EXHIBIT 10.35
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of
January 1, 1994 by and among CHEMICAL XXXXXX TANK LINES, INC., a Delaware
corporation ""Company"), and ASSOCIATES COMMERCIAL CORPORATION ("Secured
Party").
PRELIMINARY STATEMENT
The Company and Secured Party are parties to a Revolving Credit
Agreement dated November 30, 1990, and amended by eight amendments through June
30, 1993 (the "Loan Agreement").
The Company has requested the Loan Agreement be amended to modify
certain financial covenants and the Secured Party is willing to do so.
SECTION 1
THE CREDIT
1.1 REVOLVING CREDIT LOANS, LIMITED GUARANTY
(a) REVOLVING CREDIT LOANS. Secured Party agrees to make loans (herein
called "Revolving Credit Loans" or "Loans") to the Company from time to time
during the period commencing on the date hereof and ending June 30, 1994 or on
any earlier date as provided in Section 6.1 hereof (herein called the
"Termination Date"), in amounts not to exceed at any one time outstanding, in
the aggregate, the amount of $22,500,000 (such sums being referred to herein as
the "Commitment Amount"), subject to the Borrowing Base requirements set forth
below and all other terms and conditions herein, including, without limitation,
Sections 4.2 and 5.2 below (such agreement to make Loans is referred to herein
as the "Commitment").
Each Revolving Credit Loan shall be in the minimum principal amount of
$100,000 or if greater, then in multiples of $100,000. Within the limits of the
lower of the Commitment Amount or the Borrowing Base, the Company may borrow,
prepay and reborrow.
(b) LIMITED GUARANTY. The Company may hereafter request Secured Party
to cause Associates Corporation of North America ("ACONA") to issue one or more
limited guaranties to one or more banking associations (each of them, the
"Bank") in form attached hereto as Exhibit 1 (herein called a "Guaranty" and
collectively called the Guaranties") to assist the Company in causing the Bank's
issuance of one or more letters of credit (herein called a "Letter of Credit"
and collectively called the "Letters of Credit") to Home Indemnity Company
("HIC"). Secured
Party will cause ACONA to issue a Guaranty only in the event the conditions set
forth herein are satisfied in Secured Party's sole discretion. The Company
acknowledges that each Guaranty must be in the form attached hereto as Exhibit
1. Any requests by a Bank to alter the form of the Guaranty in any manner shall
not be permitted. The Company further acknowledges that Secured Party has made
no representations or warranties regarding the likelihood or probability that a
Bank will accept the Guaranty for purposes of issuing a Letter of Credit.
The Company shall request issuance of a Guaranty by delivering to
Secured Party a written request in the form passed hereto as Exhibit 2 (the
"Guaranty Request"). ACONA's liability under the Guaranties shall be limited to
a maximum amount of $3,750,000; provided however, in no event shall the
Obligations (as defined herein) exceed the lesser of the Borrowing Base (as
defined herein) or the Commitment Amount. If at any time the Obligations equal
or exceed the lesser of the Borrowing Base (as defined herein) or the Commitment
Amount, Secured Party shall have no obligation to cause ACONA to issue a
Guaranty during such time. The Guaranties shall expire on June 30, 1994, or on
the expiration of the term of the applicable Letter of Credit (which term cannot
exceed one year), whichever is later. A demand for payment under the Guaranty
shall be deemed a request by the Company to Secured Party for a Revolving Credit
Loan in the amount of the demand and Secured Party shall have the right to pay
the proceeds of such Revolving Credit Loan directly to the Bank without any
further authorization from the Company.
The Company further requests and authorizes Secured Party, subject to
the terms hereof, to advance such sums on the Company's behalf at such times as
are necessary to pay the Bank and/or to reimburse ACONA in full under any
Guaranty. ACONA and Secured Party shall have the right to rely on any demand for
payment under any Guaranty made by any employee or officer of the Bank. ACONA
and Secured Party shall not be required to investigate the right of the Bank to
demand payment under a Guaranty or the right of HIC to demand payment under the
Letter of Credit. Any claim the Company may have arising out of any dispute with
the Bank or HIC or between the Bank and HIC will not be used as a defense to its
obligation hereunder to indemnify Secured Party and ACONA arising from the
Guaranties or the Letters of Credit shall be absolute, unconditional and
complete. Any such payment by ACONA or Secured Party under any Guaranty shall be
considered, for all purposes, a Revolving Credit Loan and shall be secured as
set forth in Section 3.1 hereof.
The Company authorizes Secured Party's indemnification of ACONA in the
form attached hereto as Exhibit 3. The Company shall indemnify and hold Secured
Party and ACONA harmless from any loss, damage, expense, liability or payment
arising by reason of the performance or the making of any payment, whether to
the
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Bank or any other party, under any Letter of Credit or any Guaranty, including,
without limitation, any obligation arising as a result of a preference under
Section 547 of the Bankruptcy Code caused by issuance of or performance under
any Letter of Credit or any Guaranty, or the indemnity agreement between ACONA
and Secured Party with respect thereto, or with respect to any Revolving Credit
Loan made to the Company or on the Company's behalf hereunder. The Company
hereby acknowledges that its liability hereunder, including, without limitation,
its liability arising as a result of the foregoing indemnification is secured by
all liens and security interests described in Section 3.1 hereof.
If any Guaranty expires after the Termination Date and ACONA or Secured
Party makes a payment under any Guaranty after the Termination Date, any such
payment shall be (i) automatically added to and converted into the Term Loan, if
any, on a fully amortized basis, without the need for a written modification
thereof unless required by Secured Party, or (ii) if no Term Loan was extended
to the Company, immediately due and owing from the Company to the Secured Party
and failure to repay such amounts immediately shall constitute an Event of
Default hereunder.
In consideration for Secured Party causing ACONA to issue the
Guaranties, the Company agrees to pay Secured Party a fee computed monthly at
the rate of .167% per month on the average daily amount of the Guaranties,
during the period any Guaranty is issued, which has not been drawn upon by the
Bank during the preceding month, which fee shall be paid on the first day of
each month commencing on the first such day after the date hereof. Such fee
shall be calculated on the basis of a 360 day year for the actual number of days
elapsed.
1.2 EVIDENCE OF DEBT. The Secured Party's books and records shall be
prima facie evidence of the aggregate amount from time to time owing under the
Revolving Credit Loans.
1.3 FUNDING PROCEDURES FOR REVOLVING CREDIT LOANS. Each Revolving
Credit Loan shall be requested by delivery to the Secured Party of a written
loan request signed by the chief executive or chief financial officer of the
Company in substantially the form attached hereto as Exhibit 4 ("Revolving Loan
Request"). Each Revolving Loan Request shall be delivered in sufficient time
such that it is received by Secured Party not less than three Business Days
prior to the date of the proposed Loan. Each Revolving Loan Request shall be
accompanied by a certificate ("Borrowing Base Certificate"), in substantially
the form attached hereto as Exhibit 5, signed by the chief executive or chief
financial officer of the Company.
1.4 COMMITMENT FEE. In consideration for Secured Party issuing the
Commitment, the Company agrees to pay Secured Party a
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fee ("Commitment Fee") computed monthly at the rate of .04167% per month on the
difference between the Commitment Amount and the sum of (i) the average daily
unpaid principal balance owing under the Revolving Credit Loans during the
preceding month, and (ii) the average daily amount of the Guaranties during the
period any Guaranty is issued which has not been drawn upon by the Bank during
the preceding month, which Commitment Fee shall be paid on the fifth day of each
month commencing on the first such day after the date hereof. The Commitment Fee
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed.
1.5 REVOLVING CREDIT LOAN PREPAYMENTS. Under Section 5.2(a), the
Company may be obligated to make certain mandatory prepayments on the unpaid
principal amount of the Revolving Credit Loans. In addition, the Company may
prepay the Revolving Credit Loans in whole at any time or in part from time to
time, in either case with accrued interest to the date of such prepayment on the
principal amount being prepaid, provided that each such partial prepayment shall
be in the principal amount of $100,000 or an integral multiple thereof.
Prepayments shall be without premium or penalty.
1.6 TERM LOAN. Subject to the terms and conditions set forth herein,
Secured Party agrees to extend on June 30, 1994, the time for the payment of the
then remaining aggregate principal balance of the Revolving Credit Loans. The
Company's obligations under such extension shall be referred to herein as the
"Term Loan".
1.7 TERM LOAN REQUEST. The Company must request the Term Loan by
delivering to Secured Party, in sufficient time such that it is received by
Secured Party prior to June 30, 1994, a written extension request signed by the
chief executive or chief financial officer of the Company in substantially the
form attached hereto as Exhibit 6 (the "Term Loan Request"). The Term Loan shall
be due in forty-eight (48) equal consecutive monthly installments of principal
due on the first day of each month commencing on August 1, 1994. Each
installment shall be rounded upwards to the next whole dollar except in the case
of the final installment which shall be in an amount sufficient to pay in full
the remaining unpaid principal amount of the Term Loan. Each principal
installment shall be accompanied by a payment of interest accrued to the date of
such installment.
1.8 TERM LOAN PREPAYMENTS. Under Section 5.2(a), the Company may be
obligated to make certain mandatory prepayments on the unpaid principal amount
of the Term Loan. In addition, the Company shall have the right to prepay the
Term Loan in whole at any time or in part from time to time, together with
accrued interest to the date of such prepayment on the principal amount being
prepaid. Each prepayment shall be in the amount of
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$100,000 or an integral multiple thereof and shall be applied first to accrued
interest and then to principal installments remaining on the Term Loan in the
inverse order of their maturities.
1.9 INTEREST. The Company will pay interest on the unpaid principal
balance of each Revolving Credit Loan and the Term Loan, accrued from the date
of such loan until the principal amount thereof is paid in full, at a rate per
annum equal to the following:
the interest rate the interest rate
If the Prime on the Revolving on the Term Loan
Rate is: Credit Loan shall be: shall be:
------- --------------------- -----------------
Equal to or less 7.5% 8.5%
than 6%
Less than or equal 7.625% 8.5%
to 6.25% and greater
than 6%
Less than or equal 7.8125% 8.5%
to 6.5% and greater
than 6.25%
Less than or equal to 8.1875% 8.625%
6.75% and greater than
6.5%
Less than or equal to 8.3750% 8.75%
7% and greater than
6.75%
Less than or equal to 8.5625% 8.875%
7.25% and greater than
7%
Less than or equal to 8.7500% 9.0%
7.5% and greater than
7.25%
Less than or equal to 8.9375% 9.125%
7.75% and greater than
7.5%
Less than or equal to 9.1250% 9.250%
8% and greater than
7.75%
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Less than or equal to 9.3125% 9.375%
8.25% and greater than
8%
Less than or equal to 9.5% 9 .5%
8.5% and greater than
8.25%
Greater than 8.5% The Prime Rate The Prime Rate
plus 1% plus 1%
The Prime Rate shall mean the per annum lending rate publicly announced
from time to time by CoreStates Bank, N.A. (or any successor bank(s) thereto) as
the base rate for unsecured short term business loans, such rate being the rate
presently referred to by some banks as its base rate or as its reference rate or
as its corporate base rate or as its prime rate for unsecured loans of the
shortest maturity to corporate borrowers. Interest shall be calculated on the
basis of a 360-day year for the actual number of days elapsed and shall change
as and when the Prime Rate shall change. Interest shall be payable on the first
day of each month commencing with the first such day after the date of each
Revolving Credit Loan, or the Term Loan, as applicable, and on the Termination
Date. In the event any Event of Default (as defined herein) shall have occurred
and be continuing, a default rate (the "Default Rate") shall be payable monthly
on the first day of each month, or on demand by the Secured Party from and after
the date of occurrence and until such time as no Event of Default shall continue
to exist. Such Default Rate shall be a rate per annum equal to two percent
(2.0%) in excess of the interest rate then applicable to the Revolving Credit
Loan or Term Loan.
1.10 PAYMENTS GENERALLY. All payments of principal, interest and fees
or other amounts payable hereunder, shall be remitted to the Secured Party at
the address set forth opposite its name on the signature pages hereof in
immediately available funds. Whether any payment is stated as due on a day which
is not a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day and interest shall continue to accrue during such
extension.
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SECTION 2
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Secured Party that:
2.1 ORGANIZATION, STANDING. It and its parent, Chemical Xxxxxx
Corporation, each is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority necessary to own its assets, carry on its business
and enter into and perform its obligations hereunder, under the Revolving Credit
Loans, under the Term Loan and under all related loan documents (this Agreement,
the Revolving Loan Requests, the Term Loan Request, the Security Agreement
(defined in Section 3.1) and all related loan documents being referred to
herein, individually as a "Loan Document" and collectively, as the "Loan
Documents"). Except as set forth in Exhibit 7 hereof, it is qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which it is required to so qualify unless the failure to so qualify would not
(i) have a material adverse effect on the Company or (ii) affect the validity or
enforceability of any Loan Document. Exhibit 8 attached hereto contains an
officer's certificate listing each state in which the Company has filed for or
obtained approval to operate and each state in which the Company provides
intra-state service under the jurisdiction of any state regulatory agency.
2.2 CORPORATE AUTHORITY, ETC. The making and performance of the Loan
Documents are within its power and authority and have been duly authorized by
all necessary corporate action. The making and performance of the Loan Documents
do not and will not require any consent or approval of any of its shareholders
or any other person which has not been obtained, do not and will not violate any
law, rules, regulation, order, writ, judgment, injunction, decree, determination
or award, do not violate any provision of its charter or by-laws, do not and
will not result in any breach of any agreement for payment of money where the
indebtedness thereof exceeds $250,000 or any lease having a present value in
excess of $50,000 to which it is a party, by which it is bound or to which any
of its assets is or may be subject; and do not and will not give rise to any
lien or charge upon any of its assets except in favor of the Secured Party. It
is not in default in any material respect under any of the foregoing. Exhibit 9
attached hereto is a copy of the resolution of the Company's Board of Directors
authorizing it to enter into this Agreement, the other Loan Documents, and the
transactions contemplated pursuant hereto and thereto, and naming those
representatives or it who are duly authorized to execute this
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Agreement and the other Loan Documents and to take other actions pursuant
hereto and thereto.
2.3 VALIDITY OF DOCUMENTS. Each Loan Document, when executed and
delivered, will be the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms. To the extent any Loan
Document purports to be the undertaking of a party other than the Company, ACONA
or the Secured Party, each such Loan Document, when executed and delivered, will
be the legal, valid, binding obligation of each of such other party enforceable
against each in accordance with its terms. Each Loan Document which purports to
create a lien or security interest, when executed and delivered, will be
effective to create the lien or security interest it purports to create. Except
as has been duly obtained and recited in Exhibit 10 attached hereto, no
authorization, consent, approval, license, exemption of or filing or
registration with any court, governmental agency or other tribunal is or will be
necessary to the validity or performance of any Loan Document.
2.4 LITIGATION. There are no actions, suits or proceedings pending or
threatened against or affecting it or any of its assets before any court,
government agency, or other tribunal, which would have a material adverse effect
on its or its Affiliates' financial condition, operation or assets or upon its
ability to perform under the Loan Documents except as set forth in Exhibit 11
attached hereto. "Affiliate" means any person who directly or indirectly
controls or is controlled by or is under common control with the Company.
"Control" means the power to direct or cause direction of the management and
policies of the controlled person.
2.5 ERISA. Each employee benefit plan of the Company or multiemployer
plan (the "Plans") in which any employee of the Company participate that is
subject to any provision of the Employee Retirement Income Security Act of 1974
or the Multiemployer Pension Plan Amendments Act of 1980 and of the regulations
adopted pursuant thereto (hereinafter collectively called "ERISA") is being
administered in accordance with the documents and instruments governing such
Plan, and such documents and instruments are substantially consistent with the
applicable provisions of ERISA. None of the Plans or the trusts created
hereunder have engaged in a "Prohibited Transaction" which could subject any
such Plan or trust to a material tax or penalty on prohibited transactions
imposed by the Internal Revenue Code of 1986, as amended (the "Code"), or ERISA.
None of the Plans which are "Employee Pension Benefit Plans" or the trusts
created hereunder have been terminated since September 2, 1974; nor has any such
Plan incurred any material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA, other than for required insurance premiums which
have been paid when due, or incurred any material "Accumulated Funding
Deficiency"
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whether or not waived; nor has there been any "Reportable Event," or other
event or condition, which represents a material risk of termination or any such
Plan by the Pension Benefit Guaranty Corporation. With respect to multiemployer
plans to which the Company makes contributions but does not participate in the
administration of such plans, the Company's representations are based on
information received by it concerning each such plan. All contributions required
under collective bargaining agreements to which the Company is a party or by
which it is bound have been paid. Since April 29, 1980, the Company has not
withdrawn from participation in any "Multiemployer Plan" to which it makes
contributions, and the Company has not received any notice and is not aware that
any multiemployer plan to which it contributes is insolvent or in reorganization
status within the meaning of ERISA. As used herein, the terms "Prohibited
Transaction" and "Multiemployer Plans" shall have the respective meanings
assigned to them in the Code and in ERISA, and the terms "Employee Benefit
Plans," "Employee Pension Benefit Plans," "Accumulated Funding Deficiency,"
"Reportable Event" and "Withdrawal" shall have the respective meanings assigned
to them in ERISA.
2.6 FINANCIAL STATEMENTS. Its financial statements and the consolidated
financial statements of Chemical Xxxxxx Corporation, both as of December 31,
1992 and for the period then ending, consisting in each case of a balance sheet,
related statements of changes in financial position and statements of operations
and changes in shareholders' equity, and accompanying footnotes, and the interim
financial statements of each, dated June 30, 1993 furnished to the Secured Party
in connection therewith are in each case complete and correct in all material
respects and fairly present the financial condition, results of operations and
changes in shareholders' equity of each as of the date and for the period
referred to, all in accordance with generally accepted accounting principles
consistently applied, subject to fiscal year-end audit adjustments in the case
of the interim financial statements. There has been no material adverse change
in the financial condition or operation of either it or Chemical Xxxxxx
Corporation (consolidated) since the date of the interim financial statements
except as may have heretofore been disclosed to the Secured Party in writing
with a copy being attached hereto as Exhibit 12.
2.7 MARGIN REGULATIONS. No proceeds of any Loan hereunder will be
applied for the purpose of purchasing or carrying or trading in any securities,
including "Margin Stock" as defined from time to time by the Board of Governors
of the Federal Reserve System, or refinancing any credit previously extended for
any such purpose.
2.8 NOT IN DEFAULT. No Event of Default or other event which, with the
giving of notice or the passage of time or both,
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would constitute an Event of Default under any Loan Document has occurred and
is continuing.
2.9 APPROVAL OF REGULATORY AGENCIES. No consent, approval or
authorization, or designation, declaration or filing with any governmental
agency or authority which could in any way now or hereafter affect the validity
or enforceability of any Loan Document is required which has not been obtained.
2.10 TAX RETURNS. The Company has filed all federal, state and local
tax returns and reports which it is required by law to file and has paid all
taxes, assessments, withholdings and other governmental charges which are
presently due and payable.
2.11 PERMITS, LICENSES, ETC. The Company possesses all permits,
licenses, franchises, trademarks, copyrights and patents necessary to the
conduct of its business as presently conducted or as presently proposed to be
conducted, the absence of which would (i) have a material adverse effect on the
Company, or (ii) affect the validity or enforceability of any Loan Document.
2.12 DISCLOSURE GENERALLY. The representations and statements made by
or on behalf of the Company in connection with this credit facility and Loans
hereunder, including representations and statements in each of the Loan
Documents, do not and will not contain any untrue statement of a material fact
or omit to state a material fact or any fact necessary to make the
representations made not materially misleading. No written information, exhibit,
report, brochure or financial statement furnished by the Company to the Secured
Party in connection with this credit facility, Loans hereunder, or any Loan
Document contains or will contain any material misstatement of fact or omit to
state a material fact or any fact necessary to make the statements contained
herein not misleading.
SECTION 3
SECURITY
3.1 SECURITY DOCUMENTS. As security for the Obligations, the Secured
Party shall have valid, perfected first lien on and security interest in the
assets of the Company as specified in the Security Agreement dated November 30,
1990 between the Company and the Secured Party and all Schedule A's attached to
the Security Agreement now or at any time in the future (as amended and
supplemented, the "Security Agreement").
3.2 RELEASE OF COLLATERAL. Upon the payment in full of the Obligations
(other than the contingent indemnification obligations relating to a preference
under Section 547 of the Bankruptcy Code caused by issuance of or performance
under the Guaranty, as set forth in Section 1.1(b) herein) and the
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termination of the Commitment and the Guaranty, the Secured Party shall release
the lien and security interest of the Secured Party in the assets of the Company
as specified in each of the Loan Documents and shall do such things as are
reasonably requested by the Company to effect such release, provided, however,
if the Obligations (other than the contingent indemnification obligations
relating to a preference under Section 547 of the Bankruptcy Code caused by
issuance of or performance under the Guaranty, as set forth in Section 1.1(b)
herein) are paid in full, the Commitment is terminated and the Guaranty is still
outstanding, Secured Party will not be obligated to release its lien as
described above until the Company furnishes to Secured Party such amount of
cash, to be held as cash collateral and invested in a manner deemed appropriate
by Secured Party, as will pay the maximum amount which may be drawn by the Bank
under the Guaranty at the date of the prepayment and termination. The Company's
election to terminate the Commitment shall be in writing.
SECTION 4
CONDITIONS PRECEDENT
4.1 OBLIGATIONS OF SECURED PARTY. The obligation of Secured Party to
make any Loan (other than Revolving Credit Loans pursuant to Section 1.1(b)
above), to permit the conversion of the Revolving Credit Loans to the Term Loan
or to cause issuance of the Guaranty is conditioned upon the following:
(a) DOCUMENTS. The Company shall have delivered and the Secured
Party shall have received, as applicable, a Guaranty Request, a Revolving Loan
Request or a Term Loan Request, and a Borrowing Base Certificate (dated a date
which is the last day of the immediately preceding calendar month or a day in
the instant calendar month, as the Company may elect), and the Secured Party
shall also have received a certificate dated the date of such Loan, Guaranty or
Term Loan and signed by the chief executive or chief financial officer of the
Company to the effect set forth in Section 4.1(c).
(b) CONDITIONS. The amount of such Loan or such Guaranty, when
added to the Obligations, would not exceed the lesser of (i) the Borrowing Base
on the date of such Loan or such Guaranty or (ii) the Commitment Amount and,
after giving effect to such Loan or such Guaranty no Event of Default or event,
which with the giving of notice or the lapse of time or both, would constitute
an Event of Default, shall exist.
(c) COMPLIANCE; REPRESENTATIONS AND WARRANTIES. The Company and
Chemical Xxxxxx Corporation shall have complied and be in compliance with all
covenants, agreements and conditions in each Loan Document and each
representation and warranty contained
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in each Loan Document shall be true with the same effect as though such
representation and warranty had been made on the date of such Loan.
(d) EVIDENCE OF AUTHORIZATION. The Secured Party shall have
received certified copies of all corporate or other action taken by the Company
and Chemical Xxxxxx Corporation to authorize its execution, delivery and
performance of the Loan Documents and to authorize the Loans hereunder, together
with such other related papers as the Secured Party shall reasonably require.
(e) INCUMBENCY. The Secured Party shall have received a
certificate signed by the secretary or assistant secretary of the Company
together with the true signature of such officer or officers, upon which the
Secured Party shall be entitled to rely conclusively until it shall have
received a further certificate of the appropriate secretary or assistant
secretary amending the prior certificate and submitting the signature of the
officer or officers named in the new certificate.
(f) SECURITY AGREEMENT. The Secured Party shall have received a
Supplemental Schedule A to the Security Agreement in the form attached hereto as
Exhibit 13 describing the additional Revenue Equipment, if any, which is
necessary to satisfy the Borrowing Base requirements below, together with all
instruments, certificates of title, financing statements and other documents
then required to be delivered pursuant to the Security Agreement, in each
instance in form and substances satisfactory to the Secured Party.
(g) EVIDENCE OF PRIORITY. The Secured Party shall have received
evidence it deems reasonably appropriate that it has a first priority and
perfected security interest and lien on the Revenue Equipment.
4.2 REVOLVING CREDIT LOANS UNDER THIS AGREEMENT. The obligation of
Secured Party to make the first Revolving Credit Loan under this Agreement and
to cause issuance of the Guaranty are further conditioned upon the following:
(a) LEGAL OPINION. The Secured Party has received the favorable
written opinion of counsel for the Company which shall be addressed to the
Secured Party, in form and substance satisfactory to the Secured Party.
(b) SECURITY AGREEMENT. The Secured Party shall have received the
Security Agreement together with all instruments, certificates of title,
financing statements and other documents then required to be delivered pursuant
to the Security Agreement in each instance in form and substance satisfactory to
Secured Party.
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4.3 TERM LOAN. The obligation of Secured Party to make the Term Loan
is, in addition to the other conditions stated in this Section 4 (including,
without limitation, those with respect to a Borrowing Base Certificate, the Term
Loan Request and the absence of any defaults), further conditioned upon receipt
by the Secured Party of copies of all consents, approvals or authorizations,
each in form and substance reasonably acceptable to the Secured Party, of all
governmental agencies and authorities which may be required in connection with
insuring the validity and enforceability of the Term Loan. If the conditions
precedent herein relating to the Term Loan are not satisfied prior to the
Termination Date, the Secured Party shall have no obligation to make the Term
Loan and the Revolving Credit Loans shall then be immediately due and payable.
SECTION 5
COVENANTS OF COMPANY
The Company agrees that, so long as either the Commitment remains in
effect, or any Obligation is outstanding, other than contingent liability under
any indemnification provision (with the exception of the indemnification
provisions relating to the Guaranty) to the extent there are no such
indemnification claims by the Secured Party:
5.1 REPORTING REQUIREMENTS.
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available but in any
event within 120 days after the end of each fiscal year, the Company will
deliver to Secured Party financial statements of Chemical Xxxxxx Corporation
(consolidated) for such fiscal year. "Financial Statements" shall mean a balance
sheet, a statement of earnings or loss, and a statement of changes in financial
position for the fiscal year and the immediately preceding fiscal year in
comparative form. Financial Statements shall include consolidating balance
sheets and income statements of Chemical Xxxxxx Corporation and its subsidiaries
and shall be in reasonable detail with appropriate notes and be prepared in
accordance with generally accepted accounting principles applied on a consistent
basis. Annual Financial Statements of Chemical Xxxxxx Corporation shall be
certified (without any material qualification, exception or limiting statement
or disclosure) by independent public accountants of nationally recognized
standing who shall be acceptable to the Secured Party, which acceptance shall
not be unreasonably withheld.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available but in
any event within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, the Company will deliver to Secured Party
financial statements of the
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Company and Chemical Xxxxxx Corporation (consolidated) for comparable period of
the preceding fiscal year and in each instance the cumulative year to date.
Quarterly financial statements shall be certified by the president, chief
executive or chief financial officer of the Company or Chemical Xxxxxx
Corporation, as applicable, as being complete and correct in all material
respects, subject to normal year-end audit adjustments.
(c) OTHER STATEMENTS AND REPORTS. Promptly following request by
the Secured Party, the Company also will furnish such additional information,
reports or statements as the Secured Party from time to time may reasonably
request.
(d) ANNUAL AND QUARTERLY DEFAULT CERTIFICATES. Each annual and
quarterly financial statement will be accompanied by a certificate signed by the
president of the Company stating whether in his opinion an Event of Default or
event which with notice or lapse of time or both would become an Event of
Default exists on the date of said certificate together with a statement of the
details and action taken or to be taken if any Event of Default or event exists.
Each annual financial statement also will be accompanied by a statement of the
firm of independent public accountants which reported on statements of Chemical
Xxxxxx Corporation to the effect that in the course of, and based solely upon
their regular audit of the financial statements of Chemical Xxxxxx Corporation
and its wholly-owned subsidiary Chemical Xxxxxx Tank Lines, Inc., nothing came
to their attention which caused them to believe that on the date of such
statements any Event of Default or event which with notice or lapse of time or
both would become an Event of Default or an event which with notice or lapse of
time or both would become an Event of Default existed, relating to Section 5.2
hereof, or, in the alternative that an Event of Default existed, relating to
Section 5.2 hereof, and setting forth the details thereof.
(e) INTERIM DEFAULT CERTIFICATES. The Company will deliver to
Secured Party forthwith upon occurrence of any Event of Default or event which
with notice or lapse of time or both would become an Event of Default a
certificate signed by the president of the Company stating the details and
action taken or to be taken with respect thereto.
(f) MONTHLY REPORTS. The Company will deliver to the Secured
Party within 30 days after the end of each month a Borrowing Base Certificate
dated the last day of such month together with appropriate schedules reflecting
the Revenue Equipment included in the Borrowing Base.
5.2 BORROWING BASE, FINANCIAL CONDITIONS AND RATIOS. The Company will
maintain (on a consolidated basis with its subsidiaries), and the Company agrees
that this Section 5.2 will be deemed breached if Chemical Xxxxxx Corporation (on
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a consolidated basis) does not also maintain, a Borrowing Base and minimum
financial conditions and ratios, as follows:
(a) BORROWING BASE. The total amount of the unpaid principal of
the Loans and the Term Loan, the accrued and unpaid interest owing under the
Loans and the Term Loan, the amount guaranteed under the Guaranty (whether or
not Secured Party or ACONA has made payment under the Guaranty), the accrued and
unpaid fees and expenses owed by the Company to Secured Party, and all other
absolute and contingent obligations and liabilities of the Company to the
Secured Party and/or ACONA now existing or hereafter arising, whether under this
Agreement or any other agreement, including, without limitation, liabilities
arising as a result of preference claims under Section 547 of the Bankruptcy
Code (collectively, the "Obligations"), shall not, in the aggregate, exceed the
Borrowing Base, provided such covenants shall not be deemed breached if, within
twenty seven (27) days after each date on which the Obligations exceed the
Borrowing Base, a prepayment on the Obligations is made in an amount sufficient
to assure continued compliance with the covenant going forward or additional
equipment which is satisfactory to Secured Party and which is of a Value
sufficient to cause the Borrowing Base to exceed the Obligations is added to the
Revenue Equipment.
"BORROWING BASE" shall be determined on the first date of each month
and shall mean an amount equal to the then aggregate Book Value of all Revenue
Equipment on such date.
"BOOK VALUE" for an item of Revenue Equipment as of any date of
determination shall mean (a) the Value thereof plus Refurbishments thereto less
Depreciation thereto as of such date (b) times 85%. Any item of Revenue
Equipment which is lost, stolen or destroyed or which is materially damaged but
not repaired within thirty (30) days shall have a Book Value of zero.
"VALUE" of an item of Revenue Equipment shall mean:
(i) with respect to all Revenue Equipment listed in Schedule A to
the Security Agreement dated November 30, 1990 ("Schedule A") the respective
values thereof;
(ii) with respect to each used item of equipment to be added as
Revenue Equipment to Schedule A at a later date, (i) the value of similarly
equipped Revenue Equipment of the same manufacturer, model and year listed in
the appraisal prepared by Tank Trailers, Inc. dated October 5, 1990 (the
"Appraisal") less Depreciation and (ii) which does not meet the parameters of
subsection (i) of this paragraph (b), the value which Secured Party and Company
shall agree upon, and (iii) if subsections (i) and (ii) of this paragraph (b)
are not applicable, then the appraised value which Tank Trailers, Inc. shall
determine in
-15-
accordance with the method used by Tank Trailers, Inc. under the Appraisal;
(iii) with respect to each item of equipment purchased new by the
Company, which has not been used by the Company or anyone else for more than
ninety (90) days at the time it is to be added as Revenue Equipment to Schedule
A at a later date, the purchase cost to Company of such new item of Revenue
Equipment.
"REFURBISHMENTS" shall mean an amount equal to 80% of the cost to
Company of the work performed by independent, unaffiliated third parties
constituting material rebuilding or replacement of the superstructure,
undercarriage, tanks, liners, cryogenic equipment or the like of the Revenue
Equipment. Such costs shall constitute Refurbishments only in the event the
related work is performed on an item of Revenue Equipment subsequent to the date
such item of Revenue Equipment is added to Schedule A as Revenue Equipment. In
no event shall all aggregate Refurbishments, for purposes of determining the
Borrowing Base, exceed $3,000,000 per year. Repairs to damaged Revenue Equipment
shall not be deemed Refurbishments.
"DEPRECIATION" for an item of Revenue Equipment as of any date of
determination shall mean an amount equal to .83% of its original purchase price
to the Company times (a) in the case of Revenue Equipment whose value is
determined under paragraphs (a), (b)(ii), (b)(iii) or (c) above, the number of
months such item of Revenue Equipment has been listed as Revenue Equipment on
Schedule A and (b) in the case of Revenue Equipment whose value is determined
under paragraph (b)(i) above, the number of months from the date hereof to the
date of determination.
"REVENUE EQUIPMENT" shall mean all the Company's trucks, tractors,
trailers and similar equipment described in Schedule A to the Security Agreement
as such Schedule A shall be amended or supplemented from time to time, in which
Secured Party has a first priority and perfected security interest.
(b) CURRENT RATIO. A current ratio (Current Assets to Current
Liabilities exclusive of the current portion of long term liabilities) of not
less than 1:1.
(c) CURRENT ASSETS and CURRENT LIABILITIES shall mean,
respectively, all assets or liabilities of the Company which would, in
accordance with generally accepted accounting principles, be classified as
current assets, as applicable; provided, however, that the term Current
Liabilities shall exclude the Company's obligations under (i) this Agreement,
and (ii) the Receivables Purchase Agreement between the Company, Quala Systems,
Inc. and Xxxxxxxxx Way Funding Corp. ("Receivables Agreement").
-16-
(d) TANGIBLE NET WORTH. Tangible net worth (tangible assets i.e.,
total assets excluding patents, copyrights, capitalized research and development
costs, goodwill, operating rights and other intangible assets, minus total
liabilities (excluding all operating leases)) of the Company of not less than
$20,142,000, and tangible net worth of Chemical Xxxxxx Corporation (on a
consolidated basis and including the book value of all outstanding Series A
Preferred Stock) of not less than $21,962,000.
(e) LIABILITIES TO TANGIBLE NET WORTH. A ratio of Total
Liabilities to Tangible Net Worth of the Company and Chemical Xxxxxx
Corporation, respectively, which is not at any time more than 3.97:1, and
3.82:1.
"TOTAL LIABILITIES" shall mean the total liabilities shown on the
balance sheet, of the Company or Chemical Xxxxxx Corporation, as applicable,
plus, to the extent not shown on such balance sheet, the value of all leases,
including all operating leases discounted to present value at the rate of return
which the lessee will pay on each lease.
(f) DEBT COVERAGE. With respect to the Company, a ratio of
Current Income to Current Obligations at all times specified not less than
1.00:1.
"CURRENT INCOME" shall mean consolidated net income of the Company for
the fiscal period plus depreciation deducted during the period and amounts added
to or subtracted from, as applicable, any reserve for deferred tax liability
during the period minus any dividends or distributions paid or declared during
the period.
"CURRENT OBLIGATIONS" shall mean (i) the amount of all obligations
maturing within the next succeeding 365 days excluding the Company's obligations
under the Loans, the revolving credit facility with CoreStates Bank, N.A. and
the Receivables Agreement; plus (ii) 25% of the principal balance of the Loans
and Term Loan outstanding hereunder plus the principal balance of the notes
outstanding under the revolving credit facility with CoreStates Bank, N.A. plus
the principal balance of the Company's obligations under the Receivables
Agreement. In calculating this ratio, Current Income shall be determined for
each period based on actual Current Income for the preceding four fiscal
quarters.
5.3 PERFORMANCE OF LOAN DOCUMENTS; FURTHER ASSURANCES. The Company will
duly and punctually perform each and every undertaking under each Loan Document
and execute and deliver all such other and further instruments, and do and
perform all such further acts and things as the Secured Party may reasonably
-17-
request to assure the rights and benefits afforded by the Loan Documents or
which are intended so to be afforded, including but not limited to rights and
benefits of any security interest therein granted.
5.4 COMPLIANCE WITH LAWS. The Company will comply with all applicable
laws, rules, regulations and orders of any governmental authority to which it
may be subject, the failure to which would (i) have a material adverse effect on
the Company or (ii) affect the validity or enforceability of the Loan Documents,
including but not limited to the payment and discharge of all taxes, assessments
and governmental charges upon it, its income and its assets and properties prior
to the dates on which penalties are attached thereto, except to the extent such
compliance shall be contested in good faith and by appropriate proceedings.
5.5 MAINTENANCE OF ASSETS; PERMITS, LICENSES, ETC. The Company will
maintain and preserve the Revenue Equipment and substantially all of its other
assets in good working order and condition, ordinary wear and tear excepted, and
will continue to possess all permits, licenses, franchises, trademarks,
copyrights, and patents necessary to the conduct of its business as conducted or
as proposed to be conducted, the failure to which would (i) have a material
adverse effect on the Company or (ii) affect the validity or enforceability of
the Loan Documents, except for its transfer of various trademarks assigned to
its wholly-owned subsidiary, CLT Services, Inc. As set forth in the definition
of "Book Value" in Section 5.2 herein, any item of Revenue Equipment which is
lost, stolen or destroyed or which is materially damaged but not repaired within
thirty (30) days shall have a Book Value of zero, but shall not otherwise
constitute a breach of this covenant by the Company.
5.6 CORPORATE EXISTENCE. The Company and Chemical Xxxxxx Corporation
each will maintain itself in good standing as a business corporation under the
jurisdiction of its incorporation and qualify and remain qualified to do
business in all jurisdictions where the nature of the business it transacts or
the character of the assets or properties owned or leased by it makes such
qualification necessary, the failure to which would (i) have a material adverse
effect on the Company or (ii) affect the validity or enforceability of the Loan
Documents.
5.7 BOOKS AND RECORDS. The Company will keep adequate records and books
of account in which complete and correct entries will be made in accordance with
generally accepted accounting principles, reflecting all its financial
transactions. The Company will permit the Secured Party, or the representative
of the Secured Party to examine and make copies of and abstracts from the
records and books of account, visit the properties of the Company, and discuss
the affairs, finances, assets and
-18-
accounts of the Company with any officer, director or other executive of the
Company.
5.8 MERGER; PURCHASE OR SALE OF ASSETS. The Company will not (a)
dissolve, (b) adopt or enter into any plan or agreement of liquidation, (c)
enter into any merger or consolidation with or acquire all or substantially all
of the assets of any other person unless the surviving entity shall be the
Company, or (d) sell or otherwise suffer a transfer of any shares of its capital
stock to any person other than Chemical Xxxxxx Corporation.
5.9 LOANS; ADVANCES. After December 31, 1992, the Borrower shall not
make any additional loans to others, except that the Borrower may make loans to
(a) the Parent in an aggregate amount not to exceed (i) an additional $6,000,000
at any time outstanding during calendar year 1993 and (ii) an additional
$3,000,000 at any time outstanding during calendar year 1994, the proceeds of
which shall be used by the Parent only to pay operating and administrative
expenses; (b) its Subsidiaries, the Parent (which shall be in addition to the
loans provided in clause (a) above) and the Parent's Subsidiaries in an
aggregate amount not to exceed $3,500,000 at any time outstanding; and (c) the
Company's owner/operators in an aggregate amount not to exceed $2,000,000 at any
time outstanding.
5.10 NATURE OF BUSINESS. The Company shall not change the nature of its
business to the extent that the Revenue Equipment would not be appropriate to
service its busness. In this regard, the Company acknowledges that (i)
currently, the nature of the Company's business is over the road haulage of bulk
products, chemicals, petroleum, natural gas and the like (the "Basic Business")
and (ii) the Company has selected and purchased the Revenue Equipment
specifically to serve the Basic Business.
XXXXXX 0
DEFAULT
6.1 EVENTS OF DEFAULT. The Company shall be in default if any one or
more of the following events ("EVENT OF DEFAULT") occurs:
(a) PRINCIPAL OR INTEREST. The Company fails to pay any
installment of principal of or interest on the Loans or the Term Loan within 5
days after the date it is due and payable (whether at maturity, by notice of
intention to prepay, or otherwise) or fails to pay within 10 days after written
notice that any other amount is due and payable under any Loan Document:
(b) NO NOTICE COVENANTS. The Company fails to observe or perform
any covenant or agreement contained in Sections 5.1,
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5.2, 5.6, 5.7, 5.8, 5.9 or 5.10 without regard to whether or not any such notice
of such failure has been given by the Secured Party;
(c) NOTICE COVENANTS. The Company fails to observe or perform any
covenant or agreement contained in any Loan Document other than those
contemplated in clause (b) above for 30 days after written notice thereof has
been given by the Secured Party specifying the default and requiring that it be
remedied;
(d) REPRESENTATIONS, WARRANTIES, ETC. Any representation or
warranty made by the Company in any Loan Document or any statement or
representation made in any certificate (including, without limitation, the
Revolving Loan Request, the Term Loan Request and the Borrowing Base
Certificates), report or opinion delivered in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
(e) CROSS DEFAULT. Any obligation of the Company or Chemical
Xxxxxx Corporation to any person for payment of money where the indebtedness
thereof exceeds $1,000,000 becomes or is declared to be due and payable prior to
its stated maturity of any event of default or event which with the passing of
time or notice or both shall have occurred the effect of which will permit the
holder of any such obligation to demand payment of such obligation prior to its
stated maturity, or any obligation of the Company or Chemical Xxxxxx Corporation
under any lease having a present value in excess of $1,000,000, whether
operating or capital in nature, shall be in default the effect of which will
permit the lease to be terminated or money damages to be collected;
(f) BANKRUPTCY, ETC. The Company or Chemical Xxxxxx Corporation
is dissolved or liquidated, makes an assignment for the benefit of creditors,
files a petition in Bankruptcy, is adjudicated insolvent or bankrupt, petitions
or applies to any tribunal for any receiver or trustee, commences any proceeding
relating to itself under any bankruptcy, reorganization, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, has commenced
against it any such proceeding which remained undismissed for a period of 60
days, indicated its consent to, approval of or acquiescence in any such
proceeding or any receiver or trustee for the Company or Chemical Xxxxxx
Corporation for any substantial part of the property of either is appointed, or
the Company or Chemical Xxxxxx Corporation suffers any such receivership or
trusteeship to continue undischarged for a period of 60 days;
(g) JUDGMENT. Any judgments against the Company or any
attachments against its assets or property for amounts in excess of $1,000,000
in the aggregate remain unpaid, unstayed on
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appeal, undischarged, unbonded and undismissed for a period of 60 days;
(h) ERISA. Any Reportable Event (as such term is defined in ERISA
or any other fact or circumstance which the Secured Party in good faith
determines constitutes ground for the termination of any employee benefit plan
maintained for employees of the Company or Chemical Xxxxxx Corporation and
covered by Title IV of ERISA or grounds for the appointment by an appropriate
United States District Court of a trustee to administer any such plan, shall
have occurred and be continuing for 5 days, or any such plan shall be terminated
within the meaning of such Title IV, or a trustee shall be appointed by the
appropriate United States District Court to administer such plan or the Pension
Benefit Guaranty Corporation shall institute proceedings to terminate any such
plan or to appoint a trustee to administer such plan, if upon the termination of
the plan or plans with respect to which any of the foregoing events shall have
occurred there is or would be, in the reasonable judgment of the Secured Party,
a material resultant liability of the Company or Chemical Xxxxxx Corporation; or
(i) OWNERSHIP. Xx. Xxxxx X. Xxxxxxxx, Xx. Xxxxxx XxXxxxxx, Mr.
Xxxx XxXxxxxx and the Estate of Xxxxxx X. Xxxxx, the members of their immediate
families, and trusts they control for the benefit of the members of their
immediate families, shall own, in the aggregate, beneficially and of record,
less than (i) fifty percent 50% of the outstanding common stock of Chemical
Xxxxxx Corporation or (ii) if and so long as Xxxxx Xxxxxxxx is the Chief
Executive Officer of Chemical Xxxxxx Corporation, thirty percent (30%) of such
stock.
THEN and in every such event other than those specified in clause (f)
above, Secured Party may, in its sole discretion, terminate the Commitment (the
date of such termination being a Termination Date as defined in Section 1.1) and
declare the Obligations payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company. Upon the
occurrence of any event specified in clause (f) above, the Commitment shall
automatically terminate the Obligations, shall immediately be due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company. If the Guaranty shall remain unfunded at such
time, Secured party shall be entitled to withhold from the proceeds of
disposition of the Revenue Equipment sufficient funds to satisfy the obligations
under the Guaranty.
-21-
SECTION 7
MISCELLANEOUS
7.1 WAIVER. No failure or delay on the part of the Secured Party or
ACONA exercising any right, power or remedy under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy under any Loan Document. The
remedies provided under the Loan Documents are cumulative and not exclusive of
any remedies provided by law.
7.2 AMENDMENTS. No amendment, modification, termination or waiver of
any Loan Document or any provision thereof nor any consent to any departure by
the Company or Chemical Xxxxxx Corporation therefrom shall be effective unless
the same shall be in writing and be signed by the Secured Party and then any
such waiver or consent shall be effective only in the specified instance and for
the specific purpose for which given. No notice to or demand on the Company
shall entitle the Company to any other or further notice or demand in similar or
other circumstances. No amendment, modification, termination or waiver shall
affect the payment of principal, interest or any fee provided herein, or change
the Commitment.
7.3 GOVERNING LAW. The Loan Documents and all rights and obligation of
the parties hereunder shall be governed by and be construed and enforced in
accordance with the laws of Pennsylvania.
7.4 ASSIGNMENT. Each Loan Document shall bind and inure to the benefit
of the Company and Secured Party and their respective successors and assigns,
except that the Company shall not have the right to assign any of its rights,
obligations or any interest of it under any Loan Document without the prior
written consent of the Secured Party. No person not a party to any Loan
Documents is intended to be benefitted thereby.
7.5 SEVERABILITY. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of such provision in any other
jurisdiction.
7.6 CAPTIONS. Captions in the Loan Documents are included for
convenience of reference only and shall not constitute a care of any Loan
Document for any other purpose.
7.7 NOTICES. All notices, requests, demands, directions, declarations
and other communications between the Secured Party
-22-
and the Company provided for in any Loan Document shall, except as otherwise
expressly provided, be mailed by registered or certified mail, return receipt
requested, or telecopied, or delivered in hand to the applicable party at its
address indicated by its signature on the signature page hereto. The foregoing
shall be effective when deposited in the mails, postage prepaid, addressed as
aforesaid and shall whenever sent by telecopy or delivered in hand be effective
when received. Any party may change its address by a communication in accordance
herewith.
7.8 EXPENSES OF THE SECURED PARTY. The Company will from time to time
reimburse the Secured Party on demand for all expenses (including the reasonable
fees and expenses of legal counsel) in connection with the preparation of the
Loan Documents, the making of any Revolving Credit Loans, the ordinary
administration of the Loan Documents, including all out-of-pocket expenses
incurred by the Secured Party with respect to obtaining, amending, or releasing
certificates of title, the enforcement of the Loan Documents, appraisals under
Section 5.2 hereof, and except for liabilities and damages arising from the
Secured Party breach of this Agreement or any Loan Document, all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and costs
expenses and disbursements which may be imposed on, incurred by or asserted
against the Secured Party in any way relating or arising out of this Agreement
or any Loan Document or any action taken or omitted by the Secured Party
hereunder or thereunder.
7.9 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendment
hereto or waiver hereof may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement and any amendments
hereto or waivers hereof shall become effective when the Secured Party shall
have received signed counterparts or notices by telecopy of the signature page
that the counterpart has been signed and is being delivered to the Secured Party
or telex that such counterparts have been signed by all of the parties hereto or
thereto.
7.10 FINANCING STATEMENTS. Secured Party has filed against the Company
financing statements with collateral descriptions covering all of the Company's
present and future trailers and semi-trailers. In the event the Company (i)
seeks financing from a source other than Secured Party and such source requires
as a condition to such financing a lien against trailers and semi-trailers other
than the Revenue Equipment (the "Additional Equipment"), or (ii) elects to sell,
transfer or otherwise dispose of any item of Additional Equipment, upon the
Company's written request Secured Party agrees to promptly release its interest
in the Additional Equipment and execute and deliver to the Company such
documents and instruments as the Company may
-23-
reasonably request to evidence such release. The agreement within this Section
shall not be construed as waiver of any of the terms and conditions of this
Agreement.
7.11 CONFIRMATION. This Amended and Restated Revolving Credit Agreement
does not create or evidence new indebtedness but merely amends and restates the
terms and provisions of the Revolving Credit Agreement.
IN WITNESS WHEREOF, the Company and the Secured Party have caused this
Agreement to be executed by their proper corporate officers thereunto duly
authorized as of the day and year first above written.
000 Xxxxxxxxx Xxx CHEMICAL XXXXXX TANK LINES, INC.
Xxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxxx, Xx. By: /s/ [ILLEGIBLE]
Telecopy #: (000) 000-0000 ----------------------------------
Title:
-------------------------------
000 X. Xxxxxxxxx Xxxxxxx ASSOCIATES COMMERCIAL CORPORATION
Xxxxxx, Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxxxxxx By: /s/ X.X. Xxxxxxxxxxxx
Telecopy #: (000) 000-0000 ---------------------------------
Title: Senior Vice President
-------------------------------
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LIST OF EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
1 ACONA Limited Guaranty
2 Guaranty Request
3 ACONA/Secured Party Indemnity
4 Revolving Loan Request
5 Borrowing Base Certificate
6 Term Loan Request
7 Exceptions to Business Qualification
8 List of Regulated States
9 Board Resolution
10 Exceptions to Authorization Covenants
11 Litigation
12 Exceptions to No Material Adverse Change Covenant
13 Supplemental Schedule A to Security Agreement
-25-
LIMITED GUARANTY
(Letter of Credit)
Issuing Bank
xxxxx xxxxxx xxxx xxxx xxxxx
Beneficary Amount
U.S. Dollars
($ )
Application for Letter of Credit Expiry Date:
Dated:
(herein called the Application)
Applicant has requested that Bank extend financial accommodations to
Applicant by issuing the commerical or standby letter of credit described in the
Application for Applicants account and by honoring or accepting drafts drawn in
accordance with such letter of credit. In order to induce Bank to extend such
financial accommodation to Applicant, Associates Corporation of North American
("ACONA:) hereby guarantees the full payment when due, upon five (5) days
written demand from Bank to ACONA, of all of the obligations of Applicant to
Bank described below, provided however, that ACONIA obligation to Bank hereunder
is limited to a maximum of United States Dollars ($ ). As
used herein, "Obligations" shall mean and refer to (a) all debts, liabilities
and obligations of Applicant to Bank owing in conjunction with the letter of
credit described in the Application and (b) all debts, liabilites and
obligations of Applicant with respect to any drafts honored and or accepted by
Bank in accordance with such letter of credit. A copy of the Application is
attached hereto as Exhibit A, incorporated herein by this reference, and made a
part hereof.
Except as may be specifically provided herein, this is an absolute,
unconditional guaranty of payment and not of collectibility. This Guaranty is
limited in amounts specific and applies only to the Obligations of the
Applicant described above. Under no circumstances shall this Guaranty be
construed as a continuing guaranty, a guaranty in excess of the stated maximum,
or a guaranty of any other indebtedness of Applicant to Bank.
1. Bank shall not, without the prior written consent of ACONA,
renew, extend, refund, modify or amend the terms of any Application, the letter
of credit itself or any acceptance(s) created or drawn in accordance with the
Application, or in any manner surrender, release, or otherwise discharge the
Applicant from Applicant's Obligations with respect thereto, other than upon
receipt by Bank of payment or settlement in full. Only one or more of the
following individual's is authorized to execute any such consent on behalf of
ACONA:
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
(Specimen Signature)
Bank shall not, without prior written notice to ACONA, exercise any of its
rights against the Applicant, any collateral or security for the Obligations of
Applicant guaranteed hereunder, or as against any other party primarily or
secondarily liable with respect to the Obligations guaranteed hereunder. Bank
may apply the proceeds of any collateral or security (other than any sums
received pursuant to this Guaranty) to any indebtedness of Applicant to Bank as
permitted by the terms of the security agreement(s) between Applicant and Bank
and in such order as it may elect without any requirement to account to ACONA
for the order or authorization.
2. Bank shall not be required, as a condition of this Guaranty,
(i) to proceed against the Applicant by suit or otherwise; (ii) to obtain,
perfect an interest in, foreclose, proceed against, liquidate or exhaust any
collateral securing the Obligations of Applicant to Bank: or (iii) to exercise,
pursue or enforce any remedy Bank may have against the Applicant, any other
guarantor of the Obligations of the Applicant or any other party. The liability
of ACONA hereunder is not conditioned or contingent upon the validity,
sufficency or enforceability of any agreement evidencing the Obligations of
Applicant or any collateral or security therefor or guarantees thereof. ACONA
shall not avail itself of any defense which the Applicant may have against Bank
other than (i) the full payment to or settlement of the Obligations guaranteed
hereunder, and/or (ii) the wrongful honoring or accepting by Bank of drafts
drawn in conjunction with the letter of credit.
3. ACONA shall have no right of subrogation to the rights of Bank
hereunder, nor any right to participate in any collateral held by Bank, on
account of payment by it of certain of the Obligations guaranteed hereunder,
unless all Obligations of Applicant to Bank guaranteed hereunder have been paid
in full. Upon payment in full by ACONA, Bank will assign and transfer all of
Bank's rights as against Applicant with respect to such Obligations to ACONA, or
to a subsidiary of ACONA designated by ACONA, "without recourse or warranty,
express or implied," and will endorse and delver all documents, instruments,
xxxx of lading, and or documents of title, either establishing such Obligations
or created, issued or received in connection therewith. Bank hereby agrees that,
until such time as any document, instrument, xxxx of lading and, or document of
title received by Bank in connection with the letter of credit described in the
Application is delivered to Applicant in accordance with such letter of credit.
Bank shall hold any such document, instrument, xxxx of lading and/or document of
title as balance for ACONA and its subsidiaries, as well as for Bank's own
purposes, and not as agent or bailee of Applicant.
4. ACONA represents to Bank that the execution and performance
of this Guaranty have been duly authorized by all necessary corporate action,
that this Guaranty is issued in conjunction with the business operations of a
commercial finance subsidiary of ACONA and that the amount of the Obligations
guaranteed hereunder is and shall continue to be within all dollar limitations
from time to time approved by resolution of the Board of Directors or the
Executive Committee of the Board of Directors of ACONA for guarantees of this
type. Upon request of Bank, ACONA hereby agrees to provide Bank with a copy of
the applicable resolutions certified by the Secretary or an Assistant Secretary
of ACONA.
5. This Guaranty shall inure to the benefit of and may be
enforced by Bank, its successors and assigns and any party to whom all or any
part of the Obligations guaranteed hereunder may be transferred, negotiated or
assigned. If a portion of the Obligations guaranteed hereunder is sold,
transferred or negotiated, Bank shall have the right to enforce this Guaranty as
to the remaining portion of the Obligations.
6. ACONA hereby waives notice of acceptance of this Guaranty and
it shall be conclusively presumed that the issuance by Bank of the letter of
credit described in the Application and/or the honoring or accepting of drafts
in accordance with its terms was made, honored or accepted in reliance upon this
Guaranty.
7. The obligations of ACONA to Bank hereunder shall automatically
terminate upon the early of (a) full payment or settlement in full of the
Obligation guaranteed hereunder or (b) the Expiry Date. Any demand for payment
by Bank to ACONA hereunder must be in writing and must be sent to:
Associates Corporation of North America
c/o Associates Commercial Corporation
Attention:
8. This Guaranty shall be governed, construed and enforced in
accordance with the laws of the State of Illinois. Each provision of this
Guaranty is intended receivable. In the event that any provision hereof shall be
deemed to be invalid by reason of the operation of any law or by reason of any
interpretation placed in by any court, this Guaranty shall be construed as not
containing such provision and the invalidity of such provision shall not affect
the validity of any other provision hereof and any and all provisions hereof
which are otherwise lawful and valid shall remain in full force and effect.
In Witness Whereof, Associates Corporation of North America has executed
this Limited Guaranty this ______day of ___________________________.
Attest: Associates Corporation of North America
By By
--------------------------------- --------------------------------------
EXHIBIT 1 TO AMENDED AND RESTATES REVOLVING CREDIT AGREEMENT
EXHIBIT 2 MADE TO AND FORMING A PART OF THE AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT DATED JANUARY 1, 1994
GUARANTY REQUEST
TO: Associates Commercial Corporation
Chemical Xxxxxx Tank Lines, Inc. ("Company") hereby requests
Associates Commercial Corporation ("Secured Party") to cause Associates
Corporation of North America to issue a Limited Guaranty (the "Guaranty") to
____________________________________________________________________________ in
the form attached, as Exhibit 1, to the Amended and Restated Revolving Credit
Agreement dated October 15, 1993 between Company and Secured Party which amends
that certain Revolving Credit Agreement dated November 30, 1990 between Company
and Secured Party (as amended the "Revolving Credit Agreement"). The Guaranty
shall be in the amount of $________. The Company's rights and obligations
regarding the Guaranty are subject to the Revolving Credit Agreement.
The undersigned, on behalf of Company, represents and warrants to
Secured Party that:
1. Company has not directly or indirectly violated any of the
provisions of the Revolving Credit Agreement and has performed and will continue
to perform all of Company's obligations under the Revolving Credit Agreement in
accordance with the terms thereof; and
2. Each representation and warranty contained in the Revolving
Credit Agreement is true and correct as of the date hereof.
Attached hereto is a Borrowing Base Certificate bearing even date
herewith.
Dated:
------------------------------
CHEMICAL XXXXXX TANK LINES, INC.
By:
---------------------------------
Title:
------------------------------
EXHIBIT 3 MADE TO AND FORMING A PART OF THE AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT DATED JANUARY 1, 1994
INDEMNIFICATION LETTER
Date:
----------------------
Associates Corporation of North America
000 X. Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
Gentlemen:
Associates Commercial Corporation ("ACC") hereby requests that, as a
financial accommodation to ACC, Associates Corporation of North America
("ACONA") execute and deliver its guaranty of payment of indebtedness owed by
Chemical Xxxxxx Tank Lines, Inc. (the "Company") to ___________________________
(the "Bank") which will issue a letter of credit to Home Indemnity Company for
the account of the Company. Such guaranty shall be similar in form and substance
to the Limited Guaranty attached hereto.
In consideration of ACONA's issuance of such guaranty and any
renewals thereof, ACC hereby absolutely and unconditionally agrees to indemnify
and hold ACONA harmless from and against any loss, damage, expense, liability or
payment arising by reason of the performance or the making of any payment,
whether to the Bank or any other party, under such guaranty, including, without
limitation, any liability arising as a result of a preference under Section 547
of the Bankruptcy Code caused by issuance of or performance under such guaranty,
and further agrees to either provide ACONA with all funds necessary to honor
such guaranty, to reimburse ACONA for any sums ACONA may be required to advance
pursuant to such guaranty, or to advance directly to the Bank the funds
necessary to honor such guaranty.
Very truly yours,
ASSOCIATES COMMERCIAL CORPORATION
By:
----------------------------------------
Title:
------------------------------------
EXHIBIT 4 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
REVOLVING LOAN REQUEST
Date:
-----------------
TO: Associates Commercial Corporation
A. Request. Chemical Xxxxxx Tank Lines, Inc. ("Company") hereby
requests Associates Commercial Corporation ("Secured Party") to make a loan
("Loan") to Company in the principal amount of _____________________ Dollars
($________) ("Principal Amount") pursuant to that certain Revolving Credit
Agreement between Company and Secured Party dated __________________, 1990 (the
"Revolving Credit Agreement"). The Loan requested hereunder is a Revolving
Credit Loan, as defined in the Revolving Credit Agreement and is subject
thereto.
B. REPRESENTATIONS AND WARRANTIES. The undersigned, on behalf of
Company, represents and warrants to Secured Party that:
1. Company has not directly or indirectly violated any of the
provisions of the Revolving Credit Agreement and has performed and will continue
to perform all of Company's obligations under the Revolving Credit Agreement in
accordance with the terms thereof;
2. the Loan will be utilized by Company for purposes in the
ordinary course of its business and the Loan will not be utilized for
shareholder loans, stock redemption or other purposes not in the ordinary course
of Company's business; and
3. each representation and warranty contained in the Revolving
credit Agreement is true and correct as of the date hereof.
C. REPAYMENT. If the conditions precedent to the Loan as set forth in
the Revolving Credit Agreement are met and Secured Party advances the Loan
proceeds requested hereunder, Company promises to pay to Secured Party at 000 X.
Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, or such other place as Secured Party may
designate in writing, the Loan in the following manner:
The Principal Amount, together with all accrued and unpaid interest,
shall be payable on ___________, 1991. Interest before maturity shall be payable
monthly on the unpaid Principal Amount, at the Governing Rate (as defined
below). The first interest payment shall be payable on ______________ and
subsequent interest payments shall be payable on the like date of each month
thereafter. Mandatory prepayments hereunder may be required pursuant to the
Revolving Credit Agreement.
The "Governing Rate" shall mean a simple interest per annum rate equal
to the fixed rate of 1% plus the Prime Rate (as defined below) in effect as of
the first business day of each month, but in no event shall the Governing Rate
exceed 13% simple interest per annum or be less than 9.5% simple interest per
annum.
The "Prime Rate" shall mean the per annum lending rate publicly
announced from time to time by Philadelphia National Bank (or any successor
bank(s) thereof) as the base rate for unsecured short term business loans, such
rate being the rate presently referred to by some banks as its base rate or as
its reference rate or as its corporate base rate or as its prime rate for
unsecured loans of the shortest maturity to corporate borrowers.
The Governing Rate hereunder shall be computed at the option of Secured
Party on the basis of a 360-day year for the actual number of days elapsed. All
payments may at the option of Secured Party be applied first to delinquency
charges, then to interest, and then to principal. The acceptance by Secured
Party of any payment which is less than payment in full of all amounts due and
owing at such time shall not constitute a waiver of the Secured Party's right to
receive payment in full at such or at any other time.
Time is of the essence hereof. Upon failure of the Company to make any
payment on its due date, or upon the occurrence of an event of default or other
breach of any of the provisions of the Revolving Credit Agreement or any other
instrument or agreement by the Company to Secured Party (collectively the
"Documents") and at any time thereafter as long as the default continues,
Secured Party may, at its option, with or without notice to the Company (which
notice of intention to accelerate is hereby expressly waived by Company),
declare all remaining payments to be immediately due and payable, with interest
thereon at a per annum rate of 3% plus the Prime Rate, if not prohibited by law,
otherwise at the highest rate that the Company can legally obligate itself to
pay and/or Secured Party can legally collect (the "Default Rate"). In the event
of a default as described above, the Default Rate will accrue from the date of
such default until such time as no event of default shall exist, regardless of
whether or not the amounts owing hereunder have been accelerated.
The Company and all sureties, endorsers, guarantors and any others who
may at any time become liable for the payment hereof hereby consent to any and
all extensions of time, renewals, waivers and modifications of, and
substitutions or releases of security or of any party primarily or secondarily
liable on, or with respect to, this Request or the Documents or any of the
terms, conditions and provisions of either, without limitation as to the number
or the periods thereof, that may be made, granted or consented to by Secured
Party, and agree that suit may be brought and maintained against any one or more
of them, at the election of Secured Party, without joinder of the others as
parties thereto, and that Secured Party shall not be required to first
foreclose, proceed against, or exhaust any security hereof in order to enforce
payment by them, or any one or more of them, of this Request. The Company and
all sureties, endorsers, guarantors and any others who may at any time become
liable for the payment hereof severally waive presentment, demand for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor, and all
other notices in connection with this Request, filing of suit and diligence in
collecting this Request or enforcing any of the security herefor, and agree to
pay, if permitted by law, all expenses incurred in collection, including the
reasonable fees of any attorneys retained by Secured Party (20% of the amount
then due, or if probited by law, such lesser sum as may not be so prohibited),
and hereby waive all benefits of valuation, appraisement and exemption laws. The
Company and all sureties, endorsers, guarantors and any others who may at any
time become liable for the payment of the indebtedness evidenced by this Request
hereby agree that Secured Party may bring any legal proceedings it deems
necessary to enforce the payment and performance of the obligations of the
Company under this Request and under the Documents in any court in the state
shown above in which this Request is payable, and service of process may be made
upon each of them by mailing a copy of the summons to such person at its
address last known to Secured Party.
Any provisions hereof contrary to, prohibited by or invalid under
applicable laws or regulations shall be inapplicable and deemed omitted
herefrom, but shall not invalidate the remaining provisions hereof.
Notwithstanding any other provision to the contrary set forth herein,
if at any time implementation of any provision hereof shall raise the interest
rate herein above the lawful maximum, if any, in affect from time to time in the
applicable jurisdiction for loans to borrowers of the type, in the amount, for
the purposes, and otherwise of the kind herein contemplated, then such interest
rate shall be limited to such lawful maximum and any excess interest
inadvertently collected shall be deemed to be a partial prepayment of principal
and so applied.
This Request shall be subject to, governed and construed according to
the laws of the state of Pennsylvania.
This Request and amounts owing hereunder are secured by the collateral
described in the Revolving Credit Agreement and in the related security
agreements, and is subject to the terms of Revolving Credit Agreement.
CHEMICAL XXXXXX TANK LINES, INC.
By:
-------------------------------- -----------------------------------
Witness
Title:
--------------------------------
EXHIBIT 5 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
BORROWING BASE
CERTIFICATE #
(AS OF )
BORROWING BASE:
1. Total net appraised value of revenue equipment
(from line #6 of certificate #____________). $
--------------
ADDITIONS:
2. Net appraised or agreed value of revenue
equipment pledged since certificate #____________). $
--------------
3. Refurbishments completed since certificate
#_______________(x) 80%. $
--------------
DEDUCTIONS:
4. Net appraised value of revenue equipment
destroyed or otherwise deleted since
certificate #_______________________. $
--------------
5. Monthly depreciation of revenue equipment on
line 1 net of line 4. $
--------------
6. Sub-total (lines 1 + 2 + 3 - 4 - 5). $
--------------
7. Borrowing base (line 6 x 85%). $
--------------
STATUS OF LOANS AND LETTERS OF GUARANTY:
8. Present outstanding loan balance. $
--------------
9. Present outstanding letters of guaranty. $
--------------
10. Present total loans and letters of
guaranty. $
--------------
ADDITIONAL ADVANCE AND/OR LETTER OF GUARANTY REQUEST:
11. Additional loans requested. $
--------------
12. Additional letter of guaranty requested. $
--------------
13. Proposed total loans letters of guaranty
(lines 10 + 11 + 12). $
--------------
14. Proposed unused availability (lines 7-13). $
--------------
We hereby certify that the foregoing statement of our pledged assets
and loan liabilities are true and correct and according to the records of the
undersigned and that all certificates heretofore or herewith made by the
undersigned concerning the assets and liabilities are true and correct and the
assets are collateral for loans and letters of guaranty from Associates
Commercial Corporation and Associates Corporation of North America.
Borrower: Chemical Xxxxxx Tank Lines, Inc.
Date: By:
----------------------- ----------------------------------------
Title:
------------------------------------
EXHIBIT 6 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
TERM LOAN REQUEST
Date:
-----------------
TO: Associates Commercial Corporation
A. Request. Chemical Xxxxxx Tank Lines, Inc. ("Company") hereby
requests Associates Commercial Corporation ("Secured Party") to extend the
payment terms of all Revolving Credit Loans (as defined in that certain
Revolving Credit Agreement dated November 30, 1990 between Company and Secured
Party, referred to herein as the "Revolving Credit Agreement") pursuant to the
terms of the Revolving credit Agreement. The principal balance of all Revolving
Credit Loans as of the date hereof is _______________________ Dollars
($___________) (the "Term Loan Amount"). The extension requested hereunder
evidences the "Term Loan" as defined in the Revolving Credit Agreement.
B. Representations and Warranties. The undersigned, on behalf of
Company, represents and warrants to secured Party that:
1. Company has not directly or indirectly violated any of the
provisions of the Revolving Credit Agreement and has performed and will continue
to perform all of Company's obligations under the Revolving Credit Agreement in
accordance with the terms thereof;
2. the Term Loan Amount will continue to be utilized by Company
for purposes in the ordinary course of its business and the Term Loan Amount
will not be utilized for shareholder loans, stock redemption or other purposes
not in the ordinary course of Company's business; and
3. each representation and warranty contained the Revolving
Credit Agreement is true and correct as of the date hereof.
C. Repayment. If the conditions precedent to the Term Loan as set forth
in the Revolving Credit Agreement are met and Secured Party agrees to the
extension requested hereunder, Company promises to pay to Secured Party at 000
X. Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, or such other place as Secured Party
may designate in writing, the Term Loan Amount in the following manner:
The Term Loan Amount shall be paid in 48 installments with
$______________ payable on January 1, 1992, and the like sum payable on the like
date of each month thereafter until fully paid, provided, that the final
installment shall be in the amount of the remaining unpaid balance, and with
interest before maturity at the Governing Rate (as defined below) payable
monthly on unpaid principal balances.
The "Governing Rate" shall mean a simple interest per annum rate equal
to the fixed rate of 1% plus the Prime Rate (as defined below) in effect as of
the first business day of each month, but in no event shall the Governing Rate
exceed 13% simple interest per annum or be less than 9.5% simple interest per
annum.
The "Prime Rate" shall mean the per annum lending rate publicly
announced from time to time by Philadelphia National Bank (or any successor
bank(s) thereof) as the base rate for unsecured short term business loans, such
rate being the rate presently referred to by some banks as its base rate or as
its prime rate for unsecured loans of the shortest maturity to corporate
borrowers.
The Governing Rate hereunder shall be computed at the option of the
Secured Party on the basis of a 360-day year for the actual number of days
elapsed. All payments may at the option of the Secured Party be applied first to
delinquency charges, then to interest, and then to principal. The acceptance by
the Secured Party of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of the Secured
Party's right to receive payment in full at such or at any other time.
Time is of the essence hereof. Upon failure of the Company to make any
payment on its due date, or upon the occurrence of an event of default or other
breach of any of the provisions of the Revolving Credit Agreement or any other
instrument or agreement by the Company to Secured Party (collectively the
"Documents") and at any time thereafter as long as the default continues, the
Secured Party may, at its option, with or without notice to the Company (which
notice of intention to accelerate is hereby expressly waived by Company),
declare all remaining payments to be immediately due and payable, with interest
thereon at a per annum rate of 3% plus the Prime Rate, if not prohibited by law,
otherwise at the highest rate that the Company can legally obligate itself to
pay and/or the Secured Party can legally collect (the "Default Rate"). In the
event of a default as described above, the "Default Rate"). In the event of a
default as described above, the Default Rate will accrue from the date of such
default until such time as no event of default shall exist, regardless of
whether or not the amounts owing hereunder have been accelerated.
The Company and all sureties, endorsers, guarantors and any others who
may at any time become liable for the payment hereof hereby consent to any and
all extensions of time, renewals, waivers and modifications of, and
substitutions or releases of security or of any party primarily or secondarily
liable on, or with respect to, this Request or the Documents or any of the
terms, conditions and provisions of either, without limitation as to the number
or the periods thereof, that may be made, granted or consented to by
EXHIBIT 7 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
EXCEPTIONS TO BUSINESS QUALIFICATION
NONE
EXHIBIT 8 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
LIST OF REGULATED STATES
The Company has applied for and received authority to engage in
intra-state authority in the following states:
Alabama Maryland Ohio
California Massachusetts Oklahoma
Connecticut Michigan Pennsylvania
Delaware Missouri Rhode Island
Georgia Nevada South Carolina
Illinois New Hampshire Tennessee
Indiana New York Texas
Kentucky North Carolina West Virginia
Louisiana
The following states do not regulate intra-state authority and,
therefore, the Company is not required to apply for authority to engage in
intra-state activities:
Delaware
Florida
Maine
New Jersey -
Vermont
Washington D.C.
EXHIBIT 9 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
CHEMICAL XXXXXX TANK LINES, INC.
ACTION BY UNANIMOUS CONSENT
NOVEMBER 29, 1990
The Undersigned, being all of the members of the Board of Directors of
CHEMICAL XXXXXX TANK LINES, INC., a Delaware corporation (the "Company"), do
hereby unanimously consent that the following resolutions shall have the same
force and effect as if duly adopted by a duly convened meeting of the Board of
Directors:
RESOLVED, that the Revolving Credit Agreement by and between the
Company and Associates Commercial Corporation ("Associates"), substantially in
the form circulated herewith (the "Associates Revolving Credit Agreement"), is
hereby authorized and approved; and be it further
RESOLVED, that the President and any Vice President, the Secretary, and
either of the Assistant Secretaries of the Company, or any of them, be, and each
of them hereby is, authorized to execute and deliver to Associates the
Associates Revolving Credit Agreement and any loan request, security agreement
and any other document, contemplated thereby in the forms hereby approved or
with other document, contemplated thereby in the forms hereby approved or with
such changes as the officer or officers executing the same shall approve, such
approval to be conclusively evidenced by such officer's or officers' execution
and delivery of the same; and any such action taken by any such officer prior to
the date of these resolutions is hereby ratified and approved; and be it further
RESOLVED, that the officers of the Company be, and each of them hereby
is, authorized to do all such other acts and things, execute and deliver all
such other documents and give all such other assurances as may be necessary or
desirable to carry out the transactions contemplated by the Associates Revolving
Credit Agreement, and any extensions, renewals, or modifications of any of the
terms or provisions of the Revolving Credit Agreement (provided that the Board
of Director's approval shall be required for action increasing the credit line
under said agreement), and to perform the obligations of the Company under the
documents authorized therein, the doing of any such act or thing, or the
execution and delivery of any such document, or the giving of any such assurance
to be conclusive evidence of the necessity or desirability thereof.
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
EXHIBIT 10 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
EXCEPTIONS TO AUTHORIZATION COVENANTS
North Carolina Utilities Commission
Pennsylvania Public Utilities Commission
EXHIBIT 11 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
LITIGATION
The Company is involved in litigation from time to time in the ordinary
course of its business principally involving the following primary areas: (i)
environmental; (ii) traffic accidents involving its drivers; (iii) disputes with
current or former employees or independent contractors, including workers'
compensation claims, termination claims and compensation claims; and (iv) claims
by shippers regarding contamination of shipments or other alleged
non-performance by the Company under shipment contracts.
Without limiting the generality of the foregoing, the Company is
involved ln the following litigation:
(a) Branford Terminal: On September 8, 1991, product owned by Synthetic
Products Company in a tank truck operated by Company reacted and was released at
Company's Branford, Connecticut facility. Company believes Synthetic Products to
have been the sole cause of the release. On March 23, 1993, Company and
Synthetic Products each paid the Connecticut Department of Environmental
Protection ("DEP") $81,585.09 to reimburse expenses incurred by DEP responding
to the release In addition, other claims for personal injury and/or property
damage have been asserted as a result of the release. Company has settled
several such claims for de minimis amounts. Company has reserved its right to
seek recovery from Synthetic Products of all or part of amounts Company has paid
in settlement.
(b) Rose Orchards: On February 13, 1992, Rose Orchards filed suit
against Company and Synthetic Products in the United States District Court for
the District of Connecticut seeking damages allegedly sustained as a result of
the tanker release Company's Branford, Connecticut facility described above. On
June 22, 1992, Atlas Fence Company filed a similar suit against Company and
Synthetic Products. In both cases, which were subsequently consolidated for
discovery, Company filed an answer denying liability and cross claims against
Synthetic Products seeking damages and indemnity in connection with the Branford
incident. In December, 1992, Company and Synthetic Products each paid $58,750.00
in settlement of Atlas Fence's claims. On April 2, 1993, Company and Synthetic
Products each paid $315,000 in settlement of Rose Orchards' claims. Company has
reserved its right to seek recovery from Synthetic Products of all or part of
amounts Company has paid in settlement.
(c) Xxxxxxx: On February 28, 1993 Company received a written notice
from attorneys representing Xxxxx Xxxxxxx, a minor, stating that he and his
immediate family intended to
Exhibit 11 - 1
pursue claims against Company and Synthetic Products for birth defects and
other personal injury allegedly caused by the Branford release. As noted above,
Company believes Synthetic Products have been the sole cause of the release. At
this time, it would be speculative to predict the nature or extent of Company's
potential exposure in this matter.
(d) Xxxx X. Xxxxx.
In September, 1990, the Company was served with a Notice of Charge of
Discrimination filed by an unsuccessful job applicant by the name of Xxxx X.
Xxxxx alleging that he had been discriminated against on the basis of his age.
The Notice of Charge was not accompanied by a charge itself, but the EEOC has
nevertheless proceeded to investigate the matter. The Company has vigorously
opposed this claim and submitted a position statement with supporting
documentation indicating that there were legitimate business reasons unrelated
to Xx. Xxxxx' age for the Company's decision not to hire him as a truck driver.
In addition, the Company has submitted documentation in response to an EEOC
information request establishing that it has also declined to hire other
applicants who were similarly situated to Xx. Xxxxx without regard to age.
The EEOC issued a Determination on June 30, 1991 finding that there was
no reasonable cause to believe that the Company had discriminated against Xx.
Xxxxx, and the EEOC accordingly terminated its investigation of this matter.
Under federal law, Xx. Xxxxx had two years from the date of the allegedly
discriminatory hiring decision (three years in the case of willful violations)
to bring suit in federal court on his claim of age discrimination. The
employment decision in question is alleged to have occurred on or about June 1,
1990, so that the two year limitations period has already expired. While the
Company has no information to date indicating that Xx. Xxxxx has or that he
intends to file suit on this claim, because the longer limitations period
governing violations that are alleged to be willful has not yet run, it would
still be theoretically possible for Xx. Xxxxx to do so.
Should Xx. Xxxxx decide to bring suit, the Company believes that there
are potentially meritorious defenses available to the Company. Furthermore, the
Company believes that Xx. Xxxxx' failure to perfect his EEOC charge and to bring
suit within the two year limitations period further reduces the prospect of a
successful suit on his part. Nevertheless, the Company is unable to state at
this time whether an outcome unfavorable to it is either probable or remote if
suit should be brought, nor can it estimate the amount or range of loss in the
event of an unfavorable outcome.
(e) Xxxxxxx.
Exhibit 11 - 2
In January 1992, complainant Xxxxxx Xxxxxxx filed a charge of sex
discrimination with the Equal Employment Opportunity Commission ("EEOC") against
the Company. Xxxxxxx alleges in her charge that she was an applicant for a truck
driver position at the Company's terminal in Clute, Texas and that she was
denied employment because of her sex in violation of Title VII of the Civil
Rights Act. No damages are specified in the charge. The EEOC has submitted
discovery requests related to the charge to the Company.
The Company has vigorously opposed this claim, by submitting a Position
Statement with supporting documentation indicating that there were legitimate
business reasons unrelated to Xx. Xxxxxxx'x sex for the Company's decision not
to hire her as a truck driver. In addition, the Company has submitted additional
documentation in response to an EEOC information request relating to other
individuals hired at the trucking terminal at which Xx. Xxxxxxx applied.
The Company believes that there are potentially meritorious defenses
available to it. Nevertheless, the case is still in its investigatory stage, and
the EEOC has not yet rendered any determination. Therefore, the Company unable
to state at this time whether an outcome unfavorable to it is either probable or
remote, nor can it estimate the amount or range of loss in the event of an
unfavorable outcome.
(f) Xxxxxxx.
Plaintiff Xxxxxxxx Xxxxxxx has filed a two-count civil action against
the Company in the United States District Court for the Southern District of
Texas. In the first count, Xxxxxxx claims that she was an employee of the
Company and that the Company committed unlawful sex discrimination in violation
of Title VII of the Civil Rights Act by "terminating" her as a truck driver. In
the second count, Xxxxxxx claims that the Company intentionally interfered with
her business relationships or attempted business relationships with some
prospective employers. The prospective employers, who are six other trucking
companies, had also been named as defendants in this case, but have since been
dismissed from the action. Plaintiff Xxxxxxx is seeking, among other things,
unspecified amounts of back pay, front pay, damages for mental anguish and
exemplary damages.
Discovery in this matter is proceeding, and the Company intends to
defend vigorously this litigation. A trial date of July 12, 1993 has been set by
the Court in its original scheduling order. At this point in the litigation, is
unable to state whether an outcome unfavorable to the Company is either probable
or remote nor can it estimate the amount or range or loss in the event of an
unfavorable outcome.
Exhibit 11 - 3
(g) Xxxxxxxxxxx and Matie.
Xxxxxxxx Xxxxxxxxxxx ("Xxxxxxxxxxx") and Xxxxxx Xxxxx ("Matie") were
employed by Triple R Transportation ("Triple R"), a fleet operator which leased
trucks and drivers to Chemical Xxxxxx Tank Lines, Inc. Xxxxxxxxxxx and Matie
both sustained work-related injuries, and filed workers' compensation claims
against Triple R. Triple R was not insured, and has not satisfied the
Xxxxxxxxxxx or Matie claims. Triple R was liquidated and no longer exists as a
corporate entity. When Triple R failed to make workers' compensation payments in
these cases, a criminal action was brought against the individual who owned
and/or managed Triple R. While that criminal action resulted in a judgment
against the individual, the individual responded with a bankruptcy petition that
apparently overrode any payment obligations arising out of the criminal action.
Xxxxxxxxxxx and Matie also asserted claims against the Company arguing
that the Company is their statutory employer under the Pennsylvania Workers
Compensation Act and therefore responsible for satisfying their claims. The
Company agreed to a stipulated resolution of such claims and is paying both
claimants monthly the amounts they are due under the Acts.
(h) Xxxx X. Xxxxxx.
Xxxx X. Xxxxxx, a truck driver, filed an action against his former
employer, Xxxxx Xxxx Truck Rentals, Inc. ("Xxxxx Xxxx") and the Company alleging
that Xxxxx Xxxx and the Company wrongfully discharged him in violation of public
policy after he refused to operate a vehicle he alleged failed to comply with
state and federal safety regulations. In his complaint, plaintiff sought an
unspecified amount of compensatory and punitive damages against both defendants.
A trial was held on August 13-21, 1992. At the close of the plaintiff's
case, the Court granted defendants' motions for directed verdicts and dismissed
all claims against both defendants. The plaintiff then filed a Notice of Appeal,
and both defendants cross-appealed. Currently, the parties are in the midst of
preparing their appellate briefs. While the Company has a strong position on
appeal, the Company is not able to state at this point whether an outcome
unfavorable to the Company is either probable or remote, nor estimate the amount
or range of loss in the event of an unfavorable outcome.
(i) Xxxxx X. Xxxxxx.
In late 1991, the Company received correspondence from the attorney for
a terminated lease operator, Xxxxx X. Xxxxxx, threatening to bring suit for
wrongful termination, and for alleged damage to Xx. Xxxxxx' truck and his
reputation. In or
Exhibit 11 - 4
about April 1992, the matter appeared to have been settled for $3,000, and
counsel for the Company drafted and sent settlement papers to Xx. Xxxxxx'
attorney. However, on April 30, 1992, Xx. Xxxxxx' attorney, in a letter to the
Company's counsel, purported to reject the settlement. Counsel for the Company
responded in writing that the agreement to settle the matter was binding and
enforceable. There have been no further communications between counsel for the
Company and Xx. Xxxxxx or his attorney, and no claim has been filed on Xx.
Xxxxxx' behalf.
(j) Xxxxxxx Xxxxx.
An employee of the Company, Xxxxxxx Xxxxx, filed a complaint on
November 16, 1991 alleging a violation of Section 405 of the Surface
Transportation Act and Section ll(c) of the Occupational Safety and Health Act.
The employee alleges that he was suspended for complaining about safety hazards.
The Company intends to defend vigorously this complaint. At the present time,
the Company is unable to state whether an outcome unfavorable to the Company is
either probable or remote, nor can it estimate the amount or range of loss in
the event of an unfavorable outcome.
On May 14, 1992, Xxxxx filed a Complaint with the Wage and Hour
Division, U.S. Department of Labor, alleging that he was discharged for
reporting hazardous waste dumping, in violation of the employee protection
("whistleblower") provision of CERCLA, 42 U.S.C. ss. 9610. At this point in the
proceedings, the Company is not able to state whether an outcome unfavorable to
the Company is either probably or remote.
(k) Environmental Litigation. The following is a summary of the
environmental litigation in which the Company is involved in:
For a number of years, the Company has been involved in discussions and
negotiations with various Federal and state environmental authorities regarding
two properties, one currently owned by the Company in New Jersey and one
previously used by the Company in Pennsylvania, both of which have been
designated as Superfund sites (the "Sites") by the United States Environmental
Protection Agency ("EPA"), regarding the Company's prior waste disposal
practices at the Sites conducted as part of its normal business operations.
Subsequent to the termination of the Company's former waste disposal
practices at the Sites, ground water contamination was discovered at the Sites,
and for the last seven years the Company has discussed such contamination with
various Federal and state environmental regulatory authorities, including the
EPA, in an attempt to develop an acceptable remediation program for such
contamination. During this seven year period, the Company has expended
substantial funds for consulting, legal and engineering
Exhibit 11 - 5
services and costs to monitor and test the ground water at and around the Sites.
During 1991, as a result of its negotiations with the EPA regarding the
Site owned by the Company in Bridgeport, New Jersey, the Company entered into a
consent decree and related agreement with the EPA with respect to the first
phase of an overall clean-up program to remediate the contamination at such Site
and to make other related improvements. The present value of the total cost
estimated by the EPA and the Company's environmental consultants to complete the
first phase and related improvements is approximately $6,600,000.
At this time no final decision has been made by the Company, and no
agreement reached with the EPA or other governmental authority, as to the extent
or proposed method of remediation for the other remaining phases of the clean-up
program at the Bridgeport Site, and the Company cannot reasonably estimate the
cost of any such additional phases, although it is expected to be substantial.
However, with respect to the Site in Bridgeport, New Jersey, the
Company has been awarded a favorable judgment, subject to appeal, against its
former insurers to recover all remediation, consulting and legal costs
associated with this Site. In addition, the Company has filed a similar claim
with the insurers for the other Site. The Company cannot reasonably estimate the
amount or timing of any potential judgment. Based upon the foregoing favorable
judgment, the Company has offset expected insurance proceeds against probable
environmental liabilities related to the Site in Bridgeport, New Jersey,
described above. Consequently, no reserves have been set up to cover these
probable liabilities. The Company has deferred $3,070,000 of current costs
related to this site based upon their anticipated future recovery. These costs
are classified as a deferred current asset on the consolidated balance sheet of
the Parent.
With respect to the other Site, located in Pennsylvania, the Company is
currently negotiating with the EPA as to the proposed method of remediation. In
1991, EPA issued a Record of Decision for Operable Units 1 and 2 at the Site,
which called for the installation of a public water supply for certain nearby
residences which are currently served by granulated activated carbon ("GAC")
filters and an interim groundwater treatment system. In March, 1992, EPA issued
a unilateral order to the Company and another party directing them to perform
the ROD. Because the public water supply contains carcinogenic substances and
therefore poses a health risk to the affected residences, while the GAC filters
do not pose the risk, the Company declined to comply with the unilateral order.
On January 25, 1993, EPA issued a proposed remedial action plan for Operable
Unit 3 at the Site which calls for thermal desorption of contaminated soils. The
Company has entered comments into the administrative record
Exhibit 11 - 6
challenging this proposed remedy. In view of the preliminary nature of the
Company's negotiations with the EPA over the type and scope of any required
remediation program at this Site, together with the absence of any final
determination of the extent of the Company's involvement in the contamination
there, the Company cannot reasonably estimate the cost of any remediation at the
Site required to be funded by the Company, although it is expected to be
substantial.
During the third quarter of 1992, the Company entered into a settlement
agreement with New York State and New York City for its share of site clean-up
costs of certain landfills located in New York State. The Company has agreed to
pay $1,400,000 to New York City on June 30, 1995 in full settlement of its
contribution to the site remediation. The present value of this payment is
reflected in the Company's environmental reserve.
The Company is among several entities identified by EPA as having sent
waste materials to the Xxxxxxx Landfill in West Xxxxxxx, Ohio ("the site"). EPA
has issued a unilateral order under section 106b of CERCLA requiring all named
potentially responsible parties ("PRPs") to implement an interim remedy at the
site. EPA has also issued a fact sheet proposing a final remedy for the site.
The Company has joined a group of PRPs to comply with the section 106 order and
analyze and respond to the proposed final remedy. At this time, it would be
speculative to predict the nature or extent of the Company's potential exposure
in this matter.
In addition, the Company has also been named as a defendant and a
potentially responsible party at a number of former waste disposal sites (each,
a "PRP Site"). In these instances, the Company's involvement is relatively
limited and generally arises out of shipment of wastes by or for the Company in
the ordinary course of its business over many years to sites owned and operated
by third parties which are now contaminated. Based on all available information,
the Company believes that most of such costs will be expended over a number of
years.
The Company has recorded charges of $2,600,000 in 1992 with regard to
the foregoing environmental clean-up and settlement charges. The reserve for
environmental clean-up was approximately $2,200,000 and $1,500,000,
respectively. This reserve is included in estimated self-insurance liabilities.
Although the extent and timing of the litigation, settlement and
possible clean-up costs at the Sites and the PRP Sites, other than the first
phase of the Bridgeport Site, are not reasonably estimable at this time, except
as set forth below, it is anticipated that the Company will expend substantial
capital and operating expenditures with respect to such costs.
Exhibit 11 - 7
In addition, Company is involved from time to time with respect to its on-going
business operations in technical and other reporting violations of Federal,
state and local laws, rules and regulations governing environmental matters
generally, none of which has or is expected to be materially adverse to the
Company or its financial condition.
Notwithstanding the generality of the foregoing, Company is involved
in the following matters:
(1) Bridgeport Terminal: The terminal facility of Company in Xxxxx
Township, New Jersey has been subject to administrative enforcement by the
United States Environmental Protection Agency ("EPA"). In 1990, EPA issued a
Record of Decision for the groundwater operable unit at the site. In May 1991,
Company entered into a Consent Decree with EPA allowing Company to undertake the
Remedial Design and Remedial Action ("RD/RA"). The Consent Decree was entered by
the United States District Court for the District of New Jersey in September,
1991. Costs associated with performing the RD/RA are estimated to be
approximately $500,000 for 1993; subsequent annual costs cannot now reliably be
estimated. In September, 1991, Company entered into an Administrative Order on
Consent with EPA pursuant to which Company extended the Pennsgrove water supply
to three area residences. This work is expected to cost approximately $350,000.
On April 7, 1993, the United States District Court for the District of
New Jersey entered an order requiring the insurers to reimburse Company for
substantially all of the expenditures made to date, Aetna Casualty & Surety
Company and Lloyds of London, and to be incurred in the future, related to Phase
I (soil remediation), Phase II (groundwater remediation), Phase III (wetlands)
and the water line at the Bridgeport site. The insurance companies have filed a
notice of appeal.
(m) Xxxxxxx Xxxx Lagoons: EPA has alleged that Company disposed of
hazardous substances at this site in Pennsylvania. In 1991, EPA issued a Record
of Decision ("ROD") for Operable Units One and Two at the site which call for
the installation of a public water supply for some residences near the site
(which are currently serviced by granulated activated carbon ("GAC") units) and
an interim groundwater treatment system. In November, 1991, EPA issued special
notice letters to Company and another potentially responsible party, Rhom & Xxxx
at the site soliciting a good faith offer to finance and implement the ROD. In
March, 1992, EPA issued a unilateral order to Company and Rhom & Xxxx directing
them to perform the ROD. Because the public water supply contains carcinogenic
substances and therefore poses a significant health risk to the affected
residences, while the GAC units post no such risk, Company declined to comply
with the unilateral order. Company believes that it had sufficient cause to
decline to comply and therefore that it will not suffer
Exhibit 11 - 8
penalties for non-compliance. If, however, EPA performs the work, EPA may seek
to recover its costs and penalties from Company. In April, 1993, EPA issued a
Record of Decision which calls for thermal desorption of soils at the site. It
is expected that EPA will give Company and Rohm & Xxxx the opportunity to
perform the ROD. At this time, it would be speculative to predict the nature or
extent of Company's potential exposure in this matter.
(n) BROS: On or about January 4, 1993, Company received notice that it
was one of approximately 118 potentially responsible parties at the Bridgeport
Rental and Oil Services Superfund Site in Bridgeport, New Jersey (the "site"). A
group of parties led by Xxxxxxx Environmental Services informed Company that it
would file suit against Company and other PRPs if the PRPs did not enter an
informal settlement negotiation process to resolve claims with respect to the
site. Xxxxxxx and the other parties are either plaintiffs in a cost recovery
action against the United States, or are defendants in a consolidated cost
recovery action by the federal government. The United States has not named
Company as a defendant in this suit. Chemical Xxxxxx has elected to participate
in the informal settlement process in order to avoid litigation expense. On May
22, 1993, EPA issued a Request for Information under 42 U.S.C. ss.9604(b) and
42 U.S.C. ss.6927 (the "104(e) Request") to Company regarding the BROS site.
Company is currently preparing a response to the 104(e) Request. At this time,
it would be speculative to predict the nature or extent of Company's potential
exposure in this matter.
(o) Xxxxxx x. Company: Several residents living near the Xxxxxxx Xxxx
Lagoons site have filed suits in the Court of Common Pleas in Xxxxxxx County,
Pennsylvania against Company alleging property damage and personal injuries
caused by releases of contaminants from the site. Company has filed preliminary
objections to the plaintiff's statutory causes of action. The Court has not
ruled on Company's preliminary objections. No discovery has taken place as of
yet. On February 1, 1993, Company received a $5 million settlement offer from
the plaintiffs which would release all non-personal injury claims. Company is
currently evaluating the plaintiffs' offer and has not yet responded. At this
time, it would be speculative to predict the nature or extent of Company's
potential exposure in this matter.
(p) Xxxxxxx Landfill: In May of 1991, Company received a request for
information from EPA under section 104(e) of CERCLA regarding disposal of waste
materials at the Xxxxxxx Landfill in West Xxxxxxx, Ohio ("the site"). After a
diligent search of its records, Company discovered no records indicating it sent
any waste materials to the site. Nevertheless, based on deposition testimony of
a former Company employee, EPA has named Company, along with several other
companies, as a PRP at the site. EPA has issued under a unilateral order under
section 106b of CERCLA
Exhibit 11 - 9
requiring all named PRPs to implement an interim remedy at the site. EPA has
also issued a fact sheet proposing a final remedy for the site. The proposed
final remedy requires a multi-layer cap, groundwater control, and collection and
treatment of contaminated groundwater, at an estimated cost of $5,500,000.
Company has joined a group of PRPs to comply with the section 106 order, to
analyze and respond to the proposed final remedy and to analyze Company's share
of the cost of performing the interim remedy. Implementation of the interim
remedy is currently underway. In addition, efforts to locate additional PRPs
prior to implementation of a final remedy at the site are underway. No
allocation of the costs associated with the final remedy has occurred, nor has
Company determined whether it will contribute to the costs of the final remedy.
At this time, it would be speculative to predict the nature or extent of
Company's potential exposure in this matter.
(q) Atlantic States Legal Foundation: On October 18, 1991, the Atlantic
States Legal Foundation ("ASLF") notified Company of ASLF's intent to xxx
Company pursuant to section 326(d) of the Emergency Planning And Community
Right-to-Know Act of 1986 ("EPCRA"). The notice alleged that Company had failed
to submit certain documentation to appropriate authorities regarding its storage
of regulated substances at its Albany, New York terminal. By letter dated
December 12, 1991, Company informed the ASLF that Company was in compliance with
EPCRA. In June 1992, ASLF threatened to bring an enforcement action against
Company to recover civil penalties for Company's alleged past non-compliance
with EPCRA if satisfactory settlement of this matter is not reached. Company
believes that ASLF lacks standing to bring an action or past non-compliance.
Notwithstanding, in order to avoid transaction costs associated with litigation
on January 2, 1993, Company submitted an offer of settlement to ASLF which would
require Company to pay $10,000 in penalties and attorneys fees and to implement
a two-phased improvement of the wastewater treatment system at its Albany
terminal. ASLF has not yet responded to this offer. At this time it would be
speculative to predict the nature or extent of Company's potential exposure in
this matter.
(r) Seaboard Chemical Corporation: By letter dated April 15, 1991, the
North Carolina Department of Environment, Health, and Natural Resources
("DEHNR") informed Company that DEHNR believed Company to be a potentially
responsible party at the Seaboard Chemical Corporation site in Guilford County,
North Carolina (the "site"). There are over 1,000 other PRPs at the site.
Company believes it may have generated a de minimis quantity of waste at the
site. Company was offered an opportunity to settle a portion of its potential
liability at the Site but declined because the terms and scope of the offer were
not favorable to Company. On May 29, 1992, DEHNR issued an "Imminent Hazard
Order" pursuant to N.C. Stat. 130A-303 which essentially directed all PRPs to
undertake surface removal and
Exhibit 11 - 10
investigate suspected soil and groundwater contamination at the site. In June
1992, without admitting any liability whatsoever, Company joined a PRP
organization which is funding the removal action and preliminary study of
suspected soil and groundwater contamination. In connection with this effort,
Company signed an Administrative Consent Order between DEHNR and Seaboard Group
members in order to resolve the liability imposed by the Imminent Hazard Order,
obtain a conditional release as well as a covenant not to xxx from DEHNR, and to
gain the benefit of contribution protection under CERCLA. The surface removal
action has been completed. The preliminary study of suspected soil and
groundwater contamination is underway. Thusfar, Company has paid $19,216.26 in
administrative assessments at the site. We have been advised that Company
currently has a credit of $3,221.60 because the per gallon assessment has been
reduced as a result of newly identified waste being factored into the
allocation. The PRP organization has requested additional information from its
members. Details of this request shall be sent to Company under separate cover.
At this time it would be speculative to predict the nature or extent of
Company's potential exposure in this matter.
(s) Xxxxx Brothers Landfill:
Pursuant to a Directive, dated October 25, 1991 (the "Directive"), the
State of New Jersey Department of Environmental Protection and Energy ("DEPE")
ordered the Company, along with approximately 100 other recipients, to pay the
State $1,752,000 for the future performance of a remedial investigation and
feasibility study ("RI/FS") by the State at the Xxxxx Brothers Landfill (the
"Landfill"), Voorhees, New Jersey. The DEPE has requested that the parties enter
into a Consent Decree regarding response. As of the date of this letter, several
of the respondents to the Directive, including Company, are negotiating among
themselves and with the State to fund a privately performed RI/FS at the
Landfill. Terms of the Decree are being negotiated. The connection of the
Company to the Landfill arises from alleged use of Xxxxxx Xxxxx as transporter
of plant wastes during the 1960s and early 1970s. There is limited evidence that
Jonas used the Landfill. There is no direct evidence that waste of the Company
was disposed of at the Landfill. No litigation or discovery has been commenced
against the Company.
(t) Xxxxxx Xxxxxx Landfill: United States of America v. Xxxxx Xxxxxx,
et al., C.A. No. 89-4340 (D.N.J.) and State of New Jersey v. Department of
Environmental Protection x. Xxxx Antipollution Services Corp.. et al., C.A. No.
89-4380 (D.N.J.)
These two cases are companion cases arising out of environmental
conditions at the Xxxxx Xxxxxx Landfill in Mautua Township, Gloucester County,
New Jersey. Both cases have been consolidated for discovery purposes in federal
district court in New Jersey. The United States alleges 22 companies are liable
Exhibit 11 - 11
for costs of assessing and remedying conditions at the landfill. The New Jersey
state complaint, which is the only one naming the Company, alleges 56 companies
are liable for the state's costs, both past and future. The defendants added an
additional 285 parties as third party defendants.
The government plaintiffs have currently estimated that the total
potential liability of all responsible parties is approximately $160,000,000.
Additionally, by a Multi-Site Directive and Notice to insurers, dated May 1,
1990, issued by the State, the Company and 89 other parties were directed to pay
a total of $10,203,000 to reimburse the State for its costs of future study and
remediation. The Company and the other recipients declined to comply with the
requirements of the Multi-Site Directive.
The Company is alleged to have used Xxxxxx Xxxxx as a waste hauler. Xx.
Xxxxx is alleged to have used this landfill for disposal. The Company denies
liability for response costs at the landfill and is defending the case. A court
mandated settlement procedure is currently underway. At this time, there is no
firm indication as to what share of the costs will be allocated to the Company.
(u) United States x. Xxxx & Xxxx Company, Chemical Properties. Inc.. et
al., No. 92-1517 (3d Cir.)
This case is an appeal by Company and Rohm & Xxxx of joint and several
liability assessed by the federal court in the eastern district of Pennsylvania.
The lower court assessed both companies for costs incurred by the United States
in overseeing Rohm & Xxxx' cleanup of a site owned in part by the Company. The
government has asserted entitlement to approximately $500,000 in total costs.
The Company and Rohm & Xxxx have entered into an agreement by which Rohm & Xxxx
has agreed to indemnify the Company with respect to the remediation and
oversight costs, if any.
(v) Pristine Landfill
The Company is a signatory to a judicially approved Consent Decree
regarding the Pristine Landfill near Reading, Ohio. The Decree requires that the
Company pay less than 1% of the costs of cleanup. It is currently estimated that
liability will not exceed $150,000 over the next several years. Recently, the
City of Reading has asserted a claim that its water supply may be tainted.
Negotiations are underway with the City, but are too preliminary to make a
determination as to the fact or amount of the Company's potential liability.
(w) GEMS Landfill, State of New Jersey, Department of Environmental
Protection ("NJDEP") v. Gloucester Environmental Services, Inc., et al., No.
84-0152 (SSB)
Exhibit 00 - 00
Xxxxx xx Xxx Xxxxxx, Department of Environmental Protection ("NJDEP")
v. Gloucester Environmental Services, Inc., et al., No. 84-0152 (5513) is
pending in the United States District Court for the District of New Jersey. That
action was brought in 1980 by the NJDEP against the owners and operators of the
Gloucester Environmental Management Services, Inc. waste site in Gloucester
Township, New Jersey (the "GEMS" site) as well as against the transporters to
and generators of waste which was disposed of there. The Company is an alleged
generator of waste but the volume ascribed to it, to date, falls within the "de
minimis" category. The NJDEP issued initial directives to pay for certain
remedial work at the site. The Company has not participated in the settlement of
that phase of the litigation. Negotiations regarding the settlement of the
second remedial phase of the litigation are ongoing as are discussions related
to the complete settlement of the litigation insofar as it involves generators
within the "de minimis" category.
Related to the GEMS litigation described are 14 personal injury cases
filed by persons residing near the landfill who claim to have contracted cancer
and like injuries or to be at the risk of the same due to their proximity to the
GEMS landfill. Those cases are all pending in the Superior Court of New Jersey
against hundreds of defendants that were sued by NJDEP in the clean-up action
described above. The personal injury cases are docketed as follows: Xxxxx, et
al. v. Township of Gloucester, et al., Docket No. L-036159-88, Baltra, et al. v.
Xxxxxxx Xxxxxx, et al., Docket No. L-081673-86, Xxxxxx, et al. v. Township of
Gloucester, et al., Docket No. L-080059-85, Xxxxx, et al. v. Xxxxxxx Xxxxxx, et
al., Docket No. L-092398-87, Covne, et al. v. Xxxxxxx Xxxxxx. et al., Docket No.
L-081700-86, Xxxxxx, et al. Township of Gloucester, et al., Docket No.
L-068199-85, Xxxxxx, et al. v. Xxxxxxx Xxxxxx, et al., Docket No. L-074522-86,
Xxxx, et al. v. Xxxxxxx Xxxxxx, et al., Docket No. L-081592-86, Xxxxxxx, et al.
v. Xxxxxxx Xxxxxx, et al., Xxxxxx Xx. X-000000-00, Xxxxx, et al. v. Xxxxxxx
Xxxxxx, et al., Docket No. L-081681-86, Tuzza, et al. v. Xxxxxxx Xxxxxx, et al.,
Docket No. L-074521-86, Volusher, et al. v. Xxxxxxx Xxxxxx, et al., Docket No.
L-075777-86 No. L-12152-90. Almost no activity has occurred to date in these
cases.
At this time it would be speculative to predict whether an outcome
unfavorable to the Company with regard to the above-described GEMS matters is
either probable or remote, nor can an estimate reasonably be established of the
amount or range of loss in the event of an unfavorable outcome.
(x) Xxxxx Liquid Landfill/Chemical Control: United States x. Xxxxx and
Ciba-Geigy Corp., et al. v. ARCO Chem. Co. et al., C.A. No. 90-0484P
Exhibit 11 - 13
United States x. Xxxxx and Ciba-Geigy Corp., et al. v. ARCO Chem. Co.,
et al., C.A. No. 90-0484P is pending in the United States District Court for the
District of Rhode Island. The United States sued nine individuals and companies
to recover cleanup response costs incurred at the Xxxxx Liquid Site, located
near Providence, Rhode Island. Five of the direct defendants filed third-party
complaints seeking contribution pursuant to Section 113(f) of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. ss.9613(f),
against sixty-nine third-party defendants, including the Company.
The third-party plaintiffs allege that the Company and fifty-eight of
the other third-party defendants were former customers of Chemical Control
Corporation. The theory of liability against the former Chemical Control
customers is that Chemical Control shipped commingled wastes from its Elizabeth,
New Jersey facility to the Xxxxx Liquid Site. The litigation against the direct
defendants has been bifurcated by a case management order. Pursuant to that
order, the liability will be litigated. Settlement negotiations between the
government and the third-party defendants are on-going, but the parties remain
far from an agreement.
While the Company believes that it and many other Chemical Control
defendants have sound defenses to the third party plaintiffs' theory of
liability, at this point in the litigation it is not able to state whether an
outcome unfavorable to the Company is either probable or remote, or to provide
an estimate of the potential maximum exposure.
(y) New York City Landfills: On August 5, 1992, Company Tank Lines,
Inc. ("Company") entered into a consent decree with the city and state of New
York settling its liability for alleged contamination of five municipal
landfills located in New York City. The decree, which was entered by the United
States District Court for the Southern District of New York on August 17, 1992,
obligated Company to pay the State of New York $133,227.18 by September 16,
1992, which payment was made as requested. The decree also obligates Company to
pay the City of New York $1,419,183.38 on or before June 30, 1995.
(z) Xxxxxx Tunnel: Company is one of 17 potentially responsible parties
("PRPs") who have signed an Administrative Consent Order to perform a remedial
investigation/feasibility study ("RI/FS") at the Xxxxxx Tunnel site in
Pittston, Pennsylvania. The study is nearing completion and the PRPs expect the
United States Environmental Protection Agency ("EPA") to select the remedial
action to be implemented at the site within the next few months. Until such
time, it would be speculative to predict the nature or extent of Company's
potential exposure in this action. The signatories to the Consent Decree have
recently provided the government with
Exhibit 11 - 14
information identifying numerous additional PRPs, however, which may
substantially reduce Company's liability at the site.
Exhibit ll - 15
EXHIBIT 12 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
EXCEPTIONS TO NO MATERIAL ADVERSE
CHANGE COVENANT
NONE
EXHIBIT 13 MADE TO AND FORMING A PART OF
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED JANUARY 1, 1994
SUPPLEMENTAL SCHEDULE A ATTACHED TO AND
INCORPORATED IN SECURITY AGREEMENT
DATED NOVEMBER 30, 1990
YEAR MAKE MODEL SERIAL # VALUE
---- ---- ----- ------- -----
Date:
-------------------------------
ASSOCIATES COMMERCIAL CORPORATION CHEMICAL XXXXXX TANK LINES, INC.
BY: By:
-------------------------------- -----------------------------
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This First Amendment dated effective as of June 6, 1994 is by and
between Chemical Xxxxxx Tank Lines, Inc. ("Company") and Associates Commercial
Corporation ("Security Party").
WHEREAS, the Company and Secured Party are parties to a Revolving
Credit Agreement dated November 30, 1990 (as amended, the "Revolving
Agreement");
WHEREAS, the Revolving Agreement was amended and restated in the
Amended and Restated Revolving Agreement dated as of January 1, 1994 (the
"Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement, but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, intending to be legally bound hereby and subject to
the satisfaction of the conditions hereinafter set forth, the parties hereto
agree as follows:
1. Section 5.2.(f). The language "plus the principal balance of
the Company's obligations under the Receivables Agreement" set forth in Section
5.2.(f) is hereby deleted.
2. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
3. Covenants. The Company warrants that it is in compliance and
has complied with each and every covenant set forth in Article 5 of the
Agreement on and as of the date hereof.
4. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party, upon request, (i) certified resolutions of the Company's board of
directors authorizing the execution and delivery of this Amendment and (ii) an
incumbency certificate specifying the officer(s) of the Company duly authorized
to execute this Amendment.
5. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized effective as of the day and year first above written.
ASSOCIATES COMMERCIAL CORPORATION CHEMICAL XXXXXX TANK LINES, INC.
By:/s/ X.X. Xxxxxxxxxxxx By:/s/ Xxxxx X. Xxxxxxx
------------------------------------ ---------------------------------
Title: Senior Vice President Title: Senior Vice President/
--------------------------------- Chief Financial Officer
----------------------------
SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Second Amendment dated effective as of June 30, 1994 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, intending to be legally bound hereby and subject to
the satisfaction of the conditions hereinafter set forth, the parties hereto
agree as follows:
1. Section l.l(a). The reference to "June 30, 1994" set forth in
Section l.l(a) is hereby deleted and "June 30, 1995" is hereby substituted
therefor.
2. Section l.l(b). The reference to "June 30, 1994" set forth in
Section 1.1(b) is hereby deleted and "June 30, 1995" is hereby substituted
therefor.
3. Section 1.6. The reference to "June 30, 1994" set forth in Section
1.6 is hereby deleted and "June 30, 1995" is hereby substituted therefor.
4. Section 1.7. The reference to "June 30, 1994" set forth in Section
1.7 is hereby deleted and "June 30, 1995" is hereby substituted therefor. The
reference to "August 1, 1994" set forth in Section 1.7 is hereby deleted and
"August 1, 1995" is hereby substituted therefor.
5. Section 5.2(e). The ratios "3.97:1" and "3.82:1" set forth in
Section 5.2(e) are hereby deleted and the ratio "4.75:1" is hereby substituted
therefor.
6. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
7. Covenants. The Company warrants that it is in compliance and has
complied with each and every covenant set forth in Article 5 of the Agreement on
and as of the date hereof.
8. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an incumbency
certificate specifying the officer(s) of the Company duly authorized to execute
this Amendment.
9. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
10. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this Amendment to
be executed by their proper Corporate officers thereunto duly authorized
effective as of the day and year first above written.
ASSOCIATES COMMERCIAL CORPORATION CHEMICAL XXXXXX TANK LINES, INC.
By:/s/ X.X. Xxxxxxxxxxxx By:/s/ [ILLEGIBLE]
------------------------------------ ---------------------------------
Title: Senior Vice President Title:
--------------------------------- -----------------------------
THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Third Amendment dated effective as of December 31, 1994 is by and
between Chemical Xxxxxx Tank Lanes, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party")
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement");
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, intending to be legally bound hereby and subject to
the satisfaction of the conditions hereinafter set forth, the parties hereto
agree as follows:
1. Section 5.2(f). Section 5.2(f) is hereby deleted and the following
language is hereby substituted therefor:
(f) DEBT COVERAGE. With respect to Chemical Xxxxxx Corporation
(on a consolidated basis), a ratio of Current Income to Current Obligations at
all times specified not less that 1.00:1.
"CURRENT INCOME" shall mean consolidated net income of Chemical
Xxxxxx Corporation (on a consolidated basis) for the fiscal period plus
depreciation deducted during the period and amounts added to or subtracted from,
as applicable, any reserve for deferred tax liability during the period minus
any dividends or distributions paid or declared during the period.
"CURRENT OBLIGATIONS" shall mean (i) the amount of all
obligations owing by Chemical Xxxxxx Corporation (on a consolidated basis)
maturing within the next succeeding 365 days excluding the Company's obligations
under the Loans, the revolving credit facility with CoreStates Bank, N.A. and
the Receivables Agreement; plus (ii) 25% of the principal balance of the Loans
and Term Loan outstanding hereunder plus the principal credit facility with
CoreStates Bank, N.A. plus the
principal balance of the Company's obligations under the Receivables Agreement.
In calculating this ratio, Current Income shall be determined for each period
based on actual Current Income for the preceding four fiscal quarters.
2. Representations and Warranties. The Company restates the
representation and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
3. Covenants. The Company warrants that it is in compliance and has
complied with each and every covenant set forth in Article 5 of the Agreement on
and as of the date hereof.
4. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an incumbency
certificate specifying the officer(s) of the Company duly authorized to execute
this Amendment.
5. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their property corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx By:/s/ [ILLEGIBLE]
------------------------------------ ---------------------------------
Title: Title: Assistant Vice President
--------------------------------- ------------------------------
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Fourth Amendment dated effective as of June 30, 1995 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party")
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement");
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, intending to be legally bound hereby and subject to
the satisfaction of the conditions hereinafter set forth, the parties hereto
agree as follows:
1. Section l.1(a). The reference to "June 30, 1995" set forth in
Section l.l(a) is hereby deleted and "June 30, 1996" is hereby substituted
therefor.
2. Section l.l(b). The reference to "June 30, 1995" set forth in
Section l.l(b) is hereby deleted and "June 30, 1996" is hereby substituted
therefor.
3. Section 1.6. The reference to "June 30, 1995" set forth in
Section 1.6 is hereby deleted and "June 30, 1996" is hereby substituted
therefor.
4. Section 1.7. The reference to "June 30, 1995" set forth in
Section 1.7 is hereby deleted and "June 30, 1996" is hereby substituted
therefor. The reference to "August 1, 1995" set forth in Section 1.7 is hereby
deleted and "August 1, 1996" is hereby substituted therefor.
-1-
5. Section 1.9. The following language in Section 1.9 is hereby
deleted:
The Prime Rate The Prime Rate
Greater than 8.5% plus 1% plus 1%
The following language is hereby substituted for the language
deleted above in this paragraph 1:
The Prime Rate The Prime Rate
Greater than 8.5% plus .75% plus .75%
6. Section 5.2(d). The reference to "$21,962,000" set forth in
Section 5.2(d) is hereby deleted and "$20,000,000" is hereby substituted
therefor.
7. Section 5.2(e). The ratio "4.75:1" set forth in Section 5.2(e)
is hereby deleted and the ratio "5.50:1" is hereby substituted therefor.
8. Section 5.2(a). The definitions of "VALUE" and "DEPRECIATION"
set forth in Section 5.2(a) are hereby deleted and the following terms are
substituted therefor:
"VALUE" of an item of Revenue Equipment shall mean:
(a) with respect to all Revenue Equipment listed in Schedule A
attached to this Fourth Amendment ("Schedule A") the respective values thereof;
(b) with respect to each used item of equipment to be added as
Revenue Equipment to Schedule A at a later date, (i) the value of similarly
equipped Revenue Equipment of the same manufacturer, model and year listed in
the appraisal prepared by Xxxx Xxxxxxx dated May 25, 1995 (the "Appraisal") less
Depreciation and (ii) which does not meet the parameters of subsection (i) of
this paragraph (b), the value which Secured Party and Company shall agree upon,
and (iii) if subsection (i) and (ii) of this paragraph (b) are not applicable,
then the appraised value which Xxxx Xxxxxxx shall determine in accordance with
the method used by Xxxx Xxxxxxx under the appraisal;
-2-
(c) with respect to each item of equipment purchased new by
the Company, which has not been used by the Company or anyone else for more than
ninety (90) days at the time it is to be added as Revenue Equipment to Schedule
A at a later date, the purchase cost to Company of such new item of Revenue
Equipment.
"DEPRECIATION" for an item of Revenue Equipment as of any date
of determination shall mean an amount equal to .83% of its original purchase
price to the Company times (a) in the case of Revenue Equipment whose value is
determined under paragraphs (a), (b)(ii), (b)(iii) or (c) above, the number of
months such item of Revenue Equipment has been listed as Revenue Equipment on
Schedule A and (b) in the case of Revenue Equipment whose value is determined
under paragraph (b)(i) above, the number of months from the effective date
hereof (i.e., June 30 , 1995) to the date of determination.
9. Section 5.2(f). The definition of "CURRENT OBLIGATIONS" set
forth in Section 5.2(f) is hereby deleted and the following terms are
substituted therefor:
"CURRENT OBLIGATIONS" shall mean:
(i) the amount of all obligations owing by Chemical Xxxxxx
Corporation (on a consolidated basis) maturing within the next succeeding 365
days excluding the Company's obligations under the Loans, the revolving credit
facility with CoreStates Bank, N.A. and the Receivables Agreement; plus (ii) 20%
of the principal balance of the Loans and Term Loan outstanding hereunder plus
the principal credit facility with CoreStates, N.A. In calculating this ratio,
Current Income shall be determined for each period base upon actual Current
Income for the preceding four fiscal quarters.
10. Schedule A to Security Agreement. The Schedule A attached to
this Fourth Amendment replaces the Schedule A, as amended, attached to the
Security Agreement dated November 30, 1990 between the Company and Secured
Party.
11. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
-3-
12. Covenants. The Company warrants that it is in compliance and
has complied with each and every covenant set forth in Article 5 of the
Agreement on and as of the date hereof.
13. Corporate Authorization. As a condition of the Secured
Party's agreement to enter into and perform this Amendment, the Company will
provide to Secured Party (i) certified resolutions of the Company's board of
directors authorizing the execution and delivery of this Amendment and (ii) an
incumbency certificate specifying the officer(s) of the Company duly authorized
to execute this Amendment.
14. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
15. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their property corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By:/s/ Xxxxxx X. Xxxxx By:/s/ [ILLEGIBLE]
------------------------------------ ---------------------------------
Title: President Title: Assistant Vice President
--------------------------------- ------------------------------
-4-
FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Fifth Amendment dated effective as of December 31, 1995 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party")
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January l, 1994, which was
amended subsequent to such date (as amended, the "Agreement");
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, intending to be legally bound hereby and subject to
the satisfaction of the conditions hereinafter set forth, the parties hereto
agree as follows:
1. Section 5.1(a) is hereby deleted and the following inserted
in lieu thereof:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available but in
any event within 120 days after the end of each fiscal year, the Company will
deliver to Secured Party financial statements of Chemical Xxxxxx Corporation
(consolidated) for such fiscal year. "Financial Statements" shall mean a balance
sheet, a statement of earnings or loss, and a statement of changes in financial
position for the fiscal year and the immediately preceding fiscal year in
comparative form. Financial Statements shall be in reasonable detail with
appropriate notes and be prepared in accordance with generally accepted
accounting principles applied on a consistent basis and shall include
consolidating balance sheets and income statements of Chemical Xxxxxx
Corporation and its subsidiaries, which consolidating balance sheets and income
statements may be prepared and certified by officers of Chemical Xxxxxx
Corporation. Except as provided in this Subsection
-1-
5.1(a), the Annual Financial Statements of Chemical Xxxxxx Corporation shall be
certified (without any material qualification, exception or limiting statement
or disclosure) by independent public accountants of nationally recognized
standing who shall be acceptable to the Secured Party, which acceptance shall
not be unreasonably withheld.
2. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
3. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their property corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By:/s/ Xxxxxx X. Xxxxx By:/s/ [ILLEGIBLE]
------------------------------------ ---------------------------------
Title: President Title: Assistant Vice President
--------------------------------- ------------------------------
-2-
SIXTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Second Amendment dated effective as of April 11, 1996 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company~) and
Associates Commercial Corporation ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 1.1(a). The reference to "June 30, 1996" set forth in
Section 1.1(a) is hereby deleted and "June 30, 1998" is hereby substituted
therefor. The reference to "$22,500,000" set forth in Section 1.1(a) is hereby
deleted and "$26,000,000" is hereby substituted therefor.
2. Section 1.1(b). The reference to "June 30, 1996" set forth in
Section l.l(b) is hereby deleted and "June 30, 1998" is hereby substituted
therefor.
3. Section 1.6. The reference to "June 30, 1996" set forth in
Section 1.6 is hereby deleted and "June 30, 1998" is hereby substituted
therefor.
4. Section 1.7. The reference to "June 30, 1996" set forth in
Section 1.7 is hereby deleted and "June 30, 1998" is hereby substituted
therefor. The reference to "August 1, 1996" set forth in Section 1.7 is hereby
deleted and "August 1, 1998" is hereby substituted therefor.
5. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
6. Covenants. The Company warrants that it is in compliance and
has complied with each and every covenant set forth in Article 5 of the
Agreement on and as of the date hereof.
7. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment
- 1 -
and (ii) an incumbency certificate specifying the officer(s) of the Company duly
authorized to execute this Amendment.
8. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
9. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this Amendment to
be executed by their proper corporate officers thereunto duly authorized
effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By:/s/ Xxxxxx X. Xxxxx By:/s/ X.X. Xxxxxxxxxxxx
------------------------------------ ---------------------------------
Title: President Title: Senior Vice President
--------------------------------- ------------------------------
-2-
SEVENTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Seventh Amendment dated effective as of June 30, 1996 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 5.2(e). Section 5.2(e) is hereby deleted in its
entirety and substituted with the following terms:
(e) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH. A ratio of Total
Funded Debt to Tangible Net Worth of Chemical Xxxxxx Corporation which is not at
any time more than 5.50:1. "Total Funded Debt" shall mean the total outstanding
amount of all indebtedness for borrowed money of Chemical Xxxxxx Corporation
("CLC") and its subsidiaries on a consolidated basis, including without
limitation, (i) amounts owing to CoreStates Bank, N.A. under and pursuant to its
Credit Agreement with the Company; (ii) all obligations of the Company and Fleet
Transport Company, Inc. in favor of Secured Party; (iii) all indebtedness of
CLC's subsidiaries pursuant to equipment loans and capital leases; (iv) all
obligations of CLC's subsidiaries under operating leases discounted to present
value at the rate of return which the lessee will pay on each lease; and (v) all
other obligations of CLC's subsidiaries for borrowed money.
2. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
3. Covenants. The Company warrants that it is in compliance and
has complied with each and every covenant set forth in Article 5 of the
Agreement on and as of the date hereof.
-1-
4. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an incumbency
certificate specifying the officer(s) of the Company duly authorized to execute
this Amendment.
5. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By:/s/ Xxxxxx X. Xxxxx By:/s/ X.X. Xxxxxxxxxxxx
------------------------------------ ---------------------------------
Title: President Title: Senior Vice President
--------------------------------- ------------------------------
-2-
EIGHTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Eighth Amendment dated effective as of December 31, 1996 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
ASSOCIATES COMMERCIAL CORPORATION ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to a Revolving
Credit Agreement dated January 1, 1994 ("Agreement");
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, intending to be legally bound hereby and subject to the
satisfaction of the conditions hereinafter set forth, the parties hereto agree
as follows:
1. Section 5.2 (d) TANGIBLE NET WORTH. Section 5.2(d) is hereby
deleted and the following language is hereby substituted therefor:
(d) TANGIBLE NET WORTH. Tangible net worth (tangible assets
i.e., total assets excluding patents, copyrights, capitalized research and
development costs, goodwill, operating rights and other intangible assets, minus
total liabilities (excluding all operating leases)) of Chemical Xxxxxx
Corporation (on a consolidated basis including the book value of all outstanding
Series A, B and C Preferred Stock and including the stock subscription loan
receivable in the amount of $1,520,000 due from Xxxxx X. Xxxxxxxx) of not less
than $20,000,000.
2. Section 5.2(e) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH.
Section 5.2(e) is hereby deleted and the following language is substituted
therefor:
(e) TOTAL FUNDED DEBT TO TANGIBLE NET WORTH. A ratio of Total
Funded Debt to Tangible Net Worth of Chemical Xxxxxx Corporation which is not at
any time more than 5.50:1. "Total Funded Debt" shall mean the total outstanding
amount of all indebtedness for borrowed money of Chemical Xxxxxx Corporation
("CLC") and its subsidiaries on a consolidated basis, including without
limitation, (i) amounts owing to CoreStates Bank, N.A. under and pursuant to its
Credit Agreement with the Company; (ii) all obligations of the Company and Fleet
Transport Company, Inc. in favor of Secured Party; (iii) all indebtedness of
CLC's subsidiaries pursuant to equipment loans and capital leases; (iv) all
obligations of CLC's subsidiaries under operating leases discounted to present
value at the rate of return which the lessee will pay on each lease; and (v) all
other obligations of CLC's subsidiaries for borrowed money. Total Funded Debt
shall be reduced by the amount of restricted cash contained in the Seller
Sub-Account as that term is defined in the Xxxxxxxxx Way Funding Trust Pooling
and Servicing Agreement dated as of May 14, 1993.
3. Representations and Warranties. The Company restates the
representations and warranties made in Article IV of the Agreement on and as of
the date hereof as if originally given on such date.
4. Covenants. The Company warrants that it is in compliance and has
complied with each and every covenant set forth in Article V of the Agreement on
and as of the date hereof.
5. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide
to Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an
incumbency certificate specifying the officer(s) of the Company duly authorized
to execute this Amendment.
6. Effect of Amendment. This Amendment amends the Agreement only to the
extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- -------------------------
Title: President Title: Vice President
------------------------ ----------------------
NINTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Ninth Amendment dated effective as of March 30, 1997 is by and
between Chemical Xxxxxx Tank Lines, Inc., a Delaware corporation ("Company") and
Associates Commercial Corporation ("Secured Party").
WITNESSETH:
WHEREAS, the Company and Secured Party are parties to an Amended and
Restated Revolving Credit Agreement dated as of January 1, 1994, which was
amended subsequent to such date (as amended, the "Agreement"); and
WHEREAS, the Company and Secured Party hereby desire to amend the
Agreement but only to the extent specifically set forth herein. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 5.2. The language "85%" in the definition of BOOK
VALUE in Section 5.2.(a) of the Agreement is hereby deleted and replaced with
the following language: "90%".
2. Representations and Warranties. The Company restates the
representations and warranties made in Article 2 of the Agreement on and as of
the date hereof as if originally given on such date.
3. Covenants. The Company warrants that it is in compliance and
has complied with each and every covenant set forth in Article 5 of the
Agreement on and as of the date hereof.
4. Corporate Authorization. As a condition of the Secured Party's
agreement to enter into and perform this Amendment, the Company will provide to
Secured Party (i) certified resolutions of the Company's board of directors
authorizing the execution and delivery of this Amendment and (ii) an incumbency
certificate specifying the officer(s) of the Company duly authorized to execute
this Amendment.
5. Effect of Amendment. This Amendment amends the Agreement only
to the extent and in the manner herein set forth, and in all other respects the
Agreement is ratified and confirmed.
6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Company and Secured Party have caused this
Amendment to be executed by their proper corporate officers thereunto duly
authorized effective as of the day and year first above written.
CHEMICAL XXXXXX TANK LINES, INC. ASSOCIATES COMMERCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Senior Vice President Title: Vice President
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