$350,000,000
CREDIT AGREEMENT
Dated as of August 10, 1995
Among ARKANSAS BEST CORPORATION
as the Borrower,
SOCIETE GENERALE, SOUTHWEST AGENCY
as Managing Agent and Administrative Agent,
NATIONSBANK OF TEXAS, N.A.
as Documentation Agent,
and THE BANKS NAMED HEREIN
as the Banks
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms 1
Section 1.02. Computation of Time Periods 18
Section 1.03. Accounting Terms; Changes in GAAP 18
Section 1.04. Types of Advances 18
Section 1.05. Miscellaneous 18
ARTICLE II
THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01. The Advances; Extension of Maturity Date. 19
Section 2.02. Method of Borrowing 19
Section 2.03. Fees 22
Section 2.04. Reduction of the Commitments 23
Section 2.05. Repayment of Advances 23
Section 2.06. Interest 24
Section 2.07. Prepayments 25
Section 2.08. Breakage Costs 27
Section 2.09. Increased Costs 27
Section 2.10. Payments and Computations 29
Section 2.11. Taxes 30
Section 2.12. Illegality 31
Section 2.13. Letters of Credit 32
Section 2.14. Determination of Borrowing Base 34
Section 2.15. Bank Replacement 35
Section 2.16. Sharing of Payments, Etc. 35
Section 2.17. Collateral. 36
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Effectiveness
of this Agreement 37
Section 3.02. Conditions Precedent to Advances on
Acquisition Date 38
Section 3.03. Conditions Precedent for each Borrowing
or Letter of Credit 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence; Subsidiaries 41
Section 4.02. Corporate Power 41
Section 4.03. Authorization and Approvals 42
Section 4.04. Enforceable Obligations 42
Section 4.05. Financial Statements 42
Section 4.06. True and Complete Disclosure 43
Section 4.07. Litigation 43
Section 4.08. Use of Proceeds 43
Section 4.09. Investment Company Act 43
Section 4.10. Taxes 43
Section 4.11. Pension Plans 44
Section 4.12. Condition of Property; Casualties 44
Section 4.13. Insurance 44
Section 4.14. No Burdensome Restrictions; No Defaults 45
Section 4.15. Environmental Condition 45
Section 4.16. Permits, Licenses, etc. 46
Section 4.17. Capital Structure 46
Section 4.18. Tender and Acquisition 46
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01. Compliance with Laws, Etc. 46
Section 5.02. Maintenance of Insurance 46
Section 5.03. Preservation of Corporate Existence, Etc. 47
Section 5.04. Payment of Taxes, Etc. 47
Section 5.05. Visitation Rights 47
Section 5.06. Reporting Requirements 47
Section 5.07. Maintenance of Property 49
ARTICLE VI
NEGATIVE COVENANTS
Section 6.01. Liens, Etc. 50
Section 6.02. Amendment of Material Documents 51
Section 6.03. Agreements Restricting Distributions
From Subsidiaries 51
Section 6.04. Merger or Consolidation; Asset Sales 51
Section 6.05. Restricted Payments 51
Section 6.06. Investments, Loans, Advances 51
Section 6.07. Affiliate Transactions 52
Section 6.08. Sale and Leaseback 53
Section 6.09. Maintenance of Ownership of Subsidiaries 53
Section 6.10. No Further Negative Pledges 53
Section 6.11. Other Businesses 53
Section 6.12. Debt Service Ratio 53
Section 6.13. Net Worth 53
Section 6.14. Leverage 53
Section 6.15. Debt to EBITDA 53
Section 6.16. Acquisition Company Business 54
ARTICLE VII
REMEDIES
Section 7.01. Events of Default 54
Section 7.02. Optional Acceleration of Maturity 56
Section 7.03. Automatic Acceleration of Maturity 56
Section 7.04. Cash Collateral Account 56
Section 7.05. Non-exclusivity of Remedies 57
Section 7.06. Right of Set-off 57
ARTICLE VIII
AGENCY AND ISSUING BANK PROVISIONS
Section 8.01. Authorization and Action 57
Section 8.02. Agent's Reliance, Etc. 58
Section 8.03. The Agent and Its Affiliates 58
Section 8.04. Bank Credit Decision 58
Section 8.05. Indemnification 59
Section 8.06. Successor Agent and Issuing Banks 59
Section 8.07. Managing Agent 60
Section 8.08. Documentation Agent 60
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. 60
Section 9.02. Notices, Etc. 60
Section 9.03. No Waiver; Remedies 61
Section 9.04. Costs and Expenses 61
Section 9.05. Binding Effect 61
Section 9.06. Bank Assignments and Participations 61
Section 9.07. Indemnification 63
Section 9.08. Execution in Counterparts 64
Section 9.09. Survival of Representations, etc 64
Section 9.10. Severability 64
Section 9.11. Business Loans 64
Section 9.12. Usury Not Intended 64
Section 9.13. Governing Law 65
Section 9.14. Consent to Jurisdiction 65
Section 9.15. Banks Not in Control 65
Section 9.16. ENTIRE AGREEMENT 65
EXHIBITS:
Exhibit A - Form of Revolving Note
Exhibit B - Form of Term Note
Exhibit C - Form of Subsidiary Guaranty and
Contribution Agreement
Exhibit D - Form of Borrower Security Agreement
Exhibit E - Form of Guarantors Security Agreement
Exhibit F - Form of Notice of Borrowing
Exhibit G - Form of Notice of Conversion or Continuation
Exhibit H - Form of Assignment and Acceptance
Exhibit I-1 - Form of Borrower's/Guarantors' Counsel
Opinion delivered on Effective Date
Exhibit I-2 - Form of Borrower's/Guarantors' Counsel
Opinion delivered on Acquisition Date
Exhibit J - Form of Agent's Counsel Opinion
Exhibit K - Form of Compliance Certificate
Exhibit L - Form of Borrowing Base Certificate
SCHEDULES:
Schedule 1.01(a) - Commitments
Schedule 1.01(b) - Letters of Credit Outstanding
Schedule 2.17 - Locations of Certificates of Title
Schedule 3.01(e) - Material Adverse Changes Affecting
WWC Companies
Schedule 4.01(a) - Borrower's Current Subsidiaries
Schedule 4.01(b) - WWC Subsidiaries
Schedule 4.07 - Litigation
Schedule 4.10 - Tax Disputes
Schedule 6.01 - Existing Liens and Secured Indebtedness
Schedule 6.07 - Certain Intercompany Arrangements
Schedule 9.02 - Notice Information for Banks
CREDIT AGREEMENT
This Credit Agreement dated as of August 10, 1995 is among
Arkansas Best Corporation, a Delaware corporation, as the
Borrower, Societe Generale, Southwest Agency, as Managing Agent
and Administrative Agent, NationsBank of Texas, N.A., as
Documentation Agent, and the Banks.
The parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(unless otherwise indicated, such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Acceptable Security Interest" means a valid, binding, and
enforceable Lien in any collateral (a) which exists in favor of
the Agent for the benefit of itself, the Documentation Agent, and
the Banks, (b) which upon perfection will be superior to all
other Liens, other than Liens permitted by paragraphs (c) and (d)
of Section 6.01 solely to the extent such Liens are afforded
priority under applicable law, (c) which secures the Obligations,
and (d) which (i) is perfected, except to the extent
nonperfection is expressly permitted by the Security Agreements
or (ii) will be perfected upon filing or recording under
applicable law and all documents or instruments necessary to
perfect the same have been duly executed by the Borrower or a
Guarantor, as the case may be, and delivered to the Agent.
"Accession Agreement" means an Accession Agreement in the form
attached to the Guaranty as Annex 2 thereto, which agreement
causes the Person executing and delivering the same to the Agent
to become a party to the Guaranty and to the Guarantors Security
Agreement.
"Acquisition" means the purchase by the Acquisition Company of
over 50% of the issued and outstanding WWC Shares pursuant to the
Acquisition Documents.
"Acquisition Company" means ABC Acquisition Corporation, a
North Carolina corporation that is a wholly-owned Subsidiary of
the Borrower.
"Acquisition Company Stock" means the issued and outstanding
common stock of the Acquisition Company, par value $.01 per
share.
"Acquisition Date" means August 14, 1995.
"Acquisition Documents" means all of the documents which will
be executed on or before the Effective Date with respect to the
acquisition by the Acquisition Company of the WWC Shares through
the Tender Offer, including without limitation the Merger
Agreement.
"Adjusted Consolidated" means Consolidated (as herein defined)
less accounts of Treadco.
"Adjusted Prime Rate" means, for any day, the fluctuating rate
per annum of interest equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Rate in effect on
such day plus 1/2%.
"Advance" either a Revolving Advance or a Term Advance by a
Bank to the Borrower, any such Advance being either a Prime Rate
Advance or a Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such
Person or any Subsidiary of such Person. The term "control"
(including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies
of a Person, whether through ownership of a Control Percentage,
by contract or otherwise.
"Agent" means Societe Generale, Southwest Agency in its
capacity as Administrative Agent for the Banks pursuant to
Article VIII and any successor Administrative Agent pursuant to
Section 8.06.
"Agents' Fee Letter" means the letter agreement dated as of
July 7, 1995 among the Borrower, the Agent and the Documentation
Agent.
"Agreement" means this Credit Agreement dated as of August 10,
1995 among the Borrower, the Managing Agent, the Administrative
Agent, the Documentation Agent, and the Banks, as it may be
amended hereafter in accordance with its terms.
"Anticipated Reinvestment Amount" means, with respect to any
Reinvestment Election, the amount specified in the Reinvestment
Notice delivered by the Borrower in connection therewith as the
amount of the Net Cash Proceeds from the related Asset Sale of
Revenue Equipment that the Borrower or any Guarantor intends to
use (or has already used during a prior period) to purchase or
otherwise acquire replacement Revenue Equipment.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Prime Rate
Advance and such Bank's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, at any time with respect to any
Advance, commitment fees or letter of credit fees hereunder, the
following percentages determined as a function of the ratio of
the Borrower's Consolidated Indebtedness to its Consolidated
EBITDA on the last day of the immediately preceding calendar
quarter calculated for the period consisting of such calendar
quarter and the three immediately preceding calendar quarters:
Eurodollar Letter of
Indebtedness/ Rate Prime Rate Commitment Credit
EBITDA Advances Advances Fees Fees
less than
2.50 1.00% -0-% .25% 1.00%
>2.50 - 3.50 1.25% .25% .25% 1.25%
>3.50 - 4.00 1.50% .50% .375% 1.50%
>4.00 - 4.50 1.75% .75% .375% 1.75%
>4.50 2.00% 1.00% .50% 2.00%
The foregoing ratio (a) shall be deemed to be greater than or
equal to 4.00 but less than 4.50 at all times prior to the date
the Agent receives the December 31, 1995 Consolidated financial
statements of the Borrower showing the WWC Companies as
Consolidated Subsidiaries and (b) shall thereafter be determined
from the financial statements of the Borrower and its
Consolidated Subsidiaries most recently delivered pursuant to
Section 5.06(a) and certified to by an authorized financial
officer of the Borrower in accordance with Section 5.06(a). Any
change in the Applicable Margin after December 31, 1995 shall be
effective upon the date of delivery of the financial statements
pursuant to Section 5.06(a) and receipt by the Agent of the
Compliance Certificate required by Section 5.06(a). If the
Borrower fails to deliver any financial statements within the
times specified in Section 5.06(a), such ratio shall be deemed to
be greater than 4.5 from the date such financial statements
should have been delivered until the Borrower delivers such
financial statements to the Agent and the Banks.
"Asset Sale" means any sale, financing lease (in which the
Borrower or a Guarantor is lessor), conveyance, exchange,
transfer, or assignment of any Property by the Borrower or a
Guarantor to a Person other than the Borrower or a Guarantor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an Eligible Assignee, and accepted by
the Agent, in substantially the form of the attached Exhibit H.
"Available Revolving Facility Amount" means $60,000,000.00.
"Banks" means the lenders listed on the signature pages of
this Agreement and each Eligible Assignee that shall become a
party to this Agreement pursuant to Section 9.06.
"Borrower" means Arkansas Best Corporation, a Delaware
corporation, and any successor, legal representative or permitted
assignee thereof.
"Borrower Security Agreement" means the Security Agreement
dated of even date herewith executed by the Borrower in
substantially the form of Exhibit D, as it may be amended from
time to time in accordance with its terms.
"Borrowing" means either a Revolving Borrowing or a Term
Borrowing.
"Borrowing Base" means an amount equal to the sum of (i) 80%
of the Net Depreciated Value of Eligible Revenue Equipment of the
Borrower and the Guarantors , plus (ii) 50% of the Current Market
Value of Treadco Shares in which the Agent has an Acceptable
Security Interest for the benefit of the Banks, plus (iii) 80% of
the book value of Eligible Receivables of the Guarantors.
"Borrowing Base Adjustment Date" means the last day of each
calendar month.
"Borrowing Base Certificate" means a certificate of the
Borrower in substantially the form of the attached Exhibit L.
"Borrowing Base Determination Date" means the 20th day of each
calendar month, provided that if any such day shall not be a
Business Day, the Borrowing Base Determination Date shall be the
next succeeding Business Day.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City or Dallas, Texas
and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on by banks in the
London interbank market.
"Canadian Subsidiaries" means, collectively, ABF Freight
System (B.C.) Ltd., a British Columbia corporation, ABF Freight
System Canada, Ltd., a Canadian corporation and, after the
Acquisition has occurred, CaroTrans Canada, Ltd., a Canadian
corporation.
"Capital Lease", means, for any Person, any lease of any
property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is or should be accounted
for as a capital lease on the balance sheet of that Person.
"Capitalization Event" means (a) any sale or issuance by the
Borrower or any of its Subsidiaries of equity securities or (b)
an issuance or incurrence of Subordinated Debt.
"Carolina Receivables Facility" means the receivables
financing facility maintained for the benefit of the WWC
Companies which is governed by the Pooling and Servicing
Agreement and the Receivables Purchase Agreement.
"Cash Collateral Account" means a special cash collateral
account containing cash deposited pursuant to Section 2.07(c) or
Section 7.02(b) or 7.03(b) to be maintained at the Agent's office
in accordance with Section 7.04.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, state and
local analogs, and all rules and regulations and requirements
thereunder in each case as now or hereafter in effect.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute.
"Commitment" means, with respect to any Bank, the sum of such
Bank's Revolving Commitment and its Term Commitment.
"Compliance Certificate" means a certificate of the Borrower
in substantially the form of the attached Exhibit K.
"Concentration Limit" means, for any obligor of an Eligible
Receivable, $5,000,000 or such higher amount for such obligor
designated by the Majority Banks in writing to the Borrower;
provided, however, that the Concentration Limit for an obligor
and its Affiliates shall be computed as if they were a single
obligor.
"Consolidated" refers to the consolidation of the accounts of
the Borrower and its Subsidiaries in accordance with GAAP,
including, when used in reference to the Borrower, principles of
consolidation consistent with those applied in the preparation of
the Financial Statements.
"Control Percentage" means, with respect to any Person, the
percentage of the outstanding capital stock of such Person having
ordinary voting power which gives the direct or indirect holder
of such stock the power to elect a majority of the Board of
Directors of such Person.
"Controlled Group" means all members of a controlled group of
corporations and all trades (whether or not incorporated) under
common control which, together with the Borrower, are treated as
a single employer under Section 414 of the Code.
"Convert", "Conversion", and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.02(b).
"Credit Documents" means this Agreement, the Notes, the
Guaranty, the Security Agreements, the Agents' Fee Letter, and
each other agreement, instrument or document executed by the
Borrower or any of its Subsidiaries at any time in connection
with this Agreement.
"Current Market Value of Treadco Shares" means, as of any date
of determination thereof, (i) the number of shares of Treadco
owned by the Borrower or a wholly-owned Subsidiary of the
Borrower and free and clear of all Liens, other than Liens in
favor of the Agent and the Agent for the benefit of the Banks
multiplied by (ii) the most recent closing price of shares of
Treadco reported on the National Association of Securities
Dealers Automated Quotations System ("NASDAQ") National Market
System or, if applicable, the average of the closing bid and
asked quotations for such security as reported on NASDAQ, or if
such shares become listed on another recognized national
securities exchange, the most recent closing price of such shares
on such other exchange.
"Debt Service" means, for any Person for the period for which
such amount is being determined, (a) the amount (without
duplication) of all principal payments made and interest accrued
with respect to any Indebtedness of such Person and all payments
made in respect of Capital Leases of such Person, less (b)
interest income earned by such Person.
"Default" means (a) an Event of Default or (b) any event or
condition which with notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Documentation Agent" means NationsBank of Texas, N.A., as
Documentation Agent for the Banks pursuant to Article VIII.
"Dollar Equivalent" means the equivalent in another currency
of an amount in Dollars to be determined by reference to the rate
of exchange quoted by the Agent, at 10:00 a.m. (Dallas, Texas
time) on the date of determination, for the spot purchase in the
foreign exchange market of such amount of Dollars with such other
currency.
"Dollars" and "$" means lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office"
opposite its name on Schedule 9.02 or such other office of such
Bank as such Bank may from time to time specify to the Borrower
and the Agent.
"EBITDA" means, without duplication, for any period for which
such amount is being determined, the sum of the amounts for such
period of (a) Net Income plus (b) to the extent deducted in
determining Net Income, Interest Expense, the provision for
income taxes, depreciation, amortization, and other non-cash
items.
"Effective Date" means the date all of the conditions
precedent set forth in Section 3.01 have been satisfied, and the
Agent shall have confirmed the same in writing to the Banks.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any State thereof, and
having primary capital of not less than $250,000,000 and approved
by the Agent, the Issuing Banks, and the Borrower, which
approvals will not be unreasonably withheld, (b) a commercial
bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and
Development and having primary capital (or its equivalent) of not
less than $250,000,000 (or its Dollar Equivalent) and approved by
the Agent, the Issuing Banks, and the Borrower, which approvals
will not be unreasonably withheld, (c) a Bank, and (d) an
Affiliate of the respective assigning Bank, without approval of
any Person but otherwise meeting the eligibility requirements of
(a) or (b) above.
"Eligible Receivables" means, as of any Borrowing Base
Adjustment Date, all Receivables of any Guarantor other than a
Canadian Subsidiary in which the Agent has an Acceptable Security
Interest for the benefit of the Banks except:
(i) any Receivable which remains unpaid more than 90 days
after the date of the original invoice for such Receivable;
(ii) any Receivable which is from an obligor which has more
than 10% of its accounts with all Guarantors outstanding more
than 120 days after the date of the original invoice;
(iii) any Receivable which is from an obligor which is to the
Borrower's or any Guarantor's knowledge Insolvent;
(iv) any Receivable which is in excess of the applicable
obligor's Concentration Limit;
(v) any Receivable which is not to the Borrower's or any
Guarantor's knowledge free and clear of all Liens except (A)
Liens in favor of the Agent for the benefit of the Banks and (B)
Permitted Liens on Receivables of a Logistics Subsidiary
described in Section 6.01(m) to the extent the aggregate
obligations secured by such Liens do not exceed $3,000,000 in the
aggregate;
(vi) any Receivable which does not arise under a contract
representing the legal, valid and binding payment obligation of
the obligor thereon, enforceable by such Guarantor in accordance
with its terms;
(vii) any Receivable which together with the related contract
does not comply in all material respects with all Legal
Requirements of the jurisdictions where it originated;
(viii) any Receivable which does not provide, according to its
original terms, that the amount payable thereunder will be due
within 60 days following the date upon which the related obligor
became obligated thereon;
(ix) any Receivable which is payable by an obligor which is
located in any jurisdiction outside of the United States of
America, Puerto Rico or Canada;
(x) any Receivable which is unacceptable to the Majority Banks
for credit reasons in their reasonable discretion;
(xi) any Receivable which is payable by an Affiliate of the
Borrower, but only to the extent such Receivable, when aggregated
with all such Receivables payable by Affiliates of the Borrower
exceeds $100,000;
(xii) any Receivable which is payable by an obligor which is
an agency or instrumentality of the federal government of the
United States of America;
(xiii) any Receivable which is subject to setoff,
counterclaim, defense, allowance, dispute or adjustment other
than allowances or discounts in the ordinary course of business
consistent with past practices; and
(xiv) any Receivable encumbered or otherwise affected by the
Carolina Receivables Facility or subject to any Lien in
connection therewith at any time prior to (A) termination of the
Carolina Receivables Facility in accordance with Article XII
thereof, (B) payment in full of all amounts outstanding
thereunder (or concurrent payment of such amounts with the
proceeds of Advances hereunder specified for such purpose by the
Borrower), (C) reconveyance to WWC or any WWC Company of all
right, title and interest of the Trust (as defined in the
Carolina Receivables Facility) in and to the Receivables held by
the Trust and all other Trust Assets (as defined in the Carolina
Receivables Facility) as set forth in Section 12.03 of the
Carolina Receivables Facility (which reconveyance may be
effective concurrently with the payoff contemplated by clause (B)
above), (D) release of all Liens with respect to the Carolina
Receivables Facility (which release may be effective concurrently
with the payoff contemplated by clause (B) above), and (E) the
Agent's receipt of satisfactory evidence of the matters set forth
in clauses (A), (B), (C) and (D) above.
"Eligible Revenue Equipment" means Revenue Equipment owned by
the Borrower or any Guarantor as of any Borrowing Base Adjustment
Date in which the Agent has an Acceptable Security Interest for
the benefit of the Banks.
"Environment" or "Environmental" shall have the meanings set
forth in 43 U.S.C. 9601(8) (1988).
"Environmental Claim" means any third party (including
governmental agencies and employees) action, lawsuit, claim,
demand, regulatory action or proceeding, order, decree, consent
agreement or notice of potential or actual responsibility or
violation (including claims or proceedings under the Occupational
Safety and Health Acts or similar laws or requirements relating
to health or safety of employees) which seeks to impose liability
under any Environmental Law.
"Environmental Law" means all Legal Requirements arising from,
relating to, or in connection with the Environment, health, or
safety, including without limitation CERCLA, relating to
(a) pollution, contamination, injury, destruction,
loss,protection, cleanup, reclamation or restoration of the
air, surface water, groundwater, land surface or subsurface
strata, or other natural resources; (b) solid, gaseous or
liquid waste generation, treatment, processing, recycling,
reclamation, cleanup, storage, disposal or transportation; (c)
exposure to pollutants, contaminants, hazardous, medical,
infectious, or toxic substances, materials or wastes; (d) the
safety or health of employees; or (e) the manufacture,
processing, handling, transportation, distribution in
commerce, use, storage or disposal of hazardous, medical,
infectious, or toxic substances, materials or wastes.
"Environmental Permit" means any permit, license, order,
approval or other authorization under Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board (or any
successor), as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending
Office" opposite its name on Schedule 9.02 (or, if no such office
is specified, its Domestic Lending Office) or such other office
of such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) equal to (A) the rate per annum
at which deposits in Dollars are offered by the principal office
of Societe Generale in London, England to prime banks in the
London interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to Societe Generale's Eurodollar Rate Advance
comprising part of such Borrowing and for a period equal to such
Interest Period divided by (B) one minus the applicable statutory
reserve requirements of the Documentation Agent, expressed as a
decimal (including without duplication or limitation, basic,
supplemental, marginal and emergency reserves), from time to time
in effect under Regulation D or similar regulations of the
Federal Reserve Board. It is agreed that for purposes of this
definition, Eurodollar Rate Advances made hereunder shall be
deemed to constitute Eurocurrency Liabilities as defined in
Regulation D and to be subject to the reserve requirements of
Regulation D.
"Eurodollar Rate Advance" means an Advance which bears
interest as provided in Section 2.06(b).
"Events of Default" has the meaning set forth in Section 7.01.
"Excess Cash Flow" means, for any fiscal year of the Borrower
on an Adjusted Consolidated basis, (a) EBITDA for such year,
minus (b) the aggregate amount paid (without duplication) during
such year for taxes, capital expenditures, permitted Restricted
Payments, Interest Expense, and scheduled principal payments on
Indebtedness, minus (or plus) (c) changes in working capital from
the prior fiscal year.
"Existing Banks" means the banks parties to the Existing
Credit Agreement.
"Existing Credit Agreement" shall mean the Second Amended and
Restated Credit Agreement dated as of May 5, 1993, as amended
prior to the Effective Date, among the Borrower, the banks
parties thereto, NationsBank of Texas, N.A., as Co-Agent, and
Societe Generale, Southwest Agency, as Agent.
"Expiration Date" means, with respect to any Letter of Credit,
the date on which such Letter of Credit will expire or terminate
in accordance with its terms.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for any such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any of its successors.
"Financial Statements" means
(a) at any time prior to the receipt by the Agent of the
Borrower's consolidated financial statements dated as of
September 30, 1995 showing the WWC Companies as Consolidated
Subsidiaries of the Borrower, the financial statements referred
to in paragraphs (a), (c), and (d) of Section 4.05, copies of
which have been delivered to the Agent and the Banks,
(b) at any time after receipt of the September 30, 1995
financial statements referred to in (a) above but prior to the
receipt by the Agent and the Banks of the Borrower's audited
Consolidated financial statements dated as of December 31, 1995,
the Borrower's Consolidated statements dated as at September 30,
1995, and
(c) at any time after the receipt by the Agent and the Banks
of the Borrower's audited Consolidated financial statements dated
as of December 31, 1995, such audited financial statements.
"Fund," "Trust Fund," or "Superfund" means the Hazardous
Substance Response Trust Fund, established pursuant to 42 U.S.C.
9631 (1988) and the Post-closure Liability Trust Fund,
established pursuant to 42 U.S.C. 9641 (1988), which statutory
provisions have been amended or repealed by the Superfund
Amendments and Reauthorization Act of 1986, and the "Fund,"
"Trust Fund," or "Superfund" that are now maintained pursuant to
9507 of the Code.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time, applied on a basis
consistent with the requirements of Section 1.03.
"Governmental Authority" means any foreign governmental
authority, the United States of America, any state of the United
States of America and any subdivision of any of the foregoing,
and any agency, department, commission, board, authority or
instrumentality, bureau or court having jurisdiction over any
Bank, the Borrower, or the Borrower's Subsidiaries or any of
their respective Properties.
"Governmental Proceedings" means any action or proceedings by
or before any Governmental Authority, including, without
limitation, the promulgation, enactment or entry of any Legal
Requirement.
"Guarantor" means each Subsidiary of the Borrower that is a
party to the Guaranty, and "Guarantors" means such Persons
collectively.
"Guarantors Security Agreement" means the Security Agreement
dated of even date herewith executed by the Guarantors in
substantially the form of Exhibit E, as it may be amended from
time to time in accordance with its terms.
"Guaranty" means the Subsidiary Guaranty and Contribution
Agreement dated of even date herewith in substantially the form
of the attached Exhibit C executed by certain Subsidiaries of the
Borrower, as it may be amended hereafter in accordance with its
terms.
"Hazardous Substance" means the substances identified as such
pursuant to CERCLA and those regulated under any other
Environmental Law, including without limitation pollutants,
contaminants, petroleum, petroleum products, radionuclides,
radioactive materials, and medical and infectious waste.
"Hazardous Waste" means the substances regulated as such
pursuant to any Environmental Law.
"Headquarters Credit Agreement" means the Amended and Restated
Credit Agreement dated as of August 10, 1995 among the Borrower,
the banks party thereto, and NationsBank of Texas, N.A., as agent
for such banks, as such agreement may be further amended from
time to time in accordance with its terms.
"ICC" means the United States Interstate Commerce Commission.
"ICC Subsidiaries" means the following WWC Companies which are
regulated by the ICC: Carolina Freight Carriers Corporation, Red
Arrow Freight Lines, Inc., G.I. Trucking Company, Cardinal
Freight Carriers, Inc., The Complete Logistics Company, and
CaroTrans International, Inc.
"Indenture" means the Indenture dated as of April 15, 1986
between WWC and First Union National Bank of North Carolina, N.A.
(formerly known as First Union National Bank), as Trustee, as it
may be amended or supplemented in accordance with its terms.
i) indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the
deferred purchase price of property or services purchased (other
than amounts constituting trade payables or bank drafts (payable
within 120 days) arising in the ordinary course); (ii)
indebtedness of others which such Person has directly or
indirectly assumed or guaranteed or otherwise provided credit
support therefor; (iii) indebtedness of others secured by a Lien
on assets of such Person, whether or not such Person shall have
assumed such indebtedness; (iv) obligations of such Person in
respect of letters of credit, acceptance facilities, or drafts or
similar instruments issued or accepted by banks and other
financial institutions for the account of such Person (other than
trade payables or bank drafts (payable within 120 days) arising in
the ordinary course); and (v) obligations of such Person under
Capital Leases.
"Initial Guarantors" means each Subsidiary of the Borrower on
the Effective Date which is identified as an "Initial Guarantor" on
Schedule 4.01(a).
"Insolvent" means, with respect to any Person, that (i) the
present fair saleable value of such Person's assets is less than
the amount that will be required to pay its probable liability on
its then existing legal liabilities, either matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent, as
they become absolute or matured, or (ii) the property remaining
in its hands is an unreasonably small capital for the business or
transaction in which it is engaged or is about to engage.
"Interest Expense" means, for any Person, for any period for
which such amount is being determined, total interest expense
(including that properly attributable to Capital Leases in
accordance with GAAP and amortization of debt discount and debt
issuance costs); including, without limitation, all capitalized
interest, all commissions and other fees, discounts, and charges
incurred with respect to letters of credit.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on
the date of such Advance or the date of the Conversion of any
Prime Rate Advance into such an Advance and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below and Section 2.02 and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below
and Section 2.02. The duration of each such Interest Period
shall be one, two, three, or six months, in each case as the
Borrower may, upon notice received by the Agent not later than
11:00 a.m. (Dallas, Texas time) on, the third Business Day prior
to the first day of such Interest Period select; provided,
however, that:
(a) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of
the same duration;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided that if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day;
(c) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month in which it would have ended if there were
a numerically corresponding day in such calendar month; and
(d) the Borrower may not select any Interest Period for any Term
Advance which ends after any scheduled principal repayment date
unless, after giving effect to such selection, the aggregate unpaid
principal amount of Term Advances that are Prime Rate Advances
and Term Advances having Interest Periods which end on or before
such scheduled principal repayment date shall be at least equal
to the amount of Term Advances due and payable on or before such
date.
"Issuing Bank" means Societe Generale or NationsBank of Texas,
N.A. or any other Bank which agrees at the request of the
Borrower to act as issuer of a Letter of Credit hereunder, or any
Bank acting as a successor issuing bank pursuant to Section 8.06,
and "Issuing Banks" means, collectively, all of such Banks.
"Legal Requirement" means any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or official
interpretation of any of the foregoing) of, and the terms of any
license or permit issued by, any Governmental Authority.
"Letter of Credit" means, individually, any letter of credit
issued by an Issuing Bank which is subject to this Agreement,
including, without limitation, the letters of credit described on
Schedule 1.01(b), and "Letters of Credit" means all such letters
of credit collectively.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, such Letter of Credit and any agreements, documents,
and instruments entered into in connection with or relating to
such Letter of Credit.
"Letter of Credit Exposure" means, at any time, the sum of
(a) the aggregate undrawn maximum face amount of each Letter of
Credit at such time and (b) the aggregate unpaid amount of all
Reimbursement Obligations at such time.
"Letter of Credit Obligations" means any obligations of the
Borrower under this Agreement in connection with the Letters of
Credit.
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other type of
preferential arrangement to secure or provide for the payment of
any obligation of any Person, whether arising by contract,
operation of law or otherwise (including, without limitation, the
interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement).
"Liquid Investments" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States;
(b) (i) negotiable or nonnegotiable certificates of deposit, time
deposits, or other similar banking arrangements maturing within
180 days from the date of acquisition thereof ("bank debt
securities"), issued by (A) any Bank or (B) any other bank or
trust company which has a combined capital surplus and undivided
profit of not less than $250,000,000 or the Dollar Equivalent
thereof, if at the time of deposit or purchase, such bank debt
securities are rated not less than "A" (or the then equivalent)
by the rating service of S&P or of Moody's Investors Service, and
(ii) commercial paper issued by (A) any Bank or (B) any other
Person if at the time of purchase such commercial paper is rated
not less than "A-2" (or the then equivalent) by the rating
service of S&P or not less than "P-2" (or the then equivalent) by
the rating service of Moody's Investors Service, or upon the
discontinuance of both of such services, such other nationally
recognized rating service or services, as the case may be, as
shall be selected by the Borrower with the consent of the
Majority Banks;
(c) repurchase agreements relating to investments described in
clauses (a) and (b) above with a market value at least equal to
the consideration paid in connection therewith, with any
Person who regularly engages in the business of entering into
repurchase agreements and has a combined capital surplus and
undivided profit of not less than $250,000,000 or the Dollar
Equivalent thereof, if at the time of entering into such
agreement the debt securities of such Person are rated not less
than "A" (or the then equivalent) by the rating service of S&P or
of Moody's Investors Service; and
(d) shares of any mutual fund registered under the Investment
Company Act of 1940, as amended, which invests solely in
underlying securities of the types described in clauses (a), (b)
and (c) above and which do not constitute "margin stock" within
the meaning of Regulation U of the Federal Reserve Board; and
(e) such other instruments (within the meaning of Article 9
of the Texas Business and Commerce Code) as the Borrower may
request and the Majority Banks may approve in writing, which
approval will not be unreasonably withheld.
"Logistics Subsidiary" means any Subsidiary of the Borrower
which contracts for the benefit of its customers the railroad
shipment of such customer' goods with any railroad company.
"Majority Banks" means, at any time, Banks holding at least
66-2/3% of the then aggregate unpaid principal amount of the
Notes held by the Banks and the participation interest in the
Letter of Credit Exposure of the Banks at such time, or, if no
such principal amount and Letter of Credit Exposure is then
outstanding, Banks having at least 66-2/3% of the aggregate
amount of the Commitments at such time.
"Material Adverse Change" shall mean a material adverse change
in the business, financial condition, or results of operations of
the Borrower or any Guarantor, in each case since the date of the
Financial Statements, except the material adverse changes
affecting the WWC Companies prior to the Acquisition and
described on Schedule 3.01(e).
"Maturity Date" means the date which is the third anniversary
of the Effective Date, as such date may be extended pursuant to
Section 2.01(c).
"Maximum Rate" means the maximum nonusurious interest rate
under applicable law.
"Merger" means the merger of WWC with and into the Acquisition
Company which is described in Article II of the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of July 8, 1995 among the Borrower, the Acquisition
Company and WWC, as amended in accordance with its terms and the
terms of this Agreement.
"Merger Effective Time" means the "Effective Time" of the
Merger, as such term is defined in the Merger Agreement.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any
member of the Controlled Group is making or accruing an
obligation to make contributions.
"Net Cash Proceeds" means (a) the aggregate cash proceeds
received by the Borrower or any Guarantor in connection with any
Asset Sale or Capitalization Event, minus (b) the reasonable
expenses of the Borrower or such Guarantor in connection with
such Asset Sale or such Capitalization Event, minus, in the case
of an Asset Sale, current and deferred taxes attributable to such
Asset Sale, including income taxes, if any, after allocation of
the appropriate tax bases pursuant to the Code, and required
payments on any Indebtedness (other than the Obligations) secured
by the assets sold.
"Net Depreciated Value" means, with respect to Revenue
Equipment, the aggregate value of such Revenue Equipment on the
books of the Borrower or any Guarantor as of the date of
acquisition thereof by the Borrower or such Guarantor or the
actual cost of such Revenue Equipment to the Borrower or such
Guarantor, whichever is less (the "Cost"), minus depreciation
computed to the most recent Borrowing Base Adjustment Date at a
rate sufficient to depreciate such Revenue Equipment to the
extent, and in the periods, set forth below on a straight-line
basis to a customary residual value:
city tractors: within seven years
trucks: within five years
tractors (other than city tractors): within three years
trailers: within seven years
"Net Income" means, for any Person for any period for which
such amount is being determined, the net income of such Person
after taxes, as determined in accordance with GAAP, excluding,
however, extraordinary items, including but not limited to (i)
any net gain or loss during such period arising from the sale,
exchange, or other disposition of capital assets (such term to
include all fixed assets and all securities) other than in the
ordinary course of business and (ii) any write-up or write-down
of assets.
"Net Worth" means, for any Person, stockholders equity of such
Person determined in accordance with GAAP.
"Note" means either a Revolving Note or a Term Note.
"Notice of Borrowing" means a notice of borrowing in the form
of the attached Exhibit F signed by a Responsible Officer of the
Borrower.
"Notice of Conversion or Continuation" means a notice of
conversion or continuation in the form of the attached Exhibit G
signed by a Responsible Officer of the Borrower.
"Obligations" means all Advances, Reimbursement Obligations,
and other amounts payable by the Borrower to the Agent, the
Documentation Agent, or the Banks under the Credit Documents.
"Offer Price" means the price per WWC Share of $11.00 net to
the seller in cash as contemplated in connection with the Tender
Offer, or such higher per share price consented to by the Agent
and the Banks.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" means the Liens permitted to exist pursuant
to Section 6.01.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof or any
trustee, receiver, custodian or similar official.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of the Borrower or
any member of the Controlled Group and covered by Title IV of
ERISA or subject to the minimum funding standards under
Section 412 of the Code.
"Pooling and Servicing Agreement" means the Carolina Freight
Trade Receivables Master Trust Pooling and Servicing Agreement
dated as of December 1, 1993 among Carolina Freight Funding
Corporation, as Transferor, WWC (then known as Carolina Freight
Corporation), as Servicer, and The First National Bank of
Chicago, as Trustee, as supplemented by the Series 1993-1
Supplement dated as of December 1, 1993 among the same parties.
"Prime Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time equal to the rate of
interest publicly announced by Societe Generale, New York Branch
as its prime commercial lending rate, whether or not the Borrower
has notice thereof.
"Prime Rate Advance" means an Advance which bears interest as
provided in Section 2.06(a).
"Property" of any Person means any property or assets (whether
real, personal, or mixed, tangible or intangible) of such Person.
"Pro Rata Share" means, at any time with respect to any Bank,
either (a) the ratio (expressed as a percentage) of such Bank's
Commitment at such time to the aggregate Commitments at such time
or (b) if the Commitments have been terminated, the ratio
(expressed as a percentage) of such Bank's aggregate outstanding
Advances and participation interest in the Letter of Credit
Exposure at such time to the aggregate outstanding Advances and
Letter of Credit Exposure of all the Banks at such time.
"Receivables" means all rights to receive payment for goods
sold or for services rendered in the ordinary course of business.
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement dated as of December 1, 1993 between WWC and
Carolina Freight Funding Corporation, a wholly-owned Subsidiary
of WWC.
"Register" has the meaning set forth in paragraph (c) of
Section 9.06.
"Reimbursement Obligations" means all of the obligations of
the Borrower set forth in Section 2.13(c).
"Reinvestment Election" shall have the meaning provided in
Section 2.07(c)(iii).
"Reinvestment Notice" shall mean a written notice signed by a
Responsible Officer of the Borrower stating that the Borrower, in
good faith, intends and expects to use, or cause any Guarantor to
use, all or a specified portion of the Net Cash Proceeds of an
Asset Sale of Revenue Equipment to purchase or otherwise acquire
replacement Revenue Equipment; it being agreed that in lieu of
identifying a future use for such Net Cash Proceeds, the Borrower
may identify funds already paid in connection with Revenue
Equipment acquired during the preceding 12 month period and such
prior expenses (allocated only once) shall be deemed to be
reinvestments for purposes of reducing the prepayment obligations
of the Borrower under Section 2.07(c)(iii).
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment
Prepayment Date relating thereto by which (i) the Anticipated
Reinvestment Amount in respect of such Reinvestment Election
exceeds (ii) the aggregate amount thereof expended by the
Borrower and the Guarantors to acquire replacement Revenue
Equipment.
"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon
which the Agent, on behalf of the Majority Banks, shall have
delivered a written termination notice to the Borrower, provided
that such notice may only be given while an Event of Default
exists, (ii) the date occurring 90 days after such Reinvestment
Election and (iii) the date on which the Borrower or the relevant
Guarantor shall have determined not to, or shall have otherwise
ceased to, proceed with the purchase or other acquisition of
replacement Revenue Equipment with the related Anticipated
Reinvestment Amount.
"Release" shall have the meaning set forth in CERCLA or under
any other Environmental Law.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA.
"Required Amount of Perfected Revenue Equipment" means, as of
any date of determination thereof, an amount equal to (a) the
aggregate Revolving Commitments on such date, minus (b) the
aggregate Borrowing Base value of Eligible Receivables and
Treadco Shares on such date, minus (c) the Letter of Credit
Exposure on such date.
"Response" shall have the meaning set forth in CERCLA or under
any other Environmental Law.
"Responsible Officer" means the Chief Executive Officer,
President, Chief Financial Officer, any Executive or Senior Vice
President, Treasurer or Secretary of any Person.
"Restricted Payment" means (a) any direct or indirect payment,
prepayment, redemption, purchase, or deposit of funds or Property
for the payment (including any sinking fund or defeasance),
prepayment, redemption or purchase of Subordinated Debt, and (b)
prior to the Term Commitment Expiration Date and payment in full
of the Term Advances, the making by any Person of any dividends
or other distributions (in cash, property, or otherwise) on, or
payment for the purchase, redemption or other acquisition of, any
shares of any capital stock of such Person, other than dividends
payable in such Person's stock.
"Revenue Equipment" means, with respect to any Person, trucks,
tractors, trailers, and city tractors, and all accessories and
parts attached thereto, owned by such Person as of the date of
determination free and clear of all Liens.
"Revenue Equipment Perfection Date" means the earlier of (i)
the occurrence of any Event of Default hereunder and the failure
of the Banks to waive such Event of Default within 10 days after
the Agent or any Bank has knowledge of such Event of Default or
(ii) any date the Borrower does not have a senior unsecured
implied investment grade rating from either S&P or Moody's
Investors Service.
"Revolving Advance" means any advance by a Bank to the
Borrower pursuant to Section 2.01(a).
"Revolving Borrowing" means a borrowing consisting of
simultaneous Revolving Advances of the same Type made by each
Bank pursuant to Section 2.01(a) or Converted by each Bank to
Revolving Advances of a different Type pursuant to
Section 2.02(b).
"Revolving Commitment" means, with respect to any Bank, the
amount set opposite such Bank's name on Schedule 1.01(a) as its
Revolving Commitment, or if such Bank has entered into any
Assignment and Acceptance, the amount set forth for such Bank as
its Revolving Commitment in the Register maintained by the Agent
pursuant to Section 9.06(c), as such amount may be reduced
pursuant to Section 2.04.
"Revolving Note" means a promissory note of the Borrower
payable to the order of any Bank, in substantially the form of
the attached Exhibit A, evidencing indebtedness of the Borrower
to such Bank resulting from Revolving Advances owing to such
Bank.
"Rolling Period" means, with respect to any fiscal quarter of
the Borrower, such fiscal quarter and the three immediately
preceding fiscal quarters.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or any successor thereof.
"Security Agreements" means, collectively, the Borrower
Security Agreement and the Guarantors Security Agreement.
"Subordinated Debentures" means the 6 1/4% Convertible
Subordinated Debentures Due 2011 issued by WWC (at that time
called Carolina Freight Corporation) pursuant to the Indenture in
the original aggregate principal amount of $50,000,000, of which
$49,994,000 is outstanding on the date of this Agreement.
Section 412 of the Code.
"Subordinated Debt" means (a) the Subordinated Debentures, and
(b) any Indebtedness of the Borrower or any of its Subsidiaries which
is subordinated to their respective obligations under the Credit
Documents and which is on terms and conditions satisfactory to the
Agent and the Banks.
"Subordinated Debt Documents" means the Indenture, the Subordinated
Debentures and all documents, instruments and agreements now or
hereafter executed by the Borrower or any of its Subsidiaries in
respect of Subordinated Debt and any and all amendments, modifications,
supplements, renewals or restatements thereof approved in accordance
with Section 6.02.
"Subsidiary" of a Person means any corporation, association, of
the outstanding shares of capital stock (or other equivalent
interests) having by the terms thereof ordinary voting power
under ordinary circumstances to elect a majority of the board of
directors or Persons performing similar functions (or, if there
are no such directors or Persons, having general voting power) of
such entity (irrespective of whether at the time capital stock
(or other equivalent interests) of any other class or classes of
such entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more
Subsidiaries of such Person or by one or more Subsidiaries of
such Person.
"Tender Offer" means the Borrower's public tender offer for
all of the issued and outstanding WWC Shares.
"Term Advance" means any advance by a Bank to the Borrower
pursuant to Section 2.01(b).
"Term Borrowing" means a borrowing consisting of simultaneous
Term Advances of the same Type made by each Bank pursuant to
Section 2.01(b) or Converted by each Bank to Term Advances of a
different Type pursuant to Section 2.02(b).
"Term Commitment" means, with respect to any Bank, the amount
set opposite such Bank's name on Schedule 1.01(a) as its Term
Commitment, or if such Bank has entered into any Assignment and
Acceptance, the amount set forth for such Bank as its Term
Commitment in the Register maintained by the Agent pursuant to
Section 9.06(c), as such amount may be reduced pursuant to
Section 2.04; provided however that on the Term Commitment
Expiration Date, the Term Commitment of each Bank shall reduce to
zero.
"Term Commitment Expiration Date" means the earlier of (i) the
date the aggregate Term Advances equal $75,000,000 or (ii)
November 30, 1995.
"Termination Event" means (a) the occurrence of a Reportable
Event with respect to a Plan, as described in Section 4043 of
ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice
to the PBGC under such regulations), (b) the withdrawal of the
Borrower or any of its Affiliates from a Plan during a plan year
in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, (c) the giving of a notice of intent to
terminate a Plan under Section 4041(c) of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, or
(e) any other event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan.
"Term Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of the attached
Exhibit B, evidencing indebtedness of the Borrower to such Bank
resulting from Term Advances owing to such Bank.
"Treadco" means Treadco, Inc., a Delaware corporation, which
is an Affiliate of the Borrower.
"Type" has the meaning set forth in Section 1.04.
"Voting Trusts" means the independent voting trusts holding
the capital stock of the ICC Subsidiaries pending receipt of the
exemption from or approval by the ICC of the Merger.
"WWC" means WorldWay Corporation, a North Carolina
corporation, formerly known as Carolina Freight Corporation.
"WWC Companies" means WWC and its Subsidiaries.
"WWC Guarantors" means each Subsidiary of the Acquisition
Company on the Acquisition Date which is identified as a "WWC
Guarantor" on Schedule 4.01(b).
"WWC Shares" means the shares of common stock of WWC, par
value $.50 per share.
Section 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"
and the words "to" and "until" each means "to but excluding".
Section 1.03. Accounting Terms; Changes in GAAP.
(a) All accounting terms not specifically defined in this
Agreement shall be construed in accordance with GAAP applied on a
consistent basis with those applied in the preparation of the
Financial Statements.
(b) Unless otherwise indicated, all financial statements of
the Borrower, all calculations for compliance with covenants in
this Agreement, and all calculations of any amounts to be
calculated under the definitions in Section 1.01 shall be based
upon the Consolidated accounts of the Borrower and its
Subsidiaries in accordance with GAAP.
(c) If any changes in accounting principles after December
31, 1994 are required by GAAP or the Financial Accounting
Standards Board of the American Institute of Certified Public
Accountants or similar agencies results in a change in the method
of calculation of, or affects the results of such
calculation of, any of the financial covenants, standards or
terms found in this Agreement, then the parties shall enter into
and diligently pursue negotiations in order to amend such
financial covenants, standards or terms so as to equitably
reflect such change, with the desired result that the criteria
for evaluating the Borrower's and its Consolidated Subsidiaries'
financial condition shall be the same after such change as if
such change had not been made.
Section 1.04. Types of Advances. Advances are distinguished
by "Type". The "Type" of an Advance refers to the determination
whether such Advance is a Eurodollar Rate Advance or Prime Rate
Advance, each of which constitutes a Type.
Section 1.05. Miscellaneous. Article, Section, Schedule and
Exhibit references are to Articles and Sections of and Schedules
and Exhibits to this Agreement, unless otherwise specified.
ARTICLE II
THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01. The Advances; Extension of Maturity Date.
(a) Revolving Advances. Each Bank severally agrees, on
theterms and conditions set forth in this Agreement, to
make Revolving Advances to the Borrower from time to time on
any Business Day prior to the Maturity Date in an aggregate
amount not to exceed at any time outstanding an amount equal to
such Bank's Revolving Commitment less such Bank's Pro Rata Share
of the Letter of Credit Exposure at such time; provided,
however that prior to the Acquisition Date, the aggregate
amount of Revolving Advances may not exceed the Available
Revolving Facility Amount less the Letter of Credit
Exposure. The aggregate amount of all Revolving Advances
outstanding at any time may not exceed either (i) the
aggregate Revolving Commitments at such time less the Letter of
Credit Exposure at such time, or (ii) the Borrowing Base at
such time. Within the limits of each Bank's Revolving Commitment
and the Borrowing Base limitation set forth above, the Borrower
may from time to time prepay pursuant to Section 2.07 and
reborrow under this Section 2.01(a).
(b) Term Advances. Each Bank severally agrees, on the terms
and conditions set forth in this Agreement, to make up to three
(3) Term Advances to the Borrower from time to time on any
Business Day on or after the Acquisition Date and prior to the
Term Commitment Expiration Date in an aggregate amount not to
exceed an amount equal to such Bank's Term Commitment minus the
aggregate amount of any Term Advance of such Bank which has been
prepaid. Any Term Advances which are prepaid or repaid may not
be reborrowed.
(c) Extension of Maturity Date. So long as no Default shall
have occurred and be continuing at such time, at least 30 days
before any anniversary of the Effective Date, the Borrower may
request in writing to the Agent and each Bank that the Banks
extend the Maturity Date by one year. The Banks agree to
consider such request and discuss it with the Borrower, but it is
expressly acknowledged that no party hereto shall have any
obligation to agree to any such extension, and that such
extension shall be subject to such terms and conditions as the
parties may mutually agree.
Section 2.02. Method of Borrowing.
(a) Notice. Each Borrowing shall be made pursuant to
a Notice of Borrowing, given not later than (i) 11:00 a.m. (Dallas,
Texas time) on the third Business Day before the date of the
proposed Borrowing, in the case of a Eurodollar Rate Advance or
(ii) 11:00 a.m. (Dallas, Texas time) on the Business Day of the
proposed Borrowing, in the case of a Prime Rate Advance, by the
Borrower to the Agent, which shall give to each Bank prompt
notice on the day of receipt of timely Notice of Borrowing of
such proposed Borrowing by telecopier. Each Notice of Borrowing
shall be in writing or by telecopier specifying the requested (i)
date of such Borrowing, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) if
such Borrowing is to be comprised of Eurodollar Rate Advances,
the Interest Period for each such Advance. In the case of a
proposed Borrowing comprised of Eurodollar Rate Advances, the
Agent shall promptly notify each Bank of the applicable interest
rate under Section 2.06(b). Each Bank shall (i) in the case of
all Borrowings other than Borrowings made on the same day as the
day the Notice of Borrowing is received, before 11:00 a.m.
(Dallas, Texas time) on the date of such Borrowing and (ii) in
the case of Borrowings made on the same day as the date of the
Notice of Borrowing, before 1:00 p.m. (Dallas, Texas time), make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 9.02, or such other
location as the Agent may specify by notice to the Banks, in same
day funds, such Bank's Pro Rata Share of such Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will
make such funds available to the Borrower at its account with the
Agent.
(b) Conversions and Continuations. In order to elect to
Convert or continue Advances comprising part of the same
Borrowing under this Section, the Borrower shall deliver an
irrevocable Notice of Conversion or Continuation to the Agent at
the Agent's office no later than 11:00 a.m. (Dallas, Texas time)
(i) on the Business Day of the proposed conversion date in the
case of a Conversion of such Advances to Prime Rate Advances and
(ii) at least three Business Days in advance of the proposed
Conversion or continuation date in the case of a Conversion to,
or a continuation of, Eurodollar Rate Advances. Each such Notice
of Conversion or Continuation shall be in writing or by
telecopier, specifying (i) the requested Conversion or
continuation date (which shall be a Business Day), (ii) the
Borrowing amount and Type of the Advances to be Converted or
continued, (iii) whether a Conversion or continuation is
requested, and if a Conversion, into what Type of Advances, and
(iv) in the case of a Conversion to, or a continuation of,
Eurodollar Rate Advances, the requested Interest Period. Term
Advances may only be Converted or continued as Term Advances and
Revolving Advances may only be Converted or continued as
Revolving Advances. Promptly after receipt of a Notice of
Conversion or Continuation under this paragraph, the Agent shall
provide each Bank with a copy thereof and, in the case of a
Conversion to or a Continuation of Eurodollar Rate Advances,
notify each Bank of the applicable interest rate under
Section 2.06(b).For purposes other than the conditions set
forth in Section 3.02, the portion of Term Advances comprising
part of the same Term Borrowing that are Converted to Term
Advances of another Type shall constitute a new Term Borrowing
and the portion of Revolving Advances comprising part of the same
Revolving Borrowing that are Converted to Revolving Advances of
another Type shall constitute a new Revolving Borrowing.
(c) Certain Limitations. Notwithstanding anything
in paragraphs (a) and (b) above:
(i) each Borrowing shall be in an aggregate amount not
less than $5,000,000 or greater multiples of $1,000,000, in
the case of Eurodollar Rate Advances, or $1,000,000 or greater
multiples of $100,000, in the case of Prime Rate Advances, and
shall consist of Advances of the same Type made on the same
day by the Banks ratably according to their respective
Commitments.
(ii) at no time shall there be more than five Interest
Periods applicable to outstanding Eurodollar Rate Advances;
(iii) the Borrower may not select Eurodollar
RateAdvances for any Borrowing to be made, Converted or
continued if (x) the aggregate amount of such Borrowing is
less than $5,000,000 or (y) a Default has occurred and is
continuing;
(iv) (A) if any Bank shall, at any time prior to the
making of any requested Borrowing comprised of Eurodollar Rate
Advances, notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation
makes it unlawful, or that any central bank or other govern
mental authority asserts that it is unlawful, for such Bank or
its Eurodollar Lending Office to perform its obligations under
this Agreement to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances, such Bank's Pro Rata Share
of such Borrowing shall be made as a Prime Rate Advance of
such Bank, but otherwise shall be considered part of the same
Borrowing and interest on such Prime Rate Advance shall be due
and payable at the same time that interest on the Eurodollar
Rate Advances comprising the remainder of such Borrowing shall
be due and payable; and (B) such Bank agrees to use
commercially reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such
designation would avoid the effect of this paragraph and would
not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank;
(v) if the Agent is unable to determine the Eurodollar
Rate for Eurodollar Rate Advances comprising any requested
Borrowing, the right of the Borrower to select Eurodollar Rate
Advances for such Borrowing or for any subsequent Borrowing
shall be suspended until the Agent shall notify the Borrower
and the Banks that the circumstances causing such suspension
no longer exist, and each Advance comprising such Borrowing
shall be a Prime Rate Advance;
(vi) if the Majority Banks shall, at least one Business
Day before the date of any requested Borrowing, notify the
Agent that the Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect the cost
to such Banks of making or funding their respective Eurodollar
Rate Advances, as the case may be, for such Borrowing, the
right of the Borrower to select Eurodollar Rate Advances for
such Borrowing or for any subsequent Borrowing shall be
suspended until the Agent shall notify the Borrower and the
Banks that the circumstances causing such suspension no longer
exist, and each Advance comprising such Borrowing shall be a
Prime Rate Advance;
(vii) if the Borrower shall fail to select the
duration or continuation of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in
Section 1.01 and paragraph (a) or (b) above, the Agent will
forthwith so notify the Borrower and the Banks and such
Advances will be made available to the Borrower on the date of
such Borrowing as Prime Rate Advances or, if an existing
Advance, Converted into Prime Rate Advances; and
(viii) prior to the date on which the Agent notifies the
Borrower that the initial syndication of the facility created
hereby has been completed, all Advances hereunder shall be
Prime Rate Advances.
(d) Notices Irrevocable. Each Notice of Borrowing and Notice
of Conversion or Continuation shall be irrevocable and binding on
the Borrower. In the case of any Borrowing which the related
Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Bank against any
loss, out-of-pocket cost or expense incurred by such Bank as a
result of any condition precedent for Borrowing set forth in
Article III not being satisfied for any reason, including,
without limitation, any loss, cost or expense actually incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Advance to be made by
such Bank as part of such Borrowing when such Advance, as a
result of such failure, is not made on such date.
(e) Agent Reliance. Unless the Agent shall have received
notice from a Bank before the date of any Borrowing that such
Bank will not make available to the Agent such Bank's Pro Rata
Share of the Borrowing, the Agent may assume that such Bank has
made its Pro Rata Share of such Borrowing available to the Agent
on the date of such Borrowing in accordance with paragraph (a) of
this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall
not have so made its Pro Rata Share of such Borrowing available
to the Agent, such Bank and the Borrower severally agree to
immediately repay to the Agent on demand such corresponding
amount, together with interest on such amount, for each day from
the date such amount is made available to the Borrower until the
date such amount is repaid to the Agent, at (i) in the case of
the Borrower, the interest rate applicable on such day to
Advances comprising such Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate for such day. If such Bank shall
repay to the Agent such corresponding amount and interest as
provided above, such corresponding amount so repaid shall
constitute such Bank's Advance as part of such Borrowing for
purposes of this Agreement even though not made on the same day
as the other Advances comprising such Borrowing.
(f) Bank Obligations Several. The failure of any Bank to
make the Advance to be made by it as part of any Borrowing shall
not relieve any other Bank of its obligation, if any, to make its
Advance on the date of such Borrowing. No Bank shall be
responsible for the failure of any other Bank to make the Advance
to be made by such other Bank on the date of any Borrowing.
(g) Notes. The indebtedness of the Borrower to each Bank
resulting from Revolving Advances owing to such Bank shall be
evidenced by the Revolving Note of the Borrower payable to the
order of such Bank in substantially the form of Exhibit A. The
indebtedness of the Borrower to each Bank resulting from Term
Advances owing to such Bank shall be evidenced by the Term Note
of the Borrower payable to the order of such Bank in
substantially the form of Exhibit B.
Section 2.03. Fees.
(a) Commitment Fees. The Borrower agrees to pay to the
Agent for the account of each Bank a commitment fee on the
average daily amount by which such Bank's Commitment exceeds the
sum of such Bank's outstanding Advances and Pro Rata Share of the
Letter of Credit Exposure from the Effective Date until the
Maturity Date at a rate per annum equal to the Applicable
Margin, such fees due and payable quarterly in arrears on the
last Business Day of each March, June, September and
December commencing September 30, 1995 and on the Maturity Date.
(b) Letter of Credit Fees. The Borrower agrees to pay to the
Agent for the pro rata benefit of the Banks, fees in respect of
all Letters of Credit outstanding at a rate per annum equal to
the Applicable Margin calculated on the maximum amount available
from time to time to be drawn under such outstanding Letters of
Credit, payable in arrears on and through the last Business Day of
each March, June, September and December commencing September 30,
1995 and on the Maturity Date. In addition, the Borrower agrees
to pay to each Issuing Bank for its own account fees in respect
of all Letters of Credit outstanding and issued by such Issuing
Bank equal to one-eighth percent (1/8%) per annum of the maximum
amount available from time to time to be drawn under such
outstanding Letters of Credit, payable in arrears on and through
the last Business Day of each March, June, September and December
commencing September 30, 1995 and on the Maturity Date.
(c) Agent Fees. The Borrower agrees to pay to the Agent and
the Documentation Agent for their benefit the fees set forth in
the Agents' Fee Letter.
Section 2.04. Reduction of the Commitments. (a) The Borrower
shall have the right, upon at least three Business Days'
irrevocable notice to the Agent, to terminate in whole or reduce
ratably in part the unused portion of the Commitments; provided
that each partial reduction shall be in the aggregate amount of
$5,000,000 or a greater multiple of $1,000,000. Any reduction or
termination of the Commitments pursuant to this Section 2.04
shall be permanent, with no obligation of the Banks to reinstate
such Commitments and the commitment fees provided for in Section
2.03(a) shall thereafter be computed on the basis of the
Commitments, as so reduced.
(b) Upon the occurrence of any of the following:
(i) a change in control is reported by the Borrower
inresponse to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, or (ii) any "person" (as
such term is used in Section 13(d) and Section 14(d)(2) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Borrower representing the Control
Percentage or more of the combined voting power of the
Borrower's then outstanding securities; then, in such event the
Majority Banks may, at their sole option upon written notice
to the Borrower (a "Termination Notice"), declare the obligation
of each Bank to make Advances and the obligation of each Issuing
Bank to issue, increase, or extend Letters of Credit to be
terminated, whereupon the same shall forthwith terminate and the
Commitments shall reduce to zero.
Section 2.05. Repayment of Advances.
(a) The Borrower shall repay the outstanding principal amount
of each Revolving Advance on the Maturity Date.
(b) The Borrower shall repay the outstanding principal amount
of Term Advances in 16 quarterly installments commencing on the
last Business Day of the calendar month which is 15 months after
the Acquisition Date, and each three months thereafter in the
following amounts:
Payment Installment
Number Amount
1 $2,500,000
2 $2,500,000
3 $2,500,000
4 $2,500,000
5 $5,000,000
6 $5,000,000
7 $5,000,000
8 $5,000,000
9 $5,000,000
10 $5,000,000
11 $5,000,000
12 $5,000,000
13 $6,250,000
14 $6,250,000
15 $6,250,000
16 $6,250,000
In the event that on the Term Commitment Expiration Date the
outstanding principal balance of Term Advances is less than
$75,000,000, the difference will be deducted from the last
scheduled installment amount(s) set forth above.
Section 2.06. Interest. The Borrower shall pay interest on
the unpaid principal amount of each Advance made by each Bank
from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(a) Prime Rate Advances. If such Advance is a Prime Rate
Advance, a rate per annum equal at all times to the lesser of
(i) the Adjusted Prime Rate in effect from time to time plus the
Applicable Margin and (ii) the Maximum Rate, payable in arrears
on the last Business Day of each calendar quarter and on the date
such Prime Rate Advance shall be paid in full, provided that any
amount of principal which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest from
the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all times
to the lesser of (i) the rate required to be paid on such Advance
immediately prior to the date on which such amount becomes due
plus two percent (2%) and (ii) the Maximum Rate.
(b) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times
during the Interest Period for such Advance to the lesser of
(i) the Eurodollar Rate for such Interest Period plus the
Applicable Margin and (ii) the Maximum Rate, payable on the last
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be paid in full, and, in the case of six-month
Interest Periods, on the day which occurs during such Interest
Period three months from the first day of such Interest Period;
provided that any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall
bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per
annum equal at all times to the lesser of (i) the greater of
(A) the Adjusted Prime Rate in effect from time to time plus two
percent (2%) and (B) the rate required to be paid on such Advance
immediately prior to the date on which such amount became due
plus two percent (2%) and (ii) the Maximum Rate.
(c) Usury Recapture. In the event the rate of interest
chargeable under this Agreement or the Notes at any time is
greater than the Maximum Rate, the unpaid principal amount of the
Notes shall bear interest at the Maximum Rate until the total
amount of interest paid or accrued on the Notes equals the amount
of interest which would have been paid or accrued on the Notes if
the stated rates of interest set forth in this Agreement had at
all times been in effect. In the event, upon payment in full of
the Notes, the total amount of interest paid or accrued under the
terms of this Agreement and the Notes is less than the total
amount of interest which would have been paid or accrued if the
rates of interest set forth in this Agreement had, at all times,
been in effect, then the Borrower shall, to the extent permitted
by applicable law, pay the Agent for the account of the Banks an
amount equal to the difference between (i) the lesser of (A) the
amount of interest which would have been charged on the Notes if
the Maximum Rate had, at all times, been in effect and (B) the
amount of interest which would have accrued on the Notes if the
rates of interest set forth in this Agreement had at all times
been in effect and (ii) the amount of interest actually paid or
accrued under this Agreement on the Notes. In the event the Banks
ever receive, collect or apply as interest any sum in excess of
the Maximum Rate, such excess amount shall, to the extent
permitted by law, be applied to the reduction of the principal
balance of the Notes, and if no such principal is then outstand
ing, such excess or part thereof remaining shall be paid to the
Borrower.
(d) Other Amounts Overdue. If any amount payable under
this Agreement other than the Advances is not paid when due
and payable, including without limitation, accrued interest and
fees, then such overdue amount shall accrue interest hereon due
and payable on demand at a rate per annum equal to the Adjusted
Prime Rate plus two percent (2%), from the date such amount became
due until the date such amount is paid in full.
Section 2.07. Prepayments.
(a) Right to Prepay. The Borrower shall have no right to
prepay any principal amount of any Advance except as provided in
this Section 2.07.
(b) Optional Prepayments. The Borrower may elect to prepay
any of the Advances, after giving by 11:00 a.m. (Dallas, Texas
time) (i) in the case of Eurodollar Rate Advances, at least three
Business Days' or (ii) in case of Prime Rate Advances, at least
one Business Day's prior written notice to the Agent stating the
proposed date and aggregate principal amount of such prepayment,
whether such prepayment should be applied to reduce outstanding
Term Advances or Revolving Advances, and if applicable, the
relevant Interest Period for the Advances to be prepaid. If any
such notice is given, the Borrower shall prepay Advances
comprising part of the same Borrowing in whole or ratably in part
in an aggregate principal amount equal to the amount specified in
such notice, and shall also pay accrued interest to the date of
such prepayment on the principal amount prepaid and amounts, if
any, required to be paid pursuant to Section 2.08 as a result of
such prepayment being made on such date; provided, however, that
each partial prepayment shall be in an aggregate principal amount
not less than $1,000,000.
(c) Mandatory Prepayments.
(i) Change of Control. On the fifth Business Day
following the Borrower's receipt of a Termination Notice
pursuant to Section 2.04 (b) hereof, the Borrower shall be
required to prepay all outstanding Advances in full and to
deposit with the Agent into the Cash Collateral Account an
amount equal to the Letter of Credit Exposure.
(ii) Borrowing Base Deficiency. On each date a
Borrowing Base Certificate is received by the Agent or the
Borrowing Base is otherwise calculated hereunder, the Borrower
shall be required to prepay Revolving Advances in an aggregate
amount equal to the excess of (x) the aggregate amount of
outstanding Revolving Advances on such date over (y) the
Borrowing Base, as set forth in such Borrowing Base
Certificate or otherwise so calculated.
(iii) Asset Sale. Within 15 days after the end of
each calendar quarter during which there occurs any Asset
Sale, the Borrower shall prepay Term Advances in an amount
equal to 100% of the Net Cash Proceeds of each such Asset
Sale occurring during such quarter; provided that in the
case of any Asset Sale which individually or in the
aggregate with other Asset Sales that quarter yields Net
Cash Proceeds of greater than $10,000,000, such prepayment
shall be made on the date 10 days after the occurrence of
such Asset Sale; provided that Net Cash Proceeds from
Asset Sales of the Borrower or any Guarantor of
Revenue Equipment shall not be required to be used to so
repay Term Advances to the extent the Borrower elects, as
hereinafter provided, to cause such Net Cash Proceeds to
be reinvested in replacement Revenue Equipment (a
"Reinvestment Election"). The Borrower may exercise its
Reinvestment Election (within the parameters specified in the
preceding sentence) with respect to an Asset Sale of Revenue
Equipment if (i) no Default exists and (ii) the Borrower
delivers a Reinvestment Notice to the Agent on the Business
Day following the date of the consummation of the respective
Asset Sale, with such Reinvestment Notice being effective with
respect to the Net Cash Proceeds of such Asset Sale equal to
the Anticipated Reinvestment Amount specified in such
Reinvestment Notice.
(iv) Capitalization Event. On the last Business Day
of each calendar quarter during which there occurs any
Capitalization Event, the Borrower shall prepay Term Advances
in an amount equal to 100% of the Net Cash Proceeds of each
such Capitalization Event occurring during such quarter;
provided that in the case of a Capitalization Event which
individually or in the aggregate with other Capitalization
Event that quarter yields Net Cash Proceeds of greater than
$10,000,000, such prepayment shall be made on the date 10 days
after the occurrence of such Capitalization Event.
(v) Excess Cash Flow. On the earlier of (x) the
date the Agent receives the Borrower's annual audited
Consolidated financial statements pursuant to Section 5.06(b)
or (y) the date 90 days after the end of the Borrower's
fiscal year, the Borrower shall prepay Term Advances in an
amount equal to 75% of the Borrower's Excess Cash Flow for
the fiscal year then ended.
(vi) Reinvestment Prepayment Date. On the
Reinvestment Prepayment Date with respect to a Reinvestment
Election, the Borrower shall prepay Term Advances in an
amount equal to the Reinvestment Prepayment Amount, if any,
for such Reinvestment Election.
(vii) Accrued Interest. Each prepayment pursuant to
this Section 2.07(c) shall be accompanied by accrued interest
on the amount prepaid to the date of such prepayment and
amounts, if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such date.
(viii) Avoidance of Breakage Costs. In the event that
the amount of any mandatory prepayment of Term Advances under
this Section 2.07(c) exceeds the aggregate principal amount of
Term Advances which consist of Prime Rate Advances (the amount
of such excess being the "Excess Amount"), the Borrower shall
have the right, in lieu of making such prepayment in full, to
prepay such outstanding Term Advances which are Prime Rate
Advances and to deposit an amount equal to the Excess Amount
with the Agent in the Cash Collateral Account maintained by
and in the sole dominion and control of the Agent for the
ratable benefit of the Banks. Any amount so deposited shall
be held by the Agent as collateral for the Obligations and
applied to the prepayment of Term Advances which are
Eurodollar Rate Advances at the end of the current Interest
Period(s) applicable thereto. On any day on which amounts
collected in the Cash Collateral Account remain on deposit in
or to the credit of the Cash Collateral Account after giving
effect to the payment made on such day pursuant to this
Section 2.07(c), and the Borrower shall have delivered to the
Agent a written request or a telephonic request (which shall
be promptly confirmed in writing) prior to 10:00 am (Dallas,
Texas time) that such remaining collected amounts be invested
in cash equivalents specified in such request, the Agent shall
invest such funds, to the extent the Agent is reasonably able
to do so, in such cash equivalents as are acceptable to, and
with no risk to, the Agent on an overnight basis or with
maturities such that amounts will be available to pay the
Obligations secured thereby as they become due, whether at
maturity, by acceleration or otherwise; provided, however,
that any loss resulting from such investments shall be charged
to and be immediately payable by the Borrower on demand by the
Agent.
(d) Ratable Payments. Each payment of any Advance pursuant
to this Section 2.07 or any other provision of this Agreement
shall be made in a manner such that all Advances comprising part
of the same Borrowing are paid in whole or ratably in part.
(e) Effect of Notice. All notices given pursuant to this
Section 2.07 shall be irrevocable and binding upon the Borrower.
(f) Reduction of Scheduled Term Payments. Any prepayments of
the Term Advances shall reduce on a pro rata basis the amount of
future scheduled payments on Term Advances in accordance with
Section 2.05.
Section 2.08. Breakage Costs. If (a) any payment of
principal of any Eurodollar Rate Advance is made other than on
the last day of the Interest Period for such Advance as a result
of any payment pursuant to Section 2.07 or the acceleration of
the maturity of the Notes pursuant to Article VIII; (b) any
Conversion of a Eurodollar Rate Advance is made other than on the
last day of the Interest Period for such Advance pursuant to
Section 2.12; or (c) the Borrower fails to make a principal or
interest payment with respect to any Eurodollar Rate Advance on
the date such payment is due and payable, the Borrower shall,
within 10 days of any written demand sent by any Bank to the
Borrower through the Agent, pay to the Agent for the account of
such Bank any amounts (without duplication of any other amounts
payable in respect of breakage costs) required to compensate such
Bank for any additional losses, out-of-pocket costs or expenses
which it may reasonably incur as a result of such payment or
nonpayment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds
acquired by any Bank to fund or maintain such Advance.
Section 2.09. Increased Costs.
(a) Eurodollar Rate Advances. If, due to either (i)
the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in
the calculation of the Eurodollar Rate) in or in the
interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force
of law), there shall be any increase in the cost to any Bank of
agreeing to make or making, funding or maintaining Eurodollar
Rate Advances, then the Borrower shall from time to time, upon
demand by such Bank (with a copy of such demand to the Agent),
immediately pay to the Agent for the account of such Bank
additional amounts (without duplication of any other amounts
payable in respect of increased costs) sufficient to compensate
such Bank for such increased cost; provided, however, that,
before making any such demand, each Bank agrees to use
commercially reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of,
such increased cost and would not, in the reasonable judgment of
such Bank, be otherwise disadvantageous to such Bank. A
certificate as to the amount of such increased cost and detailing
the calculation of such cost submitted to the Borrower and the
Agent by such Bank at the time such Bank demands payment under
this Section shall be conclusive and binding for all purposes,
absent manifest error.
(b) Capital Adequacy. If any Bank or any Issuing Bank
determines in good faith that compliance with any law or
regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of
law) implemented or effective after the date of this Agreement
affects or would affect the amount of capital required or
expected to be maintained by such Bank or such Issuing Bank and
that the amount of such capital is increased by or based upon the
existence of such Bank's commitment to lend or such Issuing
Bank's commitment to issue Letters of Credit or any Bank's
Commitment to risk participate in Letters of Credit and other
commitments of this type, then, upon 30 days prior written notice
by such Bank or such Issuing Bank (with a copy of any such demand
to the Agent), the Borrower shall immediately pay to the Agent
for the account of such Bank or to such Issuing Bank, as the case
may be, from time to time as specified by such Bank or such
Issuing Bank, additional amounts (without duplication of any
other amounts payable in respect of increased costs) sufficient
to compensate such Bank or such Issuing Bank, in light of such
circumstances, (i) with respect to such Bank, to the extent that
such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's commitment to lend
under this Agreement or its commitment to risk participate in
Letters of Credit and (ii) with respect to such Issuing Bank, to
the extent that such Issuing Bank reasonably determines such
increase in capital to be allocable to the issuance or
maintenance of the Letters of Credit. A certificate as to such
amounts and detailing the calculation of such amounts submitted
to the Borrower by such Bank or such Issuing Bank shall be
conclusive and binding for all purposes, absent manifest error.
(c) Letters of Credit. If any change in any law or regulation
or in the interpretation thereof by any court or
administrative or Governmental Authority charged with the
administration thereof shall either (i) impose, modify, or deem
applicable any reserve, special deposit, or similar requirement
against letters of credit issued by, or assets held by, or
deposits in or for the account of, any Issuing Bank or any Bank
or (ii) impose on such Issuing Bank or any Bank any other
condition regarding the provisions of this Agreement relating to
the Letters of Credit or any Letter of Credit Obligations, and
the result of any event referred to in the preceding clause (i)
or (ii) shall be to increase the cost to such Issuing Bank of
issuing or maintaining any Letter of Credit, or increase the cost
to such Bank of its risk participation in any Letter of Credit
(which increase in cost shall be determined by such Issuing
Bank's or such Bank's reasonable allocation of the aggregate of
such cost increases resulting from such event), then, upon demand
by such Issuing Bank or such Bank (with a copy sent to the
Agent), as the case may be, the Borrower shall pay to the Agent
(for the account of such Issuing Bank), as the case may be, from
time to time as specified by such Issuing Bank or such Bank,
additional amounts which shall be sufficient to compensate such
Issuing Bank or such Bank for such increased cost. Each Issuing
Bank and each Bank agrees to use commercially reasonable efforts
(consistent with internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office
for the booking of its Letters of Credit or risk participations if
the making of such designation would avoid the effect of this
paragraph and would not, in the reasonable judgment of such
Issuing Bank or such Bank, be otherwise disadvantageous to such
Issuing Bank or such Bank, as the case may be. A certificate as
to such increased cost incurred by such Issuing Bank or such
Bank, as the case may be, as a result of any event mentioned in
clause (i) or (ii) above, and detailing the calculation of such
increased costs submitted by such Issuing Bank or such Bank to
the Borrower, shall be conclusive and binding for all purposes,
absent manifest error.
Section 2.10. Payments and Computations.
(a) Payment Procedures. Except if otherwise set forth
herein, the Borrower shall make each payment under this Agreement
and under the Notes not later than 11:00 a.m. (Dallas, Texas
time) on the day when due in Dollars to the Agent at the location
referred to in the Notes (or such other location as the Agent
shall designate in writing to the Borrower) in same day funds.
The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest or fees
ratably (other than amounts payable solely to the Agent, the
Issuing Banks, or a specific Bank pursuant to Section 2.03(b),
2.03(c), 2.06(c), 2.08, 2.09, 2.11 or 2.12, but after taking into
account payments effected pursuant to Section 9.04) to the Banks
in accordance with each Bank's Pro Rata Share for the account of
their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank
or any Issuing Bank to such Bank or such Issuing Bank for the
account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement.
(b) Computations. All computations of interest based on the
Adjusted Prime Rate shall be made by the Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations
of fees and interest based on the Eurodollar Rate and the Federal
Funds Rate shall be made by the Agent on the basis of a year of
60 days, in each case for the actual number of days (including
the first day, but excluding the last day) occurring in the
period for which such interest or fees are payable. Each
determination by the Agent of an interest rate shall be
conclusive and binding for all purposes, absent manifest error.
(c) Non-Business Day Payments. Whenever any payment shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included
in the computation of payment of interest or fees, as the case
may be; provided, however, that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(d) Agent Reliance. Unless the Agent shall have received
written notice from the Borrower prior to the date on which any
payment is due to the Banks that the Borrower will not make such
payment in full, the Agent may assume that the Borrower has made
such payment in full to the Agent on such date and the Agent may,
in reliance upon such assumption, cause to be distributed to each
Bank on such date an amount equal to the amount then due such
Bank. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank,
together with interest, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate for such day.
(e) Application of Payments. Unless otherwise specified in
Sections 2.05 or 2.07 hereof, whenever any payment received by
the Agent under this Agreement is insufficient to pay in full all
amounts then due and payable under this Agreement and the Notes,
such payment shall be distributed and applied by the Agent and
the Banks in the following order: first, to the payment of fees
and expenses due and payable to the Agent under and in connection
with this Agreement or any other Credit Document; second, to the
payment of all expenses due and payable under Section 2.11(c),
ratably among the Banks in accordance with the aggregate amount
of such payments owed to each such Bank; third, to the payment of
fees due and payable to the Issuing Banks pursuant to Section
2.03(b); fourth, to the payment of all other fees due and payable
under Section 2.03 ratably among the Banks in accordance with
their applicable Commitments; and fifth, to the payment of the
interest accrued on and the principal amount of all of the Notes
and the interest accrued on and all Reimbursement Obligations,
regardless of whether any such amount is then due and payable,
ratably among the Banks in accordance with the aggregate accrued
interest plus the aggregate principal amount owed to such Bank.
Section 2.11. Taxes.
(a) No Deduction for Certain Taxes. Any and all payments
by the Borrower shall be made, in accordance with Section 2.10,
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding,
in the case of each Bank, each Issuing Bank, and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank, such Issuing
Bank, or the Agent (as the case may be) is organized or any
political subdivision of the jurisdiction (all such non excluded
taxes, levies, imposts, deductions, charges, with holdings and
liabilities being hereinafter referred to as "Taxes") and, in
the case of each Bank and each Issuing Bank, Taxes by the
jurisdiction of such Bank's Applicable Lending Office or any
political subdivision of such jurisdiction. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any
sum payable to any Bank, any Issuing Bank, or the Agent, (i) the
sum payable shall be increased as may be necessary so that, after
making all required deductions (including deductions
applicable to additional sums payable under this Section
2.11), such Bank, such Issuing Bank, or the Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made; provided, however,
that if the Borrower's obligation to deduct or withhold Taxes is
caused solely by such Bank's, such Issuing Bank's, or the Agent's
failure to provide the forms described in paragraph (e) of this
Section 2.11 and such Bank, such Issuing Bank, or the Agent could
have provided such forms, no such increase shall be required;
(ii) the Borrower shall make such deductions; and (iii) the
Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) Other Taxes. In addition, the Borrower agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which arise
from any payment made or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement,
the Notes, or the other Credit Documents (hereinafter referred
to as "Other Taxes").
(c) Indemnification. The Borrower indemnifies each Bank,
each Issuing Bank, and the Agent for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.11) paid by such Bank, such Issuing Bank, or the Agent
(as the case may be) and any liability (including interest and
expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted.
Each payment required to be made by the Borrower in respect of
this indemnification shall be made to the Agent for the benefit
of any party claiming such indemnification within 30 days from
the date the Borrower receives written demand detailing the
calculation of such amounts therefor from the Agent on behalf of
itself as Agent, any Issuing Bank, or any such Bank. If any
Bank, the Agent, or any Issuing Bank receives a refund in respect
of any taxes paid by the Borrower under this paragraph (c), such
Bank, the Agent, or such Issuing Bank, as the case may be, shall
promptly pay to the Borrower the Borrower's share of such refund.
(d) Evidence of Tax Payments. The Borrower will pay prior
to delinquency all Taxes payable in respect of any payment.
Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt
evidencing payment of such Taxes.
(e) Foreign Bank Withholding Exemption. Each Bank and each
Issuing Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will
deliver to the Borrower and the Agent on the date of this
Agreement or upon the effectiveness of any Assignment and
Acceptance (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, certifying in each case that
such Bank is entitled to receive payments under this Agreement
and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, (ii) if applicable, an
Internal Revenue Service Form W-8 or W-9 or successor applicable
form, as the case may be, to establish an exemption from United
States backup withholding tax, and (iii) any other governmental
forms which are necessary or required under an applicable tax
treaty or otherwise by law to reduce or eliminate any withholding
tax, which have been reasonably requested by the Borrower. Each
Bank which delivers to the Borrower and the Agent a Form 1001 or
4224 and Form W-8 or W-9 pursuant to the next preceding sentence
further undertakes to deliver to the Borrower and the Agent two
further copies of Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such form expires
or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered
by it to the Borrower and the Agent, and such extensions or
renewals thereof as may reasonably be requested by the Borrower
and the Agent certifying in the case of a Form 1001 or 4224 that
such Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes. If an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the
date on which any delivery required by the preceding sentence
would otherwise be required which renders all such forms
inapplicable or which would prevent any Bank from duly completing
and delivering any such letter or form with respect to it and
such Bank advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding
of United States federal income tax, and in the case of a Form W-
8 or W-9, establishing an exemption from United States backup
withholding tax, such Bank shall not be required to deliver such
forms. The Borrower shall withhold tax at the rate and in the
manner required by the laws of the United States with respect to
payments made to a Bank failing to timely provide the requisite
Internal Revenue Service forms.
Section 2.12. Illegality. If any Bank shall notify the Agent
and the Borrower that the introduction of or any change in or in
the interpretation of any law or regulation makes it unlawful, or
that any central bank or other Governmental Authority asserts
that it is unlawful for such Bank or its Eurodollar Lending
Office to perform its obligations under this Agreement to
maintain any Eurodollar Rate Advances of such Bank then
outstanding hereunder, then, notwithstanding anything herein to
the contrary, the Borrower shall, if demanded by such Bank in its
notice, no later than 11:00 a.m. (Dallas, Texas time), (A) if not
prohibited by law or regulation to maintain such Eurodollar Rate
Advances for the duration of the Interest Period, on the last day
of the Interest Period for each outstanding Eurodollar Rate
Advance of such Bank or (B) if prohibited by law or regulation to
maintain such Eurodollar Rate Advances for the duration of the
Interest Period, on the second Business Day following its receipt
of such notice from such Bank, Convert all Eurodollar Rate
Advances of such Bank then outstanding to Prime Rate Advances,
and pay accrued interest on the principal amount Converted to the
date of such Conversion and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such Conversion being
made on such date. Each Bank agrees to use commercially
reasonable efforts (consistent with its internal policies and
legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would
avoid the effect of this paragraph and would not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to
such Bank.
Section 2.13. Letters of Credit.
(a) Issuance. From time to time from the date of this Agreement
until three months before the Maturity Date, at the request of
the Borrower, each Issuing Bank shall, on any Business Day and on
the terms and conditions hereinafter set forth, issue, increase,
decrease, amend, or extend the expiration date of Letters of
Credit for the account of the Borrower (for its own benefit or
for the benefit of any of its Subsidiaries, provided that no
Letter of Credit shall be issued for the benefit of any WWC
Company until on or after the Acquisition Date). No Letter of
Credit will be issued, increased, or extended (i) if such
issuance, increase, or extension would cause the Letter of Credit
Exposure to exceed (A) prior to the Acquisition Date the Letter
of Credit Exposure represented by the Letters of Credit set forth
on Schedule 1.01(b) hereto which are still outstanding on the
Effective Date, or (B) on or after the Acquisition Date, the
lesser of $80,000,000 or an amount equal to the aggregate
Revolving Commitments less the aggregate outstanding Revolving
Advances at such time; (ii) unless such Letter of Credit has an
Expiration Date not later than the earlier of (A) one year after
the date of issuance thereof and (B) the Maturity Date;
(iii) unless such Letter of Credit is in form and substance
acceptable to the respective Issuing Bank in its sole discretion;
(iv) unless such Letter of Credit is a standby letter of credit
not supporting the repayment of indebtedness for borrowed money
of any Person unless such Letter of Credit is issued in
substitution of any letter of credit outstanding on the
Acquisition Date for the account or benefit of any WWC Company;
(v) unless the Borrower has delivered to the respective Issuing
Bank a completed and executed letter of credit application on
such Issuing Bank's standard form, which shall contain terms no
more restrictive than the terms of this Agreement; and
(vi) unless such Letter of Credit is governed by the Uniform
Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 ("UCP") or
any successor to the UCP. If the terms of any letter of credit
application referred to in the foregoing clause (v) conflicts
with the terms of this Agreement, the terms of this Agreement
shall control.
(b) Participations. On and as of the Effective Date, in the
case of each Letter of Credit described on Schedule 1.01(b) which
is outstanding on the Effective Date, and on the date of the
issuance or increase of any Letter of Credit on or after the
Effective Date, each Issuing Bank shall be deemed to have sold to
each other Bank and each other Bank shall have been deemed to
have purchased from such Issuing Bank a participation in the
related Letter of Credit Obligations related to the Letters of
Credit issued by such Issuing Bank equal to such Bank's Pro Rata
Share at such date and such sale and purchase shall otherwise be
in accordance with the terms of this Agreement. Each Issuing
Bank shall promptly notify each such participant Bank by telex,
telephone, or telecopy of each Letter of Credit of such Issuing
Bank issued, increased or decreased, and the actual dollar amount
of such Bank's participation in such Letter of Credit. Each
Bank's obligation to purchase participating interests pursuant to
this Section and to reimburse the respective Issuing Bank for
such Bank's Pro Rata Share of any payment under a Letter of
Credit by such Issuing Bank not reimbursed in full by the
Borrower shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i)
any of the circumstances described in paragraph (d) below, (ii)
the occurrence and continuance of a Default, (iii) an adverse
change in the financial condition of the Borrower, or (iv) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing, except for any such circumstance,
happening or event constituting or arising from gross
negligence or willful misconduct on the part of such Issuing
Bank.
(c) Reimbursement. The Borrower hereby agrees to pay on
demand to each Issuing Bank in respect of each Letter of Credit
issued by such Issuing Bank an amount equal to any amount paid by
such Issuing Bank under or in respect of such Letter of Credit.
In the event any Issuing Bank makes a payment pursuant to a
request for draw presented under a Letter of Credit and such
payment is not promptly reimbursed by the Borrower upon demand,
such Issuing Bank shall give notice of such payment to the Agent
and the Banks, and each Bank shall promptly reimburse such
Issuing Bank for such Bank's Pro Rata Share of such payment, and
such reimbursement shall be deemed for all purposes of this
Agreement to constitute a Prime Rate Advance to the Borrower from
such Bank. If such reimbursement is not made by any Bank to any
Issuing Bank on the same day on which such Issuing Bank shall
have made payment on any such draw, such Bank shall pay interest
thereon to such Issuing Bank at a rate per annum equal to the
Federal Funds Rate. The Borrower hereby unconditionally and
irrevocably authorizes, empowers, and directs the Agent and the
Banks to record and otherwise treat each payment under a Letter
of Credit not immediately reimbursed by the Borrower as a
Borrowing comprised of Prime Rate Advances to the Borrower.
(d) Obligations Unconditional. The obligations of the
Borrower under this Agreement in respect of each Letter of Credit
shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, notwithstanding the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit Documents;
(ii) any amendment or waiver of or any consent to
departure from any Letter of Credit Documents;
(iii) the existence of any claim, set-off, defense or
other right which the Borrower or any Bank or any other Person
may have at any time against any beneficiary or transferee of
such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the
respective Issuing Bank or any other Person or entity,
whether in connection with this Agreement, the transactions
contemplated in this Agreement or in any Letter of Credit
Documents or any unrelated transaction;
(iv) any statement or any other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect to the extent the
respective Issuing Bank would not be liable therefor pursuant
to the following paragraph (e);
(v) payment by the respective Issuing Bank under such
Letter of Credit against presentation of a draft or
certificate whichdoes not comply with the terms of such Letter
of Credit; or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; provided,
however, that nothing contained in this paragraph (d) shall
be deemed to constitute a waiver of any remedies of the
Borrower in connection with the Letters of Credit.
(e) Liability of Issuing Banks. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee
of any Letter of Credit with respect to its use of such Letter of
Credit. No Issuing Bank nor any of its officers or directors
shall be liable or responsible for:
(i) the use which may be made of any Letter of Credit or
any acts or omissions of any beneficiary or transferee in
connection therewith;
(ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged;
(iii) payment by such Issuing Bank against
presentation of documents which do not comply with the terms
of a Letter of Credit, including failure of any documents to
bear any reference or adequate reference to the relevant Letter
of Credit; or
(iv) any other circumstances whatsoever in making or
failingto make payment under any Letter of Credit
(including such Issuing Bank's own negligence), except that
the Borrower shall have a claim against such Issuing Bank,
and such Issuing Bank shall be liable to, and shall
promptly pay to, the Borrower, to the extent of any direct,
as opposed to consequential, damages suffered by the Borrower
which the Borrower proves were caused by (A) such Issuing
Bank's willful misconduct or gross negligence in determining
whether documents presented under a Letter of Credit comply
with the terms of such Letter of Credit or (B) such Issuing
Bank's willful failure to make lawful payment under any
Letter of Credit after the presentation to it of a draft
and certificate strictly complying with the terms and
conditions of such Letter of Credit.
In furtherance and not in limitation of the foregoing, any
Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
Section 2.14. Determination of Borrowing Base. The Borrowing
Base shall be determined (a) on each Borrowing Base Determination
Date upon the Agent's receipt of a Borrowing Base Certificate;
and (b) promptly following (i) each permitted sale by the
Borrower or any Guarantor of Revenue Equipment in excess of
$10,000,000 individually or in the aggregate, or (ii) any loss or
casualty not covered by insurance resulting in destruction of
Revenue Equipment in excess of $10,000,000 individually or in the
aggregate.
Section 2.15. Bank Replacement.
(a) Right to Replace. The Borrower shall have the right to
replace each Bank affected by a condition under
Section 2.02(c)(iv), 2.09, or 2.12 for more than 90 days (each
such affected Bank, an "Affected Bank") in accordance with the
procedures in this Section 2.15 and provided that no reduction of
the total Commitments occurs as a result thereof.
(b) First Right of Refusal; Replacement.
(i) Upon the occurrence of any condition permitting the
replacement of a Bank, each Bank which is not an Affected Bank
shall have the right, but not the obligation, to elect to
increase its respective Commitment by an amount not to exceed
the amount of the Commitments of the Affected Banks, which
election shall be made by written notice from each such Bank
to the Agent and the Borrower given within 30 days after the
date such condition occurs specifying the amount of such
proposed increase in such Bank's Commitment.
(ii) If the aggregate amount of the proposed increases in
Commitments of all such Banks making such an election is in
excess of the Commitments of the Affected Banks, (A) the
Commitments of the Affected Banks shall be allocated pro rata
among such Banks based on the respective amounts of the
proposed increases to Commitments elected by each of such
Banks, and (B) the respective Commitments of such Banks shall
be increased by the respective amounts as so allocated so that
after giving effect to such termination and increases the
aggregate amount of the Commitments of the Banks will be the
same as prior to such termination.
(iii) If the aggregate amount of the proposed increases to
Commitments of all Banks making such an election equals the
Commitments of the Affected Banks, the respective Commitments
of such Banks shall be increased by the respective amounts of
their proposed increases, so that after giving effect to such
termination and increase the aggregate amount of the
Commitments of all of the Banks will be the same as prior to
such termination.
(iv) If the aggregate amount of the proposed increases
to Commitments of all Banks making such an election is less
than the Commitments of the Affected Banks, (A) the
respective Commitments of such Banks shall be increased by the
respective amounts of their proposed increases, and (B) the
Borrower shall add additional Banks which are Eligible
Assignees to this Agreement to replace such Affected Banks,
which additional Banks would have aggregate Commitments no
greater than those of the Affected Banks minus the amounts
thereof assumed by the other Banks pursuant to such increases.
(c) Procedure. Any assumptions of Commitments pursuant to
this Section 2.15 shall be (i) made by the purchasing Bank or
Eligible Assignee and the selling Bank entering into an
Assignment and Assumption and by following the procedures in
Section 9.06 for adding a Bank. In connection with the increase
of the Commitments of any Bank pursuant to the foregoing
paragraph (b), each Bank with an increased Commitment shall
purchase from the Affected Banks at par such Bank's ratable share
of the outstanding Advances of the Affected Banks and assume such
Bank's ratable share of the Affected Banks' Letter of Credit
Exposure.
Section 2.16. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise) on account of its
Advances or its share of Letter of Credit Obligations in excess
of its Pro Rata Share of payments on account of the Advances or
Letter of Credit Obligations obtained by all the Banks, such Bank
shall notify the Agent and forthwith purchase from the other
Banks such participations in the Advances made by them or Letter
of Credit Obligations held by them as shall be necessary to cause
such purchasing Bank to share the excess payment ratably in
accordance with the requirements of this Agreement with each of
them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank,
such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the
extent of such Bank's ratable share (according to the proportion
of (a) the amount of the participation sold by such Bank to the
purchasing Bank as a result of such excess payment to (b) the
total amount of such excess payment) of such recovery, together
with an amount equal to such Bank's ratable share (according to
the proportion of (a) the amount of such Bank's required
repayment to the purchasing Bank to (b) the total amount of all
such required repayments to the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect
of the total amount so recovered. The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to
this Section 2.16 may, to the fullest extent permitted by law,
unless and until rescinded as provided above, exercise all its
rights of payment (including the right of set-off) with respect
to such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
Section 2.17. Collateral.
(a) Creation of Liens on Effective Date. On the Effective
Date, the Liens created by the Security Agreements on Property of
the Borrower and the Initial Guarantors shall automatically and
immediately become effective, shall be Acceptable Security
Interests when perfected, and the Agent shall promptly file all
financing statements relating to such collateral in the offices
specified for the Borrower and each Initial Guarantor other than
any Canadian Subsidiary on Annex 3 of each Security Agreement,
respectively. On the Effective Date, the Borrower shall, and
shall cause the Initial Guarantors to deliver to the Custodians
(as defined in the Security Agreements) all certificates of title
for Revenue Equipment owned by such Person.
(b) Creation of Liens on Acquisition Date. On the
Acquisition Date, the Liens created by the Guarantors Security
Agreement on Property of the WWC Guarantors shall automatically
and immediately become effective, shall be Acceptable Security
Interests when perfected, and the Agent shall promptly file all
financing statements relating to such collateral in the offices
specified for each WWC Guarantor other than any Canadian
Subsidiary on Annex 3 of the Accession Agreement executed by such
WWC Guarantor. On the Acquisition Date, the Borrower shall cause
the WWC Guarantors to deliver to the Custodians (as defined in
the Guarantors Security Agreement) all certificates of title for
Revenue Equipment owned by such Person.
(c) Perfection of Equipment Collateral. Promptly following
the Revenue Equipment Perfection Date, and on each three month
anniversary of such Revenue Equipment Perfection Date, the
Borrower agrees that (i) the Liens on Revenue Equipment granted
pursuant to the Security Agreements in favor of the Agent for the
benefit of the Banks shall be perfected and be first priority
perfected Liens with respect to Revenue Equipment which has an
aggregate Borrowing Base value equal to or greater than the
Required Amount of Perfected Revenue Equipment and (ii) to the
extent there is insufficient Revenue Equipment to satisfy the
requirement in clause (i) above, the Liens on Equipment other
than Revenue Equipment granted pursuant to the Security
Agreements in favor of the Agent for the benefit of the Banks
shall be perfected and be first priority perfected Liens to the
extent necessary so that the Net Depreciated Value of all such
Equipment and Revenue Equipment in which the Agent has a
perfected Lien is equal to the Required Amount of Perfected
Revenue Equipment. Prior to the Revenue Equipment Perfection
Date all certificates of title with regard to Revenue Equipment
of the Borrower and Guarantors shall be kept at locations
specified for such Person on Schedule 2.17.
(d) Further Assurances. The Borrower agrees to promptly, on
demand, execute and deliver, and cause the Guarantors to execute
and deliver, such security agreements, pledge agreements,
assignments, mortgages, financing statements, stock powers, and
other collateral documentation, and take such other actions
deemed by the Agent and its counsel to be necessary in order to
effect the foregoing.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective on August 11,
1995 if on or prior to the close of business on such date the
following conditions precedent have been satisfied:
(a) Documentation. The Agent shall have received the
following duly executed by all the parties thereto, in form and
substance satisfactory to the Agent, and (except for the Notes
and the Acquisition Documents) in sufficient copies for each
Bank:
(i) this Agreement and all attached Exhibits and Schedules
and the Notes payable to the order of each of the Banks,
respectively;
(ii) the Guaranty (executed by the Initial Guarantors), the
Borrower Security Agreement, and the Guarantors Security
Agreement (executed by the Initial Guarantors), the Custodial
Agreements described in the Security Agreements and applicable
to the Borrower and each Initial Guarantor, and all UCC-1
financing statements contemplated by the Security Agreements
with respect to the Borrower and each Initial Guarantor;
(iii) a certificate from the Chief Executive Officer,
Presidentor Chief Financial Officer of the Borrower dated as
of the Effective Date stating that as of the Effective Date
(A) all representations and warranties of the Borrower set
forth in this Agreement and the Borrower Security Agreement
are true and correct in all material respects; (B) no
Default has occurred and is continuing; (C) the conditions in
this Section 3.01 (other than clause (a)(ix)) have been met;
(iv) a certificate of the Secretary or an Assistant
Secretary of the Borrower and each Initial Guarantor dated as
of the date of this Agreement certifying as of the date of
this Agreement (x) the names and true signatures of officers
of the Borrower and such Initial Guarantor authorized to sign
the Credit Documents to which such Person is a party, (y)
resolutions of the Board of Directors of such Person with
respect to the transactions herein contemplated, and (z)
copies of the articles or certificate of incorporation and
bylaws of such Person;
(v) a favorable opinion of Richard F. Cooper, General
Counsel to the Borrower and Initial Guarantors, dated as of
August 11, 1995 and in substantially the form of Exhibit I-1
and a reliance letter, of Skadden, Arps, Slate, Meagher &
Flom, acting as special counsel to the Borrower in
connection with the Tender Offer and the Acquisition and
Merger, allowing the Agent and the Banks to rely on its
opinion letter dated July 14, 1995 to Morgan Stanley & Co.
Incorporated with respect to the related Schedule 14D-1 filed
with the Securities and Exchange Commission;
(vi) a favorable opinion of Bracewell & Patterson,
L.L.P., counsel to the Agent, dated as of August 11, 1995
and in substantially in the form of the attached Exhibit J;
(vii) all shares of capital stock of Treadco and each of the
Subsidiaries of the Borrower identified on Schedule
4.01(a) have been delivered to the Agent together with stock
powers executed in blank by the holder of such shares;
(viii) a copy of each of the Acquisition Documents
certified by the Secretary or Assistant Secretary of the
Acquisition Company (A) as being true and correct copies of
such documents as of the Effective Date, (B) as having been
duly authorized by the Board of Directors of the Acquisition
Company and WWC, respectively, and (C) as have been duly
executed and delivered by the Acquisition Company and WWC,
respectively; and
(ix) such other documents, governmental certificates,
agreements, lien searches as the Agent may reasonably request.
(b) Representations and Warranties. The representations and
warranties contained in Article IV hereof and Section 7 of the
Guaranty and Section 4 of each Security Agreement shall be true
and correct in all material respects.
(c) Funding of Acquisition Company. The Acquisition Company
shall have issued to the Borrower 1000 shares of Acquisition
Company Stock in exchange for $10.00.
(d) Termination of Existing Credit Agreement. All
commitments under the Existing Credit Agreement have been
terminated, and all amounts payable under the Existing Credit
Agreement have been either repaid in full prior to the Effective
Date or will be paid in full concurrent with the making of the
Revolving Advances under this Agreement on August 11, 1995 and
application of the proceeds thereof.
(e) No WWC Material Adverse Change. No material adverse
change has occurred in the business or financial condition of the
WWC Companies, except as set forth on Schedule 3.01(e).
(f) Acceptance of Tendered WWC Shares. The Acquisition
Company shall have accepted for purchase more than 50% of the WWC
Shares tendered in accordance with the Tender Offer, the Tender
Offer shall have expired, and all of the conditions precedent to
the Acquisition shall have been satisfied as set forth in the
Acquisition Documents and the Borrower shall certify the same in
writing to the Agent.
(g) Certain Payments. The Borrower shall have paid the fees
required to be paid as of the Effective Date by the Agents' Fee
Letter.
Section 3.02. Conditions Precedent to Advances on Acquisition Date.
The obligation of the Banks to fund any Advances on the
Acquisition Date shall be subject to satisfaction of the
following conditions precedent:
(a) Documentation. The Agent shall have received the
following duly executed by all the parties thereto, in form and
substance satisfactory to the Agent, and in sufficient copies for
each Bank:
(i) an Accession Agreement dated as of the Acquisition
Date (executed by each WWC Guarantor), the Custodial
Agreements described in the Guarantors Security Agreement and
applicable to each WWC Guarantor dated as of the Acquisition
Date, and all UCC1 financing statements contemplated by the
Guarantors Security Agreement with respect to each WWC
Guarantor;
(ii) a certificate from the Chief Executive Officer,
President or Chief Financial Officer of the Borrower dated
as of the Acquisition Date stating that as of the
Acquisition Date (A) all representations and warranties of the
Borrower set forth in this Agreement and the Borrower
Security Agreement are true and correct in all material
respects; (B) no Default has occurred and is continuing; (C)
the conditions in this Section 3.02 have been met;
(iii) a certificate of the Secretary or an Assistant
Secretary of each WWC Guarantor dated as of the Acquisition
Date and certifying as of the Acquisition Date (x) the names
and true signatures of officers such WWC Guarantor authorized
to sign the Credit Documents to which such Person is a party,
(y) resolutions of the Board of Directors of such Person with
respect to the transactions herein contemplated, and (z)
copies of the articles or certificate of incorporation and
bylaws of such Person;
(iv) a favorable opinion of Richard F. Cooper, General
Counsel to the Borrower and the Guarantors, dated as of the
Acquisition Date and in substantially the form of Exhibit I-2;
and
(v) all shares of capital stock of each WWC Company
(other than the WWC Shares and the shares of capital stock of
the ICC Subsidiaries) have been delivered to the Agent
together with stock powers executed in blank by the holder of
such shares.
(b) Representations and Warranties. The representations and
warranties contained in Article IV hereof and Section 7 of the
Guaranty and Section 4 of each Security Agreement (after giving
effect to the Accession Agreements executed as of the
Acquisition Date by each WWC Guarantor) shall be true and
correct in all material respects both before and after the
consummation of the Acquisition.
(c) Funding of Intercompany Loan to Acquisition
Company.Simultaneous with the making of the Advances hereunder
on the Acquisition Date, the Borrower shall make an intercompany
loan to the Acquisition Company in an amount sufficient to
fund the Acquisition and to repay Indebtedness of WWC Companies
required to be repaid on or contemporaneously with the
Acquisition Date as set forth in paragraphs (f) and (g) below.
(d) Consummation of Acquisition. All conditions precedent to
the Acquisition as described in the Acquisition Documents have
been satisfied, and simultaneous with the making of Advances on
the Acquisition Date the Acquisition shall be consummated
substantially as described in the Acquisition Documents, and all
operative instruments executed in connection therewith shall be
valid, binding and enforceable against the parties thereto in
accordance with their terms (subject to all applicable
liquidation, conservatorship, bankruptcy, moratorium,
arrangement, receivership, insolvency, reorganization, or similar
laws, or general equitable principles from time to time in effect
affecting the rights of creditors generally), and none of the
principal terms or conditions to closing of any party set forth
in the Acquisition Documents executed prior to the Effective Date
shall have been, without the prior written consent of the
Majority Banks and the Agent, amended or supplemented, and all
principal conditions stated therein shall have been satisfied
without waiver.
(e) Legality of Transactions. It shall not be unlawful
(i)for the Agent, the Documentation Agent or any of the Banks
to perform any of their respective agreements or obligations
under any of the Credit Documents or (ii) any other party to
perform any of its agreements or obligations under any of the
Credit Documents to which it is or is to become a party
on the Acquisition Date.
(f) Termination of Existing Citibank Facilities. All
commitments shall have been terminated under (A) the U.S.
$45,000,000 Secured Revolving Credit and Letter of Credit
Agreement dated as of March 15, 1994, as amended, among Carolina
Freight Carriers Corporation and Red Arrow Freight Lines, Inc.,
as borrowers, the banks parties thereto, and Citibank, N.A., as
agent for such banks, and (B) the Loan and Security Agreement
dated as of June 23, 1995 among certain WWC Companies, the banks
parties thereto, and Citibank, N.A., as agent for such banks
(such agreements collectively herein called the "Citibank
Facilities"); all principal amounts outstanding under the
Citibank Facilities, together with all accrued but unpaid
interest and fees and other amounts payable thereunder, have been
either paid in full prior to the Acquisition Date or will be paid
in full concurrent with the making of the Advances on the
Acquisition Date and application of the proceeds thereof;
arrangements satisfactory to the Banks and the Agent have been
made in connection with the letters of credit outstanding under
such facility to be replaced or backed up with Letters of Credit
to issued on the Acquisition Date; and all liens securing such
facilities have been released or instruments effecting such
release satisfactory to the Agent have been delivered to the
Agent or, in the case of liens on titled Revenue Equipment, to
the Borrower.
(g) Early Amortization of Carolina Receivables Facility. An
"Early Amortization Event" (as defined under the Pooling and
Servicing Agreement) has occurred under Article IX of the Pooling
and Servicing Agreement and no further Receivables are being sold
pursuant to the Receivables Purchase Agreement or transferred
into the Trust (as defined in the Pooling and Servicing
Agreement).
(h) No WWC Material Adverse Change. No material adverse
change has occurred in the business or financial condition of the
WWC Companies, except as set forth on Schedule 3.01(e).
Section 3.03. Conditions Precedent for each Borrowing or
Letter of Credit. The obligation of each Bank to fund an Advance
on the occasion of each Borrowing (other than the Conversion or
continuation of any existing Borrowing) and of any Issuing Bank
to issue or increase or extend any Letter of Credit shall be
subject to the further conditions precedent that on the date of
such Borrowing or the issuance or increase or extension of such
Letter of Credit:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing and the acceptance
by the Borrower of the proceeds of such Borrowing or the issuance
or increase or extension of such Letter of Credit shall
constitute a representation and warranty by the Borrower that on
the date of such Borrowing or the issuance or increase or
extension of such Letter of Credit such statements are true):
(i) the representations and warranties contained in
Article IV hereof and Section 7 of the Guaranty and Section 4
of each Security Agreement are correct in all material
respects on and as of the date of such Borrowing or the
issuance or increase or extension of such Letter of Credit,
before and after giving effect to such Borrowing or to the
issuance or increase or extension of such Letter of Credit
and to the application of the proceeds from such Borrowing, as
though made on and as of such date and
(ii) no Default has occurred and is continuing or would
resultfrom such Borrowing or from the application of the
proceeds therefrom; and
(b) the Agent shall have received such other
approvals,opinions or documents deemed necessary or desirable by
any Bank as a result of circumstances occurring after the
Effective Date, as the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
Section 4.01. Corporate Existence; Subsidiaries. The
Borrower is a corporation duly organized, validly existing, and
in good standing under the laws of Delaware and in good standing
and qualified to do business in each jurisdiction where its
ownership or lease of property or conduct of its business
requires such qualification and where a failure to be qualified
could reasonably be expected to cause a Material Adverse Change.
Each Subsidiary of the Borrower is a corporation duly organized,
validly existing, and in good standing under the laws of its
jurisdiction of incorporation and in good standing and qualified
to do business in each jurisdiction where its ownership or lease
of property or conduct of its business requires such
qualification and where a failure to be qualified could
reasonably be expected to cause a Material Adverse Change. The
Borrower has no Subsidiaries on the date of this Agreement other
than the Subsidiaries listed on the attached Schedule 4.01(a),
and Schedule 4.01(a) lists the jurisdiction of incorporation and
the address of the principal office of each such Subsidiary
existing on the date of this Agreement. To the best knowledge of
the Borrower, WWC has no Subsidiaries on the date of this
Agreement other than the Subsidiaries listed on the attached
Schedule 4.01(b), and Schedule 4.01(b) lists the jurisdiction of
incorporation and the address of the principal office of each WWC
Company on and as of the date of this Agreement.
Section 4.02. Corporate Power. The execution, delivery, and
performance by the Borrower and each Guarantor of the Credit
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby (a) are within the
Borrower's and the Guarantors' corporate powers, (b) have been
duly authorized by all necessary corporate action, (c) do not
contravene (i) the Borrower's or any Guarantor's certificate or
articles, as the case may be, of incorporation or by-laws or
(ii) any law or any contractual restriction binding on or
affecting the Borrower or any Guarantor, the contravention of
which could reasonably be expected to cause a Material Adverse
Change, and (d) will not result in or require the creation or
imposition of any Lien prohibited by this Agreement. At the time
of each Borrowing, such Borrowing and the use of the proceeds of
such Borrowing will be within the Borrower's corporate powers,
will have been duly authorized by all necessary corporate action,
(a) will not contravene (i) the Borrower's certificate of
incorporation or by-laws or (ii) any law or any contractual
restriction binding on or affecting the Borrower, the
contravention of which could reasonably be expected to cause a
Material Adverse Change, and (b) will not result in or require
the creation or imposition of any Lien prohibited by this
Agreement.
Section 4.03. Authorization and Approvals. No authorization
or approval or other action by, and no notice to or filing with,
any Governmental Authority is required for the due execution,
delivery and performance by the Borrower or any Guarantor of the
Credit Documents to which it is a party or the consummation of
the transactions contemplated thereby. At the time of each
Borrowing, no authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority will be
required for such Borrowing or the use of the proceeds of such
Borrowing.
Section 4.04. Enforceable Obligations. This Agreement, the
Notes, and the other Credit Documents to which the Borrower is a
party have been duly executed and delivered by the Borrower and
the Guaranty and the Guarantors Security Agreement and the other
Credit Documents to which each Guarantor is a party have been
duly executed and delivered by such Guarantor. Each Credit
Document is the legal, valid, and binding obligation of the
Borrower and each Guarantor which is a party to it enforceable
against the Borrower and each such Guarantor in accordance with
its terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally and by general
principles of equity (whether considered in proceeding at law or
in equity).
Section 4.05. Financial Statements. (a) The audited
Consolidated and consolidating balance sheet of the Borrower and
its Subsidiaries as at December 31, 1994, and the related
Consolidated and consolidating statements of operations,
shareholders' equity and cash flows, of the Borrower and its
Subsidiaries for the fiscal year then ended, copies of which have
been furnished to each Bank, duly certified by the chief
financial officer or treasurer of the Borrower, copies of which
have been furnished to each Bank, fairly present, the financial
condition of the Borrower and its Subsidiaries as at such date
and the results of the operations of the Borrower and its
Subsidiaries for the year ended on such date, and such balance
sheet and statements were prepared in accordance with GAAP.
(b) The unaudited Consolidated and consolidating balance
sheet at March 31, 1995 of the Borrower and its Subsidiaries and
related statement of earnings prepared by the Borrower reflect
and correctly calculate the financial condition of the Borrower
and such Subsidiaries as at the date thereof.
(c) The audited Consolidated and consolidating balance sheet
of WWC and its Subsidiaries as at December 31, 1994, and the
related Consolidated and consolidating statements of operations,
shareholders' equity and cash flows, of WWC and its Subsidiaries
for the fiscal year then ended, copies of which have been
furnished to each Bank, duly certified by the chief financial
officer or treasurer of WWC, copies of which have been furnished
to each Bank, fairly present, the financial condition of the WWC
and its Subsidiaries as at such date and the results of the
operations of WWC and its Subsidiaries for the year ended on such
date, and such balance sheet and statements were prepared in
accordance with GAAP.
(d) The historical and projected financial statements for the
years 1993-2000 prepared by the Borrower which show the combined
companies of the Borrower and WWC as at December 31, 1995 and
projections for the years 1996 through 2000 reflect the good
faith estimate of the Borrower and its senior management
concerning the probable financial condition and performance of
the Borrower and its Subsidiaries based on assumptions believed
to be reasonable at the time made.
(e) No Material Adverse Change has occurred.
Section 4.06. True and Complete Disclosure. No
representation, warranty, or other statement made by the Borrower
(or on behalf of the Borrower) in this Agreement or any other
Credit Document contains any untrue statement of a material fact
or omits to state any material fact necessary to make the
statements contained therein not misleading in light of the
circumstances in which they were made as of the date of this
Agreement. There is no fact known to any Responsible Officer of
the Borrower on the date of this Agreement and on the Effective
Date that has not been disclosed to the Agent which could
reasonably be expected to cause a Material Adverse Change. All
projections, estimates, and pro forma financial information
furnished by the Borrower or on behalf of the Borrower were
prepared on the basis of assumptions, data, information, tests,
or conditions believed to be reasonable at the time such
projections, estimates, and pro forma financial information were
furnished.
Section 4.07. Litigation. Except as set forth in the
attached Schedule 4.07, there is no pending or, to the best
knowledge of the Borrower, threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any
court, Governmental Authority or arbitrator, which could
reasonably be expected to cause a Material Adverse Change or
which purports to affect the legality, validity, binding effect
or enforceability of this Agreement, any Note, or any other
Credit Document.
Section 4.08. Use of Proceeds. (a) Revolving Advances. The
proceeds of the Revolving Advances will be used by the Borrower
for general corporate purposes of the Borrower and its
Subsidiaries, including without limitation for refinancing the
Borrower's Indebtedness under the Existing Credit Agreement on
the Effective Date and for refinancing existing senior
Indebtedness of any WWC Company (but not to exceed $126,000,000
in the aggregate in connection with such refinancings) on the
Acquisition Date or thereafter.
(b) Term Advances. The proceeds of the Term Advances will
be used by the Borrower to make one or more intercompany loans
to the Acquisition Company in an aggregate amount sufficient
to enable the Acquisition Company to pay the Offer Price of
the Tender Offer and certain costs and expenses relating to
the Tender Offer, the Acquisition, and the Merger.
(c) Regulations. No proceeds of Advances will be used to
purchase or carry any margin stock in violation of Regulations G,
T, U or X of the Federal Reserve Board, as the same is from time
to time in effect, and all official rulings and interpretations
thereunder or thereof. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the
Federal Reserve Board).
Section 4.09. Investment Company Act. Neither the Borrower
nor any of its Subsidiaries is an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Section 4.10. Taxes. Except as set forth on Schedule 4.10
with respect to WWC, all federal, state, local and foreign tax
returns, reports and statements required to be filed (after
giving effect to any extension granted in the time for filing) by
the Borrower, its Subsidiaries or any member of the Controlled
Group (hereafter collectively called the "Tax Group") have been
filed with the appropriate governmental agencies in all
jurisdictions in which such returns, reports and statements are
required to be filed, and where the failure to file could
reasonably be expected to cause a Material Adverse Change, except
where contested in good faith and by appropriate proceedings; and
all taxes (which are material in amount) and other impositions
due and payable have been timely paid prior to the date on which
any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good
faith and by appropriate proceedings. Neither the Borrower nor
any member of the Tax Group has given, or been requested to give,
a waiver of the statute of limitations relating to the payment of
any federal, state, local or foreign taxes or other impositions.
None of the property owned by the Borrower or any other member of
the Tax Group is property which the Borrower or any member of the
Tax Group is required to treat as being owned by any other Person
pursuant to the provisions of Section 168(f)(8) of the Code.
Proper and accurate amounts have been withheld by the Borrower
and all other members of the Tax Group from their employees for
all periods to comply in all material respects with the tax,
social security and unemployment withholding provisions of
applicable federal, state, local and foreign law. Timely payment
of all material sales and use taxes required by applicable law
have been made by the Borrower and all other members of the Tax
Group, the failure to timely pay of which could reasonably be
expected to cause a Material Adverse Change. The amounts shown
on all tax returns to be due and payable have been paid in full
or adequate provision therefor is included on the books of the
appropriate member of the Tax Group.
Section 4.11. Pension Plans. All Plans are in compliance in
all material respects with all applicable provisions of ERISA.
No Termination Event has occurred with respect to any Plan, and
each Plan has complied with and been administered in all material
respects in accordance with applicable provisions of ERISA and
the Code. No "accumulated funding deficiency" (as defined in
Section 302 of ERISA) has occurred and there has been no excise
tax imposed under Section 4971 of the Code. To the knowledge of
any Responsible Officer of the Borrower, no Reportable Event has
occurred with respect to any Multiemployer Plan, and each
Multiemployer Plan has complied with and been administered in all
material respects with applicable provisions of ERISA and the
Code. To the knowledge of any Responsible Officer of the
Borrower, neither the Borrower nor any member of the Controlled
Group has had a complete or partial withdrawal from any
Multiemployer Plan for which there is any material withdrawal
liability. As of the most recent valuation date applicable
thereto, neither the Borrower nor any member of the Controlled
Group has received notice that any Multiemployer Plan is
insolvent or in reorganization.
Section 4.12. Condition of Property; Casualties. The
material Properties used or to be used in the continuing
operations of the Borrower and each of its Subsidiaries, taken as
a whole, are and will continue to be in good repair, working
order and condition, normal wear and tear excepted. Since
December 31, 1994, neither the business nor the material
Properties of the Borrower and each of its Subsidiaries, taken as
a whole, has been materially and adversely affected as a result
of any fire, explosion, earthquake, flood, drought, windstorm,
accident, strike or other labor disturbance, embargo, requisition
or taking of property or cancellation of contracts, permits or
concessions by a Governmental Authority, riot, activities of
armed forces or acts of God or of any public enemy.
Section 4.13. Insurance. The Borrower and each of its
Subsidiaries carry insurance with reputable insurers in respect
of such of their respective Properties, in such amounts and
against such risks as is customarily maintained by other Persons
of similar size engaged in similar businesses or, self-insure to
the extent that is customary for Persons of similar size engaged
in similar businesses.
Section 4.14. No Burdensome Restrictions; No Defaults.
(a) Neither the Borrower nor any of its Subsidiaries is aparty
to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or
corporate restriction or provision of applicable law or
governmental regulation which could reasonably be expected to
cause a Material Adverse Change. The Borrower and the Guarantors
are not in default under or with respect to any contract,
agreement, lease or other instrument to which the Borrower or any
Guarantor is a party and which could reasonably be expected to
cause a Material Adverse Change. Neither the Borrower nor any
Guarantor has received any notice of default under any material
contract, agreement, lease or other instrument to which the
Borrower or such Guarantor is a party which is continuing and
which, if not cured, could reasonably be expected to cause a
Material Adverse Change.
(b) No Default has occurred and is continuing.
Section 4.15. Environmental Condition.
(a) The Borrower and its Subsidiaries, taken as a whole, (i) have
obtained all Environmental Permits necessary for the ownership
and operation of their respective material Properties and the
conduct of their respective businesses; (ii) have been and are
in compliance with all terms and conditions of such
Environmental Permits and with all other material requirements of
applicable Environmental Laws of which the failure to comply
could reasonably be expected to cause a Material Adverse Change;
(iii) have not received notice of any violation or alleged
violation of any Environmental Law or Environmental Permit, which
violation could reasonably be expected to cause a Material
Adverse Change; and (iv) are not subject to any actual or
contingent material Environmental Claim, which Environmental
Claim could reasonably be expected to cause a Material Adverse
Change.
(b) None of the present or previously owned or operated
Property of the Borrower or of any of its present or former
Subsidiaries, wherever located, (i) has been placed on or
proposed to be placed on the National Priorities List, the
Comprehensive Environmental Response Compensation Liability
Information System list, or their state or local analogs, or have
been otherwise investigated, designated, listed, or identified as
a potential site for removal, remediation, cleanup, closure,
restoration, reclamation, or other response activity under any
Environmental Laws which could reasonably be expected to cause a
Material Adverse Change; (ii) is subject to a Lien, arising under
or in connection with any Environmental Laws, that attaches to
any revenues or to any Property owned or operated by the Borrower
or any of its Subsidiaries, wherever located, which Lien could
reasonably be expected to cause a Material Adverse Change; or
(iii) has been the site of any Release of Hazardous Substances or
Hazardous Wastes from present or past operations which has caused
at the site or at any third-party site any condition that has
resulted in or could reasonably be expected to result in the need
for Response that could cause a Material Adverse Change.
(c) Without limiting the foregoing, the present and, to the
best knowledge of any Responsible Officer of the Borrower, future
liability, if any, of the Borrower and its Subsidiaries, taken as
a whole, which could reasonably be expected to arise in
connection with requirements under Environmental Laws will not
result in a Material Adverse Change.
Section 4.16. Permits, Licenses, etc. The Borrower and its
Subsidiaries possess all certificates of public convenience,
authorizations, permits, licenses, patents, patent rights or
licenses, trademarks, trademark rights, trade names rights and
copyrights which are material to the conduct of its business.
The Borrower and its Subsidiaries manage and operate their
business in accordance with all applicable Legal Requirements
which the failure to so manage or operate could reasonably be
expected to cause a Material Adverse Change.
Section 4.17. Capital Structure. Upon consummation of the
Merger (subject to the rights of dissenting shareholders as set
forth in the Merger Agreement and in accordance with applicable
law), the Borrower will be the legal and beneficial owner of 100%
of the WWC Shares. All of the issued and outstanding Acquisition
Company Stock, immediately prior to the Merger, are free and
clear of all Liens (other than those in favor of the Agent) and
were issued in compliance with all applicable state and federal
laws concerning the issuance of securities. Upon consummation of
the Merger, there will be no outstanding rights, warrants,
options, contracts, commitments, conversion rights, puts, calls
or similar agreements or understandings of any kind to which any
of the Borrower, the Acquisition Company or WWC is a party
entitling any Person to purchase or otherwise acquire (i) any
shares of Acquisition Company Stock or WWC Shares or (ii) any
securities convertible into or exchangeable for any shares of
such capital stock.
Section 4.18. Tender and Acquisition. The Acquisition will
occur in accordance with the terms of the Tender Offer for a
price not to exceed the Offer Price and for an aggregate
consideration not to exceed $75,000,000. The Acquisition will be
made in accordance with all applicable Legal Requirements.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Note or any amount under any Credit Document
shall remain unpaid, any Letter of Credit shall remain
outstanding, or any Bank shall have any Commitment hereunder, the
Borrower agrees, unless the Majority Banks shall otherwise
consent in writing, to comply with the following covenants.
Section 5.01. Compliance with Laws, Etc. The Borrower will
comply, and cause each of its Subsidiaries to comply, with all
Legal Requirements of which the failure to comply could
reasonably be expected to cause a Material Adverse Change;
provided, however, that this Section 5.01 shall not prevent the
Borrower, or any of its Subsidiaries from, in good faith and with
reasonable diligence, contesting the validity or application of
any such laws or regulations by appropriate legal proceedings.
Section 5.02. Maintenance of Insurance. The Borrower will
maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as are
usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates, provided that the Borrower
or such Subsidiary may self-insure to the extent and in the
manner normal for similarly situated companies of like size, type
and financial condition that are part of a group of companies
under common control.
Section 5.03. Preservation of Corporate Existence, Etc. The
Borrower will preserve and maintain, and cause each of the
Guarantors to preserve and maintain, its corporate existence,
rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each
such Guarantor to qualify and remain qualified, as a foreign
corporation in each jurisdiction in which qualification is
necessary or desirable in view of its business and operations or
the ownership of its properties, and, in each case, where failure
to qualify or preserve and maintain its rights and franchises
could reasonably be expected to cause a Material Adverse Change;
provided, however, that nothing contained in this Section 5.03
shall prevent any transaction permitted by Section 6.04.
Section 5.04. Payment of Taxes, Etc. The Borrower will pay
and discharge, and cause each of its Subsidiaries to pay and
discharge, before the same shall become delinquent and which the
failure to timely pay or discharge could reasonably be expected
to cause a Material Adverse Change, (a) all taxes, assessments
and governmental charges or levies imposed upon it or upon its
income or profits or Property that are material in amount, prior
to the date on which penalties attach thereto and (b) all lawful
claims that are material in amount which, if unpaid, might by law
become a Lien upon its Property; provided, however, that neither
the Borrower nor any such Subsidiary shall be required to pay or
discharge any such tax, assessment, charge, levy, or claim which
is being contested in good faith and by appropriate proceedings,
and (except with respect to the claim described on Schedule 4.10)
with respect to which reserves in conformity with GAAP have been
provided.
Section 5.05.
Visitation Rights. At any reasonable time and from time to time
and so long as any visit or inspection will not unreasonably
interfere with the Borrower's or any of its Subsidiaries
operations, upon reasonable notice, the Borrower will, and
will cause its Subsidiaries to, permit the Agent and any Bank
or any of its agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of
account of, and visit and inspect at its reasonable discretion
the properties of, the Borrower and any such Subsidiary, to
discuss the affairs, finances and accounts of the Borrower and
any such Subsidiary with any of their respective officers or
directors.
Section 5.06. Reporting Requirements. The Borrower will
furnish to the Agent and each Bank:
(a) Quarterly Financials. As soon as available and in any
event not later than 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower and not later
than 60 days after the end of the fourth quarter of each fiscal
year of the Borrower, the unaudited Consolidated and consolidating
balance sheets of Borrower and its Subsidiaries as of the end
of such quarter and the related unaudited statements of income,
shareholders' equity and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
year and ending with the end of such quarter, and the
corresponding figures as at the end of, and for, the
corresponding period in the preceding fiscal year, all in
reasonable detail and duly certified with respect to such
statements (subject to year-end audit adjustments) by an
authorized financial officer of the Borrower as having been
prepared in accordance with GAAP, together with a Compliance
Certificate duly executed by a Responsible Officer;
(b) Annual Financials. As soon as available and in any
event not later than 90 days after the end of each fiscal year of
the Borrower, a copy of the annual audit report for such year for
the Borrower and its Subsidiaries, including therein audited
Consolidated and consolidating balance sheets of the Borrower and
its Consolidated Subsidiaries as of the end of such fiscal year
and the related Consolidated and consolidating statements of
income, shareholders' equity and cash flows of the Borrower and
its Subsidiaries for such fiscal year, and the corresponding
figures as at the end of, and for, the preceding fiscal year, in
each case certified by Ernst & Young or other independent
certified public accountants of recognized standing acceptable to
the Agent and including any management letters delivered by such
accountants to the Borrower in connection with such audit
together with a certificate of such accounting firm to the Banks
stating that, in the course of the regular audit of the business
of the Borrower and its Subsidiaries, which audit was conducted
by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge
that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, together with a
Compliance Certificate;
(c) Annual Budget. As soon as available and in any event
not later than March 31st of each calendar year, the
Consolidated annual budget of the Borrower and its Subsidiaries for
such year in reasonable detail and duly certified by an
authorized financial officer of the Borrower as the budget
presented or to be presented to the Borrower's Board of
Directors for their review;
(d) Securities Law Filings. Promptly and in any event
within 15 days after the sending or filing thereof, copies of all
proxy material, reports and other information which the Borrower or
any of its Subsidiaries sends to or files with the United
States Securities and Exchange Commission or sends to any
shareholder of the Borrower or of any of its Subsidiaries;
(e) Defaults. As soon as possible and in any event within
five days after the occurrence of each Default known to a
Responsible Officer of the Borrower or any of its Subsidiaries, a
statement of an authorized financial officer of the Borrower
setting forth the details of such Default and the actions which
the Borrower has taken and proposes to take with respect thereto;
(f) ERISA Notices. Except as to any matter which could not
reasonably be expected to cause a Material Adverse Change, as
soon as possible and in any event (i) within 30 days after the
Borrower or any of its Subsidiaries knows or has reason to know
that any Termination Event described in clause (a) of the
definition of Termination Event with respect to any Plan has
occurred, (ii) within 10 days after the Borrower or any of its
Subsidiaries knows or has reason to know that any other
Termination Event with respect to any Plan has occurred, a
statement of the chief financial officer of the Borrower
describing such Termination Event and the action, if any, which
the Borrower or such Subsidiary proposes to take with respect
thereto; (iii) within 10 days after receipt thereof by the
Borrower or any of its Subsidiaries from the PBGC, copies of each
notice received by the Borrower or any such Subsidiary of the
PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan; and (iv) within 10 days after
receipt thereof by the Borrower or any of its Subsidiaries from a
Multiemployer Plan sponsor, a copy of each notice received by the
Borrower or any of its Subsidiaries concerning the imposition or
amount of withdrawal liability pursuant to Section 4202 of ERISA;
(g) Environmental Notices. Promptly upon the knowledge of
any Responsible Officer of the Borrower of receipt thereof by the
Borrower or any of its Subsidiaries, a copy of any form of
notice, summons or citation received from the United States
Environmental Protection Agency, or any other Governmental
Authority directly engaged in protection of the Environment,
concerning (i) material violations or alleged violations of
Environmental Laws, which seeks to impose liability therefor and
which, based upon information reasonably available to the
Borrower at the time or after such violation, could reasonably be
expected to cause a Material Adverse Change, (ii) any action or
omission on the part of the Borrower or any of its present or
former Subsidiaries in connection with Hazardous Waste or
Hazardous Substances which, based upon information reasonably
available to the Borrower at the time of such receipt, could
reasonably be expected to cause a Material Adverse Change,
(iii) any notice of potential responsibility under CERCLA which
could reasonably be expected to cause a Material Adverse Change,
or (iv) concerning the filing of a Lien other than a Permitted
Lien upon, against or in connection with the Borrower, its
present or former Subsidiaries, or any of their leased or owned
Property, wherever located;
(h) Other Governmental Notices or Actions. Promptly and in
any event within five Business Days after receipt thereof by the
Borrower or any of its Subsidiaries, and the knowledge of such
receipt by a Responsible Officer of the Borrower or any inside
counsel of the Borrower, (i) a copy of any notice, summons,
citation, or proceeding seeking to adversely modify in any
material respect, revoke, or suspend any license, permit, or
other authorization from the ICC, the United States Department of
Transportation, or any other Governmental Authority, which action
could reasonably be expected to cause a Material adverse Change,
and (ii) any revocation or involuntary termination of any
license, permit or other authorization from the ICC, the United
States Department of Transportation, or any other Governmental
Authority, which revocation or termination could reasonably be
expected to cause a Material Adverse Change;
(i) Borrowing Base Certificate. On or prior to each
Borrowing Base Determination Date, a completed Borrowing Base
Certificate setting forth the components of the Borrowing Base as
of the Borrowing Base Adjustment Date immediately preceding such
Borrowing Base Determination Date; and
(j) Other Information. Such other information respecting
the business or Properties, or the condition or operations,
financial or otherwise, of the Borrower, or any of its
Subsidiaries, as any Bank through the Agent may from time to time
reasonably request.
Section 5.07. Maintenance of Property. Borrower will, and
will cause each of its Subsidiaries to, (a) maintain their
material owned, leased, or operated property, equipment,
buildings and fixtures in substantially the same or better
condition and repair as the condition and repair as of
December 31, 1994, normal wear and tear excepted and (b) not
knowingly or willfully permit the commission of waste or other
injury, or the occurrence of pollution, contamination or any
other condition in, on or about the owned or operated property
involving the Environment that could reasonably be expected to
cause a Material Adverse Change.
ARTICLE VI
NEGATIVE COVENANTS
So long as any Note or any amount under any Credit Document shall
remain unpaid, any Letter of Credit shall remain
outstanding, or any Bank shall have any Commitment, the Borrower
agrees, unless the Majority Banks otherwise consent in writing,
to comply with the following covenants.
Section 6.01. Liens, Etc. The Borrower will not create,
assume, incur or suffer to exist, or permit any of its
Subsidiaries to create, assume, incur, or suffer to exist, any
Lien on or in respect of any of its Property (other than, at any
time after the Acquisition Date and prior to the Merger Effective
Time, the WWC Shares) whether now owned or hereafter acquired, or
assign any right to receive income, except that the Borrower and
its Subsidiaries may create, incur, assume or suffer to exist
Liens:
(a) securing the Obligations;
(b) for taxes, assessments or governmental charges or levies
on Property of the Borrower or any Guarantor to the extent not
required to be paid pursuant to Sections 5.01 and 5.04;
(c) imposed by law, such as landlords', carriers', warehouse
men's and mechanics' liens and other similar Liens arising in the
ordinary course of business securing obligations which are not
overdue for a period of more than 15 days or which are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of the Borrower and its Subsidiaries in accordance with
GAAP;
(d) arising in the ordinary course of business out of
pledges or deposits under workers' compensation laws,
unemployment insurance, old age pensions or other social
security or retirement benefits, bonds or letters of credit,
or similar legislation or to secure public or statutory
obligations of the Borrower or any of its Subsidiaries;
(e) existing on Property acquired by the Borrower or any of
its Subsidiaries in the ordinary course of business prior to the
Borrower's or such Subsidiaries' acquisition of such Property;
(f) securing Indebtedness incurred after the Effective Date
(other than secured Indebtedness permitted by the following
paragraphs (g), (j), (k), (l), (m), and (n) below) in an amount
not to exceed $5,000,000 in the aggregate at any time; provided
that the fair market value of the collateral securing any such
Indebtedness may exceed the outstanding principal amount of such
Indebtedness only to the extent such excess is within customary
commercial bank lending and collateralization requirements;
(g) securing Indebtedness existing on the Effective Date and
listed on the attached Schedule 6.01; provided that the
Indebtedness secured by such Liens shall not be renewed,
refinanced or extended if the amount of such Indebtedness so
renewed, refinanced or extended is greater than the outstanding
amount of such Indebtedness on the date of this Agreement;
(h) constituting easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property or minor
imperfections in title thereto which, in the aggregate, are not
material in amount, and which do not in any case materially
detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(i) arising from litigation and which are effectively stayed
from execution and would not otherwise cause a Default to occur;
(j) securing Indebtedness under the Headquarters Credit
Agreement, provided that such Liens encumber only the land and
improvements (and related personal property) with respect to the
Borrower's new headquarters building in Fort Smith, Arkansas;
(k) on real property to secure the purchase price of such
Property or improvements thereon;
(l) on leased personal property to secure solely the lease
obligations associated with such property;
(m) on certain Receivables of any Logistics Subsidiary in
favor of any railroad company which secures the obligations of
such Logistics Subsidiary to such railroad company in connection
with rail shipments with such railroad company contracted for by
such Logistics Subsidiary for the benefit of the obligors of such
Receivables; and
(n) on Receivables sold in Carolina Receivables Facility.
Section 6.02. Amendment of Material Documents. The Borrower
will not, nor will it permit any of its Subsidiaries to, enter
into any amendment of (a) the Acquisition Documents (or otherwise
to consent to or waive any of the conditions set forth therein in
connection with the Tender Offer or the Merger), or (b) the
Subordinated Debt Documents; provided, however, that WWC may
enter into any supplement modifying the Indenture which is
required in connection with the Merger and which is in form and
substance satisfactory to the Agent.
Section 6.03. Agreements Restricting Distributions From
Subsidiaries. The Borrower will not, nor will it permit any of
its Subsidiaries to, enter into any agreement (other than a
Credit Document) which limits distributions to or any advance by
any of the Borrower's Subsidiaries to the Borrower.
Section 6.04. Merger or Consolidation; Asset Sales. The
Borrower will not, and will not permit any of its Subsidiaries
to, (a) merge or consolidate with or into any other Person,
unless (i) the Borrower (in the case of any transaction involving
the Borrower) or such Subsidiary (unless such Subsidiary is
merged into the Borrower or another Subsidiary) is the surviving
corporation, and (ii) immediately after giving effect to any such
proposed transaction no Default would exist; or (b) sell, lease,
transfer, or otherwise dispose of all or substantially all of the
Borrower's or such Subsidiaries' Property.
Section 6.05. Restricted Payments. The Borrower will not,
and will not permit any of its Subsidiaries to, make any
Restricted Payment, except that (i) a wholly-owned Subsidiary of
the Borrower may make a Restricted Payment to the Borrower or
another wholly-owned Subsidiary of the Borrower, (ii) provided no
Default has occurred and is continuing or would result therefrom,
the Borrower or WWC may make scheduled sinking fund installments
required under Section 3.04 of the Indenture on account of the
Subordinated Debentures, and (iii) provided no Default has
occurred and is continuing or would result therefrom, the
Borrower or any Subsidiary may make Restricted Payments of the
kind described in clause (b) of the definition of the term
"Restricted Payments" in an aggregate amount not to exceed
$15,000,000 in any fiscal year.
Section 6.06. Investments, Loans, Advances. The Borrower
will not, and will not permit any of its Subsidiaries to, make or
permit to exist any loans, advances or capital contributions to,
or make any investment in, or purchase or commit to purchase any
stock or other securities or evidences of indebtedness of or
interests in any Person, except the following:
(a) the purchase of Liquid Investments;
(b) trade and customer accounts receivable which are for
goods furnished or services rendered in the ordinary course of
business and are payable in accordance with customary trade
terms;
(c) ordinary course of business contributions, loans or
advances to, or investments in, (i) a direct or indirect
Subsidiary of the Borrower, provided that if, at any time the
aggregate amount of all such contributions, loans or advances to,
or investments in, any such Subsidiary occurring after the
Effective Date exceeds $5,000,000, the Borrower shall have caused
such Subsidiary (if not then a Guarantor) to have executed and
delivered to the Agent an Accession Agreement, related financing
statement and certificate covering the same matters described in
Section 3.01(a)(iv) with respect to such Guarantor and the
Borrower's counsel shall deliver an opinion with respect thereto
covering the matters previously opined on with respect to each
Guarantor or (ii) the Borrower;
(d) contributions to, or capital investments in a Person
which, prior to such contribution or investment, is not a
Subsidiary but which becomes a Subsidiary as a result of such
contribution or investment, provided that if the aggregate amount
of such contributions to or investments in any such Person
occurring after the Effective Date exceeds $5,000,000, the
Borrower shall have caused such Person to have executed and
delivered to the Agent an Accession Agreement, related financing
statement and a certificate covering the same matters described
in Section 3.01(a)(iv) with respect to such Person, and the
Borrowers' counsel shall deliver an opinion with respect thereto
covering the matters previously opined on with regard to each
Guarantor and provided further that the aggregate amount of all
such contributions to, or investments in any such Persons which
have not so executed and delivered an Accession Agreement plus
the aggregate amount of investments under paragraph (e) below
shall not exceed $5,000,000; and
(e) other capital investments not otherwise permitted by this
Section 6.06 in any Person which is not, and will not become a
Subsidiary of the Borrower as a result of such capital investment
provided that (i) the aggregate amount of such investments
outstanding at any time plus the aggregate amount of contributions
to, or investments in any Persons as contemplated under
paragraph (d) above which have not executed and delivered an
Accession Agreement shall not exceed $5,000,000; (ii) such
Person shall be in the same or substantially similar line or
lines of business as the Borrower and its Subsidiaries or a line
of business directly related to providing services of the nature
the Borrower and its Subsidiaries provide on the date this
Agreement is executed; and (iii) the liabilities of such other
Person shall be nonrecourse to the Borrower and its Subsidiaries.
Section 6.07. Affiliate Transactions. Except as expressly
permitted elsewhere in this Agreement, the Borrower will not, and
will not permit any of its Subsidiaries to, make, directly or
indirectly: (a) any transfer, sale, lease, assignment or other
disposal of any assets to any Affiliate of the Borrower or any
purchase or acquisition of assets from any such Affiliate; or
(b) any arrangement or other transaction directly or indirectly
with or for the benefit of any such Affiliate (including without
limitation, guaranties and assumptions of obligations of an
Affiliate); provided that the Borrower and its Subsidiaries
(i) may enter into any arrangement or other transaction with any
such Affiliate providing for the leasing of property, the
rendering or receipt of services or the purchase or sale of
inventory and other assets in the ordinary course of business if
the monetary or business consideration arising therefrom would be
substantially as advantageous to the Borrower and its Subsidiaries
as the monetary or business consideration which it would obtain
in a comparable arm's length transaction with a Person not
such an Affiliate, (ii) the Borrower and any of its Subsidiaries
may guaranty or otherwise assume obligations of an Affiliate to
the extent permitted under Section 6.02 hereof, and (iii) may
maintain the arrangements listed on the attached Schedule
6.07.
Section 6.08. Sale and Leaseback. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any
arrangement with any Person (other than the Borrower or a
Guarantor), whereby in contemporaneous transactions the Borrower
or such Subsidiary sells essentially all of its right, title and
interest in a material asset and the Borrower or such Subsidiary
acquires or leases back the right to use such property, except
sale leasebacks of trucks, tractors and trailers on terms
consistent with the Borrower's or such Subsidiary's past
practices and current industry standards.
Section 6.09. Maintenance of Ownership of Subsidiaries. The
Borrower will not, and will not permit any of its Subsidiaries
to, sell or otherwise dispose of any shares of capital stock of
any Guarantor.
Section 6.10. No Further Negative Pledges. Except as set
forth in agreements and documentation governing Indebtedness of
the Borrower or any of its Subsidiaries or any of the WWC
Companies existing on the Effective Date, or with respect to
prohibitions against other encumbrances on specific Property
encumbered to secure payment of particular Indebtedness (which
Indebtedness related solely to such specific Property, and
improvements and accretions thereto, and is otherwise permitted
hereby), the Borrower will not, and will not permit any of its
Subsidiaries to, enter into or suffer to exist any agreement
(other than this Agreement and the Credit Documents) (i)
prohibiting the creation or assumption of any Lien upon the
Properties of the Borrower or any of its Subsidiaries, whether
now owned or hereafter acquired, or (ii) requiring an obligation
to be secured if some other obligation is or becomes secured.
Section 6.11. Other Businesses. The Borrower will not, and
will not permit the Guarantors to, substantially alter the
character of their respective businesses from that conducted on
the Effective Date.
Section 6.12. Debt Service Ratio. The Borrower will not
permit its ratio, determined as of the last day of each fiscal
quarter commencing with the quarter ending December 31, 1995, of
(i) Adjusted Consolidated EBITDA for the Rolling Period ending on
such date to (ii) Adjusted Consolidated Debt Service during such
Rolling Period to be less than (A) for the quarters ending
December 31, 1995, March 31, 1996, June 30, 1996 and September
30, 1996, 1.8 to 1.0, and (B) for the quarter ending December 31,
1996 and each quarter thereafter, 2.0 to 1.0.
Section 6.13. Net Worth. The Borrower will not permit its
Consolidated Net Worth at any time to be less than an amount
equal to the sum of (a) $200,000,000 plus (b) 50% of cumulative
Consolidated Net Income of the Borrower (without deduction for
losses) for the period from December 31, 1994 to the date of
determination plus (c) 100% of the net cash proceeds of any
issuance of equity by the Borrower after the Effective Date.
Section 6.14. Leverage. The Borrower will not permit its
ratio of Adjusted Consolidated Indebtedness to Adjusted
Consolidated Net Worth at any time to exceed 2.00 to 1.00.
Section 6.15. Debt to EBITDA. The Borrower will not permit
its ratio, determined as of the last day of each fiscal quarter
commencing with the quarter ending December 31, 1995, of (i)
Adjusted Consolidated Indebtedness (but excluding contingent
Indebtedness for letters of credit) for the Rolling Period ending
on such date to (ii) Adjusted Consolidated EBITDA during such
Rolling Period to be less than (A) for the quarters ending
December 31, 1995, March 31, 1996, June 30, 1996 and September
30, 1996, 5.0 to 1.0 (with EBITDA for these periods to exclude
WWC losses prior to the Merger Effective Time), (B) for the
quarters ending December 31, 1996, March 31, 1997, June 30, 1997
and September 30, 1997, 3.25 to 1.0, and (C) for the quarter
ending December 31, 1997 and each quarter thereafter, 2.75 to
1.0.
Section 6.16. Acquisition Company Business. The Borrower
will not permit the Acquisition Company (a) to incur any
Indebtedness other than Indebtedness to the Borrower representing
the loan by the Borrower of the proceeds of the Advances for the
Acquisition Company to use as permitted by this Agreement, (b) to
own any Property other than the WWC Shares prior to the Merger
Effective Time, or (c) to conduct any business or operations
prior to the Merger Effective Time other than borrowing the
proceeds of Advances from the Borrower and purchasing and owning
the WWC Shares pursuant to the Tender Offer.
ARTICLE VII
REMEDIES
Section 7.01. Events of Default. The occurrence of any of
the following events shall constitute an "Event of Default" under
any Credit Document:
(a) Payment. The Borrower shall fail to pay any principal of
any Note or any Reimbursement Obligation when the same becomes
due and payable as set forth in this Agreement, or any interest
on any Note or any fee or other amount payable hereunder or under
any other Credit Document within five days after the same becomes
due and payable;
(b) Representation and Warranties. Any representation or
warranty made or deemed to be made (i) by the Borrower in this
Agreement or in any other Credit Document, (ii) by the Borrower
(or any of its officers) in connection with this Agreement or any
other Credit Document, or (iii) by any Subsidiary in any Credit
Document shall prove to have been incorrect in any material
respect when made or deemed to be made;
(c) Covenant Breaches. (i) The Borrower shall fail to
perform or observe any covenant contained in Sections 5.03 or
5.04, or Section 5.06(e), (f), (g), or (h), or Article VI of this
Agreement or the Borrower shall fail to perform or observe or
shall fail to cause any Subsidiary or Guarantor to perform or
observe its covenant in Section 5.4 of the Security Agreements or
(ii) the Borrower or any Guarantor shall fail to perform or
observe any term or covenant set forth in any Credit Document
which is not covered by clause (i) above or any other provision
of this Section 7.01 if such failure shall remain unremedied for
30 days after the earlier of the date written notice of such
default shall have been given to the Borrower or such Guarantor
by the Agent or any Bank or the date a Responsible Officer of the
Borrower or any Guarantor has actual knowledge of such default;
(d) Cross-Defaults. (i) The Borrower or any its Subsidiaries
shall fail to pay any principal of or premium or interest on its
Indebtedness which is outstanding in a principal amount of at
least $10,000,000 individually or when aggregated with all such
Indebtedness of the Borrower or its Subsidiaries so in default
(but excluding Indebtedness evidenced by the Notes) when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness; (ii) any other event shall occur or condition shall
exist under any agreement or instrument relating to Indebtedness
which is outstanding in a principal amount of at least
$10,000,000 individually or when aggregated with all such
Indebtedness of the Borrower and its Subsidiaries so in default,
and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or (iii) any
such Indebtedness shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof;
(e) Insolvency. The Borrower or any of its Subsidiaries
shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors;
or any proceeding shall be instituted by or against the Borrower
or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against the Borrower or any such Subsidiary, either such
proceeding shall remain undismissed for a period of 30 days or
any of the actions sought in such proceeding shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
paragraph (e);
(f) Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (reduced for purposes of this
paragraph for the amount in respect of such judgment or order
that a reputable insurer has acknowledged being payable under any
valid and enforceable insurance policy) shall be rendered against
the Borrower or any of its Subsidiaries which, within 30 days
from the date such judgment is entered, shall not have been
discharged or execution thereof stayed pending appeal;
(g) ERISA. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is likely
to result in the termination of such Plan for purposes of
Title IV of ERISA, unless such Reportable Event, proceedings or
appointment are being contested by the Borrower in good faith and
by appropriate proceedings, (iv) any Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any member of
the Controlled Group shall incur any liability in connection with
a withdrawal from a Multiemployer Plan or the insolvency (within
the meaning of Section 4245 of ERISA) or reorganization (within
the meaning of Section 4241 of ERISA) of a Multiemployer Plan,
unless such liability is being contested by the Borrower in good
faith and by appropriate proceedings, or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if
any, could subject the Borrower or any Guarantor to any tax,
penalty or other liabilities in the aggregate exceeding
$10,000,000;
(h) Guaranty. Any provision of the Guaranty requiring the
payment of the Guaranteed Obligations (as defined in the
Guaranty) shall for any reason cease to be valid and binding on
any Guarantor or any Guarantor shall so state in writing;
(i) Default Under Headquarters Credit Agreement. The
occurrence of an "Event of Default", as defined in the
Headquarters Credit Agreement, unless such "Event of Default" has
been waived in accordance with the terms of such Headquarters
Credit Agreement;
(j) Merger. The Merger shall not occur in accordance with
the terms of the Acquisition Documents and the Agent shall not
have received an opinion of the Borrower's general counsel to the
effect that the Merger is effective and the Borrower Security
Agreement creates a first priority security interest in the WWC
Shares to secure the Obligations prior to the Term Commitment
Expiration Date; or
(k) Invalidity of Subordination Provisions. The
subordination provisions of the Subordinated Debentures shall be
invalidated or otherwise cease to be in full force and effect.
Section 7.02. Optional Acceleration of Maturity. If any
Event of Default (other than an Event of Default pursuant to
paragraph (e) of Section 7.01) shall have occurred and be
continuing, then, and in any such event,
(a) the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower,
declare the obligation of each Bank to make Advances and the
obligation of each Issuing Bank to issue, increase, or extend
Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Banks, by notice to the Borrower,
declare the Notes, all interest thereon, the Letter of Credit
Obligations, and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such
interest, all such Letter of Credit Obligations and all such
amounts shall become and be forthwith due and payable in full,
without presentment, demand, protest or further notice of any
kind (including, without limitation, any notice of intent to
accelerate or notice of acceleration), all of which are hereby
expressly waived by the Borrower, and
(b) the Borrower shall, on demand of the Agent at the request
or with the consent of the Majority Banks, deposit with the Agent
into the Cash Collateral Account an amount of cash equal to the
Letter of Credit Exposure as security for the Obligations to the
extent the Letter of Credit Obligations are not otherwise paid at
such time.
Section 7.03. Automatic Acceleration of Maturity. If any
Event of Default pursuant to paragraph (e) of Section 7.01 shall
occur,
(a) the obligation of each Bank to make Advances and the
obligation of each Issuing Bank to issue, increase, or extend
Letters of Credit shall immediately and automatically be
terminated and the Notes, all interest on the Notes, all Letter
of Credit Obligations, and all other amounts payable under this
Agreement shall immediately and automatically become and be due
and payable in full, without presentment, demand, protest or any
notice of any kind (including, without limitation, any notice of
intent to accelerate or notice of acceleration), all of which are
hereby expressly waived by the Borrower and
(b) to the extent permitted by law or court order, the
Borrower shall deposit with the Agent into the Cash Collateral
Account an amount of cash equal to the outstanding Letter of
Credit Exposure as security for the Obligations to the extent the
Letter of Credit Obligations are not otherwise paid at such time.
Section 7.04. Cash Collateral Account.
(a) Pledge. The Borrower hereby pledges, and grants to the
Agent for the benefit of the Banks, a security interest in all
funds held in the Cash Collateral Account from time to time and
all proceeds thereof, as security for the payment of the
Obligations, including without limitation all Letter of Credit
Obligations owing to any Issuing Bank or any other Bank due and
to become due from the Borrower to any Issuing Bank or any other
Bank under this Agreement in connection with the Letters of
Credit.
(b) Application against Letter of Credit Obligations. The
Agent may, at any time or from time to time apply funds then held
in the Cash Collateral Account to the payment of any Letter of
Credit Obligations owing to any Issuing Bank, in such order as
the Agent may elect, as shall have become or shall become due and
payable by the Borrower to any Issuing Bank under this Agreement
in connection with the Letters of Credit.
(c) Duty of Care. The Agent shall exercise reasonable care
in the custody and preservation of any funds held in the Cash
Collateral Account and shall be deemed to have exercised such
care if such funds are accorded treatment substantially
equivalent to that which the Agent accords its own property, it
being understood that the Agent shall not have any responsibility
for taking any necessary steps to preserve rights against any
parties with respect to any such funds.
Section 7.05. Non-exclusivity of Remedies. No remedy
conferred upon the Agent or the Banks is intended to be exclusive
of any other remedy, and each remedy shall be cumulative of all
other remedies existing by contract, at law, in equity, by
statute or otherwise.
Section 7.06. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making
of the request or the granting of the consent, if any, specified
by Section 7.02 to authorize the Agent to declare the Notes and
any other amount payable hereunder due and payable pursuant to
the provisions of Section 7.02 or the automatic acceleration of
the Notes and all amounts payable under this Agreement pursuant
to Section 7.03, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebted
ness at any time owing by such Bank to or for the credit or the
account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement, the
Note held by such Bank, and the other Credit Documents,
irrespective of whether or not such Bank shall have made any
demand under this Agreement, such Note, or such other Credit
Documents, and although such obligations may be unmatured. Each
Bank agrees to promptly notify the Borrower after any such
set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this
Section are in addition to any other rights and remedies
(including, without limitation, other rights of set-off) which
such Bank may have.
ARTICLE VIII
AGENCY AND ISSUING BANK PROVISIONS
Section 8.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and
the other Credit Documents as are delegated to the Agent by the
terms hereof and of the other Credit Documents, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or any other
Credit Document (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Banks, and such instructions shall be binding upon all
Banks and all holders of Notes; provided, however, that the Agent
shall not be required to take any action which exposes the Agent
to personal liability or which is contrary to this Agreement, any
other Credit Document, or applicable law.
Section 8.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken (including the
Agent's own negligence) by it or them under or in connection with
this Agreement or the other Credit Documents, except for its or
their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent:
(a) may treat the payee of any Note as the holder thereof until
the Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the
Agent; (b) may consult with legal counsel (including counsel for
the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement or
the other Credit Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or
any other Credit Document on the part of the Borrower or its
Subsidiaries or to inspect the property (including the books and
records) of the Borrower or its Subsidiaries; (e) shall not be
responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Credit Document; and (f) shall incur
no liability under or in respect of this Agreement or any other
Credit Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
Section 8.03. The Agent and Its Affiliates. With respect to
its Commitment, the Advances made by it and the Notes issued to
it, the Agent shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though
it were not the Agent. The term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include the Agent in its
individual capacity. The Agent and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of,
and generally engage in any kind of business with, the Borrower
or any of its Subsidiaries, and any Person who may do business
with or own securities of the Borrower or any such Subsidiary,
all as if the Agent were not an agent hereunder and without any
duty to account therefor to the Banks.
Section 8.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent,
the Documentation Agent or any other Bank and based on the
financial statements referred to in Section 4.05 and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent, the Documentation Agent, or any
other 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 this
Agreement.
Section 8.05. Indemnification. The Banks severally agree to
indemnify the Agent, the Documentation Agent, and each Issuing
Bank (to the extent not reimbursed by the Borrower), according to
their respective Pro Rata Shares from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent, the Documentation Agent, or such
Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent, the
Documentation Agent, or such Issuing Bank under this Agreement or
any other Credit Document (including the Agent's, the
Documentation Agent's, or such Issuing Bank's own negligence),
provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
the Agent's, the Documentation Agent's, and such Issuing Bank's
gross negligence or willful misconduct. Without limitation of
the foregoing, each Bank agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent in connection with
the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement or
any other Credit Document, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
Section 8.06. Successor Agent and Issuing Banks. The Agent
or any Issuing Bank may resign at any time by giving written
notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Majority Banks upon
receipt of written notice from the Majority Banks to such effect.
Upon receipt of notice of any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent
or Issuing Bank with, if an Event of Default has not occurred and
is not continuing, the consent of the Borrower, which consent
shall not be unreasonably withheld. If no successor Agent or
Issuing Bank shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring
Agent's or Issuing Bank's giving of notice of resignation or the
Majority Banks' removal of the retiring Agent or Issuing Bank,
then the retiring Agent or Issuing Bank may, on behalf of the
Banks and the Borrower, appoint a successor Agent or Issuing
Bank, which shall be a commercial bank meeting the financial
requirements of an Eligible Assignee and, in the case of an
Issuing Bank, a Bank. Upon the acceptance of any appointment as
Agent or Issuing Bank by a successor Agent or Issuing Bank, such
successor Agent or Issuing Bank shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties
of the retiring Agent or Issuing Bank, and the retiring Agent or
Issuing Bank shall be discharged from its duties and obligations
under this Agreement and the other Credit Documents, except that
the retiring Issuing Bank shall remain an Issuing Bank with
respect to any Letters of Credit issued by such Issuing Bank and
outstanding on the effective date of its resignation or removal
and the provisions affecting such Issuing Bank with respect to
such Letters of Credit shall inure to the benefit of the retiring
Issuing Bank until the termination of all such Letters of Credit.
After any retiring Agent's or Issuing Bank's resignation or
removal hereunder as Agent or Issuing Bank, the provisions of
this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent or Issuing
Bank under this Agreement and the other Credit Documents.
Section 8.07. Managing Agent. The Managing Agent shall have
no duties, obligations, or liabilities in its capacity as
Managing Agent.
Section 8.08. Documentation Agent. The Documentation Agent
shall have no duties, obligations, or liabilities in its capacity
as Documentation Agent.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes, or any other Credit
Document, nor consent to any departure by the Borrower or any
Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Banks and the
Borrower, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given; provided, however, that no amendment shall increase the
Commitment of any Bank without the written consent of such Bank,
and no amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (a) increase
the aggregate Commitments of the Banks, (b) reduce the principal
of, or interest on, the Notes or any fees or other amounts
payable hereunder or under any other Credit Document,
(c) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable here
under, (d) change the number of Banks which shall be required for
the Banks or any of them to take any action hereunder or under
any other Credit Document, (e) amend Section 2.16 or this
Section 9.01, (f) release any Guarantor from its obligations
under the Guaranty, (g) release any Lien in favor of the Agent
for the benefit of the Banks on Property of the Borrower or
Guarantors, except as contemplated by the Security Agreements, or
(h) amend the definition of "Majority Banks"; and provided,
further, that (A) no amendment, waiver or consent shall, unless
in writing and signed by the Agent, the Managing Agent, the
Documentation Agent, or any Issuing Bank in addition to the Banks
required above to take such action, affect the rights or duties
of the Agent, the Managing Agent, the Documentation Agent, or
such Issuing Bank, as the case may be, under this Agreement or
any other Credit Document, and (B) no waiver or consent to
departure from any of the conditions specified in Section 3.01 or
3.02 or 3.03 shall be effective unless in writing and signed by
the Majority Banks and the Agent.
Section 9.02. Notices, Etc. All notices and other
communications shall be in writing (including telecopy or telex)
and mailed, telecopied, telexed, hand delivered or delivered by a
nationally recognized overnight courier, if to the Borrower, at
its address at 3809 Old Greenwood Road, Fort Smith, Arkansas
72903, Attention: Chief Financial Officer, with a copy to the
General Counsel (telecopy: (501) 785-6124; telephone: (501)
785-6000); if to any Bank at its Domestic Lending Office
specified opposite its name on Schedule 9.02; if to the Agent or
to Societe Generale in its capacity as Managing Agent or as an
Issuing Bank, at its address at 4800 Trammell Crow Center, 2001
Ross Avenue, Dallas, Texas 75201, Attention: Matthew C.
Flanigan, First Vice President and Manager and Ms. Terri Jones,
Operations (telecopy: (214) 754-0171; telephone: (214)
979-2777); if to NationsBank of Texas, N.A., in its capacity as
an Issuing Bank, at its office at 901 Main Street, 67th Floor,
Dallas, Texas 75202, Attention: Bianca Hemmen, Senior Vice
President (telecopy: (214)508-0980; telephone: (214)508-0963);
and if a Notice of Borrowing or a Notice of Conversion or
Continuation to the Agent at the Domestic Lending Office for the
Agent specified opposite its name on Schedule 9.02 or, as to each
party, at such other address or teletransmission number as shall
be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
telecopied, telexed or hand delivered or delivered by overnight
courier, be effective three days after deposited in the mails,
when telecopy transmission is completed, when confirmed by telex
answer-back or when delivered, respectively, except that notices
and communications to the Agent pursuant to Article II or VIII
shall not be effective until received by the Agent.
Section 9.03. No Waiver; Remedies. No failure on the part of
any Bank, the Agent, or any Issuing Bank to exercise, and no
delay in exercising, any right hereunder or under any Note shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies
provided in this Agreement and the other Credit Documents are
cumulative and not exclusive of any remedies provided by law.
Section 9.04. Costs and Expenses. The Borrower agrees to pay
on demand all out-of-pocket costs and expenses of the Agent in
connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the
Notes and the other Credit Documents including, without
limitation, (a) the reasonable fees and out-of-pocket expenses of
Bracewell & Patterson, L.L.P., counsel for the Agent, and with
respect to advising the Agent as to its rights and
responsibilities under this Agreement, and (b) all reasonable
out-of-pocket costs and expenses, if any, of Agent, the
Documentation Agent, each Issuing Bank, and each Bank (including,
without limitation, reasonable counsel fees and expenses of the
Agent, the Documentation Agent, such Issuing Bank, and each Bank)
in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other
Credit Documents.
Section 9.05. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and
the Agent, and when the Agent shall have, as to each Bank, either
received a counterpart hereof executed by such Bank or been
notified by such Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent, the Documentation Agent, each Issuing Bank,
and each Bank and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights
or delegate its duties under this Agreement or any interest in
this Agreement without the prior written consent of each Bank.
Section 9.06. Bank Assignments and Participations.
(a) Assignments. Any Bank may assign to one or more banks or
other entities all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it, the Notes
held by it, and the participation interest in the Letter of
Credit Obligations held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying,
percentage of all of such Bank's rights and obligations under
this Agreement and shall involve a ratable assignment of such
Bank's Revolving Commitment and its Term Commitment (if prior to
termination of the Term Commitments) and such Bank's Revolving
Advances and Term Advances, (ii) the amount of the resulting
Commitment and Advances of the assigning Bank (unless it is
assigning all its Commitment) and the assignee Bank pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $10,000,000 and shall be an integral multiple of
$1,000,000, (iii) each such assignment shall be to an Eligible
Assignee, (iv) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with the Notes
subject to such assignment, and (v) each Eligible Assignee (other
than the Eligible Assignee of the Agent or the Documentation
Agent or an Eligible Assignee which is an Affiliate of the
assigning Bank) shall pay to the Agent a $2,500 administrative
fee. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least three
Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto for all purposes and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (B) such Bank thereunder
shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of such Bank's rights and
obligations under this Agreement, such Bank shall cease to be a
party hereto). Notwithstanding anything herein to the contrary,
any Bank may assign, as collateral or otherwise, any of its
rights under the Credit Documents to any Federal Reserve Bank.
(b) Term of Assignments. By executing and delivering an
Assignment and Acceptance, the Bank thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such Bank makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency of value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such Bank makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the Guarantors or the
performance or observance by the Borrower or the Guarantors of
any of their obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in
Section 4.05 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Agent, such
Bank or any other 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 this Agreement; (v) such assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to
be performed by it as a Bank.
(c) The Register. The Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the
Commitments of, and principal amount of the Advances owing to,
each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent, the Issuing Banks,
and the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or
any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Procedures. Upon its receipt of an Assignment and
Acceptance executed by a Bank and an Eligible Assignee, together
with the Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of the attached Exhibit H, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice thereof to
the Borrower. Within five Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Notes, a new
Revolving Note and new Term Note payable to the order of such
Eligible Assignee in amount equal to, respectively, the Revolving
Commitment and the Term Commitment (or if after the Term
Commitment Expiration Date, the outstanding Term Advances)
assumed by it pursuant to such Assignment and Acceptance, and if
the assigning Bank has retained any Commitment hereunder, a new
Revolving Note and new Term Note payable to the order of such
Bank in an amount equal to, respectively, the Revolving Commitment
and the Term Commitment (or if after the Term Commitment
Expiration Date, the outstanding Term Advances) retained by
it hereunder. Such new Notes shall be dated the effective
date of such Assignment and Acceptance and shall otherwise
be in substantially the form of the attached Exhibits A and B, as
appropriate.
(e) Participations. Each Bank may sell participations to
one or more banks or other entities in or to all or a portion of
its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the
Advances owing to it, its participation interest in the Letter of
Credit Obligations, and the Notes held by it); provided, however,
that (i) such Bank's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) such Bank shall remain the holder of any
such Note for all purposes of this Agreement, (iv) the Borrower,
the Agent, and the Issuing Banks and the other Banks shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement,
(v) such Bank shall not require the participant's consent to any
matter under this Agreement, except for change in the principal
amount of any Note in which the participant has an interest,
reductions in fees or interest, or extending the Maturity Date or
the final scheduled maturity date of Term Advances pursuant to
Section 2.05(b), and (vi) such Bank shall give prompt notice to
the Borrower of each such participation sold by such Bank. The
Borrower hereby agrees that participants shall have the same
rights under Sections 2.08, 2.09, 2.11(c), and 9.07 hereof as the
Bank to the extent of their respective participations.
(f) Confidentiality. Each Bank may furnish any
information concerning the Borrower and its Subsidiaries in the
possession of such Bank from time to time to assignees and
participants (including prospective assignees and participants);
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any confidential
information relating to the Borrower and its Subsidiaries
received by it from such Bank. Such Bank shall promptly deliver
a signed copy of any such confidentiality agreement to the
Borrower.
Section 9.07. Indemnification. The Borrower shall indemnify
the Agent, the Documentation Agent, the Banks (including any
lender which was a Bank hereunder prior to any full assignment of
its Commitment), the Issuing Banks, and each affiliate thereof
and their respective directors, officers, employees and agents
from, and discharge, release, and hold each of them harmless
against, any and all losses, liabilities, claims or damages to
which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from
(i) any actual or proposed use by the Borrower or any Affiliate
of the Borrower of the proceeds of any Advance, (ii) any breach
by the Borrower or any Guarantor of any provision of this
Agreement or any other Credit Document, (iii) any investigation,
litigation or other proceeding (including any threatened
investigation or proceeding) relating to the foregoing, or
(iv) any Environmental Claim or requirement of Environmental Laws
concerning or relating to the present or previously-owned or
operated properties, or the operations or business, of the
Borrower or any of its Subsidiaries, and the Borrower shall
reimburse the Agent, the Documentation Agent, each Issuing Bank,
and each Bank, and each affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any
reasonable out-of-pocket expenses (including legal fees) incurred
in connection with any such investigation, litigation or other
proceeding; and expressly including any such losses, liabilities,
claims, damages, or expense incurred by reason of the Person
being indemnified's own negligence, but excluding any such
losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the
Person to be indemnified.
Section 9.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 9.09. Survival of Representations, etc. All
representations and warranties contained in this Agreement or
made in writing by or on behalf of the Borrower in connection
herewith shall survive the execution and delivery of this
Agreement and the Credit Documents, the making of the Advances
and any investigation made by or on behalf of the Banks, none of
which investigations shall diminish any Bank's right to rely on
such representations and warranties. All obligations of the
Borrower provided for in Sections 2.08, 2.09, 2.11(c), and 9.07
shall survive any termination of this Agreement and repayment in
full of the Obligations.
Section 9.10. Severability. In case one or more provisions
of this Agreement or the other Credit Documents shall be
invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not be
affected or impaired thereby.
Section 9.11. Business Loans. The Borrower warrants and
represents that the Advances evidenced by the Notes are and shall
be for business, commercial, investment or other similar purposes
and not primarily for personal, family, household or agricultural
use, as such terms are used in Chapter One ("Chapter One") of the
Texas Credit Code. At all such times, if any, as Chapter One
shall establish a Maximum Rate, the Maximum Rate shall be the
"indicated rate ceiling" (as such term is defined in Chapter One)
from time to time in effect.
Section 9.12. Usury Not Intended. It is the intent of the
Borrower and each Bank in the execution and performance of this
Agreement and the other Credit Documents to contract in strict
compliance with applicable usury laws, including conflicts of law
concepts, governing the Advances of each Bank including such
applicable laws of the State of Texas and the United States of
America from time to time in effect. In furtherance thereof, the
Banks and the Borrower stipulate and agree that none of the terms
and provisions contained in this Agreement or the other Credit
Documents shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money,
interest at a rate in excess of the Maximum Rate and that for
purposes hereof "interest" shall include the aggregate of all
charges which constitute interest under such laws that are
contracted for, charged or received under this Agreement; and in
the event that, notwithstanding the foregoing, under any
circumstances the aggregate amounts taken, reserved, charged,
received or paid on the Advances, include amounts which by
applicable law are deemed interest which would exceed the Maximum
Rate, then such excess shall be deemed to be a mistake and each
Bank receiving same shall credit the same on the principal of its
Notes (or if such Notes shall have been paid in full, refund said
excess to the Borrower). In the event that the maturity of the
Notes is accelerated by reason of any election of the holder
thereof resulting from any Event of Default under this Agreement
or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may
never include more than the Maximum Rate and excess interest, if
any, provided for in this Agreement or otherwise shall be
cancelled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall be credited on the
applicable Notes (or, if the applicable Notes shall have been
paid in full, refunded to the Borrower). The provisions of this
Section shall control over all other provisions of this Agreement
or the other Credit Documents which may be in apparent conflict
herewith.
Section 9.13. Governing Law. This Agreement, the Notes and
the other Credit Documents shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
Section 9.14. Consent to Jurisdiction. The Borrower hereby
irrevocably submits to the jurisdiction of any Texas state or
federal court sitting in Dallas, Texas in any action or
proceeding arising out of or relating to this Agreement, the
Notes and the other Credit Documents, and the Borrower hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such court. The
Borrower hereby irrevocably waives, to the fullest extent it may
effectively do so, any right it may have to the defense of an
inconvenient forum to the maintenance of such action or
proceeding. The Borrower hereby agrees that service of copies of
the summons and complaint and any other process which may be
served in any such action or proceeding may be made by mailing or
delivering a copy of such process to the Borrower at its address
specified in Section 9.02. The Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section
shall affect the rights of any Bank, the Agent, or the
Documentation Agent to serve legal process in any other manner
permitted by the law or affect the right of any Bank, the Agent
or the Documentation Agent to bring any action or proceeding
against the Borrower or its Property in the courts of any other
jurisdiction.
Section 9.15 Banks Not in Control. None of the covenants or
other provisions contained in the Credit Documents shall or shall
be deemed to, give the Banks the rights or power to exercise
control over the affairs and/or management of the Borrower, any
of its Subsidiaries or any Guarantor, the power of the Banks
being limited to the right to exercise the remedies provided in
the Credit Documents; provided, however, that if any Bank becomes
the owner of any stock, or other equity interest in, any Person
whether through foreclosure or otherwise, such Bank shall be
entitled (subject to requirements of law) to exercise such legal
rights as it may have by being owner of such stock, or other
equity interest in, such Person.
Section 9.16. ENTIRE AGREEMENT. PURSUANT TO SECTION 26.02 OF
THE TEXAS BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH
THE AMOUNT INVOLVED IN THE LOAN AGREEMENT EXCEEDS $50,000 IN
VALUE IS NOT ENFORCEABLE UNLESS THE LOAN AGREEMENT IS IN WRITING
AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S AUTHORIZED
REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT
SUBJECT TO THE PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY
FROM THE WRITTEN LOAN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN
AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS
DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXECUTED as of the date first referenced above.
BORROWER:
ARKANSAS BEST CORPORATION
Donald L. Neal
Senior Vice President and
Chief Financial Officer
AGENT:
SOCIETE GENERALE,
SOUTHWEST AGENCY
By:
Title:
MANAGING AGENT:
SOCIETE GENERALE,
SOUTHWEST AGENCY
By:
Title:
DOCUMENTATION AGENT:
NATIONSBANK OF TEXAS,
N.A.
By:
Title:
BANKS:
SOCIETE GENERALE,
SOUTHWEST AGENCY
By:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:
Title:
ABN AMRO BANK N.V.,
HOUSTON AGENCY
By:
Title:
By:
Title:
BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By:
Title:
FIRST NATIONAL BANK OF
CHICAGO
By:
Title:
DEPOSIT GUARANTY NATIONAL
BANK
By:
Title:
PNC BANK, NATIONAL
ASSOCIATION
Stephen V. Prostor
Assistant Vice President
ROYAL BANK OF CANADA
By:
Title:
WELLS FARGO BANK
By:
Title:
THE BANK OF TOKYO TRUST
COMPANY
By:
Title:
FIRST INTERSTATE BANK OF
TEXAS, N.A.
By:
Title:
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMTED, NEW YORK
BRANCH
By:
Title:
U.S. NATIONAL BANK OF
OREGON
By:
Title: