EXHIBIT 99.(b)(1)
May 26, 2004
CONFIDENTIAL
Xxxx Bros. Transportation Inc.
0000 Xxxxxxx 00
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Chief Financial Officer
Re: Commitment Letter
Ladies and Gentlemen:
Reference is made to that certain letter agreement, dated as of April 28, 2004
(the "Existing Commitment Letter"), between General Electric Capital Corporation
(the "Agent") and Xxxx Bros. Transportation Inc. ("Xxxx"), WTI Transport, Inc.
("WTI") and Xxxx Logistics, Inc. ("Logistics") (Xxxx, WTI and Logistics are
collectively referred to as the "Borrowers" and individually as a "Borrower").
The Borrowers and the Agent desire to amend certain terms and conditions
contained in the Existing Commitment Letter in accordance with the terms and
conditions contained herein. As such, the Borrowers and the Agent, intending to
be legally bound, agree that the Existing Commitment Letter is hereby amended
and restated in its entirety as follows:
Borrowers have advised Agent that the Borrowers are seeking up to $50,000,000 of
financing (the "Financing") in support of financing the redemption of certain
publicly-held capital stock of Xxxx in a "going private" transaction (the
"Transaction") and to refinance certain outstanding indebtedness of the
Borrowers.
We anticipate that each Borrower is a domestic operating company that directly
owns substantially all of the assets used in its business, WTI and Logistics are
wholly-owned subsidiaries of Xxxx and that the Borrowers have no other
subsidiaries.
You have asked that the Financing consist of a $13,000,000 Senior Secured
Revolving Credit Facility ("Revolver") and a $37,000,000 Senior Secured Term
Loan ("Term Loan").
Based on our understanding of the Transaction as described above and the
information which you have provided to us to date, GE Capital is pleased to
offer its commitment to provide the Financing described in this Commitment
Letter in the amount of $50,000,000, subject to the following terms and
conditions.
Xxxx Bros. Transportation Inc.
May 26, 2004
AGENT: GE Capital.
LENDERS: GE Capital and other persons who take
assignment of its interest after the Closing
Date.
SUMMARY OF PROPOSED
TERMS FOR REVOLVER
BORROWERS: Xxxx, WTI and Logistics
MAXIMUM REVOLVER AMOUNT: $13,000,000 (including a Letter of Credit
Subfacility of up to $7,000,000). Letters of
Credit will be issued either by a bank
and/or by GE Capital and/or one of its
affiliates, on terms acceptable to Agent,
and will be guaranteed or otherwise backed
by the Revolver Lenders.
TERM: 60 months.
AVAILABILITY: Borrowing Availability on a combined basis
will be limited to the sum of (i) up to 85%
of the Borrowers' eligible accounts
receivable and (ii) up to 50% of the
Borrowers' eligible inventory valued at the
lower of cost (FIFO) or market, in each of
clauses (i) and (ii) less reserves (the
"Revolving Borrowing Base"), but not to
exceed the Maximum Revolver Amount.
Availability from inventory shall not exceed
$1,000,000. Availability for each Borrower
will be limited to its separate Revolving
Borrowing Base. Agent will retain the right
from time to time to establish or modify
advance rates, standards of eligibility and
reserves against availability. The face
amount of all letters of credit outstanding
under the Letter of Credit Subfacility will
be reserved in full against availability.
SUMMARY OF PROPOSED
TERMS FOR TERM LOAN
FACILITY
BORROWERS: Xxxx, WTI and Logistics
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May 26, 2004
MAXIMUM TERM LOAN AMOUNT: $37,000,000 available in multiple draws
under conditions to be defined in the
definitive Financing documentation.
AVAILABILITY: Borrowing Availability on a combined basis
will be limited to the sum of (i) up to 85%
of the appraised net orderly liquidation
value of Borrowers' existing equipment, (ii)
up to 80% of the "hard" costs of purchased
equipment (until such equipment is
appraised, then it shall be valued on a net
orderly liquidation value basis) and (iii)
up to 50% of the appraised fair market value
of real estate, in each of clauses (i), (ii)
and (iii) less reserves (the "Term Borrowing
Base"), but not to exceed the Maximum Term
Loan Amount. Appraised values for equipment
and real estate to be based on appraisals in
form and substance satisfactory to Agent.
Availability for each Borrower will be
limited to its separate Term Borrowing Base.
Agent will retain the right from time to
time to establish or modify advance rates,
standards of eligibility and reserves
against availability.
TERM: 60 months. If the Revolver is terminated,
this Term Loan will immediately be due and
payable in full.
AMORTIZATION: Level monthly principal payments utilizing a
5-year amortization period for term loan
advances made on the closing date. Any term
loan advances made after the closing date
will have level monthly principal payments
utilizing a 7-year amortization and a
balloon payment at maturity.
Amortization will be allocated among the
Borrowers based upon their respective
allocations of the Term Loan.
TERMS OF GENERAL
APPLICABILITY
USE OF PROCEEDS: Loans made on the date the Financing is
consummated (the "Closing Date") will be
used to finance the Transaction in an amount
not to exceed $7,000,000, to refinance
certain indebtedness of Borrowers and to
fund certain fees and expenses associated
with the Transaction and the Financing.
Loans made after the Closing Date will be
used for Borrowers' working capital purposes
and permitted capital expenditures.
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May 26, 2004
BORROWER REPRESENTATIVE: Each Borrower will appoint one of the
Borrowers as its agent for administrative
purposes of the Financing (the "Borrower
Representative").
INTEREST:
Rates: At Borrower Representative's option, all
loans will bear interest at either (a) a
floating rate equal to the Index Rate plus
the Applicable Margin(s) or (b) absent a
default, a fixed rate for periods of one,
two or three months equal to the reserve
adjusted London Interbank Offered Rate
("LIBOR Rate") plus the Applicable
Margin(s).
Payment Dates: Interest will be payable monthly in arrears
for Index Rate loans and at the expiration
of each LIBOR period for LIBOR loans.
Other Terms: All interest will be calculated based on a
360 day year and actual days elapsed. The
Financing documentation will contain (a)
LIBOR breakage provisions and LIBOR
borrowing mechanics, (b) LIBOR Rate
definitions, and (c) the Index Rate
definition will equal the higher of the
prime rate as reported by The Wall Street
Journal or the overnight Federal funds rate
plus 50 basis points.
APPLICABLE MARGINS: The following Applicable Margins (consisting
of per annum rate margins) shall apply until
the Applicable Margins are adjusted as
described below:
Applicable Revolver Index Margin 1.25%
Applicable Revolver LIBOR Margin 3.00%
Applicable Term Loan Index Margin 1.25%
Applicable Term Loan LIBOR Margin 3.00%
Applicable L/C Margin 1.50%
Starting with the delivery to the Agent of
Borrowers' consolidated quarterly financial
statements for the fiscal quarter ending
June 30, 2005, the Applicable Margins shall
be subject to adjustment (up or down)
prospectively, based on Borrowers'
consolidated financial performance for the
trailing four quarters most recently ended
in accordance with the grid attached as
Schedule I.
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May 26, 2004
The definitive Financing documentation will
contain provisions regarding the delivery of
financial statements, and the timing and
mechanics of subsequent prospective
adjustments in Applicable Margins. If a
default is continuing at the time that a
reduction in Applicable Margins is to be
implemented, that reduction will be deferred
until the first month commencing after the
cure or waiver thereof.
FEES: In addition to the fees payable to GE
Capital as specified in the fee letter among
Borrowers and GE Capital of even date
herewith (the "Fee Letter"), the following
fees will be payable to Agent under the
Financing documentation:
Letter of Credit Fee: Equal to the Applicable L/C Margin per annum
(calculated on the basis of a 360-day year
and actual days elapsed) on the face amount
of the letters of credit under the Revolver,
payable monthly in arrears, plus any costs
and expenses incurred by Agent in arranging
for the issuance or guaranty of Letters of
Credit and any charges assessed by the
issuing financial institution.
Unused Facility Fee: Equal to 0.50% per annum (calculated on the
basis of a 360-day year and actual days
elapsed) on the average unused daily balance
of the Revolver, payable monthly in arrears.
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Xxxx Bros. Transportation Inc.
May 26, 2004
Prepayment Premium: Payable in the event that the Revolver
Commitment is reduced or terminated or if
the Borrowers prepay all or any portion of
the Term Loan other than as a result of
Mandatory Prepayments (as hereinafter
defined) prior to the third anniversary of
the Closing Date, in an amount equal to the
Revolver Maximum Amount plus the amount
being prepaid on the Term Loan, multiplied
by 3% upon a prepayment during the first
year following the Closing Date, 2% upon a
prepayment during the second year following
the Closing Date and 1% upon a prepayment
during the third year following the Closing
Date.
Wire Transfer Fee: A wire transfer fee of $25 per wire transfer
made by Agent in connection with the
forwarding by a Borrower or any other person
on behalf of a Borrower of the proceeds of
any loan.
DEFAULT RATES: From and after the occurrence of a default,
the interest rates applicable to all Loans
and the Letter of Credit Fee will be
increased by 2.00% per annum over the
interest rate or Letter of Credit Fee
otherwise applicable and such interest and
fees will be payable on demand.
SECURITY: To secure all obligations of Borrowers to
Agent and Lenders, Agent, for itself and the
ratable benefit of Lenders, will receive a
fully perfected first priority security
interest in all of the existing and after
acquired real and personal, tangible and
intangible assets of each Borrower and their
respective subsidiaries, if any, including,
without limitation, all cash, cash
equivalents, bank accounts, accounts, other
receivables, chattel paper, contract rights,
inventory (wherever located), instruments,
documents, securities (whether or not
marketable), equipment, fixtures, real
property interests (excluding real estate
located in Cofield, North Carolina that has
a fair market value of less than $500,000),
franchise rights, patents, trade names,
trademarks, copyrights, intellectual
property, general intangibles, investment
property, supporting obligations, letter of
credit rights, commercial tort claims,
causes of action and all substitutions,
accessions and proceeds of the foregoing
(including insurance proceeds)
(collectively, the "Collateral").
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All Collateral will be free and clear of
other liens, claims and encumbrances, except
permitted liens and encumbrances acceptable
to Agent.
In addition, Agent shall receive a pledge of
all of the issued and outstanding stock of
all subsidiaries of each Borrower.
Each Borrower will cross-guarantee the
obligations of each other Borrower under the
Financing documents. All such obligations
will be cross-defaulted to each other and to
all other material indebtedness of any
Borrower and any of its subsidiaries. All
such obligations shall be
cross-collateralized with each other and
cross-collateralized and guaranteed by any
and all subsidiaries of any Borrower.
Agent is authorized to pre-file financing
statements and other evidences of liens with
respect to all of the Collateral, including
"all-assets" filings, if applicable, naming
Agent as secured party.
MANDATORY PREPAYMENTS: Borrowers shall make prepayments against
principal in the following amounts: (a) all
net proceeds of any sale or other
disposition of assets of any Borrower and
any of their respective subsidiaries, if
any, (other than proceeds from the sale of
rolling stock that are reinvested within 90
days of receipt or proceeds from the sale of
other assets that are reinvested within 180
days of receipt), (b) subject to exceptions
for repairs and replacements, all net
insurance proceeds or other awards payable
in connection with the loss, destruction or
condemnation of any assets of any Borrower
or their respective subsidiaries, if any,
and (c) 100% of the net cash proceeds from
the sale or issuance of equity or debt
securities.
These payments generally will be applied
against principal installments due, in the
inverse order of maturity, on the Term Loan
until such loan is paid in full and
thereafter against the Revolver. Prepayments
by any Borrower will be applied first to the
obligations of that Borrower and thereafter
to the obligations owing by the other
Borrowers, pro rata.
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Xxxx Bros. Transportation Inc.
May 26, 2004
VOLUNTARY PREPAYMENTS: Borrowers may voluntarily prepay all or any
portion of the Term Loan in minimum amounts
of $500,000 at any time, upon at least 5
days' prior written notice. All voluntary
prepayments will be accompanied by the
prepayment premium described above and LIBOR
breakage costs, if any.
FINANCIAL REPORTING: The Financing documentation will require the
Borrowers, on a monthly basis, to provide to
Agent and Lenders internally prepared
financial statements. Annually, Borrowers
will be required to provide audited
financial statements, a board approved
operating plan for the subsequent year, and
a communications letter from Borrowers'
auditors. Borrowers will provide Borrowing
Base Certificates on a monthly basis (or as
requested by Agent), quarterly and annual
appraisals of equipment, audits and other
information reasonably requested by the
Agent, all costs to be at Borrowers'
expense. All financial statements shall be
prepared on a consolidated and consolidating
basis.
DOCUMENTATION: The Financing documentation will contain
representations and warranties; conditions
precedent; affirmative, negative and
financial covenants; indemnities; events of
default and remedies as required by Agent.
Relevant documents, such as Transaction
documents, equity or stockholder agreements,
incentive and employment agreements, tax
agreements, and other material agreements,
to be acceptable to Agent.
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May 26, 2004
FINANCIAL COVENANTS: Borrowers shall comply with the following
financial covenants, each of which shall be
calculated in accordance with GAAP
consistently applied:
Maximum Capital Expenditures: Borrowers and
their subsidiaries, on a consolidated basis,
shall not make gross capital expenditures
that exceed (i) $18,100,000 during the
12-month period ending December 31, 2004,
(ii) $18,200,000 during the 12-month period
ending December 31, 2005 or (iii)
$13,300,000 during any 12-month period
ending on December 31 thereafter.
Minimum Fixed Charge Coverage Ratio.
Borrowers and their subsidiaries shall have
on a consolidated basis at the end of each
fiscal quarter following the Closing Date, a
fixed charge coverage ratio for the 12-month
period then ended of not less than
1.20:1.00.
Minimum Borrowing Availability. Borrowers
shall maintain availability under the
Revolver Borrowing Base of not less than
$1,500,000 at all times.
Maximum Leverage Ratio. Borrowers and their
subsidiaries on a consolidated basis shall
have, at the end of each fiscal quarter, a
leverage ratio as of the last day of such
fiscal quarter and for the 12-month period
then ended of not more than 3.50:1.00.
OTHER TERMS: GE Capital's commitment with respect to the
Financing is conditioned upon satisfaction
of the following conditions as of the
Closing Date, and the Financing documents
will require, among other things, compliance
with covenants pertaining to the following
(all in form and substance satisfactory to
Agent):
- Cash management systems for each
Borrower acceptable to Agent. Agent
will have full cash dominion by
means of lock boxes and blocked
account agreements executed at or
prior to closing of the Financing.
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May 26, 2004
- Commercially reasonable insurance
protection for the Borrowers'
industry, size and risk and the
Agent's collateral protection
(terms, underwriter, scope, and
coverage to be acceptable to
Agent); Agent named as loss payee
(property/casualty) and additional
insured (liability); and
non-renewal/cancellation/amendment
riders to provide 30 days advance
notice to Agent.
- Compliance with applicable laws,
decrees, and material agreements or
obtaining of applicable consents
and waivers.
- General and collateral releases
from prior lenders, customary
corporate and estoppel
certificates,
landlord/mortgagee/bailee waivers
and consignment or similar filings.
- Limitations on commercial
transactions, management
agreements, service agreements, and
borrowing transactions between any
Borrower and its officers,
directors, employees and affiliates
and intercompany loans among
Borrowers.
- Limitations on, or prohibitions of,
cash dividends, other distributions
to equity holders, payment of
management fees to affiliates and
redemption of common or preferred
stock.
- Prohibitions of mergers,
acquisitions, sale of any Borrower,
its stock or a material portion of
its assets.
- Prohibitions of a direct or
indirect change in control of
Borrowers.
- Agent's and Lenders' rights of
inspection, access to facilities,
management and auditors.
- Customary yield protection
provisions, including, without
limitation, provisions as to
capital adequacy, illegality,
changes in circumstances and
withholding taxes.
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Xxxx Bros. Transportation Inc.
May 26, 2004
- To the extent requested by Agent,
environmental surveys or reviews in
scope and form, by firms, and with
results acceptable to Agent.
- Real estate and equipment
appraisals in form and substance
acceptable to Agent reflecting
asset values at levels acceptable
to Agent. The appraisals will be
performed by appraisers retained by
Agent (or retained by the Borrowers
provided that such appraisers
provide reliance letters to Agent
in form and substance acceptable to
Agent).
- Governing law: New York.
OTHER CONDITIONS: GE Capital's commitment with respect to the
Financing will be further conditioned upon
the following (all to Agent's satisfaction):
- Delivery of Transaction documents
to Agent in a timely manner. The
Transaction shall have been
consummated on terms satisfactory
to Agent.
- Completion by Agent of all
business, environmental and legal
due diligence with results
satisfactory to Agent. Without
limiting the foregoing, the
corporate structure, capital
structure, other debt instruments,
material contracts, and governing
documents of each Borrower and its
affiliates, and tax and legal
effects resulting from Transaction,
must be acceptable to Agent.
- Background and reference checks
with results satisfactory to Agent
on: (i) each Borrower and any of
its affiliates and (ii) its CEO,
CFO and shareholders; in each case,
as determined by Agent in its sole
discretion.
- Minimum excess availability for
Borrowers in the aggregate at
closing (on a pro forma basis, with
trade payables being paid
currently, expenses and liabilities
being paid in the ordinary course
of business and without
acceleration of sales and without
deterioration of working capital)
of $7,000,000 (excluding the effect
of the Transaction).
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May 26, 2004
- EBITDA for the 12 month period
ending April 30, 2004 shall be
greater than $13,000,000.
- Agent shall have received
Borrowers' audited financial
statements for the periods ending
December 31, 2002 and 2003
(together with the opinion letter
and any management letters
delivered in connection therewith)
and unaudited financial statements
for the period ending April 30,
2004.
- With respect to all collateral
requiring motor vehicle titles,
delivery of completed and signed
title applications and/or powers of
attorney, necessary to record
Agent's first priority lien
position and/or ownership rights,
along with (i) any agreements
necessary to ensure release of
existing liens upon funding the
Transaction and payment of the
prior lien holder, (ii) delivery of
actual titles or manufacturer's
statements of origin and (iii)
completion and delivery of any
other documentation that Agent's
and/or its counsel deem necessary
to ensure its first priority lien
position and/or its ownership
rights.
- With respect to any real estate
collateral, receipt of real
property surveys, title commitments
and title insurance policies in
amount, form and from, as
applicable, an issuer satisfactory
to Agent.
- Receipt of all necessary or
appropriate third party and
governmental waivers and consents.
- Satisfactory opinions of counsel
from Borrowers' counsel (including
local counsel as requested)
reasonably acceptable to Agent.
- As of the Closing Date, there will
have been (i) since Borrowers' last
audited financial statements, no
material adverse change,
individually or in the aggregate,
in the business, financial or other
condition of any Borrower or the
Borrowers taken as a whole, the
industry in which any Borrower
operates, or the collateral which
will be subject to the security
interest granted to Agent and
Lenders or in the prospects or
projections of any Borrower or the
Borrowers taken as a whole, (ii) no
litigation
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May 26, 2004
commenced which, if successful,
would have a material adverse
impact on any Borrower or the
Borrowers taken as a whole, its or
their business, or its or their
ability to repay the loans, or
which would challenge the
transactions under consideration
and (iii) since Borrowers' last
audited financial statements, no
material increase in the
liabilities, liquidated or
contingent, of any Borrower or the
Borrowers taken as a whole, or a
material decrease in the assets of
any Borrower or the Borrowers taken
as a whole, or a material decrease
in the assets of any Borrower or
the Borrowers taken as a whole.
GE Capital's commitment hereunder is subject to the execution and delivery of
final legal documentation acceptable to GE Capital and its counsel
incorporating, without limitation, the terms set forth in this Commitment
Letter.
By signing this Commitment Letter, each party acknowledges that this Commitment
Letter supersedes any and all discussions and understandings, written or oral,
between or among GE Capital and any other person as to the subject matter
hereof, including, without limitation, any prior commitment letters and the
letter of interest dated February 11, 2004 between GE Capital Commercial
Finance, Inc. and Xxxx (collectively, the "Prior Letter"). No amendments,
waivers or modifications of this Commitment Letter or any of its contents shall
be effective unless expressly set forth in writing and executed by the parties
hereto.
This Commitment Letter is being provided to you on the condition that, except as
required by law, neither it, the Fee Letter, the Prior Letter, nor their
contents will be disclosed publicly or privately except to those individuals who
are your officers, employees or advisors who have a need to know of them as a
result of their being specifically involved in the Transaction under
consideration and then only on the condition that such matters may not, except
as required by law, be further disclosed; provided, however, the Borrowers may
disclose the contents of this Commitment Letter to the United States Securities
and Exchange Commission ("SEC"), on a private and confidential basis, to the
extent required by the SEC in connection with the SEC's approval of the proxy
materials for the Transaction. No person, other than the parties signatory
hereto, is entitled to rely upon this Commitment Letter or any of its contents.
No person shall, except as required by law, use the name of, or refer to, GE
Capital, or any of its affiliates, in any correspondence, discussions, press
release, advertisement or disclosure made in connection with the Transaction
without the prior written consent of GE Capital.
Regardless of whether the commitment herein is terminated or the Transaction or
the Financing closes, Borrowers, jointly and severally, agree to pay upon demand
to GE Capital all out-of-pocket expenses ("Transaction Expenses") which may be
incurred by GE Capital in connection with the Financing or the Transaction
(including all reasonable legal, environmental, and other consultant costs and
fees incurred in the preparation of this Commitment Letter, the Fee Letter, the
Prior Letter, and evaluation of and documenting of the Financing and the
Transaction).
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Regardless of whether the commitment herein is terminated or the Transaction or
the Financing closes, Borrowers, jointly and severally, shall indemnify and hold
harmless each of GE Capital, the Lenders, their respective affiliates, and the
directors, officers, employees, agents, attorneys and representatives of any of
them (each, an "Indemnified Person"), from and against all suits, actions,
proceedings, claims, damages, losses, liabilities and expenses (including, but
not limited to, attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal), which may
be instituted or asserted against or incurred by any such Indemnified Person in
connection with, or arising out of, this Commitment Letter, the Fee Letter, the
Prior Letter, the Financing or the Transaction under consideration, the
documentation related thereto, any other financing related thereto, any actions
or failures to act in connection therewith, and any and all environmental
liabilities and legal costs and expenses arising out of or incurred in
connection with any disputes between or among any parties to any of the
foregoing, and any investigation, litigation, or proceeding related to any such
matters. Notwithstanding the preceding sentence, indemnitors shall not be liable
for any indemnification to an Indemnified Person to the extent that any such
suit, action, proceeding, claim, damage, loss, liability or expense results
solely from that Indemnified Person's gross negligence or willful misconduct, as
finally determined by a court of competent jurisdiction. Under no circumstances
shall GE Capital or any of its affiliates be liable to you or any other person
for any punitive, exemplary, consequential or indirect damages which may be
alleged in connection with this Commitment Letter, the Fee Letter, the Prior
Letter, the Transaction, the Financing, the documentation related thereto or any
other financing, regardless of whether the commitment herein is terminated or
the Transaction or the Financing closes.
EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS COMMITMENT LETTER, THE FEE
LETTER, THE PRIOR LETTER, ANY TRANSACTION RELATING HERETO OR THERETO, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THEREWITH, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH
PARTY HERETO CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW
YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY OF THE PARTIES
HERETO PERTAINING TO THIS COMMITMENT LETTER, THE FEE LETTER, THE PRIOR LETTER,
THE FINANCING OR THE TRANSACTION UNDER CONSIDERATION, ANY OTHER FINANCING
RELATED THERETO, AND ANY INVESTIGATION, LITIGATION, OR PROCEEDING RELATED TO OR
ARISING OUT OF ANY SUCH MATTERS, PROVIDED, THAT THE PARTIES HERETO ACKNOWLEDGE
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT (INCLUDING AN
APPELLATE COURT) LOCATED OUTSIDE OF SUCH JURISDICTION. EACH PARTY HERETO
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND HEREBY WAIVES ANY OBJECTION WHICH SUCH
PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
INCONVENIENT FORUM.
THIS COMMITMENT LETTER IS SOLELY FOR THE BENEFIT OF BORROWERS AND GE CAPITAL; NO
PROVISION HEREOF SHALL BE DEEMED TO CONFER ANY RIGHTS WHATSOEVER ON ANY OTHER
PERSON OR ENTITY AND MAY NOT BE RELIED UPON FOR ANY OTHER PURPOSE.
This Commitment Letter is governed by and shall be construed in accordance with
the laws of the State of New York applicable to contracts made and performed in
that state.
GE Capital shall have access to all relevant facilities, personnel and
accountants, and copies of all documents which GE Capital may request, including
business plans, financial statements
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May 26, 2004
(actual and pro forma), books, records, and other documents of each Borrower.
This Commitment Letter shall be of no force and effect unless and until this
Commitment Letter is executed and delivered to the undersigned GE Capital on or
before 5:00 p.m. Atlanta, Georgia time on May 28, 2004 at 0000 Xxxxxxxxx Xxxx,
Xxxxx 000 Xxxxxxx, Xxxxxxx 00000. Once effective, GE Capital's commitment to
provide financing in accordance with the terms of this Commitment Letter shall
cease if the Transaction does not close, or the Financing is not funded for any
reason, on or before June 30, 2004 and, notwithstanding any further discussions,
negotiations or other actions taken after such date, neither GE Capital nor any
of its affiliates shall have any liability to any person in connection with its
refusal to fund the Financing or any portion thereof after such date.
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May 26, 2004
We look forward to continuing to work with you toward completing this
transaction.
Our business is helping yours.
Sincerely,
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /S/ XXXXXXX XXXXXXXXX
------------------------------------
Xxxxxxx Xxxxxxxxx
Its Duly Authorized Signatory
AGREED AND ACCEPTED THIS
26th DAY OF MAY 2004
XXXX BROS. TRANSPORTATION INC.
By: /S/ XXXXXXX XXXXXX
----------------------------------
Its: Chief Financial Officer
---------------------------------
WTI TRANSPORT, INC.
By: /S/ XXXXXXX XXXXXX
----------------------------------
Its: Chief Financial Officer
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XXXX LOGISTICS, INC.
By: /S/ XXXXXXX XXXXXX
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Its: Chief Financial Officer
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Xxxx Bros. Transportation Inc.
May 26, 2004
SCHEDULE I
APPLICABLE MARGINS
The Applicable Margins may be adjusted by reference to the following grids:
LEVEL OF
IF LEVERAGE RATIO IS: APPLICABLE MARGINS:
--------------------- -------------------
> 3.00....................................................... Level I
-
< 3.00, but >2.50............................................ Level II
-
< 2.50, but >2.00............................................ Level III
-
< 2.00....................................................... Xxxxx XX
XXXXXXXXXX XXXXXXX
XXXXX X XXXXX XX XXXXX XXX LEVEL IV
------- -------- --------- --------
Applicable Revolver Index Margin..................... 1.25% 1.00% 0.75% 0.50%
Applicable Revolver LIBOR Margin..................... 3.00% 2.75% 2.50% 2.25%
Applicable Term Loan Index Margin.................... 1.25% 1.00% 0.75% 0.50%
Applicable Term Loan LIBOR Margin.................... 3.00% 2.75% 2.50% 2.25%
Applicable L/C Margin................................ 1.50% 1.50% 1.50% 1.50%
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