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Exhibit 10.1
RESTATED, AMENDED AND REPLACEMENT
PROMISSORY NOTE
(LINE OF CREDIT)
$15,000,000.00 Greeneville, Tennessee
As of January 30, 1998
FOR VALUE RECEIVED, the undersigned, each a Tennessee corporation, jointly and
severally promise to pay to the order of FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association having offices for the conduct of
business in Greene County, Tennessee (the "Bank") at its place of business in
Greeneville, Tennessee, with the mailing address of "206 North Main Street,
Greeneville, TN 37745, ATTN: Larry Estepp," or at such other place as the holder
hereof may designate in writing, in current local funds, the sum of Fifteen
Million Dollars ($15,000,000.00), or so much thereof as may be advanced by the
Bank in accordance with the terms and provisions of the Credit Agreement, plus
interest thereon or on so much as shall remain outstanding from time to time, as
set out below. This Note is referred to as the "Line Note" in the Credit
Agreement.
This Note is made in replacement of a Fifteen Million Dollar ($15,000,000.00)
restated, amended and replacement promissory note made as of January 28, 1997,
by the undersigned and payable to the order of the Bank, which was made in
replacement of a Fifteen Million Dollar ($15,000,00.00) restated, amended and
replacement promissory note made as of May 31, 1995, by the undersigned Landair
Services, Inc. and guarantied by the other undersigned makers, payable to the
order of the Bank, the outstanding principal amount of which is Ten Million Nine
Hundred Sixty Thousand Three Hundred Seventy-Three and 09/100 Dollars
($10,960,373.09) as of this day (the "Original Principal"). Accordingly, the
amount of principal available to be drawn or further reserved under this Note in
accordance with the provisions of the Credit Agreement is Four Million
Thirty-Nine Thousand Six Hundred Twenty-Six and 91/100 Dollars ($4,039,626.91)
as of this day. The Original Principal includes the face amount of irrevocable
letters of credit issued by the Bank for the account and benefit of the
undersigned in the aggregate amount of Eight Million One Hundred Four Thousand
One Hundred Ninety Dollars ($8,104,190.00).
INTEREST ACCRUAL: Except during any period during which a default
interest rate shall be applicable as described below, interest shall accrue at
the variable rate per annum, rounded upward, if necessary, to the nearest Basis
Point (the "Variable Rate"), equal to the LIBOR Rate plus one hundred
thirty-five (135) Basis Points expressed on a per annum basis with respect to
the Original Principal and with respect to all other principal indebtedness
advanced by the Bank hereunder. Each change in the Variable Rate that results
from a change in the LIBOR Rate shall become effective on each adjustment date
which shall occur on the first day of each month commencing February 1, 1998.
Interest shall be calculated based upon and computed on a three hundred sixty
(360) day year.
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INTEREST AND PRINCIPAL PAYMENTS: The undersigned shall make payments of
principal and interest as follows: one single principal payment of the balance
due on or before May 31, 1999, plus interest payable beginning February 10,
1998, and continuing on the same day of each successive monthly calendar period,
except that the final interest installment shall be payable on the date the
principal is due. All unpaid principal and interest evidenced hereby shall be
due and payable on the maturity date hereof, which shall be May 31, 1999.
LIBOR RATE DEFINITIONS: As used in this Note, the following terms shall
have the following meanings:
(a) Basis Point: One-hundredth (1/100) of one percent (1.0%)
per annum.
(b) Business Day: Any day other than a Saturday, Sunday,
holiday or other day on which state-chartered commercial
banking institutions in Greeneville, Tennessee are authorized
by law to be closed.
(c) LIBOR Business Day: A Business Day on which commercial
banks are open for international business (including dealings
in Dollar deposits) in London or such other eurodollar
interbank market as may be selected by the Bank in its sole
discretion acting in good faith.
(d) LIBOR Interest Period: With respect to the Original
Principal and with respect to all other principal indebtedness
advanced by the Bank hereunder, one (1) month periods, each
period commencing on the date of Bank's funding or on the last
day of the preceding applicable period, as the case may be;
provided that the foregoing provisions relating to LIBOR
Interest Period are subject to the following:
(i) if any LIBOR Interest period would otherwise end
on a day that is not a LIBOR Business Day, that LIBOR
Interest Period shall be extended to the next
succeeding LIBOR Business Day unless the results of
such extension would be to carry such LIBOR Interest
Period into another calendar month, in which event
such LIBOR Interest Period shall end on the
immediately preceding LIBOR Business Day;
(ii) any LIBOR Interest Period that begins on the
last LIBOR 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 LIBOR
Interest Period) shall end on the last LIBOR Business
Day of a calendar month; and
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(iii) any LIBOR Interest Period that would otherwise
extend beyond the maturity of this Note shall end on
the maturity date of this Note.
(e) LIBOR Rate: During any LIBOR Interest Period, an interest
rate per annum equal to the quotient (converted to a
percentage) of (i) the rate per annum as determined and
calculated by the Bank at or about 9:00 o'clock A.M. (Eastern
Time) (or as soon thereafter as practicable) on the second
Business Day prior to the first day of each LIBOR Interest
Period, to be the average of interbank offered rates for
dollar deposits in the London market based on quotations at
five (5) major banks, for thirty (30) days or one (1) month
deposits, as most recently published in the Wall Street
Journal, "Money Rates Section" under the category "London
Interbank Offered Rates (LIBOR)," divided by (ii) 1.00 minus
the LIBOR Reserve Requirement (as defined below), expressed as
a decimal, for such LIBOR Interest Period. If such rate ceases
to be published in the Wall Street Journal, the LIBOR Rate
shall be the London Rate Eurodollar 30-day or One Month Index
as published in the Wall Street Journal. "LIBOR Reserve
Requirement" shall mean for any day during a LIBOR Interest
Period, that percentage which is specified by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but
not limited to, any marginal reserve requirement) for the Bank
with respect to liabilities consisting of or including
"Eurocurrency liabilities" (as defined in Regulation D of the
Board of Governors of the Federal Reserve System) with a
maturity equal to such LIBOR Interest Period. In determining
the percentage, the Bank may use any reasonable averaging and
attribution methods. Each determination by Bank of a LIBOR
Rate or of the LIBOR Reserve Requirement used in determining
same shall be conclusive and binding, absent manifest error.
SECURITY: This Note is secured by a lien on accounts receivable and
certain other property described in an Amended and Restated
Security Agreement dated October 17, 1994, as amended by
instruments dated May 31, 1995, January 28, 1997, and of even
date herewith (collectively, the "Security Agreement") among
the Bank and the undersigned, corresponding UCC Financing
Statements, and guaranty agreements of certain of the
undersigned.
OTHER TERMS AND CONDITIONS: Unless otherwise provided herein, all payments shall
be applied first to pay the accrued interest to date on the unpaid balance and
next to the unpaid principal of the indebtedness.
All capitalized terms not otherwise defined herein shall have the same meanings
as set forth in the Credit Agreement.
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Any payment not made when due hereunder (whether by acceleration or otherwise)
shall bear interest at the "default rate" which is herein calculated as the
lesser of the Bank's Base Rate plus four percent (4.0%) per annum or the maximum
effective contract rate of interest which the Bank may lawfully charge on the
date such payment became due. As used herein, the Bank's "Base Rate" is the base
commercial rate of interest established from time to time by the Bank and which
need not be the lowest rate of interest then available to its best commercial
customers.
If this Note is placed in the hands of an attorney for collection, by suit or
otherwise, or to protect any security given for its payment, or to enforce its
collection, the undersigned will pay all the costs of collection and litigation,
together with a reasonable attorney's fee, all of which shall be secured by any
collateral pledged as security hereof.
The makers and any endorsers or guarantors hereof waive protest, demand,
presentment, and notice of dishonor, and agree that this Note may be extended,
in whole or in part, without limit as to the number of such extensions, or the
period or periods thereof, and without notice to or further assent from them or
any other party liable hereon, all of whom will remain bound upon this Note
notwithstanding any such extension(s); and further agree that all or any
collateral given, now or hereafter, as security herefor may be released (with or
without substitution) without notice and without affecting their liability
hereon; and that additional makers, endorsers, guarantors, or sureties may
become parties hereto and that any present or future party may be released from
liability hereunder, without notice, and without affecting the liability of any
other maker, endorser, or guarantor.
This Note is issued and executed pursuant to and in connection with a Line of
Credit Loan Agreement dated October 17, 1994, as amended by instruments dated
May 31, 1995, January 28, 1997, and of even date herewith among the Bank and the
undersigned (collectively, the "Credit Agreement"), and the holder hereof is
entitled to the benefits of such Credit Agreement and may disburse loan proceeds
and may exercise the remedies and rights provided therein, all in accordance
with the terms of the Credit Agreement. In connection with the immediately
preceding sentence, this Note evidences a revolving credit loan and, provided
that no event of default hereunder as described in the next paragraph hereof
exists, the undersigned may borrow, repay and reborrow at any time, and from
time to time, as provided in the Credit Agreement.
In the event of any default in the prompt and punctual payment, when due, of
this Note (or any installment hereof, whether of principal, interest, or
principal and interest), which default continues for ten (10) days after the due
date of such payment (provided that no more than two [2] payments in any twelve
(12) month period shall be thus in default for ten [10] days), or if any of the
makers or any guarantor hereof should become insolvent (as defined in the
Uniform Commercial Code), or if a petition in bankruptcy be filed by or against
any of the makers or any guarantor, or if a receiver be appointed for any part
of the property or assets of any of the makers or any guarantor, or if any
assignment for the benefit of creditors be made by any of the makers or any
guarantor, or if a judgment be entered against any of the makers or any
guarantor, or upon the issuance of any writ, levy, or process, valid or invalid,
which purports to restrict any of the makers or any guarantor with respect to
any of its or their funds or property on deposit with or in the possession or
custody or under the control of the Bank, or upon the dissolution, either
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voluntary or involuntary, of any of the makers or any guarantor, or in the event
of any default in the prompt and punctual payment when due, of any other
indebtedness or obligation to the Bank owed, now or hereafter, by any of the
makers or any guarantor (including, but not limited to, the Master Draw Note),
or upon any default in any security agreement, assignment or other security
document given, now or hereafter, to secure the indebtedness evidenced hereby,
or if any representation or warranty made by any of the undersigned, by any
guarantor or any of their officers or shareholders pertaining to this credit
shall prove to be false, untrue, or materially misleading, or upon any other
default under or described in the Security Agreement, the Credit Agreement or
any other document executed in connection herewith or therewith, then and in any
of such events, the entire principal and interest of this Note shall, without
notice or demand for payment (the same being expressly waived), be and become
immediately due and payable for all purposes, at the option of the Bank. Any
conflict between the provisions of this paragraph and the provisions of the
Credit Agreement concerning notice and cure periods shall be resolved in favor
of the provisions of the Credit Agreement.
Upon the occurrence of a default hereunder (as described in the immediately
preceding paragraph or otherwise) for which the holder hereof does not
accelerate the indebtedness evidenced hereby pursuant to the provisions of the
immediately preceding paragraph and for which the applicable default rate(s) of
interest set forth above is not being charged, including the failure of the
undersigned or any guarantor to provide the financial statements as required
under the Credit Agreement, the applicable interest rate set forth herein, for a
period beginning three (3) days after written notice of such event of default is
provided by the holder hereof to the undersigned and ending upon the curing of
said noticed event of default, shall increase one percent (1.0%) for the first
thirty (30) days of said event of default and increase an additional one percent
(1.0%) during each thirty (30) day period thereafter during which the noticed
event of default continues. Such default interest rates (in the immediately
preceding sentence) shall apply to the outstanding principal balance of this
Note; provided, however, that such interest rate shall not exceed the "default
rate" as such phrase is defined on page 3 of this Note. Upon the curing of the
noticed event of default, the interest rate hereunder shall revert to the
initially agreed upon interest rate, effective on the date on which the event of
default is cured.
Any money or other property at any time in the possession of the Bank belonging
to any of the makers or any guarantor and any deposits or other sums at any time
credited by or due from the Bank to any party liable hereon, may at all times,
at the option of the Bank, be held and treated as collateral security for the
payment of this Note or any other liability of any of the makers or any
guarantor, whether due or not due. The Bank may, at any time upon the occurrence
of an event of default hereunder and/or under the Security Agreement, the Credit
Agreement or any other document executed in connection herewith or therewith
(which continues beyond applicable grace, notice and cure periods), at its
option, and without further notice, set off the amount due or to become due
hereon against the claim of any of the makers against the Bank.
Regardless of any provisions contained herein, or in any other document executed
in connection herewith, the holder hereof shall never be entitled to receive,
collect, or apply as interest hereon, any amount in excess of the maximum
contract rate which may be lawfully charged by the holder hereof under
applicable law, and in the event the holder hereof ever receives, collects, or
applies
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as interest, any such excess, such amount which would be excessive interest
shall be deemed a partial prepayment of principal and treated hereunder as such;
and, if the principal hereof is paid in full, any remaining excess shall
forthwith be paid to the undersigned. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the maximum lawful
contract rate, the undersigned and the holder hereof shall, to the maximum
extent permitted by applicable law, (a) characterize any non-principal payment
as a reasonable loan charge, rather than as interest; (b) exclude voluntary
prepayments and the effects thereof; and (c) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire
contemplated term hereof, so that the interest accrued or to accrue throughout
the entire term contemplated hereby shall at no time exceed the maximum lawful
contract rate.
This Note may be prepaid, in whole or in part, without premium or penalty. Any
such prepayment shall be applied first to interest accrued on the outstanding
principal balance and currently due and payable, and the remainder, if any,
shall be applied to reduce the outstanding principal balance of this Note. Any
such partial prepayment shall not have the effect of suspending or deferring the
payments herein provided for, but the same shall continue to be due and payable
on each due date subsequent to such prepayment.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING HEREUNDER OR UNDER THE CREDIT
AGREEMENT, THE SECURITY AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS NOTE, THE CREDIT AGREEMENT, THE SECURITY AGREEMENT, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING; AND THE UNDERSIGNED HEREBY AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THE CREDIT AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
This Note is to be governed by and interpreted in accordance with the laws of
the State of Tennessee, except to the extent that greater rights and/or
privileges are granted to the holder hereof under federal law, in which case
federal laws shall control.
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LANDAIR SERVICES, INC.
By: __________________________
Scott M. Niswonger,
President
ATTEST:
______________________________
LANDAIR TRANSPORT, INC.
By: __________________________
Eddie R. Brown,
President
ATTEST:
______________________________
LANDAIR INTERNATIONAL AIRLINES,
INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
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TRANSPORTATION PROPERTIES, INC.
previously known as "Landair
Properties, Inc.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
FORWARD AIR, INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
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