EXHIBIT 10.1
SECOND AMENDMENT TO
LOAN AGREEMENT
AMONG
BANK OF AMERICA, N.A.,
AS "ADMINISTRATIVE AGENT"
AND
BANK OF AMERICA, N.A.,
U.S. BANK, N.A.
SUNTRUST BANK
AS "LENDERS"
AND
USA TRUCK, INC.
AS "BORROWER"
DATED AS OF JUNE 17, 2003
SECOND AMENDMENT TO
LOAN AGREEMENT
This Second Amendment to Loan Agreement ("Second Amendment") is
executed as of June 17, 2003, 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
Second Amendment 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, as amended by that certain First
Amendment to Loan Agreement dated March 30, 2001 ("Loan Agreement"), 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 Second 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 Second 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
Second Amendment and the Loan Agreement shall have the respective meanings
indicated in Amended Exhibit 2.1, attached hereto. In particular, the definition
of "Interest Hedge Obligation" has been replaced with "Hedge Obligation" and the
definition of "Loan Obligations" has been modified to reflect this change.
2. Section 15.1 of the Loan Agreement is hereby amended by the addition
of a new Section 15.1.5 as follows:
"15.1.5 A one-time investment in an amount not to
exceed $555,000 in International Freight Services, Inc.
("IFS"), a wholly owned subsidiary of Borrower, solely for the
purpose of allowing IFS to purchase a terminal facility in
Laredo, Texas."
3. Section 17.4.1(vi) of the Loan Agreement is hereby amended to read
as follows:
"(vi) sixth, to the payment of the Loans of each of
the Lenders, and to the payment (pari passu with the
foregoing) of any Hedge Obligations;"
4. Conditions Precedent. Lenders' Administrative Agent's and Issuer's
obligation to enter into this Second Amendment and to otherwise be bound by this
Second Amendment shall be subject to the following conditions precedent:
(a) Administrative Agent shall have received all of the following, each
dated (unless otherwise indicated) as of the Second 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 Second 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 Second 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 Second
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 Second Amendment Date.
(4) 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 Second Amendment no later than thirty (30) days
after the Second Amendment Date.
(5) 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 Second Amendment Date
as if made on the Second Amendment Date;
(c) No Extant Default shall exist; and
(d) All proceedings taken in connection with the transactions
contemplated by this Second Amendment and all documents, instruments, and other
legal matters incident thereto shall be satisfactory to Lenders, Administrative
Agent, Issuer and their counsel.
5. Reaffirmation. Except to the extent the provisions of the Loan
Documents are specifically amended, modified or superseded by this Second
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.
6. Attorneys Fees. Borrower agrees to pay all attorneys fees and other
costs incurred by Administrative Agent or Lenders in connection with the
preparation of this Second Amendment and all other matters related to or subject
to the provisions of this Second Amendment.
7. 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.
8. Miscellaneous.
(a) Successors and Assigns. This Second 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 Second 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 Second 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 Second 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 Second 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 Second
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 Second 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 Second Amendment.
(e) Captions. Section captions are for convenience only and
shall not affect the interpretation or construction of this Second Amendment or
the other Loan Documents.
(f) Counterpart Facsimile Execution. For purposes of this
Second 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 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
Second Amendment or any amendment or other document executed in compliance with
this Section.
(g) Construction. Unless the context of this Second 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 Second 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 Second Amendment refer to this Second
Amendment as a whole, including its Exhibits and Appendices, and not to any
particular provision of this Second 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 Second Amendment unless it expressly
refers to something else; (viii) reference to any agreement (including this
Second 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 Second 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 Second Amendment and each Lender affirms
that its counsel has participated in the drafting and negotiation of this Second
Amendment; therefore, this Second 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 Second 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 SECOND 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 SECOND AMENDMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
SECOND 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 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 SECOND 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 SECOND 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 SECOND 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 SECOND 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 SECOND AMENDMENT OR ANY OTHER LOAN DOCUMENT FOR ARBITRATION
OF ANY CONTROVERSY OR CLAIM.
(l) CHOICE OF FORUM. IF THIS SECOND 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 SECOND 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 SECOND 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 SECOND 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 SECOND 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 SECOND 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 Second 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 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 Second 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 Second Amendment on the date
and year above written.
BORROWER:
USA TRUCK, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: CFO
-----------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
-----------------------------------
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. Vice President
U.S. BANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
AMENDED EXHIBIT 2.1
GLOSSARY AND INDEX OF DEFINED TERMS
"ABR": the higher of (i) the Prime Rate, and (ii) the Federal Funds Rate plus
1/2%, at the time the ABR is to be determined.
"ABR Advance": any Advance bearing interest at the Adjusted ABR.
"Account": as to any Person, the right of such Person to payment for goods sold
or leased or for services rendered by such Person, and, as to Borrower, the
right of Borrower to payment upon the redemption of customer coupons.
"Accounts Collateral" is defined in the Amended Security Agreement.
"Account Debtor": the obligor on any Account or other Accounts Collateral.
"Acquisition Purchase Price": the amount of cash paid and Indebtedness assumed
by Borrower to acquire stock or another equity interest in a Person or acquire
substantially all of the assets of a Person, minus cash transferred to Borrower
or retained by the Person acquired if the transaction is a stock purchase.
"Adjusted ABR" is defined in Section 4.4.
"Adjusted LIBO Rate" is defined in Section 4.5.
"Administrative Agent" is defined in the introductory paragraph of this
Agreement.
"Administrative Fee" is defined in Section 5.3.
"Advance": a Revolving Advance or a Swingline Advance.
"Advance Date" is defined in Section 7.4.1.
"Advance Request": a Revolving Advance Request.
"Affected Loans" is defined in Section 19.5.
"Affiliate": with respect to any Person, (a) any other Person who is a partner,
director, officer or stockholder of such Person; and (b) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person, and any partner, director, officer or stockholder of
such other Person described. For purposes of this Agreement, control of a Person
by another Person shall be deemed to exist if such other Person has the power,
directly or indirectly, either to (i) vote twenty percent (20%) or more of the
securities having the power to vote in an election of directors of such Person,
or (ii) direct the management of such Person, whether by contract or otherwise
and whether alone or in combination with others.
"Agreement" means the Loan Agreement between Borrower, Administrative Agent,
Issuer, and Lenders, dated April 28, 2000, including the schedules and exhibits
thereto, as originally executed or amended,
AMENDED EXHIBIT 2.1
Page 1 of 14
modified or supplemented from time to time, as so amended, modified or
supplemented, and specifically as amended by the First Amendment and Second
Amendment.
"Aggregate Loan": the Aggregate Revolving Loan.
"Aggregate Revolving Commitment" is defined in Section 3.1.2.
"Aggregate Revolving Loan" is defined in Section 3.1.1.
"Amended Security Agreement" means the Amended Security Agreement, dated March
30, 2001, entered into between Borrower and Administrative Agent.
"Amendment": the First Amendment.
"Amendment Date": March 30, 2001.
"Anniversary Date": each anniversary of the Execution Date.
"Applicable Lending Office": for Administrative Agent and each Lender and for
each Loan, the Applicable Lending Office of Administrative Agent or such Lender
(or of an Affiliate of such Lender) designated for such Loan on the signature
pages hereof or such other office of such Lender (or an Affiliate of
Administrative Agent or such Lender) as Administrative Agent or such Lender may
from time to time specify to Administrative Agent (in the case of another
Lender) and Borrower by written notice in accordance with the terms hereof as
the office by which its Loans are to be made and maintained.
"Arrangement Fee" is defined in Section 5.1.
"Asbestos Material": either asbestos or asbestos-containing materials.
"Assignment and Acceptance" an assignment and acceptance in the form of Exhibit
20.4.1.
"Bank Act" is defined in Section 2.5.1.
"Base Rate Increment" is specified in Section 4.6.
"Beneficial Owner": as defined in Rule 13-D-3 of the Securities and Exchange
Commission.
"BofA" is defined in the introductory paragraph of this Agreement.
"Borrower" is defined in the introductory paragraph of this Agreement.
"Borrowing Base" is defined in Section 3.1.3.
"Borrowing Base Certificate" is defined in Section 14.15.1.
"Borrowing Officer": an officer of Borrower duly authorized on behalf of
Borrower to request Advances under this Agreement.
AMENDED EXHIBIT 2.1
Page 2 of 14
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the Laws of either
the United States or the State of Missouri, and when used in connection with
LIBOR Loans, also a day other than any day on which dealings in U.S. Dollar
deposits are not carried on in the London interbank market.
"Capital Expenditure": an expenditure for an asset that must be depreciated or
amortized under GAAP, for goodwill, or for any asset that under GAAP must be
treated as a capital asset, including payments under Capital Leases; provided
however, to the extent the source of funds for any such expenditure is net
proceeds of the sale of capital assets and such net proceeds are expended by
Borrower as contemplated in clause (ii) of Section 6.4.2.2, such expenditure
will not be considered a Capital Expenditure for purposes of the Capital
Expenditure limitations contained in Section 16.6.
"Capital Lease": any lease that has been or should be capitalized under GAAP.
"Charter Documents": the articles or certificate of incorporation and bylaws of
a corporation; the certificate of limited partnership and partnership agreement
of a limited partnership; the partnership agreement of a general partnership;
the articles of organization and operating agreement of a limited liability
company; or the indenture of a trust.
"Chattel Paper" shall have the meaning set forth for "Chattel Paper" in Article
9 of the UCC and shall include any and all writings which evidence both a
monetary obligation and a security interest in or a lease of specific goods and
all proceeds thereof and proceeds of proceeds thereof. When a transaction is
evidenced both by such a security agreement or a lease and by an instrument or a
series of instruments, the group of writings taken together shall constitute
Chattel Paper.
"Code": the Internal Revenue Code of 1986 and all regulations thereunder of the
IRS.
"Collateral": all of the Personal Property Collateral, all other property
described as collateral in any Security Document" and all proceeds thereof.
"Collateral Agency Agreement" is defined in Section 8.2.
"Collateral Agent" is the Person named in the Collateral Agency Agreement.
"Commitments": Aggregate Revolving Commitment, the LC Commitment of Issuer and
the Swingline Commitment of Administrative Agent.
"Commonly Controlled Entity": a Person which is under common control with
another Person within the meaning of Section 414(b) or (c) of the Code.
"Contract": any contract, note, bond, indenture, deed, mortgage, deed of trust,
security agreement, pledge, hypothecation agreement, assignment, or other
agreement or undertaking, or any security.
"Conversion Date" is defined in Section 4.8.
"Covered Person" is defined in Section 2.2.
"Date Sensitive Functions" is defined in Section 12.40.1.
AMENDED EXHIBIT 2.1
Page 3 of 14
"Default": any of the events listed in Section 17.1 of this Agreement, without
giving effect to any requirement for the giving of notice, for the lapse of
time, or both, or for the happening of any other condition, event or act.
"Deposit Guaranty": Deposit Guaranty National Bank.
"Disclosure Schedule" is defined in Section 12.
"Distribution(s)" means and includes (i)any cash dividend, (ii)any acquisition
or redemption of any outstanding stock, (iii)any retirement or prepayment of
debt securities before their regularly scheduled maturity dates, and (iv)any
loan or advance to a shareholder.
"Documents" shall have the meaning set forth for "Documents" in Article 9 of the
UCC and shall include, but shall not be limited to, documents of title, bills of
lading, dock warrants, dock receipts, warehouse receipts, orders of delivery of
goods (receipts of goods even though not issued by a warehouse), and also any
other document which, in the regular course of business or financing, is treated
as evidence that the person in possession is entitled to receive, hold or
dispose of the document and the goods it covers and may cover goods that are
identified or are fungible portions of an identified mass.
"DOL": the United States Department of Labor.
"Dollars" and the sign "$": lawful money of the United States.
"EBITDAR" is defined in Section 16.1.
"Effective Date" is defined in Section 1.
"Eligible Accounts" is defined in Section 3.1.4.
"Eligible Assignee": (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any
other Person approved by Administrative Agent and Borrower; provided, however,
that neither Borrower, any guarantor nor any Affiliate of Borrower or any
guarantor shall qualify as an Eligible Assignee; provided further, however, that
unless Borrower otherwise agrees, no Person organized under the Laws of a
jurisdiction outside the United States shall qualify as an Eligible Assignee.
"Eligible Unencumbered Equipment" is defined in Section 3.1.5.
"Employment Law": ERISA, the Occupational Safety and Health Act, the Fair Labor
Standards Act, or any other Law pertaining to the terms or conditions of labor
or safety in the workplace.
"Encumbrance": as to any item of real or personal property, any easement,
right-of-way, license, condition, or restrictive covenant, or zoning or similar
restriction, that is not a Security Interest but is enforceable by any Person
other than the record owner of such property.
"Environmental Law": the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Clean
Water Act, the Clean Air Act, or any other Law pertaining to environmental
quality or remediation of Hazardous Material.
"EPA": the United States Environmental Protection Agency.
AMENDED EXHIBIT 2.1
Page 4 of 14
"Equipment" shall include, but not be limited to, wherever located, any Goods
used or bought for use in Borrower's business, including, but not limited to,
furniture, accessories, non-titled and titled vehicles that are not held for
resale, trailers, tools, machinery, equipment, and computers.
"Equipment Leases": Capital Leases or other leases of tractors, trailers or
other rolling stock to which Borrower is a party that are not Capital Leases.
"ERISA": the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate": any trade or business (irrespective of whether incorporated)
which is a member of a group of which Borrower is a member and thereafter
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code
or applicable Treasury Regulations.
"ESPP": the Employee Stock Purchase Plan.
"Event of Default": any of the events listed in Section 17.1 of this Agreement
as to which any requirement for the giving of notice, for the lapse of time, or
both, or for the happening of any further condition, event or act has been
satisfied.
"Execution Date": the date when this Agreement has been executed.
"Existing Deposit Guaranty Indebtedness" is defined in Section 10.1.2.
"Extant Default": a Default which has occurred and is continuing, or an Event of
Default which has occurred, and which has not been waived in writing by
Administrative Agent.
"Federal Funds Rate": for any day, the rate per annum (rounded to the nearest
1/100 of 1% or, if there is no nearest 1/100 of 1%, then to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve Lender of
St. Louis on the Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Administrative Agent on such day
on such transactions as determined by Administrative Agent.
"Financial Statements": the most recent of the Initial Financial Statements and
the financial statements of Borrower required to be furnished to Administrative
Agent under Section 14.14 of this Agreement.
"First Amendment" means the First Amendment to Loan Agreement, dated March 30,
2001, entered into between Borrower, Administrative Agent, Issuer and Lenders,
by which the Agreement is amended.
"Fiscal Quarter": a fiscal quarter of Borrower consisting of three Periods.
"Fiscal Year": Borrower's fiscal year which is comprised of a 52 week period
ending on the last day of each calendar year.
"Fixed Charge Coverage Ratio" is defined in Section 16.1.
AMENDED EXHIBIT 2.1
Page 5 of 14
"FRB": the Board of Governors of the Federal Reserve System and any successor
thereto or to the functions thereof.
"GAAP": those generally accepted accounting principles set forth in Statements
of the Financial Accounting Standards Board and in Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants or
which have other substantial authoritative support in the United States and are
applicable in the circumstances, as applied on a consistent basis.
"General Intangibles" means any personal property other than Goods, Accounts,
Chattel Paper, Documents, Instruments and money and shall include, but shall not
be limited to, things in action, all goodwill, tax refunds, trademarks, trade
names, patents, copyrights, government payments, and all proceeds thereof and
proceeds of proceeds thereof.
"Goods" shall have the meaning set forth for "Goods" in Article 9 of the UCC.
"Governmental Authority": the federal government of the United States; the
government of any foreign country that is recognized by the United States or is
a member of the United Nations; any state of the United States; any local
government or municipality within the territory or under the jurisdiction of any
of the foregoing; any department, agency, division, or instrumentality of any of
the foregoing; and any court whose orders or judgements are enforceable by or
within the territory of any of the foregoing.
"Group": as used in Regulation 13-D issued by the Securities and Exchange
Commission.
"Hazardous Material": any hazardous, radioactive, toxic, solid or special waste,
material, substance or constituent thereof, or any other such substance (as
defined under any applicable law or regulation), including Asbestos Material.
"Hedge Transaction": shall mean (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Hedge Agreement": any agreement or agreements entered into between Borrower and
Administrative Agent or any Affiliate or Subsidiary of Bank of America
Corporation in connection with a Hedge Transaction.
"Hedge Obligation": any obligation of Borrower arising in connection with a
Hedge Transaction or pursuant to a Hedge Agreement.
AMENDED EXHIBIT 2.1
Page 6 of 14
"Indebtedness": as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii) to
pay the deferred purchase price of property or services; (iii) to make payments
or reimbursements with respect to bank acceptances or to a factor; (iv) to make
payments or reimbursements with respect to letters of credit or drawings
thereunder; (v) with respect to which there is any Security Interest in any
property of such Person; (vi) to make any payment or contribution to a
Multi-Employer Plan; (vii) that is evidenced by a note, bond, debenture or
similar instrument; (viii) under any conditional sale agreement or title
retention agreement; or (ix) to pay interest or fees with respect to any of the
foregoing.
"Indemnified Liabilities" is defined in Section 20.8.1.
"Indemnified Parties" is defined in Section 20.8.1.
"Indirect Obligation": as to any Person, (a) any guaranty by such Person of any
Obligation of another Person; (b) any Security Interest in any property of such
Person that secures any Obligation of another Person, (c) any enforceable
contractual requirement that such Person (i) purchase an Obligation of another
Person or any property that is security for such Obligation, (ii) advance or
contribute funds to another Person for the payment of an Obligation of such
other Person or to maintain the working capital, net worth or solvency of such
other Person as required in any documents evidencing an Obligation of such other
Person, (iii) purchase property, securities or services from another Person for
the purpose of assuring the beneficiary of any Obligation of such other Person
that such other Person has the ability to timely pay or discharge such
Obligation, (iv) grant a Security Interest in any property of such Person to
secure any Obligation of another Person, or (v) otherwise assure or hold
harmless the beneficiary of any Obligation of another Person against loss in
respect thereof; and (d) any other contractual requirement enforceable against
such Person that has the same substantive effect as any of the foregoing. The
term "Indirect Obligation" does not, however, include the endorsement by a
Person of instruments for deposit or collection in the ordinary course of
business or the liability of a general partner of a partnership for Obligations
of such partnership. The amount of any Indirect Obligation of a Person shall be
deemed to be the stated or determinable amount of the Obligation in respect of
which such Indirect Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Initial Financial Statements" the financial statements (not including the
Projections or the Pro Forma Balance Sheet) of Borrower referred to in Section
10.1.3.
"Instruments" shall have the meaning set forth for "Instruments" in Article 9 of
the UCC and shall include, but shall not be limited to, negotiable instruments,
drafts, bills of exchange, checks, certificates of deposits, notes,
non-negotiable instruments, securities, intangible interests, shares,
participation, or other interest in property of an enterprise of an issuer or an
obligation of the issuer, all whether certificated or uncertificated, registered
or unregistered.
"Insurance Proceeds": insurance proceeds payable as a consequence of damage to
or destruction of any of the Collateral.
"Intellectual Property": as to any Person, any domestic or foreign patents or
patent applications of such Person, any inventions made or owned by such Person
upon which either domestic or foreign patent applications have not yet been
filed, any domestic or foreign trade names or trademarks of such Person, any
domestic or foreign trademark registrations or applications filed by such
Person, any domestic or foreign service marks of such Person, any domestic or
foreign service ▇▇▇▇ registrations and applications
AMENDED EXHIBIT 2.1
Page 7 of 14
by such Person, any domestic or foreign copyrights of such Person, and any
domestic or foreign copyright registrations or applications by such Person.
"Intellectual Property Assignment" is defined in Section 8.3.
"Interest Period" is defined in Section 4.7.
"Inventory" shall have the meaning set forth for "Inventory" in Article 9 of the
UCC and shall include, but shall not be limited to, wherever located, raw
materials, work in progress, finished goods, other tangible goods held for sale
or lease, goods returned, repossessed or consumed in Borrower's business,
Documents (including, but not limited to, documents of title, bills of lading
and warehouse receipts), all proceeds, and all proceeds of proceeds thereof.
"Investment": (a) a loan or advance of money or property to a Person, (b) stock
or other equity interest in a Person, (c) a debt instrument issued by a Person,
whether or not convertible to stock or other equity interest in such Person, or
(d) any other interest in or rights with respect to a Person which include, in
whole or in part, a right to share, with or without conditions or restrictions,
some or all of the revenues or net income of such Person.
"IRS": the Internal Revenue Service.
"Issuer": BofA.
"Law": any statute, rule, regulation, order, judgment, award or decree of any
Governmental Authority.
"LC," and LC Commitment" are defined in Section 3.5.
"LC Exposure": the undrawn amount of all outstanding LCs issued by Issuer for
the account of Borrower plus all amounts drawn on such LCs and not yet
reimbursed to Lenders by Borrower.
"LC Request" is defined in Section 7.12.
"Lenders" is defined in the introductory paragraph of this Agreement.
"Lender's Exposure": at any time, as to any Lender, the sum of the outstanding
principal amount of Loan Obligations (which shall be deemed to include the
amount of such Lender's participation share in the LC Exposure and the amount of
the Swingline Loan in the case of the Administrative Agent) owed to such Lender
plus such Lender's Remaining Commitment.
"LIBO Rate": for the applicable Interest Period therefor, the interest rate per
annum equal to the quotient of
(i) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%), as determined by Administrative Agent as appearing on the Telerate
Page 3750 (or any successor page), as published by Bridge Information Systems,
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "LIBO Rate" shall mean, for any LIBOR
Advance for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London
AMENDED EXHIBIT 2.1
Page 8 of 14
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period (provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%)),
divided by
(ii) an amount equal to one minus the maximum rate (expressed as a
decimal) at which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the FRB or any other Governmental
Authority to which any Lender is subject (or any successor) against, including,
in the case of LIBOR Advances, Eurocurrency liabilities (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the reserve
requirement shall reflect any other reserves required to be maintained by any
Lender with respect to any category of liabilities which includes deposits by
reference to which the LIBO Rate is to be determined, or any category of
extensions of credit or other assets which include LIBOR Advances. (The entire
amount of a LIBOR Advance shall be deemed to constitute a Eurocurrency liability
and as such shall be deemed to be subject to such reserve requirements without
benefit of credits for proration, exceptions or setoffs which may be available
from time to time to any Lender under Regulation D.) The LIBO Rate shall be
adjusted automatically on and as of the effective date of any change in any such
reserve requirements.
"LIBOR Advance": an Advance bearing interest at the LIBO Rate.
"LIBOR Increment" is specified in Section 4.6.
"Loan": a Revolving Loan or the Swingline Loan.
"Loan Agreement" means the Loan Agreement executed as of April 28, 2000, 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 Agreement and their respective successors
and assigns, as "Lenders" as amended by the First Amendment.
"Loan Documents" means this Agreement, the First Amendment, the Notes (including
any renewals, extensions and refundings thereof), the Security Agreement,
Amended Security Agreement, and any Hedge Agreement.
"Loan Obligations": all of Borrower's Indebtedness owing to Lenders, Issuer or
Administrative Agent whether as principal, interest, fees or otherwise, all
reimbursement obligations of Borrower to Lenders with respect to the LC
Exposure, and all other obligations (including obligations for the payment of
money) and liabilities of Borrower to Lenders, whether arising under any of the
Loan Documents or otherwise and all Hedge Obligations (in each case, including
all extensions, renewals, modifications, rearrangements, restructures,
replacements and refinancings of the foregoing, whether or not the same involve
modifications to interest rates or other payment terms), and whether now
existing or hereafter created, absolute or contingent, direct or indirect, joint
or several, secured or unsecured, due or not due, contractual or tortuous,
liquidated or unliquidated, arising by operation of law or otherwise, or
acquired by Lenders outright, conditionally or as collateral security from
another, including the obligation of Borrower to repay future advances by
Lenders, whether or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Lenders in the Loan Documents.
AMENDED EXHIBIT 2.1
Page 9 of 14
"Material Adverse Effect": as to any Person and with respect to any event or
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, investigation or proceeding), a material adverse effect
on the business, operations, revenues, financial condition, property, or
business prospects of such Person taken as a whole, or the value of the
Collateral, or the ability of such Person to timely pay or perform such Person's
Obligations generally, or in the case of Borrower specifically, the ability of
Borrower to pay or perform any of Borrower's Obligations to Lender.
"Material Agreement": as to any Person, any Contract to which such Person is a
party or by which such Person is bound which, if violated or breached, would
have a Material Adverse Effect on such Person or any Covered Person.
"Material Law": any Law whose violation by a Person would have a Material
Adverse Effect with respect to such Person.
"Material License": (i) as to any Covered Person, any license, permit or consent
from a Governmental Authority or other Person and any registration and filing
with a Governmental Authority or other Person which if not obtained, held or
made by such Covered Person would have a Material Adverse Effect with respect to
such Covered Person or any other Covered Person, and (ii) as to any Person who
is a party to this Agreement or any of the other Loan Documents, any license,
permit or consent from a Governmental Authority or other Person and any
registration or filing with a Governmental Authority or other Person that is
necessary for the execution or performance by such party, or the validity or
enforceability against such party, of this Agreement or such other Loan
Document.
"Material Obligation": as to any Person, an Obligation of such Person which if
not fully and timely paid or performed would have a Material Adverse Effect on
such Person.
"Material Proceeding": any litigation, investigation or other proceeding by or
before any Governmental Authority (i) which involves any of the Loan Documents
or any of the transactions contemplated thereby, or involves a Covered Person as
a party or any property of a Covered Person, and would have a Material Adverse
Effect with respect to any Covered Person if adversely determined, (ii) in which
there has been issued an injunction, writ, temporary restraining order or any
other order of any nature which purports to restrain or enjoin the making of any
Advance, the consummation of any other transaction contemplated by the Loan
Documents, or the enforceability of any provision of any of the Loan Documents,
(iii) which involves the actual or alleged breach or violation by a Covered
Person of, or default by a Covered Person under, any Material Agreement, or (iv)
which involves the actual or alleged violation by a Covered Person of any
Material Law.
"Maturity": as to any Indebtedness, the time when it becomes payable in full,
whether at a regularly scheduled time, because of acceleration or otherwise.
"Maximum Available Amount" is defined in Section 3.1.2.
"Maximum Swingline Amount" is defined in Section 3.2.2.
"Mortgage" is defined in Section 8.2.
"Multi-employer Plan": a Pension Benefit Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
AMENDED EXHIBIT 2.1
Page 10 of 14
"Note": a Revolving Note or the Swingline Note.
"Notice of Conversion/Continuation" is defined in Section 4.8.
"Obligation": as to any Person, any Indebtedness of such Person, any guaranty by
such Person of any Indebtedness of another Person, and any contractual
requirement enforceable against such Person that does not constitute
Indebtedness of such Person or a guaranty by such Person but which would involve
the expenditure of money by such Person if complied with or enforced.
"Operating Lease": any lease that is not a Capital Lease.
"Payment Office": in the case of Administrative Agent, its office at Mail Code
MO1-800-12-25, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
"PBGC": the Pension Benefit Guaranty Association.
"Pension Benefit Plan": any pension or profit-sharing plan which is covered by
Title I of ERISA and all other benefit plans and in respect of which a Covered
Person or a Commonly Controlled Entity of such Covered Person is an "employer"
as defined in Section 3(5) of ERISA.
"Perfection Documents": the titles, manufacturer's certificate of origin, lien
entry forms and any other documents, instruments or certificates required to be
executed or delivered to a governmental office to perfect Administrative Agent's
Security Interest in the Unencumbered Revenue Equipment or otherwise deemed
necessary by Administrative Agent to create, preserve or perfect any Security
Interest in Unencumbered Revenue Equipment and the proceeds thereof.
"Perfection Procedures" is defined in Section 8.2.
"Perfection Triggering Event": the occurrence of either of the following: (i) an
Event of Default or (ii) as of the end of any Fiscal Quarter, the Total Funded
Debt to EBITDAR Ratio being greater than 2.50 to 1.00.
"Period": a period of time comprised of four weeks.
"Permitted Indebtedness" is defined in Section 15.2.
"Permitted Indirect Obligations" is defined in Section 15.4.
"Permitted Investments" is defined in Section 15.1.
"Permitted Security Interests" is defined in Section 15.5.
"Person": any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental Authority,
or other organization in any form that has the legal capacity to ▇▇▇ or be sued.
If the context so implies or requires, the term Person includes Borrower.
"Personal Property Collateral" is defined in Section 8.1.
AMENDED EXHIBIT 2.1
Page 11 of 14
"Prime Rate": the per annum interest rate so designated from time to time as the
Prime Rate by Administrative Agent. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate charged to any customer of
Administrative Agent.
"Pro Forma Balance Sheet": is defined in Section 12.14.
"Projections": is defined in Section 10.1.3.
"Rate Agreement" is defined in Section 14.22.
"Register" is defined in Section 20.4.4.
"Regulation A," "Regulation D," "Regulation T," Regulation U," and "Regulation
X": , respectively, Regulation A issued by the FRB, Regulation D issued by the
FRB, Regulation T issued by the FRB, Regulation U issued by the FRB, and
Regulation X issued by the FRB.
"Remaining Commitment": at any time, as to any Commitment of any Lender with
respect to which such Lender has a further obligation under this Agreement to
make further Advances to Borrower under such Commitment, an amount equal to the
difference between (a) the initial Dollar amount of such Commitment of such
Lender, as such Commitment has been reduced from time to time in accordance with
the terms of this Agreement, and (b) the outstanding principal amount of all
Loan Obligations owed to such Lender with respect to such Commitment.
"Reportable Event": a reportable event as defined in Title IV of ERISA or the
regulations thereunder.
"Required Lenders": on any date, Lenders holding one hundred percent (100%) of
the Lenders Exposure if there are less than four Lenders and holding sixty-six
and two-thirds percent (66 2/3%) of the Lenders' Exposure if there are more than
three Lenders.
"Responsible Officer": as to any Person that is not an individual, partnership
or trust, the Chairman of the Board of Directors, the President, the chief
executive officer, the chief operating officer, the chief financial officer, the
Treasurer, any Assistant to the Treasurer, or any Vice President in charge of a
principal business unit; as to any partnership, any individual who is a general
partner thereof or any individual who has general management or administrative
authority over all or any principal unit of the partnership's business; and as
to any trust, any individual who is a trustee.
"Revolver Maturity Date" is defined in Section 3.1.1.
"Revolving Advance," "Revolving Loan," "Revolving Note" are defined in Section
3.1.1.
"Revolving Advance Date" and "Revolving Advance Request" are defined in Section
7.2.1.1.
"Revolving Commitment" is defined in Section 3.1.2.
"Revolving Commitment Fee" is defined in Section 5.2.
"Revolving Note" and "Revolving Notes" are defined in Section 3.1.1.
"Second Agreement": means the Second Amendment to Loan Agreement, dated June 17,
2003, entered into between Borrower, Administrative Agent, Issuer and Lenders,
by which the Agreement is amended.
AMENDED EXHIBIT 2.1
Page 12 of 14
"Second Amendment Date": June 17, 2003.
"Security Agreement" is defined in Section 8.1.
"Security Documents" is defined in Section 8.
"Security Interest": as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a Contract
or arises by operation of law or statute (such as but not limited to a statutory
lien for work or materials), as a result of a judgment, or under any form of
preferential or title retention agreement or arrangement (including a
conditional sale agreement or a lease) that has substantially the same economic
effect as any of the foregoing.
"Standby LC" is defined in Section 3.5.
"Standby LC Fee" is defined in Section 5.4.
"Stock Repurchase" the repurchase of shares of common stock of Borrower on the
Effective Date pursuant to the ESPP and otherwise.
"Subsidiary": as to any Person, a corporation with respect to which more than
20% of the outstanding shares of stock of each class having ordinary voting
power (other than stock having such power only by reason of the happening of a
contingency) is at the time owned by such Person or by one or more Subsidiaries
of such Person.
"Swingline Advance," "Swingline Commitment," "Swingline Loan," "Swingline Note"
are defined in Section 3.2.1.
"Tangible Net Worth" is defined in Section 16.1.
"Taxes" is defined in Section 19.1.1.
"this Agreement": this document (including every document that is stated herein
to be an appendix, exhibit or schedule hereto, whether or not physically
attached to this document).
"Total Funded Debt" is defined in Section 16.1.
"Triggering Event" is defined in Section 20.8.1.
"UCC": the Uniform Commercial Code as in effect from time to time in the State
of Missouri or such other similar statute as in effect from time to time in
Missouri or any other appropriate jurisdiction.
"Unencumbered Revenue Equipment": the tractors, trailers and other rolling stock
owned by Borrower (and not leased by Borrower) and used by Borrower to transport
goods for other Persons for hire which creates Accounts.
AMENDED EXHIBIT 2.1
Page 13 of 14
"United States": when used in a geographical sense, all the states of the United
States of America and the District of Columbia; and when used in a legal
jurisdictional sense, the government of the country that is the United States of
America.
"Unused Revolving Commitment" is defined in Section 5.2.
"Up-Front Fee" is defined in Section 5.1.
"Welfare Benefit Plan": any plan described by Section 3(1) of ERISA.
"Year 2000 Compliant": is defined in Section 12.40.1.
AMENDED EXHIBIT 2.1
Page 14 of 14
EXHIBIT 3
LENDERS' COMMITMENTS AND PRO RATA SHARES
PRO RATA SHARE OF
REVOLVING AGGREGATE
LENDER COMMITMENT REVOLVING COMMITMENT
---------------------- -------------- ----------------------
Bank of America, N.A. $24,000,000.00 40%
SunTrust Bank $18,000,000.00 30%
U.S. Bank, N.A. $18,000,000.00 30%
AGGREGATES $60,000,000.00 100%
EXHIBIT 3
Page 1 of 1
EXHIBIT 10.2 TO SECOND AMENDMENT TO LOAN AGREEMENT
OFFICER'S CERTIFICATE
The undersigned, the duly authorized Secretary/CFO of USA TRUCK, INC.,
a Delaware corporation, referred to as "Borrower" in that certain Loan Agreement
(the "Agreement") dated April 28, 2000, as amended by the First Amendment to
Loan Agreement dated March 30, 2001, as further amended by the Second Amendment
to Loan Agreement dated June 17, 2003, between Borrower, BANK OF AMERICA, N.A.
("BofA"), as "Administrative Agent" and "Issuer", and BofA and other lenders
listed on EXHIBIT 3 to the Agreement, as "Lenders," certifies to said Lenders in
accordance with the terms and provisions of the Agreement, as follows:
1. ALL OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 12 OF THE
AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE AND REMAIN TRUE AND CORRECT ON AND AS
OF THE DATE OF THIS CERTIFICATE WITH THE SAME EFFECT AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES HAD BEEN MADE ON AND AS OF THIS DATE.
2. As of the date hereof, the Borrower is in full compliance with all
of the terms and provisions set forth in the Agreement and all of the
instruments and documents executed in connection therewith, and no Event of
Default, as specified in Section 17 of the Agreement, nor any event which, upon
notice, lapse of time or both, would constitute an Event of Default, has
occurred or is continuing.
3. That the Articles of Incorporation of Borrower have not been
modified since May 13, 1994.
4. That the By-Laws of Borrower have not been modified since February
1, 2002.
DATED this 23rd day of June, 2003.
USA TRUCK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary/CFO
EXHIBIT 10.2
Page 1 of 1
EXHIBIT 10.3 TO SECOND AMENDMENT TO LOAN AGREEMENT
USA TRUCK, INC.
OFFICER'S CERTIFICATE OF INCUMBENCY
The undersigned hereby certifies individually and on behalf of USA
TRUCK, INC., a Delaware corporation (the "Company"), in connection with a
syndicated revolving credit facility made available to the Company from BANK OF
AMERICA, N.A. ("BOFA"), U.S. BANK, N.A. AND SUNTRUST BANK (the "Lenders")
pursuant to the Loan Agreement between Lenders, BofA as Administrative Agent,
and the Company dated April 28, 2000, as amended by the First Amendment to Loan
Agreement dated March 30, 2001, as further amended by the Second Amendment to
Loan Agreement dated June 17, 2003 (the "Loan"), that I am the duly elected and
qualified Secretary of the Company and that each of the persons named below is a
duly elected or appointed and a duly qualified officer of the Company and has
consistently held since before June 17, 2003, and now holds the respective
office set forth after his or her name below, that the signature appearing
opposite his or her name below is his or her genuine signature and that any of
the named officers is authorized to execute and deliver any Loan Document, as
defined in the aforesaid Loan Agreement or other instrument related to the Loan
or do any other act required in connection therewith:
Name Office Signature
---------------- ----------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chairman and /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ President /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Secretary and /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer -----------------------------
In witness whereof, I have hereunto set my hand on June 23, 2003.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
(Corporate Seal)
EXHIBIT 10.3
Page 1 of 1
EXHIBIT 10.4 TO SECOND AMENDMENT TO LOAN AGREEMENT
USA TRUCK, INC.
CERTIFICATE OF CORPORATE RESOLUTION
We, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the duly elected President
and Secretary, respectively, of USA TRUCK, INC. (the "Company"), a Delaware
corporation, do hereby certify that the following resolutions were unanimously
adopted by the Board of Directors of the Company at a regular/special meeting
held on June 23, 2003:
RESOLVED, that the Company has a Sixty Million Dollar
($60,000,000.00) loan structured as a revolving credit loan (the
"Loan") from a syndicate of financial institutions consisting of
BANK OF AMERICA, NATIONAL ASSOCIATION, SUNTRUST BANK, and U.S.
BANK, N.A. (collectively, the "Lenders"), with BOA acting as the
administrative agent for the Lenders ("Administrative Agent")
extended pursuant to a Loan Agreement dated April 28, 2000
("Agreement") and has requested certain modifications to the
Agreement and is authorized to pay to the Lenders or
Administrative Agent, as the case may be, such fees and expenses
as required to obtain the modifications to the Agreement
requested by the Company and to execute the loan documents
required to be executed by Administrative Agent or Lenders in
connection therewith; and
RESOLVED, that the Company is authorized to enter into and
execute a SECOND AMENDMENT TO LOAN AGREEMENT (the "Second
Amendment") with Lenders and Administrative Agent, which amends
the Loan Agreement, and in addition to the Loan Agreement,
provides for and establishes the terms and conditions for the
Loan and such other Loan Documents, as defined therein (the
"Loan Documents"), required to be executed pursuant thereto; and
▇▇▇▇▇ ▇. ▇▇▇▇▇, the Company's President, is hereby authorized to
execute and deliver same on the Company's behalf in such form as
he deems to be necessary and advisable, in his sole and absolute
discretion, with the advice of counsel to the Company, as
conclusively evidenced by his execution and delivery thereof;
and the Secretary or any other proper officer of the Company is
authorized to attest thereto and affix the seal of the Company
to such Second Amendment and other Loan Documents; and
RESOLVED, that ▇▇▇▇▇ ▇. ▇▇▇▇▇ the Company's President, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Company's Secretary, or other proper
officers of the Company, are authorized and directed to do or
cause to be done any and all such further acts and things or to
execute and deliver, and the President, Secretary or any other
proper officer of the Company is authorized to affix the seal of
the Company to, and attest thereto, any and all such documents,
papers, and instruments as they deem to be necessary and
advisable, with the advice of counsel to the Company, in order
to carry into effect the purpose and intent of the foregoing
resolutions and the Second Amendment.
We further certify that the above resolutions remain in full force and
effect on June 23, 2003, have not been rescinded or modified and conform with
the Articles of Incorporation and By-Laws of the Company.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary of the
Company and affixed its corporate seal by order of the Board of Directors, as of
June 23, 2003.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
(Corporate Seal)
