EXHIBIT 10.16
FOURTH AMENDMENT TO LOAN AGREEMENT
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THIS FOURTH AMENDMENT TO LOAN AGREEMENT ("Amendment") is made as of the
27th day of December, 2004, by and among UNIVERSAL TRUCKLOAD SERVICES, INC., a
corporation organized and existing under the laws of Michigan with its principal
place of business at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the
"Borrower"), UNIVERSAL AM-CAN, LTD., a corporation organized and existing under
the laws of Delaware with its principal place of business at 00000 Xxxxxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000 ("Universal"), THE XXXXX AND XXXXX LINES,
INCORPORATED, a corporation organized and existing under the laws of Delaware
with its principal place of business at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000 ("Xxxxx Xxxxx"), XXXXX XXXXX INTERMODAL, INC., a corporation organized and
existing under the laws of Michigan with its principal place of business at
00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("Xxxxx Intermodal"), ECONOMY
TRANSPORT, INC., a corporation organized and existing under the laws of Michigan
with its principal place of business at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000 ("Economy"), LOUISIANA TRANSPORTATION, INC., a corporation organized and
existing under the laws of Michigan with its principal place of business at
00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("Louisiana"), GREAT AMERICAN LINES,
INC., a corporation organized and existing under the laws of Pennsylvania with
its principal place of business at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000
("Great American Lines"), GREAT AMERICAN LOGISTICS, INC., a corporation
organized and existing under the laws of Florida with its principal place of
business at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("Great American
Logistics"), (Universal, Xxxxx Xxxxx, Xxxxx Intermodal, Economy, Louisiana,
Great American Lines and Great American Logistics, each a "Co-Borrower"
sometimes herein collectively referred to as "Co-Borrowers"), and FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association organized
and existing under the statutes of the United States of America, with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000
("Bank").
Recitals of Fact
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Pursuant to the terms and provisions of that certain Loan Agreement ("Loan
Agreement"), bearing date of the 31st day of December, 2001, among Borrower,
Xxxxx Xxxxx, Universal and the Bank, the Bank, as amended by First Amendment to
Loan Agreement dated May 11, 2004, among Borrower, Xxxxx Xxxxx, Universal and
Xxxxx Intermodal, as amended by Second Amendment to Loan Agreement dated June
29, 2004, among Borrower, Xxxxx Xxxxx, Universal, Xxxxx Intermodal, Economy and
Louisiana, Bank committed to make loans and advances and extensions of credit to
the Borrower and/or certain Co-Borrowers on a revolving credit basis, in an
amount not to exceed, at any time outstanding, the principal sum of Forty
Million Dollars ($40,000,000.00), as amended by Third Amendment to Loan
Agreement dated August 12, 2004, among Bank, Borrower and Co-Borrowers.
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
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1. Section One of the Loan Agreement is hereby amended by changing the
definition of "Tangible Net Worth" to read as follows:
"Tangible Net Worth" shall mean, as of the date of determination,
Net Worth, less (a) the values assigned to intangibles, e.g., goodwill,
royalties, unamortized bond discount, acquisition costs in excess of book
value, research and development costs, patents, copyrights, trademarks,
trade names, (b) any accumulated earnings attributable to interests in the
capital stock and retained earnings of other Persons other than a
wholly-owned subsidiary of the Borrower, (c) deferred assets, and (d) any
other assets properly classified as intangible (except for value assigned
to intrastate operating authority, franchises, licenses and permits), in
accordance with Generally Accepted Accounting Principles; provided that
with respect to the foregoing, accumulated earnings shall not be deducted
from the market value of any publicly traded securities; and provided,
further, that (i) with respect to the Borrower, any amounts due to the
Borrower from Centra, Inc. and any amounts due to the Borrower from any
subsidiaries of affiliates of Centra, Inc. or any affiliate of the Borrower
shall be deducted from Net Worth, (ii) with respect to either of Universal
or Xxxxx Xxxxx, any amounts due to either from Centra, Inc. or Borrower and
any amounts due to either Co-Borrower from any affiliates of Centra, Inc.
or any affiliates of the Borrower shall be deducted from Net Worth as to
each of them, and (iii) included in Net Worth shall be the amounts owing
from the Borrower to Centra that have been subordinated under the
Subordination Agreement.
2. Section One of the Loan Agreement is hereby amended by adding the
following definitions:
"Dividend" means the dividend described in the Resolution.
"IPO" means that certain initial public offering of common stock of
the Borrower as described in the Registration Statement on Form S-1 with
the Securities and Exchange Commission on November 15, 2004, which
Registration Statement may be amended from time to time.
"Resolution" means that certain Resolution of the Board of Directors
of the Borrower substantially in the form attached hereto as Schedule "1".
"Subordination Agreement" means that Subordination Agreement by and
between the Bank, the Borrower and Centra, Inc. dated December 27, 2004.
3. Section One of the Loan Agreement is hereby amended by amending the
definitions of "Loan Agreement," "Note" and "Security Agreements," as follows:
"Loan Agreement" means this Loan Agreement between the Borrower,
Universal, Xxxxx Xxxxx and the Bank dated December 31, 2001, as amended by
the First Amendment to Loan Agreement dated May 11, 2004, between Borrower,
Universal, Xxxxx Intermodal, Xxxxx Xxxxx and the Bank, as amended by Second
Amendment to Loan Agreement dated June 29, 2004, among Borrower, Universal,
Xxxxx Xxxxx, Xxxxx Intermodal, Economy, Louisiana and Bank, as amended by
Third Amendment to Loan Agreement dated August 12, 2004, among Borrower,
Universal, Xxxxx Intermodal, Xxxxx Xxxxx, Economy, Louisiana, Great
American Lines and Great American Logistics, as amended by Fourth Amendment
to Loan Agreement dated December 27, 2004, among Borrower, Universal, Xxxxx
Intermodal, Xxxxx Xxxxx, Economy, Louisiana, Great American Lines and Great
American Logistics.
4. Sections 6.7 and 7.3 of the Loan Agreement are amended to read as
follows:
6.7 Subordination Agreement. The Borrower agrees to comply with the
terms of the Subordination Agreement.
7.3 Dividends, Redemptions and Other Payments. (a) Declare or pay, or
set aside any sum for the payment of, any dividends or make any other
distribution upon any shares of its capital stock of any class, or (b)
purchase, redeem or other otherwise acquire for value any shares of its
capital stock of any class, or commit to do any of same, or set aside any
sum therefor, or permit any subsidiary to purchase or acquire for value
any shares of its capital stock of any class, or commit to do any of the
same, or set aside any sum therefor, or (c) make any payment to a
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profit sharing plan or to any other retirement or pension plan to or for
the benefit of management shareholders which exceeds (based on a percentage
of compensation) similar payments made for the benefit of all employees of
the Borrower; provided that the above clauses (a), (b) and (c) shall only
apply where the taking of any such action will result in a default in the
financial covenants as contained at Section 6.8 herein; provided further
that, notwithstanding the foregoing, the Borrower may declare the Dividend,
but the Borrower may not pay the Dividend unless and until the following
conditions are satisfied: (i) the IPO has been consummated, Borrower has
received in net proceeds from the IPO, in an amount sufficient to pay in
full the Dividend, (ii) the Dividend is paid only from the proceeds of the
IPO, (iii) no Event of Default has occurred, (iv) no event which with
notice or the passage of time, or both, would constitute an Event of
Default has occurred and is continuing, and (v) the payment of the Dividend
shall not result in an Event of Default or in any event which with notice
or the passage of time, or both would constitute an Event of Default;
provided further, if the net IPO proceeds are insufficient to pay the
Dividend in full, if the other conditions for payment of the Dividend set
forth herein are satisfied, Borrower may pay a portion of the Dividend to
extent of, and from the net proceeds of, the IPO.
5. The lead-in clause to Section Nine of the Loan Agreement is hereby
amended to read as follows:
An "Event of Default" shall exist is, subject to the provisions of
Section 9.8, any of the following shall occur:
6. Section 9.8 of the Loan Agreement is hereby modified to read as
follows:
9.8 Notice and Cure Periods. The occurrence of any forgoing events
listed in Sections 9.1, 9.2, 9.3, 9.4, 9.5, 9.6 and 9.7 hereof shall be an
Event of Default if the same remains uncured in full after the Bank has
provided written notice to Borrower, Universal or Xxxxx Xxxxx of such
default and Borrower's, Universal's or Xxxxx Xxxxx'x failure to cure within
the applicable Cure Period, except for the following defaults, which shall
be an Event Default (without respect to any notice and/or cure periods):
Borrower defaults in the covenants contained at Sections 6.7 and/or 7.3 of
this Agreement for which no notice and cure period shall apply.
7. The Loan Agreement is further modified and amended by the addition
thereto of a new exhibit, being Schedule 1 in form and substance substantially
the same as Schedule 1 attached to this Amendment.
8. 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.
9. 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 amended hereby.
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IN WITNESS WHEREOF, the Borrower, Co-Borrower and the Bank has caused this
Agreement to be executed by their respective officers, duly authorized so to do,
all as of the day and year first above written.
CO-BORROWERS
UNIVERSAL AM-CAN LTD., LOUISIANA TRANSPORTATION, INC.
a Delaware corporation a Michigan corporation
By: /s/ XX Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: President Title: President
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THE XXXXX AND XXXXX LINES, GREAT AMERICAN LINES, INC.,
INCORPORATED a Pennsylvania corporation
a Delaware corporation
By: /s/ Xxx Xxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx, Xx.
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Title: President Title: President
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XXXXX XXXXX INTERMODAL, INC., GREAT AMERICAN LOGISTICS,
a Michigan corporation a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxx, Xx.
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Title: President Title: President
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ECONOMY TRANSPORT, INC.,
a Michigan corporation
By: X. X. XxXxxxx
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Title: President
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BORROWER BANK
UNIVERSAL TRUCKLOAD SERVICES, INC., FIRST TENNESSEE BANK NATIONAL
a Michigan corporation ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President Title: Senior Vice President
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