1
EXHIBIT 4.1.1
SECOND AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT is made and entered into on this the 3rd day of July,
1996, by and among X.X.X. TRANSPORT, INC., an Arkansas corporation, whose chief
executive office and principal place of business is located at Xxxxxxx 000 Xxxx,
X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxx 00000, party of the first part, hereinafter
called "Borrower," FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States, with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000,
party of the second part, hereinafter called "Bank," X.X.X. TRANSPORTATION
SERVICES, INC., a Delaware corporation, whose principal place of business and
chief executive office is located at Xxxxxxx 000 Xxxx, X.X. Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, party of the third part, hereinafter called "Guarantor," CHOCTAW
EXPRESS, INC., an Oklahoma corporation, whose principal place of business and
chief executive office is located at Xxxxxxx 000 Xxxx, X.X. Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, party of the fourth part, hereinafter called "Choctaw," and
XXXXX FREIGHT SERVICES, INC., a Missouri corporation, whose principal place of
business and chief executive office is located at Highway 412 West, P. O. Xxx
000, Xxxxxxxxx, Xxxxxxxx 00000, party of the fifth part, hereinafter called
"Xxxxx."
Recitals of Fact
Pursuant to the terms and provisions of that certain Loan Agreement,
bearing date of the 26th day of July, 1994, as amended by Amendment dated June
27, 1995 ("Loan Agreement"), among the Borrower, the Bank, the Guarantor and
Choctaw, the Bank committed to make loans and advances and extensions of credit
to the Borrower on a revolving credit basis, in an amount not to exceed, at any
one time outstanding, the principal sum of Ten Million Dollars ($10,000,000.00).
The Bank has now agreed to increase its Committed Amount (as defined in the Loan
Agreement), to the end that, except as otherwise hereinafter provided, the Bank
will, subject to all of the terms and conditions of the Loan Agreement, as
amended hereby, make loans and advances and extensions of credit to the
Borrower, on a revolving credit basis, in an amount not to exceed, at any one
time outstanding, the lesser of (a) the principal sum of Fifteen Million Dollars
($15,000,000.00), or (b) the Borrower's Borrowing Base (as defined in the Loan
Agreement).
By reason of such increased commitment, it is necessary to modify and
amend the Loan Agreement as hereinafter provided. In addition, the parties have
agreed to make certain other changes in the Loan Agreement, as heretofore
amended, all as are set forth herein.
NOW, THEREFORE, for and in consideration of the premises, as set forth
in the Recitals of Fact, and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, it is agreed by the parties as
follows:
Agreements
1. To induce the Bank to enter into this Amendment, the Borrower, the
Guarantor, Choctaw and Xxxxx do hereby absolute and unconditionally, jointly and
severally, certify, represent and warrant to the Bank, and covenant and agree
with the Bank, that:
2
(a) All representations and warranties made by the Borrower, Choctaw,
Xxxxx or the Guarantor in the Loan Agreement, as amended hereby, in the Security
Agreement, as amended, in the Choctaw Security Agreement, as amended, in the
Xxxxx Security Agreement, and in all other loan documents (all of which are
herein sometimes called the "Loan Documents"), are true, correct and complete in
all material respects as of the date of this Amendment.
(b) As of the date hereof and with the execution of this Amendment,
there are no existing events, circumstances or conditions which constitute, or
would, with the giving of notice, lapse of time, or both, constitute Events of
Default.
(c) There are no existing offsets, defenses or counterclaims to the
respective obligations of the Borrower, the Guarantor, Choctaw or Xxxxx as set
forth in the Note, the Security Agreement, as amended, the Choctaw Security
Agreement, as amended, the Xxxxx Security Agreement, the Loan Agreement, as
amended, or in any other Loan Document executed by the Borrower, the Guarantor,
Choctaw or Xxxxx, respectively, in connection with the Loan.
(d) Neither the Borrower nor the Guarantor, Choctaw or Xxxxx has any
existing claim for damages against the Bank arising out of or related to the
Loan; and, if and to the extent (if any) that the Borrower, the Guarantor,
Choctaw or Xxxxx has or may have any such existing claim (whether known or
unknown), the Borrower, the Guarantor, Choctaw and Xxxxx do hereby forever
release and discharge, in all respects, the Bank with respect to such claim.
(e) The Loan Documents, as amended by this Amendment and by the
respective Amendments (also of even date herewith) to the Security Agreement and
the Choctaw Security Agreement, are valid, genuine, enforceable in accordance
with their respective terms, and in full force and effect.
2. The amount of Ten Million Dollars ($10,000,000.00), as contained in
the Recitals of Fact of the Loan Agreement and in Section 2.1 thereof, is hereby
changed to the sum of Fifteen Million Dollars ($15,000,000.00). In addition, the
word "Borrower's" is deleted from clause (b) of Section 2.1.
3. The definitions of "Account Debtor," "Accounts Receivable," "Loan
Agreement," "Note," "Termination Date" and "Unbilled Revenues," as set forth in
Article One of the Loan Agreement, are hereby modified and amended to read as
follows:
"1.2 'Account Debtor' shall mean any Person which is now or
hereafter obligated or indebted to Borrower, Choctaw or Xxxxx on any
Account Receivable.
"1.3 'Accounts Receivable' or 'Accounts' shall mean all
amounts owed to the Borrower, Choctaw or Xxxxx on account of sales,
leases or rentals of goods or services rendered in the ordinary course
of the trade or business of any of said corporations.
"1.15 'Loan Agreement' means this Loan Agreement among the
Borrower, the Guarantor, the Bank, Choctaw and Xxxxx.
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"1.18 'Note' means, collectively, the Notes given to evidence
the Loan, one of said Notes being dated July 26, 1994 and being in the
principal sum of Seven Million Five Hundred Thousand Dollars
($7,500,000.00), one of said Notes being dated June 27, 1995, and being
in the principal sum of Two Million Five Hundred Thousand Dollars
($2,500,000.00), and the third of said Notes being dated July 3, 1996,
and being in the principal sum of Five Million Dollars ($5,000,000.00),
as any of said Notes may be modified, renewed, amended, restated or
extended, in whole or in part, from time to time; and any other note or
notes executed at any time hereafter to evidence the Loan.
"1.25 'Termination Date' shall mean the 31st day of May, 1998,
unless such date is extended pursuant to the provisions of Section
10.12 hereof, in which event such extended date shall be the
Termination Date.
"1.26 'Unbilled Revenues' shall mean the payments owed or to
be owed by a customer of the Borrower, Choctaw or Xxxxx with respect to
any load which has been properly dispatched, but which has not been
delivered or the charge for such delivery has not been invoiced."
4. Article One is further modified and amended by the addition thereto
of two (2) new sections, being Sections 1.30 and 1.31, reading as follows:
"1.30 'Xxxxx' shall mean Xxxxx Transportation Services, Inc.,
a Missouri corporation.
"1.31 'Xxxxx Security Agreement' shall mean the security
agreement, bearing date of the 3rd day of July, 1996, executed by Xxxxx
for the purpose of securing the Loan and the other Obligations (as that
term is defined in the Xxxxx Security Agreement)."
5. The first sentence of Section 2.3(a) is hereby modified and amended
to read as follows:
"All advances with respect to the Loan, up to but not exceeding at any
one time outstanding the principal sum of Seven Million Five Hundred
Thousand Dollars ($7,500,000.00), shall be evidenced by the promissory
note of the Borrower, payable to the order of the Bank, in the
principal amount of Seven Million Five Hundred Thousand Dollars
($7,500,000.00), in form substantially the same as the Note attached
hereto as EXHIBIT '2.3'; all advances with respect to the Loan
exceeding, at any one time outstanding, the principal sum of Seven
Million Five Hundred Thousand Dollars ($7,500,000.00), but not
exceeding the principal sum of Ten Million Dollars ($10,000,000.00),
shall be evidenced by the promissory note of the Borrower, payable to
the order of the Bank, in the principal amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00) in form substantially the same
as the Note attached hereto as EXHIBIT '2.3(A)'; and all advances with
respect to the Loan exceeding, at any one time outstanding, the
principal sum of Ten Million Dollars ($10,000,000.00), shall be
evidenced by the promissory note of the Borrower, payable to the order
of the Bank, in the principal amount of Five Million
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Dollars ($5,000,000.00), in form substantially the same as the Note
attached hereto as EXHIBIT '2.3(B).'"
6. Sections 3.1, 8.1 and 8.5 of the Loan Agreement are hereby modified
and amended to read as follows:
"3.1 Required Repayments. (a) In the event that the
outstanding principal balance of the Loan shall at any time exceed the
Borrowing Base, the Borrower will, immediately upon discovery of the
existence of such excess, make a principal payment which will reduce
the outstanding principal balance of the Loan to an amount which does
not exceed the Borrowing Base.
(b) Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, on May 31, 1997, unless the Bank
sooner terminates its commitment by reason of a default of Borrower,
Choctaw, or Xxxxx, the Committed Amount shall automatically be reduced
to the principal sum of Twelve Million Five Hundred Thousand Dollars
($12,500,000.00), and shall remain at that amount until the Termination
Date. In the event that, on May 31, 1997, the unpaid principal balance
of the Loan shall exceed the principal sum of Twelve Million Five
Hundred Thousand Dollars ($12,500,000.00), the Borrower shall, on such
date, make a principal payment which will reduce the outstanding
principal balance of the Loan to the principal sum of Twelve Million
Five Hundred Thousand Dollars ($12,500,000.00).
"8.1 Net Worth. Maintain at all times a Net Worth (as defined
in Article One) of not less than Twelve Million Five Hundred Thousand
Dollars ($12,500,000.00).
"8.5 Debt Service Coverage Ratio. Maintain at all times a Debt
Service Coverage Ratio of not less than 1.0 to 1.0. For the purposes
hereof, the term "Debt Service Coverage Ratio" shall mean net after-tax
income, plus current year's deferred taxes, plus depreciation, divided
by current maturities of long-term debt, all determined in accordance
with generally accepted accounting principles, consistently applied."
7. Section 4.2(b) of the Loan Agreement is hereby modified and amended
to read as follows:
"(b) Neither the Borrower, Choctaw nor Xxxxx shall be in
default of any of the terms and provisions hereof or of any instrument
or document now or at any time hereafter evidencing or securing all or
any part of the Loan indebtedness and extensions of credit. Each of the
warranties and representations of the Borrower, as set out in Article
Five hereof shall remain true and correct in all material respects as
of the date of such Loan advance."
8. Section 9.1(d) of the Loan Agreement is hereby modified and amended
to read as follows:
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"(d) Covenants. The Borrower, the Guarantor, Choctaw or Xxxxx
shall default in the performance or observance of any covenant,
condition, agreement or undertaking on its part to be performed or
observed, as contained herein, in the Security Agreement, as amended,
in the Choctaw Security Agreement, as amended, in the Xxxxx Security
Agreement or in any other instrument or document which now or hereafter
evidences, secures, or relates to all or any part of the Loan or any
extensions of credit made pursuant hereto; and, with respect to the
covenants of the Guarantor set forth in Sections 8.1 and 8.2 hereof,
such default is not cured within sixty (60) days following the
Guarantor's or the Borrower's first knowledge or notice thereof; or"
9. (a) EXHIBIT "1.5" to the Loan Agreement is modified and amended to
read as provided in Exhibit "1.5" attached hereto.
(b) The Loan Agreement is further modified and amended by the addition
thereto of a new Exhibit, being EXHIBIT "2.3(B)," in form and substance
substantially the same as EXHIBIT "2.3(B)" attached to this Amendment.
10. (a) Except as the context may otherwise require, throughout the
Loan Agreement, the phrase "Borrower or Guarantor" (or words of similar import)
is changed to "Borrower, Guarantor, Choctaw or Xxxxx"; and the phrase "Borrower
and Guarantor" (or words of similar import) is changed to "Borrower, Guarantor,
Choctaw and Xxxxx."
(b) All terms and provisions of the Loan Agreement which are
inconsistent with the provisions of this Amendment are hereby modified and
amended to conform hereto; and, as so modified and amended, the Loan Agreement
is hereby ratified, approved and confirmed. Except as otherwise may be expressly
provided herein, this Amendment shall become effective as of the date set forth
in the initial paragraph hereof.
11. All references in all Loan Documents to the Loan Agreement shall,
except as the context may otherwise require, be deemed to constitute references
to the Loan Agreement as heretofore amended and as further amended hereby.
12. The Guarantor does further (a) consent to and approve of all of the
terms and provisions of this Amendment, the Second Amendment to the Security
Agreement, the First Amendment to the Choctaw Security Agreement, and the Xxxxx
Security Agreement, all of which are of even date herewith, insofar as its
rights are or may be affected hereby, and (b) acknowledge the continued
effectiveness of its Guaranty [in the amount of Fifteen Million Dollars
($15,000,000.00), plus interest and expenses] in accordance with the terms
thereof.
13. Choctaw and Xxxxx join herein for the further purpose of consenting
to and approving of all of the terms and provisions of the Loan Agreement, as
amended hereby, insofar as their respective rights are or may be affected
hereby. Without limiting the generality of the foregoing, Choctaw and Xxxxx
specifically agree to the terms and provisions set forth in Sections 10.21 and
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10.22 of the Loan Agreement in the same manner and to the same extent as if each
of them were specifically named in each such Section.
IN WITNESS WHEREOF, Borrower, Guarantor, Choctaw, Xxxxx and Bank have
caused this Amendment to be executed by their respective officers, duly
authorized so to do, on this the day and year first above written.
ATTEST: X.X.X. TRANSPORT, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ---------------------------------
Secretary President
BORROWER
ATTEST: X.X.X. TRANSPORTATION SERVICES, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ---------------------------------
Secretary President
GUARANTOR
ATTEST: CHOCTAW EXPRESS, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ---------------------------------
Secretary Chief Executive Officer
CHOCTAW
ATTEST: XXXXX TRANSPORTATION SERVICES, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------------- ---------------------------------
Secretary Chief Executive Officer
XXXXX
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
---------------------------------
Senior Vice President
BANK
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EXHIBIT "1.5"
TO LOAN AGREEMENT
Borrowing Base
The Borrowing Base is an amount equal to eighty-five percent (85%) of
the amount due on the Acceptable Accounts of Borrower, Choctaw and Xxxxx, plus
eighty-five percent (85%) of Unbilled Revenues, meeting the conditions set forth
in Section 1.1 of the Loan Agreement.
(Note: Although the Borrowing Base is limited as set forth above,
Bank's security interest covers and includes all of the Accounts
Receivable and Unbilled Revenue of Borrower, Choctaw and Xxxxx and the
other collateral, both now owned and hereafter acquired, as more
particularly described in the respective Security Agreements, executed
by Borrower, Choctaw and Xxxxx, as amended from time to time.)
1.5-1
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EXHIBIT "2.3(b)"
TO LOAN AGREEMENT
Promissory Note
9
PROMISSORY NOTE
$5,000,000.00 Memphis, Tennessee
July 3, 0000
XX XX BEFORE MAY 31, 1998 (the "Termination Date"), the undersigned,
X.X.X. TRANSPORT, INC., an Arkansas corporation (the "Maker"), promises to pay
to the order of FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking
association having its principal place of business in Memphis, Tennessee (the
"Bank"), the principal sum of FIVE MILLION DOLLARS ($5,000,000.00), value
received, together with interest from date until maturity, upon disbursed and
unpaid principal balances, at the Applicable Rate, determined quarterly as
hereinafter provided, said interest being payable monthly on the first day of
each and every month hereafter, commencing on the 1st day of August, 1996, with
the final installment of interest being due and payable concurrently on the same
date that the principal balance is due hereunder.
The "Termination Date" may be extended one or more times pursuant to
the provisions of that certain Loan Agreement ("Loan Agreement"), bearing date
of the 26th day of July, 1994, as amended, among the Maker, the Bank and certain
other parties therein mentioned; and if so extended, such extended date shall
thereupon constitute the Termination Date.
For the purposes hereof, the following terms shall have the following
meanings (such meanings to be applicable equally to the both the singular and
plural forms of such terms) unless the context otherwise requires:
"Adjustment Date" shall mean the first day of each February, May,
August and November of each year, with the next Adjustment Date being the 1st
day of August, 1995.
"Alternate Contract Rate" shall mean a rate per annum equal to the
lesser of (a) the Maximum Rate, or (b) a rate equal to (i) two and
thirty-five-hundredths percent (2.35%) per annum, plus (ii) the LIBOR Rate,
adjusted and determined as of the opening of business on Wednesday of each week.
"Applicable Rate" shall mean (a) from the date hereof to the 1st day of
August, 1996, (b) thereafter, the Contract Rate, if the Maker's Net Income After
Taxes for the Maker's fiscal quarter last ending prior to the applicable
Adjustment Date is less than Five Hundred Thousand Dollars ($500,000.00), and
the Alternate Contract Rate if the Maker's Net Income After Taxes for such
fiscal quarter is Five Hundred Thousand Dollars ($500,000.00) or more; provided,
however, that if The Wall Street Journal should cease to publish the LIBOR Rate,
the Applicable Rate shall be the Contract Rate.
"Base Rate" shall mean the base commercial rate of interest established
from time to time by the Bank, it being understood and agreed, however, that the
Bank has made, and may hereafter make, loans at rates of interest which are
higher or lower than the Base Rate. [The Bank's Base Rate is, as of the date
hereof, eight and one-quarter percent (8 1/4%) per annum.]
2.3(b)-1
10
"Contract Rate" shall mean a rate per annum equal to the lesser of (a)
the Base Rate, as adjusted and determined on a daily basis, or (b) the Maximum
Rate.
"Default Rate" shall mean a rate of interest per annum which shall be
equal to the Applicable Rate, plus two percent (2%) per annum, but never to
exceed the Maximum Rate.
"LIBOR Rate" shall mean the London Interbank Offered Rate of Interest
for an interest period of one (1) month, as reported on each Wednesday of each
week in The Wall Street Journal; provided, however, that if The Wall Street
Journal is not published on a Wednesday, the "LIBOR Rate" shall be determined by
reference to The Wall Street Journal last published immediately preceding such
Wednesday. [The one-month LIBOR Rate quoted in The Wall Street Journal published
on Friday, June 21, 1996, is five and fifteen-thirty-two-seconds percent (5
15/32%) per annum. Therefore, if Monday, June 12, 1995 were a Wednesday, the
Alternate Contract Rate, based upon the LIBOR Rate quoted in The Wall Street
Journal on such date, would be 7.81875% per annum.]
"Maximum Rate" shall mean the maximum effective variable contract rate
of interest which the Bank may, from time to time, lawfully charge.
"Net Income After Taxes" shall mean, with respect to any fiscal period
of the Maker, the Maker's consolidated net income after provision for income
taxes for such fiscal period, as determined in accordance with generally
accepted accounting principles, consistently applied.
The Applicable Rate prior to maturity upon the unpaid principal
balances of this Note shall be determined quarterly as of each Adjustment Date,
based upon the Net Profit After Taxes of the Maker for the calendar quarter of
its fiscal year ending most recently prior to such Adjustment Date. In the event
that the financial report for the immediately preceding calendar quarter of the
Maker has not been received by the Bank on or before an Adjustment Date, then
and in such event the rate of interest prior to maturity for the fiscal quarter
commencing as of such Adjustment Date shall be the Contract Rate.
Any payments of principal or interest not made when due shall bear
interest after maturity (whether by reason of default, acceleration or
otherwise) at the Applicable Rate for a period of sixty (60) days following such
maturity, and, if payment is not made within such sixty (60) day period, upon
the expiration of such sixty (60) day period, at the Default Rate. However, in
the event the Maker is obligated to pay the Default Rate under this paragraph,
such obligation to pay the Default Rate shall terminate when the Maker cures the
default and the interest rate thereafter shall revert back to the Applicable
Rate.
In the event that the foregoing provisions should be construed by a
court of competent jurisdiction not to constitute a valid, enforceable
designation of a rate of interest or method of determining same, the
indebtedness hereby evidenced shall bear interest at the Maximum Rate.
This Note is secured by one or more Security Agreements ("Security
Agreements") dated July 26, 1994, as amended, covering Maker's Accounts
Receivable, and other collateral, as is more particularly described in said
Security Agreement(s), and may now or hereafter be secured by other mortgages,
trust deeds, assignments, security agreements, or other instruments of pledge or
2.3(b)-2
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hypothecation, including a Security Agreement ("Choctaw Security Agreement"),
dated June 27, 1995, as amended, executed by Choctaw Express, Inc., an Oklahoma
corporation, in favor of the Bank, and a Security Agreement ("Xxxxx Security
Agreement"), of even date herewith, executed by Xxxxx Freight Services, Inc., a
Missouri corporation, in favor of the Bank.
This Note is payable at the offices of Bank, at 000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx, 00000, or at such other place as the holder may designate in
writing, in lawful money of the United States of America, which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment.
On the Termination Date, or, at the option of the Bank (a) if the
undersigned shall fail to make payment of any installment of interest, as above
provided, and such default remains uncured for a period of five (5) days, or (b)
upon any default in the terms and provisions of any of the Security Agreements
or the Choctaw Security Agreement, or any trust deed, mortgage, or other
instrument of pledge or hypothecation which now or hereafter secures the payment
of the indebtedness evidenced hereby, or (c) upon the occurrence of any Event of
Default as that term is defined in the Loan Agreement, or (d) upon the
dissolution of the Maker, or (e) upon default in the payment when due of any
other indebtednesses, liabilities, or obligations of the Maker to the Bank,
whether now existing or hereafter created or arising, and such default remains
uncured for a period of five (5) days, the entire unpaid balance of the
indebtedness hereby evidenced, together with all interest then accrued, shall at
once become due and payable for all purposes.
If this Note is placed in the hands of an attorney for collection, by
suit or otherwise, or to protect the security for its payment, or to enforce its
collection, or to represent the rights of the Bank in connection with any loan
documentation executed in connection herewith, or to defend successfully against
any claim, cause of action or suit brought by the Maker against the Bank, the
Maker shall pay on demand all costs of collection and litigation (including
court costs), together with a reasonable attorney's fee.
The Maker and any endorsers or guarantors hereof waive protest, demand,
presentment and notice of dishonor. The Maker and any endorsers or guarantors
that this Note may be extended, in whole or in part, without limit as to the
number of such extensions, or the period or periods thereof, and without notice
to them and without affecting their liability thereon.
It is the intention of the Bank and the Maker to comply strictly with
all applicable usury laws; and, accordingly, in no event and upon no contingency
shall the holder hereof ever be entitled to receive, collect, or apply as
interest any interest, fees, charges, or other payments equivalent to interest,
in excess of the Maximum Rate; and, in the event that the holder hereof ever
receives, collects, or applies as interest, any such excess, such amount which,
but for this provision, would be excessive interest, shall be applied to the
reduction of the principal amount of the indebtedness evidenced hereby; and, if
the principal amount of the indebtedness evidenced hereby, and all lawful
interest thereon, is paid in full, any remaining excess shall forthwith be paid
to the Maker, or other party lawfully entitled thereto. All interest paid or
agreed to be paid by the Maker shall, to the maximum extent permitted under
applicable law, be amortized, pro rated, allocated and spread throughout the
full period until payment in full of the principal so that the interest hereon
for such full period shall not exceed the maximum amount permitted by applicable
law. Any provision hereof, or of any other agreement between the Bank and the
Maker, that operates to bind, obligate,
2.3(b)-3
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or compel the Maker to pay interest in excess of such Maximum Rate shall be
construed to require the payment of the maximum rate only. The provisions of
this paragraph shall be given precedence over any other provision contained
herein or in any other agreement between the Bank and the Maker that is in
conflict with the provisions of this paragraph.
This Note shall be governed and construed according to the statutes and
laws of the State of Tennessee from time to time in effect, except to the extent
that Section 85 of Title 12 of the United States Code (or other applicable
federal statute) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time, shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether state or federal, from
time to time in effect, which permit the charging of a higher rate of interest,
shall govern and control; provided, always, however, that in no event and under
no circumstances shall the Maker be liable for the payment of interest in excess
of the maximum effective rate permitted by such applicable law, from time to
time in effect.
ATTEST: X.X.X. TRANSPORT, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- -------------------------
Secretary President
2.3(b)-4
