EXHIBIT 10.17
DEBT SUBORDINATION AGREEMENT
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THIS AGREEMENT is made and entered into as of the 27th day of December,
2004, by and among CENTRA, INC., hereinafter called "Creditor," UNIVERSAL
TRUCKLOAD SERVICES, INC., a corporation organized and existing under the laws
of Michigan, hereinafter called "Borrower," and FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association having its principal place of
business in Memphis, Tennessee, hereinafter called "Lender."
Recitals of Fact
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Borrower is has obtained loans, extensions of credit and other financial
accommodations from Lender and has requested Lender to allow the Borrower to
declare and make a dividend to Creditor in accordance with the resolution (the
"Resolution") substantially in the form attached hereto as EXHIBIT "A"; but
Lender is unwilling to give such consent or to continue making further loans,
extensions of credit and other financial accommodations to Borrower unless
Creditor and Borrower enter into this Agreement with Lender.
NOW, THEREFORE, in consideration of the premises, as set forth in the
Recitals of Fact, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, do hereby covenant and agree as follows:
Agreements
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1. Definitions.
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(a) "Junior Debt" means the Fifty Million Dollar ($50,000,000.00) cash
distribution owed by Borrower to Creditor pursuant to the terms of the
Resolution.
(b) "Superior Debt" means all loans, advances, liabilities, obligations,
debit balances, covenants and duties at any time owed by Borrower to Lender,
under the Loan Agreement and Note executed pursuant thereto.
(c) "Loan Agreement" means the Loan Agreement, bearing date of the 31st
day of December, 2001, among Borrower, The ▇▇▇▇▇ and ▇▇▇▇▇ Lines, Incorporated
("▇▇▇▇▇ ▇▇▇▇▇"), Universal Am-Can, Ltd. ("Universal") and the Bank, as amended
by First Amendment to Loan Agreement dated May 11,2004, among Borrower, ▇▇▇▇▇
▇▇▇▇▇, Universal, and ▇▇▇▇▇ Intermodal, Inc. ("▇▇▇▇▇ Intermodal"), as amended
by Second Amendment to Loan Agreement dated June 29, 2004, among Borrower,
▇▇▇▇▇ ▇▇▇▇▇, Universal, ▇▇▇▇▇ Intermodal, Economy Transport, Inc. ("Economy")
and Louisiana Transportation, Inc. ("Louisiana"), and by Third Amendment to
Loan Agreement dated August 12, 2004, among Borrower, Bank, ▇▇▇▇▇ ▇▇▇▇▇,
Universal, ▇▇▇▇▇ Intermodal, Economy, Louisiana, Great American Lines, Inc.
("Great American Lines") and Great American Logistics ("Great American
Logistics"), as amended by Fourth Amendment to Loan Agreement dated December
27th, 2004, as same may be amended or modified.
(d) "Note" means the promissory note of the Borrower, ▇▇▇▇▇ ▇▇▇▇▇ and
Universal dated December 31, 2001, in the principal amount of Twenty Million
Dollars ($20,000,000.00), payable to the order of the Bank, as amended by
Amended and Restated Promissory Note of Borrower, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Intermodal
and Universal dated May 11, 2004, in the principal amount of Twenty Million
Dollars ($20,000,000.00), as amended by the Second Amended and Restated
Promissory Note of Borrower, ▇▇▇▇▇ ▇▇▇▇▇, Universal, ▇▇▇▇▇ Intermodal, Economy
and Louisiana dated June 29, 2004, in the principal amount of Forty Million
Dollars ($40,000,000.00), as amended by Third Amended and Restated Promissory
Note of Borrower, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Intermodal, Universal, Economy, Louisiana,
Great American Lines and Great American Logistics, dated August 12, 2004, in the
principal sum of Forty Million Dollars ($40,000,000.00), which evidences the
Loan, as such note may be modified, renewed or extended from time to time; and
any other note or notes executed at any time to evidence the Loan in whole or in
part.
2. Subordination.
(a) Creditor hereby postpones and subordinates, to the extent and in the
manner provided in this Agreement, all of the Junior Debt to the full and final
payment and discharge of all of the Superior Debt.
(b) It is expressly understood that, notwithstanding the provisions of
Section 2(a) Borrower may pay Creditor the Junior Debt solely out of the
proceeds of the IPO (as defined in the Resolution) upon the satisfaction of the
following terms: (i) the IPO has been consummated and Borrower has received in
net proceeds from the IPO, in an amount sufficient to pay in full the Junior
Debt, (ii) Creditor has not received any notice from the Bank that (a) an Event
of Default (as defined in the Loan Agreement) has occurred, nor (b) any event
which with notice or the passage of time, or both, would constitute an Event of
Default has occurred and is continuing, and (iii) the payment of the Junior
Debt shall not result in an Event of Default under the Loan Agreement or in any
event which with notice or the passage of time, or both would constitute an
Event of Default. If the net IPO proceeds are insufficient to pay the Junior
Debt, if the other criteria for Section 2(b) are satisfied, Borrower may pay,
and Creditor may receive, the Junior Debt to the extent of, and solely from,
net IPO proceeds received by the Borrower.
(c) If Borrower issues or has issued any instrument or document
evidencing the Junior Debt, each such instrument and document shall bear a
conspicuous legend that it is subordinated to the Superior Debt. The books of
Creditor and Borrower shall be marked to evidence the subordination of all of
the Junior Debt to Lender. Lender is authorized to examine such books upon at
least five (5) days written notice from time to time and to make any notations
required by this Agreement. Creditor shall provide to Lender a copy of such
instrument as it has been marked.
3. Warranties and Representations of Borrower and Creditor. The Creditor
and the Borrower each hereby represents and warrants that:
(a) it has not relied and will not rely on any representation or
information of any nature made by or received of Lender relative to Borrower in
deciding to execute this Agreement or to permit it to continue in effect;
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(b) as of the date hereof, the total principal amount of the Junior
Debt is as set forth in EXHIBIT "A" hereto attached.
(c) Creditor is the lawful owner of the Junior Debt and no part
thereof is subject to any defense, offset or counterclaim;
(d) Creditor has not heretofore assigned or transferred any of the
Junior Debt, any interest therein or any collateral or security pertaining
thereto; and
(e) Creditor has not heretofore given any subordination in respect of
the Junior Debt.
4. Negative Covenants. Without Lender's prior written consent (which may
be given or withheld in Lender's sole and unrestricted discretion), until all
of the Superior Debt has been fully and finally paid:
(a) Borrower shall not, directly or indirectly, make any payment on
account of the Junior Debt except as allowed in Section 2 hereof;
(b) Creditor shall not demand, collect or accept from Borrower or any
other person any payment on account of the Junior Debt or any part thereof
except as allowed by Section 2 hereof or realize upon or enforce any
collateral securing the Junior Debt;
(c) Creditor shall not hereafter transfer or assign any of the Junior
Debt to any person;
(d) Borrower will not hereafter issue any instrument, security or
other writing evidencing any part of the Junior Debt, and Creditor will not
receive any such writing, except in a form in compliance with this
Agreement;
(e) Creditor will not commence or join with any other creditors of
Borrower in commencing any bankruptcy, reorganization, receivership or
insolvency proceeding against Borrower; and
(f) neither the Borrower not the Creditor otherwise shall take or
permit any action prejudicial to or inconsistent with Lender's priority
position over Creditor that is created by this Agreement.
5. Turnover of Prohibited Transfers. If any payment, distribution or
security or the proceeds thereof are received by Creditor on account of or with
respect to the Junior Debt (including, without limitation, in connection with or
as result of any liquidation or dissolution of the Borrower or any bankruptcy or
insolvency proceeding with respect to the Borrower), except for payments allowed
under Section 2(b) hereof, Creditor shall forthwith deliver same to Lender in
the form received (except for addition of any endorsement or assignment
necessary to effect a transfer of all rights therein to Lender) for application
to the Superior Debt. Lender is irrevocably authorized, as Creditor's agent and
attorney-in-fact, to supply any required endorsement or assignment which may
have been omitted. Until so delivered any such payment,
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any distribution or security shall be held by Creditor in trust for Lender and
shall not be commingled with other funds or property of Creditor.
6. Waivers. Borrower and Creditor each hereby waives any defense based on
the adequacy of a remedy at law which might be asserted as a bar to the remedy
of specific performance of this Agreement in any action brought therefor by
Lender. To the fullest extent permitted by law, Borrower and Creditor each
hereby further waives: presentment, demand, protest, notice of protest, notice
of default or dishonor, notice of payment or nonpayment and any and all other
notices and demands of any kind in connection with all negotiable instruments
evidencing all or any portion of the Superior Debt or the Junior Debt to which
Borrower or Creditor may be a party (except as provided for in said Loan
Agreement or any instrument executed in connection therewith); notice of the
acceptance of this Agreement by Lender; notice of any loans made, extensions
granted or other action taken in reliance hereon; and all other demands and
notices of every kind in connection with this Agreement, the Superior Debt or
the Junior Debt. Creditor assents to any release, renewal, extension, compromise
or postponement of the time of payment to the Superior Debt, to any
substitution, exchange or release of collateral therefor and to the addition or
release of any person primarily or secondarily liable thereon.
7. Subrogation. Provided that the Superior Debt has been fully and finally
paid and discharged, Creditor shall be subrogated to the rights of Lender to
receive payments or distribution of cash, property, or securities payable or
distributable on account of the Superior Debt, to the extent of all payments and
distributions with respect to the Junior Debt which are paid over to or for the
benefit of Lender pursuant to this Agreement.
8. Statement of Account. Creditor and Borrower each agree to render to
Lender from time to time upon Lender's request therefor a statement of
Borrower's account with Creditor.
9. Validity of Junior Debt. The provisions of this Agreement subordinating
the Junior Debt are solely for the purpose of defining the relative rights of
Lender and Creditor, and shall not impair as between Creditor and Borrower, the
obligation of Borrower, which is unconditional and absolute, to pay the Junior
Debt, nor shall any such provisions prevent Creditor from exercising all
remedies otherwise permitted by applicable law or under any instrument or
agreement evidencing the Junior Debt upon default thereunder, subject to the
rights of Lender hereunder to receive cash, property or securities otherwise
payable or deliverable to Creditor until the Superior Debt is paid in full.
10. Indulgences Not Waivers. Neither the failure nor any delay on the part
of Lender to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof or give rise to an estoppel, nor be construed as an
agreement to modify the terms of this Agreement, nor shall any single or partial
exercise of any right, remedy, power or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence. No waiver by a party hereunder shall be effective
unless it is in writing and signed by the party making such waiver, and then
only to the extent specifically stated in such writing.
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11. Duration and Termination. This Agreement shall become effective when
accepted by Lender in Memphis, Tennessee, and, when so accepted, shall
constitute a continuing agreement of subordination, and shall remain in full
force and effect until the earlier of the date (i) all of the Superior Debt has
been fully and finally paid or (ii) the Junior Debt has been paid in the manner
permitted by (and in compliance with) Section 2(b). The bankruptcy of Creditor
shall not effect a termination hereof. Lender may, without notice to Creditor,
extend or continue credit and make other financial accommodations to or for
the account of Borrower in reliance upon this Agreement, whether or not an
order for relief has been entered in respect of Borrower under the Bankruptcy
Code.
12. Default and Enforcement. If any representation or warranty in this
Agreement proves to have been materially false when made, or, in the event of a
breach by Borrower or Creditor in the performance of any of the terms of this
Agreement, all of the Superior Debt shall, at the option of Lender, become
immediately due and payable without presentment, demand, protest, or notice of
any kind (except as provided in, and subject to the right to cure as a
Non-Monetary Default, under the Loan Agreement or any instrument executed in
connection therewith). At any time Creditor fails to comply with any provision
of this Agreement that is applicable to Creditor, Lender may demand specific
performance of this Agreement, whether or not the Borrower has complied with
this Agreement, and may exercise any other remedy available at law or equity.
Without limiting the generality of the foregoing, if Creditor, in violation of
this agreement, shall institute or participate in any action suit or proceeding
against Borrower, Borrower may interpose as a defense or dilatory plea this
Agreement and Lender is irrevocably authorized to intervene and to interpose
such defense or plea in Borrower's name. If Creditor attempts to enforce or
realize upon any collateral securing the Junior Debt in violation of Agreement,
Borrower, or Lender in Borrower's or Lender's name by virtue of this Agreement,
may restrain such realization or enforcement.
13. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement or by law shall be in writing and
shall be deemed to have been duly given when delivered in person, sent by
overnight courier service, or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed as set forth below:
(a) If to Lender: First Tennessee Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Commercial Finance Division
With a copy to: Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
(b) If to Creditor: Centra, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(c) If to Borrower: Universal Truckload, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Any addressee may alter the address to which communications are to be sent
by giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.
14. Lender's Duties Limited. The rights granted to Lender in this
Agreement are solely for its protection and nothing herein contained imposes on
Lender any duties with respect to any property of the Borrower or the Creditor
heretofore or hereafter received by Lender beyond reasonable care in the custody
and preservation of such property while in Lender's possession. Lender has no
duty to preserve rights against prior parties on any instrument or chattel
paper received from Borrower or Creditor as collateral security for the Superior
Debt or any portion thereof.
15. Authority. Borrower and Creditor each represent and warrant that it
(or he) has authority to enter into this Agreement and that the person signing
for each party is authorized and directed to do so.
16. Entire Agreement. This Agreement constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understanding, inducements or conditions, whether express or implied, oral or
written. Neither this Agreement nor any portion or provision hereof may be
changed, waived or amended orally or in any manner other than by an agreement
in writing signed by the party to be charged.
17. Additional Documentation. Borrower and Creditor shall execute and
deliver to Lender such further instruments and shall take such further action
as Lender may at any time or times reasonable request in order to carry out the
provisions and intent of this Agreement.
18. Expenses. Borrower and Creditor jointly and severally agree to pay
Lender on demand all expenses of every kind, including reasonable attorney's
fees on a time and charges basis, that Lender may incur in enforcing any of
its rights under this Agreement.
19. Successors and Assigns. This Agreement shall inure to the benefit
of Lender, its successors and assigns, and shall be binding upon Borrower,
Creditor, and their respective successors and assigns.
20. Defects Waived. This Agreement is effective notwithstanding any
defect in the validity or enforceability of any instrument or document
evidencing or securing the Superior Debt.
21. Governing Law. The validity, construction and enforcement of this
Agreement shall be governed by the internal laws of the State of Tennessee.
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22. Severability. The provisions of this Agreement are independent of and
separable from each other. If any provisions hereof shall for any reason be held
invalid or unenforceable, it is the intent of the parties that such invalidity
or unenforceability shall not affect the validity or enforceability of any other
provision hereof, and that this Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.
IN WITNESS WHEREOF, the parties hereto have executed, sealed and delivered
this Agreement, as of the day and year first above written.
CENTRA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
VP/Secretary/Treasurer
CREDITOR
UNIVERSAL TRUCKLOAD
SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇,
Vice-President/Secretary/Treasurer
BORROWER
Accepted in Memphis, Tennessee:
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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