EXHIBIT 10
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT amends that certain Credit Agreement dated as of May 15,
1997 (the "AGREEMENT"), by and between Transport Corporation of America, Inc., a
Minnesota corporation ("BORROWER") and Firstar Bank of Minnesota, National
Association (the "BANK"). All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Agreement.
1. DEFINITIONS. The following definitions are hereby deleted and
replaced with the following:
"ADJUSTED LIBOR RATE" shall mean, for any Interest Period and
the applicable LIBOR Rate Advance, the per annum rate of interest equal
to the sum of (a) one hundred twenty-five basis points (1.25%), plus
(b) the per annum rate (rounded up, if necessary, to the nearest
one-sixteenth of one percent (1/16%)) determined by dividing (i) the
LIBOR Rate for such LIBOR Rate Advance and related Interest Period, by
(ii) an amount equal to one minus the stated maximum rate (expressed as
a decimal) of all reserve requirements (including any basic, marginal,
emergency, supplemental, special or other reserves) that is specified
from time to time during an Interest Period by the Board of Governors
of the Federal Reserve System (or any successor agency) for funding
"Eurocurrency Liabilities" pursuant to Regulation D of such Board or
any other then applicable successor regulation, without benefit of
credit or prorations, exemptions or offsets which might otherwise be
available to the Bank from time to time under Regulation D.
"BORROWING BASE" shall mean an amount equal to the sum of (a)
eighty-five percent (85%) of all Eligible Accounts, plus (b)
seventy-five percent (75%) of the net book value of Eligible Equipment,
each as determined as of the last day of the most recent calendar month
and at such other times as may be required by the Bank.
"BORROWING BASE CERTIFICATE" shall mean the certificate in the
form of Exhibit A to this First Amendment, or such other form
prescribed by the Lender from time-to-time pursuant to Section 6.18 of
the Credit Agreement.
"ELIGIBLE EQUIPMENT" shall mean all certificated tractors and
trailers owned by the Borrower as equipment and used for transport in
the ordinary course of the Borrower's business and listed on Schedule B
to the Security Agreement or any schedule of pledged equipment
delivered by the Borrower to the Bank pursuant to Section 6.18(h) of
the Credit Agreement, provided such trucks and trailers:
(a) (i) are subject to a perfected, first priority
security interest in favor of the Bank in accordance
with all applicable state titling statutes and are
free and clear of all other Liens, or (ii) between
the Closing Date (as defined in the North Star
Acquisition Agreement) and August 31, 1998, are
subject to a negative pledge granted in accordance to
Section 5 of the First Amendment to Credit Agreement;
(b) are in good condition free from any defects that
would negatively affect the market value thereof in a
material way;
(c) are not, as reasonably determined by the Bank,
unusable in the ordinary course of Borrower's
business; and
(d) are insured against loss or damage in accordance with
the provisions of the Security Agreement.
"NORTH STAR ACQUISITION AGREEMENT" shall mean that certain
Stock Purchase Agreement By and Among Transport Corporation of America,
Inc., North Star Transport, Inc. and The Shareholders of North Star
Transport, Inc. dated as of May 20, 1998, a true copy of which has been
delivered to the Bank.
"REVOLVING NOTE" shall mean the Revolving Credit Note dated
May 15, 1998, made payable by the Borrower to the order of the Bank in
the original principal amount of $25,000,000.
"TERMINATION DATE" shall mean the earlier of August 31, 1998
or the date on which an Event of Default has occurred and the Bank
determines to extinguish its commitment hereunder.
2. REVOLVING LOAN. Article III of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"ARTICLE III. REVOLVING LOAN
3.1 NATURE OF LOAN COMMITMENT/MAXIMUM OF ADVANCES. Subject to the terms
and conditions of this Agreement, the Bank shall make Advances to the
Borrower from time to time from the date hereof to the Termination Date
in an aggregate principal amount not to exceed at any time the lesser
of (i) Twenty-Five Million Dollars ($25,000,000) less the sum of (a)
the L/C Amount and (b) the Obligation of Reimbursement or (ii) the
Borrowing Base less the sum of (a) the L/C Amount and (b) the
Obligation of Reimbursement (the "Revolving Credit Commitment"). All
Advances pursuant to the Revolving Credit Commitment, including
Advances made by the Bank pursuant to Section 2.1 for Borrower's
Obligation of Reimbursement, shall be evidenced by the Revolving Note;
provided that the Borrower shall be obligated to pay only the amount
that is actually disbursed hereunder, together with accrued interest on
the outstanding balance at the rates provided in Section 3.4 hereof.
The Borrower may borrow, prepay and reborrow within such limit pursuant
to this Agreement and the Revolving Note.
3.2 TYPES OF ADVANCES; CERTAIN LIMITATIONS. Each Advance by the Bank
under the Revolving Credit Commitment may be either a LIBOR Rate
Advance or a Prime Rate Floating Advance. LIBOR Rate Advances and Prime
Rate Floating Rate Advances may be outstanding at the same time;
provided, however, that no more than eight (8) LIBOR Rate Advances may
be outstanding at any one time. The principal amount of each LIBOR Rate
Advance shall be not less than $100,000 or an integral multiple
thereof.
3.3 PURPOSE FOR ADVANCES. Except with the prior written consent of the
Bank, all Advances under Article III shall be used exclusively for the
Borrower's working capital and other general business purposes;
provided that up to $15,800,000 of Advances under Article III may be
used for acquisition financing for the purpose of acquiring North Star
Transport.
3.4 COMPUTATION OF INTEREST. The Advances under the Revolving Credit
Commitment shall bear interest on the unpaid principal amount thereof
as follows:
(i) For LIBOR Rate Advances, at a fluctuating rate
per annum equal to the Adjusted LIBOR Rate, and
(ii) For Floating Rate Advances, at a fluctuating
rate per annum equal to the Prime Rate Floating Rate less one
hundred forty basis points (1.40%) per annum.
All interest payable on Advances shall be computed on the
basis of actual days elapsed and a year of 360 days. Interest shall be
payable monthly in arrears on the last business day of each month
commencing on June 30, 1998, and at maturity.
3.5 MATURITY. The Revolving Note shall be expressed to mature on the
earlier of: (i) August 31, 1998 or (ii) upon the occurrence of an Event
of Default. All amounts outstanding under the Revolving Note shall be
immediately due and payable at maturity (whether by acceleration or
otherwise).
3.6 RECORDKEEPING. Bank shall record in its records, the date and
amount of each Advance made thereon by Bank, and each repayment
thereof. The aggregate unpaid principal amount so recorded shall be
presumptive evidence of the principal amount of the Advances owing and
unpaid by the Borrower thereon. The failure to so record any such
amount or any error in so recording any such amount shall not, however,
limit or otherwise affect the Obligations of the Borrower hereunder or
under the Revolving Note to repay the principal amount of the Advances
together with all interest accrued thereon.
3.7 NON-USE FEES. The Borrower agrees to pay the Bank, not later than
ten (10) days after receipt of a statement therefor, a fee equal to
one-quarter of one percent (1/4%) per annum times the average daily
unused portion of the Revolving Credit Commitment, payable quarterly in
arrears commencing July 1, 1998, and as of the maturity date of the
Revolving Note."
3. Section 5.6(b) is hereby deleted in its entirety and replaced with
the following:
"CONVERSION OF LIBOR RATE ADVANCES TO FLOATING RATE ADVANCES.
Notwithstanding Section 5.6(a), if such Section would otherwise be
applicable but the Bank could lawfully maintain the LIBOR Rate Advances
at the Prime Rate less 1.40% per annum then, during such period as the
Bank cannot maintain the LIBOR Rate Advances at the Adjusted LIBOR
Rate, the LIBOR Rate Advances shall bear interest at a per rate equal
to Prime Rate less 1.40% per annum in effect from time to time. If the
Bank determines that all events or conditions making it unlawful or
impossible for the Bank to maintain the LIBOR Rate Advances at the
Adjusted LIBOR Rate cease to exist, then Advances may again bear
interest at the Adjusted LIBOR Rate, subject to the other terms and
conditions of this Agreement."
4. MANDATORY PREPAYMENT. Section 5.1 is deleted in its entirety and
replaced with the following:
"if at any time the outstanding Obligations of the Borrower exceeds the
Revolving Credit Commitment, the Borrower shall immediately repay the
excess."
5. NEGATIVE PLEDGE OF EQUIPMENT. The Borrower agrees that it shall not
create or permit to exist any security interest on any of its trucks and
trailers that have not previously been pledged to any other party, whether now
owned or hereafter acquired. Simultaneously with the execution of this
Amendment, the Borrower shall deliver to the Lender a schedule of such
previously unpledged trucks and trailers, setting forth the net depreciated book
value of each such truck or trailer, certified as correct by the Borrower's
chief financial officer. Borrower agrees that, at the request of the Lender, it
shall promptly deliver certificates of title and completed applications for
notation of the Lender's lien for each such truck and trailer.
6. PRECONDITIONS TO EFFECTIVENESS. This Amendment shall only become
effective upon (a) the execution of the Amendment and the Revolving Credit Note
by the Borrower and the Bank, and (b) execution and delivery by the Borrower of
(i) the items described in Paragraph 3 above; (ii) a current Borrowing Base
Certificate; (iii) an opinion of Borrower's counsel satisfactory to the Lender's
counsel; and (iv) any and all additional related documents referred to in this
Amendment or as otherwise may be required by the Lender.
7. CONSENT AND ACKNOWLEDGMENT OF CORPORATE GUARANTORS. By executing the
acknowledgment below, TCA of Ohio, Inc. and Transport International Express,
Inc. (each a "Corporate Guarantor" and collectively, the "Corporate Guarantors")
each hereby (a) consents to each and all of the provisions of this Amendment,
and (b) acknowledges and agrees that the Guaranty executed by it and delivered
to the Lender remains in full force and effect in accordance with its original
terms, not subject to any defense, counterclaim or right of setoff.
8. REPRESENTATIONS REAFFIRMED. The Borrower and each Corporate
Guarantor hereby warrants and represents to the Lender that (a) each and all of
the representations and warranties set forth and contained in the Loan Agreement
and the other Loan Documents are true, correct and complete in all respects as
of the date hereof, and (b) no Default or Event of Default has occurred and is
continuing as of the date hereof.
9. NO WAIVERS. The Borrower and each Corporate Guarantor hereby
acknowledges and agrees that by executing and delivering this Agreement to the
Lender it is not waiving any existing Defaults or Event of Default, whether
known or unknown, nor is the Lender waiving any of its rights or remedies under
the Loan Agreement or any of the Loan Documents, provided, however that the Bank
does consent to Borrower entering into and consummating the transaction
contemplated by the North Star Acquisition Agreement in accordance with the
terms thereof, and the Bank hereby waives any Event of Default under Section
6.23 of the Agreement for doing so.
10. NO SET-OFF. The Borrower and each Corporate Guarantor acknowledges
to and agrees with the Lender that no events, conditions or circumstances have
arisen or exist as of the date hereof which would give the Borrower the right to
assert a defense, counterclaim and/or setoff to any claim by
the Lender for payment of the Obligations, and if any so exist as of the date
hereof, whether known or unknown, absolute or contingent, liquidated or
unliquidated, the same are hereby waived.
11. RELEASE. The Borrower and each Corporate Guarantor hereby releases
the Lender and each of its officers, directors, agents, employees, legal counsel
and other representatives from any and all claims, demands, causes of action,
liability, damage, loss, cost and expense arising from and/or which it has paid,
incurred or sustained or believe it has paid, incurred or sustained, known or
unknown, absolute or contingent, liquidated or unliquidated, as a result of or
related to (a) the transactions evidenced by or related to the Loan Documents
and any and all other documents, agreements or instruments related thereto, or
(b) any acts or omissions of the Lender or any of its officers, directors,
agents, employees, legal counsel or other representatives in connection
therewith or related thereto, or (c) the extension or denial of credit.
12. MERGER. All prior oral and written communications, commitments,
alleged commitments, promises, alleged promises, agreements and alleged
agreements by or between the Lender and the Borrower are hereby merged into this
Agreement and the Loan Documents, and shall not be enforceable unless expressly
set forth in this Agreement and the Loan Documents.
13. NO OTHER AMENDMENTS. Except as expressly amended hereby or as
previously amended in writing, each of the Loan Agreement and the other Loan
Documents shall remain in full force and effect in accordance with their
original terms.
14. LEGAL EXPENSES. The Borrower shall pay and will reimburse the Bank
on demand for all reasonable out-of-pocket expenses incurred by the Bank
relating to this Amendment, including without limitation reasonable attorneys'
fees and legal expenses incurred for the preparation of this Amendment.
15. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, each of which shall be considered as an original, but when taken
together shall constitute one document.
16. AUTHORIZATION. The Borrower and each Corporate Guarantor represents
and warrants that the execution, delivery and performance of this Amendment and
the documents referenced herein are within the corporate powers of the Borrower
and have been duly authorized by all necessary corporate action.
IN WITNESS WHEREOF, the parties have executed this Amendment as of this
24th day of June, 1998.
FIRSTAR BANK OF MINNESOTA, NATIONAL
ASSOCIATION
By
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Its
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TRANSPORT CORPORATION OF AMERICA, INC.
By
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Its
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ACKNOWLEDGEMENT OF CORPORATE GUARANTORS:
TCA OF OHIO, INC. TRANSPORT INTERNATIONAL EXPRESS, INC.
By By
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Its Its
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