Execution Copy
$346,971,321
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 21, 1996
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. . . . . . . 23
Section 1.03. Accounting Terms; Changes in GAAP. . . . 23
Section 1.04. Types of Advances. . . . . . . . . . . . 24
Section 1.05. Miscellaneous. . . . . . . . . . . . . . 24
ARTICLE II
THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01. The Advances; Extension of Maturity Date. 24
Section 2.02. Method of Borrowing. . . . . . . . . . . 24
Section 2.03. Fees . . . . . . . . . . . . . . . . . . 28
Section 2.04. Reduction of the Revolving Commitments . 28
Section 2.05. Repayment of Advances. . . . . . . . . . 29
Section 2.06. Interest . . . . . . . . . . . . . . . . 30
Section 2.07. Prepayments. . . . . . . . . . . . . . . 31
Section 2.08. Breakage Costs . . . . . . . . . . . . . 33
Section 2.09. Increased Costs. . . . . . . . . . . . . 34
Section 2.10. Payments and Computations. . . . . . . . 35
Section 2.11. Taxes. . . . . . . . . . . . . . . . . . 37
Section 2.12. Illegality . . . . . . . . . . . . . . . 38
Section 2.13. Letters of Credit. . . . . . . . . . . . 39
Section 2.14. Determination of Borrowing Base. . . . . 42
Section 2.15. Bank Replacement . . . . . . . . . . . . 43
Section 2.16. Sharing of Payments, Etc.. . . . . . . . 44
Section 2.17. Collateral.. . . . . . . . . . . . . . . 44
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Effectiveness
of this Agreement 46
Section 3.02. Conditions Precedent for each Borrowing
or Letter of Credit 47
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence; Subsidiaries. . . . 48
Section 4.02. Corporate Power. . . . . . . . . . . . . 48
Section 4.03. Authorization and Approvals. . . . . . . 49
Section 4.04. Enforceable Obligations. . . . . . . . . 49
Section 4.05. Financial Statements . . . . . . . . . . 49
Section 4.06. True and Complete Disclosure . . . . . . 49
Section 4.07. Litigation . . . . . . . . . . . . . . . 50
Section 4.08. Use of Proceeds. . . . . . . . . . . . . 50
Section 4.09. Investment Company Act . . . . . . . . . 50
Section 4.10. Taxes. . . . . . . . . . . . . . . . . . 50
Section 4.11. Pension Plans. . . . . . . . . . . . . . 51
Section 4.12. Condition of Property; Casualties. . . . 51
Section 4.13. Insurance. . . . . . . . . . . . . . . . 51
Section 4.14. No Burdensome Restrictions; No Defaults. 52
Section 4.15. Environmental Condition. . . . . . . . . 52
Section 4.16. Permits, Licenses, etc.. . . . . . . . . 53
Section 4.17. Existing Mortgage Debt . . . . . . . . . 53
Section 4.18. Title; Encumbrances. . . . . . . . . . . 53
Section 4.19. Leasing Arrangements . . . . . . . . . . 53
Section 4.20. Cash Management System . . . . . . . . . 53
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01. Compliance with Laws, Etc. . . . . . . . 54
Section 5.02. Insurance. . . . . . . . . . . . . . . . 54
Section 5.03. Preservation of Corporate Existence, Etc. 55
Section 5.04. Payment of Taxes, Etc. . . . . . . . . . 55
Section 5.05. Visitation Rights. . . . . . . . . . . . 55
Section 5.06. Reporting Requirements . . . . . . . . . 56
Section 5.07. Maintenance of Property. . . . . . . . . 59
Section 5.08. Post-Closing Real Property Matters . . . 59
ARTICLE VI
NEGATIVE COVENANTS
Section 6.01. Liens, Etc.. . . . . . . . . . . . . . . 60
Section 6.02. Amendment of Material Documents. . . . . 61
Section 6.03. Agreements Restricting Distributions
From Subsidiaries 61
Section 6.04. Merger or Consolidation; Asset Sales . . 61
Section 6.05. Restricted Payments. . . . . . . . . . . 62
Section 6.06. Investments, Loans, Advances . . . . . . 62
Section 6.07. Affiliate Transactions . . . . . . . . . 63
Section 6.08. Sale and Leaseback . . . . . . . . . . . 63
Section 6.09. Maintenance of Ownership of Subsidiaries 64
Section 6.10. No Further Negative Pledges. . . . . . . 64
Section 6.11. Other Businesses . . . . . . . . . . . . 64
Section 6.12. Debt Service Ratio . . . . . . . . . . . 64
Section 6.13. Net Worth. . . . . . . . . . . . . . . . 64
Section 6.14. Minimum EBITDA . . . . . . . . . . . . . 64
Section 6.15. Capital Expenditures . . . . . . . . . . 65
Section 6.16. Indebtedness . . . . . . . . . . . . . . 65
Section 6.17. Bank Accounts. . . . . . . . . . . . . . 66
ARTICLE VII
REMEDIES
Section 7.01. Events of Default. . . . . . . . . . . . 67
Section 7.02. Optional Acceleration of Maturity. . . . 69
Section 7.03. Automatic Acceleration of Maturity . . . 69
Section 7.04. Cash Collateral Account. . . . . . . . . 70
Section 7.05. Non-exclusivity of Remedies. . . . . . . 70
Section 7.06. Right of Set-off . . . . . . . . . . . . 70
ARTICLE VIII
AGENCY AND ISSUING BANK PROVISIONS
Section 8.01. Authorization and Action . . . . . . . . 71
Section 8.02. Agent's Reliance, Etc. . . . . . . . . . 71
Section 8.03. The Agent and Its Affiliates . . . . . . 72
Section 8.04. Bank Credit Decision . . . . . . . . . . 72
Section 8.05. Indemnification. . . . . . . . . . . . . 72
Section 8.06. Successor Agent and Issuing Banks. . . . 73
Section 8.07. Managing Agent . . . . . . . . . . . . . 73
Section 8.08. Documentation Agent. . . . . . . . . . . 73
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. . . . . . . . . . . . . 73
Section 9.02. Notices, Etc.. . . . . . . . . . . . . . 74
Section 9.03. No Waiver; Remedies. . . . . . . . . . . 75
Section 9.04. Costs and Expenses . . . . . . . . . . . 75
Section 9.05. Binding Effect . . . . . . . . . . . . . 75
Section 9.06. Bank Assignments and Participations. . . 75
Section 9.07. Indemnification. . . . . . . . . . . . . 78
Section 9.08. Execution in Counterparts. . . . . . . . 78
Section 9.09. Survival of Representations, etc . . . . 78
Section 9.10. Severability . . . . . . . . . . . . . . 79
Section 9.11. Business Loans . . . . . . . . . . . . . 79
Section 9.12. Usury Not Intended . . . . . . . . . . . 79
Section 9.13. Governing Law. . . . . . . . . . . . . . 79
Section 9.14. Consent to Jurisdiction. . . . . . . . . 79
Section 9.15 Banks Not in Control. .. . . . . . . . . 80
Section 9.16. Headings Descriptive . . . . . . . . . . 80
Section 9.17. WAIVERS OF JURY TRIAL. . . . . . . . . . 80
Section 9.18. ENTIRE AGREEMENT . . . . . . . . . . . . 80
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 - Form of Borrower's/Guarantors' Counsel Opinion
Exhibit J - Form of Agent's Counsel Opinion
Exhibit K - Form of Compliance Certificate
Exhibit L-1 - Form of Borrowing Base Certificate
Exhibit L-2 - Form of Interim Receivables Report
Exhibit L-3 - Form of Property Adjustment Report
Exhibit M - Form of First Lienholder Consent
Exhibit N - Form of Bank Account Letter
Exhibit O - Form of Master Subordination and Attornment Agreement
Exhibit P - Form of Subordination, Non-Disturbance and Attornment
Agreement
Exhibit Q - Form of Mortgage
Exhibit R - Form of Intercreditor Agreement
Exhibit S - Form of Flash Report
SCHEDULES:
Schedule 1.01(a) - Revolving Commitments and Outstanding Term Advances
Schedule 1.01(b) - Letters of Credit Outstanding
Schedule 1.01(c) - Real Property Subject to First Priority
Lien in favor of the Agent
Schedule 1.01(d) - Excess Revenue Equipment
Schedule 1.01(e) - Concentration Bank Accounts
Schedule 2.17 - Locations of Certificates of Title
Schedule 4.01 - Subsidiaries
Schedule 4.07 - Litigation
Schedule 4.10 - Tax Disputes
Schedule 4.18 - Work in Progress on Eligible Real Property
Schedule 4.19(a) - Lessee Arrangements
Schedule 4.19(b) - Lessor Arrangements
Schedule 5.08(a) - Appraisal Program
Schedule 5.08(b) - Post-Closing Real Property Matters
Schedule 5.08(c) - Properties Covered by Title Policies
Schedule 6.01 - Existing Liens and Secured Indebtedness
Schedule 6.07 - Certain Intercompany Arrangements
Schedule 6.16 - Outstanding Indebtedness
Schedule 9.02 - Notice Information for Banks
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of February 21, 1996
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.
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto previously entered into a Credit Agreement
dated as of August 10, 1995, as modified prior to the date hereof (the
"Original Credit Agreement") pursuant to which the Banks have made Advances
(as therein defined) to the Borrower, and have issued or participated
in Letters of Credit (as therein defined) for the account of the Borrower or
any of its Subsidiaries, in each case on the terms and conditions set forth
therein;
WHEREAS, certain of the Guarantors under the Original Credit Agreement
have been merged with and into other Guarantors under the Original Credit
Agreement or have made other corporate changes;
WHEREAS, the Borrower has requested the Banks to amend the Original
Credit Agreement in order to revise certain terms thereof and the Banks have
agreed to do so on the terms and conditions set forth herein; and
WHEREAS, the parties hereto have agreed to restate the Original Credit
Agreement as amended in its entirety for clarity only, and this Amended and
Restated Credit Agreement constitutes for all purposes an amendment to the
Original Credit Agreement and not a new or substitute agreement and each
reference to an "Advance" and "Letter of Credit" herein shall mean such
Advance made and each Letter of Credit issued heretofore under the Original
Credit Agreement;
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):
"ABF" means ABF Freight System, Inc., a Delaware corporation which is a
wholly-owned Subsidiary of the Borrower.
"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 Permitted Priority Liens, (c)
which secures the Obligations, and (d) which (i) is perfected, except to the
extent nonperfection is expressly permitted by the Credit Documents or (ii)
will be perfected upon filing or recording under applicable law all documents
or instruments necessary to perfect the same and all such documents and
instruments have been duly executed by the Borrower or a Guarantor, as the
case may be, and delivered to the Agent on or prior to the Effective Date,
except with respect to Properties in the jurisdictions identified on the post-
closing schedule attached as Schedule 5.08(b).
"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, effective August 14, 1995, by the
Acquisition Company of over 90% of the issued and outstanding common stock of
WWC.
"Acquisition Company" means ABC Acquisition Corporation, a North Carolina
corporation which was a wholly-owned Subsidiary of the Borrower prior to its
merger with and into WWC.
"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%.
"Adjustment Event" has the meaning set forth in Section 2.14(c).
"Advance" means 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 Amended and Restated Credit Agreement dated as of
February 21, 1996 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.
"Amendment Fee Letter" means the letter agreement dated as of February
21, 1996 among the Borrower and the Agent.
"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:
Indebtedness/
EBITDA
Eurodollar Letter of
Rate Prime Rate Commitment Credit
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 - <4.75 2.00% 1.00% .50% 2.00%
>4.75 2.50% 1.50% .50% 2.50%
The foregoing ratio (a) shall be deemed to be greater than or equal to 4.75
at all times prior to the date the Agent receives the audited December 31,
1995 Consolidated financial statements of the Borrower 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 or equal to
4.75 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 (a) 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; provided, however, that the term "Asset Sale"
excludes sales of real property of the Borrower or the Guarantors (other
than Property described on Schedule 1.01(c)) after January 1, 1996 which
yield aggregate Net Cash Proceeds not in excess of $25,000,000, and (b) any
insured loss or casualty of real property owned by the Borrower or any
Guarantor if the insurance proceeds in connection therewith exceed
$1,000,000 in the aggregate; provided, however that such loss or casualty
shall not be deemed to be an Asset Sale if (i) within ten Business Days of
the occurrence of such loss or casualty the Agent has received notice from
the Borrower or such Guarantor that the insurance proceeds will be used to
rebuild or restore the respective Property, and (ii) on the date which is
180 days after the loss or casualty ("Restoration Deadline") the Borrower
or respective Guarantor has commenced restoration of the real property (it
being agreed that (x) if such restoration has not been commenced prior to
such Restoration Deadline, or (y) if an Event of Default has occurred and
is continuing at the time of such Restoration Deadline, then in each event
an "Asset Sale" shall be deemed to have occurred on the Restoration
Deadline for purposes of Section 2.07(c)(iii)).
"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.
"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 Amended and Restated 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 (a) 80% of the Net
Depreciated Value of Eligible Revenue Equipment, plus (b) 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 (c) 80% of the
aggregate outstanding amount of Eligible Receivables, plus (d) 50% of the
Net Depreciated Value of Eligible Other Equipment, plus (e) the lesser of
(i) $100,000,000 or (ii) 67% of the Real Estate Value of Eligible Real
Property.
"Borrowing Base Certificate" means a certificate of the Borrower in
substantially the form of the attached Exhibit L-1.
"Borrowing Base Determination Date" means the any date the Borrowing
Base is determined in accordance with Section 2.14.
"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 CaroTrans Canada, Ltd., a Canadian corporation.
"Capital Expenditure" means any payment made directly or indirectly for
the purpose of acquiring or constructing fixed assets, real property or
equipment which in accordance with GAAP would be added as a debit to the
fixed asset account of such Person making such expenditure, including,
without limitation, amounts paid or payable for such purpose under any
conditional sale or other title retention agreement or under any Capital
Lease, but excluding repairs of Property in the normal and ordinary course
of business in keeping with past practices.
"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, (b) an issuance or
incurrence of Subordinated Debt, or (c) an issuance or incurrence of other
unsecured Indebtedness as described in Section 6.16(f).
"Cash Collateral Account" means a special cash collateral account
containing cash deposited pursuant to Sections 2.07(c), 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, such Bank's Revolving
Commitment.
"Compliance Certificate" means a certificate of the Borrower in
substantially the form of the attached Exhibit K.
"Concentration Bank Accounts" means the deposit accounts maintained
with the First National Bank of Fort Smith located in Fort Smith, Arkansas
for the benefit of the Borrower and its Subsidiaries as identified on
Schedule 1.01(e), or any substitute accounts acceptable to the Agent and
the Majority Banks.
"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, the Amendment Fee Letter, the
Intercreditor Agreement, the Master SA Agreement, 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, (a) 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 (b) 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 (provided no Default has occurred and is continuing) 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 (provided no
Default has occurred and is continuing) 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 Other Equipment" means, as of any Borrowing Base
Determination Date, all Other Equipment which (a) is owned by the Borrower
or any Guarantor other than a Canadian Subsidiary on such date and was so
owned on the date of the most recent Borrowing Base Certificate delivered
to the Banks and (b) is subject to an Acceptable Security Interest in favor
of the Agent for the benefit of the Banks.
"Eligible Real Property" means, as of any Borrowing Base Determination
Date, any real property (other than Property described on Schedule 1.01(c),
Property securing the Headquarters Credit Agreement, and other Property
which is unacceptable to the Agent, in its sole reasonable discretion)
which is owned by the Borrower or any Guarantor (other than a Canadian
Subsidiary) on such date and was so owned on the date of the most recent
Borrowing Base Certificate delivered to the Banks, provided that:
(a) such Property is subject to an Acceptable Security Interest in
favor of the Agent for the benefit of the Banks,
(b) if such Property (i) is subject to an Existing Lien and (ii)
has a Real Estate Value in excess of $l,000,000 (without deducting the
amount of the Indebtedness secured by such Existing Lien), then a First
Lienholder Consent has been executed and delivered to the Agent by each
holder of an Existing Lien on such Property in accordance with the post-
closing schedule attached as Exhibit 5.08(b),
(c) if such Property is subject to a Material Lease, a SNDA
Agreement has been executed and delivered to the Agent by the lessee in
accordance with the post-closing schedule attached as Exhibit 5.08(b),
and
(d) if such Property is subject to a lease to an Affiliate of the
Borrower or a Guarantor, the lessor and lessee for such lease have
become parties to the Master SA Agreement on or prior to March 31, 1996
by appropriate amendments to the Master SA Agreement to reflect such
additional parties and inclusion of such Property.
"Eligible Receivables" means, as of any Borrowing Base Determination
Date, all Receivables of the Borrower or any Guarantor other than a
Canadian Subsidiary as of the date of the most recent Borrowing Base
Certificate delivered to the Banks or, in the case of ABF, any later
Interim Receivables Report, in which the Agent has an Acceptable Security
Interest for the benefit of the Banks except:
(a) any Receivable which remains unpaid more than 90 days after
the date of the original invoice for such Receivable;
(b) 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;
(c) any Receivable which is from an obligor which is to the
Borrower's or any Guarantor's knowledge Insolvent;
(d) any Receivable which is in excess of the applicable obligor's
Concentration Limit;
(e) any Receivable which is not to the Borrower's or any
Guarantor's knowledge free and clear of all Liens except (i) Liens in
favor of the Agent for the benefit of the Banks and second priority
Liens in favor of the Liquidity Agent for the benefit of the Liquidity
Banks and (ii) 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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;
(j) any Receivable which is unacceptable to the Majority Banks for
credit reasons in their reasonable discretion;
(k) 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;
(l) any Receivable which is payable by an obligor which is an
agency or instrumentality of the federal government of the United
States of America; and
(m) 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.
"Eligible Revenue Equipment" means, as of any Borrowing Base
Determination Date, all Revenue Equipment which is (a) owned by the
Borrower or any Guarantor other than a Canadian Subsidiary as of such date
and was so owned as of the date of the most recent Borrowing Base
Certificate delivered to the Banks and (b) subject to an Acceptable
Security Interest in favor of the Agent 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.
"Excess Revenue Equipment" means the Revenue Equipment identified on
Schedule 1.01(d).
"Existing Lien" means a mortgage Lien on real property which is
existing on the Effective Date and which is identified on Schedule 6.01.
"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 the financial statements described in
Section 4.05.
"First Lienholder Consent" means a Lender Estoppel Certificate and
Agreement in substantially the form of Exhibit M executed and delivered by
the holder of an Existing Lien on Eligible Real Property which Lien is
senior in priority to the Lien in favor of the Agent for the benefit of the
Banks.
"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. The
Guarantors on the Effective Date are identified on Schedule 4.01.
"Guarantors Security Agreement" means the Amended and Restated 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 Amended and Restated 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, as amended by the First Amendment
Agreement dated as of February 21, 1996, each 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.
"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.
"Indebtedness" means (without duplication), at any time and with
respect to any Person, (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.
"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.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of
February 21, 1996 between the Agent and the Liquidity Agent, and in
substantially the form of Exhibit R, as it may be hereafter amended in
accordance with its terms.
"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, or three 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.
"Interim Receivables Report" means an Interim Receivables Report of the
Borrower in substantially the form of Exhibit L-2.
"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).
"Liquidity Agent" means Societe Generale, Southwest Agency, as agent
for the Liquidity Banks under the Liquidity Facility, or any successor
agent thereunder.
"Liquidity Banks" means the financial institutions which are banks
parties to the Liquidity Facility.
"Liquidity Facility" means the Credit Agreement dated as of February
21, 1996 among the Borrower, the banks party thereto, and Societe Generale,
Southwest Agency, as agent for such banks, pursuant to which the banks have
agreed to make advances to the Borrower in an aggregate amount not to
exceed $30,000,000, as such agreement may be amended or otherwise modified
in accordance with its terms.
"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 Revolving Commitments at such time.
"Master SA Agreement" means the Master Subordination and Attornment
Agreement dated as of February 21, 1996 among the Agent, the Borrower and
certain Guarantors in substantially the form of Exhibit O, as it may be
amended hereafter in accordance with its terms.
"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.
"Material Lease" means any lease of real property to a Person other
than an Affiliate of the Borrower or any Guarantor which either (a) covers
real property which has a Real Estate Value in excess of $1,000,000 or (b)
has a monthly lease rental of $5,000 or greater.
"Maturity Date" means August 11, 1998.
"Maximum Rate" means the maximum nonusurious interest rate under
applicable law.
"Mortgages" means, collectively, the deeds of trust and mortgages
executed by the Borrower or any Guarantor to secure the Obligations, each
substantially in the form of Exhibit Q with such modifications as may be
necessary and appropriate in the opinion of counsel to the Agent to comply
with the state law of the filing jurisdiction and as may be reasonably
satisfactory to the Agent (provided any such modification does not
materially and adversely affect the rights and benefits to be accorded to
the Agent for the benefit of the Banks), as the same may be amended or
terminated in accordance with their terms, and "Mortgage" means any of such
instruments.
"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 (including,
without limitation, insurance 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 Property which is the subject
of the Asset Sale.
"Net Depreciated Value" means, with respect to Revenue Equipment and
Other Equipment, the aggregate value of such Revenue Equipment and Other
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 or Other Equipment to the Borrower or such
Guarantor, whichever is less (the "Cost"), minus depreciation computed to
the date of the most recent Borrowing Base Certificate delivered to the
Banks at a rate sufficient to depreciate such Revenue Equipment and Other
Equipment, as appropriate, 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
Other Equipment: within 15 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.
"Other Equipment" means, with respect to any Person, equipment other
than Revenue Equipment, free and clear of all Liens other than Permitted
Liens.
"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.
"Permitted Priority Liens" means (i) Liens on Eligible Real Property
owned by the Borrower or a Guarantor on the Effective Date, other than
Property described on Schedule 1.01(c), which Liens are in favor of the
Liquidity Agent for the benefit of the Liquidity Banks and secure the
obligations of the Borrower and the Guarantors under the Liquidity
Facility, (ii) Existing Liens, and (iii) Liens permitted by paragraphs (c)
and (d) of Section 6.01 solely to the extent such Liens are afforded
priority under applicable law.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
limited liability company, 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.
"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
(which may not be the lowest rate offered to its customers), 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.
"Property Adjustment Report" means a Property Adjustment Report in
substantially the form of Exhibit L-3.
"Pro Rata Share" means, at any time with respect to any Bank, either
(a) the ratio (expressed as a percentage) of such Bank's Revolving
Commitment at such time to the aggregate Revolving Commitments at such time
or (b) if the Revolving 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.
"Real Estate Value" means, with respect to any Eligible Real Property,
(a) the appraised value of such Property if an appraisal less than two
years old is available in connection with such Property, and otherwise the
net book value of such Eligible Real Property as of the date of the most
recent Borrowing Base Certificate (or, if applicable, Property Adjustment
Report) delivered to the Banks less (b) the aggregate amount of
Indebtedness (other than the Obligations, the Indebtedness under the
Liquidity Facility, and bond Indebtedness which is supported by a Letter of
Credit) secured by Liens on such Property.
"Receivables" means all rights to receive payment for goods sold or for
services rendered in the ordinary course of business.
"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 (other than Excess 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 (a) the Anticipated Reinvestment Amount in
respect of such Reinvestment Election exceeds (b) 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 (a) 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, (b) the date occurring 90 days after the
consummation of the Asset Sale which is the subject of such Reinvestment
Election, and (c) 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.
"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) 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 other than Permitted Liens.
"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, the Guarantors Security Agreement, the Mortgages, and any other
agreement executed in connection with the Liens in favor of the Agent for
the benefit of the Banks securing the Obligations.
"SNDA Agreement" means any Subordination, Non-Disturbance and
Attornment Agreement executed by the Agent, a Guarantor, and a lessee of
Property from such Guarantor in substantially the form of Exhibit P, as it
may be amended hereafter in accordance with the terms.
"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.
"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,
partnership or other business entity of which more than 50% 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.
"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 which are continued, or
Converted to Term Advances of a different Type, pursuant to Section
2.02(b).
"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.
"Title Policy" means a Mortgagee Policy of Title Insurance which (a) is
in the most current form of the American Land Title Association (or such
other form as approved by the Agent), (b) is issued by Lawyers Title
Insurance Corporation or Chicago Title Insurance Company, with such
reinsurance as the Agent shall reasonably request, (c) insures that the
grantor of the Lien insured by such policy owns the Property subject to
such Lien in fee simple and that the Mortgage covering the Property
qualifies the Property as an Eligible Real Property and is a valid lien on
the Property in favor of the Agent for the benefit of the Banks (subject
only to Permitted Priority Liens), (d) includes such endorsements as the
Agent from time to time may reasonably require, (e) does not contain any
exceptions for rights of parties in possession, or unpaid delinquent
installments of taxes, special assessments or subsequent assessments due to
changes in ownership or usage, or any other exceptions to coverage other
than Permitted Liens.
"Treadco" means Treadco, Inc., a Delaware corporation, which is an
Affiliate of the Borrower.
"Type" has the meaning set forth in Section 1.04.
"WWC" means WorldWay Corporation, a North Carolina corporation,
formerly known as Carolina Freight Corporation.
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, 1995
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 the terms 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. The aggregate amount of all
outstanding Revolving Advances and Letter of Credit Exposure at any time
may not exceed either (i) the aggregate Revolving Commitments 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. On the Effective Date, each Bank has Term Advances
in the aggregate amount set forth on Schedule 1.01(a). Each Bank severally
agrees, on the terms and conditions set forth in this Agreement, to
continue its outstanding Term Advances to the Borrower. Any Term Advances
which are prepaid or repaid may not be reborrowed.
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 Rate Advances for any
Borrowing to be made, Converted or continued if (A) the aggregate
amount of such Borrowing is less than $5,000,000 or (B) 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 governmental 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; and
(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.
(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 Revolving Commitment exceeds the sum of such Bank's outstanding
Revolving Advances and Pro Rata Share of the Letter of Credit Exposure (i)
at a rate per annum equal to .375% for the period from December 29, 1995
until January 30, 1996, and (ii) at a rate per annum equal to the
Applicable Margin for the period from January 31, 1996 until the Maturity
Date, such fees due and payable quarterly in arrears (A) on the last
Business Day of each March, June, September and December and (B) 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 (i) on and
through the last Business Day of each March, June, September and December
and (ii) 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
(i) on the last Business Day of each March, June, September and December
and (ii) 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.
(d) Amendment Fees. The Borrower agrees to pay to the Agent for the
benefit of the Banks specified therein the fees set forth in the Amendment
Fee Letter.
Section 2.04. Reduction of the Revolving Commitments.
(a) Voluntary Reduction. Provided that the Liquidity Facility has
terminated and all obligations thereunder have been paid in full, 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 Revolving Commitments; provided that each
partial reduction shall be in the aggregate amount of $1,000,000 or an
integral multiple of $1,000,000. Any reduction or termination of the
Revolving Commitments pursuant to this Section 2.04 shall be permanent,
with no obligation of the Banks to reinstate such Revolving Commitments and
the commitment fees provided for in Section 2.03(a) shall thereafter be
computed on the basis of the Revolving Commitments, as so reduced.
(b) Change of Control. Upon the occurrence of any of the following:
(i) a change in control is reported by the Borrower in response to either
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (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 Revolving Commitments shall reduce to zero.
(c) Capitalization Event. Upon the occurrence of any Capitalization
Event, the aggregate Revolving Commitments shall reduce (effective on the
same date a mandatory prepayment of outstanding Term Advances (if any)
would be due pursuant to Section 2.07(c)(iv)) by an amount equal to (i)
100% of the Net Cash Proceeds of such Capitalization Event, less (ii) the
sum of the outstanding Term Advances (if any) immediately prior to the
mandatory prepayment to be made on such date, less (iii) the aggregate
amount of the "Tranche A Commitments" and "Tranche B Commitments" (as such
terms are defined in the Liquidity Facility).
Section 2.05. Repayment of Advances.
(a) Revolving Advances. The Borrower shall repay the outstanding
principal amount of each Revolving Advance on the Maturity Date.
(b) Term Advances. The Borrower shall repay the outstanding principal
amount of Term Advances in seven installments and one final payment on the
dates and in the amounts set forth below:
Payment Date Installment
Amount
11/30/96 $2,399,044
02/28/97 $2,399,044
05/31/97 $10,732,377
08/31/97 $10,732,377
11/30/97 $13,131,422
02/28/98 $2,714,755
05/31/98 $2,714,755
08/11/98 $27,147,547
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 in
arrears on the last day of such Interest Period, and on the date such
Eurodollar 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 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 outstanding, 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 or an integral multiple of $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 Borrowing Base
Determination Date, the Borrower shall be required to prepay Revolving
Advances in an aggregate amount equal to the excess of (A) the aggregate
amount of outstanding Revolving Advances and Letter of Credit Exposure on
such date over (B) the Borrowing Base, as determined on such Borrowing Base
Determination Date (or, upon payment in full of all outstanding Revolving
Advances, to deposit with the Agent into the Cash Collateral Account an
amount equal to the amount of the Letter of Credit Exposure which exceeds
the Borrowing Base).
(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 $7,500,000,
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 (other than Excess Revenue
Equipment) which are consummated after December 31, 1996 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 (other than Excess Revenue Equipment) if (i) no Default
exists and (ii) the Borrower delivers a Reinvestment Notice to the Agent on
the 20th day of the calendar month following the month in which the
consummation of the respective Asset Sale occurs, 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. Notwithstanding anything herein to the contrary, with
respect to any sale of Revenue Equipment prior to the Effective Date for
which the Borrower has delivered a Reinvestment Notice prior to the
Effective Date, the Borrower shall be entitled to exercise its Reinvestment
Election with respect to the proceeds of such sale until the Reinvestment
Prepayment Date applicable to such Reinvestment Election.
(iv) Capitalization Event. Upon the occurrence of any Capitalization
Event, the Borrower shall prepay Term Advances in an amount equal to 100%
of the Net Cash Proceeds of such Capitalization Event on the Business Day
such Net Cash Proceeds are received by the Borrower. In addition, in the
event the Revolving Commitments are reduced in accordance with Section
2.04(c), the Borrower shall prepay Revolving Advances to the extent the
outstanding Revolving Advances plus the Letter of Credit Exposure exceed
the reduced Revolving Commitments (or, upon payment in full of all
outstanding Revolving Advances, to deposit with the Agent into the Cash
Collateral Account an amount equal to the amount of the Letter of Credit
Exposure which exceeds the Revolving Commitments as so reduced).
(v) Excess Cash Flow. On the earlier of (A) the date the Agent
receives the Borrower's annual audited Consolidated financial statements
pursuant to Section 5.06(b) or (B) 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 Advances under this Section 2.07(c) exceeds the
aggregate principal amount of 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 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
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 or otherwise; (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 otherwise; 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), 2.03(d), 2.06(c), 2.08,
2.09, 2.11, 2.12, or 2.13(c) 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 360 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 Section
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 nonexcluded taxes, levies,
imposts, deductions, charges, withholdings 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). 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
the lesser of (x) $100,000,000 or (y) an amount equal to (A) the lesser of
the Borrowing Base or the aggregate Revolving Commitments less (B) the
aggregate outstanding Revolving Advances and Letter of Credit Exposure 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, other than a Letter of Credit issued in substitution of any letter
of credit outstanding on the Effective Date and listed on Schedule 1.01(b);
(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. With respect to each Letter of Credit described
on Schedule 1.01(b) which is outstanding on the Effective Date, each Bank
agrees that it has a participation in the related Letter of Credit Exposure
equal to such Bank's Pro Rata Share on the Effective Date. 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 Letter of Credit Exposure
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 any
Guarantor, 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 which does 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 failing to 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 by the Agent, as follows:
(a) Monthly. On the 20th day of each calendar month the Agent shall
determine the Borrowing Base upon receipt of a Borrowing Base Certificate
dated as of the last day of the immediately preceding calendar month.
(b) Interim Receivables Report Update. On the 5th Business Day of
each calendar month, the Agent shall redetermine the Borrowing Base to
account for any change in ABF's Eligible Receivables, using the Borrowing
Base components set forth in the most recent month-end Borrowing Base
Certificate delivered by the Borrower to the Banks, with adjustment to the
Eligible Receivables component of the Borrowing Base for any change in
ABF's Eligible Receivables as set forth on a new Interim Receivables Report
dated as of the end of the immediately preceding calendar month delivered
by the Borrower prior to such date.
(c) Property Adjustments. Following (i) each permitted sale by the
Borrower or any Guarantor of any real property included in the Borrowing
Base with a sales value in excess of $10,000,000 individually or in the
aggregate, (ii) any loss or casualty not covered by insurance resulting in
destruction of any real property included in the Borrowing Base if the loss
or casualty exceeds $10,000,000 individually or in the aggregate, and (iii)
any permitted purchase by the Borrower or any Guarantor of any Property
which can be included in the Borrowing Base with a purchase price in excess
of $10,000,000 individually or in the aggregate (each of such events
hereinafter called an "Adjustment Event"), and the Agent's receipt of a
Property Adjustment Report with respect thereto, the Agent shall, at the
time the Borrowing Base is determined or redetermined in accordance with
paragraphs (a) and (b) above, further adjust the appropriate Borrowing Base
components set forth in the most recent month-end Borrowing Base
Certificate delivered by the Borrower to the Banks to reflect the
Adjustment Events occurring since the date of such Borrowing Base
Certificate.
(d) Notice of Borrowing Base Change. Promptly following any date the
Borrowing Base is redetermined in accordance with the preceding paragraphs,
the Agent shall give notice to the Banks and the Borrower of the new
Borrowing Base.
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 Revolving 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 Revolving
Commitment by an amount not to exceed the amount of the Revolving
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 Revolving Commitment.
(ii) If the aggregate amount of the proposed increases in Revolving
Commitments of all such Banks making such an election is in excess of the
Revolving Commitments of the Affected Banks, (A) the Revolving Commitments
of the Affected Banks shall be allocated pro rata among such Banks based on
the respective amounts of the proposed increases to Revolving 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 Revolving Commitments of the Banks will be the same as prior to such
termination.
(iii) If the aggregate amount of the proposed increases to
Revolving Commitments of all Banks making such an election equals the
Revolving Commitments of the Affected Banks, the respective Revolving
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 Revolving 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 Revolving
Commitments of all Banks making such an election is less than the Revolving
Commitments of the Affected Banks, (A) the respective Revolving 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 Revolving 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 Revolving 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 Revolving Commitments of any Bank
pursuant to the foregoing paragraph (b), each Bank with an increased
Revolving 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 and Perfection of Liens. Prior to the termination of the
Revolving Commitments and the repayment in full of the Obligations, a
perfected Lien shall exist on all Collateral (as defined in the Security
Agreements) in favor of the Agent for the benefit of the Banks to secure
the Obligations in accordance with the terms of the Security Agreements,
except that (i) to the extent any Lien previously granted to the Agent for
the benefit of the Banks on Revenue Equipment is unperfected as of the
Effective Date, the Borrower shall cause such Liens to be perfected as
promptly as practicable, and (ii) to the extent any Lien on Eligible Real
Property is unperfected as of the Effective Date, the Borrower shall comply
with the post-closing schedule described in Section 5.08.
(b) Further Assurances. The Borrower agrees to promptly, on demand,
execute and deliver, and cause the Guarantors to execute and deliver, at
the Borrower's expense, 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. In
addition, if an Event of Default has occurred and is continuing and the
Agent has commenced or intends to commence foreclosure of any of the eleven
Properties listed on Exhibit "A" to Schedule 5.08(a) under the headings
"Break Bulk Facilities" and "Other Large Terminals" then in such event the
Borrower agrees to obtain Phase 1 Environmental Site Assessments, at the
Borrower's sole cost, with respect to any such Property.
(c) Appraisals. The Borrower agrees to obtain, at its own expense and
as promptly as practicable, such other appraisals as any Governmental
Authority may require the Agent to obtain from time to time to satisfy any
applicable Legal Requirement.
(d) Certificates of Title. The Borrower agrees the hold, and to cause
each Guarantor to hold, the certificates of title relating to titled
Revenue Equipment of the Borrower or any Guarantor only at the offices
listed on Schedule 2.17 attached hereto and in the custody of the
Custodians described in the Borrower Security Agreement and the Guarantors
Security Agreement.
(e) Bank Accounts. Each Bank which may from time to time open or hold
or maintain any bank account for the benefit of the Borrower or any
Guarantor hereby agrees that:
(i) such account is subject to a lien in favor of the Agent pursuant to
the Borrower Security Agreement or the Guarantors Security Agreement for
the benefit of the Banks and may contain cash proceeds of Collateral (as
defined in the Security Agreements),
(ii) at any time prior to such Bank's receipt of notice from the Agent
that an Event of Default has occurred and is continuing under this
Agreement, such Bank shall be entitled to make payments out of such bank
account to the Borrower or the respective Guarantor, as applicable, or as
the Borrower or the respective Guarantor may direct,
(iii) at any time after the occurrence and during the continuance of
any Event of Default, payments out of such bank account shall be made only
as may be instructed by the Agent, the Agent being irrevocably entitled to
exercise any and all rights in respect of or in connection with such
account, including, without limitation, the right to specify when payments
are to be made out of or in connection with such account, and
(iv) such Bank has received no notice from any other Person of any
security interest in the any such bank account.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective on February 21, 1996 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 counterparts of this
Agreement executed by the Borrower and the Majority Banks, and the
following duly executed by all the parties thereto, in form and substance
satisfactory to the Agent, and in sufficient copies for each Bank (except
with respect to the Mortgages):
(i) the Guaranty, the Borrower Security Agreement, the Guarantors
Security Agreement, the Mortgages which have been prepared for execution on
the Effective Date and any related Uniform Commercial Code financing
statements, the Master SA Agreement, and the Intercreditor Agreement;
(ii) a certificate from the Chief Executive Officer, President or 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 Security Agreements are true
and correct in all material respects; (B) no Default has occurred and is
continuing; and (C) the conditions in this Section 3.01 (other than clause
(a)(viii)) have been met; and further certifying (x) the aggregate
outstanding amount of Revolving Advances, Letter of Credit Exposure, and
Term Advances on and as of the Effective Date, and (y) that there are no
claims, defenses, counterclaims or offsets against the Banks under the
Original Credit Agreement (as defined in the preliminary statements to this
Agreement);
(iii) a certificate of the Secretary or an Assistant Secretary of the
Borrower and each Guarantor dated as of the date of this Agreement
certifying as of the date of this Agreement (A) the names and true
signatures of officers of the Borrower and such Guarantor authorized to
sign the Credit Documents to which such Person is a party, (B) resolutions
of the Board of Directors of such Person with respect to the transactions
herein contemplated, and (C) either (x) that the copies of the articles or
certificate of incorporation and bylaws of such Person delivered to the
Banks as of August 10, 1995 (or as of August 14, 1995 in connection with
WWC and each of its Subsidiaries) are still true and correct and have not
been amended or modified since such date or (y) copies of any modification
or amendment to the articles or certificate of incorporation or bylaws of
such Person made since such date;
(iv) a favorable opinion of Richard F. Cooper, General Counsel to the
Borrower and Guarantors, dated as of February 21, 1996 and in substantially
the form of Exhibit I;
(v) a favorable opinion of Bracewell & Patterson, L.L.P., counsel to
the Agent, dated as of February 21, 1996 and in substantially in the form
of the attached Exhibit J;
(vi) the unaudited Consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at December 31, 1995, 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, duly certified by the Chief Financial Officer or Treasurer
of the Borrower;
(vii) a Borrowing Base Certificate as of January 31, 1996, and an
Interim Receivables Report as of February 21, 1996, each duly completed and
executed by the Chief Financial Officer or Treasurer of the Borrower; and
(viii) 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
in each Security Agreement shall be true and correct in all material
respects.
(c) Certain Payments. The Borrower shall have paid the fees required
to be paid as of the Effective Date pursuant to the Agents' Fee Letter and
the Amendment Fee Letter.
Section 3.02. 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 in 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 result from
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, and Schedule 4.01 lists
the jurisdiction of incorporation and the address of the principal office
of each such Subsidiary existing on 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 unaudited Consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at December 31, 1995, 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) 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 have been,
and will be used by the Borrower for general corporate purposes of the
Borrower and its Subsidiaries, including without limitation for refinancing
certain Indebtedness of WWC and its Subsidiaries outstanding prior to the
Acquisition.
(b) Term Advances. The proceeds of the Term Advances were 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
consummate the Acquisition.
(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, 1995, 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 a party 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. Existing Mortgage Debt. All outstanding Indebtedness
secured by a Lien on real property of the Borrower or any Guarantor
existing as of the Effective Date is described on Schedule 6.01, and the
amount of such Indebtedness shown on such Schedule is the aggregate
outstanding amount as of the Effective Date. No "default" or "event of
default", however defined, has occurred and is continuing under any
documentation evidencing such Indebtedness or the Lien securing such
Indebtedness.
Section 4.18. Title; Encumbrances. On the date any Mortgage is
filed covering Eligible Real Property, the Borrower or any Guarantor, as
the case may be, will be the legal owner, in fee simple, of such Property,
and there will exist no Liens or other charges against such Property or any
of the real or personal, tangible or intangible, assets of the Borrower or
any Guarantor (including without limitation statutory and other Liens of
mechanics, workers, contractors, subcontractors, suppliers, taxing
authorities and others), except (i) those matters set forth as permitted in
the respective Mortgages covering such Property, (ii) Liens in connection
with work done on any Property which do not in the aggregate for such
Property secure obligations exceeding $10,000, (iii) Liens for work in
progress described on Schedule 4.18 hereto, and (iv) inchoate tax Liens.
To the extent any representation and warranty in a Mortgage is contrary to
the matters set forth in this Section 4.18, this Section shall govern for
all purposes.
Section 4.19. Leasing Arrangements. Schedule 4.19(a) sets forth
all real property owned by the Borrower or any Guarantor as of the
Effective Date which is leased by the Borrower or a Guarantor, as lessee,
and identifies the lessor and the basic terms of the lease. Schedule
4.19(b) sets forth all real property which is owned by the Borrower or any
Guarantor and subject to a lease in favor of any Person other than the
Borrower or a Guarantor, and identifies the lessee of record and the basic
terms of the lease.
Section 4.20. Cash Management System. As of the Effective Date,
collections of Receivables of the Borrower and each Guarantor are deposited
into bank accounts of the Borrower and the Guarantors throughout the
continental United States and in Canada, most of which are swept at the end
of each Business Day to reduce the net daily balance of good funds to
minimal amounts. Funds so collected from each of such accounts of each
Guarantor are transferred into the Concentration Bank Account of such
Guarantor. Each Guarantor's Concentration Bank Account may from time
to time be swept of net funds and deposited into the Concentration Bank
Account of the Borrower, from which the Borrower manages the cash needs of
all of its Subsidiaries.
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 Revolving 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. Insurance.
(a) Personal Property. 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.
(b) Real Property. With respect to any real property, the Borrower
shall procure and maintain or shall cause each Guarantor to procure and
maintain continuously in effect policies of insurance in form and amounts
and issued by companies, associations or organizations licensed to
do business in the state in which the Property is located, with a Best's
Rating of no less than A, XI and otherwise satisfactory to the Agent
covering such casualties, risks, perils, liabilities and other hazards
reasonably required by the Agent. All original policies, or certificates
thereof, and endorsements and renewals thereof shall be delivered to and
retained by the Agent unless the Agent waives this requirement in writing.
All policies shall expressly protect or recognize the Agent's interest as
required by the Agent. Without limiting the generality of the foregoing,
the Borrower shall provide or cause each Guarantor to provide (i)
Comprehensive General Liability Insurance and Comprehensive Auto Liability
Insurance in a minimum amount of $10,000,000 each occurrence; and (ii) such
additional insurance as may be reasonably required by the Agent from time
to time in the event that the Property is exposed to hazards and risks with
respect to which the Agent deems the existing insurance inadequate to
properly protect its interests.
(c) Loss Payee Endorsements. All policies of liability insurance
shall name the Agent and the Agent's directors, officers, representatives,
agents and employees (the "Agent's Parties") as additional insureds, as
applicable. The Borrower shall furnish the Agent with a certified copy of
an original or a certificate of insurance of all policies of liability
insurance required. All policies or certificates, as the case may be, of
insurance shall set forth the coverage, the limits of liability, the name
of the carrier, the policy number, the Best's Rating of the carrier and the
period of coverage. At least 30 days prior to the expiration of each
required policy, the Borrower shall deliver to the Agent evidence of the
renewal or replacement of such policy, continuing such insurance in the
form as required by this Agreement. All such policies shall contain a
provision that notwithstanding any contrary agreement between the Borrower
or any Guarantor and the applicable insurance company, such policies will
not be cancelled, allowed to lapse without renewal, surrendered or amended
(which provision shall include any reduction in the scope or limits of
coverage) without at least 30 days' prior written notice to the Agent.
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 Sections 6.04 or 6.09.
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, if requested by
the Agent, 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 Projections. As soon as available and in any event not
later than March 31st of each calendar year, the Consolidated annual
projections 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 projections 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) Reports Affecting the Borrowing Base.
(i) On or prior to the 20th day of each calendar month, a completed
Borrowing Base Certificate setting forth the components of the Borrowing
Base as of the last day of the immediately preceding calendar month;
(ii) On or prior to the 5th day of any calendar month, an Interim
Receivables Report setting forth the value of ABF's Eligible Receivables as
of the last day of the immediately preceding calendar month; and
(iii) On or prior to the 20th day of any calendar month with respect
to any Adjustment Event occurring during the first 19 days of such month,
and on or prior to the 5th day of each calendar month with respect to any
Adjustment Event occurring from the 20th day to the last day of the
immediately preceding calendar month, a Property Adjustment Report with
respect to such Adjustment Event;
(j) Flash Reports. On or prior to Wednesday of each week prior to
June 30, 1996, a flash report in substantially the form of Exhibit S for
the second immediately preceding week, and on or prior to the 20th day of
each calendar month, commencing July, 1996 and through the remainder of
1996 or such period as the Agent may reasonably request, a flash report in
substantially the form of Exhibit S for the immediately preceding calendar
month;
(k) Other Notices.
(i) Upon the request of the Agent, a certified rent roll listing all of
the real properties of the Borrower and the Guarantors that are subject to
a lease and containing such other information regarding such lease
that the Agent may reasonably request,
(ii) As soon as received, a copy of any notice of default received by
the Borrower or any Guarantor from any holder of a Permitted Priority Lien
on any real property,
(iii) Promptly following the occurrence thereof, notice of the
execution or amendment of any Material Lease, and
(iv) Promptly following any merger or dissolution of any Subsidiary of
the Borrower which is permitted hereunder, notice thereof;
(l) Monthly Financials. As soon as available and in any event not
later than 20 days after the end of each calendar month in 1996 (or
thereafter as the Agent may reasonably request), the unaudited Consolidated
and consolidating balance sheets of Borrower and its Subsidiaries as of the
end of such month, and the related Consolidated and consolidating
statements of operations, shareholders' equity and cash flows of the
Borrower and its Subsidiaries for the month then ended duly certified
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;
(m) Material Litigation. As soon as possible and in any event within
five days of any Responsible Officer of the Borrower or any of its
Subsidiaries having knowledge thereof, notice any litigation, claim or any
other event which could reasonably be expected to cause a Material Adverse
Change; and
(n) 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. The 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, 1995, 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.
Section 5.08. Post-Closing Real Property Matters. The Borrower
agrees that (a) it will obtain all appraisals, at the Borrower's sole cost
and expense, in connection with Eligible Real Property required under the
"Appraisal Program" described on Schedule 5.08(a) as and when provided in
such Appraisal Program, (b) it will diligently pursue, and cause the
Guarantors to diligently pursue, completion of all post-closing matters
identified on Schedule 5.08(b) in connection with Eligible Real Property,
and the Borrower agrees that such matters shall be completed to the
satisfaction of the Agent prior to March 29, 1996, and (c) it will obtain,
as soon as possible following the recordation of the applicable Mortgage,
at the Borrower's sole cost and expense, Title Policies for the benefit of
the Agent and the Banks for such Properties listed on Schedule 5.08(c) in
the amounts for each such Property which are set forth for such Property on
Schedule 5.08(c).
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 Revolving 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 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 and securing the Liquidity Facility;
(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', warehousemen'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), and (l) 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) on real property to secure the purchase price of such Property or
improvements thereon;
(k) on leased personal property to secure solely the lease obligations
associated with such property; and
(l) 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.
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 document or documents executed in connection with the
Acquisition (copies of which have been previously provided to the Banks) or
the Subordinated Debt Documents.
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; (b) sell, transfer, or
otherwise dispose of all or substantially all of the Borrower's or such
Subsidiary's Property (unless, in the case of a Subsidiary, such assets are
sold, leased, transferred or otherwise conveyed to another Subsidiary which
is a Guarantor) unless the proceeds of any such sale are applied in
accordance with Section 2.07(c); or (c) after such time as the Borrower has
received written notice from the Agent to suspend material leasing activity
pending approval, lease any Eligible Real Property to any Person without
the consent of the Agent (which consent shall not be unreasonably withheld
provided that the prospective lessee has agreed to execute, and does so
execute a SNDA Agreement with respect to such lease), unless the Real
Estate Value of the Property so leased is less than $1,000,000.
Section 6.05. Restricted Payments. The Borrower will not, and will
not permit any of its Subsidiaries to, make any Restricted Payment, except
that (a) a wholly-owned Subsidiary of the Borrower may make a Restricted
Payment to the Borrower or another wholly-owned Subsidiary of the Borrower,
(b) 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 (c) 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 $6,500,000 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
(provided that after giving effect thereto there shall exist no Default):
(a) the purchase of Liquid Investments with a Bank;
(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 August 11, 1995 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 statements
and a certificate covering the same matters described in Section
3.01(a)(iii) 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
(i) if the aggregate amount of such contributions to or investments in any
such Person occurring after August 11, 1995 exceeds $5,000,000, the
Borrower shall have caused such Person to have executed and delivered to
the Agent an Accession Agreement, related financing statements and a
certificate covering the same matters described in Section 3.01(a)(iii)
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; (ii) 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
(iii) the aggregate consideration paid (other than in the form of common
stock of the Borrower) after the Effective Date for such contributions or
investments shall not exceed $5,000,000 in any fiscal year; 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 6.16
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; provided
that nothing herein shall prohibit the Borrower from merging any Subsidiary
into the Borrower or a Guarantor or from dissolving any Subsidiary which
has no assets on the date of dissolution.
Section 6.10. No Further Negative Pledges. Except as set forth in
the Liquidity Facility and in agreements and documentation governing
Indebtedness of the Borrower or any of its Subsidiaries 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) (a) 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 (b) 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 as of August 11, 1995.
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 March 31, 1997), of (a) Adjusted Consolidated
EBITDA for the Rolling Period ending on such date to (b) Adjusted
Consolidated Debt Service for such Rolling Period to be less than 1.0 to
1.0.
Section 6.13. Net Worth. The Borrower will not permit its
Consolidated Net Worth at any time, tested monthly in 1996 and quarterly in
1997, to be less than (a) from the Effective Date to and including April
30, 1996, $150,000,000, (b) from May 1, 1996 through and including December
31, 1996, $147,000,000, and (c) from January 1, 1997 and thereafter, an
amount equal to the sum of (i) $140,000,000 plus (ii) 50% of cumulative
Consolidated Net Income of the Borrower (without deduction for losses) for
the period from January 1, 1997 to the date of determination plus (iii)
100% of the net cash proceeds of any issuance of equity by the Borrower
after the Effective Date.
Section 6.14. Minimum EBITDA. (a) The Borrower will not permit its
Adjusted Consolidated EBITDA, as of the last day of any month commencing
March 31, 1996, to be less than the following amounts calculated on a
cumulative basis:
Minimum Adjusted/
Year to Month End Consolidated EBITDA
March 31, 1996 -$10,000,000
April 30, 1996 -$5,000,000
May 31, 1996 -0-
June 30, 1996 $5,000,000
July 31, 1996 $14,000,000
August 31, 1996 $24,000,000
September 30, 1996 $34,000,000
October 31, 1996 $40,000,000
November 30, 1996 $45,000,000
December 31, 1996 $51,000,000
(b) The Borrower will not permit its Adjusted Consolidated EBITDA, as of
the last day of any fiscal quarter commencing March 31, 1997 and for the
Rolling Period ending on such date, to be less than the following amounts
calculated on a cumulative basis:
Minimum Adjusted/
Year to Quarter End Consolidated EBITDA
March 31, 1997 $65,000,000
June 30, 1997 $70,000,000
September 30, 1997 $75,000,000
December 31, 1997 $80,000,000
March 31, 1998 $85,000,000
June 30, 1998 $90,000,000
Section 6.15. Capital Expenditures. The Borrower will
not make or permit any of its Subsidiaries to make or commit to
make any Capital Expenditure except for (a) Capital Expenditures
in an aggregate amount not to exceed $20,000,000 during fiscal
year 1996, (b) Capital Expenditures in an aggregate amount not
to exceed $50,000,000 in fiscal year 1997, provided that no more
than $35,000,000 of such amount may be spent prior to June 30,
1997, and (c) Capital Expenditures in an aggregate amount not to
exceed $50,000,000 in fiscal year 1998.
Section 6.16. Indebtedness. The Borrower will not incur
or permit to exist, or permit any of its Subsidiaries to incur
or permit to exist, any Indebtedness other than the Obligations
and the following:
(a) the Indebtedness under the Liquidity Facility, provided
that the aggregate principal amount of advances or other credit
extended thereunder does not exceed $30,000,000;
(b) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or another Subsidiary;
(c) Indebtedness outstanding on the Effective Date and
listed on Schedule 6.16;
(d) Indebtedness of a corporation which becomes a
Subsidiary after the date hereof, provided that (i) such
Indebtedness existed at the time such corporation became a
Subsidiary and was not created in anticipation thereof and (ii)
immediately after giving effect to the acquisition of such
corporation by the Borrower or a Subsidiary thereof, no Default
shall have occurred and be continuing;
(e) Capital Leases in connection with permitted Capital
Expenditures pursuant to Section 6.15; (f) Subordinated Debt
and other unsecured senior Indebtedness incurred after the
Effective Date (other than Indebtedness permitted pursuant to
paragraphs (a)-(e) above), provided that the Net Cash Proceeds
of such Subordinated Debt and such other unsecured Indebtedness
are simultaneously used to prepay Advances in accordance with
Section 2.07(c); and
(g) extensions, renewals and refinancing of any of the
Indebtedness specified in paragraphs (a) (f) above so long as
the principal amount of such Indebtedness is not thereby
increased.
Section 6.17. Bank Accounts.
(a) Location of Bank Accounts. Neither the Borrower nor
any of its Subsidiaries shall maintain accounts with any bank or
financial institution (other than a Permitted Account Holder, as
herein defined) if the aggregate balances of all such accounts
held by banks and financial institutions other than Permitted
Account Holders would exceed $6,000,000 on any Business Day.
For purposes of this Section 6.17, "Permitted Account Holders"
means (a) any Bank or (b) any bank or financial institution
which is located in the continental United States (other than
Louisiana) and which has executed and delivered a letter
substantially in the form of the attached Exhibit N.
(b) Concentration Bank Accounts. Neither the Borrower nor
any Guarantor shall move or cancel any of the Concentration Bank
Accounts or make any material changes to the cash management
system described in Section 4.20 without the consent of the
Agent.
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), (h) or (i) or Article VI of
this Agreement or the Borrower shall fail to perform or observe
its covenant in Section 4.4 of the Borrower Security Agreement,
or shall fail to cause any Guarantor to perform or observe its
covenant in Section 4.4 of the Guarantors Security Agreement 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) Invalidity of Subordination Provisions. The
subordination provisions of the Subordinated Debentures shall be
invalidated or otherwise cease to be in full force and effect;
or
(l) Default Under Liquidity Facility. The occurrence of an
"Event of Default", as defined in the Liquidity Facility, unless
such "Event of Default" has been waived in accordance with the
terms of such Liquidity Facility.
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 indebtedness 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 and enforcement of the
Intercreditor Agreement), 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 (including without limitation the
Intercreditor Agreement), 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 Revolving 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 hereunder, (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, 66th Floor, Dallas,
Texas 75202, Attention: Jay Wampler, Senior Vice President
(telecopy: (214)508-0980; telephone: (214)508-3711); 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, and (c) to the extent
not included in the foregoing, the costs of any appraisals,
Title Policies, mortgage and intangible taxes, costs of
recordation of any Mortgage or Uniform Commercial Code financing
statement or continuation statement, and any related title or
Uniform Commercial Code search conducted subsequent to such
recordation, any flood plain search costs, and other costs usual
and customary in connection with the taking of a Lien on real
property.
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 Revolving 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 such Bank's Revolving
Advances and Term Advances, (ii) the amount of the resulting
Revolving Commitment and Advances of the assigning Bank (unless
it is assigning all its Revolving 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
Revolving 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 outstanding Term
Advances assumed by it pursuant to such Assignment and
Acceptance, and if the assigning Bank has retained any Revolving
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 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 Revolving
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 Revolving
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 Revolving 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. Headings Descriptive. The headings of the
several Sections and paragraphs of the Agreement are inserted
for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
Section 9.17. WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND
THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
NOTES OR ANY OTHER CREDIT DOCUMENT OR TO ANY COUNTERCLAIM
THEREIN.
Section 9.18. 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
ADMINISTRATIVE 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:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
DEPOSIT GUARANTY NATIONAL BANK
By:
Title:
PNC BANK, N.A.
By:
Title:
ROYAL BANK OF CANADA
By:
Title:
WELLS FARGO BANK, N.A.
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,
LIMITED, NEW YORK BRANCH
By:
Title:
U.S. NATIONAL BANK OF OREGON
By:
Title:
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By:
Title: