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EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AGREEMENT
USA TRUCK, INC.
FIRST AMENDMENT TO
LOAN AGREEMENT
AMONG
BANK OF AMERICA, N.A.,
AS "ADMINISTRATIVE AGENT"
AND
BANK OF AMERICA, N.A.,
FIRSTAR BANK, N.A.
SUNTRUST BANK
AS "LENDERS"
AND
USA TRUCK, INC.
AS "BORROWER"
DATED AS OF MARCH 30, 2001
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FIRST AMENDMENT TO
LOAN AGREEMENT
This First Amendment to Loan Agreement ("Amendment") is executed as of
March 30, 2001, by and among USA TRUCK, INC., a Delaware corporation
("Borrower"), BANK OF AMERICA, N.A. ("BofA"), as "Administrative Agent" and
"Issuer", and BofA and the other lenders listed on EXHIBIT 3 to this and their
respective successors and assigns, as "Lenders".
RECITALS
WHEREAS, Borrower, Administrative Agent, Issuer and Lenders are parties
to a Loan Agreement dated April 28, 2000, pursuant to which Lenders have
extended a revolving credit facility in the principal amount of $60,000,000.00
to Borrower; and
WHEREAS, Borrower has requested certain modifications to the Loan
Agreement and Lenders have agreed to make the requested modifications on the
terms and conditions set forth in this Amendment.
NOW, THEREFORE, incorporating the Recitals of Fact set forth above and
in consideration of the mutual agreements and covenants contained herein, the
receipt and sufficiency of which are hereby acknowledged, Borrower and Bank
agree as follows:
1. DEFINITIONS. As used in this First Amendment and as amendments and
additions to the definitions set forth in the Glossary of Definitions in Section
2.1 and Exhibit 2.1 of the Loan Agreement, the capitalized terms used in this
Amendment and the Loan Agreement shall have the respective meanings indicated in
Amended Exhibit 2.1.
2. All references herein to the term "Section" shall refer to the
applicable Section of the Loan Agreement
3. Section 3.1.5 of the Loan Agreement is hereby amended by the
deletion of current Section 3.1.5 and the insertion of a new Section 3.1.5 in
lieu thereof as follows:
"3.1.5 Eligible Unencumbered Equipment. "Eligible
Unencumbered Equipment" includes all Unencumbered Revenue Equipment
of Borrower, except Unencumbered Revenue Equipment (i) that is
obsolete, not in good condition, or not either currently usable or
currently saleable in the ordinary course of Borrower's business;
(ii) that it is not subject to a valid and enforceable, first
priority, perfected Security Interest in favor of Administrative
Agent for the benefit of Lenders; (iii) that is subject to a lien
in favor of any person other than the Administrative Agent for the
benefit of Lenders; (iv) that is not satisfactory to Administrative
Agent because of its age, condition, type, or quantity; (v) with
respect to which any of the representations, warranties, covenants
and agreements contained in any of the Loan Documents are not or
have ceased to be complete and correct or have been breached; and
(vi) that has sustained damage precluding use in the ordinary
course of Borrower's business as Unencumbered Revenue Equipment and
such damage is not repaired within thirty (30) days after
sustaining such damage."
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4. Section 4.6 (Commitment Fees; Base Rate Increments and Libor
Increments) of the Loan Agreement is hereby amended by the
modification of the current Level V of the Base Rate and Libor
Increment grid of Section 4.6 and the addition of a new Level VI as
follows:
4.6. Commitment Fee; Base Rate Increments and LIBOR Increments.
Level If the ratio of Total Funded
Debt to EBITDAR (for the
four Fiscal Quarter period Commitment Fee The applicable LIBOR The applicable Base
of Borrower then ended) is: Increment Rate Increment
- ------- ---------------------------- ------------------ --------------------- --------------------
I Less than or equal to 1.75x 20 bps 87.5 bps 0 bps
- ------- ---------------------------- ------------------ --------------------- --------------------
II Greater than 1.75x but less 20 bps 100 bps 0 pbs
than or equal to 2.00x
- ------- ---------------------------- ------------------ --------------------- --------------------
III Greater than 2.00x but less 25 bps 112.5 bps 0 bps
than or equal to 2.25x
- ------- ---------------------------- ------------------ --------------------- --------------------
IV Greater than 2.25x but less 30 bps 125 bps 0 bps
than or equal to 2.50x
- ------- ---------------------------- ------------------ --------------------- --------------------
V Greater than 2.50x but less 37.5 bps 162.5 bps 12.5 bps
than or equal to 2.75x
- ------- ---------------------------- ------------------ --------------------- --------------------
VI Greater than 2.75x 37.5 bps 200 bps 50 bps
- ------- ---------------------------- ------------------ --------------------- --------------------
5. Sections 8.1 (Security Agreement) and 8.2 (Perfection of Security
Interest in Unencumbered Revenue Equipment) of the Loan Agreement are hereby
amended as follows:
(a) By the deletion of current Section 8.1 and the insertion of a new
Section 8.1 in lieu thereof as follows:
"8.1. Security Agreements. Security agreements from
Borrower granting to Administrative Agent for the benefit of
Lenders a Security Interest in all of the Accounts, Inventory,
General Intangibles, Instruments, Documents, Chattel Paper,
Equipment, including, but not limited to, all Unencumbered Revenue
Equipment of Borrower and all other Goods of Borrower, whether now
owned or hereafter acquired, and all proceeds thereof (the
"Personal Property Collateral"), subject only to Permitted Security
Interests (each such security agreement that Borrower executes and
delivers to Administrative Agent for the benefit of Lenders, either
on or after the Execution Date, a "Security Agreement")."
(b) By the deletion of the current first paragraph of Section 8.2 and
the insertion of a new first paragraph of Section 8.2 as follows:
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"8.2. Perfection of Security Interest in Unencumbered
Revenue Equipment and Collateral Agent. Borrower and Administrative
Agent shall take the actions necessary to perfect the
Administrative Agent's Security Interest, the portion of the
Unencumbered Revenue Equipment that consists of tractors purchased
after the Effective Date, and all of the Personal Property
Collateral, other than Unencumbered Revenue Equipment, not
consisting of tractors, purchased on or after the Effective Date.
The Administrative Agent may delegate to the Collateral Agent, in
accordance with the terms of the Collateral Agency Agreement, the
authority to act on behalf of the Administrative Agent to
accomplish the perfection of Administrative Agent's Security
Interest in the Unencumbered Revenue Equipment. Within ten (10)
days of the Effective Date the Borrower and Administrative Agent
shall select a mutually-agreeable collateral agent (the "Collateral
Agent"); provided, however, if Borrower and Administrative Agent
are unable to agree upon the selection of the Collateral Agent,
Administrative Agent shall act as the Collateral Agent. Within
thirty (30) days of the Effective Date, the Administrative Agent,
the Borrower and the Collateral Agent shall execute an agreement
satisfactory to the Administrative Agent (the "Collateral Agency
Agreement") specifying the rights and duties of the Collateral
Agent; the administrative procedures to be utilized to administer
the Perfection Documents, in addition to these set forth herein,
and to release the Administrative Agent's Security Interest on the
Unencumbered Revenue Equipment; the fees to be paid to the
Collateral Agent; terms of indemnification and such other
appropriate terms and conditions. Upon the occurrence of a
Perfection Triggering Event, Borrower shall, upon the request of
Administrative Agent, deliver to the Collateral Agent the
Perfection Documents. The Collateral Agent shall hold the
Perfection Documents for the benefit of the Administrative Agent.
Upon the request of Administrative Agent, after a Perfection
Triggering Event, the Collateral Agent shall commence the
Perfection Procedures in accordance with this Agreement and the
Collateral Agency Agreement. Borrowers hereby authorize the
Collateral Agent and the Administrative Agent and irrevocably
appoint the Administrative Agent (acting by any of its officers) as
Borrowers' agent and attorney-in-fact, which appointment is coupled
with an interest and is therefore irrevocable to do any of the
following at any time as to Unencumbered Revenue Equipment
purchased on or after the Effective Date and after the occurrence
of a Perfection Triggering Event as to the Unencumbered Revenue
Equipment owned by Borrower before the Effective Date until all of
the Loan Obligations are fully paid and satisfied, the Commitments
are terminated and the LCs have expired: (i) execute the Perfection
Documents in the name of the Borrower; (ii) file or record the
Perfection Documents with each such Governmental Authority where
such filing or recordation is necessary to perfect the
Administrative Agent's security interest in the Unencumbered
Revenue Equipment; (iii) take all other acts required to enable
Administrative Agent to obtain a perfected Security Interest in the
Unencumbered Revenue Equipment; and (iv) at Borrowers' expense, pay
or make a Revolving Advance to pay each Governmental Authority any
amounts necessary to cause the recordation or filing of the
Perfection Documents and all other expenses incurred by the
Collateral Agent or Administrative Agent in perfecting the
Administrative Agent's security interest in the Unencumbered
Revenue Equipment (collectively the "Perfection Procedures"). All
payments made pursuant to this section and all out-of-pocket costs
and expenses of Administrative Agent or Collateral Agent that
Lenders pay or incur in connection with the perfection of the
Security Interest of Administrative Agent in the Unencumbered
Revenue Equipment shall be a part of the Loan Obligations, the
repayment of which shall be secured by the Collateral.
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6. Non-Waiver of Triggering Event Perfections Requirements. Borrower
agrees that in the event a Perfection Triggering Event has occurred prior to the
Amendment Date, that the failure of the Administrative Agent to require the
perfection of Administrative Agent's Security Interest in all of the
Unencumbered Revenue Equipment shall not constitute a waiver of the
Administrative Agent's rights under the Loan Documents to require the perfection
of Administrative Agent's Security Interest in all of the Unencumbered Revenue
Equipment on account of the occurrence of a Perfection Triggering Event that
occurs either before or after the Amendment Date.
7. Section 14.12.1 of the Loan Agreement is hereby amended by the
deletion of the current Section 14.12.1 and the insertion of a new Section
14.12.1 in lieu thereof as follows:
"14.12.1. Preservation and Perfection of Security
Interests in Personal Property Collateral. Borrower shall promptly,
upon the reasonable request of Administrative Agent as to all
Collateral other than Unencumbered Revenue Equipment consisting of
trailers and those tractors owned prior to the Effective Date, and
upon the occurrence of a Perfection Triggering Event as to all
Collateral and at Borrower's expense, execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of,
and thereafter file or record in the appropriate governmental
office, any document or instrument supplementing or confirming the
Security Documents or otherwise deemed necessary by Administrative
Agent to create, preserve or perfect any Security Interest in
Personal Property Collateral purported to be created by the
Security Documents or to fully consummate the transactions
contemplated by the Loan Documents. The foregoing actions by
Borrower shall include (i) filing financing or continuation
statements, and amendments thereof, in form and substance
satisfactory to Administrative Agent; (ii) delivering to
Administrative Agent all other Collateral of which Administrative
Agent determines it should have physical possession in order to
perfect and protect Administrative Agent's Security Interest for
the benefit of Lenders therein, duly endorsed or assigned to
Administrative Agent without restriction; (iii) delivering to
Administrative Agent all letters of credit on which Borrower is
named beneficiary; (iv) placing a durable notice of the existence
of Administrative Agent's Security Interest for the benefit of
Lenders, satisfactory to Administrative Agent, upon such items of
the Collateral as are designated by Administrative Agent;(v)
placing a notice of the existence of Administrative Agent's
Security Interest for the benefit of Lenders, satisfactory to
Administrative Agent, upon those writings evidencing the Collateral
and the books and records of Borrower pertaining to the Collateral,
as designated by Administrative Agent; and (vi) filing or recording
in the appropriate governmental office the Perfection Documents."
8. Section 16.3 of the Loan Agreement is hereby amended by the deletion
of the current Section 16.3 and the insertion of a new Section 16.3 in lieu
thereof as follows:
"16.3. Minimum Fixed Charge Coverage Ratio. Commencing
with the Fiscal Quarter ending March 31, 2001, Borrower's Fixed
Charge Coverage Ratio, measured at the end of each Fiscal Quarter
shall not be less than the respective ratio hereafter set forth as
being applicable to each such Fiscal Quarter:
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Fiscal Quarter Fixed Charge
Ending Date Coverage Ratio
-------------- --------------
March 31, 2001 1.00:1
June 30, 2001 1.00:1
September 30, 2001 1.00:1
December 31, 2001 1.10:1
March 31, 2001 1.10:1
June 30, 2001 1.15:1
September 30, 2002 1.15:1
December 31, 2002 and thereafter 1.20:1"
9. The Disclosure Schedule to the Loan Agreement is amended by the
modification of the Section 12.32 disclosures set forth thereon to insert the
disclosure of two wholly-owned subsidiaries as follows: International Freight
Services, Inc., a Texas corporation and a company organized under the laws of
Mexico.
10. CONDITIONS PRECEDENT. Lenders' Administrative Agent's and Issuer's
obligation to enter into this Amendment and to otherwise be bound by the
Amendment shall be subject to the following conditions precedent:
(a) Administrative Agent shall have received all of the following, each
dated (unless otherwise indicated) the Amendment Date, in form and substance
satisfactory to Lenders:
(1) OFFICER'S CERTIFICATE. A certificate,
substantially in the form of EXHIBIT "10.2" hereto, signed by an
officer of Borrower, stating that (to his or her best knowledge and
belief after reasonable and due investigation and review of matters
pertinent to the subject matter of such certificate): (i) all of
the representations and warranties contained in the Loan Agreement
are true and correct as of the Amendment Date; and (ii) no event
has occurred and is continuing, or would result from an Advance
which constitutes an Extant Default or cause an Extant Default to
occur.
(2) INCUMBENCY CERTIFICATE. A signed certificate,
substantially in the form of EXHIBIT "10.3" hereto, of the
Secretary or Assistant Secretary of Borrower which shall certify
the names of the officers of Borrower authorized to sign each of
the Loan Documents and the other documents or certificates to be
delivered by Borrower pursuant to the First Amendment and other
Loan Documents, together with the true signatures of each of such
officers. Administrative Agent and Lenders may conclusively rely on
such certificates until Administrative Agent and Lenders shall
receive a further certificate of the Secretary or Assistant
Secretary of Borrower canceling or amending the prior certificate
and submitting the signatures of the officers named in such further
certificate.
(3) RESOLUTIONS OF BORROWER. Resolutions,
substantially in the form of EXHIBIT "10.4" hereto, of the Board of
Directors of Borrower approving the execution, delivery and
performance of the Amendment, the Amended Security Agreement and
the other Loan Documents executed by Borrower and authorizing the
consummation of the transactions contemplated herein and therein,
duly adopted by the Board of Directors and accompanied by a
certificate of the Secretary or Assistant Secretary of Borrower
stating that such resolutions are true and correct, have not been
altered or repealed and are in full force and effect on the
Amendment Date.
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(4) AMENDED SECURITY AGREEMENT. The duly executed
Amended Security Agreement of Borrower, in substantially the form
of EXHIBIT "10.5" hereto.
(5) LIEN SEARCHES. Uniform Commercial Code or other
Lien searches from such recording or abstract offices as
Administrative Agent shall specify, evidencing the priority of
Administrative Agent's Security Interest under the Security
Agreement and Amended Security Agreement over any other
Encumbrances, except for Permitted Security Interest. The searches
must be dated no earlier than five (5) days prior to the Amendment
Date.
(6) UNIFORM COMMERCIAL CODE FINANCING STATEMENTS. Duly
executed Uniform Commercial Code Financing Statements in a form
satisfactory to Administrative Agent to the extent required to
perfect Administrative Agent's Security Interest in the Collateral
that may be perfected by the filing of Financing Statements.
(7) PAYMENT OF ATTORNEYS FEES AND COSTS. Payment by
Borrower of the legal fees and costs incurred by Administrative
Agent or Lenders in connection with the First Amendment no later
than thirty (30) days after the Amendment Date.
(8) AMENDMENT FEE. Borrower shall have paid to the
Administrative Agent for the benefit of Lenders an Amendment Fee of
$75,000.00 and all other fees and costs owing to Administrative
Agent.
(9) ADDITIONAL INFORMATION AND DOCUMENTS. Such other
information and documents as may reasonably be requested by
Lenders, Issuer, Administrative Agent or their counsel;
(b) The representations and warranties contained herein and in all the
other Loan Documents shall be true and correct as of the Amendment Date as if
made on the Amendment Date;
(c) No Extant Default shall exist; and
(d) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments, and other legal
matters incident thereto shall be satisfactory to Lenders, Administrative Agent,
Issuer and their counsel.
11. REAFFIRMATION. Except to the extent the provisions of the Loan
Documents are specifically amended, modified or superseded by this Amendment,
the representations, warranties and affirmative and negative terms, conditions,
agreements, obligations and covenants of Borrower contained in the Loan
Documents shall remain in full force and effect without any modification
whatsoever and shall continue to apply to the Loan and other obligations of
Borrower under the Loan Agreement, the Notes and other Loan Documents. Borrower
hereby restates and reaffirms each and every term and provision of the Loan
Documents, including but not limited to all representations, warranties and
affirmative and negative covenants.
12. ATTORNEYS FEES. Borrower agrees to pay all attorneys fees and other
costs incurred by Administrative Agent or Lenders in connection with the
preparation of the Amendment and all other matters related to or subject to the
provisions of the Amendment.
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13. FURTHER ACTS. In addition to the acts and deeds stated herein and
contemplated to be performed, executed and delivered by the respective parties
herein, each of the parties hereto agrees to perform, execute and deliver, or
cause to be performed, executed and delivered, any and all such further acts,
deeds and assurances as may be reasonably necessary to consummate the
transactions contemplated herein.
14. MISCELLANEOUS.
(a) Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and all future holders of the
Notes and their respective successors and assigns, except that Borrower may not
assign, delegate or transfer any of its rights or obligations under this
Amendment without the prior written consent of Administrative Agent and Required
Lenders. With respect to Borrower's successors and assigns, such successors and
assigns shall include any receiver, trustee or debtor-in-possession of or for
Borrower. Each Lender may, in a manner satisfactory to Administrative Agent and
Borrower, assign its rights and delegate its obligations under the Loan
Documents. For this purpose, such Lender may disclose to a potential or actual
assignee any information supplied to such Lender by or on behalf of Borrower.
(b) Severability. Any provision of this Amendment which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction unless the ineffectiveness of such provision
would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
(c) Counterparts. This Amendment may be executed by the parties
hereto on any number of separate counterparts, and all such counterparts taken
together shall constitute one and the same instrument. It shall not be necessary
in making proof of this Amendment to produce or account for more than one
counterpart signed by the party to be charged.
(d) Governing Law; No Third Party Rights. This Amendment and the
rights and obligations of the parties hereunder and thereunder shall be governed
by and construed and interpreted in accordance with the internal laws of the
State of Missouri applicable to contracts made and to be performed wholly within
such state. This Amendment is solely for the benefit of the parties hereto and
their respective successors and assigns, and no other Person shall have any
right, benefit, priority or interest under, or because of the existence of, this
Amendment.
(e) Captions. Section captions are for convenience only and shall
not affect the interpretation or construction of this Amendment or the other
Loan Documents.
(f) Counterpart Facsimile Execution. For purposes of this
Amendment, a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original document. The
signature of any Person thereon, for purposes hereof, is to be considered as an
original signature, and the document transmitted is to be considered to have the
same binding effect as an original signature on an original document. At the
request of any party hereto, any facsimile or telecopy document is to be
re-executed in original form by the Persons who executed the facsimile or
telecopy document. No party hereto
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may raise the use of a facsimile machine or telecopier or the fact that any
signature was transmitted through the use of a facsimile or telecopier machine
as a defense to the enforcement of this Amendment or any amendment or other
document executed in compliance with this Section.
(g) Construction. Unless the context of this Amendment clearly
requires otherwise: (i) references to the plural include the singular and vice
versa; (ii) references to any Person include such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Amendment; (iii) references to one gender include all genders; (iv)
"including" is not limiting; (v) "or" has the inclusive meaning represented by
the phrase "and/or"; (vi) the words "hereof", "herein", "hereby", "hereunder"
and similar terms in this Amendment refer to this Amendment as a whole,
including its Exhibits and Appendices, and not to any particular provision of
this Amendment; (vii) the word Section or section and Page or page refer to a
section or page, respectively, and the word "Exhibit" refers to an Exhibit to
this Amendment unless it expressly refers to something else; (viii) reference to
any agreement (including this Amendment), document or instrument, including one
defined herein, means such agreement, document or instrument as amended or
modified and in effect from time to time in accordance with the terms thereof
and, if applicable, the terms hereof; and (ix) general and specific references
to any Law means such Law as amended, modified, codified or reenacted, in whole
or in part, and in effect from time to time.
(h) Negotiated Transaction. Borrower, Administrative Agent and each
Lender represent each to the others that in the negotiation and drafting of this
Amendment and the other Loan Documents they have been represented by and have
relied upon the advice of counsel of their choice. Borrower and Administrative
Agent affirm that their counsel have both had substantial roles in the drafting
and negotiation of this Amendment and each Lender affirms that its counsel has
participated in the drafting and negotiation of this Amendment; therefore, this
Amendment will be deemed drafted by all of Borrower, Administrative Agent and
Lenders, and the rule of construction to the effect that any ambiguities are to
be resolved against the drafter will not be employed in the interpretation of
this Amendment.
(i) MANDATORY ARBITRATION ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG
THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING
TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE AMERICAN
ARBITRATION ASSOCIATION AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF
ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS AMENDMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AMENDMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(j) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN ST. LOUIS,
MISSOURI AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION WHO WILL
APPOINT THREE ARBITRATORS HAVING THE
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FOLLOWING QUALIFICATIONS: (i) ONE OF THE ARBITRATORS SHALL BE AN ATTORNEY
LICENSED TO PRACTICE IN THE STATE OF MISSOURI WITH EXTENSIVE EXPERIENCE IN
REPRESENTING BANKS IN LENDING TRANSACTIONS; (ii) THE OTHER TWO (2) ARBITRATORS
SHALL HAVE EXTENSIVE EXPERIENCE AS A BANK LENDING OFFICER WHICH INCLUDES
EXPERIENCE IN SYNDICATED LOAN TRANSACTIONS IN EXCESS OF $30,000,000 AND HAVE
HELD AN OFFICER'S TITLE OF NOT LESS THAN SENIOR VICE PRESIDENT and (iii) EACH OF
THE ARBITRATORS SHALL BE INDEPENDENT AND WITHOUT CONFLICT OF INTEREST,
INCLUDING, BUT NOT LIMITED TO, HAVING NO FINANCIAL, CONSULTING OR OTHER
CONTRACTUAL AGREEMENTS OR FINANCIAL INTEREST WITH OR IN ANY PARTY OR AN
AFFILIATE OF ANY PARTY. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) CALENDAR DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATORS SHALL
ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL SIXTY (60) CALENDAR DAYS.
(k) RESERVATION OF RIGHTS. NOTHING IN THIS AMENDMENT OR ANY OTHER
LOAN DOCUMENT SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
AMENDMENT OR ANY OTHER LOAN DOCUMENT; OR (II) BE A WAIVER BY ADMINISTRATIVE
AGENT OR ANY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF ADMINISTRATIVE
AGENT OR ANY LENDER (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY COLLATERAL, OR (C) TO OBTAIN FROM A
COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE
RELIEF OR THE APPOINTMENT OF A RECEIVER. ADMINISTRATIVE AGENT OR ANY LENDER MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON THE COLLATERAL, OR TAKE ANY OTHER
ACTION WITH RESPECT TO THE COLLATERAL, BORROWER, ANY OTHER COVERED PERSON, ANY
GUARANTOR OR ANY OTHER PERSON LIABLE FOR ALL OR ANY PORTION OF THE LOAN
OBLIGATIONS OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS. AT THE OPTION OF ADMINISTRATIVE
AGENT OR ANY LENDER, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE MAY BE
ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE
DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF TRUST OR
MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THE EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. NO PROVISION IN THIS
AMENDMENT OR IN ANY OTHER LOAN DOCUMENT REGARDING SUBMISSION TO JURISDICTION,
CHOICE OF FORUM, WAIVER OF JURY TRIAL AND/OR VENUE IN ANY COURT IS INTENDED OR
SHALL BE CONSTRUED TO BE IN DEROGATION OF THE PROVISIONS IN THIS AMENDMENT OR
ANY OTHER LOAN DOCUMENT FOR ARBITRATION OF ANY CONTROVERSY OR CLAIM.
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(l) CHOICE OF FORUM. IF THIS AMENDMENT IS FOUND NOT TO BE SUBJECT
TO ARBITRATION, THEN: SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE,
BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY AGREES TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL COURT OF THE EASTERN DISTRICT OF MISSOURI AND THE
STATE COURTS OF MISSOURI LOCATED IN ST. LOUIS AND WAIVES ANY OBJECTION BASED ON
VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND
AGREES THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN ADMINISTRATIVE
AGENT, LENDERS, AND BORROWER OR THE CONDUCT OF ANY OF THEM IN CONNECTION WITH
THIS AMENDMENT OR OTHERWISE SHALL BE HEARD ONLY IN THE COURTS DESCRIBED ABOVE.
NOTWITHSTANDING THE FOREGOING: (1) ADMINISTRATIVE AGENT OR ANY LENDER SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN
ANY COURTS OF ANY OTHER JURISDICTION ADMINISTRATIVE AGENT OR ANY LENDER DEEM
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL, REAL ESTATE OR
OTHER SECURITY FOR THE LOAN OBLIGATIONS, AND (2) EACH OF THE PARTIES HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE
JURISDICTIONS.
(m) WAIVER OF JURY TRIAL. IF THIS AMENDMENT IS FOUND NOT TO BE
SUBJECT TO ARBITRATION, THEN: WITHOUT INTENDING TO ALTER OR LIMIT THE PROVISIONS
OF SECTION 21.12, BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1)
ARISING UNDER THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM IN RESPECT OF THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AMENDMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(n) Incorporation By Reference. All of the terms of the other Loan
Documents are incorporated in and made a part of this Amendment by this
reference.
(o) Statutory Notice - Oral Commitments. The following notice is
given pursuant to Section 432.045 of the Missouri Revised Statutes; nothing
contained in such notice shall be deemed to limit or modify the terms of the
Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITOR) FROM
MISUNDERSTANDING OR
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DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
(p) No Other Agreements. Except for this Amendment and the other
Loan Documents, there are no other agreements between Administrative Agent,
Lenders, and Borrower, oral or written, concerning the subject matter of the
Loan Documents, and all prior agreements concerning the same subject matter,
including any commitment letter, are merged into the Loan Documents and thereby
extinguished.
IN WITNESS WHEREOF, we have executed this Amendment on the date and year above
written.
BORROWER:
USA TRUCK, INC., a Delaware corporation
By: /s/ Robert M. Powell
----------------------------------------------
Robert M. Powell
President and Chief Executive Officer
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Keith M. Schmelder
----------------------------------------------
Keith M. Schmelder
Vice President
FIRSTAR BANK, N.A.
By: /s/ John Holland
----------------------------------------------
John Holland
Senior Vice President
SUNTRUST BANK
By: /s/ James L. Mosby
----------------------------------------------
James L. Mosby
Vice President
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