ending June 30, 1996, which shall be annualized based
upon the six (6) month period then ended, and for the quarter ending September
30, 1996, which shall be annualized based upon the nine (9) month period then
ended), to be greater than the ratio set forth opposite such period below:
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Period Maximum Ratio
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June 30, 1996 through December 30, 1996 2.25 to 1.0
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December 31, 1996 and thereafter 2.0 to 1.0
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In addition, if, as of September 30, 1996, the Senior Funded Debt
Ratio is greater than 2.25 to 1.0, then Borrower shall also not permit such
ratio, as of the last day of any calendar month during the applicable
period set forth above, commencing on October 31, 1996 through and
including February 28, 1997, and determined for the twelve (12) month
period ending on the date of determination (except for the period ending
October 31, 1996, which shall be annualized based upon the ten (10) month
period then ended, and for the period ending November 30, 1996, which shall
be annualized based upon the eleven (11) month period then ended), to be
greater than the ratio set forth opposite such period above. Borrower shall
provide evidence of such compliance to Lender, as provided in Section
7.01(c).
Notwithstanding the foregoing, if, as of September 30, 1996, the
Senior Funded Debt Ratio is greater than 2.25 to 1.0, then Borrower may
cure such default by obtaining Allowable Contributions between July 1, 1996
and November 11, 1996 in an amount equal to, but not in excess of, the
amount that, when added to EBITDA, would cause the Senior Funded Debt Ratio
to be equal to 2.25 to 1.0. Such amount shall (without duplication) be
added to EBITDA for purposes of testing the Senior Funded Debt Ratio
between September 30, 1996 and March 31, 1997, but only to the extent such
amount was necessary to cure the Senior Funded Debt Ratio as of September
30, 1996.
(j) Section 9.01(c) is hereby deleted in its entirety and replaced with
the following:
(c) default shall occur in the performance of any of the covenants or
agreements of Borrower or any Subsidiary contained herein, or in any of the
other Loan Documents, and (except for failure to perform the covenants and
agreements set forth in Section 7.01) such default shall continue
unremedied for forty-one (41) days after such default occurred; or
(k) Section 10.03 is hereby amended to delete the last sentence therein in
its entirety and replace such sentence with the following:
In addition, Lender may obtain, at Borrower's expense (but not to exceed
$20,000.00 per year), appraisals pursuant to Section 4.04 of Collateral and
other assets or properties of Borrower and its Subsidiaries.
(l) Exhibit K attached hereto is hereby added to the Loan Agreement as
Exhibit K.
3. Amendments to other Loan Documents.
(a) All references in the Loan Documents to the Loan Agreement shall
henceforth include references to the Loan Agreement, as modified and amended
hereby, and as may, from time to time, be further amended, modified, extended,
renewed, and/or increased.
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(b) Any and all of the terms and provisions of the Loan Documents are
hereby amended and modified wherever necessary, even though not specifically
addressed herein, so as to conform to the amendments and modifications set forth
herein.
4. Ratifications. Borrower: (a) ratifies and confirms all provisions of
the Loan Documents as amended by this Amendment; (b) ratifies and confirms that
all guaranties, assurances, and Liens granted, conveyed, or assigned to Lender
under the Loan Documents are not released, reduced, or otherwise adversely
affected by this Amendment and continue to guarantee, assure, and secure full
payment and performance of the present and future Obligation; and (c) agrees to
perform such acts and duly authorize, execute, acknowledge, deliver, file, and
record such additional documents, and certificates as Lender may reasonably
request in order to create, perfect, preserve, and protect those guaranties,
assurances, and Liens.
5. Representations. Borrower represents and warrants to Lender that as
of the date of this Amendment: (a) this Amendment and the other Loan Documents
to be delivered under this Amendment have been duly authorized, executed, and
delivered by Borrower; (b) no action of, or filing with, any Governmental
Authority is required to authorize, or is otherwise required in connection with,
the execution, delivery, and performance by Borrower of this Amendment; (c) the
Loan Documents, as amended by this Amendment, are valid and binding upon
Borrower and Guarantors and are enforceable against Borrower and Guarantors in
accordance with their respective terms, except as limited by Debtor Laws; (d)
the execution, delivery, and performance by Borrower and Guarantors of this
Amendment do not require the consent of any other Person and do not and will not
constitute a violation of any laws, agreements, or understandings to which
Borrower or any Guarantor is a party or by which Borrower or any Guarantor is
bound; (e) after giving effect to this Amendment, all representations and
warranties in the Loan Documents are true and correct in all material respects
except to the extent that (i) any of them speak to a different specific date or
(ii) the facts on which any of them were based have been changed by transactions
permitted by the Loan Agreement; and (f) after giving effect to this Amendment,
no Event of Default or Potential Default exists.
6. Conditions Precedent. This Amendment shall not be effective unless
and until: (a) Lender receives counterparts of this Amendment executed by each
party listed below; (b) the representations and warranties in this Amendment are
true and correct in all material respects on and as of the date of this
Amendment; (c) Lender receives an officer's certificate executed by an
authorized officer of Borrower and each Guarantor, certifying to (i) the
resolutions adopted by its board of directors authorizing the transactions
contemplated by this Amendment, (ii) incumbency of officers of Borrower and each
Guarantor, and (iii) changes in Borrower's and each Guarantor's articles of
incorporation and bylaws, if any, since February 1, 1996; (d) Lender receives an
opinion of Borrower's and Guarantors' counsel regarding such matters as Lender
shall require, including opinions regarding (i) the due execution, delivery, and
performance, and the enforceability, of this Amendment, (ii) any required
consents and approvals of third parties and Governmental Authorities, and (iii)
the absence of conflicts with applicable laws, governmental requirements, and
agreements; and (e) Borrower shall have paid to Lender an amendment fee equal to
$15,000.00.
7. Continued Effect. Except to the extent amended hereby, all terms,
provisions and conditions of the Loan Agreement and the other Loan Documents,
and all documents executed in connection therewith, shall continue in full force
and effect and shall remain enforceable and binding in accordance with their
respective terms.
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8. Miscellaneous. Unless stated otherwise (a) the singular number
includes the plural and vice versa and words of any gender include each other
gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be construed --and
its performance enforced -- under Texas law, (d) if any part of this Amendment
is for any reason found to be unenforceable, all other portions of it
nevertheless remain enforceable, and (e) this Amendment may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document, and all of those counterparts must be construed together to
constitute the same document.
9. ENTIRETIES. THE LOAN AGREEMENT AS AMENDED BY THIS AMENDMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF
THE LOAN AGREEMENT AS AMENDED BY THIS AMENDMENT AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
10. Parties. This Amendment binds and inures to Borrower, Lender and
their respective successors and permitted assigns.
[Remainder of Page Intentionally Left Blank; Signature Pages to Follow.]
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EXECUTED as of the date first stated above.
AMERITRUCK DISTRIBUTION CORP.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX, XX.
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Xxxxxxx X. Xxxxx, Xx.
Treasurer
NATIONSBANK TEXAS, N.A.,
a national banking association
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx Xxxxxxxx
Vice President
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To induce Lender to enter into this Amendment, the undersigned jointly and
severally (a) consent and agree to this Amendment's execution and delivery, (b)
ratify and confirm that all guaranties, assurances, and Liens granted, conveyed,
or assigned to Lender under the Loan Documents are not released, diminished,
impaired, reduced, or otherwise adversely affected by this Amendment and
continue to guarantee, assure, and secure the full payment and performance of
all present and future Obligation, (c) agree to perform such acts and duly
authorize, execute, acknowledge, deliver, file, and record such additional
guaranties, assignments, security agreements, deeds of trust, mortgages, and
other agreements, documents, instruments, and certificates as Lender may
reasonably deem necessary or appropriate in order to create, perfect, preserve,
and protect those guaranties, assurances, and Liens, and (d) waive notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and their successors and permitted assigns and inures to Lender and
their respective successors and permitted assigns.
W & L SERVICES CORPORATION,
a North Carolina corporation
BEST WAY MOTOR LINES, INC.,
a North Carolina corporation
XXXXXXXX TRUCKING CORPORATION,
a North Carolina corporation
BLS INVESTMENTS, INC.,
a North Carolina corporation
CAS SERVICES CORPORATION,
a Louisiana corporation
CAS TRANSPORTATION, INC.,
a Delaware corporation
FRONTIER FREIGHT, INC.,
a North Carolina corporation
W & L MOTOR LINES, INC.,
a North Carolina corporation
XXXXXXXX BROS., INC.,
a North Dakota corporation
X.X. XXXXXXXXX & SONS, INC.,
a Utah corporation
SCALES TRANSPORT CORPORATION,
a Georgia corporation
SCALES LEASING COMPANY, INC.,
a Georgia corporation
AMERITRUCK REFRIGERATED TRANSPORT, INC.,
a Georgia corporation
C.B.S. EXPRESS, INC.,
a Georgia corporation
By: /s/ XXXXXXX X. XXXXX, XX.
--------------------------------------
Xxxxxxx X. Xxxxx, Xx.
Authorized Officer
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EXHIBIT K
FORM OF BORROWING BASE CERTIFICATE
FOR ENDED , 199 (THE "SUBJECT PERIOD")
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LENDER: NationsBank of Texas, N.A.
BORROWER: AmeriTruck Distribution Corp.
This certificate is delivered under the Loan Agreement (herein so called)
dated as of February 1, 1996, between Borrower and Lender. Capitalized terms
used in this certificate shall, unless otherwise indicated, have the meanings
set forth in the Loan Agreement. On behalf of Borrower, the undersigned
certifies to Lender on the date hereof that (a) no Potential Default or Event of
Default has occurred and is continuing, (b) a review of the activities of
Borrower during the Subject Period has been made under my supervision with a
view to determining the amount of the current Borrowing Base, (c) the
receivables and equipment of Borrower included in the Borrowing Base below meet
all conditions to qualify for inclusion therein as set forth in the Loan
Agreement, and all representations and warranties set forth in the Loan
Agreement with respect thereto are true and correct, and (d) the information set
forth below hereto is true and correct as of the last day of the Subject Period.
AT END OF
LINE SUBJECT PERIOD
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1. Total Receivables (less discounts) $
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2. Ineligible Receivables
(a) Receivables unpaid more
than 90 days from invoice date $
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(b) Receivables placed with an attorney
for collection $
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(c) Receivables for consignments and
non-final sales $
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(d) Receivables from suppliers and creditors
to the extent of the obligations to such
creditors and suppliers $
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(e) Non-U.S. or non-Canadian
Receivables (unless secured by a
letter of credit) $
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(f) Receivables subject to specific
assignment restrictions $
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3. Total Ineligible Receivables
add Lines 2(a) through 2(g) $
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4. Total Eligible Receivables
Line 1 minus Line 3 $
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5. Multiplied by: Borrowing Base factor 80%
6. Receivables Component of the Borrowing Base
Line 4 x Line 5 $
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7. Appraised Value of Eligible Equipment $
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8. Multiplied by: Borrowing Base Factor 75%
9. Equipment Component of Borrowing Base
Line 7 x Line 8 $
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10. Total Borrowing Base
Line 6 plus Line 9 $
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11. Principal Debt plus LC Exposure $
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12. Amount available for advances, if positive, or
amount to be repaid, if negative
Line 10 minus Line 7 $
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AMERITRUCK DISTRIBUTION CORP.
By:
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Name:
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Title:
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