THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (the
"Amendment") is made and entered into as of February 23, 1999, by and
among TRISM, INC. and certain of its subsidiaries (collectively
referred to herein as the "Borrowers"), the lenders a party to the
agreement from time to time (collectively referred to herein as the
"Lenders"), and THE CIT GROUP/BUSINESS CREDIT, INC., in both its
capacity as the Agent and a Lender ("CIT").
For the purpose of conforming the same to the intention of the
parties and for other value received, it is hereby agreed that certain
Loan and Security Agreement, dated July 14, 1997 (the "Agreement"),
between Borrowers, Lenders and CIT, as the same has been amended from
time to time, shall be amended and modified in the following
particulars:
1. Capitalized terms, as used herein, shall have the meaning set
forth in the Agreement, unless the context otherwise requires.
2. Section 1.1 of the Agreement is hereby amended as follows:
1. The following new definition of "Amendment No. 3" is hereby
added in the correct alphabetical order thereto:
"Amendment No. 3" shall mean and refer to that
certain Third to Loan and Security Agreement, dated
February 23, 1999, among Lenders, Agent and Borrowers.
2. The definition of "Collateral" is hereby amended to include
the new subsection and paranthetical "(d1) the Vehicles," after
subsection (d) thereof and before subsection (e) thereof.
3. The definition of "Collateral" is hereby further amended by
deleting from the parenthetical contained in subsection (e) thereof
the word "trailers".
4. The definition of "Loans" is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"Loan(s)" means any Revolving Credit Loan or the
Term Loan, as well as such loans collectively, as the
context requires.
5. The definition of "Note" is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"Note" means either of a Revolving Credit Note or
a Term Note, individually, and "Notes" mean all such
Notes, collectively.
6. The definition of "Security Documents" is hereby amended by
adding the following new subsection (g) to the end thereof:
"and (g) the certificates of titles for the
Vehicles, with the first-priority lien of Agent
properly noted thereon."
7. The following new definitions of "Term Loan", "Term Loan
Facility", and "Term Note(s)" are hereby added in the correct
alphabetical order thereto:
"Term Loan" means the term loan made to Borrowers
by Lenders pursuant to Article 2A hereof in an amount
not to exceed the Term Loan Facility.
"Term Loan Facility" means an amount equal to
$2,750,000.00.
"Term Note(s)" means the Term Notes made by
Borrowers to the order of each Lender evidencing the
Borrowers' joint and several obligation to pay the
aggregate unpaid principal amount, together with any
accrued but unpaid interest and charges thereon, of the
Term Loan made to them by Lenders.
8. The definition of "Total Facilities" is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"Total Facilities" means the aggregate of the
Revolving Credit Facility and the Term Loan Facility.
9. The following new definition of "Treasury Rate" is added in
the correct alphabetical order thereto:
"Treasury Rate" means a fixed rate of interest
determined as of the date of the Term Loan equal to the
yield on a United States Treasury obligation of a
constant maturity rate maturing closest in time but
prior to the date which is three (3) years following
the date of the Term Loan.
10. The following new definition of "Vehicles" is added in the
correct alphabetical order thereto:
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"Vehicles" mean the trailers and other vehicles
listed on Exhibit B to Amendment No. 3.
3. The Agreement is hereby amended by adding the following new
Article 2A thereto following the end of Article 2 thereof:
Article 2A
Term Loan Facility
Section 2A.1 Term Loan. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties
made under, this Agreement, each Lender agrees, severally, but not
jointly, to make a Term Loan to the Borrowers, in an amount equal to
such Lender's Commitment Percentage of the Term Loan Facility.
Section 2A.2 Manner of Borrower and Disbursing Term Loan. Upon
satisfaction of the applicable conditions set forth in Amendment No.
3, each Lender shall make such Lender's Commitment Percentage of the
Term Loan Facility available to the Borrowers on the day of Amendment
No. 3 in same day funds in accordance with the instructions set forth
in the letter from the Borrowers to the Agent referred to in Amendment
No. 3. Borrowers shall use the proceeds of the Term Loan as working
capital in the ordinary course of their business.
Section 2A.3 Repayment of Term Loan. The outstanding principal
balance of the Term Loan shall be due and payable in (i) fifty-nine
(59) consecutive monthly installments, each in an amount equal to
$45,833.33, commencing on the first (1st) day of the first (1st) month
following the date of the Term Notes and continuing on the first (1st)
day of each and every Fiscal Month thereafter through and including
January 1, 2004, and (ii) one (1) final installment in an amount equal
to the total remaining outstanding principal balance of the Term Loan,
together with all accrued but unpaid interest and charges thereon,
which installment shall be due and payable on February 1, 2004. Any
portion of the Term Loan repaid may not be reborrowed. Prior to an
Event of Default, interest shall accrue on the Term Loan at a fixed
rate equal to the Treasury Rate plus three and one-quarter percent
(3.25%) per annum. Following an Event of Default, interest shall
accrue on the Term Loan at a rate equal to then applicable rate under
this Section 2A.3 plus the Default Margin.
Section 2A.4 Term Note. The Term Loan and the joint and several
obligation of the Borrowers to repay such Loan shall be evidenced by
Term Notes payable to the order of each Lender. Such Notes shall be
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dated the date of Amendment No. 3 and shall be duly and validly
executed and delivered by the Borrowers.
Section 2A.5 Prepayment. In the event this Agreement is
terminated by Agent or any Borrower either (i) pursuant to the terms
hereof or (ii) upon the occurrence of an Event of Default hereunder,
the Term Loan shall become due and payable in full on the effective
date of such termination, notwithstanding any provision to the
contrary in the Term Note or this Agreement.
Section 2A.6. Mandatory Prepayment. In the event (i) the amount
of the aggregate orderly liquidation value of the Vehicles (as
determined by an appraisal received by Agent pursuant to the terms of
Section 8.15 hereof) is at any time less than fifty-five percent (55%)
of the outstanding principal balance of the Term Loan and (ii) Agent
makes demand therefor, Borrowers hereby agree to make a mandatory
prepayment to Lenders in an amount equal to the difference between
fifty-five percent (55%) of the outstanding principal balance of the
Term Loan and such aggregate orderly liquidation value of the
Vehicles.
4. Section 8.11 of the Agreement is hereby amended by adding the
following new subsection (e) thereto following the end of subsection
(d) thereof:
(e) Vehicles. Borrowers shall deliver to Agent not
later than five (5) Business Days after the last Business
Day of each Fiscal Month, a report indicating the exact
location of each and every Vehicle located outside of the
continental United States as of the last day of such Fiscal
Month. Such reports shall be provided more frequently by
Borrowers to Agent upon the request of Agent.
5. Article 8 of the Agreement is hereby amended by adding the
following new Section 8.14 thereto:
Section 8.14. Covenants Regarding Vehicles. Borrowers
shall maintain the Vehicles in good order and repair, except
for ordinary wear and tear in the ordinary course of
business. In addition, Borrowers shall maintain insurance
on the Vehicles, in such amounts and with such companies as
may be acceptable to Agent, and shall maintain Agent, on
behalf of the Lenders, as loss-payee on all such insurance.
In the event a loss related to a Vehicle or Vehicles occurs,
all proceeds of insurance shall promptly be paid to Agent,
for the ratable benefit of Lenders and such sums shall be
applied to reduce the principal balance of the Term Loan.
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Borrowers agree not to sell, lease or otherwise dispose of
any Vehicle or Vehicles without the prior written consent of
Agent.
6. Article 8 of the Agreement is hereby further amended by adding
the following new Section 8.15 thereto:
SECTION 8.15. Appraisals of Vehicles. Borrowers
hereby agree that Agent may, at Borrowers' cost and expense,
undertake or have undertaken (whether in-house or through an
appraiser satisfactory to Agent in its sole discretion) an
appraisal of the Vehicles, which appraisal shall be in form
and substance satisfactory to Agent in its sole discretion.
Such appraisals shall be conducted at least once every six
(6) calendar months and more frequently if Agent so
requests.
7. As the contract requires and in all Loan Documents, the terms
"Revolving Credit Loans" and "Revolving Credit Facility" shall be
deemed to mean and include the Term Loan and Term Loan Facility.
8. Conditions Precedent. The effectiveness of this Amendment is
subject to the following conditions precedent:
(a) Delivery of Documents. Borrowers shall have
delivered to Agent, on behalf of Lenders, (i) executed
counterpart originals of this Amendment, (ii) executed
originals of the Term Notes, substantially in the form
attached hereto as Exhibit A, (iii) an Acknowledgment and
Consent of each Guarantor, in form and substance
satisfactory to Agent, in its sole discretion, (iv) the
certificate of title for each Vehicle with the first
priority lien of Agent properly noted thereon, and (v) such
other documentation as Agent may reasonably require in
connection herewith, including without limitation, (A)
Officer's and Secretary's Certificates for each Borrower, in
form and substance satisfactory to Agent in its sole
discretion, (B) an opinion of Borrower's counsel related to
the perfection of Agent's lien in and to each Vehicle, (C)
Certificates of Insurance listing Agent as loss-payee on
insurance (which insurance shall be in amounts and issued by
companies acceptable to Agent) covering the Vehicles, and
(D) good standing certificates for Borrower in each
jurisdiction requested by Agent.
(b) Accuracy of Representations and Warranties. All
of the representations and warranties made or deemed to be
made in this Amendment and under the Loan Documents shall be
true and correct as of the date of this Amendment.
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9. From and after the date hereof, the Agreement shall be deemed to
mean the Agreement, as amended hereby.
10. Each Borrower hereby reaffirms each of the agreements, covenants,
and undertakings set forth in the Agreement and each and every other
agreement, instrument and document executed in connection therewith or
pursuant thereto as if such Borrower were making said agreements,
covenants and undertakings on the date hereof.
11. This Amendment represents a modification only and is not, and
should not be construed as, a novation.
12. Except as hereinabove set forth, the Agreement shall remain
otherwise unmodified and in full force and effect, and all other
documents, instruments and agreements executed in connection therewith
or pursuant thereto shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment under hand and seal as of the date first above written.
BORROWERS:
TRISM, INC.
By:______________________________________
Title:__________________________________
TRISM SECURED TRANSPORTATION, INC.
By:_____________________________________
Title:__________________________________
TRI-STATE MOTOR TRANSIT CO.
By:_____________________________________
Title:__________________________________
AERO BODY AND TRUCK EQUIPMENT, INC.
By:_____________________________________
Title:__________________________________
7
TRI-STATE TRANSPORTATION SERVICES, INC.
By:_____________________________________
Title:__________________________________
DIABLO SYSTEMS INCORPORATED d/b/a
DIABLO TRANSPORTATION, INC.
By:_____________________________________
Title:__________________________________
EMERALD LEASING, INC.
By:_____________________________________
Title:__________________________________
McGIL SPECIAL SERVICES, INC.
By:_____________________________________
Title:__________________________________
TRISM EASTERN, INC. d/b/a X.X.
XXXXXXX TRANSFER
By:_____________________________________
Title:__________________________________
8
TRISM HEAVY HAUL, INC.
By:_____________________________________
Title:__________________________________
TRISM SPECIALIZED CARRIERS, INC.
By:_____________________________________
Title:__________________________________
TRISM SPECIAL SERVICES, INC.
By:_____________________________________
Title:__________________________________
E.L. XXXXXX & SONS TRUCKING CO., INC.
By:_____________________________________
Title:__________________________________
TRISM TRANSPORT, INC.
By:_____________________________________
Title:__________________________________
9
TRISM TRANSPORT SERVICES, INC.
By:_____________________________________
Title:__________________________________
TRISM LOGISTICS, INC.
By:_____________________________________
Title:__________________________________
10
LENDERS:
Commitment Percentage: 44.44% THE CIT GROUP/BUSINESS CREDIT, INC.
By:_____________________________________
Title:__________________________________
Commitment Percentage: 33.33% FLEET CAPITAL CORPORATION
By:_____________________________________
Title:__________________________________
Commitment Percentage: 22.22% FINOVA CAPITAL CORPORATION
By:_____________________________________
Title:__________________________________
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:_____________________________________
Title:__________________________________
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EXHIBIT A
FORM OF TERM NOTE
$_______________ [totalling $2,750,000.00] February 23, 1999
FOR VALUE RECEIVED, the undersigned, TRISM, INC., a Delaware
corporation, TRISM SECURED TRANSPORTATION, INC., a Delaware
corporation, TRI-STATE MOTOR TRANSIT CO., a Delaware corporation, AERO
BODY AND TRUCK EQUIPMENT COMPANY, INC., a Delaware corporation, TRI-
STATE TRANSPORTATION SERVICES, INC., a Missouri corporation, DIABLO
SYSTEMS INCORPORATED, INC., a California corporation, EMERALD LEASING,
INC., a Nevada corporation, McGIL SPECIAL SERVICES, INC., a Delaware
corporation, TRISM EASTERN, INC. d/b/a X.X. XXXXXXX TRANSFER, a
Delaware corporation, TRISM HEAVY HAUL, INC., a Delaware corporation,
TRISM SPECIALIZED CARRIERS, INC., a Georgia corporation, TRISM SPECIAL
SERVICES, INC., a Georgia corporation, E.L. XXXXXX & SONS TRUCKING
CO., INC., an Oklahoma corporation, TRISM TRANSPORT, INC., a Delaware
corporation, TRISM TRANSPORT SERVICES, INC., a Utah corporation, and
TRISM LOGISTICS, INC., a New Jersey corporation (each of the foregoing
herein a "Borrower" and collectively the "Borrowers"), HEREBY JOINTLY
AND SEVERALLY PROMISE TO PAY to the order of _____________________, a
________________________ corporation ("Lender"), or its assigns at
Lender's offices in Atlanta, Georgia, or at such other place as the
holder of this Term Note (the "Term Note") may designate from time to
time in writing, in lawful money funds, the amount of
______________________________ ($___________________). All
capitalized terms, unless otherwise define herein, shall have the
respective meanings assigned to such terms in the Loan Agreement (as
defined below).
This Term Note is issued pursuant to that certain Loan and
Security Agreement, dated July 14, 1997, among Borrower, the financial
institutions party thereto from time to time and Lender, as agent and
lender thereunder (as the same has been amended from time to time, the
"Loan Agreement"), and is entitled to the benefit and security of the
Loan Documents provided for therein, to which Loan Agreement reference
is hereby made for a statement of all of the terms and conditions
under which the loan evidenced hereby is made.
Borrowers, jointly and severally, promise to pay the principal
amount of the indebtedness evidenced hereby, together with all accrued
but unpaid interest and charges thereon, on the dates specified in the
Loan Agreement. Borrowers, jointly and severally, promise to pay
interest from the date hereof until such principal amount is paid in
full at such interest rates and at such times as are specified in the
Loan Agreement.
If any payment of this Term Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable
rate during such extension.
Upon and after the occurrence of an Event of Default, this Term
Note may, as provided in the Loan Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately
shall become, due and payable.
Demand, presentment, protest and notice of nonpayment and protest
are hereby waived by Borrowers.
No delay or failure on the part of Lender in the exercise of any
right or remedy hereunder, under the Loan Agreement or any other Loan
Document or at law or in equity, shall operate as a waiver thereof,
and no single or partial exercise by Lender of any right or remedy
hereunder, under the Loan Agreement or any other Loan Document or at
law or in equity shall preclude or estop another or further exercise
thereof or the exercise of any other right or remedy.
Time is of the essence of this Term Note and, in case this Term
Note is collected by law or through an attorney at law, or under
advice therefrom, Borrowers agree to pay all costs of collection,
including reasonable attorneys' fees if collected by or through an
attorney.
THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT
ATLANTA, GEORGIA AND SHALL BE INTERPRETED, GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF GEORGIA.
BORROWERS:
TRISM, INC.
By:_____________________________________
Title:__________________________________
TRISM SECURED TRANSPORTATION, INC.
By:_____________________________________
Title:__________________________________
2
TRI-STATE MOTOR TRANSIT CO.
By:_____________________________________
Title:__________________________________
AERO BODY AND TRUCK EQUIPMENT, INC.
By:_____________________________________
Title:__________________________________
TRI-STATE TRANSPORTATION SERVICES, INC.
By:_____________________________________
Title:__________________________________
DIABLO SYSTEMS INCORPORATED d/b/a
DIABLO TRANSPORTATION, INC.
By:_____________________________________
Title:__________________________________
EMERALD LEASING, INC.
By:_____________________________________
Title:__________________________________
McGIL SPECIAL SERVICES, INC.
By:_____________________________________
Title:__________________________________
3
TRISM EASTERN, INC. d/b/a X.X.
XXXXXXX TRANSFER
By:_____________________________________
Title:__________________________________
TRISM HEAVY HAUL, INC.
By:_____________________________________
Title:__________________________________
TRISM SPECIALIZED CARRIERS, INC.
By:_____________________________________
Title:__________________________________
TRISM SPECIAL SERVICES, INC.
By:_____________________________________
Title:__________________________________
E.L. XXXXXX & SONS TRUCKING CO., INC.
By:_____________________________________
Title:__________________________________
TRISM TRANSPORT, INC.
By:_____________________________________
Title:__________________________________
4
TRISM TRANSPORT SERVICES, INC.
By:_____________________________________
Title:__________________________________
TRISM LOGISTICS, INC.
By:_____________________________________
Title:__________________________________
5
EXHIBIT B
LIST OF VEHICLES
See Attached.
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned hereby acknowledges and consents to the
foregoing Third Amendment to Loan and Security Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this
Acknowledgment and Consent under seal as of this _____ day of
February, 1999.
GUARANTORS:
TRISM MAINTENANCE SERVICES, INC.
By:______________________________________
Title:___________________________________
EFB, INC.
By:______________________________________
Title:___________________________________
TRANSPORTATION RECOVERY SYSTEMS, INC.
By:_____________________________________
Title:__________________________________
TRISM EQUIPMENT, INC.
By:_____________________________________
Title:__________________________________
TRISM BENEFITS, INC.
By:_____________________________________
Title:__________________________________
