Exhibit 10.1
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U.S. $40,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
OCTOBER 5, 2001
AMONG
TRANSPORT CORPORATION
OF AMERICA, INC.,
THE BANKS PARTY HERETO,
LASALLE BANK NATIONAL ASSOCIATION,
as Agent,
AND
FIRSTAR BANK, N.A.,
as Documentation Agent
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TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
PAGE
SECTION 1. DEFINITIONS; INTERPRETATION................................2
Section 1.1. Definitions................................................2
Section 1.2. Interpretation............................................13
SECTION 2. THE REVOLVING CREDIT......................................13
Section 2.1. The Revolving Loan Commitment.............................13
Section 2.2. Swingline Loans...........................................14
Section 2.3. Letters of Credit.........................................15
Section 2.4. Applicable Interest Rates.................................17
Section 2.5. Minimum Borrowing Amounts.................................19
Section 2.6. Manner of Borrowing Loans and Designating Interest
Rates Applicable to Loans..............................19
Section 2.7. Interest Periods..........................................22
Section 2.8. Maturity of Loans.........................................22
Section 2.9. Prepayments...............................................22
Section 2.10. Default Rate..............................................23
Section 2.11. The Notes.................................................24
Section 2.12. Funding Indemnity.........................................24
Section 2.13. Commitment Terminations...................................25
Section 2.14. Extension of Commitments..................................25
SECTION 3. FEES......................................................25
Section 3.1. Fees......................................................25
SECTION 4. PLACE AND APPLICATION OF PAYMENTS; GUARANTEES.............26
Section 4.1. Place and Application of Payments.........................26
Section 4.2. Guarantees................................................27
Section 4.3. Collateral................................................27
Section 4.4. Further Assurances........................................27
SECTION 5. REPRESENTATIONS AND WARRANTIES............................27
Section 5.1. Corporate Organization and Authority......................28
Section 5.2. Subsidiaries..............................................28
Section 5.3. Corporate Authority and Validity of Obligations...........28
Section 5.4. Financial Statements; No Material Adverse Change..........28
Section 5.5. No Litigation; No Labor Controversies.....................29
Section 5.6. Taxes.....................................................29
Section 5.7. Approvals.................................................29
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Section 5.8. ERISA.....................................................29
Section 5.9. Government Regulation.....................................30
Section 5.10. Margin Stock; Use of Proceeds.............................30
Section 5.11. Licenses and Authorizations; Compliance with Laws.........30
Section 5.12. Ownership of Property.....................................31
Section 5.13. Compliance with Agreements................................31
Section 5.14. Full Disclosure...........................................31
Section 5.15. Solvency..................................................31
Section 5.16. Capitalization............................................31
SECTION 6. CONDITIONS PRECEDENT......................................31
Section 6.1. Initial Credit Event......................................32
Section 6.2. All Credit Events.........................................33
Section 6.3. Post-Closing Items........................................33
Section 6.4. Determinations Under Section 6.1..........................33
SECTION 7. COVENANTS.................................................34
Section 7.1. Corporate Existence; Subsidiaries.........................34
Section 7.2. Maintenance...............................................34
Section 7.3. Taxes.....................................................34
Section 7.4. ERISA.....................................................34
Section 7.5. Insurance.................................................35
Section 7.6. Financial Reports and Other Information...................35
Section 7.7. Bank Inspection Rights....................................36
Section 7.8. Conduct of Business.......................................37
Section 7.9. Use of Proceeds; Regulation U.............................37
Section 7.10. Mergers, Consolidations and Sales.........................37
Section 7.11. Use of Property and Facilities; Environmental and
Health and Safety Laws.................................38
Section 7.12. Dividends and Other Shareholder Distributions.............38
Section 7.13. Compliance with Laws......................................38
Section 7.14. Net Worth.................................................38
Section 7.15. Consolidated Funded Indebtedness to Consolidated
EBITDAR................................................38
Section 7.16. Minimum Cash Flow Coverage................................39
Section 7.17. Indebtedness..............................................39
Section 7.18. Liens.....................................................39
Section 7.19. Investments, Acquisitions, Loans, Advances and
Guaranties.............................................40
SECTION 8. EVENTS OF DEFAULT AND REMEDIES............................41
Section 8.1. Events of Default.........................................41
Section 8.2. Non-Bankruptcy Defaults...................................43
Section 8.3. Bankruptcy Defaults.......................................44
Section 8.4. Collateral for Undrawn Letters of Credit..................44
Section 8.5. Expenses..................................................45
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SECTION 9. CHANGE IN CIRCUMSTANCES...................................45
Section 9.1. Change of Law.............................................45
Section 9.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR................................45
Section 9.3. Increased Cost and Reduced Return.........................46
Section 9.4. Lending Offices...........................................47
Section 9.5. Discretion of Bank as to Manner of Funding................47
SECTION 10. THE AGENT.................................................47
Section 10.1. Appointment and Authorization of Agent....................47
Section 10.2. Agent and its Affiliates..................................48
Section 10.3. Action by Agent...........................................48
Section 10.4. Consultation with Experts.................................48
Section 10.5. Liability of Agent; Credit Decision.......................48
Section 10.6. Indemnity.................................................49
Section 10.7. Resignation of Agent and Successor Agent..................49
Section 10.8. Documentation Agent.......................................50
SECTION 11. MISCELLANEOUS.............................................50
Section 11.1. Withholding Taxes.........................................50
Section 11.2. No Waiver of Rights.......................................51
Section 11.3. Non-Business Day..........................................51
Section 11.4. Documentary Taxes.........................................51
Section 11.5. Survival of Representations...............................51
Section 11.6. Survival of Indemnities...................................51
Section 11.7. Set-Off...................................................51
Section 11.8. Notices...................................................52
Section 11.9. Counterparts..............................................53
Section 11.10. Successors and Assigns....................................53
Section 11.11. Participants..............................................53
Section 11.12. Assignment of Commitments by Banks........................54
Section 11.13. Amendments................................................54
Section 11.14. Headings..................................................55
Section 11.15. Legal Fees, Other Costs and Indemnification...............55
Section 11.16. Entire Agreement..........................................55
Section 11.17. Construction..............................................55
Section 11.18. Governing Law.............................................56
Section 11.19. Submission to Jurisdiction; Waiver of Jury Trial..........56
Section 11.20. Statutory Notice - Insurance..............................56
Signature......................................................................1
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EXHIBITS
EXHIBIT A-1 Form of Revolving Note
EXHIBIT A-2 Form of Swingline Note
EXHIBIT B Assignment and Acceptance Agreement
EXHIBIT C Form of Borrowing Base Confirmation
EXHIBIT D Form of Compliance Certificate
SCHEDULES
SCHEDULE 1 Pricing Grid
SCHEDULE 5.2 Existing Subsidiaries
SCHEDULE 5.5 Litigation and Labor Controversies
SCHEDULE 5.12 Liens
SCHEDULE 5.16 Capitalization
SCHEDULE 7.17(c) Outstanding Secured Revenue Equipment Debt
SCHEDULE 7.17(d) Existing Indebtedness
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 5, 2001,
among Transport Corporation of America, Inc., a Minnesota corporation (the
"BORROWER"), the banks from time to time party hereto (each a "BANK," and
collectively the "BANKS"), LaSalle Bank National Association ("LASALLE") in its
capacity as agent for the Banks hereunder (in such capacity, the "AGENT") and
Firstar Bank, N.A. (formerly known as Firstar Bank of Minnesota, National
Association) ("FIRSTAR"), in its capacity as documentation agent (the
"DOCUMENTATION AGENT").
WITNESSETH THAT:
WHEREAS, the Borrower, ABN AMRO Bank N.V., Firstar and the Terminating
Lenders are currently party to that certain Credit Agreement dated as of August
13, 1998; as amended by that certain Amendment to the Credit Agreement dated as
of April 30, 1999; by that certain Second Amendment to Credit Agreement dated as
of June 30, 2000; by that certain Third Amendment to Credit Agreement dated as
of December 15, 2000; by that certain Fourth Amendment to Credit Agreement dated
as of December 28, 2000; by that certain Fifth Amendment and Waiver to Credit
Agreement dated April 13, 2001; by that certain Sixth Amendment and Waiver to
Credit Agreement dated May 15, 2001; by that certain Seventh Amendment and
Waiver Extension dated June 29, 2001 and by that certain Eighth Amendment and
Waiver Extension dated September 14, 2001 (together, the "PRIOR CREDIT
AGREEMENT"). The Borrower has requested that the Prior Credit Agreement be
amended in certain respects as described below to, INTER ALIA, (i) repay the
Obligations held by the Terminating Lenders thereunder, (ii) terminate the
Commitments of the Terminating Lenders thereunder, (iii) replace ABN AMRO Bank
N.V., as a bank and as agent under the Prior Credit Agreement with its
affiliate, LaSalle and (iv) make certain additional modifications to the Prior
Credit Agreement, and for the sake of clarity and convenience, the Borrower has
requested that the Prior Credit Agreement be restated as so amended. This
Agreement shall become effective, and shall amend and restate the Prior Credit
Agreement, on (1) the execution of this Agreement by the Borrower, the Agent and
the Banks and (2) the satisfaction of the conditions precedent contained in
Section 6.1 hereof; and from and after the Effective Date, (i) all references
made to the Prior Credit Agreement in the Credit Documents (other than this
Agreement) or in any other instrument or document shall, without more, be deemed
to refer to this Agreement and (ii) the Prior Credit Agreement shall be deemed
amended and restated in its entirety hereby.
WHEREAS, the Borrower has requested that the Banks continue to extend
credit to the Borrower, and those Banks, upon the occurrence of the Effective
Date and subject to the terms hereof, will continue to lend monies and/or make
advances, extensions of credit or other financial accommodations to, on behalf
of or for the benefit of the Borrower pursuant hereto.
NOW, THEREFORE, in consideration of the recitals set forth above, which
by this reference are incorporated into this Agreement set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and subject to the terms and conditions hereof and on the
basis of the representations and warranties herein set forth, the Borrower, the
Agent and the Banks hereby agree to the following:
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SECTION 1. DEFINITIONS; INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms when used herein have the
following meanings:
"ACCOUNT" is defined in Section 8.4(b) hereof.
"ADJUSTED LIBOR" is defined in Section 2.4(b) hereof.
"AFFILIATE" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "CONTROL" (including, with their correlative
meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies of a Person (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), PROVIDED that, in any
event for purposes of this definition: (i) any Person which owns directly or
indirectly 5% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 5% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person; and (ii) each director and executive officer of the
Borrower or any Subsidiary shall be deemed an Affiliate of the Borrower and each
Subsidiary. Notwithstanding the foregoing, none of the Banks shall be deemed to
be affiliates of the Borrower or any of its Subsidiaries.
"AGENT" is defined in the first paragraph of this Agreement and
includes any successor Agent pursuant to Section 10.7 hereof.
"AGREEMENT" means this Credit Agreement, including all Exhibits and
Schedules hereto, as it may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
"APPLICABLE MARGIN" means, (1) at any time with respect to Eurodollar
Loans, the Eurodollar Margin and (2) at any time with respect to Base Rate
Loans, the Base Rate Margin.
"APPLICATION" is defined in Section 2.3(b) hereof.
"APPRAISAL" means that certain Appraisal delivered by the Borrower
pursuant hereto which was conducted by Xxxxxx & Xxxxxx, Inc. on or about August
21, 2001 covering the Revenue Equipment to be held by the Collateral Agent as
required hereunder.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement in substantially the same form as Exhibit B attached
hereto.
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"AUTHORIZED REPRESENTATIVE" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(e) hereof, or on any
updated such list provided by the Borrower to the Agent, or any further or
different officer of the Borrower so named by any Authorized Representative of
the Borrower in a written notice to the Agent.
"BANK" is defined in the first paragraph of this Agreement.
"BASE RATE" is defined in Section 2.4(a) hereof.
"BASE RATE MARGIN" means the percentage set forth in Schedule 1 hereto
beside the then applicable leverage ratio.
"BASE RATE LOAN" means a Loan bearing interest prior to maturity at a
rate specified in Section 2.4(a) hereof.
"BORROWER" is defined in the first paragraph of this Agreement.
"BORROWING" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Banks on a single date and for a single Interest Period.
Borrowings of Revolving Loans are made and maintained ratably from each of the
Banks according to their Percentages. Borrowings of Swingline Loans are made by
the Swingline Bank in accordance with Section 2.2. A Borrowing is "ADVANCED" on
the day Banks advance funds comprising such Borrowing to the Borrower, is
"CONTINUED" on the date a new Interest Period for the same type of Loans
commences for such Borrowing, and is "CONVERTED" when such Borrowing is changed
from one type of Loan to the other, all as requested by the Borrower pursuant to
Section 2.6(a).
"BORROWING BASE" means, as of any time it is to be determined, the sum
of:
(a) 85% of the remainder of the then outstanding unpaid amount
of Eligible Accounts less any and all returns, rebates, discounts
(which may, at the Agent's option, be calculated on the shortest
terms), credits, allowances, finance charges and/or taxes of any nature
at any time issued, owing, available to or claimed by account debtors,
granted, outstanding or payable in connection with such Eligible
Accounts at such time; PLUS
(b) the lesser of (i) (x) the net book value (computed by the
Borrower in accordance with GAAP) of Revenue Equipment owned by the
Borrower and its Subsidiaries in which the Collateral Agent has a
perfected, first security interest times 56% minus (y) $2,000,000 and
(ii) the Revenue Equipment Cap;
PROVIDED that the Borrowing Base shall be computed only as against and on so
much of such Property as is included on the certificates to be furnished from
time to time by the Borrower pursuant to this Agreement and, if required by the
Agent pursuant to any of the terms hereof, as verified by such other evidence
required to be furnished to the Agent pursuant hereto.
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"BORROWING BASE CONFIRMATION" means a Borrowing Base Confirmation in
the form of Exhibit C attached hereto.
"BUSINESS DAY" means any day other than a Saturday or Sunday on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the Borrowing or payment of a Eurodollar
Loan, on which banks are dealing in U.S. Dollar deposits in the interbank market
in London, England.
"CAPITAL LEASE" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance sheet
of the lessee.
"CAPITALIZED LEASE OBLIGATIONS" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"CASH CAPEX" shall equal the dollar amount of those capital
expenditures made by the Borrower that are not externally financed during the
applicable Test Period.
"CHANGE OF CONTROL" means (i) any "Person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act) is or shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of 20% or more on a fully diluted basis of the
Voting Stock of the Borrower or shall have the right to elect a majority of the
directors of the Borrower (provided, that directors and officers of the Borrower
shall not be deemed to beneficially own each other's Voting Stock of the
Borrower solely due to their status as directors or officers of the Borrower) or
(ii) a majority of the Board of Directors of the Borrower shall cease to consist
of Continuing Directors.
"CMLTD" shall mean, for the then applicable Test Period, all scheduled
payments of principal made during the applicable Test Period on indebtedness
recorded on the Borrower's balance sheet calculated in accordance with GAAP,
including "quarterly" payments on the Replacement Promissory Notes.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" is defined in Section 4.3.
"COLLATERAL AGENT" means LaSalle.
"COMMITMENT FEE RATE" means the percentage set forth in Schedule 1
hereto beside the then applicable leverage ratio.
"COMMITMENTS" is defined in Section 2.1 hereof.
"CONSOLIDATED EBIT" shall mean, for the then applicable Test Period,
Consolidated Net Income of the Borrower and its Subsidiaries, before total
interest expense (whether cash or non-cash) and provisions for taxes based on
income, and determined without giving effect to any
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extraordinary gains or losses but with giving effect to gains or losses from
sales of assets (including, Revenue Equipment) sold in the ordinary course of
business.
"CONSOLIDATED EBITDAR" shall mean, for the then applicable Test Period,
Consolidated EBIT, adjusted by adding thereto the amount of all expenses for
depreciation, amortization and lease rental expenses that were deducted in
determining Consolidated EBIT. In computing Consolidated EBITDAR, any of the
foregoing items realized or accrued for such period and prior to the date of any
acquisition permitted by Section 7.19 by the Person so acquired or attributable
to the assets so acquired shall be included in Consolidated EBITDAR, but only to
the extent that such items of such Person or attributable to such assets would
have been available to the Borrower or its Subsidiary had the Borrower or such
Subsidiary acquired such Person or such assets at the beginning of such period,
such calculations to be made with such other adjustments thereto as mutually
agreed to by the Borrower and the Agent.
"CONSOLIDATED FUNDED INDEBTEDNESS" shall mean, for the then applicable
Test Period, the sum of (i) all short term Indebtedness of the Borrower and its
Subsidiaries (including the current maturities of long-term indebtedness), plus
(ii) all long term Indebtedness of the Borrower and its Subsidiaries, including
Capitalized Lease Obligations, plus (iii) the present value (using a discount
rate of 10% per annum) of non-cancelable operating leases of the Borrower and
its Subsidiaries, plus (iv) the undrawn amount of all standby letters of credit
issued for the account of the Borrower and its Subsidiaries, including any
unpaid reimbursement obligations thereunder.
"CONSOLIDATED INTEREST AND RENTAL EXPENSE" shall mean, for the then
applicable Test Period, total interest expense (including amounts properly
attributable to interest with respect to Capital Leases in accordance with GAAP
and amortization of debt discount and debt issuance costs) and lease rental
expense of the Borrower and its Subsidiaries on a consolidated basis for such
period with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs or benefits under interest rate protection
agreements.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or net
loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP.
"CONTINUING DIRECTORS" means the directors of the Borrower on the
Effective Date and each other director, if such director's nomination for
election to the Board of Directors of the Borrower is recommended by a majority
of the then Continuing Directors.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control that, together with the
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Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
"CREDIT DOCUMENTS" means this Agreement, the Security Agreement, the
Guarantees, the Notes, the Applications and the Letters of Credit.
"CREDIT EVENT" means the advancing of any Loan, the continuation of or
conversion into a Eurodollar Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.
"CREDIT PARTIES" means the Borrower and each Guarantor.
"DEFAULT" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"EARNINGS-BASED PAYMENTS" shall mean the earnings-based payments made
under the terms of the Replacement Promissory Notes during such Test Period.
"EFFECTIVE DATE" means the date on which the Agent has received signed
counterpart signature pages of this Agreement from each of the signatories (or,
in the case of a Bank, confirmation that such Bank has executed such a
counterpart and dispatched it for delivery to the Agent) and the documents
required by Section 6.1 hereof.
"ELIGIBLE ACCOUNTS" means all accounts receivable of the Borrower;
provided that in no event shall an account receivable be deemed an Eligible
Account unless such account receivable:
(a) arises out of the sale by the Borrower of finished goods
inventory delivered to and accepted by, or out of the rendition by the
Borrower of services fully performed by the Borrower and accepted by,
the account debtor on such account receivable and such account
receivable otherwise represents a final sale;
(b) the account debtor on such account receivable is located
within the United States of America or Canada or, if such right has
arisen out of the sale of such goods shipped to, or out of the
rendition of services to, an account debtor located in any other
country, such right is secured by a valid and irrevocable letter of
credit pursuant to which any of the Borrower or its transferee may draw
on a lender reasonably acceptable to the Agent for the full amount
thereof;
(c) is the valid, binding and legally enforceable obligation
of the account debtor obligated thereon and such account debtor is not
(i) a Subsidiary or an Affiliate of the Borrower, (ii) a shareholder
(who owns 5% or more of the Voting Stock of the Borrower or any of its
Subsidiaries), director, officer or employee of the Borrower or any
Subsidiary, (iii) the United States of America, or any state or
political subdivision thereof, or any department, agency or
instrumentality of any of the foregoing, unless the Borrower has
complied with the Assignment of Claims Act or any similar state or
local statute, as the case may be, to the satisfaction of the Agent
(iv) a debtor under any
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proceeding under the United States Bankruptcy Code, as amended, or any
other comparable bankruptcy or insolvency law, or (v) an assignor for
the benefit of creditors;
(d) is not evidenced by an instrument or chattel paper unless
the same has been endorsed and delivered to the Agent;
(e) is an asset of the Borrower to which it has good and
marketable title, is freely assignable;
(f) is not owing from an account debtor who is also a creditor
or supplier of the Borrower, is not subject to any offset, counterclaim
or other defense with respect thereto and, with respect to said account
receivable or the contract or purchase order out of which the same
arose, no surety bond was required or given in connection therewith;
(g) is not unpaid more than 90 days after the original invoice
date; and
(h) does not arise from a sale to an account debtor on a
xxxx-and-hold, guaranteed sale, sale-or-return, sale-on-approval,
consignment or any other repurchase or return basis.
"ENVIRONMENTAL AND HEALTH LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, judgments, permits and other
governmental rules or regulations relating to human health, safety (including
without limitation occupational safety and health standards), or the environment
or to emissions, discharges or releases of pollutants, contaminants, hazardous
or toxic substances, wastes or any other controlled or regulated substance into
the environment, including without limitation ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous or toxic substances, wastes or any other
controlled or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 5.8 hereof.
"EURODOLLAR LOAN" means a Loan bearing interest prior to maturity at
the rate specified in Section 2.4(b) hereof.
"EURODOLLAR MARGIN" means the percentage set forth in Schedule 1 hereto
beside the then applicable leverage ratio.
"EURODOLLAR RESERVE PERCENTAGE" is defined in Section 2.4(b) hereof.
"EVENT OF DEFAULT" means any of the events or circumstances specified
in Section 8.1 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
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"FEDERAL FUNDS RATE" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate set forth in
Section 2.4(a) hereof.
"FEE LETTER" means that certain letter between the Agent, the Issuing
Agent and the Borrower dated on or about August 29, 2001 pertaining to fees to
be paid by the Borrower to the Agent and the Issuing Agent for their sole
account and benefit.
"FIRSTAR" is defined in the first paragraph hereof.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time, applied by the Borrower and its
Subsidiaries on a basis consistent with the preparation of the Borrower's
financial statements furnished to the Banks as described in Section 5.4 hereof.
"GUARANTOR" shall mean each Subsidiary of the Borrower that is or
becomes a party to the Guarantees.
"GUARANTEES" shall mean the guaranty agreements in form satisfactory to
the Agent executed by all Subsidiaries of the Borrower.
"GUARANTY" by any Person means all obligations (other than endorsements
in the ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation (including, without limitation,
limited or full recourse obligations in connection with sales of receivables or
any other Property) of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, or (y) to maintain working capital
or other balance sheet condition, or otherwise, of the primary obligor, or (iii)
to lease property or to purchase Securities or other property or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the primary obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof; PROVIDED, however, that the term "Guaranty" shall not include any
guarantees by the Borrower of the loans made to independent truck drivers
leasing or contracting for equipment and services with the Borrower up to a
maximum principal amount of $10,000,000 at any one time outstanding. For the
purpose of all computations made under this Agreement, the amount of a Guaranty
in respect of any obligation shall be deemed to be equal to the maximum
aggregate amount of such obligation or, if the Guaranty is limited to less than
the full amount of such obligation, the maximum aggregate potential liability
under the terms of the Guaranty.
"HAZARDOUS MATERIAL" means any substance or material which is hazardous
or toxic, and includes, without limitation, (a) asbestos, polychlorinated
biphenyls, dioxins and petroleum or its by-products or derivatives (including
crude oil or any fraction thereof) and (b) any other material
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or substance classified or regulated as "hazardous" or "toxic" pursuant to any
Environmental and Health Law.
"INDEBTEDNESS" means and includes, for any Person, all obligations of
such Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet, and in any event shall include all of the
following whether or not so shown as liabilities (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services (except trade payables), (iii)
obligations of such Person evidenced by bonds, debentures, notes or other
instruments of such Person or noncontingent reimbursement or payment obligations
arising out of letters of credit, acceptances or other surety instrument issued
for such Person's account, (iv) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (v) Capitalized Lease Obligations of
such Person, (vi) a principal portion of synthetic leases to which such Person
is a party as lessee, (vii) obligations for which such Person is obligated
pursuant to a Guaranty and (viii) any equity of such Person or agreement to
acquire or redeem such equity that, by the terms of any provision thereof or
agreement related thereto, is upon the happening of any event or passage of
time, prior to the Termination Date puttable to, or required to be redeemed by,
the Person.
"IMMATERIAL SUBSIDIARY" means any Subsidiary of the Borrower which does
not own, individually, assets in excess of 5% of the Net Worth at any time;
provided that Immaterial Subsidiaries owning assets, in the aggregate, in excess
of 20% of the Net Worth at any time shall cease to qualify as Immaterial
Subsidiaries.
"INTEREST PERIOD" is defined in Section 2.7 hereof.
"ISSUING AGENT" means LaSalle in its capacity as issuing agent, or any
other Bank acting in replacement thereof with the consent of the Agent, the
Banks and the Borrower.
"L/C DOCUMENTS" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications and
this Agreement.
"L/C FACILITY LIMIT" means $5,000,000.
"L/C FEE RATE" means, at any time a rate per annum equal to Eurodollar
Margin.
"L/C OBLIGATIONS" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"LASALLE" is defined in the first paragraph hereof.
"LENDING OFFICE" is defined in Section 9.4 hereof.
"LETTER OF CREDIT" is defined in Section 2.3(a) hereof.
"LIBOR" is defined in Section 2.4(b) hereof.
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"LIEN" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, including, but not
limited to, the security interest or lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "LIEN" shall also
include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, capital leases and other title exceptions
and encumbrances affecting Property. For the purposes of this definition, a
Person shall be deemed to be the owner of any Property which it has acquired or
holds subject to a conditional sale agreement, Capital Lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes, and such retention of title
shall constitute a "LIEN."
"LOAN" means, unless otherwise provided, each and every loan made by
any Bank hereunder and includes Revolving Loans and Swingline Loans.
"MANDATORY BORROWING" is defined in Section 2.2(b) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse change in, or a
material adverse effect upon, the operations, business, Property, or financial
or other condition of the Borrower and its Subsidiaries, taken as whole.
"MAXIMUM SWINGLINE AMOUNT" means $3,000,000.
"NET PROCEEDS FROM ASSET SALES" shall mean the net proceeds received
from the trade-in or sale of Revenue Equipment in the ordinary course of
business during the applicable Test Period.
"NET WORTH" means, as of any time the same is to be determined, the
total shareholders' equity (including capital stock, additional paid-in-capital
and retained earnings after deducting treasury stock, but excluding minority
interests in Subsidiaries) which would appear on the balance sheet of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"NOTE" means and includes Revolving Notes and Swingline Notes.
"OBLIGATIONS" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans and L/C Obligations, and all
other payment obligations of the Borrower arising under or in relation to any
Credit Document.
"PARTICIPATING INTEREST" is defined in Section 2.3(d) hereof.
"PBGC" is defined in Section 5.8 hereof.
"PERCENTAGE" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the Commitments have been
terminated, the percentage held by
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such Bank (including through participation interests in Swingline Loans and L/C
Obligations) of the Obligations on the day such amount is being computed.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization or any other
entity or organization, including a government or any agency or political
subdivision thereof.
"PLAN" means at any time an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code that is either (i) maintained by a member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions. The term "PLAN" shall not include any plan maintained or
contributed to by North Star Transport, Inc. prior to July 1, 1998.
"PLEDGED REVENUE EQUIPMENT" shall mean (i) that certain Revenue
Equipment owned by the Borrower and its Subsidiaries as of the date hereof in
which the Collateral Agent has a perfected, first security interest and (ii) any
future pledge of additional Revenue Equipment in which the Collateral Agent has
a perfected, first security interest, and excluding such Revenue Equipment from
time to time released by the Collateral Agent.
"PRICING DATE" is defined in Schedule 1 hereto.
"PRIOR CREDIT AGREEMENT" is defined in the recitals hereto.
"PROPERTY" means, as to any Person, all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent balance sheet of such Person and its subsidiaries
under GAAP.
"REFERENCE BANK" means LaSalle. In the event that such Bank ceases to
be a "BANK" hereunder or fails to provide timely quotations of interests rates
to the Agent as and when required by this Agreement, then such Bank shall be
replaced by a new reference bank jointly designated by the Agent and the
Borrower.
"REFUNDING BORROWING" is defined in Section 2.6(d) hereof.
"REIMBURSEMENT OBLIGATION" is defined in Section 2.3(c) hereof.
"REPLACEMENT PROMISSORY NOTES" shall mean those certain replacement
promissory notes dated September 14, 2001 which replace those certain promissory
noted dated December 28, 2000 respectively issued by the Borrower to Xxx X.
Xxxxxx, Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx.
"REQUIRED BANKS" means, as of the date of determination thereof, (i) at
any time there are two or fewer Banks party hereto, all such Banks and (ii) at
any time there are more than two
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Banks party hereto (A) prior to the termination of the Commitments, Banks
holding at least 51% of the Percentages and (B) following the termination of the
Commitments, Banks holding at least 51% of the Loans and L/C Obligations.
"REVENUE EQUIPMENT" means tractors and trailers and associated
attachments of all types used by the Borrower or its Subsidiaries for the
transportation of goods for its customers in the ordinary course of its
business.
"REVENUE EQUIPMENT CAP" means $20,000,000; PROVIDED, HOWEVER, such
amount shall be reduced at the end of each month beginning October 1, 2001 by
$833,333 per month until such amount is reduced to zero.
"REVOLVING LOANS" is defined in Section 2.1 hereof.
"REVOLVING NOTE" is defined in Section 2.11 hereof.
"SEC" means the Securities and Exchange Commission.
"SECURITY" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"SECURITY AGREEMENT" means that certain Security Agreement, dated as of
June 7, 2001, among the Borrower and the Collateral Agent, as the same may be
amended, modified, supplemented or restated from time to time.
"SHORTFALL AMOUNT" is defined in Section 2.9(c) hereof.
"SUBSIDIARY" means, as to the Borrower, any corporation or other entity
of which more than fifty percent (50%) of the Voting Stock of such corporation
or similar governing body in the case of a non-corporation (irrespective of
whether or not, at the time, stock or other equity interests of any other class
or classes of such corporation or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned by the Borrower or by one or more of its Subsidiaries.
"SWINGLINE BANK" shall mean Firstar Bank of Minnesota, National
Association, in its capacity as swingline bank, or any other Bank acting in
replacement thereof with the consent of the Agent and the Borrower.
"SWINGLINE EXPIRY DATE" shall mean the date which is two Business Days
prior to the Termination Date.
"SWINGLINE LOANS" is defined in Section 2.2(a) hereof.
"SWINGLINE NOTE" is defined in Section 2.11 hereof.
"TELERATE PAGE 3750" is defined in Section 2.4(b) hereof.
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"TELERATE SERVICE" means the Dow Xxxxx Telerate Service.
"TERMINATING LENDERS" means ABN AMRO Bank N.V., U.S. Bank National
Association, Xxxxx Fargo Bank, N.A. (formerly known as Norwest Bank Minnesota,
National Association); Fleet National Bank; First Union National Bank
(CoreStates) and Bank of America National Trust and Savings Association.
"TERMINATION DATE" means October 5, 2004 or such later date to which
the same is extended pursuant to Section 2.14 hereof.
"TEST PERIOD" shall mean the four consecutive fiscal quarters of the
Borrower then last ended, in each case taken as one accounting period.
"UNFUNDED VESTED LIABILITIES" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the Controlled Group to
the PBGC or the Plan under Title IV of ERISA.
"U.S. DOLLARS" and "$" each means the lawful currency of the United
States of America.
"VOTING STOCK" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary voting
power for the election of directors or similar governing body of such Person.
"WELFARE PLAN" means a "WELFARE PLAN", as defined in Section 3(1) of
ERISA.
"WHOLLY-OWNED" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding shares of
stock or other equity interests (other than directors' qualifying shares as
required by law) shall be owned by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2. INTERPRETATION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day in this Agreement shall be references to Chicago,
Illinois time unless otherwise specifically provided. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, the same shall be done in accordance
with GAAP, to the extent applicable, except where such principles are
inconsistent with the specific provisions of this Agreement.
SECTION 2. THE REVOLVING CREDIT.
SECTION 2.1. THE REVOLVING LOAN COMMITMENT. Subject to the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to make
a loan or loans
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(individually a "REVOLVING LOAN" and collectively the "REVOLVING LOANS") to the
Borrower from time to time on a revolving basis in U.S. Dollars in an aggregate
outstanding amount up to the amount of its revolving credit commitment set forth
on the applicable signature page hereof (such amount, as reduced pursuant to
Section 2.13 or changed as a result of one or more assignments under Section
11.12, its "COMMITMENT" and, cumulatively for all the Banks, the "COMMITMENTS")
before the Termination Date, PROVIDED that the sum of each Bank's Percentage of
Revolving Loans, Swingline Loans and L/C Obligations at any time outstanding
shall not exceed such Bank's Commitment, PROVIDED FURTHER that, the sum of the
aggregate amount of Revolving Loans, the Swingline Loans and L/C Obligations at
any time outstanding shall not exceed the lesser of (i) the Commitments in
effect at such time or (ii) the Borrowing Base as then determined and computed
(subject to Section 2.9(c)). Each Borrowing of Revolving Loans shall be made
ratably from the Banks in proportion to their respective Percentages. As
provided in Section 2.6(a) hereof, the Borrower may elect that each Borrowing of
Revolving Loans be either Base Rate Loans or Eurodollar Loans.
SECTION 2.2. SWINGLINE LOANS. (a) Subject to and upon the terms and
conditions set forth herein, the Swingline Bank agrees to make, at any time and
from time to time on or prior to the Swingline Expiry Date, a loan or loans
(each, a "SWINGLINE LOAN" and, collectively, the "SWINGLINE LOANS") to the
Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate
Loans, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed in aggregate principal amount at any time
outstanding that aggregate principal amount which, when added to the sum of (I)
the aggregate principal amount of all Loans then outstanding and (II) the
aggregate amount of all L/C Obligations outstanding shall not exceed the lesser
of the Commitments in effect at such time or the Borrowing Base at such time and
(iv) shall not exceed the Maximum Swingline Amount. The Swingline Bank will not
make a Swingline Loan after it has received written notice from the Required
Banks stating that a Default or an Event of Default exists and specifically
requesting that the Swingline Bank not make any Swingline Loans, PROVIDED that
the Swingline Bank may continue making Swingline Loans at such time thereafter
as the respective Default or Event of Default has been cured or waived in
accordance with the requirements of this Agreement or the Required Banks have
withdrawn the written notice described above in this sentence. In addition, the
Swingline Bank shall not be obligated to make any Swingline Loan at a time when
any Bank shall be in default of any of its obligations hereunder unless the
Swingline Bank shall have entered into arrangements satisfactory to it and the
Borrower to eliminate the Swingline Bank's risk with respect to the defaulting
Bank's participation in such Swingline Loan, including by cash collateralizing
such defaulting Bank's share of the outstanding Swingline Loans.
(b) On any Business Day the Swingline Bank may, in its sole discretion,
give notice to the Banks that its outstanding Swingline Loans shall be repaid
from the proceeds of a Borrowing of Revolving Loans under Section 2.1, in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "MANDATORY BORROWING") shall be made on the immediately succeeding
Business Day by all Banks (without giving effect to any reductions thereto
pursuant to the last paragraph of Section 8.2 or 8.3) PRO RATA based on each
Bank's Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 8.2 or 8.3), and the proceeds thereof shall be
applied directly to the Swingline Bank to repay the Swingline Bank for such
outstanding Swingline Loans. Each Bank
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hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply
with the minimum borrowing amount otherwise required hereunder, (ii) any
condition specified in Section 6 may not then be satisfied, (iii) the existence
of any Default or Event of Default, (iv) the date of such Mandatory Borrowing
and (v) the amount of the total Commitments at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the United States Bankruptcy Code, as amended, or any other
comparable bankruptcy or insolvency law, with respect to the Borrower), then
each Bank (other than the Swingline Bank) hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase from the Swingline Bank) (without recourse or
warranty) such participations in the outstanding Swingline Loans as shall be
necessary to cause the Banks to share in such Swingline Loans ratably based upon
their respective Percentage (determined before giving effect to any termination
of the Commitments pursuant to Section 8.2 or 8.3), PROVIDED that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Bank until the date the respective participation is required to be
purchased and, to the extent attributable to the purchased participation, shall
be payable to the participant from and after such date and (y) at the time any
purchase of participations pursuant to this sentence is actually made, the
purchasing Bank shall be required to pay the Swingline Bank interest on the
principal amount of participation purchased for each day from and including the
day upon which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the overnight Federal
Funds Rate for the first three days and at the rate otherwise applicable to
Loans maintained as Base Rate Loans for each day thereafter.
SECTION 2.3. LETTERS OF CREDIT.
(a) GENERAL TERMS. Subject to the terms and conditions hereof the
Issuing Agent shall issue standby letters of credit (each a "LETTER OF CREDIT")
for the Borrower's account in an aggregate undrawn face amount up to the amount
of the L/C Facility Limit, provided that the aggregate L/C Obligations at any
time outstanding shall not exceed the difference between the lesser of (i) the
Commitments in effect at such time or (ii) the Borrowing Base as then determined
and computed (subject to Section 2.9(c)), and the aggregate amount of Revolving
Loans and Swingline Loans then outstanding. Each Letter of Credit shall be
issued by the Issuing Agent, but each Bank shall be obligated to purchase an
undivided percentage participation interest of such Letter of Credit from the
Issuing Agent pursuant to Section 2.3(d) hereof in an amount equal to its
Percentage of the amount of each drawing thereunder and, accordingly, the
undrawn face amount of each Letter of Credit shall constitute usage of the
Commitment of each Bank PRO RATA in accordance with each Bank's Percentage.
(b) APPLICATIONS. At any time before the Termination Date, the Issuing
Agent shall, at the request of the Borrower given at least three (3) Business
Days prior to the requested date of issuance, issue one or more Letters of
Credit in a form satisfactory to the Issuing Agent, with expiration dates no
later than the Termination Date in an aggregate face amount as set forth
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above, upon the receipt of a duly executed application for the relevant Letter
of Credit in the form customarily prescribed by the Issuing Agent for the type
of Letter of Credit requested (each an "APPLICATION"). Notwithstanding anything
contained in any Application to the contrary (x) the Borrower's obligation to
pay fees in connection with each Letter of Credit shall be as exclusively set
forth in Section 3 hereof and (y) if the Issuing Agent is not timely reimbursed
for the amount of any drawing under a Letter of Credit on the date such drawing
is paid, the Borrower's obligation to reimburse the Issuing Agent for the amount
of such drawing shall bear interest (which the Borrower hereby promises to pay
on demand) from and after the date such drawing is paid at a rate per annum
equal to the sum of 2% plus the Base Rate from time to time in effect. The
Issuing Agent will promptly notify the Agent, who will then promptly notify the
Banks, of each issuance by it of a Letter of Credit and any amendment or
extension of a Letter of Credit. Without limiting the generality of the
foregoing, the Issuing Agent's obligation to issue, amend or extend the
expiration date of a Letter of Credit is subject to the conditions set forth
herein (including the conditions set forth in Section 6 and the other terms of
this Section 2.3).
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 2.3(b) hereof,
the obligation of the Borrower to reimburse the Issuing Agent for all drawings
under a Letter of Credit (a "REIMBURSEMENT OBLIGATION") shall be governed, to
the extent not inconsistent with this Agreement, by the Application related to
such Letter of Credit, except that reimbursement of each drawing shall be made
in immediately available funds at the Agent's bank account maintained in
Chicago, Illinois (or such other place as specified in writing from time to time
by the Agent) by no later than 12:00 Noon (Chicago time) on the date when such
drawing is paid or, if such drawing was paid after 11:30 a.m. (Chicago time), by
the end of such day. If the Borrower does not make any such reimbursement
payment on the date due (whether through a deemed request for a Base Rate Loan
pursuant to Section 2.6(c) or otherwise) and the Banks fund their participations
therein in the manner set forth in Section 2.3(d) below, then all payments
thereafter received by the Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section 2.3(d)
below.
(d) THE PARTICIPATING INTERESTS. Each Bank, by its acceptance hereof,
severally agrees to purchase from the Issuing Agent, and the Issuing Agent
hereby agrees to sell to each such Bank, an undivided percentage participating
interest (a "PARTICIPATING INTEREST"), to the extent of its Percentage, in each
Letter of Credit issued by, and each Reimbursement Obligation owed to, the
Issuing Agent. Upon any failure by the Borrower to pay any Reimbursement
Obligation at the time required on the date the related drawing is paid, as set
forth in Section 2.3(c) above, or if the Issuing Agent is required at any time
to return to the Borrower or to a trustee, receiver, liquidator, custodian or
other Person any portion of any payment of any Reimbursement Obligation, each
Bank shall, not later than the Business Day of a demand from the Issuing Agent
to such effect, if such demand is received before 1:00 p.m. (Chicago time), or
not later than the following Business Day, if such demand is received after such
time, pay to the Issuing Agent an amount which was paid out by the Issuing Bank
under the relevant Letter of Credit equal to its Percentage of such unpaid or
recaptured Reimbursement Obligation together with interest on such amount
accrued from the date the related payment was made by the Issuing Agent to the
date of such payment by such Bank at a rate per annum equal to (i) from the date
the related payment was made by the Issuing Agent to the date two (2) Business
Days after payment by such Bank is due hereunder, the Federal Funds Rate for
each such day and (ii) from the date two
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(2) Business Days after the date such payment is due from such Bank to the date
such payment is made by such Bank, the Base Rate in effect for each such day.
Each such Bank shall thereafter be entitled to receive its Percentage of each
payment received in respect of the relevant Reimbursement Obligation and of
interest paid thereon, with the Issuing Agent retaining its Percentage as a Bank
hereunder.
The several obligations of the Banks to the Issuing Agent under this
Section 2.3 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Bank may have or have had against the Borrower,
the Agent, the Issuing Agent, any other Bank or any other Person whatsoever.
Without limiting the generality of the foregoing, such obligations shall not be
affected by any Default or Event of Default or by any reduction or termination
of any Commitment of any Bank (except as to assignments made in accordance with
Section 11.12 hereof), and each payment by a Bank under this Section 2.3 shall
be made without any offset, abatement, withholding or reduction whatsoever. The
Issuing Agent and the Agent shall be entitled to offset amounts received for the
account of a Bank under the Credit Documents against unpaid amounts due from
such Bank to the Issuing Agent or the Agent hereunder (whether as fundings of
participations, indemnities or otherwise). The term "PERCENTAGE" or
"PERCENTAGES" as used in this Section 2.3 shall be determined before giving
effect to any termination of the Commitments pursuant to Section 8.2 or 8.3.
(e) INDEMNIFICATION. The Banks shall, to the extent of their respective
Percentages, indemnify the Issuing Agent (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Issuing Agent's gross negligence or willful misconduct) that the
Issuing Agent may suffer or incur in connection with any Letter of Credit. The
Issuing Agent shall be entitled to all of the rights and protections afforded
the Agent under Section Ten hereof. The obligations of the Banks under this
Section 2.3(e) and all other parts of this Section 2.3 shall survive termination
of this Agreement and of all other L/C Documents.
(f) ISSUING AGENT. Each Bank hereby appoints LaSalle as the Issuing
Agent hereunder and hereby authorizes the Issuing Agent to take such action as
Issuing Agent on its behalf and to exercise such powers under the Credit
Documents as are delegated to the Issuing Agent by the terms thereof, together
with such powers as are reasonably incidental thereto. The relationship between
the Issuing Agent and the Banks is and shall be that of agent and principal
only, and nothing contained in this Agreement or any other Credit Document shall
be construed to constitute the Issuing Agent as a trustee or fiduciary for any
Bank or the Borrower. The term "BANK" as used herein and in all other Credit
Documents, unless the context otherwise clearly requires, includes the Issuing
Agent in its individual capacity as a Bank.
SECTION 2.4. APPLICABLE INTEREST RATES.
(a) BASE RATE LOANS INCLUDING SWINGLINE LOANS. Each Base Rate Loan made
or maintained by a Bank, including Swingline Loans made by the Swingline Bank,
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is
-17-
advanced, continued or created by conversion from a Eurodollar Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable Margin plus the Base Rate from time to time in effect,
payable on the last day of its Interest Period and at maturity (whether by
acceleration or otherwise).
"BASE RATE" means for any day the greater of:
(i) the rate of interest announced by LaSalle from time to
time as its prime rate, or equivalent, for U.S. Dollar loans as in
effect on such day, with any change in the Base Rate resulting from a
change in said prime rate to be effective as of the date of the
relevant change in said prime rate; and
(ii) the sum of (x) the rate set forth in the weekly
statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor) on the preceding Business Day opposite
the caption "FEDERAL FUNDS (EFFECTIVE)"; or, if for any relevant day
such rate is not so published on any such preceding Business Day, the
rate for such day will be the arithmetic mean as determined by the
Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (Chicago time) on that day by each of three
leading brokers of Federal funds transactions in Chicago, Illinois
selected by the Agent, plus (y) 1% (1.00%).
(b) EURODOLLAR LOANS. Each Eurodollar Loan made or maintained by a Bank
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued, or created by
conversion from a Base Rate Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin plus
the Adjusted LIBOR applicable for such Interest Period, payable on the last day
of the Interest Period and at maturity (whether by acceleration or otherwise).
"ADJUSTED LIBOR" means, for any Borrowing of Eurodollar Loans, a rate
per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------
1 - Eurodollar Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic
average of the rates of interest per annum (rounded upwards, if necessary, to
the nearest one-sixteenth of one percent) at which deposits in U.S. Dollars in
immediately available funds are offered to the Reference Bank at 11:00 a.m.
(London, England time) two (2) Business Days before the beginning of such
Interest Period by major banks in the interbank eurodollar market for delivery
on the first day of and for a period equal to such Interest Period in an amount
equal or comparable to the principal amount of the Eurodollar Loan scheduled to
be made by the Reference Bank as part of such Borrowing.
-18-
"LIBOR INDEX RATE" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one-sixteenth of one percent)
for deposits in U.S. Dollars for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or comparable to the principal
amount of the Eurodollar Loan scheduled to be made by the Reference Bank as part
of such Borrowing which appears on Telerate Page 3750 as of 11:00 a.m. (London,
England time) on the day two (2) Business Days before the commencement of such
Interest Period.
"TELERATE PAGE 3750" means the display page designated as "Page 3750"
on the Telerate Service (or such other page as may replace such pages on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for deposits in U.S. Dollars).
"EURODOLLAR RESERVE PERCENTAGE" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum rate,
expressed as a decimal, at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are actually imposed and
applicable to the Banks during such Interest Period by the Board of Governors of
the Federal Reserve System (or any successor) on "EUROCURRENCY LIABILITIES", as
defined in such Board's Regulation D (or in respect of any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of extensions of credit or other
assets that include loans by non-United States offices of any Bank to United
States residents), subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurodollar Loans shall be deemed
to be "EUROCURRENCY LIABILITIES" as defined in Regulation D without benefit or
credit for any prorations, exemptions or offsets under Regulation D.
(c) RATE DETERMINATIONS. The Agent shall determine each interest rate
applicable to Obligations, and a determination thereof by the Agent shall be
conclusive and binding except in the case of manifest error.
SECTION 2.5. MINIMUM BORROWING AMOUNTS. Each Borrowing of Base Rate
Loans (other than Swingline Loans) shall be in an amount not less than
$1,000,000 and in integral multiples of $500,000, PROVIDED that a Borrowing of
Base Rate Loans applied to pay a Mandatory Borrowing pursuant to Section 2.2(b)
hereof or a Reimbursement Obligation pursuant to Section 2.6(c) hereof shall be
in an amount equal to such Mandatory Borrowing or Reimbursement Obligation. Each
Borrowing of a Swingline Loan shall be in an amount not less than $100,000 and
in integral multiples of $50,000. Each Borrowing of Eurodollar Loans shall be in
an amount not less than $5,000,000 and in integral multiples of $1,000,000.
SECTION 2.6. MANNER OF BORROWING LOANS AND DESIGNATING INTEREST RATES
APPLICABLE TO LOANS.
(a) NOTICE TO THE AGENT. The Borrower shall give notice to the Agent
(and also to the Swingline Bank, in the case of Swingline Loans) by no later
than 12:00 noon (Chicago time)
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(i) at least three (3) Business Days before the date on which the Borrower
requests the Banks to advance a Borrowing of Eurodollar Loans and (ii) no later
than 10:00 a.m. (Chicago time) on the date the Borrower requests the Banks to
advance a Borrowing of Loans comprised of Base Rate Loans or requests the
Swingline Bank to make Swingline Loans. The Revolving Loans included in each
such Borrowing shall bear interest initially at the type of rate specified in
such notice of a new Borrowing. Thereafter, the Borrower may from time to time
elect to change or continue the type of interest rate borne by each Borrowing of
Revolving Loans or, subject to Section 2.5's minimum amount requirement for each
outstanding Borrowing, a portion thereof, as follows: (i) if such Borrowing is
of Eurodollar Loans, on the last day of the Interest Period applicable thereto,
the Borrower may continue part or all of such Borrowing as Eurodollar Loans for
an Interest Period or Interest Periods specified by the Borrower or, convert
part or all of such Borrowing into Base Rate Loans, (ii) if such Borrowing is of
Base Rate Loans (other than Swingline Loans), on any Business Day, the Borrower
may convert all or part of such Borrowing into Eurodollar Loans for an Interest
Period or Interest Periods specified by the Borrower. The Borrower shall give
all such notices requesting the advance, continuation, or conversion of a
Borrowing of Loans to the Agent (and also to the Swingline Bank, in the case of
Swingline Loans) by telephone or telecopy (which notice shall be irrevocable
once given and, if by telephone, shall be promptly confirmed in writing).
Notices of the continuation of a Borrowing of Loans comprised of Eurodollar
Loans for an additional Interest Period or of the conversion of part or all of a
Borrowing of Eurodollar Loans into Base Rate Loans or of Base Rate Loans into
Eurodollar Loans must be given by no later than 12:00 noon (Chicago time) at
least three (3) Business Days before the date of the requested continuation or
conversion. All such notices concerning the advance, continuation, or conversion
of a Borrowing of Loans shall specify the date of the requested advance,
continuation or conversion of such Borrowing (which shall be a Business Day),
the amount of the requested Borrowing of Loans to be advanced, continued, or
converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the
Interest Period applicable thereto. The Borrower agrees that the Agent (or the
Swingline Bank, as the case may be) may rely on any such telephonic or telecopy
notice given by any person it in good faith believes is an Authorized
Representative without the necessity of independent investigation, and in the
event any such notice by telephone conflicts with any written confirmation, such
telephonic notice shall govern if the Agent (or the Swingline Bank, as the case
may be) has acted in reliance thereon. There may be no more than five (5)
different Interest Periods relating to Eurodollar Loans in effect at any one
time. Notwithstanding anything contrary herein, each Swingline Loan shall be
made and maintained as a Base Rate Loan and may not be converted into a
Eurodollar Loan.
Upon the occurrence and continuance of an Event of Default, each
Eurodollar Loan will automatically, on the last day of the then existing
Interest Period therefor, convert into a Base Rate Loan and (ii) the obligation
of the Banks to make or continue, or to convert Loans into, Eurodollar Loans
shall be suspended.
(b) NOTICE TO THE BANKS. The Agent shall give prompt telephonic or
telecopy notice to each Bank of any notice from the Borrower received pursuant
to Section 2.6(a) above. The Agent shall give notice to the Borrower and each
Bank by like means of the interest rate applicable to each Borrowing of
Eurodollar Loans.
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(c) BORROWER'S FAILURE TO NOTIFY. Any outstanding Borrowing of Base
Rate Loans shall, subject to Section Six hereof, automatically be continued for
an additional Interest Period on the last day of its then current Interest
Period unless the Borrower has notified the Agent within the period required by
Section 2.6(a) that it intends to convert such Borrowing into a Borrowing of
Eurodollar Loans or notifies the Agent within the period required by Section
2.9(a) that it intends to prepay such Borrowing. If the Borrower fails to give
notice pursuant to Section 2.6(a) above of the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurodollar Loans before the last
day of its then current Interest Period within the period required by Section
2.6(a) and has not notified the Agent within the period required by Section
2.9(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be continued as a Borrowing of Eurodollar Loans with an Interest
Period of one month, subject to Section Six hereof. In the event the Borrower
fails to give notice pursuant to Section 2.6(a) above of a Borrowing equal to
the amount of a Reimbursement Obligation and has not notified the Agent by 10:00
a.m. (Chicago time) on the day such Reimbursement Obligation becomes due that it
intends to repay such Reimbursement Obligation through funds not borrowed under
this Agreement, the Borrower shall be deemed to have requested a Borrowing of
Base Rate Loans on such day in the amount of the Reimbursement Obligation then
due, subject to Section Six hereof, which Borrowing shall be applied to pay the
Reimbursement Obligation then due.
(d) DISBURSEMENT OF LOANS. Not later than 11:00 a.m. (Chicago time) on
the date of any requested advance of a new Borrowing of Loans comprised of
Eurodollar Loans, and not later than 12:00 noon (Chicago time) on the date of
any requested advance of a new Borrowing of Base Rate Loans, subject to Section
Six hereof, each Bank (or the Swingline Bank, in the case of Swingline Loans)
shall make available its Loan comprising part of such Borrowing in funds
immediately available at the bank account of the Agent maintained in Chicago,
Illinois (or such other place as specified in writing from time to time by the
Agent) (or such bank account of the Borrower maintained in St. Xxxx, Minnesota
as specified by the Borrower in writing to the Swingline Bank in the case of
Swingline Loans), except to the extent such Borrowing is a reborrowing, in whole
or in part, of the principal amount of a maturing Borrowing of Loans (a
"REFUNDING BORROWING"), in which case each Bank (or the Swingline Bank, in the
case of Swingline Loans) shall record the Loan made by it as a part of such
Refunding Borrowing on its books and records or on a schedule to its Note, as
provided in Section 2.11, and shall effect the repayment, in whole or in part,
as appropriate, of its maturing Loan through the proceeds of such new Loan. The
Agent shall make available to the Borrower Revolving Loans, unless otherwise
specified by the Borrower and agreed to in writing by the Agent, in such bank
account of the Borrower in St. Xxxx, Minnesota as the Agent has previously
agreed in writing to with the Borrower, in each case in the type of funds
received by the Agent from the Banks.
(e) AGENT RELIANCE ON BANK FUNDING. Unless the Agent shall have been
notified by a Bank before the date on which such Bank is scheduled to make
payment to the Agent of the proceeds of a Loan (which notice shall be effective
upon receipt) that such Bank does not intend to make such payment, the Agent may
assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available to
the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank
has not in fact made such payment to the Agent, such Bank shall, on demand, pay
to the Agent the amount made available to the Borrower attributable to such Bank
together with interest
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thereon in respect of each day during the period commencing on the date such
amount was made available to the Borrower and ending on (but excluding) the date
such Bank pays such amount to the Agent at a rate per annum equal to the Federal
Funds Rate. If such amount is not received from such Bank by the Agent
immediately upon demand, the Borrower will, on demand, repay to the Agent the
proceeds of the Loan attributable to such Bank with interest thereon at a rate
per annum equal to the interest rate applicable to the relevant Loan.
SECTION 2.7. INTEREST PERIODS. The term "INTEREST PERIOD" means the
period commencing on the date a Borrowing of Loans is advanced, continued, or
created by conversion and ending: (a) in the case of Base Rate Loans (including
Swingline Loans), on the last Business Day of the calendar quarter in which such
Borrowing is advanced, continued, or created by conversion (or on the last day
of the following calendar quarter if such Loan is advanced, continued or created
by conversion on the last Business Day of a calendar quarter) or (b) in the case
of Eurodollar Loans, the date selected by the Borrower that is 1, 2 or 3 months
thereafter; PROVIDED, HOWEVER, that:
(a) any Interest Period for a Borrowing of Base Rate Loans
(including Swingline Loans) that otherwise would end after the
Termination Date shall end on the Termination Date;
(b) for any Borrowing of Eurodollar Loans, the Borrower may
not select an Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the
following calendar month, the last day of such Interest Period shall be
the immediately preceding Business Day; and
(d) for purposes of determining an Interest Period for a
Borrowing of Eurodollar Loans, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding day
in the next calendar month; provided, however, that if there is no
numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end
on the last Business Day of the calendar month in which such Interest
Period is to end.
SECTION 2.8. MATURITY OF LOANS. Unless an earlier maturity is provided
for hereunder (whether by acceleration or otherwise), each Eurodollar Loan shall
mature and become due and payable by the Borrower on the last day of the
Interest Period applicable thereto and each Base Rate Loan (including Swingline
Loans) shall mature and become due and payable by the Borrower on the
Termination Date.
SECTION 2.9. PREPAYMENTS. (a) The Borrower may prepay without premium
or penalty and in whole or in part (but, if in part, then: (i) if such Borrowing
is of Base Rate Loans (other
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than Swingline Loans), in an amount not less than $1,000,000 and integral
multiples of $500,000 (in an amount not less than $100,000 and integral
multiples of $50,000, in the case of Swingline Loans), (ii) if such Borrowing is
of Eurodollar Loans, in an amount not less than $5,000,000 and integral
multiples of $1,000,000 and (iii) in an amount such that the minimum amount
required for a Borrowing pursuant to Section 2.5 hereof remains outstanding) any
Borrowing of Eurodollar Loans upon three Business Days' prior notice to the
Agent or, in the case of a Borrowing of Base Rate Loans (including Swingline
Loans), notice delivered to the Agent (and also to the Swingline Bank, in the
case of Swingline Loans) no later than 10:00 a.m. (Chicago time) on the date of
prepayment, such prepayment to be made by the payment of the principal amount to
be prepaid and accrued interest thereon to the date fixed for prepayment. The
Agent will promptly advise each Bank of any such prepayment notice it receives
from the Borrower. Any prepayment of Eurodollar Loans shall be subject to
Section 2.12.
(b) REBORROWINGS. Any principal amount of Loans paid or prepaid before
the Termination Date (or the Swingline Expiry Date, in the case of Swingline
Loans) may, subject to the terms and conditions of this Agreement, be borrowed
again.
(c) MANDATORY REPAYMENTS. (i) The Borrower shall repay the Loans, and,
to the extent necessary after giving effect to such prepayment of Loans, provide
cash collateral to be held pursuant to Section 8.4, to the extent the
outstanding amount of Loans (including Swingline Loans) and L/C Obligations
exceeds the Commitments then in effect. All such payments shall be subject to
Section 2.12.
(ii) If at any time the Borrowing Base is less than the aggregate
amount of Loans and L/C Obligations then outstanding (such amount being referred
to as the "SHORTFALL AMOUNT"), then the Borrower shall, within three Business
Days of the occurrence of such circumstance, repay Loans in an amount equal to
the Shortfall Amount (such repayment to be subject to Section 2.12 hereof) and,
to the extent there remains a Shortfall Amount after giving effect to such
repayment of Loans, provide cash collateral to be held pursuant to Section 8.4
such that after giving effect thereto no Shortfall Amount remain. If there
exists a Shortfall Amount and (A) no other Event of Default has then occurred
and is continuing and (B) the Borrower does not so repay the Loans or provide
cash collateral in an amount sufficient such that after giving effect thereto no
Shortfall Amount remains, the Agent may, and shall at the request of the
Required Banks, terminate the Commitments in whole, declare all Loans and all
other Obligations to be immediately due and payable.
SECTION 2.10. DEFAULT RATE. If any payment of principal on any Loan is
not made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed)
from the date such payment was due until paid in full, payable on demand, at a
rate per annum equal to:
(a) for any Base Rate Loan (including Swingline Loans), the
sum of two percent (2%) plus the Base Rate from time to time in effect;
and
(b) for any Eurodollar Loan, the sum of two percent (2%) plus
the rate of interest in effect thereon at the time of such default
until the end of the Interest Period
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applicable thereto and, thereafter, at a rate per annum equal to the
sum of two percent (2%) plus the Base Rate from time to time in effect.
SECTION 2.11. THE NOTES. All Revolving Loans made to the Borrower by a
Bank shall be evidenced by a single promissory note of the Borrower issued to
such Bank in the form of Exhibit A-1 hereto (each a "REVOLVING NOTE" and
collectively the "REVOLVING NOTES"), each such Note to be payable to the order
of the applicable Bank in the amount of its Commitment; PROVIDED that Swingline
Loans made to the Borrower by the Swingline Bank shall be evidenced by a single
promissory note of the Borrower issued to such Bank in the form of Exhibit A-2
(the "SWINGLINE NOTE").
Each Bank shall record on its books and records or on a schedule to the
appropriate Note the amount of each Loan advanced, continued, or converted by
it, all payments of principal and interest and the principal balance from time
to time outstanding thereon, the type of such Loan, and, for any Eurodollar
Loan, the Interest Period and the interest rate applicable thereto. The record
thereof, whether shown on such books and records of a Bank or on a schedule to
any Note, shall be PRIMA FACIE evidence as to all such matters; PROVIDED,
HOWEVER, that the failure of any Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Loans made to it hereunder together with accrued
interest thereon. At the request of any Bank and upon such Bank tendering to the
Borrower the Note to be replaced, the Borrower shall furnish a new Note to such
Bank to replace any outstanding Note, and at such time the first notation
appearing on a schedule on the reverse side of, or attached to, such Note shall
set forth the aggregate unpaid principal amount of all Loans, if any, then
outstanding thereon.
SECTION 2.12. FUNDING INDEMNITY. If any Bank shall incur any loss, cost
or expense (including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired
by such Bank to fund or maintain any Eurodollar Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Bank but
excluding any Applicable Margin) as a result of:
(a) any payment (whether by acceleration or otherwise),
prepayment or conversion of a Eurodollar Loan on a date other than the
last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions
of Section Six or otherwise) by the Borrower to borrow or continue a
Eurodollar Loan, or to convert a Base Rate Loan into a Eurodollar Loan,
on the date specified in a notice given pursuant to Section 2.6(a) or
established pursuant to Section 2.6(c) hereof,
(c) any failure by the Borrower to make any payment of
principal on any Eurodollar Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Eurodollar Loan as a
result of the occurrence of any Event of Default hereunder,
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then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate executed by an officer of such Bank setting
forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate if reasonably calculated
shall be conclusive absent manifest error.
SECTION 2.13. COMMITMENT TERMINATIONS. The Borrower shall have the
right at any time and from time to time (but up to only once per one calendar
quarter), upon five (5) Business Days' prior written notice to the Agent, to
terminate the Commitments without premium or penalty, in whole or in part, any
partial termination to be (i) in an amount not less than $3,000,000 and integral
multiples of $1,000,000 in excess thereof, and (ii) allocated ratably among the
Banks in proportion to their respective Percentages, PROVIDED that the
Commitments may not be reduced to an amount less than the sum of the amount of
all Loans (including Swingline Loans) and all L/C Obligations then outstanding.
The Borrower shall have the right at any time and from time to time (but up to
only once per one calendar quarter), by notice to the Agent, to terminate the
L/C Facility Limit without premium or penalty, in whole or in part, PROVIDED
THAT the L/C Facility Limit may not be reduced to an amount less than the L/C
Obligations then outstanding. Any such termination of the L/C Facility Limit
shall not reduce the Commitments unless the Borrower elects to do so in the
manner provided in the preceding sentence. The Agent shall give prompt notice to
each Bank of any such termination of Commitments or of any termination of the
L/C Facility Limit. Any termination of Commitments or the L/C Facility Limit
pursuant to this Section 2.13 may not be reinstated.
SECTION 2.14. EXTENSION OF COMMITMENTS. On the first and second
anniversary of the Effective Date, the Borrower may request in writing that the
Banks extend the initial Termination Date for up to one additional year and the
Banks shall thereupon perform their own credit analysis of the Borrower and
advise the Borrower and the Agent as to whether they are prepared to grant such
an extension and if so on what terms. In the event all of the Banks honor the
request for such an extension, they shall so notify the Borrower and the
Borrower shall then execute such instruments and documents as the Agent may
reasonably require in order to effect the extension requested.
SECTION 3. FEES.
SECTION 3.1. FEES.
(a) COMMITMENT FEE. For the period from the Effective Date to and
including the Termination Date, the Borrower shall pay to the Agent for the
ratable account of the Banks in accordance with their Percentages a commitment
fee accruing at a rate per annum equal to the Commitment Fee Rate on the average
daily amount of the unused Commitments. Such commitment fee is payable in
arrears on the last Business Day of each calendar quarter and on the Termination
Date, unless the Commitments are terminated in whole on an earlier date, in
which event the fee for the period to but not including the date of such
termination shall be paid
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in whole on the date of such termination. For the purpose of calculating a
commitment fee, outstanding Swingline Loans shall not be deemed a usage of the
Commitments.
(b) LETTER OF CREDIT FEES. (i) The Borrower shall pay to the Agent for
the ratable account of the Banks in accordance with their Percentages, letter of
credit fees with respect to each Letter of Credit at a rate per annum equal to
the L/C Fee Rate on the maximum undrawn amount of such Letter of Credit on any
day on which such Letter of Credit is issued or the amount thereof is increased
(as to the amount so increased) and at the beginning of each quarterly period
computed and payable on such day and, thereafter, on a quarterly basis in
advance on the first Business Day of each calendar quarter.
(ii) The Borrower shall pay to the Issuing Agent, for the account of
such Issuing Agent, a letter of credit fronting fee for each Letter of Credit
issued by such Issuing Agent at the rate per annum equal to the rate set forth
in the Fee Letter on the maximum undrawn amount of such Letter of Credit on any
day on which such Letter of Credit is issued or the amount thereof is increased
(as to the amount so increased) and at the beginning of each quarterly period
computed and payable on such day and, thereafter, on a quarterly basis in
advance on the first Business Day of each calendar quarter.
(iii) The letter of credit fees payable under Section 3.1(b)(i) and the
fronting fees payable under Section 3.1(b)(ii) shall be due and payable on any
day on which each Letter of Credit is issued or the amount thereof is increased
(as to the amount so increased) and, thereafter, quarterly in advance on the
first Business Day of each calendar quarter during which such Letter of Credit
is outstanding, commencing on the first such date to occur after the Effective
Date. All letter of credit fees and fronting fees are non-refundable.
(iv) The Borrower shall pay to the Issuing Agent, for the account of
the Issuing Agent, from time to time on demand the normal issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the Issuing Agent relating to letters of credit as from time to time
in effect and evidenced by a reasonably detailed statement.
(c) OTHER FEES. The Borrower shall pay to the Agent and the
Documentation Agent, the fees agreed to between the Agent, the Documentation
Agent and the Borrower in the Fee Letter or as otherwise agreed in writing
between them.
(d) FEE CALCULATIONS. All fees payable under this Agreement shall be
payable in U.S. Dollars and shall be computed on the basis of a year of 360
days, for the actual number of days elapsed. All determinations of the amount of
fees owing hereunder (and the components thereof, including without limitation
the leverage ratio) shall be made by the Agent and shall be conclusive absent
manifest error.
SECTION 4. PLACE AND APPLICATION OF PAYMENTS; GUARANTEES AND COLLATERAL.
SECTION 4.1. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans and the Reimbursement Obligations, and of
all other amounts payable by the Borrower under this Agreement, shall be made by
the Borrower to the Agent by no later than
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2:00 p.m. (Chicago time) on the due date thereof at the bank account of the
Agent maintained in Chicago, Illinois (or such other location as the Agent may
designate to the Borrower) or, if such payment is on a Reimbursement Obligation,
no later than provided by Section 2.3(c) hereof. Any payments received after
such time shall be deemed to have been received by the Agent on the next
Business Day. All such payments shall be made free and clear of, and without
deduction for, any set-off, counterclaim, levy or any other deduction of any
kind in U.S. Dollars, in immediately available funds at the place of payment.
The Agent will promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest on Loans or applicable fees to the Banks
in accordance with their respective Percentages and like funds relating to the
payment of any other amount payable to any Person to such Person, in each case
to be applied in accordance with the terms of this Agreement.
SECTION 4.2. GUARANTEES. Payment of the Loans and all other Obligations
shall at all times remain guaranteed by each Subsidiary (except Immaterial
Subsidiaries) of the Borrower on the terms and conditions set forth in the
Guarantees, by virtue of such Subsidiary's execution of the Guarantees.
SECTION 4.3. COLLATERAL. The Obligations shall be secured by valid,
perfected (subject to the proviso appearing at the end of this sentence) and
enforceable Liens on all of the Borrower's and each Subsidiary's (i) Receivables
(as defined in the Security Agreement) and (ii) Pledged Revenue Equipment
(collectively, the "COLLATERAL"); PROVIDED, HOWEVER, if any such Pledged Revenue
Equipment is replaced in accordance with Section 7.10 hereof, the Borrower shall
promptly add such Revenue Equipment acquired as a result thereof as additional
Collateral hereunder. The Borrower acknowledges and agrees that the Liens on the
Collateral shall be granted to the Collateral Agent for the benefit of itself,
the Banks, the Issuing Agent and such other parties in connection with Liens
permitted pursuant to Sections 7.18(f) and (g) hereof and shall be valid and
perfected first priority Liens subject, however, to the proviso appearing at the
end of the immediately preceding sentence, in each case pursuant to one or more
Collateral Documents from such Persons, each in form and substance satisfactory
to the Agent.
SECTION 4.4. FURTHER ASSURANCES. The Borrower agrees that it shall, and
shall cause each Subsidiary to, from time to time at the request of the Agent or
the Required Lenders, execute and deliver such documents and do such acts and
things as the Agent or the Required Lenders may reasonably request in order to
provide for or perfect or protect such Liens on the Collateral. In the event the
Borrower or any Subsidiary forms or acquires any other Subsidiary after the date
hereof, the Borrower shall within 10 Business Days of such formation or
acquisition cause such newly formed or acquired Subsidiary to execute a Guaranty
and such Collateral Documents as the Agent may then required, and the Borrower
shall also deliver to the Agent, or cause such Subsidiary to deliver to the
Agent, at the Borrower's cost and expense, such other instruments, documents,
certificates and opinions reasonably required by the Agent in connection
therewith.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to Subsidiaries,
as to each of its Subsidiaries, as follows:
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SECTION 5.1. CORPORATE ORGANIZATION AND AUTHORITY. The Borrower is duly
organized and existing in good standing under the laws of the State of
Minnesota, has all necessary corporate power to carry on its present business;
and is duly licensed or qualified and, in good standing in each jurisdiction in
which the nature of the business transacted by it or the nature of the Property
owned or leased by it makes such licensing, qualification or good standing
necessary and in which the failure to be so licensed, qualified or in good
standing would reasonably be expected to have a Material Adverse Effect. The
Borrower's organizational registration number (if any) is [00-0000000].
SECTION 5.2. SUBSIDIARIES. Schedule 5.2 (as updated from time to time
pursuant to Section 7.1) hereto identifies each Subsidiary, the jurisdiction of
its incorporation, the percentage of issued and outstanding shares of each class
of its capital stock owned by the Borrower and the Subsidiaries and, if such
percentage is not 100% (excluding directors' qualifying shares as required by
law), a description of each class of its authorized capital stock and the number
of shares of each class issued and outstanding. Each Subsidiary is duly
incorporated and existing in good standing as a corporation under the laws of
the jurisdiction of its incorporation, has all necessary corporate power to
carry on its present business, and is duly licensed or qualified and in good
standing in each jurisdiction in which the nature of the business transacted by
it or the nature of the Property owned or leased by it makes such licensing or
qualification necessary and in which the failure to be so licensed or qualified
would have a Material Adverse Effect. All of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and outstanding and fully
paid and nonassessable. As of the Effective Date, such shares owned by the
Borrower are owned beneficially, and of record, free of any Lien.
SECTION 5.3. CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS. Each of
the Credit Parties has full right and authority to enter into, and to perform
all of its obligations under, each of the Credit Documents to which it is a
party, and in the case of the Borrower to make the borrowings herein provided
for, to issue its Notes in evidence thereof and to apply for the issuance of the
Letters of Credit. Each Credit Document to which it is a party has been duly
authorized, executed and delivered by each Credit Party and constitutes valid
and binding obligations of such Credit Party enforceable in accordance with its
terms except as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles. No Credit Document, nor the performance or
observance by the Credit Party party thereto of any of the matters or things
therein provided for, contravenes any provision of law or any charter or by-law
provision of such Credit Party or any material Contractual Obligation of or
affecting such Credit Party or any of its Properties or results in or requires
the creation or imposition of any Lien on any of the Properties or revenues of
the Borrower.
SECTION 5.4. FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE. All
financial statements heretofore delivered to the Banks showing historical
performance of the Borrower for each of the fiscal years ending on or before
December 31, 2000, have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent, except as otherwise noted
therein, with that of the previous fiscal year. Each of such financial
statements fairly presents on a consolidated basis the financial condition of
the Borrower and its Subsidiaries as of the dates thereof and the results of
operations for the periods covered thereby.
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The Borrower and its Subsidiaries included in such financial statements have no
material contingent liabilities other than those disclosed in such financial
statements referred to in this Section 5.4 or in comments or footnotes thereto,
or in any report supplementary thereto, heretofore furnished to the Banks. Since
June 30, 2001, there has been no Material Adverse Effect.
SECTION 5.5. NO LITIGATION; NO LABOR CONTROVERSIES. (a) Except as set
forth on Schedule 5.5, there is no litigation or governmental proceeding
pending, or to the knowledge of the Borrower, threatened, against the Borrower
or any Subsidiary in which there is a reasonable probability of an adverse
determination that would reasonably be expected to have a Material Adverse
Effect.
(b) Except as set forth on Schedule 5.5, there are no labor
controversies pending or, to the best knowledge of the Borrower, threatened
against the Borrower or any Subsidiary which would reasonably be expected to
have a Material Adverse Effect.
SECTION 5.6. TAXES. The Borrower and its Subsidiaries have filed all
United States federal tax returns, and all other material tax returns, required
to be filed and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Borrower or any Subsidiary, except such taxes, if
any, as are being contested in good faith and for which adequate reserves have
been provided. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims are material to the
financial condition of the Borrower and its Subsidiaries taken as a whole. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
for any taxes or other governmental charges are adequate.
SECTION 5.7. APPROVALS. No authorization, consent, license, exemption,
filing or registration with any court or governmental department, agency or
instrumentality, nor any approval or consent of the stockholders of the Borrower
or any Subsidiary or from any other Person, is necessary to the valid execution,
delivery or performance by the Credit Parties of any Credit Document to which it
is a party.
SECTION 5.8. ERISA. With respect to each Plan, the Borrower and each
other member of the Controlled Group has fulfilled its obligations under the
minimum funding standards of and is in compliance in all material respects with
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
with the Code to the extent applicable to it and has not incurred any material
liability to the Pension Benefit Guaranty Corporation ("PBGC") or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. Neither the Borrower nor any Subsidiary has any material
contingent liabilities for any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA or state continuation laws. All current employees of the Borrower or its
Subsidiaries who were covered under any employee pension benefit plan maintained
by North Star Transport, Inc. prior to July 1, 1998 are now covered by a Plan of
either the Borrower or one of its Subsidiaries.
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SECTION 5.9. GOVERNMENT REGULATION. Neither the Borrower nor any
Subsidiary is an "INVESTMENT COMPANY" within the meaning of the Investment
Company Act of 1940, as amended, or a "HOLDING COMPANY", or a "SUBSIDIARY
COMPANY" of a "HOLDING COMPANY", or an "AFFILIATE" of a "HOLDING COMPANY" or of
a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 5.10. MARGIN STOCK; USE OF PROCEEDS. Neither the Borrower nor
any Subsidiary is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock ("MARGIN STOCK" to have the same meaning herein as in Regulation U
of the Board of Governors of the Federal Reserve System). The proceeds of the
Loans and Letters of Credit are to be used solely for the purposes set forth in
and permitted by Section 7.9. The Borrower will not use the proceeds of any Loan
or Letter of Credit in a manner that violates any provision of Regulation U or X
of the Board of Governors of the Federal Reserve System.
SECTION 5.11. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH LAWS. (a)
The Borrower and each of its Subsidiaries (i) has all necessary licenses,
permits and governmental authorizations to own and operate its Properties and to
carry on its business as currently conducted and contemplated and (ii) is in
compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect.
(b) In the ordinary course of its business, the Borrower and its
Subsidiaries conduct an ongoing review of the effect of Environmental and Health
Laws on the Properties and all aspects of the business and operations of the
Borrower and its Subsidiaries in the course of which the Borrower identifies and
evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of Properties
currently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with standards imposed by law and any actual or
potential liabilities to third parties, including employees or governmental
entities, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that Environmental and Health Laws are
unlikely to have a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary has given, nor is it
required to give, nor has it received, any written notice, letter, citation,
order, warning, complaint, inquiry, claim or demand to or from any governmental
entity or in connection with any court proceeding that would reasonably be
expected to have a Material Adverse Effect claiming that: (i) the Borrower or
any Subsidiary has violated, or is about to violate, any Environmental and
Health Law; (ii) there has been a release, or there is a threat of release, of
Hazardous Materials from the Borrower's or any Subsidiary's Property,
facilities, equipment or vehicles; (iii) the Borrower or any Subsidiary may be
or is liable, in whole or in part, for the costs of cleaning up, remediating or
responding to a release of Hazardous Materials; or (iv) any of the Borrower's or
any Subsidiary's Property or assets are subject to a Lien in favor of any
governmental entity for any liability, costs or damages, under any Environmental
and Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
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SECTION 5.12. OWNERSHIP OF PROPERTY. The Borrower and each Subsidiary
has good title to or valid leasehold interests in all its Property free and
clear of material Liens except as permitted hereby or as set forth in Schedule
5.12.
SECTION 5.13. COMPLIANCE WITH AGREEMENTS. To the best knowledge of the
Borrower, neither the Borrower nor any Subsidiary is in default of any
Contractual Obligation which could reasonably be expected to cause a Material
Adverse Effect.
SECTION 5.14. FULL DISCLOSURE. All information (except projections and
forecasts provided in good faith and based on reasonable estimates as to which
no representation is made) heretofore furnished by the Borrower to the Agent or
any Bank for purposes of or in connection with the Credit Documents or any
transaction contemplated thereby is, and all such information hereafter
furnished by the Borrower to the Agent or any Bank will be, true and accurate in
all material respects and not misleading in any material respect on the date as
of which such information is stated or certified, considered as a whole and in
light of the circumstances under which it was furnished.
SECTION 5.15. SOLVENCY. On and as of the Effective Date, (a) the sum of
the assets, at a fair valuation, of the Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (taken as a whole) will exceed the debts of
the Borrower (on a stand-alone basis) or the Borrower and its Subsidiaries
(taken as a whole), as applicable; (b) the Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (taken as a whole) have not incurred and do
not intend to, or believe that they will, incur debts beyond their ability to
pay such debts as such debts mature; and (c) the Borrower (on a stand-alone
basis) and the Borrower and its Subsidiaries (taken as a whole) will have
sufficient capital and assets with which to conduct their businesses. For
purposes of this Section 5.15 "DEBT" means any liability on a claim, and "CLAIM"
means (i) right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
SECTION 5.16. CAPITALIZATION. On the Effective Date, the authorized and
issued capital stock of the Borrower and its Subsidiaries shall be as set forth
on Schedule 5.16. All outstanding shares of capital stock of the Borrower have
been duly and validly issued, and are fully paid and nonassessable. The Borrower
and its Subsidiaries do not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock, except as set forth on Schedule
5.16.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan,
or of the Issuing Agent to issue, extend the expiration date (including by not
giving notice of nonrenewal) of or
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increase the amount of any Letter of Credit or of the Swingline Bank to make any
Swingline Loan, shall be subject to the following conditions precedent:
SECTION 6.1. INITIAL CREDIT EVENT. Before or concurrently with the
initial Credit Event:
(a) The Agent shall have received for each Bank the favorable
written opinion of Robins, Kaplan, Xxxxxx & Xxxxxx LLP, counsel to the
Borrower in form and substance acceptable to the Banks;
(b) The Agent shall have received for each Bank copies of (i)
the Articles of Incorporation, together with all amendments, and a
certificate of good standing, for each Credit Party, both certified as
of a date not earlier than 20 days prior to the date hereof by the
appropriate governmental officer of such Credit Party's jurisdiction of
incorporation and (ii) such Credit Party's bylaws (or comparable
constituent documents) and any amendments thereto, certified in each
instance by its Secretary or an Assistant Secretary;
(c) The Agent shall have received for each Bank copies of
resolutions of each Credit Party's Board of Directors authorizing the
execution and delivery of the Credit Documents to which it is a party
and the consummation of the transactions contemplated thereby together
with specimen signatures of the persons authorized to execute such
documents on such Credit Party's behalf, all certified in each instance
by its Secretary or Assistant Secretary;
(d) The Agent shall have received (i) sufficient copies for
each Bank of duly executed originals of the Credit Documents (other
than the Notes), (ii) for each Bank such Bank's duly executed Note of
the Borrower dated the date hereof and otherwise in compliance with the
provisions of Section 2.11 hereof and (iii) UCC financing statements to
be filed against the Borrower and each Subsidiary, as debtor, in favor
of the Collateral Agent, as secured party;
(e) The Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives, a Borrowing Base Confirmation
showing the Borrowing Base as of not earlier than August 31, 2001 and
such other documents as any Bank may reasonably request; and
(f) The Agent shall have received the Appraisal;
(g) The Borrower shall request an amount hereunder sufficient
to repay the obligations held by the Terminating Banks under the Prior
Credit Agreement, and the Borrower consents to the termination of the
Commitments of each Terminating Bank; and
(h) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks and each of
the Agent, the Documentation Agent and the Banks has received all fees
and other amounts due payable by the Borrower on or before the
Effective Date.
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SECTION 6.2. ALL CREDIT EVENTS. As of the time of each Credit Event:
(a) In the case of a Borrowing, the Agent shall have received
the notice required by Section 2.6, and in the case of the issuance of
any Letter of Credit the Issuing Agent shall have received the notice
required by Section 2.3(b) and a duly completed Application for a
Letter of Credit and, in the case of an extension or increase in the
amount of a Letter of Credit, a written request therefor, in a form
acceptable to the Issuing Agent;
(b) Each of the representations and warranties set forth in
Section 5 hereof shall be and remain true and correct in all material
respects as of said time, except that if any such representation or
warranty relates solely to an earlier date it need only remain true as
of such date;
(c) No Default or Event of Default shall have occurred and be
continuing or would occur as a result of such Credit Event;
(d) After giving effect to the Credit Event the aggregate
amount of all Loans (including Swingline Loans) and L/C Obligations
shall not exceed the lesser of (i) the Commitments then in effect and
(ii) the Borrowing Base as determined by the Agent; and
(e) Such Credit Event shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the
issuance of, increase in the amount of, or extension of the expiration date of,
a Letter of Credit shall be deemed to be a representation and warranty by the
Borrower on the date of such Credit Event as to the facts specified in
paragraphs (b)-(e) of this Section 6.2.
SECTION 6.3. POST-CLOSING ITEMS. Within 90 days from the date hereof,
the Agent shall have received financial statement, tax and judgment lien search
results against the Property of the Borrower and each Subsidiary evidencing the
absence of material Liens on its Property except as permitted by Section 7.18
hereof.
SECTION 6.4. DETERMINATIONS UNDER SECTION 6.1. For purposes of
determining compliance with the conditions specified in Section 6.1, each Bank
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an officer of the
Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Bank prior to the Effective Date specifying its
objection thereto.
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SECTION 7. COVENANTS.
The Borrower covenants and agrees that, so long as any Note (including
any Swingline Note) or any L/C Obligation is outstanding hereunder, or any
Commitment is available to or in use by the Borrower hereunder, except to the
extent compliance in any case is waived in writing by the Required Banks:
SECTION 7.1. CORPORATE EXISTENCE; SUBSIDIARIES. The Borrower shall, and
shall cause each of its Subsidiaries to, preserve and maintain its corporate
existence, subject to the provisions of Section 7.10 hereof. As a condition to
establishing or acquiring any Subsidiary (except Immaterial Subsidiaries) or if
any Immaterial Subsidiary fails to continue to qualify as an Immaterial
Subsidiary, unless the Required Banks otherwise agree, the Borrower shall,
promptly after the establishment or acquisition (or such failure) thereof, (i)
cause such Subsidiary to execute a Guarantee, (ii) cause such Subsidiary to
deliver documentation similar to that described in Sections 6.1(b) and (c)
relating to the authorization for, execution and delivery of, and validity of
such Subsidiary's obligations as a Guarantor under the Guarantee in form and
substance satisfactory to the Agent and (iii) deliver an updated Schedule 5.2 to
reflect the new Subsidiary. The Borrower shall not change its state of
organization without the Agent's prior written consent.
SECTION 7.2. MAINTENANCE. The Borrower will maintain, preserve and keep
its plants, Properties and equipment necessary to the proper conduct of its
business in reasonably good repair, working order and condition and will from
time to time make all reasonably necessary repairs, renewals, replacements,
additions and betterments thereto so that at all times such plants, Properties
and equipment shall be reasonably preserved and maintained, and the Borrower
will cause each of its Subsidiaries to do so in respect of Property owned or
used by it.
SECTION 7.3. TAXES. The Borrower will duly pay and discharge, and will
cause each of its Subsidiaries duly to pay and discharge, all material taxes,
rates, assessments, fees and governmental charges upon or against it or against
its Properties, in each case before the same becomes delinquent and before
penalties accrue thereon, unless and to the extent that the same is being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP have been provided therefor on the books of the Borrower.
SECTION 7.4. ERISA. The Borrower will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any of its properties or assets and will
promptly notify the Agent of (i) the occurrence of any reportable event (as
defined in ERISA) affecting a Plan, other than any such event of which the PBGC
has waived notice by regulation, (ii) receipt of any notice from PBGC of its
intention to seek termination of any Plan or appointment of a trustee therefor,
(iii) its or any of its Subsidiaries' intention to terminate or withdraw from
any Plan, and (iv) the occurrence of any event affecting any Plan which would
reasonably be expected to result in the incurrence by the Borrower or any of its
Subsidiaries of any material liability, fine or penalty, or any material
increase in the
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contingent liability of the Borrower or any of its Subsidiaries under any
post-retirement Welfare Plan benefit.
SECTION 7.5. INSURANCE. The Borrower will insure, and keep insured, and
will cause each of its Subsidiaries to insure, and keep insured, with good and
responsible insurance companies, all insurable Property owned by it of a
character usually insured by companies similarly situated and operating like
Property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, the Borrower
will also insure, and cause each of its Subsidiaries to insure, employers' and
public and product liability risks with good and responsible insurance
companies. The Borrower will upon request of any Bank furnish to such Bank a
summary setting forth the nature and extent of the insurance maintained pursuant
to this Section 7.5.
SECTION 7.6. FINANCIAL REPORTS AND OTHER INFORMATION. (a) The Borrower
will maintain a system of accounting in accordance with GAAP and will provide
sufficient copies to the Agent to furnish to the Banks which the Agent shall
promptly forward to the Banks:
(i) within 90 days after the end of each fiscal year of the
Borrower, a copy of the Borrower's financial statements for such fiscal
year, including the consolidated balance sheet of the Borrower for such
year and the related statement of income and statement of cash flow, as
certified by independent public accountants of recognized national
standing selected by the Borrower in accordance with GAAP with such
accountants' opinion (such opinion to be unqualified) to the effect
that the financial statements have been prepared in accordance with
GAAP and present fairly in all material respects in accordance with
GAAP the consolidated financial position of the Borrower and its
Subsidiaries as of the close of such fiscal year and the results of
their operations and cash flows for the fiscal year then ended and that
an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(ii) promptly upon the filing thereof (if any), copies of all
registration statements, Form 10-K, Form 10-Q and Form 8-K reports and
proxy statements which the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any successor agency;
(iii) on or before the 20th day of each month (and concurrent
with the delivery of the Borrowing Base Confirmation delivered pursuant
to Section 7.6(a)(iv)), a consolidated unaudited balance sheet of the
Borrower, and the related statement of income and statement of cash
flow, as of the close of, and for, each calendar month, all of the
foregoing prepared by the Borrower in reasonable detail in accordance
with GAAP and certified by the Borrower's President, chief financial
officer or corporate controller as fairly presenting the financial
condition as at the dates thereof and the results of operations for the
periods covered thereby;
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(iv) as soon and frequently as available, and in any event at
least monthly and within 20 days of the end of each calendar month, a
Borrowing Base Confirmation showing the computation of the Borrowing
Base in reasonable detail as of the close of business on the last day
of the period covered thereby, together with such other information as
is therein required, prepared by the Borrower and certified to by the
President, chief financial officer or corporate controller of the
Borrower; provided that, during the continuation of any Default or
Event of Default, the Borrower will provide the foregoing Confirmation
and information as often and in detail as requested by the Agent or the
Required Banks; and
(v) promptly after the sending or filing thereof, copies of
all other regular, periodic and special reports and all registration
statements the Borrower files with the SEC or any successor thereto, or
with any national securities exchanges.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) of this Section 7.6 shall be accompanied by a written certificate
in the form attached hereto as Exhibit D signed by the Borrower's President,
chief financial officer or corporate controller to the effect that no Default or
Event of Default has occurred and is continuing during the period covered by
such statements or, if any such Default or Event of Default has occurred and is
continuing during such period, setting forth a description of such Default or
Event of Default and specifying the action, if any, taken by the Borrower to
remedy the same.
(c) The Borrower will promptly (and in any event within three Business
Days after the President, chief executive, operation or financial officer or
corporate controller of the Borrower has knowledge thereof) give notice to the
Agent and each Bank:
(i) of the occurrence of any Default or Event of Default;
(ii) of any default or event of default under any Contractual
Obligation (which would reasonably be expected to have a Material
Adverse Effect) of the Borrower or any of its Subsidiaries;
(iii) of a Material Adverse Effect;
(iv) of the institution of any litigation or governmental
proceeding of the type required to be described in Section 5.5 hereof;
(v) of any material change in the information set forth on the
Schedules hereto; and
(vi) of any material change in accounting practices and of any
change in depreciation methods with respect to Revenue Equipment.
SECTION 7.7. BANK INSPECTION RIGHTS. Upon reasonable notice from the
Agent or the Required Banks, the Borrower will, at the Borrower's expense,
permit the Agent or such Required Banks (and such Persons as the Agent or any
such Bank may designate) during normal
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business hours to visit and inspect, under the Borrower's guidance, any of the
properties of the Borrower or any of its Subsidiaries, to examine all of their
books of account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers, all at such reasonable times and as often as may be
reasonably requested.
SECTION 7.8. CONDUCT OF BUSINESS. Neither the Borrower nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of either the Borrower or the Borrower and its
Subsidiaries taken as a whole would be substantially changed from that conducted
on the date hereof.
SECTION 7.9. USE OF PROCEEDS; REGULATION U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by the
Borrower for (i) payment of the obligations held by the Terminating Banks under
the Prior Credit Agreement, (ii) working capital purposes, (iii) capital
expenditures including revenue equipment financing, (iv) general corporate
purposes, including non-hostile acquisitions. The Borrower will not use any part
of the proceeds of any of the Borrowings or of the Letters of Credit directly or
indirectly to purchase or carry any margin stock (as defined in Section 5.10
hereof) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.
SECTION 7.10. MERGERS, CONSOLIDATIONS AND SALES. The Borrower shall
not, nor shall it permit any Subsidiary to, be a party to any merger or
consolidation; or sell, transfer, lease or otherwise dispose of all or any
substantial part of its Property, including as a part of a sale and leaseback
transaction, or in any event, sell or discount (with or without recourse) any of
its notes or accounts receivable; PROVIDED, HOWEVER, that this Section shall not
apply to nor operate to prevent (i) the Borrower being a party to any merger
where the Borrower is the surviving Person if, after giving effect to such
merger, no Default or Event of Default would then exist, (ii) any Subsidiary (a)
merging into another Subsidiary or the Borrower or (b) being a party to any
merger which does not involve the Borrower or another Subsidiary where such
Subsidiary is the surviving Person if, after giving effect to such merger, no
Default or Event of Default would then exist, (iii) the Borrower or any
Subsidiary from selling its inventory, rendering its services or trading in its
equipment in the ordinary course of its business and (iv) the Borrower from
selling the real estate located at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx, Xxxxxxxxx
00000 the net proceeds of which shall be applied to the Replacement Promissory
Notes subject only to the following conditions at the time of payment: that the
Borrower (x) shall not have voluntarily or involuntarily entered into bankruptcy
proceedings, failed to pay or admitted in writing its ability to pay its debts
generally as they become due, made an assignment for the benefit of creditors,
applied for or acquiesced in the appointment of a receiver or taken any
corporate action in furtherance of any of the foregoing, (y) shall not be in
default in the payment when due of any principal, interest or fees under the
this Agreement beyond the expiration of any applicable notice and cure period
and (z) shall have a net worth equal to or greater than $78,500,000.
As used in this Section 7.10, a sale, lease, transfer or disposition of
Property shall be deemed to be of a "substantial part" of Property of the
Borrower and its Subsidiaries if the book value of such Property, when added to
the book value of all other Property sold, leased, transferred or disposed of by
the Borrower and its Subsidiaries (other than in the ordinary course
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of business) during the same calendar year, exceeds five percent (5%) of the
consolidated assets of the Borrower and its Subsidiaries determined as of the
end of the immediately preceding calendar year.
SECTION 7.11. USE OF PROPERTY AND FACILITIES; ENVIRONMENTAL AND HEALTH
AND SAFETY LAWS. (a) The Borrower will, and will cause each of its Subsidiaries
to, comply in all material respects with the requirements of all Environmental
and Health Laws applicable to or pertaining to the Properties or business
operations of the Borrower or any Subsidiary of the Borrower, except where
failure to comply would not reasonably be expected to have a Material Adverse
Effect. Without limiting the foregoing, the Borrower will not, and will not
permit any Person within its control to, except in accordance with applicable
law, dispose of any Hazardous Material into, onto or upon any real property
owned or operated by the Borrower or any of its Subsidiaries.
(b) The Borrower will promptly provide the Banks with copies of any
notice or other instrument of the type described in Section 5.11(c) hereof, and
in no event later than five (5) Business Days after the President, chief
executive, operation or financial officer or corporate controller of the
Borrower receives such notice or instrument.
SECTION 7.12. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The
Borrower shall not declare or pay any dividends or make a distribution of any
kind (including by redemption or purchase), other than dividends in the form of
the Borrower's stock, on its outstanding capital stock; PROVIDED, that so long
as no Default or Event of Default exists prior to or would result after giving
effect such action, the Borrower may declare and pay dividends or make
distributions of any kind (including by redemption or purchase) in an aggregate
amount not to exceed $2,000,000 during the time period from and including June
30, 2001 to and including the Termination Date.
SECTION 7.13. COMPLIANCE WITH LAWS. Without limiting any of the other
covenants of the Borrower in this Section Seven, the Borrower will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be, in
compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect.
SECTION 7.14. NET WORTH. The Borrower shall, at the end of each Test
Period, maintain Net Worth at the end of such Test Period at not less than the
sum of (i) $68,000,000 plus (ii) 75% of Consolidated Net Income for the
cumulative period commencing July 1, 2001 and ending at the end of such Test
Period (without taking into account any deficit in Consolidated Net Income).
SECTION 7.15. CONSOLIDATED FUNDED INDEBTEDNESS TO CONSOLIDATED EBITDAR.
The Borrower shall, at the end of each Test Period, maintain a ratio of
Consolidated Funded Indebtedness to Consolidated EBITDAR as follows: (i) for
each Test Period through and including December 31, 2001, such ratio may not be
more than 3.0 to 1.00; (ii) for each Test Period thereafter through and
including June 30, 2002, such ratio may not be more than 2.75 to 1.00 and (iii)
for each Test Period thereafter, such ratio may not be more than 2.50 to 1.00.
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SECTION 7.16. MINIMUM CASH FLOW COVERAGE. The Borrower shall, at the
end of such Test Period, maintain a ratio of (i) Consolidated EBITDAR LESS all
taxes paid in cash during such Test Period LESS Cash Capex LESS Earnings-Based
Payments PLUS Net Proceeds from Asset Sales to (ii) Consolidated Interest and
Rental Expense PLUS CMLTD which shall be not less than 1.25 to 1.0.
SECTION 7.17. INDEBTEDNESS. The Borrower shall not, nor shall it permit
any Subsidiary to, issue, incur, assume, create or have outstanding any
Indebtedness; PROVIDED, HOWEVER, that the foregoing shall not restrict nor
operate to prevent:
(a) the Obligations of the Borrower and its Subsidiaries from
time to time owing to the Banks under this Agreement;
(b) in addition to the Indebtedness permitted by Section
7.17(c) below, purchase money indebtedness and Capitalized Lease
Obligations secured by Liens permitted by Section 7.18(c) hereof;
(c) existing Indebtedness of the Borrower and its Subsidiaries
in respect of outstanding secured revenue equipment debt as set forth
on Schedule 7.17(c) hereto and which shall amortize or be prepaid
according to the amortization listed on such Schedule;
(d) other existing Indebtedness of the Borrower and its
Subsidiaries set forth on Schedule 7.17(d);
(e) Indebtedness of the Borrower up to $13,000,000 with
respect to the synthetic lease transaction in connection with the
Borrower's acquisition and construction of its corporate headquarters
in Eagan, Minnesota;
(f) the indebtedness evidenced by the Replacement Promissory
Notes; and
(g) Indebtedness of the Borrower not to exceed $1,500,000 in
connection with liability arising out of the processing of incoming and
outgoing transfer of funds by automatic clearing house transfer, wire
transfer, or otherwise pursuant to agreement or overdraft and related
cash management services afforded to Borrower or any of its
Subsidiaries by any Bank or affiliate of any Bank.
SECTION 7.18. LIENS. The Borrower shall not, nor shall it permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
Property owned by the Borrower or any Subsidiary; PROVIDED, HOWEVER, that the
foregoing shall not apply to nor operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith cash deposits in connection with tenders, contracts
or leases to which the Borrower or any Subsidiary is a party or other
cash deposits required to be made in the ordinary course of business,
provided in each case that the obligation is not for borrowed money and
that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which
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prevent enforcement of the matter under contest and adequate reserves
have been established therefor;
(b) mechanics', workmen's, materialmen's, landlords',
carriers', or other similar Liens arising in the ordinary course of
business with respect to obligations which are not due or which are
being contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest;
(c) Liens on property of the Borrower or any of its
Subsidiaries created solely for the purpose of securing indebtedness
permitted by Section 7.17(b) hereof, representing or incurred to
finance, refinance or refund the purchase price of Property, PROVIDED
that no such Lien shall extend to or cover other Property of the
Borrower or such Subsidiary other than the respective Property so
acquired, and the principal amount of indebtedness secured by any such
Lien shall at no time exceed the original purchase price of such
Property;
(d) Liens as set forth in Schedule 5.12;
(e) Liens in favor of the Collateral Agent for the Banks under
the Security Agreement;
(f) Liens in connection with Indebtedness permitted by Section
7.17(e) on a pari passu basis with the liens granted under the Security
Agreement, LIMITED, HOWEVER, to an amount not to exceed $2,000,000; and
(g) Liens in connection with Indebtedness permitted pursuant
to Section 7.17(g) on a PARI-PASSU basis with the liens granted under
the Security Agreement.
SECTION 7.19. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND
GUARANTIES. The Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or loans or
advances (other than for travel advances and other similar cash advances made to
employees in the ordinary course of business) to, any other Person, or acquire
all or any substantial part of the assets or business of any other Person or
division thereof, or be or become liable as endorser, guarantor, surety or
otherwise for any debt, obligation or undertaking of any other Person, or
otherwise agree to provide funds for payment of the obligations of another, or
supply funds thereto or invest therein or otherwise assure a creditor of another
against loss, or apply for or become liable to the issuer of a letter of credit
which supports an obligation of another, or subordinate any claim or demand it
may have to the claim or demand of any other Person; PROVIDED, HOWEVER, that the
foregoing shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America, PROVIDED that any such obligations shall mature within one
year of the date of issuance thereof;
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(b) investments in commercial paper rated at least P-1 by
Xxxxx'x Investors Services, Inc. and at least A-1 by Standard & Poor's
Corporation maturing within 270 days of the date of issuance thereof;
(c) investments in certificates of deposit issued by any
commercial bank having capital and surplus of not less than
$100,000,000 which have a maturity of one year or less;
(d) endorsement of items for deposit or collection of
commercial paper received in the ordinary course of business;
(e) existing equity investments in Subsidiaries of the
Borrower;
(f) guaranty by the Subsidiaries pursuant to the Guarantees;
(g) acquisitions of all or substantially all of the assets or
business of any other Person engaged in the same or similar business as
the Borrower or any of its Subsidiaries, or of a division of a Person
engaged in such a business, or of all or substantially all the Voting
Stock of a Person, so long as (i) no Default or Event of Default exists
or would exist after giving effect to such acquisition, (ii) the Board
of Directors or other governing body of such Person whose Property or
Voting Stock is being so acquired has approved the terms of such
acquisition, (iii) the Borrower can demonstrate that (on a PRO FORMA
basis as to Section 7.15) after giving effect to such acquisition it
will continue to comply through the term of this Agreement with all the
terms and conditions of the Credit Documents, (iv) consideration (cash
and non-cash) for such acquisition does not exceed $10,000,000 and (v)
the Borrower has provided to the Banks such financial and other
information regarding the Person whose Property or Voting Stock is
being so acquired, including historical financial statements, and a
description of such Person, as the Agent or the Required Banks have
reasonably requested; and
(h) guarantees by the Borrower of loans made to independent
truck drivers leasing or contracting for equipment and services with
the Borrower up to a maximum principal amount of $1,000,000 at any one
time outstanding.
In determining the amount of investments, acquisitions, loans, advances and
guarantees permitted under this Section 7.19, investments and acquisitions shall
always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guarantees shall be taken at
the amount of obligations guaranteed thereby.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
SECTION 8.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an Event of Default:
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(a) (i) default in the payment when due of the principal
amount of any Loan or of any Reimbursement Obligation or (ii) default
in the payment when due of fees, interest or of any other Obligation;
(b) default by the Borrower in the observance or performance
of any covenant set forth in Section 7.10, 7.12, 7.14 through and
including Section 7.19 hereof;
(c) default by the Borrower in the observance or performance
of any provision hereof or of any other Credit Document not mentioned
in (a) or (b) above, which is not remedied within thirty (30) days
after notice thereof shall have been given to the Borrower by the
Agent;
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $2,000,000 or more of the Borrower or any
Subsidiary or (ii) default shall occur under one or more indentures,
agreements or other instruments under which any Indebtedness of the
Borrower or any Subsidiary in an aggregate principal amount of
$2,000,000 or more may be issued or created and such default shall
continue for a period of time sufficient to permit the holder or
beneficiary of such Indebtedness or a trustee therefor to cause the
acceleration of the maturity of any such Indebtedness or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any other
Credit Document by a Credit Party, or in any statement or certificate
furnished pursuant hereto or pursuant to any other Credit Document by a
Credit Party, or in connection with any Credit Document, proves untrue
in any material respect as of the date of the issuance or making, or
deemed making or issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any analogous action is taken under any
other applicable law relating to bankruptcy or insolvency not dismissed
or fully bonded within 90 days, (ii) fail to pay, or admit in writing
its inability to pay, its debts generally as they become due, (iii)
make an assignment for the benefit of creditors, (iv) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any
substantial part of its Property, (v) institute any proceeding seeking
to have entered against it an order for relief under the United States
Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
to file an answer or other pleading denying the material allegations of
any such proceeding filed against it, (vi) take any corporate action
(such as the passage by the Borrower's board of directors of a
resolution) in furtherance of any matter described in parts (i)-(v)
above, or (vii) fail to contest in good faith any appointment or
proceeding described in Section 8.1(g) hereof;
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(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any material
Subsidiary or any substantial part of any of their Property, or a
proceeding described in Section 8.1(f)(v) shall be instituted against
the Borrower or any Subsidiary, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a
period of ninety (90) days;
(h) the Borrower or any Subsidiary shall fail within
forty-five (45) days to pay, bond or otherwise discharge any judgment
or order for the payment of money in excess of $2,000,000, which is not
stayed on appeal or otherwise being appropriately contested in good
faith in a manner that stays execution thereon;
(i) the Borrower or any other member of the Controlled Group
shall fail to pay when due an amount or amounts which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA;
or notice of intent to terminate a Plan or Plans having aggregate
Unfunded Vested Liabilities in excess of $2,000,000 (collectively, a
"MATERIAL PLAN") shall be filed under Title IV of ERISA by the Borrower
or any Subsidiary or any other member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan
against the Borrower or any other member of the Controlled Group to
enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated;
(j) Borrower's or any Subsidiary's obligations under any
Credit Document ceases to be in full force and effect, any Guarantor or
any Person acting on behalf of such Guarantor shall deny, disaffirm or
repudiate such Guarantor's obligations under the Guarantees, or an
event of default occurs and remains unremedied for 30 days under any of
the Credit Documents;
(k) a Change of Control shall occur; or
(l) the Obligations shall cease to rank at least PARI PASSU in
right of payment with all other senior unsecured obligations of the
Borrower.
SECTION 8.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default other
than those described in subsections (f) or (g) of Section 8.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the Borrower,
if so directed by the Required Banks: (a) terminate the remaining Commitments
and all other obligations of the Banks hereunder on the date stated in such
notice (which may be the date thereof); (b) declare the principal of and the
accrued interest on all outstanding Notes to be forthwith due and payable and
thereupon all outstanding Notes, including both principal and interest thereon,
shall be and become immediately due and payable together with all other amounts
payable under the Credit Documents without further demand, presentment, protest
or notice of any kind; and (c) demand that the Borrower immediately pay to the
Agent, subject to Section 8.4, the full amount then available for drawing under
each or any
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Letter of Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Banks would not have an adequate remedy at law
for failure by the Borrower to honor any such demand and that the Agent, for the
benefit of the Banks, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any drawings or other
demands for payment have been made under any Letter of Credit. The Agent, after
giving notice to the Borrower pursuant to Section 8.1(c) or this Section 8.2,
shall also promptly send a copy of such notice to the other Banks, but the
failure to do so shall not impair or annul the effect of such notice.
SECTION 8.3. BANKRUPTCY DEFAULTS. When any Event of Default described
in subsections (f) or (g) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Credit Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent, subject to Section 8.4, the
full amount then available for drawing under all outstanding Letters of Credit,
the Borrower acknowledging that the Banks would not have an adequate remedy at
law for failure by the Borrower to honor any such demand and that the Banks, and
the Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands
for payment have been made under any of the Letters of Credit.
SECTION 8.4. COLLATERAL FOR UNDRAWN LETTERS OF CREDIT. (a) If the
payment or prepayment of the amount available for drawing under any or all
outstanding Letters of Credit is required under Sections 2.3(b), 2.3(c), 8.2,
8.3 or otherwise, the Borrower shall forthwith pay the amount required to be so
prepaid, to be held by the Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held
by the Agent in a separate collateral account (such account, and the credit
balances, properties and any investments from time to time held therein, and any
substitutions for such account, any certificate of deposit or other instrument
evidencing any of the foregoing and all proceeds of and earnings on any of the
foregoing being collectively called the "ACCOUNT") as security for, and for
application by the Agent (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the Issuing Agent,
and to the payment of the unpaid balance of any Loans and all other Obligations.
The Account shall be held in the name of and subject to the exclusive dominion
and control of the Agent for the benefit of the Agent, the Issuing Agent and the
Banks. If and when requested by the Borrower, the Agent shall invest funds held
in the Account from time to time in direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America with a remaining maturity of one year or less, PROVIDED that
the Agent is irrevocably authorized to sell investments held in the Account when
and as required to make payments out of the Account for application to amounts
due and owing from the Borrower to the Agent, the Issuing Agent or Banks;
PROVIDED, HOWEVER, that if (i) the Borrower shall have made payment of all such
obligations referred to in subsection (a) above, (ii) all relevant preference or
other disgorgement periods relating to the receipt of such payments have passed,
and (iii) no Letters of Credit, Commitments, Loans or other Obligations remain
outstanding hereunder, then the Agent shall repay to the Borrower any remaining
amounts held in the Account.
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SECTION 8.5. EXPENSES. The Borrower agrees to pay to the Agent, the
Documentation Agent, the Issuing Agent and each Bank, and any other holder of
any Note outstanding hereunder, all costs and expenses incurred or paid by the
Agent, the Documentation Agent, the Issuing Agent or such Bank or any such
holder, including attorneys' fees (including those fees and costs attributable
to in-house attorneys) and court costs, in connection with any Default or Event
of Default by the Borrower hereunder or in connection with the enforcement of
any of the Credit Documents.
SECTION 9. CHANGE IN CIRCUMSTANCES.
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Bank to make or continue to maintain Eurodollar Loans or to perform its
obligations as contemplated hereby, such Bank shall promptly give notice thereof
to the Borrower and such Bank's obligations to make or maintain Eurodollar Loans
under this Agreement shall terminate until it is no longer unlawful for such
Bank to make or maintain Eurodollar Loans. The Borrower shall prepay on demand
the outstanding principal amount of any such affected Eurodollar Loans, together
with all interest accrued thereon at a rate per annum equal to the interest rate
applicable to such Loan; PROVIDED, HOWEVER, subject to all of the terms and
conditions of this Agreement, the Borrower may then elect to borrow the
principal amount of the affected Eurodollar Loans from such Bank by means of
Base Rate Loans from such Bank, which Base Rate Loans shall not be made ratably
by the Banks but only from such affected Bank.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN, OR
INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurodollar Loans:
(a) the Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to it in the eurodollar
interbank market for such Interest Period, or that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) Banks having at least a majority of the aggregate amount
of the Commitments reasonably determine and so advise the Agent that
LIBOR as reasonably determined by the Agent will not adequately and
fairly reflect the cost to such Banks or Bank of funding their or its
Eurodollar Loans or Loan for such Interest Period (such cost to be
determined as if each such Bank had actually funded each Eurodollar
Loan through the purchase of deposits of U.S. Dollars in the London
eurodollar interbank market having a maturity corresponding to such
Loan's Interest Period and in the amount of such Loan),
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks or
of the relevant Bank to make Eurodollar Loans shall be suspended.
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SECTION 9.3. INCREASED COST AND REDUCED RETURN. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law but, if not having the force of law, compliance with which is customary
in the relevant jurisdiction) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Eurodollar Loans, its Note,
its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligations owed to it or its obligation to make
Eurodollar Loans, issue a Letter of Credit, or to participate therein,
or shall change the basis of taxation of payments to any Bank (or its
Lending Office) of the principal of or interest on its Eurodollar
Loans, Letter(s) of Credit, or participations therein or any other
amounts due under this Agreement in respect of its Eurodollar Loans,
Letter(s) of Credit, or participations therein, any Reimbursement
Obligations owed to it, or its obligation to make Eurodollar Loans,
issue a Letter of Credit, or acquire participations therein (except for
changes in the rate of tax on the overall net income or profits of such
Bank or its Lending Office imposed by the jurisdiction in which such
Bank or its Lending Office is incorporated in which such Bank's
principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Eurodollar Loans any
such requirement included in an applicable Eurodollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office) or shall impose on
any Bank (or its Lending Office) or on the interbank market any other
condition affecting its Eurodollar Loans, its Notes, its Letter(s) of
Credit, or its participation in any thereof, any Reimbursement
Obligation owed to it, or its obligation to make Eurodollar Loans, to
issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Eurodollar Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within fifteen (15) days after demand
by such Bank (with a copy to the Agent), the Borrower shall be obligated to pay
to such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If on or after the date hereof, any Bank or the Agent shall have
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein (including, without limitation, any
revision in the Final Risk-Based Capital Guidelines of the Board of Governors of
the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000,
Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3,
-46-
Appendix A), or in any other applicable capital rules heretofore adopted and
issued by any governmental authority), or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law but, if not having the
force of law, compliance with which is customary in the applicable jurisdiction)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital, or on the capital
of any corporation controlling such Bank, as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within fifteen (15) days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(c) Each Bank that determines to seek compensation under this Section
9.3 shall notify the Borrower and the Agent of the circumstances that entitle
the Bank to such compensation pursuant to this Section 9.3 and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section 9.3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 9.4. LENDING OFFICES. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof or in the assignment agreement which any
assignee bank executes pursuant to Section 11.12 hereof (each a "LENDING
OFFICE") for each type of Loan available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and designate
in a written notice to the Borrower and the Agent.
SECTION 9.5. DISCRETION OF BANK AS TO MANNER OF FUNDING.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if each Bank had
actually funded and maintained each Eurodollar Loan through the purchase of
deposits of U.S. Dollars in the London eurodollar interbank market having a
maturity corresponding to such Loan's Interest Period and bearing an interest
rate equal to LIBOR for such Interest Period.
SECTION 10. THE AGENT.
SECTION 10.1. APPOINTMENT AND AUTHORIZATION OF AGENT. Each Bank hereby
appoints LaSalle as the Agent under the Credit Documents and hereby authorizes
the Agent to take such action as Agent on its behalf and to exercise such powers
under the Credit Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto. The relationship
between the Agent and the Banks is and shall be that of
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agent and principal only, and nothing contained in this Agreement or any other
Credit Document shall be construed to constitute the Agent as a trustee or
fiduciary for any Bank or the Borrower.
SECTION 10.2. AGENT AND ITS AFFILIATES. The Agent shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and the Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust, debt, equity
or other business with the Borrower or any affiliate of the Borrower as if it
were not the Agent under the Credit Documents.
SECTION 10.3. ACTION BY AGENT. If the Agent receives from the Borrower
a written notice of an Event of Default pursuant to Section 7.6(c)(i) hereof,
the Agent shall promptly give each of the Banks written notice thereof. The
obligations of the Agent under the Credit Documents are only those expressly set
forth therein. Without limiting the generality of the foregoing, the Agent shall
not be required to take any action hereunder with respect to any Default or
Event of Default, except as expressly provided in Sections 8.2 and 8.4. In no
event, however, shall the Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the Agent shall
in all cases be fully justified in failing or refusing to act hereunder or under
any other Credit Document unless it shall be first indemnified to its reasonable
satisfaction by the Banks against any and all costs, expense, and liability
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Bank or the Borrower. In all
cases in which this Agreement and the other Credit Documents do not require the
Agent to take certain actions, the Agent shall be fully justified in using its
discretion in failing to take or in taking any action hereunder and thereunder.
SECTION 10.4. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 10.5. LIABILITY OF AGENT; CREDIT DECISION. Neither the Agent
nor any of its directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection with the Credit Documents (i) with
the consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, any other Credit Document
or any Credit Event; (ii) the performance or observance of any of the covenants
or agreements of the Borrower or any other party (other than the Agent)
contained herein or in any other Credit Document; (iii) the satisfaction of any
condition specified in Section Six hereof, except receipt of items required to
be delivered to the Agent; or (iv) the validity, effectiveness, genuineness,
enforceability, perfection, value, worth or collectibility hereof or of any
other Credit Document or of any other documents or writing furnished in
connection with any Credit Document; and the Agent makes no representation of
any kind or character with respect to any such matter mentioned in this
sentence. The Agent may execute any of its duties under any of the Credit
Documents by or through employees, agents,
-48-
and attorneys-in-fact and shall not be answerable to the Banks, the Borrower, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Agent shall have no responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument received
by it under the Credit Documents. The Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed with
the Agent signed by such payee in form satisfactory to the Agent. Each Bank
acknowledges that it has independently and without reliance on the Agent or any
other Bank, and based upon such information, investigations and inquiries as it
deems appropriate, made its own credit analysis and decision to extend credit to
the Borrower in the manner set forth in the Credit Documents. It shall be the
responsibility of each Bank to keep itself informed as to the creditworthiness
of the Borrower and any other relevant Person, and the Agent shall have no
liability to any Bank with respect thereto.
SECTION 10.6. INDEMNITY. The Banks shall ratably, in accordance with
their respective Percentages (determined before giving effect to any termination
of the Commitments pursuant to Section 8.2 or 8.3), indemnify and hold the
Agent, and its directors, officers, employees, agents and representatives
harmless from and against any liabilities, losses, costs or expenses suffered or
incurred by the Agent acting in its capacity as Agent under any Credit Document
or in connection with the transactions contemplated thereby, regardless of when
asserted or arising, except to the extent they are promptly reimbursed for the
same by the Borrower and except to the extent that any event giving rise to a
claim was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. The obligations of the Banks under this Section 10.6
shall survive termination of this Agreement.
SECTION 10.7. RESIGNATION OF AGENT AND SUCCESSOR AGENT. The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of the Agent, the Required Banks shall have
the right to appoint a successor Agent with the consent of the Borrower (except
Borrower's consent is not required during the occurrence and continuance of a
Default or Event of Default). If no successor Agent shall have been so appointed
by the Required Banks, and shall have accepted such appointment, within thirty
(30) days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, with the
consent of the Borrower (except upon the occurrence and continuance of a Default
or Event of Default), which shall be any Bank hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring or removed Agent under the Credit Documents, and the retiring Agent
shall be discharged from its duties and obligations thereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Section
Ten and all protective provisions of the other Credit Documents shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
-49-
SECTION 10.8. DOCUMENTATION AGENT. Nothing in this Agreement shall
impose any obligation on Firstar, in its capacity as Documentation Agent.
SECTION 11. MISCELLANEOUS.
SECTION 11.1. WITHHOLDING TAXES.
(a) PAYMENTS FREE OF WITHHOLDING. Subject to Section 11.1(b) hereof,
each payment by the Borrower under this Agreement or the other Credit Documents
shall be made without withholding for or on account of any present or future
taxes (other than overall net income taxes on the recipient). If any such
withholding is so required, the Borrower shall make the withholding, pay the
amount withheld to the appropriate governmental authority before penalties
attach thereto or interest accrues thereon and forthwith pay such additional
amount as may be necessary to ensure that the net amount actually received by
each Bank and the Agent free and clear of such taxes (including such taxes on
such additional amount) is equal to the amount which that Bank or the Agent (as
the case may be) would have received had such withholding not been made. If the
Agent or any Bank pays any amount in respect of any such taxes, penalties or
interest the Borrower shall reimburse the Agent or that Bank for that payment on
demand. If the Borrower pays any such taxes, penalties or interest, it shall
deliver official tax receipts evidencing that payment or certified copies
thereof to the Bank or Agent on whose account such withholding was made (with a
copy to the Agent if not the recipient of the original) on or before the
thirtieth day after payment.
(b) U.S. WITHHOLDING TAX EXEMPTIONS. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Agent on or before the earlier of the date the
initial Borrowing is made hereunder and thirty (30) days after the date hereof,
two duly completed and signed copies of either Form W-8BEN (relating to such
Bank and entitling it to a complete exemption from withholding under the Code on
all amounts to be received by such Bank, including fees, pursuant to the Credit
Documents and the Loans) or Form W-8ECI (relating to all amounts to be received
by such Bank, including fees, pursuant to the Credit Documents and the Loans) of
the United States Internal Revenue Service. Thereafter and from time to time,
each Bank shall submit to the Borrower and the Agent such additional duly
completed and signed copies of one or the other of such Forms (or such successor
forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) requested by the Borrower in a written notice,
directly or through the Agent, to such Bank and (ii) required under then-current
United States law or regulations to avoid or reduce United States withholding
taxes on payments in respect of all amounts to be received by such Bank,
including fees, pursuant to the Credit Documents or the Loans.
(c) INABILITY OF BANK TO SUBMIT FORMS. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the
Borrower or Agent any form or certificate that such Bank is obligated to submit
pursuant to subsection (b) of this Section 11.1. or that such Bank is required
to withdraw or cancel any such form or certificate previously submitted or any
such form or certificate otherwise becomes ineffective or inaccurate, such Bank
shall promptly notify the Borrower and Agent of such fact and the Bank shall to
that extent not be obligated to provide
-50-
any such form or certificate and will be entitled to withdraw or cancel any
affected form or certificate, as applicable.
SECTION 11.2. NO WAIVER OF RIGHTS. No delay or failure on the part of
the Agent or any Bank or on the part of the holder or holders of any Note in the
exercise of any power or right under any Credit Document shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
power or right, and the rights and remedies hereunder of the Agent, the
Documentation Agent, the Banks and the holder or holders of any Notes are
cumulative to, and not exclusive of, any rights or remedies which any of them
would otherwise have.
SECTION 11.3. NON-BUSINESS DAY. If any payment of principal or interest
on any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan or
other Obligation bears for the period prior to maturity shall continue to accrue
on such Obligation from the stated due date thereof to and including the next
succeeding Business Day (subject to the definition of Interest Period), on which
the same shall be payable.
SECTION 11.4. DOCUMENTARY TAXES. The Borrower agrees that it will pay
any documentary, stamp or similar taxes payable in respect to any Credit
Document, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
SECTION 11.5. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
SECTION 11.6. SURVIVAL OF INDEMNITIES. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 2.12, Section 9.3 and Section 11.15 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the payment
of the Loans and all other Obligations.
SECTION 11.7. SET-OFF. (a) In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank and each subsequent
holder of any Note is hereby authorized by the Borrower at any time or from time
to time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
and in whatever currency denominated) and any other Indebtedness at any time
held or owing by that Bank or that subsequent holder to or for the credit or the
account of the Borrower, whether or not matured, against and on account of the
obligations and liabilities of the Borrower to that Bank or that subsequent
holder under the Credit Documents, including, but not limited to, all claims of
any nature or description arising
-51-
out of or connected with the Credit Documents, irrespective of whether or not
(a) that Bank or that subsequent holder shall have made any demand hereunder or
(b) the principal of or the interest on the Loans or Notes and other amounts due
hereunder shall have become due and payable pursuant to Section 8 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured.
(b) Each Bank agrees with each other Bank a party hereto that if such
Bank shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans or Reimbursement Obligations
in excess of its ratable share of payments on all such obligations then
outstanding to the Banks, then such Bank shall purchase for cash at face value,
but without recourse, ratably from each of the other Banks such amount of the
Loans or Reimbursement Obligations, or participations therein, held by each such
other Banks (or interest therein) as shall be necessary to cause such Bank to
share such excess payment ratably with all the other Banks; PROVIDED, HOWEVER,
that if any such purchase is made by any Bank, and if such excess payment or
part thereof is thereafter recovered from such purchasing Bank, the related
purchases from the other Banks shall be rescinded ratably and the purchase price
restored as to the portion of such excess payment so recovered, but without
interest. For purposes of this Section 11.7(b), amounts owed to or recovered by,
the Issuing Agent in connection with Reimbursement Obligations in which Banks
have been required to fund their participation shall be treated as amounts owed
to or recovered by the Issuing Agent as a Bank hereunder.
SECTION 11.8. NOTICES. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy or
other electronic communication) and shall be given to a party hereunder at its
address or telecopier number set forth below or such other address or telecopier
number as such party may hereafter specify by notice to the Agent and the
Borrower, given by courier, by United States certified or registered mail, or by
other telecommunication device capable of creating a written record of such
notice and its receipt. Notices under the Credit Documents to the Banks shall be
addressed to their respective addresses, telecopier or telephone numbers set
forth on the signature pages hereof or in the assignment agreement which any
assignee bank executes pursuant to Section 11.12 hereof, and to the Borrower and
to the Agent to:
If to the Borrower:
Transport Corporation of America, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
Attention: CFO
Telecopy: 000-000-0000
Telephone: 000-000-0000
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If to the Agent:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Deluzen
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective (i)
if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section 11.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, three business days
after such communication is deposited in the mail, registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in this Section 11.8; PROVIDED THAT
any notice given pursuant to Section Two hereof shall be effective only upon
receipt.
SECTION 11.9. COUNTERPARTS. This Agreement may be executed in any
number of counterpart signature pages, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same instrument.
SECTION 11.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the benefit
of each of the Banks and the benefit of their respective successors and assigns,
including any subsequent holder of any Note. The Borrower may not assign any of
its rights or obligations under any Credit Document without the written consent
of all of the Banks.
SECTION 11.11. PARTICIPANTS. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made, Commitments held and/or
participations in Letters of Credit, by such Bank at any time and from time to
time; PROVIDED THAT (i) no such participation shall relieve any Bank of any of
its obligations under this Agreement, (ii) no such participant shall have any
rights under this Agreement except as provided in this Section 11.11, and (iii)
the Agent shall have no obligation or responsibility to such participant or
assignee. Any party to which such a participation has been granted shall have
the benefits of Section 2.12 and Section 9.3, but shall not be entitled to
-53-
receive any greater payment under either such Section than the Bank granting
such participation would have been entitled to receive in connection with the
rights transferred. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; PROVIDED that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement that would (A) increase any Commitment of
such Bank if such increase would also increase the participant's obligations,
(B) forgive any amount of or postpone the date for payment of any principal of
or interest on any Loan or of any fee payable hereunder in which such
participant has an interest or (C) reduce the stated rate at which interest or
fees in which such participant has an interest accrue hereunder.
SECTION 11.12. ASSIGNMENT OF COMMITMENTS BY BANKS. (a) Each Bank shall
have the right at any time, with the written consent of the Borrower (except
Borrower's consent is not required during the occurrence and continuance of a
Default or an Event of Default) and Agent and Issuing Agent (which consent shall
not be unreasonably withheld), to assign all or any part of its Commitment
(including the same percentage of its Note, outstanding Loans and participations
in Letter of Credit) to one or more other Persons; PROVIDED THAT such assignment
shall be evidenced by an Assignment and Acceptance Agreement and shall be in an
amount of at least $5,000,000 or the entire Commitment of such Bank, and if such
assignment is not for such Bank's entire Commitment then such Bank's Commitment
after giving effect to such assignment shall not be less than $5,000,000; and
PROVIDED FURTHER that neither the consent of the Borrower nor of the Agent shall
be required for any Bank to assign all or part of its Commitment to any
affiliate of the assigning Bank. Each such assignment shall set forth the
assignee's address for notices to be given under Section 11.8 hereof hereunder
and its designated Lending Office pursuant to Section 9.4 hereof. Upon any such
assignment, delivery to the Agent of an executed copy of such assignment
agreement and the forms referred to in Section 11.1 hereof, if applicable, and
the payment of a $2,500 recordation fee to the Agent, the assignee shall become
a Bank hereunder, all Loans, participations in Letters of Credit and the
Commitment it thereby holds shall be governed by all the terms and conditions
hereof and the Bank granting such assignment shall have its Commitment, and its
obligations and rights in connection therewith, reduced by the amount of such
assignment.
(b) Each Bank shall have the right to assign its rights hereunder and
under the Note evidencing its Loans to a federal reserve bank.
SECTION 11.13. AMENDMENTS. Any provision of the Credit Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Banks, and (c) if the rights or
duties of the Agent, the Documentation Agent, the Issuing Agent or the Swingline
Bank are affected thereby, the Agent, the Documentation Agent, the Issuing Agent
or the Swingline Bank, as appropriate; provided that:
(i) no amendment or waiver pursuant to this Section 11.13
shall (A) increase or extend any Commitment of any Bank without the
consent of such Bank, (B) reduce the interest rate or Applicable Margin
or the amount of or postpone any fixed date for
-54-
payment of any principal of or interest on any Loan or Reimbursement
Obligation or of any fee payable hereunder without the consent of each
Bank, (C) make less restrictive the definition of Borrowing Base
without the consent of each Bank or (D) release all or substantially
all of the Collateral without the consent of each Bank (except as
otherwise provided for in the Loan Documents); and
(ii) no amendment or waiver pursuant to this Section 11.13
shall, unless signed by each Bank, change this Section 11.13, or the
definition of Required Banks, or affect the number of Banks required to
take any action under the Credit Documents.
SECTION 11.14. HEADINGS. Section headings used in this Agreement are
for reference only and shall not affect the construction of this Agreement.
SECTION 11.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The
Borrower agrees to pay all reasonable costs and expenses of the Agent and the
Documentation Agent in connection with the preparation and negotiation of the
Credit Documents, including without limitation, the reasonable fees and
disbursements of Xxxxxxx and Xxxxxx, counsel to the Agent, printing costs,
courier, telefax, telephone, publicity, transportation in connection with the
preparation and execution of the Credit Documents, and any amendment, waiver or
consent related hereto, whether or not the transactions contemplated herein are
consummated. The Borrower further agrees to indemnify each Bank, the Agent, the
Documentation Agent, the Issuing Agent and their respective directors, agents,
officers and employees, against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor, whether or not the indemnified Person is
a party thereto) which any of them may incur or reasonably pay arising out of or
relating to any Credit Document or any of the transactions contemplated thereby
or the direct or indirect application or proposed application of the proceeds of
any Loan or Letter of Credit, other than those which arise from the gross
negligence or willful misconduct of the party claiming indemnification or
arising from claims made by any Bank against any other Bank acting in any
capacity. The Borrower, upon demand by the Agent, the Documentation Agent, the
Issuing Agent or a Bank at any time, shall reimburse the Agent, the
Documentation Agent, the Issuing Agent or Bank for any reasonable legal or other
expenses (including allocable fees and expenses of in-house counsel) incurred in
connection with investigating or defending against any of the foregoing except
if the same is directly due to the gross negligence or willful misconduct of the
party to be indemnified.
SECTION 11.16. ENTIRE AGREEMENT. The Credit Documents and the Fee
Letter constitute the entire understanding of the parties thereto with respect
to the subject matter thereof and any prior or contemporaneous agreements,
whether written or oral, with respect thereto are superseded thereby.
SECTION 11.17. CONSTRUCTION. The parties hereto acknowledge and agree
that neither this Agreement nor the other Credit Documents shall be construed
more favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiation of this Agreement and the other Credit Documents.
-55-
SECTION 11.18. GOVERNING LAW. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois.
SECTION 11.19. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. THE
BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE
COURT FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE BORROWER AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 11.20. STATUTORY NOTICE - INSURANCE. The following notice is
given pursuant to Illinois law; nothing contained in such notice shall be deemed
to limit or modify the terms of the Credit Documents:
UNLESS THE BORROWER PROVIDES THE AGENT WITH EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED BY THIS AGREEMENT, THE AGENT MAY PURCHASE INSURANCE AT THE
BORROWER'S EXPENSE TO PROTECT THE AGENT'S INTERESTS IN THE COLLATERAL. THIS
INSURANCE MAY, BUT NEED NOT, PROTECT THE BORROWER'S INTERESTS IN THE COLLATERAL.
THE COVERAGE PURCHASED BY THE AGENT MAY NOT PAY ANY CLAIMS THAT THE BORROWER
MAKES OR ANY CLAIM THAT IS MADE AGAINST THE BORROWER IN CONNECTION WITH THE
COLLATERAL. THE BORROWER MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE
AGENT, BUT ONLY AFTER PROVIDING THE AGENT WITH EVIDENCE THAT THE BORROWER HAS
OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES
INSURANCE FOR THE COLLATERAL, THE BORROWER WILL BE RESPONSIBLE FOR THE COSTS OF
THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE AGENT MAY
IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE
DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE
INSURANCE MAY BE ADDED TO THE OBLIGATIONS SECURED HEREBY. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE BORROWER MAY BE ABLE TO
OBTAIN ON ITS OWN.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their duly authorized
officers as of the day and year first above written.
TRANSPORT CORPORATION OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: CFO
LASALLE BANK NATIONAL ASSOCIATION, as
Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
[SIGNATURE PAGE FOR TRANSPORT CORPORATION OF AMERICA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT]
Banks:
Address and Amount of Commitments: LASALLE BANK NATIONAL ASSOCIATION, in
its individual capacity as a Bank and
as Issuing Agent
Address:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
000 Xxxxx XxXxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 Title: First Vice President
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Commitment: $20,000,000
Lending Offices:
Base Rate Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Loan Operations
Telephone:
Telecopy:
Eurodollar Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Loan Operations
Telephone:
Telecopy:
[SIGNATURE PAGE FOR TRANSPORT CORPORATION OF AMERICA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT]
Address and Amount of Commitments: FIRSTAR BANK, N.A. (formerly known as
Firstar Bank of Minnesota, National
Association), in its individual
capacity as a Bank and as
Documentation Agent and Swingline Bank
Address:
By: /s/ Xxxxx X. Paris
-------------------------------------
000 Xxxx 0xx Xxxxxx Name: Xxxxx X. Paris
Xx. Xxxx, Xxxxxxxxx 00000 Title: Senior Vice President
Attention: Xxxxx X. Paris, Vice
President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Commitment: $20,000,000
Lending Offices:
Base Rate Loans:
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Loan Operations - Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Loans:
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Loan Operations - Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
[SIGNATURE PAGE FOR TRANSPORT CORPORATION OF AMERICA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT]
EXHIBIT A-1
REVOLVING NOTE
$__________________ ________________,_____
FOR VALUE RECEIVED, the undersigned, Transport Corporation of America,
Inc., a Minnesota corporation (the "BORROWER"), promises to pay to the order of
_______________________________________ (the "BANK") on the Termination Date, at
the bank account of LaSalle Bank National Association maintained in Chicago,
Illinois and specified to the Borrower in writing from time to time, in
immediately available funds, the principal sum of _________________________
($_____________), or if less, the aggregate unpaid principal amount of all Loans
made by the Bank to the Borrower under its Commitment pursuant to the Credit
Agreement, with each Eurodollar Loan to mature and become payable on the last
day of the Interest Period applicable thereto, but in no event later than the
Termination Date, and each Base Rate Loan to mature and become due and payable
on the Termination Date together with interest on the principal amount of each
Loan from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books and records or on a schedule
attached to this Note, which is a part hereof, each Loan made by it pursuant to
its Commitment, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Loan is a
Base Rate Loan, or a Eurodollar Loan and the interest rate and Interest Period
applicable thereto, provided that prior to the transfer of this Note all such
amounts shall be recorded on a schedule attached to this Note. The record
thereof, whether shown on such books and records or on a schedule to this Note,
shall be PRIMA FACIE evidence of the same; PROVIDED, HOWEVER, that the failure
of the Bank to record any of the foregoing or any error in any such record shall
not limit or otherwise affect the obligation of the Borrower to repay all Loans
made to it pursuant to the Credit Agreement together with accrued interest
thereon.
This Note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of October 5, 2001, among the Borrower, LaSalle Bank
National Association, as Agent, and the banks from time to time party thereto
(as amended, the "CREDIT AGREEMENT"), and this Note and the holder hereof are
entitled to all the benefits provided for thereby or referred to therein, to
which Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein, shall
have the same meaning herein as in the Credit Agreement. This Note shall be
governed by and construed in accordance with the internal laws of the State of
Illinois.
Prepayments may be made hereon and this Note may be declared due prior
to the expressed maturity hereof, all in the events, on the terms and in the
manner provided in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
TRANSPORT CORPORATION OF AMERICA, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A-2
SWINGLINE NOTE
$3,000,000.00 October 5, 2001
On the Termination Date, for value received, the undersigned, Transport
Corporation of America, Inc., a Minnesota corporation (the "BORROWER"), promises
to pay to the order of Firstar Bank, N.A. (the "BANK"), at the principal office
of the Bank in St. Xxxx, Minnesota, the principal sum of (i) THREE MILLION AND
00/100 DOLLARS ($3,000,000.00), or (ii) such lesser amount as may at the time of
the maturity hereof, whether by acceleration or otherwise, be the aggregate
unpaid principal amount of all Swingline Loans owing from the Borrower to the
Bank under the Maximum Swingline Amount provided for in the Credit Agreement
hereinafter mentioned.
This Note evidences Swingline Loans made and to be made to the Borrower
by the Bank under the Maximum Swingline Amount provided for under that certain
Amended and Restated Credit Agreement dated as of October 5, 2001 by and among
the Borrower, LaSalle Bank National Association individually and as Agent and
certain banks which are or may from time to time become parties thereto (as
amended, the "CREDIT AGREEMENT"), and the Borrower hereby promises to pay
interest at the office specified above on each Swingline Loan evidenced hereby
at the rates and times specified therefor in the Credit Agreement.
Each Swingline Loan made under the Maximum Swingline Amount provided
for in the Credit Agreement by the Bank to the Borrower against this Note, any
repayment of principal hereon and the interest rates applicable thereto shall be
endorsed by the holder hereof on the reverse side of this Note or recorded on
the books and records of the holder hereof (provided that such entries shall be
endorsed on the reverse side hereof prior to any negotiation hereof) and the
Borrower agrees that in any action or proceeding instituted to collect or
enforce collection of this Note, the entries so endorsed on the reverse side
hereof or recorded on the books and records of the Bank shall be PRIMA FACIE
evidence of the unpaid balance of this Note and the interest rates applicable
thereto.
This Note is issued by the Borrower under the terms and provisions of
the Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity as specified in the
Credit Agreement, and certain prepayments are required to be made hereon, all in
the events, on the terms and with the effects provided in the Credit Agreement.
All capitalized terms used herein without definition shall have the same meaning
herein as such terms have in the Credit Agreement.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
TRANSPORT CORPORATION OF AMERICA, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT B
ASSIGNMENT AND ACCEPTANCE AGREEMENT
AGREEMENT dated as of _____________, _____ among [ASSIGNOR] (the
"ASSIGNOR"), [ASSIGNEE] (the "Assignee"), TRANSPORT CORPORATION OF AMERICA, INC.
(the "BORROWER") and LASALLE BANK NATIONAL ASSOCIATION as Agent (the "AGENT").
WITNESSETH
WHEREAS, this Assignment and Acceptance Agreement (the "AGREEMENT")
relates to the Amended and Restated Credit Agreement dated as of October 5, 2001
among the Borrower, the Assignor and the other Banks party thereto and the Agent
(as the same has been amended, extended, modified or restated, the "CREDIT
AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower and to purchase a participation from
the Issuing Agent in Letters of Credit issued pursuant to Section 2.3 of the
Credit Agreement in an aggregate principal amount at any time outstanding not to
exceed $__________________;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $________________ are outstanding
at the date hereof;
WHEREAS, there is an aggregate face amount of Letters of Credit
outstanding of $____________ of which Assignor's aggregate Participating
Interest equals $______________ and an aggregate principal amount of
$________________ Reimbursement Obligations outstanding at the date hereof owing
to the Assignor by the Borrower under the Credit Agreement; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $______________________ (the
"ASSIGNED AMOUNT"), together with a corresponding portion of its outstanding
Loans, Reimbursement Obligations outstanding at the date hereof owing to the
Assignor by the Borrower and its participation obligation in connection with
outstanding Letters of Credit and the Assignee proposes to accept assignment of
such rights and assume the corresponding obligations from the Assignor on such
terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Loans made by the Assignor, Reimbursement Obligations owing to the Assignor and
the corresponding portion of the Assignors participation obligation in
connection with outstanding Letters of Credit. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Borrower and the Agent and the payment
of the amounts specified in Section 6 hereof (a) the Assignee shall, as of the
date hereof, succeed to the rights and be obligated to perform the obligations
of a Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (b) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
represents and warrants that (a) the Assignor has full power and authority, and
has taken all action necessary to execute and deliver this Assignment Agreement
and any other documents required or permitted to be executed or delivered by it
in connection with this Assignment Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Assignment
Agreement and no governmental authorizations or other authorizations are
required in connection therewith and (b) this Assignment Agreement constitutes
the legal, valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with its terms.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
represents and warrants that (a) the Assignee has full power and authority, and
has taken all action necessary to execute and deliver this Assignment Agreement
and any other documents required or permitted to be executed or delivered by it
in connection with this Assignment Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Assignment
Agreement and no governmental authorizations or other authorizations are
required in connection therewith and (b) this Assignment Agreement constitutes
the legal, valid and binding obligation of the Assignee, enforceable against the
Assignee in accordance with its terms. In addition, the Assignee (i) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the most recent financial statements
delivered by the Borrower pursuant thereto and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under the Credit Agreement and
the other Credit Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement and the other Credit Documents are
-2-
required to be performed by it as a Bank; (iv) specifies as its address for
notices and its Lending Office the applicable offices indicated beside its
signature below; and (vi) represents that it is either (y) a corporation
organized under the laws of the United States or a state thereof or (z) entitled
to complete exemption from United States withholding tax imposed on or with
respect to any payments, including fees, to be made to it pursuant to the Credit
Agreement (A) under an applicable provision of a tax convention to which the
United States is a party of (B) because it is acting through a branch, agency or
office in the United States and any payment to be received by it under the
Credit Agreement and the other Credit Documents is effectively connected with a
trade or business in the United States.
SECTION 5. DELIVERY OF RELATED DOCUMENTS AND FURTHER ASSURANCES. The
Assignor and the Assignee hereby agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment Agreement.
SECTION 6. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in immediately available funds the amount heretofore agreed between
them. It is understood that fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the account
of such other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party unless otherwise provided in the
Credit Agreement.
SECTION 7. CONSENT OF THE BORROWER AND THE AGENT. This Agreement is
conditioned upon the consent of the Borrower (except Borrower's consent is not
required during the occurrence and continuance of a Default or Event of Default)
and the Agent pursuant to Section 11.12 of the Credit Agreement. The execution
of this Agreement by the Borrower and the Agent is evidence of such consent. The
Borrower agrees to execute and deliver a Note (a) in the amount of the Assigned
Amount payable to the order of the Assignee to evidence the assignment and
assumption provided for herein and (b) in the amount of the Assignor's remaining
Commitment, if less than all of the Assignor's Commitment is being assigned
hereunder, payable to the order of the Assignor. Upon receipt of its new Note
and/or confirmation that the Assignee has received its Note, as applicable, the
Assignor shall immediately return its old Note marked canceled.
SECTION 8. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
-3-
SECTION 9. ADMINISTRATION FEE. The Assignee agrees to pay to the Agent
upon the execution of this Assignment Agreement a $2,500 recordation fee in
accordance with Section 11.12 of the Credit Agreement.
SECTION 10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois.
SECTION 11. COUNTERPARTS. This Agreement 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.
-4-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:
-------------------------------------
Title:
Address for notices: [ASSIGNEE]
By:
-------------------------------------
Title:
Telephone:
Telecopy:
Lending Offices:
Base Rate Loans:
Eurodollar Loans:
TRANSPORT CORPORATION OF AMERICA, INC.
By:
-------------------------------------
Title:
LASALLE BANK NATIONAL ASSOCIATION, as
Agent
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
-5-
EXHIBIT C
BORROWING BASE CONFIRMATION
Pursuant to the terms of the Amended and Restated Credit Agreement
dated as of October 5, 2001 by and among Transport Corporation of America, Inc.,
the banks party thereto and LaSalle Bank National Association as Agent for the
banks from time to time party thereto (as the same has been amended, modified,
extended or restated, the "CREDIT AGREEMENT"), we hereby provide you with this
Borrowing Base Confirmation. Capitalized terms used herein without definition
shall have the same meanings herein as in the Credit Agreement.
I. BORROWING BASE CALCULATIONS
A. TOTAL ELIGIBLE ACCOUNTS $____________
Eligible Accounts $____________
B. REVENUE EQUIPMENT
1. Revenue Equipment secured for benefit of the Banks $____________
2. Revenue Equipment Cap $____________
C. BORROWING BASE
1. 85% of Eligible Accounts $____________
2. 56% of B1, less $2,000,000 $____________
3. Lesser of C2 or B2 $____________
Total: C1 plus C3 $____________
D. OUTSTANDINGS
1. Loans (Including Swingline Loans) ____________
2. Reimbursement Obligations ____________
3. Aggregate undrawn face amount
of all outstanding Letters of Credit ____________
4. Total Outstandings ____________
Attached hereto is the data and information supporting the foregoing
calculation of the Borrowing Base.
Dated as of this ___________ day of __________________, _____.
TRANSPORT CORPORATION OF AMERICA, INC.
By
Its
-----------------------------------
-2-
EXHIBIT D
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to LaSalle Bank National
Association in its capacity as agent for the Banks (the "AGENT") pursuant to
that certain Amended and Restated Credit Agreement dated as of October 5, 2001
(the "CREDIT AGREEMENT"), by and among Transport Corporation of America, Inc.
(the "BORROWER") and the banks from time to time party thereto (each a "BANK,"
and collectively the "BANKS"). Unless otherwise defined herein, the terms used
in this Compliance Certificate have the meanings ascribed thereto in the Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [PRESIDENT/CHIEF FINANCIAL
OFFICER/CORPORATE CONTROLLER] of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I
have made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of the Company and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or the
occurrence of any event which constitutes a Default or Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except as
set forth below;
4. The financial statements required by Section 7.6 of the
Credit Agreement and being furnished to you concurrently with this
certificate are, to the best of my knowledge, true, correct and
complete as of the dates and for the periods covered thereby; and
5. The Attachment hereto sets forth financial data and
computations evidencing the Company's compliance with certain covenants
of the Credit Agreement, all of which data and computations are, to the
best of my knowledge, true, complete and correct and have been made in
accordance with the relevant Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The foregoing certifications, together with the data and information
supporting the computations set forth in the Attachment hereto, and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this ____ day of __________, _____.
----------------------------------------
------------------------,---------------
(Type or Print Name)_____________(Title)
-2-
ATTACHMENT TO COMPLIANCE CERTIFICATE
TRANSPORT CORPORATION OF AMERICA, INC.
Compliance Calculations for Amended and Restated Credit Agreement
Dated as of October 5, 2001
Calculations as of _________, _____
--------------------------------------------------------------------------------
A. NET WORTH (SECTION 7.14)
1. Positive Net Income for the cumulative period $____________
commencing July 1, 2001 and ending ____________ A1
2. 75% of positive Net Income for the above cumulative
period $____________
A2
3. Line A2 plus $68,000,000 $____________
A3
4. Borrower's Net Worth as of _____________ $____________
Line A4 must be greater than or equal to A3 A4
B. CONSOLIDATED FUNDED INDEBTEDNESS TO CONSOLIDATED EBITDAR
(SECTION 7.15)
1. Consolidated short term Indebtedness $____________
B1
2. Consolidated long term Indebtedness (including $____________
Capitalized Lease Obligations) B2
3. Present value (using discount rate of 10% per annum) of $____________
non-cancellable operating leases of Borrower and its B3
Subsidiaries
4. Undrawn amount of all standby letters of credit issued $____________
for account of Borrower and its Subsidiaries (including B4
unpaid reimbursement obligations thereunder)
5. Add Lines B1, B2, B3 and B4 $____________
(Consolidated Funded Indebtedness) B5
6. Consolidated Net Income $____________
B6
7. Federal, state and local income taxes on consolidated $____________
basis B7
8. Total interest expense on consolidated basis $____________
B8
9. Extraordinary (Gains) or Losses $____________
B9
10. Add Lines B6, B7, B8 and B9 $____________
(Consolidated EBIT) B10
11. Depreciation, amortization and lease rental expenses $____________
on consolidated basis B11
12. Add Lines B10 and B11 $____________
(Consolidated XXXXXXX) X00
13. Ratio of Line B5 to B12 :1
----------------
B13
Line B13 for each Test Period through and ___:1.0
including December 31, 2001, such ratio may not be
more than 3.00 to 1.00, for each Test Period
thereafter through and including June 30, 2002
such ratio may not be more than 2.75 to 1.00, and
for each Test Period thereafter such ratio may be
not more than 2.50 to 1.00.
C. MINIMUM CASH FLOW COVERAGE (SECTION 7.16)
1. Consolidated EBITDAR (Line B11 above) $____________
C1
2. Cash Taxes $____________
C2
3. Cash Capex $____________
C3
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4. Earnings Based Payments $____________
C4
5. Net Proceeds from Asset Sales $____________
C5
6. Consolidated Interest and Rental Expense $____________
C6
7. CMLTD
$____________
C7
8. Line C1 less C2 less C3 less C4 plus C5
$____________
C8
9. Line C6 plus 67
$____________
C9
10. Line C8 divided by C9
11. Line C10 ratio must not be less than 1.25:1.0
--------------
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