EXHIBIT 10.1
CONFORMED COPY
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U.S. $100,000,000
CREDIT AGREEMENT
DATED AS OF
AUGUST 13, 1998
AMONG
TRANSPORT CORPORATION
OF AMERICA, INC.,
THE BANKS PARTY HERETO,
ABN AMRO BANK N.V.,
as Agent,
AND
FIRSTAR BANK OF MINNESOTA,
NATIONAL ASSOCIATION,
as Documentation Agent
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TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
PAGE
SECTION 1. DEFINITIONS; INTERPRETATION................................1
Section 1.1. Definitions................................................1
Section 1.2. Interpretation............................................12
SECTION 2. THE REVOLVING CREDIT......................................12
Section 2.1. The Revolving Loan Commitment.............................12
Section 2.2. Swingline Loans...........................................12
Section 2.3. Letters of Credit.........................................13
Section 2.4. Applicable Interest Rates.................................16
Section 2.5. Minimum Borrowing Amounts.................................17
Section 2.6. Manner of Borrowing Loans and Designating Interest
Rates Applicable to Loans.............................18
Section 2.7. Interest Periods..........................................20
Section 2.8. Maturity of Loans.........................................21
Section 2.9. Prepayments...............................................21
Section 2.10. Default Rate..............................................21
Section 2.11. The Notes.................................................22
Section 2.12. Funding Indemnity.........................................22
Section 2.13. Commitment Terminations...................................23
Section 2.14. Extension of Commitments..................................23
SECTION 3. FEES......................................................23
Section 3.1. Fees .....................................................23
SECTION 4. PLACE AND APPLICATION OF PAYMENTS; GUARANTEES.............25
Section 4.1. Place and Application of Payments.........................25
Section 4.2. Guarantees................................................25
SECTION 5. REPRESENTATIONS AND WARRANTIES............................25
Section 5.1. Corporate Organization and Authority......................25
Section 5.2. Subsidiaries..............................................25
Section 5.3. Corporate Authority and Validity of Obligations...........26
Section 5.4. Financial Statements; No Material Adverse Change..........26
Section 5.5. No Litigation; No Labor Controversies.....................26
Section 5.6. Taxes ....................................................27
Section 5.7. Approvals.................................................27
Section 5.8. ERISA ....................................................27
Section 5.9. Government Regulation.....................................27
Section 5.10. Margin Stock; Use of Proceeds.............................27
Section 5.11. Licenses and Authorizations; Compliance with Laws.........27
Section 5.12. Ownership of Property.....................................28
Section 5.13. Compliance with Agreements................................28
Section 5.14. Full Disclosure...........................................28
Section 5.15. Solvency..................................................29
Section 5.16. Capitalization............................................29
Section 5.17. Year 2000.................................................29
SECTION 6. CONDITIONS PRECEDENT......................................29
Section 6.1. Initial Credit Event......................................29
Section 6.2. All Credit Events.........................................30
Section 6.3. Determinations Under Section 6.1..........................31
SECTION 7. COVENANTS.................................................31
Section 7.1. Corporate Existence; Subsidiaries.........................31
Section 7.2. Maintenance...............................................32
Section 7.3. Taxes ....................................................32
Section 7.4. ERISA ....................................................32
Section 7.5. Insurance.................................................32
Section 7.6. Financial Reports and Other Information...................32
Section 7.7. Bank Inspection Rights....................................34
Section 7.8. Conduct of Business.......................................34
Section 7.9. Use of Proceeds; Regulation U.............................34
Section 7.10. Mergers, Consolidations and Sales.........................35
Section 7.11. Use of Property and Facilities; Environmental and
Health and Safety Laws...............................35
Section 7.12. Dividends and Other Shareholder Distributions.............35
Section 7.13. Compliance with Laws......................................36
Section 7.14. Net Worth.................................................36
Section 7.15. Consolidated Funded Indebtedness to Consolidated EBITDAR..36
Section 7.16. Consolidated Fixed Charge Coverage Ratio..................36
Section 7.17. Indebtedness..............................................36
Section 7.18. Liens ....................................................37
Section 7.19. Investments, Acquisitions, Loans, Advances and
Guaranties...........................................37
SECTION 8. EVENTS OF DEFAULT AND REMEDIES............................38
Section 8.1. Events of Default.........................................38
Section 8.2. Non-Bankruptcy Defaults...................................40
Section 8.3. Bankruptcy Defaults.......................................41
Section 8.4. Collateral for Undrawn Letters of Credit..................41
Section 8.5. Expenses..................................................42
SECTION 9. CHANGE IN CIRCUMSTANCES...................................42
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Section 9.1. Change of Law.............................................42
Section 9.2. Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR...................42
Section 9.3. Increased Cost and Reduced Return.........................43
Section 9.4. Lending Offices...........................................44
Section 9.5. Discretion of Bank as to Manner of Funding................44
SECTION 10. THE AGENT.................................................44
Section 10.1. Appointment and Authorization of Agent....................44
Section 10.2. Agent and its Affiliates..................................45
Section 10.3. Action by Agent...........................................45
Section 10.4. Consultation with Experts.................................45
Section 10.5. Liability of Agent; Credit Decision.......................45
Section 10.6. Indemnity.................................................46
Section 10.7. Resignation of Agent and Successor Agent..................46
Section 10.8. Documentation Agent.......................................47
SECTION 11. MISCELLANEOUS.............................................47
Section 11.1. Withholding Taxes.........................................47
Section 11.2. No Waiver of Rights.......................................48
Section 11.3. Non-Business Day..........................................48
Section 11.4. Documentary Taxes.........................................48
Section 11.5. Survival of Representations...............................48
Section 11.6. Survival of Indemnities...................................48
Section 11.7. Set-Off...................................................48
Section 11.8. Notices...................................................49
Section 11.9. Counterparts..............................................50
Section 11.10. Successors and Assigns....................................50
Section 11.11. Participants..............................................50
Section 11.12. Assignment of Commitments by Banks........................51
Section 11.13. Amendments................................................51
Section 11.14. Headings..................................................52
Section 11.15. Legal Fees, Other Costs and Indemnification...............52
Section 11.16. Entire Agreement..........................................52
Section 11.17. Construction..............................................52
Section 11.18. Governing Law.............................................52
Section 11.19. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL..........53
Signature.....................................................................54
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EXHIBITS
EXHIBIT A-1 Form of Revolving Note
EXHIBIT A-2 Form of Swingline Note
EXHIBIT B Assignment and Acceptance Agreement
EXHIBIT C Form of Borrowing Base Confirmation
EXHIBIT D Form of Compliance Certificate
SCHEDULES
SCHEDULE 1 Pricing Grid
SCHEDULE 5.2 Existing Subsidiaries
SCHEDULE 5.5 Litigation and Labor Controversies
SCHEDULE 5.12 Liens
SCHEDULE 5.16 Capitalization
SCHEDULE 7.17(c) Outstanding Secured Revenue Equipment Debt
SCHEDULE 7.17(d) Existing Indebtedness
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of August 13, 1998, among Transport Corporation
of America, Inc., a Minnesota corporation (the "BORROWER"), the banks from time
to time party hereto (each a "BANK," and collectively the "BANKS"), ABN AMRO
Bank N.V. in its capacity as agent for the Banks hereunder (in such capacity,
the "AGENT") and Firstar Bank of Minnesota, National Association, in its
capacity as documentation agent (the "DOCUMENTATION AGENT").
WITNESSETH THAT:
WHEREAS, the Borrower desires to obtain the several commitments of the
Banks to make available a revolving credit for loans (including a sublimit for
swingline loans) and letters of credit, as described herein; and
WHEREAS, the credit facilities shall be used to provide working capital,
including the financing of revenue equipment and for other corporate purposes,
including for non-hostile acquisitions; and
WHEREAS, the Banks are willing to extend such commitments subject to all of
the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth.
NOW, THEREFORE, in consideration of the recitals set forth above and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
SECTION 1.1 DEFINITIONS. The following terms when used herein have the
following meanings:
"ACCOUNT" is defined in Section 8.4(b) hereof.
"ADJUSTED LIBOR" is defined in Section 2.4(b) hereof.
"AFFILIATE" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "CONTROL" (including, with their correlative
meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies of a Person (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), PROVIDED that, in any
event for purposes of this definition: (i) any Person which owns directly or
indirectly 5% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 5% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation
or other Person; and (ii) each director and executive officer of the Borrower or
any Subsidiary shall be deemed an Affiliate of the Borrower and each Subsidiary.
Notwithstanding the foregoing, none of the Banks shall be deemed to be
affiliates of the Borrower or any of its Subsidiaries.
"AGENT" is defined in the first paragraph of this Agreement and includes
any successor Agent pursuant to Section 10.7 hereof.
"AGREEMENT" means this Credit Agreement, including all Exhibits and
Schedules hereto, as it may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
"APPLICABLE MARGIN" means, at any time with respect to Eurodollar Loans,
the Eurodollar Margin.
"APPLICATION" is defined in Section 2.3(b) hereof.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement in substantially the same form as Exhibit B attached hereto.
"AUTHORIZED REPRESENTATIVE" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(e) hereof, or on any
updated such list provided by the Borrower to the Agent, or any further or
different officer of the Borrower so named by any Authorized Representative of
the Borrower in a written notice to the Agent.
"BANK" is defined in the first paragraph of this Agreement.
"BASE RATE" is defined in Section 2.4(a) hereof.
"BASE RATE LOAN" means a Loan bearing interest prior to maturity at a rate
specified in Section 2.4(a) hereof.
"BORROWER" is defined in the first paragraph of this Agreement.
"BORROWING" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by the Banks on a single date and for a single Interest Period. Borrowings
of Revolving Loans are made and maintained ratably from each of the Banks
according to their Percentages. Borrowings of Swingline Loans are made by the
Swingline Bank in accordance with Section 2.2. A Borrowing is "ADVANCED" on the
day Banks advance funds comprising such Borrowing to the Borrower, is
"CONTINUED" on the date a new Interest Period for the same type of Loans
commences for such Borrowing, and is "CONVERTED" when such Borrowing is changed
from one type of Loan to the other, all as requested by the Borrower pursuant to
Section 2.6(a).
"BORROWING BASE" means, as of any time it is to be determined, the sum of:
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(a) 85% of the remainder of the then outstanding unpaid amount of
Eligible Accounts less any and all returns, rebates, discounts (which may,
at the Agent's option, be calculated on the shortest terms), credits,
allowances, finance charges and/or taxes of any nature at any time issued,
owing, available to or claimed by account debtors, granted, outstanding or
payable in connection with such Eligible Accounts at such time; PLUS
(b) 85% of the net book value (computed by the Borrower in accordance
with GAAP) of unencumbered Revenue Equipment owned by the Borrower and its
Subsidiaries;
PROVIDED that the Borrowing Base shall be computed only as against and on so
much of such Property as is included on the certificates to be furnished from
time to time by the Borrower pursuant to this Agreement and, if required by the
Agent pursuant to any of the terms hereof, as verified by such other evidence
required to be furnished to the Agent pursuant hereto.
"BORROWING BASE CONFIRMATION" means a Borrowing Base Confirmation in the
form of Exhibit C attached hereto.
"BUSINESS DAY" means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the Borrowing or payment of a Eurodollar
Loan, on which banks are dealing in U.S. Dollar deposits in the interbank market
in London, England.
"CAPITAL LEASE" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance sheet
of the lessee.
"CAPITALIZED LEASE OBLIGATIONS" means, for any Person, the amount of such
Person's liabilities under Capital Leases determined at any date in accordance
with GAAP.
"CHANGE OF CONTROL" means (i) any "Person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) is or shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of 20% or more on a fully diluted basis of the
Voting Stock of the Borrower or shall have the right to elect a majority of the
directors of the Borrower (provided, that directors and officers of the Borrower
shall not be deemed to beneficially own each other's Voting Stock of the
Borrower solely due to their status as directors or officers of the Borrower) or
(ii) a majority of the Board of Directors of the Borrower shall cease to consist
of Continuing Directors.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT FEE RATE" means the percentage set forth in Schedule 1 hereto
beside the then applicable leverage ratio.
"COMMITMENTS" is defined in Section 2.1 hereof.
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"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income of
the Borrower and its Subsidiaries, before total interest expense (whether cash
or non-cash) and provisions for taxes based on income, and determined without
giving effect to any extraordinary gains or losses but with giving effect to
gains or losses from sales of assets (including, Revenue Equipment) sold in the
ordinary course of business.
"CONSOLIDATED EBITDAR" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all expenses for depreciation,
amortization and lease rental expenses that were deducted in determining
Consolidated EBIT for such period. In computing Consolidated EBITDAR, any of the
foregoing items realized or accrued for such period and prior to the date of any
acquisition permitted by Section 7.19 by the Person so acquired or attributable
to the assets so acquired shall be included in Consolidated EBITDAR, but only to
the extent that such items of such Person or attributable to such assets would
have been available to the Borrower or its Subsidiary had the Borrower or such
Subsidiary acquired such Person or such assets at the beginning of such period,
such calculations to be made with such other adjustments thereto as mutually
agreed to by the Borrower and the Agent.
"CONSOLIDATED FUNDED INDEBTEDNESS" shall mean, for any period, the sum of
(i) all short term Indebtedness of the Borrower and its Subsidiaries (including
the current maturities of long-term indebtedness), plus (ii) all long term
Indebtedness of the Borrower and its Subsidiaries, including Capitalized Lease
Obligations, plus (iii) the present value (using a discount rate of 10% per
annum) of non-cancellable operating leases of the Borrower and its Subsidiaries,
plus (iv) the undrawn amount of all standby letters of credit issued for the
account of the Borrower and its Subsidiaries, including any unpaid reimbursement
obligations thereunder.
"CONSOLIDATED INTEREST AND RENTAL EXPENSE" shall mean, for any period,
total interest expense (including amounts properly attributable to interest with
respect to Capital Leases in accordance with GAAP and amortization of debt
discount and debt issuance costs) and lease rental expense of the Borrower and
its Subsidiaries on a consolidated basis for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries, including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and net
costs or benefits under interest rate protection agreements.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or net
loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP.
"CONTINUING DIRECTORS" means the directors of the Borrower on the Effective
Date and each other director, if such director's nomination for election to the
Board of Directors of the Borrower is recommended by a majority of the then
Continuing Directors.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
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"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades and businesses (whether or not incorporated) under common control
that, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"CREDIT DOCUMENTS" means this Agreement, the Guarantees, the Notes, the
Applications and the Letters of Credit.
"CREDIT EVENT" means the advancing of any Loan, the continuation of or
conversion into a Eurodollar Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.
"CREDIT PARTIES" means the Borrower and each Guarantor.
"DEFAULT" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"EFFECTIVE DATE" means the date on which the Agent has received signed
counterpart signature pages of this Agreement from each of the signatories (or,
in the case of a Bank, confirmation that such Bank has executed such a
counterpart and dispatched it for delivery to the Agent) and the documents
required by Section 6.1 hereof.
"ELIGIBLE ACCOUNTS" means all accounts receivable of the Borrower; provided
that in no event shall an account receivable be deemed an Eligible Account
unless such account receivable:
(a) arises out of the sale by the Borrower of finished goods inventory
delivered to and accepted by, or out of the rendition by the Borrower of
services fully performed by the Borrower and accepted by, the account
debtor on such account receivable and such account receivable otherwise
represents a final sale;
(b) the account debtor on such account receivable is located within
the United States of America or Canada or, if such right has arisen out of
the sale of such goods shipped to, or out of the rendition of services to,
an account debtor located in any other country, such right is secured by a
valid and irrevocable letter of credit pursuant to which any of the
Borrower or its transferee may draw on a lender reasonably acceptable to
the Agent for the full amount thereof;
(c) is the valid, binding and legally enforceable obligation of the
account debtor obligated thereon and such account debtor is not (i) a
Subsidiary or an Affiliate of the Borrower, (ii) a shareholder (who owns 5%
or more of the Voting Stock of the Borrower or any of its Subsidiaries),
director, officer or employee of the Borrower or any Subsidiary, (iii) the
United States of America, or any state or political subdivision thereof, or
any department, agency or instrumentality of any of the foregoing, unless
the Borrower has complied with the Assignment of Claims Act or any similar
state or local statute, as the case may be, to the satisfaction of the
Agent (iv) a debtor under any proceeding under
5
the United States Bankruptcy Code, as amended, or any other comparable
bankruptcy or insolvency law, or (v) an assignor for the benefit of
creditors;
(d) is not evidenced by an instrument or chattel paper unless the same
has been endorsed and delivered to the Agent;
(e) is an asset of the Borrower to which it has good and marketable
title, is freely assignable;
(f) is not owing from an account debtor who is also a creditor or
supplier of the Borrower, is not subject to any offset, counterclaim or
other defense with respect thereto and, with respect to said account
receivable or the contract or purchase order out of which the same arose,
no surety bond was required or given in connection therewith;
(g) is not unpaid more than 90 days after the original invoice date;
and
(h) does not arise from a sale to an account debtor on a
▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale-on-approval,
consignment or any other repurchase or return basis.
"ENVIRONMENTAL AND HEALTH LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, judgments, permits and other
governmental rules or regulations relating to human health, safety (including
without limitation occupational safety and health standards), or the environment
or to emissions, discharges or releases of pollutants, contaminants, hazardous
or toxic substances, wastes or any other controlled or regulated substance into
the environment, including without limitation ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous or toxic substances, wastes or any other
controlled or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 5.8 hereof.
"EURODOLLAR LOAN" means a Loan bearing interest prior to maturity at the
rate specified in Section 2.4(b) hereof.
"EURODOLLAR MARGIN" means the percentage set forth in Schedule 1 hereto
beside the then applicable leverage ratio.
"EURODOLLAR RESERVE PERCENTAGE" is defined in Section 2.4(b) hereof.
"EVENT OF DEFAULT" means any of the events or circumstances specified in
Section 8.1 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
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"FEDERAL FUNDS RATE" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate set forth in
Section 2.4(a) hereof.
"FEE LETTER" means that certain letter between the Agent, the Issuing Agent
and the Borrower dated on or about the date hereof pertaining to fees to be paid
by the Borrower to the Agent and the Issuing Agent for their sole account and
benefit.
"GAAP" means generally accepted accounting principles as in effect in the
United States from time to time, applied by the Borrower and its Subsidiaries on
a basis consistent with the preparation of the Borrower's financial statements
furnished to the Banks as described in Section 5.4 hereof.
"GUARANTOR" shall mean each Subsidiary of the Borrower that is or becomes a
party to the Guarantees.
"GUARANTEES" shall mean the guaranty agreements in form satisfactory to the
Agent executed by all Subsidiaries of the Borrower.
"GUARANTY" by any Person means all obligations (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation (including, without limitation,
limited or full recourse obligations in connection with sales of receivables or
any other Property) of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, or (y) to maintain working capital
or other balance sheet condition, or otherwise, of the primary obligor, or (iii)
to lease property or to purchase Securities or other property or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the primary obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purpose of all computations made under this Agreement, the
amount of a Guaranty in respect of any obligation shall be deemed to be equal to
the maximum aggregate amount of such obligation or, if the Guaranty is limited
to less than the full amount of such obligation, the maximum aggregate potential
liability under the terms of the Guaranty.
"HAZARDOUS MATERIAL" means any substance or material which is hazardous or
toxic, and includes, without limitation, (a) asbestos, polychlorinated
biphenyls, dioxins and petroleum or its by-products or derivatives (including
crude oil or any fraction thereof) and (b) any other material or substance
classified or regulated as "hazardous" or "toxic" pursuant to any Environmental
and Health Law.
"INDEBTEDNESS" means and includes, for any Person, all obligations of such
Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet, and in any event shall include all of the
following whether or not so shown as liabilities
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(i) obligations of such Person for borrowed money, (ii) obligations of such
Person representing the deferred purchase price of property or services (except
trade payables), (iii) obligations of such Person evidenced by bonds,
debentures, notes or other instruments of such Person or noncontingent
reimbursement or payment obligations arising out of letters of credit,
acceptances or other surety instrument issued for such Person's account, (iv)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (v) Capitalized Lease Obligations of such Person, (vi) a principal
portion of synthetic leases to which such Person is a party as lessee, (vii)
obligations for which such Person is obligated pursuant to a Guaranty and (viii)
any equity of such Person or agreement to acquire or redeem such equity that, by
the terms of any provision thereof or agreement related thereto, is upon the
happening of any event or passage of time, prior to the Termination Date,
puttable to, or required to be redeemed by, the Person, it being understood that
the equity issued by the Borrower (or any agreement of the Borrower to purchase
relating thereto) for the acquisition of North Star Transport, Inc. shall not be
Indebtedness so long as such equity is not puttable or redeemable prior to the
Termination Date.
"IMMATERIAL SUBSIDIARY" means any Subsidiary of the Borrower which does not
own, individually, assets in excess of 5% of the Net Worth at any time; provided
that Immaterial Subsidiaries owning assets, in the aggregate, in excess of 20%
of the Net Worth at any time shall cease to qualify as Immaterial Subsidiaries.
"INTEREST PERIOD" is defined in Section 2.7 hereof.
"ISSUING AGENT" means ABN AMRO Bank N.V. in its capacity as issuing agent,
or any other Bank acting in replacement thereof with the consent of the Agent,
the Banks and the Borrower.
"L/C DOCUMENTS" means the Letters of Credit, any draft or other document
presented in connection with a drawing thereunder, the Applications and this
Agreement.
"L/C FACILITY LIMIT" means $7,500,000.
"L/C FEE RATE" means, at any time a rate per annum equal to Eurodollar
Margin.
"L/C OBLIGATIONS" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"LENDING OFFICE" is defined in Section 9.4 hereof.
"LETTER OF CREDIT" is defined in Section 2.3(a) hereof.
"LIBOR" is defined in Section 2.4(b) hereof.
"LIEN" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, including, but not limited to,
the security interest or lien arising from a
8
mortgage, encumbrance, pledge, conditional sale, security agreement or trust
receipt, or a lease, consignment or bailment for security purposes. The term
"LIEN" shall also include reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, capital leases and other
title exceptions and encumbrances affecting Property. For the purposes of this
definition, a Person shall be deemed to be the owner of any Property which it
has acquired or holds subject to a conditional sale agreement, Capital Lease or
other arrangement pursuant to which title to the Property has been retained by
or vested in some other Person for security purposes, and such retention of
title shall constitute a "LIEN."
"LOAN" means, unless otherwise provided, each and every loan made by any
Bank hereunder and includes Revolving Loans and Swingline Loans.
"MANDATORY BORROWING" is defined in Section 2.2(b) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse change in, or a material
adverse effect upon, the operations, business, Property, or financial or other
condition of the Borrower and its Subsidiaries, taken as whole.
"MAXIMUM SWINGLINE AMOUNT" means $5,000,000.
"NET WORTH" means, as of any time the same is to be determined, the total
shareholders' equity (including capital stock, additional paid-in-capital and
retained earnings after deducting treasury stock, but excluding minority
interests in Subsidiaries) which would appear on the balance sheet of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"NOTE" means and includes Revolving Notes and Swingline Notes.
"OBLIGATIONS" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans and L/C Obligations, and all
other payment obligations of the Borrower arising under or in relation to any
Credit Document.
"PARTICIPATING INTEREST" is defined in Section 2.3(d) hereof.
"PBGC" is defined in Section 5.8 hereof.
"PERCENTAGE" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the Commitments have been
terminated, the percentage held by such Bank (including through participation
interests in Swingline Loans and L/C Obligations) of the Obligations on the day
such amount is being computed.
"PERSON" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
9
"PLAN" means at any time an employee pension benefit plan covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code that is either (i) maintained by a member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions. The term "PLAN" shall not include any plan maintained or
contributed to by North Star Transport, Inc. prior to July 1, 1998.
"PRICING DATE" is defined in Schedule 1 hereto.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"REFERENCE BANK" means ABN AMRO Bank N.V. In the event that such Bank
ceases to be a "BANK" hereunder or fails to provide timely quotations of
interests rates to the Agent as and when required by this Agreement, then such
Bank shall be replaced by a new reference bank jointly designated by the Agent
and the Borrower.
"REFUNDING BORROWING" is defined in Section 2.6(d) hereof.
"REIMBURSEMENT OBLIGATION" is defined in Section 2.3(c) hereof.
"REQUIRED BANKS" means, as of the date of determination thereof, (i) at any
time there are two or fewer Banks party hereto, all such Banks and (ii) at any
time there are more than two Banks party hereto (A) prior to the termination of
the Commitments, Banks holding at least 51% of the Percentages and (B) following
the termination of the Commitments, Banks holding at least 51% of the Loans and
L/C Obligations.
"REVENUE EQUIPMENT" means tractors and trailers and associated attachments
of all types used by the Borrower or its Subsidiaries for the transportation of
goods for its customers in the ordinary course of its business.
"REVOLVING LOANS" is defined in Section 2.1 hereof.
"REVOLVING NOTE" is defined in Section 2.11 hereof.
"SEC" means the Securities and Exchange Commission.
"SECURITY" has the same meaning as in Section 2(l) of the Securities Act of
1933, as amended.
"SHORTFALL AMOUNT" is defined in Section 2.9(c) hereof.
"SUBSIDIARY" means, as to the Borrower, any corporation or other entity of
which more than fifty percent (50%) of the Voting Stock of such corporation or
similar governing body in the
10
case of a non-corporation (irrespective of whether or not, at the time, stock or
other equity interests of any other class or classes of such corporation or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by the Borrower or
by one or more of its Subsidiaries.
"SWINGLINE BANK" shall mean Firstar Bank of Minnesota, National
Association, in its capacity as swingline bank, or any other Bank acting in
replacement thereof with the consent of the Agent and the Borrower.
"SWINGLINE EXPIRY DATE" shall mean the date which is two Business Days
prior to the Termination Date.
"SWINGLINE LOANS" is defined in Section 2.2(a) hereof.
"SWINGLINE NOTE" is defined in Section 2.11 hereof.
"TELERATE PAGE 3750" is defined in Section 2.4(b) hereof.
"TELERATE SERVICE" means the Dow ▇▇▇▇▇ Telerate Service.
"TERMINATION DATE" means March 30, 2001 or such later date to which the
same is extended pursuant to Section 2.14 hereof.
"TEST PERIOD" shall mean the four consecutive fiscal quarters of the
Borrower then last ended, in each case taken as one accounting period.
"UNFUNDED VESTED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the Controlled Group to the PBGC or the
Plan under Title IV of ERISA.
"U.S. DOLLARS" and "$" each means the lawful currency of the United States
of America.
"VOTING STOCK" of any Person means capital stock of any class or classes or
other equity interests (however designated) having ordinary voting power for the
election of directors or similar governing body of such Person.
"WELFARE PLAN" means a "WELFARE PLAN", as defined in Section 3(1) of ERISA.
"WHOLLY-OWNED" when used in connection with any Subsidiary of the Borrower
means a Subsidiary of which all of the issued and outstanding shares of stock or
other equity interests (other than directors' qualifying shares as required by
law) shall be owned by the Borrower and/or one or more of its Wholly-Owned
Subsidiaries.
11
SECTION 1.2. INTERPRETATION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day in this Agreement shall be references to Chicago,
Illinois time unless otherwise specifically provided. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, the same shall be done in accordance
with GAAP, to the extent applicable, except where such principles are
inconsistent with the specific provisions of this Agreement.
SECTION 2. THE REVOLVING CREDIT
SECTION 2.1. THE REVOLVING LOAN COMMITMENT. Subject to the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to make
a loan or loans (individually a "REVOLVING LOAN" and collectively the "REVOLVING
LOANS") to the Borrower from time to time on a revolving basis in U.S. Dollars
in an aggregate outstanding amount up to the amount of its revolving credit
commitment set forth on the applicable signature page hereof (such amount, as
reduced pursuant to Section 2.13 or changed as a result of one or more
assignments under Section 11.12, its "COMMITMENT" and, cumulatively for all the
Banks, the "COMMITMENTS") before the Termination Date, PROVIDED that the sum of
each Bank's Percentage of Revolving Loans, Swingline Loans and L/C Obligations
at any time outstanding shall not exceed such Bank's Commitment, PROVIDED
further that, the sum of the aggregate amount of Revolving Loans, the Swingline
Loans and L/C Obligations at any time outstanding shall not exceed the lesser of
(i) the Commitments in effect at such time or (ii) the Borrowing Base as then
determined and computed (subject to Section 2.9(c)). Each Borrowing of Revolving
Loans shall be made ratably from the Banks in proportion to their respective
Percentages. As provided in Section 2.6(a) hereof, the Borrower may elect that
each Borrowing of Revolving Loans be either Base Rate Loans or Eurodollar Loans.
SECTION 2.2. SWINGLINE LOANS. (a) Subject to and upon the terms and
conditions set forth herein, the Swingline Bank agrees to make, at any time and
from time to time on or prior to the Swingline Expiry Date, a loan or loans
(each, a "SWINGLINE LOAN" and, collectively, the "SWINGLINE LOANS") to the
Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate
Loans, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed in aggregate principal amount at any time
outstanding that aggregate principal amount which, when added to the sum of (I)
the aggregate principal amount of all Loans then outstanding and (II) the
aggregate amount of all L/C Outstandings shall not exceed the lesser of the
Commitments in effect at such time or the Borrowing Base at such time and (iv)
shall not exceed the Maximum Swingline Amount. The Swingline Bank will not make
a Swingline Loan after it has received written notice from the Required Banks
stating that a Default or an Event of Default exists and specifically requesting
that the Swingline Bank not make any Swingline Loans, PROVIDED that the
Swingline Bank may continue making Swingline Loans at such time thereafter as
the respective Default or Event of Default has been cured or waived in
accordance with the requirements of this Agreement or the Required Banks have
withdrawn the written notice described above in this sentence. In addition, the
Swingline Bank shall not be obligated to make any Swingline Loan at a time when
any Bank shall be in default of any of its obligations hereunder unless the
Swingline Bank shall have entered into arrangements satisfactory to it and the
12
Borrower to eliminate the Swingline Bank's risk with respect to the defaulting
Bank's participation in such Swingline Loan, including by cash collateralizing
such defaulting Bank's share of the outstanding Swingline Loans.
(b) On any Business Day the Swingline Bank may, in its sole discretion,
give notice to the Banks that its outstanding Swingline Loans shall be repaid
from the proceeds of a Borrowing of Revolving Loans under Section 2.1, in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "MANDATORY BORROWING") shall be made on the immediately succeeding
Business Day by all Banks (without giving effect to any reductions thereto
pursuant to the last paragraph of Section 8.2 or 8.3) PRO RATA based on each
Bank's Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 8.2 or 8.3), and the proceeds thereof shall be
applied directly to the Swingline Bank to repay the Swingline Bank for such
outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make Base
Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Swingline Bank notwithstanding (i) the amount
of the Mandatory Borrowing may not comply with the minimum borrowing amount
otherwise required hereunder, (ii) any condition specified in Section Six may
not then be satisfied, (iii) the existence of any Default or Event of Default,
(iv) the date of such Mandatory Borrowing and (v) the amount of the total
Commitments at such time. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the United
States Bankruptcy Code, as amended, or any other comparable bankruptcy or
insolvency law, with respect to the Borrower), then each Bank (other than the
Swingline Bank) hereby agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase from the Swingline Bank) (without recourse or warranty) such
participations in the outstanding Swingline Loans as shall be necessary to cause
the Banks to share in such Swingline Loans ratably based upon their respective
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 8.2 or 8.3), PROVIDED that (x) all interest
payable on the Swingline Loans shall be for the account of the Swingline Bank
until the date the respective participation is required to be purchased and, to
the extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay the Swingline Bank interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Loans maintained as
Base Rate Loans for each day thereafter.
SECTION 2.3. LETTERS OF CREDIT. (a) GENERAL TERMS. Subject to the terms and
conditions hereof the Issuing Agent shall issue letters of credit (each a
"LETTER OF CREDIT") for the Borrower's account in an aggregate undrawn face
amount up to the amount of the L/C Facility Limit, provided that the aggregate
L/C Obligations at any time outstanding shall not exceed the difference between
the lesser of (i) the Commitments in effect at such time or (ii) the Borrowing
Base as then determined and computed (subject to Section 2.9(c)), and the
aggregate amount of
13
Revolving Loans and Swingline Loans then outstanding. Each Letter of Credit
shall be issued by the Issuing Agent, but each Bank shall be obligated to
purchase an undivided percentage participation interest of such Letter of Credit
from the Issuing Agent pursuant to Section 2.3(d) hereof in an amount equal to
its Percentage of the amount of each drawing thereunder and, accordingly, the
undrawn face amount of each Letter of Credit shall constitute usage of the
Commitment of each Bank PRO RATA in accordance with each Bank's Percentage.
(b) APPLICATIONS. At any time before the Termination Date, the Issuing
Agent shall, at the request of the Borrower given at least three (3) Business
Days prior to the requested date of issuance, issue one or more Letters of
Credit in a form satisfactory to the Issuing Agent, with expiration dates no
later than the Termination Date in an aggregate face amount as set forth above,
upon the receipt of a duly executed application for the relevant Letter of
Credit in the form customarily prescribed by the Issuing Agent for the type of
Letter of Credit requested (each an "APPLICATION"). Notwithstanding anything
contained in any Application to the contrary (x) the Borrower's obligation to
pay fees in connection with each Letter of Credit shall be as exclusively set
forth in Section Three hereof and (y) if the Issuing Agent is not timely
reimbursed for the amount of any drawing under a Letter of Credit on the date
such drawing is paid, the Borrower's obligation to reimburse the Issuing Agent
for the amount of such drawing shall bear interest (which the Borrower hereby
promises to pay on demand) from and after the date such drawing is paid at a
rate per annum equal to the sum of 2% plus the Base Rate from time to time in
effect. The Issuing Agent will promptly notify the Agent, who will then promptly
notify the Banks, of each issuance by it of a Letter of Credit and any amendment
or extension of a Letter of Credit. Without limiting the generality of the
foregoing, the Issuing Agent's obligation to issue, amend or extend the
expiration date of a Letter of Credit is subject to the conditions set forth
herein (including the conditions set forth in Section Six and the other terms of
this Section 2.3).
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 2.3(b) hereof, the
obligation of the Borrower to reimburse the Issuing Agent for all drawings under
a Letter of Credit (a "REIMBURSEMENT OBLIGATION") shall be governed, to the
extent not inconsistent with this Agreement, by the Application related to such
Letter of Credit, except that reimbursement of each drawing shall be made in
immediately available funds at the Agent's bank account maintained in New York,
New York (or such other place as specified in writing from time to time by the
Agent) by no later than 12:00 Noon (Chicago time) on the date when such drawing
is paid or, if such drawing was paid after 11:30 a.m. (Chicago time), by the end
of such day. If the Borrower does not make any such reimbursement payment on the
date due (whether through a deemed request for a Base Rate Loan pursuant to
Section 2.6(c) or otherwise) and the Banks fund their participations therein in
the manner set forth in Section 2.3(d) below, then all payments thereafter
received by the Agent in discharge of any of the relevant Reimbursement
Obligations shall be distributed in accordance with Section 2.3(d) below.
(d) THE PARTICIPATING INTERESTS. Each Bank, by its acceptance hereof,
severally agrees to purchase from the Issuing Agent, and the Issuing Agent
hereby agrees to sell to each such Bank, an undivided percentage participating
interest (a "PARTICIPATING INTEREST"), to the extent of its Percentage, in each
Letter of Credit issued by, and each Reimbursement Obligation owed to, the
Issuing Agent. Upon any failure by the Borrower to pay any Reimbursement
Obligation at the time required on the date the related drawing is paid, as set
forth in Section 2.3(c) above, or if the
14
Issuing Agent is required at any time to return to the Borrower or to a trustee,
receiver, liquidator, custodian or other Person any portion of any payment of
any Reimbursement Obligation, each Bank shall, not later than the Business Day
of a demand from the Issuing Agent to such effect, if such demand is received
before 1:00 p.m. (Chicago time), or not later than the following Business Day,
if such demand is received after such time, pay to the Issuing Agent an amount
which was paid out by the Issuing Bank under the relevant Letter of Credit equal
to its Percentage of such unpaid or recaptured Reimbursement Obligation together
with interest on such amount accrued from the date the related payment was made
by the Issuing Agent to the date of such payment by such Bank at a rate per
annum equal to (i) from the date the related payment was made by the Issuing
Agent to the date two (2) Business Days after payment by such Bank is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date two
(2) Business Days after the date such payment is due from such Bank to the date
such payment is made by such Bank, the Base Rate in effect for each such day.
Each such Bank shall thereafter be entitled to receive its Percentage of each
payment received in respect of the relevant Reimbursement Obligation and of
interest paid thereon, with the Issuing Agent retaining its Percentage as a Bank
hereunder.
The several obligations of the Banks to the Issuing Agent under this
Section 2.3 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Bank may have or have had against the Borrower,
the Agent, the Issuing Agent, any other Bank or any other Person whatsoever.
Without limiting the generality of the foregoing, such obligations shall not be
affected by any Default or Event of Default or by any reduction or termination
of any Commitment of any Bank (except as to assignments made in accordance with
Section 11.12 hereof), and each payment by a Bank under this Section 2.3 shall
be made without any offset, abatement, withholding or reduction whatsoever. The
Issuing Agent and the Agent shall be entitled to offset amounts received for the
account of a Bank under the Credit Documents against unpaid amounts due from
such Bank to the Issuing Agent or the Agent hereunder (whether as fundings of
participations, indemnities or otherwise). The term "PERCENTAGE" or
"PERCENTAGES" as used in this Section 2.3 shall be determined before giving
effect to any termination of the Commitments pursuant to Section 8.2 or 8.3.
(e) INDEMNIFICATION. The Banks shall, to the extent of their respective
Percentages, indemnify the Issuing Agent (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Issuing Agent's gross negligence or willful misconduct) that the
Issuing Agent may suffer or incur in connection with any Letter of Credit. The
Issuing Agent shall be entitled to all of the rights and protections afforded
the Agent under Section Ten hereof. The obligations of the Banks under this
Section 2.3(e) and all other parts of this Section 2.3 shall survive termination
of this Agreement and of all other L/C Documents.
(f) ISSUING AGENT. Each Bank hereby appoints ABN AMRO Bank N.V. as the
Issuing Agent hereunder and hereby authorizes the Issuing Agent to take such
action as Issuing Agent on its behalf and to exercise such powers under the
Credit Documents as are delegated to the Issuing Agent by the terms thereof,
together with such powers as are reasonably incidental thereto. The relationship
between the Issuing Agent and the Banks is and shall be that of agent and
principal
15
only, and nothing contained in this Agreement or any other Credit Document shall
be construed to constitute the Issuing Agent as a trustee or fiduciary for any
Bank or the Borrower. The term "BANK" as used herein and in all other Credit
Documents, unless the context otherwise clearly requires, includes the Issuing
Agent in its individual capacity as a Bank.
SECTION 2.4. APPLICABLE INTEREST RATES
(a) BASE RATE LOANS INCLUDING SWINGLINE LOANS. Each Base Rate Loan made or
maintained by a Bank, including Swingline Loans made by the Swingline Bank,
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued or created by
conversion from a Eurodollar Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the Base Rate from time to time in
effect, payable on the last day of its Interest Period and at maturity (whether
by acceleration or otherwise).
"BASE RATE" means for any day the greater of:
(i) the rate of interest announced by ABN AMRO Bank N.V. from time to
time as its prime rate, or equivalent, for U.S. Dollar loans as in effect
on such day, with any change in the Base Rate resulting from a change in
said prime rate to be effective as of the date of the relevant change in
said prime rate; and
(ii) the sum of (x) the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publication, published by
the Federal Reserve Bank of New York (including any such successor) on the
preceding Business Day opposite the caption "FEDERAL FUNDS (EFFECTIVE)";
or, if for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in
New York City selected by the Agent, plus (y) 1% (1.00%).
(b) EURODOLLAR LOANS. Each Eurodollar Loan made or maintained by a Bank
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued, or created by
conversion from a Base Rate Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin plus
the Adjusted LIBOR applicable for such Interest Period, payable on the last day
of the Interest Period and at maturity (whether by acceleration or otherwise).
"ADJUSTED LIBOR" means, for any Borrowing of Eurodollar Loans, a rate per
annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
----------------------------
1 - Eurodollar Reserve Percentage
16
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar Loans,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available,
and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of
the rates of interest per annum (rounded upwards, if necessary, to the nearest
one-sixteenth of one percent) at which deposits in U.S. Dollars in immediately
available funds are offered to the Reference Bank at 11:00 a.m. (London, England
time) two (2) Business Days before the beginning of such Interest Period by
major banks in the interbank eurodollar market for delivery on the first day of
and for a period equal to such Interest Period in an amount equal or comparable
to the principal amount of the Eurodollar Loan scheduled to be made by the
Reference Bank as part of such Borrowing.
"LIBOR INDEX RATE" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one-sixteenth of one percent)
for deposits in U.S. Dollars for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or comparable to the principal
amount of the Eurodollar Loan scheduled to be made by the Reference Bank as part
of such Borrowing which appears on Telerate Page 3750 as of 11:00 a.m. (London,
England time) on the day two (2) Business Days before the commencement of such
Interest Period.
"TELERATE PAGE 3750" means the display page designated as "Page 3750" on
the Telerate Service (or such other page as may replace such pages on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for deposits in U.S. Dollars).
"EURODOLLAR RESERVE PERCENTAGE" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum rate,
expressed as a decimal, at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are actually imposed and
applicable to the Banks during such Interest Period by the Board of Governors of
the Federal Reserve System (or any successor) on "EUROCURRENCY LIABILITIES", as
defined in such Board's Regulation D (or in respect of any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of extensions of credit or other
assets that include loans by non-United States offices of any Bank to United
States residents), subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurodollar Loans shall be deemed
to be "EUROCURRENCY LIABILITIES" as defined in Regulation D without benefit or
credit for any prorations, exemptions or offsets under Regulation D.
(c) RATE DETERMINATIONS. The Agent shall determine each interest rate
applicable to Obligations, and a determination thereof by the Agent shall be
conclusive and binding except in the case of manifest error.
SECTION 2.5. MINIMUM BORROWING AMOUNTS. Each Borrowing of Base Rate Loans
(other than Swingline Loans) shall be in an amount not less than $1,000,000 and
in integral multiples of $500,000, PROVIDED that a Borrowing of Base Rate Loans
applied to pay a Mandatory Borrowing pursuant to Section 2.2(b) hereof or a
Reimbursement Obligation pursuant to Section 2.6(c) hereof shall be in an amount
equal to such Mandatory Borrowing or Reimbursement Obligation.
17
Each Borrowing of a Swingline Loan shall be in an amount not less than $100,000
and in integral multiples of $50,000. Each Borrowing of Eurodollar Loans shall
be in an amount not less than $5,000,000 and in integral multiples of
$1,000,000.
SECTION 2.6. MANNER OF BORROWING LOANS AND DESIGNATING INTEREST RATES
APPLICABLE TO LOANS. (a) NOTICE TO THE AGENT. The Borrower shall give notice to
the Agent (and also to the Swingline Bank, in the case of Swingline Loans) by no
later than 12:00 noon (Chicago time) (i) at least three (3) Business Days before
the date on which the Borrower requests the Banks to advance a Borrowing of
Eurodollar Loans and (ii) no later than 10:00 a.m. (Chicago time) on the date
the Borrower requests the Banks to advance a Borrowing of Loans comprised of
Base Rate Loans or requests the Swingline Bank to make Swingline Loans. The
Revolving Loans included in each such Borrowing shall bear interest initially at
the type of rate specified in such notice of a new Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Borrowing of Revolving Loans or, subject to Section 2.5's
minimum amount requirement for each outstanding Borrowing, a portion thereof, as
follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of the
Interest Period applicable thereto, the Borrower may continue part or all of
such Borrowing as Eurodollar Loans for an Interest Period or Interest Periods
specified by the Borrower or, convert part or all of such Borrowing into Base
Rate Loans, (ii) if such Borrowing is of Base Rate Loans (other than Swingline
Loans), on any Business Day, the Borrower may convert all or part of such
Borrowing into Eurodollar Loans for an Interest Period or Interest Periods
specified by the Borrower. The Borrower shall give all such notices requesting
the advance, continuation, or conversion of a Borrowing of Loans to the Agent
(and also to the Swingline Bank, in the case of Swingline Loans) by telephone or
telecopy (which notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing). Notices of the continuation of a
Borrowing of Loans comprised of Eurodollar Loans for an additional Interest
Period or of the conversion of part or all of a Borrowing of Eurodollar Loans
into Base Rate Loans or of Base Rate Loans into Eurodollar Loans must be given
by no later than 12:00 noon (Chicago time) at least three (3) Business Days
before the date of the requested continuation or conversion. All such notices
concerning the advance, continuation, or conversion of a Borrowing of Loans
shall specify the date of the requested advance, continuation or conversion of
such Borrowing (which shall be a Business Day), the amount of the requested
Borrowing of Loans to be advanced, continued, or converted, the type of Loans to
comprise such new, continued or converted Borrowing and, if such Borrowing is to
be comprised of Eurodollar Loans, the Interest Period applicable thereto. The
Borrower agrees that the Agent (or the Swingline Bank, as the case may be) may
rely on any such telephonic or telecopy notice given by any person it in good
faith believes is an Authorized Representative without the necessity of
independent investigation, and in the event any such notice by telephone
conflicts with any written confirmation, such telephonic notice shall govern if
the Agent (or the Swingline Bank, as the case may be) has acted in reliance
thereon. There may be no more than ten different Interest Periods relating to
Eurodollar Loans in effect at any one time. Notwithstanding anything contrary
herein, each Swingline Loan shall be made and maintained as a Base Rate Loan and
may not be converted into a Eurodollar Loan.
Upon the occurrence and continuance of an Event of Default, each Eurodollar
Loan will automatically, on the last day of the then existing Interest Period
therefor, convert into a Base
18
Rate Loan and (ii) the obligation of the Banks to make or continue, or to
convert Loans into, Eurodollar Loans shall be suspended.
(b) NOTICE TO THE BANKS. The Agent shall give prompt telephonic or telecopy
notice to each Bank of any notice from the Borrower received pursuant to Section
2.6(a) above. The Agent shall give notice to the Borrower and each Bank by like
means of the interest rate applicable to each Borrowing of Eurodollar Loans.
(c) BORROWER'S FAILURE TO NOTIFY. Any outstanding Borrowing of Base Rate
Loans shall, subject to Section Six hereof, automatically be continued for an
additional Interest Period on the last day of its then current Interest Period
unless the Borrower has notified the Agent within the period required by Section
2.6(a) that it intends to convert such Borrowing into a Borrowing of Eurodollar
Loans or notifies the Agent within the period required by Section 2.9(a) that it
intends to prepay such Borrowing. If the Borrower fails to give notice pursuant
to Section 2.6(a) above of the continuation or conversion of any outstanding
principal amount of a Borrowing of Eurodollar Loans before the last day of its
then current Interest Period within the period required by Section 2.6(a) and
has not notified the Agent within the period required by Section 2.9(a) that it
intends to prepay such Borrowing, such Borrowing shall automatically be
continued as a Borrowing of Eurodollar Loans with an Interest Period of one
month, subject to Section Six hereof. In the event the Borrower fails to give
notice pursuant to Section 2.6(a) above of a Borrowing equal to the amount of a
Reimbursement Obligation and has not notified the Agent by 10:00 a.m. (Chicago
time) on the day such Reimbursement Obligation becomes due that it intends to
repay such Reimbursement Obligation through funds not borrowed under this
Agreement, the Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans on such day in the amount of the Reimbursement Obligation then due,
subject to Section Six hereof, which Borrowing shall be applied to pay the
Reimbursement Obligation then due.
(d) DISBURSEMENT OF LOANS. Not later than 11:00 a.m. (Chicago time) on the
date of any requested advance of a new Borrowing of Loans comprised of
Eurodollar Loans, and not later than 12:00 noon (Chicago time) on the date of
any requested advance of a new Borrowing of Base Rate Loans, subject to Section
Six hereof, each Bank (or the Swingline Bank, in the case of Swingline Loans)
shall make available its Loan comprising part of such Borrowing in funds
immediately available at the bank account of the Agent maintained in New York,
New York (or such other place as specified in writing from time to time by the
Agent) (or such bank account of the Borrower maintained in St. ▇▇▇▇, Minnesota
as specified by the Borrower in writing to the Swingline Bank in the case of
Swingline Loans), except to the extent such Borrowing is a reborrowing, in whole
or in part, of the principal amount of a maturing Borrowing of Loans (a
"REFUNDING BORROWING"), in which case each Bank (or the Swingline Bank, in the
case of Swingline Loans) shall record the Loan made by it as a part of such
Refunding Borrowing on its books and records or on a schedule to its Note, as
provided in Section 2.11, and shall effect the repayment, in whole or in part,
as appropriate, of its maturing Loan through the proceeds of such new Loan. The
Agent shall make available to the Borrower Revolving Loans, unless otherwise
specified by the Borrower and agreed to in writing by the Agent, in such bank
account of the Borrower in St. ▇▇▇▇, Minnesota as the Agent has previously
agreed in writing to with the Borrower, in each case in the type of funds
received by the Agent from the Banks.
19
(e) AGENT RELIANCE ON BANK FUNDING. Unless the Agent shall have been
notified by a Bank before the date on which such Bank is scheduled to make
payment to the Agent of the proceeds of a Loan (which notice shall be effective
upon receipt) that such Bank does not intend to make such payment, the Agent may
assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available to
the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank
has not in fact made such payment to the Agent, such Bank shall, on demand, pay
to the Agent the amount made available to the Borrower attributable to such Bank
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and ending
on (but excluding) the date such Bank pays such amount to the Agent at a rate
per annum equal to the Federal Funds Rate. If such amount is not received from
such Bank by the Agent immediately upon demand, the Borrower will, on demand,
repay to the Agent the proceeds of the Loan attributable to such Bank with
interest thereon at a rate per annum equal to the interest rate applicable to
the relevant Loan.
SECTION 2.7. INTEREST PERIODS. The term "INTEREST PERIOD" means the period
commencing on the date a Borrowing of Loans is advanced, continued, or created
by conversion and ending: (a) in the case of Base Rate Loans (including
Swingline Loans), on the last Business Day of the calendar quarter in which such
Borrowing is advanced, continued, or created by conversion (or on the last day
of the following calendar quarter if such Loan is advanced, continued or created
by conversion on the last Business Day of a calendar quarter) and, in the case
of the conversion of any Base Rate Loan to a Eurodollar Loan, on the Business
Day of such conversion or (b) in the case of Eurodollar Loans, the date selected
by the Borrower that is 1, 2 or 3 months thereafter; PROVIDED, HOWEVER, that:
(a) any Interest Period for a Borrowing of Base Rate Loans (including
Swingline Loans) that otherwise would end after the Termination Date shall
end on the Termination Date;
(b) for any Borrowing of Eurodollar Loans, the Borrower may not select
an Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall
be extended to the next succeeding Business Day, provided that, if such
extension would cause the last day of an Interest Period for a Borrowing of
Eurodollar Loans to occur in the following calendar month, the last day of
such Interest Period shall be the immediately preceding Business Day; and
(d) for purposes of determining an Interest Period for a Borrowing of
Eurodollar Loans, a month means a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next calendar
month; PROVIDED, HOWEVER, that if there is no numerically corresponding day
in the month in which such an Interest Period is to end or if such an
Interest Period begins on the last Business Day of a calendar month, then
such Interest Period shall end on the last Business Day of the calendar
month in which such Interest Period is to end.
20
SECTION 21.8 MATURITY OF LOANS. Unless an earlier maturity is provided for
hereunder (whether by acceleration or otherwise), each Eurodollar Loan shall
mature and become due and payable by the Borrower on the last day of the
Interest Period applicable thereto and each Base Rate Loan (including Swingline
Loans) shall mature and become due and payable by the Borrower on the
Termination Date.
SECTION 2.9 PREPAYMENTS. (a) The Borrower may prepay without premium or
penalty and in whole or in part (but, if in part, then: (i) if such Borrowing is
of Base Rate Loans (other than Swingline Loans), in an amount not less than
$1,000,000 and integral multiples of $500,000 (in an amount not less than
$100,000 and integral multiples of $50,000, in the case of Swingline Loans),
(ii) if such Borrowing is of Eurodollar Loans, in an amount not less than
$5,000,000 and integral multiples of $1,000,000 and (iii) in an amount such that
the minimum amount required for a Borrowing pursuant to Section 2.5 hereof
remains outstanding) any Borrowing of Eurodollar Loans upon three Business Days'
prior notice to the Agent or, in the case of a Borrowing of Base Rate Loans
(including Swingline Loans), notice delivered to the Agent (and also to the
Swingline Bank, in the case of Swingline Loans) no later than 10:00 a.m.
(Chicago time) on the date of prepayment, such prepayment to be made by the
payment of the principal amount to be prepaid and accrued interest thereon to
the date fixed for prepayment. The Agent will promptly advise each Bank of any
such prepayment notice it receives from the Borrower. Any prepayment of
Eurodollar Loans shall be subject to Section 2.12.
(b) REBORROWINGS. Any principal amount of Loans paid or prepaid before the
Termination Date (or the Swingline Expiry Date, in the case of Swingline Loans)
may, subject to the terms and conditions of this Agreement, be borrowed again.
(c) MANDATORY REPAYMENTS. (i) The Borrower shall repay the Loans, and, to
the extent necessary after giving effect to such prepayment of Loans, provide
cash collateral to be held pursuant to Section 8.4, to the extent the
outstanding amount of Loans (including Swingline Loans) and L/C Obligations
exceeds the Commitments then in effect. All such payments shall be subject to
Section 2.12.
(ii) If at any time the Borrowing Base is less than the aggregate amount of
Loans and L/C Obligations then outstanding (such amount being referred to as the
"SHORTFALL AMOUNT"), then the Borrower shall, within three Business Days of the
occurrence of such circumstance, repay Loans in an amount equal to the Shortfall
Amount (such repayment to be subject to Section 2.12 hereof) and, to the extent
there remains a Shortfall Amount after giving effect to such repayment of Loans,
provide cash collateral to be held pursuant to Section 8.4 such that after
giving effect thereto no Shortfall Amount remain. If there exists a Shortfall
Amount and (A) no other Event of Default has then occurred and is continuing and
(B) the Borrower does not so repay the Loans or provide cash collateral in an
amount sufficient such that after giving effect thereto no Shortfall Amount
remains, the Agent may, and shall at the request of the Required Banks,
terminate the Commitments in whole, declare all Loans and all other Obligations
to be immediately due and payable.
SECTION 2.10 DEFAULT RATE. If any payment of principal on any Loan is not
made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis
21
of a year of 360 days and actual days elapsed) from the date such payment was
due until paid in full, payable on demand, at a rate per annum equal to:
(a) for any Base Rate Loan (including Swingline Loans), the sum of two
percent (2%) plus the Base Rate from time to time in effect; and
(b) for any Eurodollar Loan, the sum of two percent (2%) plus the rate
of interest in effect thereon at the time of such default until the end of
the Interest Period applicable thereto and, thereafter, at a rate per annum
equal to the sum of two percent (2%) plus the Base Rate from time to time
in effect.
SECTION 2.11. THE NOTES. All Revolving Loans made to the Borrower by a Bank
shall be evidenced by a single promissory note of the Borrower issued to such
Bank in the form of Exhibit A-1 hereto (each a "REVOLVING NOTE" and collectively
the "REVOLVING NOTES"), each such Note to be payable to the order of the
applicable Bank in the amount of its Commitment; PROVIDED that Swingline Loans
made to the Borrower by the Swingline Bank shall be evidenced by a single
promissory note of the Borrower issued to such Bank in the form of Exhibit A-2
(the "SWINGLINE NOTE").
Each Bank shall record on its books and records or on a schedule to the
appropriate Note the amount of each Loan advanced, continued, or converted by
it, all payments of principal and interest and the principal balance from time
to time outstanding thereon, the type of such Loan, and, for any Eurodollar
Loan, the Interest Period and the interest rate applicable thereto. The record
thereof, whether shown on such books and records of a Bank or on a schedule to
any Note, shall be PRIMA FACIE evidence as to all such matters; PROVIDED,
HOWEVER, that the failure of any Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Loans made to it hereunder together with accrued
interest thereon. At the request of any Bank and upon such Bank tendering to the
Borrower the Note to be replaced, the Borrower shall furnish a new Note to such
Bank to replace any outstanding Note, and at such time the first notation
appearing on a schedule on the reverse side of, or attached to, such Note shall
set forth the aggregate unpaid principal amount of all Loans, if any, then
outstanding thereon.
SECTION 2.12. FUNDING INDEMNITY. If any Bank shall incur any loss, cost or
expense (including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired
by such Bank to fund or maintain any Eurodollar Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Bank but
excluding any Applicable Margin) as a result of:
(a) any payment (whether by acceleration or otherwise), prepayment or
conversion of a Eurodollar Loan on a date other than the last day of its
Interest Period,
(b) any failure (because of a failure to meet the conditions of
Section Six or otherwise) by the Borrower to borrow or continue a
Eurodollar Loan, or to
22
convert a Base Rate Loan into a Eurodollar Loan, on the date specified in a
notice given pursuant to Section 2.6(a) or established pursuant to Section
2.6(c) hereof,
(c) any failure by the Borrower to make any payment of principal on
any Eurodollar Loan when due (whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurodollar Loan as a result
of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate executed by an officer of such Bank setting
forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate if reasonably calculated
shall be conclusive absent manifest error.
SECTION 2.13. COMMITMENT TERMINATIONS. The Borrower shall have the right at
any time and from time to time (but up to only once per one calendar quarter),
upon five (5) Business Days' prior written notice to the Agent, to terminate the
Commitments without premium or penalty, in whole or in part, any partial
termination to be (i) in an amount not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof, and (ii) allocated ratably among the
Banks in proportion to their respective Percentages, PROVIDED that the
Commitments may not be reduced to an amount less than the sum of the amount of
all Loans (including Swingline Loans) and all L/C Obligations then outstanding.
The Borrower shall have the right at any time and from time to time (but up to
only once per one calendar quarter), by notice to the Agent, to terminate the
L/C Facility Limit without premium or penalty, in whole or in part, PROVIDED
THAT the L/C Facility Limit may not be reduced to an amount less than the L/C
Obligations then outstanding. Any such termination of the L/C Facility Limit
shall not reduce the Commitments unless the Borrower elects to do so in the
manner provided in the preceding sentence. The Agent shall give prompt notice to
each Bank of any such termination of Commitments or of any termination of the
L/C Facility Limit. Any termination of Commitments or the L/C Facility Limit
pursuant to this Section 2.13 may not be reinstated.
SECTION 2.14. EXTENSIN OF COMMITMENTS. On the first and second anniversary
of the Effective Date, the Borrower may request in writing that the Banks extend
the initial Termination Date for up to one additional year and the Banks shall
thereupon perform their own credit analysis of the Borrower and advise the
Borrower and the Agent as to whether they are prepared to grant such an
extension and if so on what terms. In the event all of the Banks honor the
request for such an extension, they shall so notify the Borrower and the
Borrower shall then execute such instruments and documents as the Agent may
reasonably require in order to effect the extension requested.
SECTION 3. FEES.
SECTION 3.1. FEES.
23
(a) COMMITMENT FEE. For the period from the Effective Date to and including
the Termination Date, the Borrower shall pay to the Agent for the ratable
account of the Banks in accordance with their Percentages a commitment fee
accruing at a rate per annum equal to the Commitment Fee Rate on the average
daily amount of the unused Commitments. Such commitment fee is payable in
arrears on the last Business Day of each calendar quarter and on the Termination
Date, unless the Commitments are terminated in whole on an earlier date, in
which event the fee for the period to but not including the date of such
termination shall be paid in whole on the date of such termination. For the
purpose of calculating a commitment fee, outstanding Swingline Loans shall not
be deemed a usage of the Commitments.
(b) LETTER OF CREDIT FEES. (i) The Borrower shall pay to the Agent for the
ratable account of the Banks in accordance with their Percentages, letter of
credit fees with respect to each Letter of Credit at a rate per annum equal to
the L/C Fee Rate on the maximum undrawn amount of such Letter of Credit on any
day on which such Letter of Credit is issued or the amount thereof is increased
(as to the amount so increased) and at the beginning of each quarterly period
computed and payable on such day and, thereafter, on a quarterly basis in
advance on the first Business Day of each calendar quarter.
(ii) The Borrower shall pay to the Issuing Agent, for the account of such
Issuing Agent, a letter of credit fronting fee for each Letter of Credit issued
by such Issuing Agent at the rate per annum equal to the rate set forth in the
Fee Letter on the maximum undrawn amount of such Letter of Credit on any day on
which such Letter of Credit is issued or the amount thereof is increased (as to
the amount so increased) and at the beginning of each quarterly period computed
and payable on such day and, thereafter, on a quarterly basis in advance on the
first Business Day of each calendar quarter.
(iii) The letter of credit fees payable under Section 3.1(b)(i) and the
fronting fees payable under Section 3.1(b)(ii) shall be due and payable on any
day on which each Letter of Credit is issued or the amount thereof is increased
(as to the amount so increased) and, thereafter, quarterly in advance on the
first Business Day of each calendar quarter during which such Letter of Credit
is outstanding, commencing on the first such date to occur after the Effective
Date. All letter of credit fees and fronting fees are non-refundable.
(iv) The Borrower shall pay to the Issuing Agent, for the account of the
Issuing Agent, from time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the Issuing Agent relating to letters of credit as from time to time in effect
and evidenced by a reasonably detailed statement.
(c) OTHER FEES. The Borrower shall pay to the Agent and the Documentation
Agent, the fees agreed to between the Agent, the Documentation Agent and the
Borrower in the Fee Letter or as otherwise agreed in writing between them.
(d) FEE CALCULATIONS. All fees payable under this Agreement shall be
payable in U.S. Dollars and shall be computed on the basis of a year of 360
days, for the actual number of days elapsed. All determinations of the amount of
fees owing hereunder (and the components thereof,
24
including without limitation the leverage ratio) shall be made by the Agent and
shall be conclusive absent manifest error.
SECTION 4. PLACE AND APPLICATION OF PAYMENTS; GUARANTEES
SECTION 4.1. PLACE AND APPLICATION OF PAYMENTS. All payments of principal
of and interest on the Loans and the Reimbursement Obligations, and of all other
amounts payable by the Borrower under this Agreement, shall be made by the
Borrower to the Agent by no later than 2:00 p.m. (Chicago time) on the due date
thereof at the bank account of the Agent maintained in New York, New York (or
such other location as the Agent may designate to the Borrower) or, if such
payment is on a Reimbursement Obligation, no later than provided by Section
2.3(c) hereof. Any payments received after such time shall be deemed to have
been received by the Agent on the next Business Day. All such payments shall be
made free and clear of, and without deduction for, any set-off, counterclaim,
levy or any other deduction of any kind in U.S. Dollars, in immediately
available funds at the place of payment. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest on Loans or applicable fees to the Banks in accordance with their
respective Percentages and like funds relating to the payment of any other
amount payable to any Person to such Person, in each case to be applied in
accordance with the terms of this Agreement.
SECTION 4.2. GUARANTEES. Payment of the Loans and all other Obligations
shall at all times remain guaranteed by each Subsidiary (except Immaterial
Subsidiaries) of the Borrower on the terms and conditions set forth in the
Guarantees, by virtue of such Subsidiary's execution of the Guarantees.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Bank as to itself and,
where the following representations and warranties apply to Subsidiaries, as to
each of its Subsidiaries, as follows:
SECTION 5.1. CORPORATE ORGANIZATION AND AUTHORITY. The Borrower is duly
organized and existing in good standing under the laws of the State of
Minnesota, has all necessary corporate power to carry on its present business;
and is duly licensed or qualified and, in good standing in each jurisdiction in
which the nature of the business transacted by it or the nature of the Property
owned or leased by it makes such licensing, qualification or good standing
necessary and in which the failure to be so licensed, qualified or in good
standing would reasonably be expected to have a Material Adverse Effect.
SECTION 5.2. SUBSIDIARIES. Schedule 5.2 (as updated from time to time
pursuant to Section 7.1) hereto identifies each Subsidiary, the jurisdiction of
its incorporation, the percentage of issued and outstanding shares of each class
of its capital stock owned by the Borrower and the Subsidiaries and, if such
percentage is not 100% (excluding directors' qualifying shares as required by
law), a description of each class of its authorized capital stock and the number
of shares of each class issued and outstanding. Each Subsidiary is duly
incorporated and existing in good standing as a corporation under the laws of
the jurisdiction of its incorporation, has all
25
necessary corporate power to carry on its present business, and is duly licensed
or qualified and in good standing in each jurisdiction in which the nature of
the business transacted by it or the nature of the Property owned or leased by
it makes such licensing or qualification necessary and in which the failure to
be so licensed or qualified would have a Material Adverse Effect. All of the
issued and outstanding shares of capital stock of each Subsidiary are validly
issued and outstanding and fully paid and nonassessable. As of the Effective
Date, such shares owned by the Borrower are owned beneficially, and of record,
free of any Lien.
SECTION 5.3 CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS. Each of the
Credit Parties has full right and authority to enter into, and to perform all of
its obligations under, each of the Credit Documents to which it is a party, and
in the case of the Borrower to make the borrowings herein provided for, to issue
its Notes in evidence thereof and to apply for the issuance of the Letters of
Credit. Each Credit Document to which it is a party has been duly authorized,
executed and delivered by each Credit Party and constitutes valid and binding
obligations of such Credit Party enforceable in accordance with its terms except
as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
or similar laws affecting the enforcement of creditors' rights generally or by
equitable principles. No Credit Document, nor the performance or observance by
the Credit Party party thereto of any of the matters or things therein provided
for, contravenes any provision of law or any charter or by-law provision of such
Credit Party or any material Contractual Obligation of or affecting such Credit
Party or any of its Properties or results in or requires the creation or
imposition of any Lien on any of the Properties or revenues of the Borrower.
SECTION 5.4. FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE. All
financial statements heretofore delivered to the Banks showing historical
performance of the Borrower for each of the fiscal years ending on or before
December 31, 1997, have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent, except as otherwise noted
therein, with that of the previous fiscal year. Each of such financial
statements fairly presents on a consolidated basis the financial condition of
the Borrower and its Subsidiaries as of the dates thereof and the results of
operations for the periods covered thereby. The Borrower and its Subsidiaries
included in such financial statements have no material contingent liabilities
other than those disclosed in such financial statements referred to in this
Section 5.4 or in comments or footnotes thereto, or in any report supplementary
thereto, heretofore furnished to the Banks. Since March 31, 1998, there has been
no Material Adverse Effect
SECTION 5.5. NO LITIGATION; NO LABOR CONTROVERSIES. (a) Except as set forth
on Schedule 5.5, there is no litigation or governmental proceeding pending, or
to the knowledge of the Borrower, threatened, against the Borrower or any
Subsidiary in which there is a reasonable probability of an adverse
determination that would reasonably be expected to have a Material Adverse
Effect.
(b) Except as set forth on Schedule 5.5, there are no labor controversies
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any Subsidiary which would reasonably be expected to have a Material
Adverse Effect.
26
SECTI0N 5.6. TAXES. The Borrower and its Subsidiaries have filed all United
States federal tax returns, and all other material tax returns, required to be
filed and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, except such taxes, if
any, as are being contested in good faith and for which adequate reserves have
been provided. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims are material to the
financial condition of the Borrower and its Subsidiaries taken as a whole. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
for any taxes or other governmental charges are adequate.
SECTION 5.7. APPROVALS. No authorization, consent, license, exemption,
filing or registration with any court or governmental department, agency or
instrumentality, nor any approval or consent of the stockholders of the Borrower
or any Subsidiary or from any other Person, is necessary to the valid execution,
delivery or performance by the Credit Parties of any Credit Document to which it
is a party.
SECTION 5.8. ERISA. With respect to each Plan, the Borrower and each other
member of the Controlled Group has fulfilled its obligations under the minimum
funding standards of and is in compliance in all material respects with the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and with
the Code to the extent applicable to it and has not incurred any material
liability to the Pension Benefit Guaranty Corporation ("PBGC") or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. Neither the Borrower nor any Subsidiary has any material
contingent liabilities for any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA or state continuation laws. All employees of the Borrower or its
Subsidiaries who were covered under any employee pension benefit plan maintained
by North Star Transport, Inc. prior to July 1, 1998 are now covered by a Plan of
either the Borrower or one of its Subsidiaries.
SECTION 5.9. GOVERNMENT REGULATION. Neither the Borrower nor any Subsidiary
is an "INVESTMENT COMPANY" within the meaning of the Investment Company Act of
1940, as amended, or a "HOLDING COMPANY", or a "SUBSIDIARY COMPANY" of a
"HOLDING COMPANY", or an "AFFILIATE" of a "HOLDING COMPANY" or of a "SUBSIDIARY
COMPANY" of a "HOLDING COMPANY", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 5.10. MARGIN STOCK; USE OF PROCEEDS. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its primary activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stock ("MARGIN STOCK" to have the same meaning herein as in Regulation U of the
Board of Governors of the Federal Reserve System). The proceeds of the Loans and
Letters of Credit are to be used solely for the purposes set forth in and
permitted by Section 7.9. The Borrower will not use the proceeds of any Loan or
Letter of Credit in a manner that violates any provision of Regulation U or X of
the Board of Governors of the Federal Reserve System.
SECTION 5.11. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH LAWS. (a) The
Borrower and each of its Subsidiaries (i) has all necessary licenses, permits
and governmental authorizations to
27
own and operate its Properties and to carry on its business as currently
conducted and contemplated and (ii) is in compliance with all applicable laws,
regulations, ordinances and orders of any governmental or judicial authorities
except where the failure to so comply would not reasonably be expected to have a
Material Adverse Effect.
(b) In the ordinary course of its business, the Borrower and its
Subsidiaries conduct an ongoing review of the effect of Environmental and Health
Laws on the Properties and all aspects of the business and operations of the
Borrower and its Subsidiaries in the course of which the Borrower identifies and
evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of Properties
currently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with standards imposed by law and any actual or
potential liabilities to third parties, including employees or governmental
entities, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that Environmental and Health Laws are
unlikely to have a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary has given, nor is it required
to give, nor has it received, any written notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental entity
or in connection with any court proceeding that would reasonably be expected to
have a Material Adverse Effect claiming that: (i) the Borrower or any Subsidiary
has violated, or is about to violate, any Environmental and Health Law; (ii)
there has been a release, or there is a threat of release, of Hazardous
Materials from the Borrower's or any Subsidiary's Property, facilities,
equipment or vehicles; (iii) the Borrower or any Subsidiary may be or is liable,
in whole or in part, for the costs of cleaning up, remediating or responding to
a release of Hazardous Materials; or (iv) any of the Borrower's or any
Subsidiary's Property or assets are subject to a Lien in favor of any
governmental entity for any liability, costs or damages, under any Environmental
and Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
SECTION 5.12. OWNERSHIP OF PROPERTY. The Borrower and each Subsidiary has
good title to or valid leasehold interests in all its Property free and clear of
Liens except as permitted hereby or as set forth in Schedule 5.12.
SECTION 5.13. COMPLIANCE WITH AGREEMENTS. To the best knowledge of the
Borrower, neither the Borrower nor any Subsidiary is in default of any
Contractual Obligation which could reasonably be expected to cause a Material
Adverse Effect.
SECTION 5.14. FULL DISCLOSURE. All information (except projections and
forecasts provided in good faith and based on reasonable estimates as to which
no representation is made) heretofore furnished by the Borrower to the Agent or
any Bank for purposes of or in connection with the Credit Documents or any
transaction contemplated thereby is, and all such information hereafter
furnished by the Borrower to the Agent or any Bank will be, true and accurate in
all material respects and not misleading in any material respect on the date as
of which such information is stated or certified, considered as a whole and in
light of the circumstances under which it was furnished.
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SECTION 5.15. SOLVENCY. On and as of the Effective Date, (a) the sum of the
assets, at a fair valuation, of the Borrower (on a stand-alone basis) and the
Borrower and its Subsidiaries (taken as a whole) will exceed the debts of the
Borrower (on a stand-alone basis) or the Borrower and its Subsidiaries (taken as
a whole), as applicable; (b) the Borrower (on a stand-alone basis) and the
Borrower and its Subsidiaries (taken as a whole) have not incurred and do not
intend to, or believe that they will, incur debts beyond their ability to pay
such debts as such debts mature; and (c) the Borrower (on a stand-alone basis)
and the Borrower and its Subsidiaries (taken as a whole) will have sufficient
capital and assets with which to conduct their businesses. For purposes of this
Section 5.15 "DEBT" means any liability on a claim, and "CLAIM" means (i) right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured; or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
SECTION 5.16 CAPITALIZATION. On the Effective Date, the authorized and
issued capital stock of the Borrower and its Subsidiaries shall be as set forth
on Schedule 5.16. All outstanding shares of capital stock of the Borrower have
been duly and validly issued, and are fully paid and nonassessable. The Borrower
and its Subsidiaries do not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock, except as set forth on Schedule
5.16.
SECTION 5.17 YEAR 2000. The Borrower and its Subsidiaries have reviewed the
areas within their business and operations which could be adversely affected by,
and have developed or are developing a program to address on a timely basis, the
"Year 2000 Problem" (that is, the risk that computer applications, as well as
embedded microchips in non-computer devices, used by the Borrower and its
Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date on or after December 31,
1999), and are in the process of making related appropriate inquiry of material
suppliers and vendors. Based on such review and program, the Borrower believes
that the "Year 2000 Problem" will not have a Material Adverse Effect on the
Borrower and its Subsidiaries.
SECTION 6. CONDITIONS PRECEDENT
The obligation of each Bank to advance, continue, or convert any Loan, or
of the Issuing Agent to issue, extend the expiration date (including by not
giving notice of nonrenewal) of or increase the amount of any Letter of Credit
or of the Swingline Bank to make any Swingline Loan, shall be subject to the
following conditions precedent:
SETION 6.1. INITIAL CREDIT EVENT. Before or concurrently with the initial
Credit Event:
(a) The Agent shall have received for each Bank the favorable written
opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLLP, counsel to the Borrower in form and
substance acceptable to the Banks;
29
(b) The Agent shall have received for each Bank copies of (i) the
Articles of Incorporation, together with all amendments, and a certificate
of good standing, for each Credit Party, both certified as of a date not
earlier than 20 days prior to the date hereof by the appropriate
governmental officer of such Credit Party's jurisdiction of incorporation
and (ii) such Credit Party's bylaws (or comparable constituent documents)
and any amendments thereto, certified in each instance by its Secretary or
an Assistant Secretary;
(c) The Agent shall have received for each Bank copies of resolutions
of each Credit Party's Board of Directors authorizing the execution and
delivery of the Credit Documents to which it is a party and the
consummation of the transactions contemplated thereby together with
specimen signatures of the persons authorized to execute such documents on
such Credit Party's behalf, all certified in each instance by its Secretary
or Assistant Secretary;
(d) The Agent shall have received (i) sufficient copies for each bank
of duly executed originals of the Credit Documents (other than the Notes)
and (ii) for each Bank such Bank's duly executed Note of the Borrower dated
the date hereof and otherwise in compliance with the provisions of Section
2.11 hereof;
(e) The Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives, a Borrowing Base Confirmation
showing the Borrowing Base as of not earlier than June 30, 1998 and such
other documents as any Bank may reasonably request;
(f) The Agent shall have received evidence of the termination of the
Credit Agreement dated as of May 15, 1997 between the Borrower and Firstar
Bank of Minnesota, National Association, (except for the provisions
relating to the letters of credit issued thereunder and outstanding on the
date hereof which letters of credit may remain outstanding on an unsecured
basis and shall not be deemed letters of credit issued under this
Agreement) and the Security Agreement, the Stock Pledge Agreement, the
Guaranty and the Third Party Security Agreement, relating thereto and the
termination of Liens existed thereunder; and
(g) All legal matters incident to the execution and delivery of the
Credit Documents shall be satisfactory to the Banks and each of the Agent,
the Documentation Agent and the Banks has received all fees and other
amounts due payable by the Borrower on or before the Effective Date.
SECTION 6.2. ALL CREDIT EVENTS. As of the time of each Credit Event:
(a) In the case of a Borrowing, the Agent shall have received the notice
required by Section 2.6, and in the case of the issuance of any Letter of Credit
the Issuing Agent shall have received the notice required by Section 2.3(b) and
a duly completed Application for a Letter of Credit and, in the case of an
extension or increase in the amount of a Letter of Credit, a written request
therefor, in a form acceptable to the Issuing Agent;
30
(b) Each of the representations and warranties set forth in Section
Five hereof shall be and remain true and correct in all material respects
as of said time, except that if any such representation or warranty relates
solely to an earlier date it need only remain true as of such date;
(c) No Default or Event of Default shall have occurred and be
continuing or would occur as a result of such Credit Event;
(d) After giving effect to the Credit Event the aggregate amount of
all Loans (including Swingline Loans) and L/C Obligations shall not exceed
the lesser of (i) the Commitments then in effect and (ii) the Borrowing
Base as determined by the Agent; and
(e) Such Credit Event shall not violate any order, judgment or decree
of any court or other authority or any provision of law or regulation
applicable to any Bank (including, without limitation, Regulation U of the
Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the issuance
of, increase in the amount of, or extension of the expiration date of, a Letter
of Credit shall be deemed to be a representation and warranty by the Borrower on
the date of such Credit Event as to the facts specified in paragraphs (b)-(e) of
this Section 6.2.
SECTION 6.3 DETERMINATIONS UNDER SECTION 6.1. For purposes of determining
compliance with the conditions specified in Section 6.1, each Bank shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Banks unless an officer of the Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Bank prior to the Effective Date specifying its
objection thereto.
SECTION 7. COVENANTS
The Borrower covenants and agrees that, so long as any Note (including any
Swingline Note) or any L/C Obligation is outstanding hereunder, or any
Commitment is available to or in use by the Borrower hereunder, except to the
extent compliance in any case is waived in writing by the Required Banks:
SECTION 7.1.. CORPORATE EXISTENCE; SUBSIDIARIES. The Borrower shall, and
shall cause each of its Subsidiaries to, preserve and maintain its corporate
existence, subject to the provisions of Section 7.10 hereof. As a condition to
establishing or acquiring any Subsidiary (except Immaterial Subsidiaries) or if
any Immaterial Subsidiary fails to continue to qualify as an Immaterial
Subsidiary, unless the Required Banks otherwise agree, the Borrower shall,
promptly after the establishment or acquisition (or such failure) thereof, (i)
cause such Subsidiary to execute a Guarantee, (ii) cause such Subsidiary to
deliver documentation similar to that described in Sections 6.1(b) and (c)
relating to the authorization for, execution and delivery of, and validity of
31
such Subsidiary's obligations as a Guarantor under the Guarantee in form and
substance satisfactory to the Agent and (iii) deliver an updated Schedule 5.2 to
reflect the new Subsidiary.
SECTION 7.2. MAINTENANCE. The Borrower will maintain, preserve and keep its
plants, Properties and equipment necessary to the proper conduct of its business
in reasonably good repair, working order and condition and will from time to
time make all reasonably necessary repairs, renewals, replacements, additions
and betterments thereto so that at all times such plants, Properties and
equipment shall be reasonably preserved and maintained, and the Borrower will
cause each of its Subsidiaries to do so in respect of Property owned or used by
it. The Borrower will adopt and/or implement in a timely manner any program
referred to in Section 5.17 hereof to address, on a timely basis, the Year 2000
Problem.
SECTION 7.3. TAXES. The Borrower will duly pay and discharge, and will
cause each of its Subsidiaries duly to pay and discharge, all material taxes,
rates, assessments, fees and governmental charges upon or against it or against
its Properties, in each case before the same becomes delinquent and before
penalties accrue thereon, unless and to the extent that the same is being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP have been provided therefor on the books of the Borrower.
SECTION 7.4. ERISA. The Borrower will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any of its properties or assets and will
promptly notify the Agent of (i) the occurrence of any reportable event (as
defined in ERISA) affecting a Plan, other than any such event of which the PBGC
has waived notice by regulation, (ii) receipt of any notice from PBGC of its
intention to seek termination of any Plan or appointment of a trustee therefor,
(iii) its or any of its Subsidiaries' intention to terminate or withdraw from
any Plan, and (iv) the occurrence of any event affecting any Plan which would
reasonably be expected to result in the incurrence by the Borrower or any of its
Subsidiaries of any material liability, fine or penalty, or any material
increase in the contingent liability of the Borrower or any of its Subsidiaries
under any post-retirement Welfare Plan benefit.
SECTION 7.5. INSURANCE. The Borrower will insure, and keep insured, and
will cause each of its Subsidiaries to insure, and keep insured, with good and
responsible insurance companies, all insurable Property owned by it of a
character usually insured by companies similarly situated and operating like
Property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, the Borrower
will also insure, and cause each of its Subsidiaries to insure, employers' and
public and product liability risks with good and responsible insurance
companies. The Borrower will upon request of any Bank furnish to such Bank a
summary setting forth the nature and extent of the insurance maintained pursuant
to this Section 7.5.
SECTION 7.6. FINANCIAL REPORTS AND OTHER INFORMATION. (a) The Borrower will
maintain a system of accounting in accordance with GAAP and will provide
sufficient copies to the Agent to furnish to the Banks which the Agent shall
promptly forward to the Banks:
32
(i) within 90 days after the end of each fiscal year of the Borrower,
a copy of the Borrower's financial statements for such fiscal year,
including the consolidated balance sheet of the Borrower for such year and
the related statement of income and statement of cash flow, as certified by
independent public accountants of recognized national standing selected by
the Borrower in accordance with GAAP with such accountants' opinion (such
opinion to be unqualified) to the effect that the financial statements have
been prepared in accordance with GAAP and present fairly in all material
respects in accordance with GAAP the consolidated financial position of the
Borrower and its Subsidiaries as of the close of such fiscal year and the
results of their operations and cash flows for the fiscal year then ended
and that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
(ii) within 45 days after the end of each of the first three quarterly
fiscal periods of the Borrower, a consolidated unaudited balance sheet of
the Borrower, and the related statement of income and statement of cash
flow, as of the close of such period, all of the foregoing prepared by the
Borrower in reasonable detail in accordance with GAAP and certified by the
Borrower's President, chief financial officer or corporate controller as
fairly presenting the financial condition as at the dates thereof and the
results of operations for the periods covered thereby;
(iii) as soon and frequently as available, and in any event at least
monthly and within 20 days of the end of each calendar month, a Borrowing
Base Confirmation showing the computation of the Borrowing Base in
reasonable detail as of the close of business on the last day of the period
covered thereby, together with such other information as is therein
required, prepared by the Borrower and certified to by the President, chief
financial officer or corporate controller of the Borrower; PROVIDED that,
during the continuation of any Default or Event of Default, the Borrower
will provide the foregoing Confirmation and information as often and in
detail as requested by the Agent or the Required Banks; and
(iv) promptly after the sending or filing thereof, copies of all other
regular, periodic and special reports and all registration statements the
Borrower files with the SEC or any successor thereto, or with any national
securities exchanges.
(b) Each financial statement furnished to the Banks pursuant to subsection
(i) or (ii) of this Section 7.6 shall be accompanied by a written certificate in
the form attached hereto as Exhibit D signed by the Borrower's President, chief
financial officer or corporate controller to the effect that no Default or Event
of Default has occurred and is continuing during the period covered by such
statements or, if any such Default or Event of Default has occurred and is
continuing during such period, setting forth a description of such Default or
Event of Default and specifying the action, if any, taken by the Borrower to
remedy the same. Such financial statement shall: (i) include a statement that
the Year 2000 remediation efforts of the Borrower and its
33
Subsidiaries are proceeding as scheduled and; (ii) indicate whether an auditor,
regulator, or third party consultant has issued a management letter or other
communication regarding the Year 2000 exposure, program or progress of the
Borrower and/or its Subsidiaries.
(c) The Borrower will promptly (and in any event within three Business Days
after the President, chief executive, operation or financial officer or
corporate controller of the Borrower has knowledge thereof) give notice to the
Agent and each Bank:
(i) of the occurrence of any Default or Event of Default;
(ii) of any default or event of default under any Contractual
Obligation (which would reasonably be expected to have a Material Adverse
Effect) of the Borrower or any of its Subsidiaries;
(iii) of a Material Adverse Effect;
(iv) of the institution of any litigation or governmental proceeding
of the type required to be described in Section 5.5 hereof;
(v) of any material change in the information set forth on the
Schedules hereto; and
(vi) of any material change in accounting practices and of any change
in depreciation methods with respect to Revenue Equipment.
SECTION 7.7. BANK INSPECTION RIGHTS. Upon reasonable notice from the Agent
or the Required Banks, the Borrower will, at the Borrower's expense, permit the
Agent or such Required Banks (and such Persons as the Agent or any such Bank may
designate) during normal business hours to visit and inspect, under the
Borrower's guidance, any of the properties of the Borrower or any of its
Subsidiaries, to examine all of their books of account, records, reports and
other papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective officers, all at
such reasonable times and as often as may be reasonably requested.
SECTION 7.8. CONDUCT OF BUSINESS. Neither the Borrower nor any Subsidiary
will engage in any line of business if, as a result, the general nature of the
business of either the Borrower or the Borrower and its Subsidiaries taken as a
whole would be substantially changed from that conducted on the date hereof.
SECTION 7.9. USE OF PROCEEDS; REGULATION U. The proceeds of each Borrowing,
and the credit provided by Letters of Credit, will be used by the Borrower for
(i) payment of indebtedness to Firstar Bank of Minnesota, National Association
as part of the termination of the Credit Agreement referred to in Section 6.1(f)
hereof, (ii) working capital purposes, (iii) capital expenditures including
revenue equipment financing, (iv) general corporate purposes, including
non-hostile acquisitions. The Borrower will not use any part of the proceeds of
any of the Borrowings or of the Letters of Credit directly or indirectly to
purchase or carry any margin stock
34
(as defined in Section 5.10 hereof) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
SECTION 7.10. MERGERS, CONSOLIDATIONS AND SALES. The Borrower shall not,
nor shall it permit any Subsidiary to, be a party to any merger or
consolidation; or sell, transfer, lease or otherwise dispose of all or any
substantial part of its Property, including as a part of a sale and leaseback
transaction, or in any event, sell or discount (with or without recourse) any of
its notes or accounts receivable; PROVIDED, HOWEVER, that this Section shall not
apply to nor operate to prevent (i) the Borrower being a party to any merger
where the Borrower is the surviving Person if, after giving effect to such
merger, no Default or Event of Default would then exist, (ii) any Subsidiary (a)
merging into another Subsidiary or the Borrower or (b) being a party to any
merger which does not involve the Borrower or another Subsidiary where such
Subsidiary is the surviving Person if, after giving effect to such merger, no
Default or Event of Default would then exist and (iii) the Borrower or any
Subsidiary from selling its inventory, rendering its services or trading in its
equipment in the ordinary course of its business.
As used in this Section 7.10, a sale, lease, transfer or disposition of
Property shall be deemed to be of a "substantial part" of Property of the
Borrower and its Subsidiaries if the book value of such Property, when added to
the book value of all other Property sold, leased, transferred or disposed of by
the Borrower and its Subsidiaries (other than in the ordinary course of
business) during the same calendar year, exceeds five percent (5%) of the
consolidated assets of the Borrower and its Subsidiaries determined as of the
end of the immediately preceding calendar year.
SECTION 7.11. USE OF PROPERTY AND FACILITIES; ENVIRONMENTAL AND HEALTH AND
SAFETY LAWS. (a) The Borrower will, and will cause each of its Subsidiaries to,
comply in all material respects with the requirements of all Environmental and
Health Laws applicable to or pertaining to the Properties or business operations
of the Borrower or any Subsidiary of the Borrower, except where failure to
comply would not reasonably be expected to have a Material Adverse Effect.
Without limiting the foregoing, the Borrower will not, and will not permit any
Person within its control to, except in accordance with applicable law, dispose
of any Hazardous Material into, onto or upon any real property owned or operated
by the Borrower or any of its Subsidiaries.
(b) The Borrower will promptly provide the Banks with copies of any notice
or other instrument of the type described in Section 5.11(c) hereof, and in no
event later than five (5) Business Days after the President, chief executive,
operation or financial officer or corporate controller of the Borrower receives
such notice or instrument.
SECTION 7.12. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The Borrower
shall not declare or pay any dividends or make a distribution of any kind
(including by redemption or purchase), other than dividends in the form of the
Borrower's stock, on its outstanding capital stock, PROVIDED that so long as no
Default or Event of Default exists prior to or would result after giving effect
to such action, the Borrower may declare or pay dividends in an aggregate amount
not to exceed 25% of the Consolidated Net Income earned by the Borrower for the
cumulative period commencing December 31, 1997.
35
SECTION 7.13. COMPLIANCE WITH LAWS. Without limiting any of the other
covenants of the Borrower in this Section Seven, the Borrower will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be, in
compliance with all applicable laws, regulations, ordinances and orders of any
governmental or judicial authorities except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect.
SECTION 7.14. NET WORTH. The Borrower shall, at the end of each Test
Period, maintain Net Worth at the end of such Test Period at not less than the
sum of (i) $43,000,000 plus (ii) 75% of Consolidated Net Income for the
cumulative period commencing December 31, 1997 and ending at the end of such
Test Period (without taking into account any deficit in Consolidated Net Income)
plus (iii) 100% of the net proceeds of equity issuances by the Borrower for the
cumulative period commencing December 31, 1997 and ending at the end of such
Test Period.
SECTION 7.15. CONSOLIDATED FUNDED INDEBTEDNESS TO CONSOLIDATED EBITDAR. The
Borrower shall, at the end of each Test Period, maintain a ratio of Consolidated
Funded Indebtedness (excluding equity, or any agreement of the Borrower to
purchase relating thereto, issued by the Borrower for the acquisition of North
Star Transport, Inc. so long as such equity or agreement is not puttable,
redeemable or exercisable prior to the Termination Date) for such Test Period to
Consolidated EBITDAR for such Test Period to be not more than 3.00 to 1.00.
SECTION 7.16. CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower shall,
at the end of each Test Period, maintain a ratio of (x) Consolidated EBIT plus
consolidated lease rental expense for such Test Period to (y) Consolidated
Interest and Rental Expenses for such Test Period to be not less than 2.00 to
1.00.
SECTION 7.17. INDEBTEDNESS. The Borrower shall not, nor shall it permit any
Subsidiary to, issue, incur, assume, create or have outstanding any
Indebtedness; PROVIDED, HOWEVER, that the foregoing shall not restrict nor
operate to prevent:
(a) the Obligations of the Borrower and its Subsidiaries from time to
time owing to the Banks under this Agreement;
(b) in addition to the Indebtedness permitted by Section 7.17(c)
below, purchase money indebtedness and Capitalized Lease Obligations
secured by Liens permitted by Section 7.18(c) hereof in an aggregate amount
not to exceed $5,000,000 at any one time outstanding;
(c) existing Indebtedness of the Borrower and its Subsidiaries in
respect of outstanding secured revenue equipment debt as set forth on
Schedule 7.17(c) hereto and which shall amortize or be prepaid according to
the amortization listed on such Schedule;
(d) other existing Indebtedness of the Borrower and its Subsidiaries
set forth on Schedule 7.17(d); and
36
(e) Indebtedness of the Borrower up to $13,000,000 with respect to the
synthetic lease transaction in connection with the Borrower's acquisition
and construction of its corporate headquarters in Eagan, Minnesota.
SECTION 7.18. LIENS. The Borrower shall not, nor shall it permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
Property owned by the Borrower or any Subsidiary; PROVIDED, HOWEVER, that the
foregoing shall not apply to nor operate to prevent:
(a) Liens arising by statute in connection with worker's compensation,
unemployment insurance, old age benefits, social security obligations,
taxes, assessments, statutory obligations or other similar charges, good
faith cash deposits in connection with tenders, contracts or leases to
which the Borrower or any Subsidiary is a party or other cash deposits
required to be made in the ordinary course of business, provided in each
case that the obligation is not for borrowed money and that the obligation
secured is not overdue or, if overdue, is being contested in good faith by
appropriate proceedings which prevent enforcement of the matter under
contest and adequate reserves have been established therefor;
(b) mechanics', workmen's, materialmen's, landlords', carriers', or
other similar Liens arising in the ordinary course of business with respect
to obligations which are not due or which are being contested in good faith
by appropriate proceedings which prevent enforcement of the matter under
contest;
(c) Liens on property of the Borrower or any of its Subsidiaries
created solely for the purpose of securing indebtedness permitted by
Section 7.17(b) hereof, representing or incurred to finance, refinance or
refund the purchase price of Property, PROVIDED that no such Lien shall
extend to or cover other Property of the Borrower or such Subsidiary other
than the respective Property so acquired, and the principal amount of
indebtedness secured by any such Lien shall at no time exceed the original
purchase price of such Property; and
(d) Liens as set forth in Schedule 5.12.
SECTION 7.19. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND GUARANTIES.
The Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances (other
than for travel advances and other similar cash advances made to employees in
the ordinary course of business) to, any other Person, or acquire all or any
substantial part of the assets or business of any other Person or division
thereof, or be or become liable as endorser, guarantor, surety or otherwise for
any debt, obligation or undertaking of any other Person, or otherwise agree to
provide funds for payment of the obligations of another, or supply funds thereto
or invest therein or otherwise assure a creditor of another against loss, or
apply for or become liable to the issuer of a letter of credit which supports an
obligation of another, or subordinate any claim or demand it may have to the
claim or demand of any other Person; PROVIDED, HOWEVER, that the foregoing shall
not apply to nor operate to prevent:
37
(a) investments in direct obligations of the United States of America
or of any agency or instrumentality thereof whose obligations constitute
full faith and credit obligations of the United States of America, PROVIDED
that any such obligations shall mature within one year of the date of
issuance thereof;
(b) investments in commercial paper rated at least P-1 by ▇▇▇▇▇'▇
Investors Services, Inc. and at least A-1 by Standard & Poor's Corporation
maturing within 270 days of the date of issuance thereof;
(c) investments in certificates of deposit issued by any commercial
bank having capital and surplus of not less than $100,000,000 which have a
maturity of one year or less;
(d) endorsement of items for deposit or collection of commercial paper
received in the ordinary course of business;
(e) existing equity investments in Subsidiaries of the Borrower;
(f) guaranty by the Subsidiaries pursuant to the Guarantees; and
(g) acquisitions of all or substantially all of the assets or business
of any other Person engaged in the same or similar business as the Borrower
or any of its Subsidiaries, or of a division of a Person engaged in such a
business, or of all or substantially all the Voting Stock of a Person, so
long as (i) no Default or Event of Default exists or would exist after
giving effect to such acquisition, (ii) the Board of Directors or other
governing body of such Person whose Property or Voting Stock is being so
acquired has approved the terms of such acquisition, (iii) the Borrower can
demonstrate that (on a PRO FORMA basis as to Section 7.15) after giving
effect to such acquisition it will continue to comply through the term of
this Agreement with all the terms and conditions of the Credit Documents,
(iv) consideration (cash and non-cash) for such acquisition does not exceed
$50,000,000 and (v) the Borrower has provided to the Banks such financial
and other information regarding the Person whose Property or Voting Stock
is being so acquired, including historical financial statements, and a
description of such Person, as the Agent or the Required Banks have
reasonably requested.
In determining the amount of investments, acquisitions, loans, advances and
guarantees permitted under this Section 7.19, investments and acquisitions shall
always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guarantees shall be taken at
the amount of obligations guaranteed thereby.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an Event of Default:
38
(a) (i) default in the payment when due of the principal amount of any
Loan or of any Reimbursement Obligation or (ii) default in the payment when
due of fees, interest or of any other Obligation;
(b) default by the Borrower in the observance or performance of any
covenant set forth in Section 7.10, 7.12, 7.14 through and including
Section 7.19 hereof;
(c) default by the Borrower in the observance or performance of any
provision hereof or of any other Credit Document not mentioned in (a) or
(b) above, which is not remedied within thirty (30) days after notice
thereof shall have been given to the Borrower by the Agent;
(d) (i) failure to pay when due Indebtedness in an aggregate principal
amount of $2,000,000 or more of the Borrower or any Subsidiary or (ii)
default shall occur under one or more indentures, agreements or other
instruments under which any Indebtedness of the Borrower or any Subsidiary
in an aggregate principal amount of $2,000,000 or more may be issued or
created and such default shall continue for a period of time sufficient to
permit the holder or beneficiary of such Indebtedness or a trustee therefor
to cause the acceleration of the maturity of any such Indebtedness or any
mandatory unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any other Credit
Document by a Credit Party, or in any statement or certificate furnished
pursuant hereto or pursuant to any other Credit Document by a Credit Party,
or in connection with any Credit Document, proves untrue in any material
respect as of the date of the issuance or making, or deemed making or
issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any analogous action is taken under any
other applicable law relating to bankruptcy or insolvency not dismissed or
fully bonded within 90 days, (ii) fail to pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of
its Property, (v) institute any proceeding seeking to have entered against
it an order for relief under the United States Bankruptcy Code, as amended,
to adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action (such as the passage by the
Borrower's board of directors of a resolution) in furtherance of any matter
described in parts (i)-(v) above, or (vii) fail to contest in good faith
any appointment or proceeding described in Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any material Subsidiary or
any substantial part of any of
39
their Property, or a proceeding described in Section 8.1(f)(v) shall be
instituted against the Borrower or any Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for a period of ninety (90) days;
(h) the Borrower or any Subsidiary shall fail within forty-five (45)
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $2,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) the Borrower or any other member of the Controlled Group shall
fail to pay when due an amount or amounts which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Vested
Liabilities in excess of $2,000,000 (collectively, a "MATERIAL PLAN") shall
be filed under Title IV of ERISA by the Borrower or any Subsidiary or any
other member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a
fiduciary of any Material Plan against the Borrower or any other member of
the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within thirty (30) days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated;
(j) Borrower's or any Subsidiary's obligations under any Credit
Document ceases to be in full force and effect, any Guarantor or any Person
acting on behalf of such Guarantor shall deny, disaffirm or repudiate such
Guarantor's obligations under the Guarantees, or an event of default occurs
and remains unremedied for 30 days under any of the Credit Documents;
(k) a Change of Control shall occur; or
(l) the Obligations shall cease to rank at least PARI PASSU in right
of payment with all other senior unsecured obligations of the Borrower.
SECTION 8.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default other
than those described in subsections (f) or (g) of Section 8.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the
Borrower, if so directed by the Required Banks: (a) terminate the remaining
Commitments and all other obligations of the Banks hereunder on the date
stated in such notice (which may be the date thereof); (b) declare the
principal of and the accrued interest on all outstanding Notes to be
forthwith due and payable and thereupon all outstanding Notes, including
both principal and interest thereon, shall be and become immediately due
and payable together with all other amounts payable under the Credit
Documents without further demand, presentment, protest or notice of any
kind; and (c) demand that the Borrower immediately pay to the Agent,
subject to Section 8.4, the full amount then available for drawing under
each or any Letter of Credit, and the Borrower agrees to immediately make
such payment and acknowledges and agrees that the Banks would not have an
adequate remedy at law for failure by the Borrower
40
to honor any such demand and that the Agent, for the benefit of the Banks,
shall have the right to require the Borrower to specifically perform such
undertaking whether or not any drawings or other demands for payment have
been made under any Letter of Credit. The Agent, after giving notice to the
Borrower pursuant to Section 8.1(c) or this Section 8.2, shall also
promptly send a copy of such notice to the other Banks, but the failure to
do so shall not impair or annul the effect of such notice.
SECTION 8.3. BANKRUPTCY DEFAULTS. When any Event of Default described in
subsections (f) or (g) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Credit Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent, subject to Section 8.4, the
full amount then available for drawing under all outstanding Letters of Credit,
the Borrower acknowledging that the Banks would not have an adequate remedy at
law for failure by the Borrower to honor any such demand and that the Banks, and
the Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands
for payment have been made under any of the Letters of Credit.
SECTION 8.4. COLLATERAL FOR UNDRAWN LETTERS OF CREDIT. (a) If the payment
or prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Sections 2.3(b), 2.3(c), 8.2, 8.3 or
otherwise, the Borrower shall forthwith pay the amount required to be so
prepaid, to be held by the Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by
the Agent in a separate collateral account (such account, and the credit
balances, properties and any investments from time to time held therein, and any
substitutions for such account, any certificate of deposit or other instrument
evidencing any of the foregoing and all proceeds of and earnings on any of the
foregoing being collectively called the "ACCOUNT") as security for, and for
application by the Agent (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the Issuing Agent,
and to the payment of the unpaid balance of any Loans and all other Obligations.
The Account shall be held in the name of and subject to the exclusive dominion
and control of the Agent for the benefit of the Agent, the Issuing Agent and the
Banks. If and when requested by the Borrower, the Agent shall invest funds held
in the Account from time to time in direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America with a remaining maturity of one year or less, PROVIDED that
the Agent is irrevocably authorized to sell investments held in the Account when
and as required to make payments out of the Account for application to amounts
due and owing from the Borrower to the Agent, the Issuing Agent or Banks;
PROVIDED, HOWEVER, that if (i) the Borrower shall have made payment of all such
obligations referred to in subsection (a) above, (ii) all relevant preference or
other disgorgement periods relating to the receipt of such payments have passed,
and (iii) no Letters of Credit, Commitments, Loans or other Obligations remain
outstanding hereunder, then the Agent shall repay to the Borrower any remaining
amounts held in the Account.
41
SECTION 8.5. EXPENSES. The Borrower agrees to pay to the Agent, the
Documentation Agent, the Issuing Agent and each Bank, and any other holder of
any Note outstanding hereunder, all costs and expenses incurred or paid by the
Agent, the Documentation Agent, the Issuing Agent or such Bank or any such
holder, including attorneys' fees (including those fees and costs attributable
to in-house attorneys) and court costs, in connection with any Default or Event
of Default by the Borrower hereunder or in connection with the enforcement of
any of the Credit Documents.
SECTION 9. CHANGE IN CIRCUMSTANCES
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Bank to make or continue to maintain Eurodollar Loans or to perform its
obligations as contemplated hereby, such Bank shall promptly give notice thereof
to the Borrower and such Bank's obligations to make or maintain Eurodollar Loans
under this Agreement shall terminate until it is no longer unlawful for such
Bank to make or maintain Eurodollar Loans. The Borrower shall prepay on demand
the outstanding principal amount of any such affected Eurodollar Loans, together
with all interest accrued thereon at a rate per annum equal to the interest rate
applicable to such Loan; PROVIDED, HOWEVER, subject to all of the terms and
conditions of this Agreement, the Borrower may then elect to borrow the
principal amount of the affected Eurodollar Loans from such Bank by means of
Base Rate Loans from such Bank, which Base Rate Loans shall not be made ratably
by the Banks but only from such affected Bank.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN, OR
INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurodollar Loans:QUACY OF, LIBOR
(a) the Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to it in the eurodollar interbank
market for such Interest Period, or that by reason of circumstances
affecting the interbank eurodollar market adequate and reasonable means do
not exist for ascertaining the applicable LIBOR, or
(b) Banks having at least a majority of the aggregate amount of the
Commitments reasonably determine and so advise the Agent that LIBOR as
reasonably determined by the Agent will not adequately and fairly reflect
the cost to such Banks or Bank of funding their or its Eurodollar Loans or
Loan for such Interest Period (such cost to be determined as if each such
Bank had actually funded each Eurodollar Loan through the purchase of
deposits of U.S. Dollars in the London eurodollar interbank market having a
maturity corresponding to such Loan's Interest Period and in the amount of
such Loan),
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks or
of the relevant Bank to make Eurodollar Loans shall be suspended.
42
SECTION 9.3. INCREASED COST AND REDUCED RETURN. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law but, if not having the force of law, compliance with which is customary
in the relevant jurisdiction) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Eurodollar Loans, its Note, its Letter(s)
of Credit, or its participation in any thereof, any Reimbursement
Obligations owed to it or its obligation to make Eurodollar Loans, issue a
Letter of Credit, or to participate therein, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the principal
of or interest on its Eurodollar Loans, Letter(s) of Credit, or
participations therein or any other amounts due under this Agreement in
respect of its Eurodollar Loans, Letter(s) of Credit, or participations
therein, any Reimbursement Obligations owed to it, or its obligation to
make Eurodollar Loans, issue a Letter of Credit, or acquire participations
therein (except for changes in the rate of tax on the overall net income or
profits of such Bank or its Lending Office imposed by the jurisdiction in
which such Bank or its Lending Office is incorporated in which such Bank's
principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurodollar Loans any such
requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office) or shall impose on any Bank (or its
Lending Office) or on the interbank market any other condition affecting
its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligation owed to it, or
its obligation to make Eurodollar Loans, to issue a Letter of Credit, or to
participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Eurodollar Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within fifteen (15) days after demand
by such Bank (with a copy to the Agent), the Borrower shall be obligated to pay
to such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If on or after the date hereof, any Bank or the Agent shall have
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein (including, without limitation, any
revision in the Final Risk-Based Capital Guidelines of the Board of Governors of
the Federal Reserve System (12 CFR Part 208, Appendix A; ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇) or of the Office of the Comptroller of the Currency (12 CFR Part 3,
43
Appendix A), or in any other applicable capital rules heretofore adopted and
issued by any governmental authority), or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law but, if not having the
force of law, compliance with which is customary in the applicable jurisdiction)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital, or on the capital
of any corporation controlling such Bank, as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within fifteen (15) days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(c) Each Bank that determines to seek compensation under this Section 9.3
shall notify the Borrower and the Agent of the circumstances that entitle the
Bank to such compensation pursuant to this Section 9.3 and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section 9.3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 9.4. LENDING OFFICES. Each Bank may, at its option, elect to make
its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof or in the assignment agreement which any
assignee bank executes pursuant to Section 11.12 hereof (each a "LENDING
OFFICE") for each type of Loan available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and designate
in a written notice to the Borrower and the Agent.
SECTION 9.5. DISCRETION OF BANK AS TO MANNER OF FUNDING. Notwithstanding
any other provision of this Agreement, each Bank shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if each Bank had actually funded and
maintained each Eurodollar Loan through the purchase of deposits of U.S. Dollars
in the London eurodollar interbank market having a maturity corresponding to
such Loan's Interest Period and bearing an interest rate equal to LIBOR for such
Interest Period.
SECTION 10. THE AGENT
SECTION 10.1. APPOINTMENT AND AUTHORIZATION OF AGENT. Each Bank hereby
appoints ABN AMRO Bank N.V. as the Agent under the Credit Documents and hereby
authorizes the Agent to take such action as Agent on its behalf and to exercise
such powers under the Credit Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
The relationship between the Agent and the Banks is and shall be that of agent
44
and principal only, and nothing contained in this Agreement or any other Credit
Document shall be construed to constitute the Agent as a trustee or fiduciary
for any Bank or the Borrower.
SECTION 10.2 AGENT AND ITS AFFILIATES. The Agent shall have the same rights
and powers under this Agreement and the other Credit Documents as any other Bank
and may exercise or refrain from exercising the same as though it were not the
Agent, and the Agent and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of banking, trust, debt, equity or other
business with the Borrower or any Affiliate of the Borrower as if it were not
the Agent under the Credit Documents.
SECTION 10.3. ACTION BY AGENT. If the Agent receives from the Borrower a
written notice of an Event of Default pursuant to Section 7.6(c)(i) hereof, the
Agent shall promptly give each of the Banks written notice thereof. The
obligations of the Agent under the Credit Documents are only those expressly set
forth therein. Without limiting the generality of the foregoing, the Agent shall
not be required to take any action hereunder with respect to any Default or
Event of Default, except as expressly provided in Sections 8.2 and 8.4. In no
event, however, shall the Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the Agent shall
in all cases be fully justified in failing or refusing to act hereunder or under
any other Credit Document unless it shall be first indemnified to its reasonable
satisfaction by the Banks against any and all costs, expense, and liability
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Bank or the Borrower. In all
cases in which this Agreement and the other Credit Documents do not require the
Agent to take certain actions, the Agent shall be fully justified in using its
discretion in failing to take or in taking any action hereunder and thereunder.
SECTION 10.4. CONSULTATION WITH EXPERTS. The Agent may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 10.5. LIABILITY OF AGENT; CREDIT DECISION. Neither the Agent nor
any of its directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection with the Credit Documents (i) with
the consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement, any other Credit Document
or any Credit Event; (ii) the performance or observance of any of the covenants
or agreements of the Borrower or any other party (other than the Agent)
contained herein or in any other Credit Document; (iii) the satisfaction of any
condition specified in Section Six hereof, except receipt of items required to
be delivered to the Agent; or (iv) the validity, effectiveness, genuineness,
enforceability, perfection, value, worth or collectibility hereof or of any
other Credit Document or of any other documents or writing furnished in
connection with any Credit Document; and the Agent makes no representation of
any kind or character with respect to any such matter mentioned in this
sentence. The Agent may execute any of its duties under any of the Credit
Documents by or through employees, agents, and
45
attorneys-in-fact and shall not be answerable to the Banks, the Borrower, or any
other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Agent shall have no responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument received
by it under the Credit Documents. The Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed with
the Agent signed by such payee in form satisfactory to the Agent. Each Bank
acknowledges that it has independently and without reliance on the Agent or any
other Bank, and based upon such information, investigations and inquiries as it
deems appropriate, made its own credit analysis and decision to extend credit to
the Borrower in the manner set forth in the Credit Documents. It shall be the
responsibility of each Bank to keep itself informed as to the creditworthiness
of the Borrower and any other relevant Person, and the Agent shall have no
liability to any Bank with respect thereto.
SECTION 10.6. INDEMNITY. The Banks shall ratably, in accordance with their
respective Percentages (determined before giving effect to any termination of
the Commitments pursuant to Section 8.2 or 8.3), indemnify and hold the Agent,
and its directors, officers, employees, agents and representatives harmless from
and against any liabilities, losses, costs or expenses suffered or incurred by
the Agent acting in its capacity as Agent under any Credit Document or in
connection with the transactions contemplated thereby, regardless of when
asserted or arising, except to the extent they are promptly reimbursed for the
same by the Borrower and except to the extent that any event giving rise to a
claim was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. The obligations of the Banks under this Section 10.6
shall survive termination of this Agreement.
SECTION 10.7 RESIGNATION OF AGENT AND SUCCESSOR AGENT. The Agent may resign
at any time by giving written notice thereof to the Banks and the Borrower. Upon
any such resignation of the Agent, the Required Banks shall have the right to
appoint a successor Agent with the consent of the Borrower (except Borrower's
consent is not required during the occurrence and continuance of a Default or
Event of Default). If no successor Agent shall have been so appointed by the
Required Banks, and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, with the
consent of the Borrower (except upon the occurrence and continuance of a Default
or Event of Default), which shall be any Bank hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring or removed Agent under the Credit Documents, and the retiring Agent
shall be discharged from its duties and obligations thereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Section
Ten and all protective provisions of the other Credit Documents shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
46
SECTION 10.8. DOCUMENTATION AGENT. Nothing in this Agreement shall impose
any obligation on Firstar Bank of Minnesota, National Association, in its
capacity as Documentation Agent.
SECTION 11. MISCELLANEOUS
SECTION 11.1. WITHHOLDING TAXES. (a) PAYMENTS FREE OF WITHHOLDING. Subject
to Section 11.1(b) hereof, each payment by the Borrower under this Agreement or
the other Credit Documents shall be made without withholding for or on account
of any present or future taxes (other than overall net income taxes on the
recipient). If any such withholding is so required, the Borrower shall make the
withholding, pay the amount withheld to the appropriate governmental authority
before penalties attach thereto or interest accrues thereon and forthwith pay
such additional amount as may be necessary to ensure that the net amount
actually received by each Bank and the Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount which
that Bank or the Agent (as the case may be) would have received had such
withholding not been made. If the Agent or any Bank pays any amount in respect
of any such taxes, penalties or interest the Borrower shall reimburse the Agent
or that Bank for that payment on demand. If the Borrower pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Bank or Agent on whose account such
withholding was made (with a copy to the Agent if not the recipient of the
original) on or before the thirtieth day after payment.
(b) U.S. WITHHOLDING TAX EXEMPTIONS. Each Bank that is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) shall submit
to the Borrower and the Agent on or before the earlier of the date the initial
Borrowing is made hereunder and thirty (30) days after the date hereof, two duly
completed and signed copies of either Form 1001 (relating to such Bank and
entitling it to a complete exemption from withholding under the Code on all
amounts to be received by such Bank, including fees, pursuant to the Credit
Documents and the Loans) or Form 4224 (relating to all amounts to be received by
such Bank, including fees, pursuant to the Credit Documents and the Loans) of
the United States Internal Revenue Service. Thereafter and from time to time,
each Bank shall submit to the Borrower and the Agent such additional duly
completed and signed copies of one or the other of such Forms (or such successor
forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) requested by the Borrower in a written notice,
directly or through the Agent, to such Bank and (ii) required under then-current
United States law or regulations to avoid or reduce United States withholding
taxes on payments in respect of all amounts to be received by such Bank,
including fees, pursuant to the Credit Documents or the Loans.
(c) INABILITY OF BANK TO SUBMIT FORMS. If any Bank determines, as a result
of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the
Borrower or Agent any form or certificate that such Bank is obligated to submit
pursuant to subsection (b) of this Section 11.1. or that such Bank is required
to withdraw or cancel any such form or certificate previously submitted or any
such form or certificate otherwise becomes ineffective or inaccurate, such Bank
shall promptly notify the Borrower and Agent of such fact and the Bank shall to
that extent not be obligated to provide any
47
such form or certificate and will be entitled to withdraw or cancel any affected
form or certificate, as applicable.
SECTION 11.2. NO WAIVER OF RIGHTS. No delay or failure on the part of the
Agent or any Bank or on the part of the holder or holders of any Note in the
exercise of any power or right under any Credit Document shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
power or right, and the rights and remedies hereunder of the Agent, the
Documentation Agent, the Banks and the holder or holders of any Notes are
cumulative to, and not exclusive of, any rights or remedies which any of them
would otherwise have.
SECTION 11.3. NON-BUSINESS DAY. If any payment of principal or interest on
any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan or
other Obligation bears for the period prior to maturity shall continue to accrue
on such Obligation from the stated due date thereof to and including the next
succeeding Business Day (subject to the definition of Interest Period), on which
the same shall be payable.
SECTION 11.4. DOCUMENTARY TAXES. The Borrower agrees that it will pay any
documentary, stamp or similar taxes payable in respect to any Credit Document,
including interest and penalties, in the event any such taxes are assessed,
irrespective of when such assessment is made and whether or not any credit is
then in use or available hereunder.
SECTION 11.5. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
SECTION 11.6. SURVIVAL OF INDEMNITIES. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 2.12, Section 9.3 and Section 11.15 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the payment
of the Loans and all other Obligations.
SECTION 11.7. SET-OFF. (a) In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank and each subsequent
holder of any Note is hereby authorized by the Borrower at any time or from time
to time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
and in whatever currency denominated) and any other Indebtedness at any time
held or owing by that Bank or that subsequent holder to or for the credit or the
account of the Borrower, whether or not matured, against and on account of the
obligations and liabilities of the Borrower to that Bank or that subsequent
holder under the Credit Documents, including, but not limited to, all claims of
any nature or description arising out of or connected with the Credit Documents,
irrespective of whether or not (a) that Bank or that
48
subsequent holder shall have made any demand hereunder or (b) the principal of
or the interest on the Loans or Notes and other amounts due hereunder shall have
become due and payable pursuant to Section 8 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
(b) Each Bank agrees with each other Bank a party hereto that if such Bank
shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans or Reimbursement Obligations
in excess of its ratable share of payments on all such obligations then
outstanding to the Banks, then such Bank shall purchase for cash at face value,
but without recourse, ratably from each of the other Banks such amount of the
Loans or Reimbursement Obligations, or participations therein, held by each such
other Banks (or interest therein) as shall be necessary to cause such Bank to
share such excess payment ratably with all the other Banks; PROVIDED, HOWEVER,
that if any such purchase is made by any Bank, and if such excess payment or
part thereof is thereafter recovered from such purchasing Bank, the related
purchases from the other Banks shall be rescinded ratably and the purchase price
restored as to the portion of such excess payment so recovered, but without
interest. For purposes of this Section 11.7(b), amounts owed to or recovered by,
the Issuing Agent in connection with Reimbursement Obligations in which Banks
have been required to fund their participation shall be treated as amounts owed
to or recovered by the Issuing Agent as a Bank hereunder.
SECTION 11.8. NOTICES. Except as otherwise specified herein, all notices
under the Credit Documents shall be in writing (including telecopy or other
electronic communication) and shall be given to a party hereunder at its address
or telecopier number set forth below or such other address or telecopier number
as such party may hereafter specify by notice to the Agent and the Borrower,
given by courier, by United States certified or registered mail, or by other
telecommunication device capable of creating a written record of such notice and
its receipt. Notices under the Credit Documents to the Banks shall be addressed
to their respective addresses, telecopier or telephone numbers set forth on the
signature pages hereof or in the assignment agreement which any assignee bank
executes pursuant to Section 11.12 hereof, and to the Borrower and to the Agent
to:
If to the Borrower:
Transport Corporation of America, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
49
If to the Agent:
ABN AMRO Bank N.V., Agency Services
1325 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 11.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, three business days
after such communication is deposited in the mail, registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in this Section 11.8; PROVIDED THAT
any notice given pursuant to Section Two hereof shall be effective only upon
receipt.
SECTION 11.9. COUNTERPARTS. This Agreement may be executed in any number of
counterpart signature pages, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same instrument.
SECTION 11.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Borrower and its successors and assigns, and shall inure to the benefit of
each of the Banks and the benefit of their respective successors and assigns,
including any subsequent holder of any Note. The Borrower may not assign any of
its rights or obligations under any Credit Document without the written consent
of all of the Banks.
SECTION 11.11. PARTICIPANTS. Each Bank shall have the right at its own cost
to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made, Commitments held and/or
participations in Letters of Credit, by such Bank at any time and from time to
time; PROVIDED THAT (i) no such participation shall relieve any Bank of any of
its obligations under this Agreement, (ii) no such participant shall have any
rights under this Agreement except as provided in this Section 11.11, and (iii)
the Agent shall have no obligation or responsibility to such participant or
assignee. Any party to which such a participation has been granted shall have
the benefits of Section 2.12 and Section 9.3, but shall not be entitled to
receive
50
any greater payment under either such Section than the Bank granting such
participation would have been entitled to receive in connection with the rights
transferred. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; PROVIDED that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement that would (A) increase any Commitment of
such Bank if such increase would also increase the participant's obligations,
(B) forgive any amount of or postpone the date for payment of any principal of
or interest on any Loan or of any fee payable hereunder in which such
participant has an interest or (C) reduce the stated rate at which interest or
fees in which such participant has an interest accrue hereunder.
SECTION 11.12. ASSIGNMENT OF COMMITMENTS BY BANKS. (a) Each Bank shall have
the right at any time, with the written consent of the Borrower (except
Borrower's consent is not required during the occurrence and continuance of a
Default or an Event of Default) and Agent (which consent shall not be
unreasonably withheld), to assign all or any part of its Commitment (including
the same percentage of its Note, outstanding Loans and participations in Letter
of Credit) to one or more other Persons; PROVIDED THAT such assignment shall be
evidenced by an Assignment and Acceptance Agreement and shall be in an amount of
at least $5,000,000 or the entire Commitment of such Bank, and if such
assignment is not for such Bank's entire Commitment then such Bank's Commitment
after giving effect to such assignment shall not be less than $5,000,000; and
PROVIDED FURTHER that neither the consent of the Borrower nor of the Agent shall
be required for any Bank to assign all or part of its Commitment to any
Affiliate of the assigning Bank. Each such assignment shall set forth the
assignee's address for notices to be given under Section 11.8 hereof hereunder
and its designated Lending Office pursuant to Section 9.4 hereof. Upon any such
assignment, delivery to the Agent of an executed copy of such assignment
agreement and the forms referred to in Section 11.1 hereof, if applicable, and
the payment of a $2,500 recordation fee to the Agent, the assignee shall become
a Bank hereunder, all Loans, participations in Letters of Credit and the
Commitment it thereby holds shall be governed by all the terms and conditions
hereof and the Bank granting such assignment shall have its Commitment, and its
obligations and rights in connection therewith, reduced by the amount of such
assignment.
(b) Each Bank shall have the right to assign its rights hereunder and under
the Note evidencing its Loans to a federal reserve bank.
SECTION 11.13. AMENDMENTS. Any provision of the Credit Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Banks, and (c) if the rights or
duties of the Agent, the Documentation Agent, the Issuing Agent or the Swingline
Bank are affected thereby, the Agent, the Documentation Agent, the Issuing Agent
or the Swingline Bank, as appropriate; provided that:
(i) no amendment or waiver pursuant to this Section 11.13 shall (A)
increase or extend any Commitment of any Bank without the consent of such
Bank or (B) reduce the interest rate or Applicable Margin or the amount of
or postpone any fixed date for payment of any principal of or interest on
any Loan or Reimbursement Obligation or of
51
any fee payable hereunder without the consent of each Bank or (C) change
the definition of Borrowing Base; and
(ii) no amendment or waiver pursuant to this Section 11.13 shall,
unless signed by each Bank, change this Section 11.13, or the definition of
Required Banks, or affect the number of Banks required to take any action
under the Credit Documents.
SECTION 11.14. HEADINGS. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
SECTION 11.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The Borrower
agrees to pay all reasonable costs and expenses of the Agent and the
Documentation Agent in connection with the preparation and negotiation of the
Credit Documents, including without limitation, the reasonable fees and
disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel to the Agent, printing costs,
courier, telefax, telephone, publicity, transportation in connection with the
preparation and execution of the Credit Documents, and any amendment, waiver or
consent related hereto, whether or not the transactions contemplated herein are
consummated. The Borrower further agrees to indemnify each Bank, the Agent, the
Documentation Agent, the Issuing Agent and their respective directors, agents,
officers and employees, against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor, whether or not the indemnified Person is
a party thereto) which any of them may incur or reasonably pay arising out of or
relating to any Credit Document or any of the transactions contemplated thereby
or the direct or indirect application or proposed application of the proceeds of
any Loan or Letter of Credit, other than those which arise from the gross
negligence or willful misconduct of the party claiming indemnification. The
Borrower, upon demand by the Agent, the Documentation Agent, the Issuing Agent
or a Bank at any time, shall reimburse the Agent, the Documentation Agent, the
Issuing Agent or Bank for any reasonable legal or other expenses (including
allocable fees and expenses of in-house counsel) incurred in connection with
investigating or defending against any of the foregoing except if the same is
directly due to the gross negligence or willful misconduct of the party to be
indemnified.
SECTION 11.16. ENTIRE AGREEMENT. The Credit Documents and the Fee Letter
constitute the entire understanding of the parties thereto with respect to the
subject matter thereof and any prior or contemporaneous agreements, whether
written or oral, with respect thereto are superseded thereby.
SECTION 11.17. CONSTRUCTION. The parties hereto acknowledge and agree that
neither this Agreement nor the other Credit Documents shall be construed more
favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiation of this Agreement and the other Credit Documents.
SECTION 11.18. GOVERNING LAW. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois.
52
SECTION 11.19. SUBMISSIION TO JURISDICTION; WAIVER OF JURY TRIAL. THE
BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE
COURT FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE BORROWER AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their duly authorized
officers as of the day and year first above written. TRANSPORT CORPORATION OF
AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ABN AMRO BANK N.V., as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
54
Banks:
Address and Amount of Commitments: ABN AMRO BANK N.V., Chicago Branch, in
its individual capacity as a Bank and
as Issuing Agent
Address:
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Title: Senior Vice President
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Commitment: $20,000,000 -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Lending Offices: Title: Vice President
Base Rate Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Operations
Telephone:
Telecopy:
Eurodollar Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Operations
Telephone:
Telecopy:
55
Address and Amount of Commitments: FIRSTAR BANK OF MINNESOTA, N.A., in its
individual capacity as a Bank and as
Documentation Agent and Swingline Bank
Address:
By: /s/ ▇▇▇▇▇ ▇. Paris
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. Paris
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President
Attention: ▇▇▇▇▇ ▇. Paris, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $18,000,000
Lending Offices:
Base Rate Loans:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
56
Address and Amount of Commitments: U.S. BANK NATIONAL ASSOCIATION
Address:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Assistant Vice President
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, AVP
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $14,000,000
Lending Offices:
Base Rate Loans:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
57
Address and Amount of Commitments: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Address:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Title: Commercial Banking Officer
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $12,000,000
Lending Offices:
Base Rate Loans:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
58
Address and Amount of Commitments: FLEET NATIONAL BANK
Address:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $10,000,000
Lending Offices:
Base Rate Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
59
Address and Amount of Commitments: FIRST UNION NATIONAL BANK (CORESTATES)
Address:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $14,000,000
Lending Offices:
Base Rate Loans:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇
60
Address and Amount of Commitments: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Address:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
231 ▇. ▇▇▇▇▇▇▇ St. 6Q Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title: Vice President
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment: $12,000,000
Lending Offices:
Base Rate Loans:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Eurodollar Loans:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Operations - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
61
EXHIBIT A-1
REVOLVING NOTE
$------------------ ----------------, -----
FOR VALUE RECEIVED, the undersigned, Transport Corporation of America,
Inc., a Minnesota corporation (the "BORROWER"), promises to pay to the order of
_______________ ________________________ (the "BANK") on the Termination Date,
at the bank account of ABN AMRO Bank N.V. maintained in New York, New York and
specified to the Borrower in writing from time to time, in immediately available
funds, the principal sum of _________________________ ($_____________), or if
less, the aggregate unpaid principal amount of all Loans made by the Bank to the
Borrower under its Commitment pursuant to the Credit Agreement, with each
Eurodollar Loan to mature and become payable on the last day of the Interest
Period applicable thereto, but in no event later than the Termination Date, and
each Base Rate Loan to mature and become due and payable on the Termination Date
together with interest on the principal amount of each Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books and records or on a schedule attached to
this Note, which is a part hereof, each Loan made by it pursuant to its
Commitment, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Loan is a
Base Rate Loan, or a Eurodollar Loan and the interest rate and Interest Period
applicable thereto, provided that prior to the transfer of this Note all such
amounts shall be recorded on a schedule attached to this Note. The record
thereof, whether shown on such books and records or on a schedule to this Note,
shall be PRIMA FACIE evidence of the same; PROVIDED, HOWEVER, that the failure
of the Bank to record any of the foregoing or any error in any such record shall
not limit or otherwise affect the obligation of the Borrower to repay all Loans
made to it pursuant to the Credit Agreement together with accrued interest
thereon.
This Note is one of the Notes referred to in the Credit Agreement dated as
of August 13, 1998, among the Borrower, ABN AMRO Bank N.V., as Agent, and the
banks from time to time party thereto (as amended, the "CREDIT AGREEMENT"), and
this Note and the holder hereof are entitled to all the benefits provided for
thereby or referred to therein, to which Credit Agreement reference is hereby
made for a statement thereof. All defined terms used in this Note, except terms
otherwise defined herein, shall have the same meaning herein as in the Credit
Agreement. This Note shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on the terms and in the manner
provided in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
TRANSPORT CORPORATION OF AMERICA, INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
2
EXHIBIT A-2
SWINGLINE NOTE
$5,000,000.00 August 13, 1998
On the Termination Date, for value received, the undersigned, Transport
Corporation of America, Inc., a Minnesota corporation (the "BORROWER"), promises
to pay to the order of Firstar Bank of Minnesota, National Association (the
"BANK"), at the principal office of the Bank in St. ▇▇▇▇, Minnesota, the
principal sum of (i) Five Million and 00/100 Dollars ($5,000,000), or (ii) such
lesser amount as may at the time of the maturity hereof, whether by acceleration
or otherwise, be the aggregate unpaid principal amount of all Swingline Loans
owing from the Borrower to the Bank under the Maximum Swingline Amount provided
for in the Credit Agreement hereinafter mentioned.
This Note evidences Swingline Loans made and to be made to the Borrower by
the Bank under the Maximum Swingline Amount provided for under that certain
Credit Agreement dated as of August 13, 1998 by and among the Borrower, ABN AMRO
Bank N.V. individually and as Agent and certain banks which are or may from time
to time become parties thereto (as amended, the "CREDIT AGREEMENT"), and the
Borrower hereby promises to pay interest at the office specified above on each
Swingline Loan evidenced hereby at the rates and times specified therefor in the
Credit Agreement.
Each Swingline Loan made under the Maximum Swingline Amount provided for in
the Credit Agreement by the Bank to the Borrower against this Note, any
repayment of principal hereon and the interest rates applicable thereto shall be
endorsed by the holder hereof on the reverse side of this Note or recorded on
the books and records of the holder hereof (provided that such entries shall be
endorsed on the reverse side hereof prior to any negotiation hereof) and the
Borrower agrees that in any action or proceeding instituted to collect or
enforce collection of this Note, the entries so endorsed on the reverse side
hereof or recorded on the books and records of the Bank shall be PRIMA FACIE
evidence of the unpaid balance of this Note and the interest rates applicable
thereto.
This Note is issued by the Borrower under the terms and provisions of the
Credit Agreement, and this Note and the holder hereof are entitled to all of the
benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity as specified in the
Credit Agreement, and certain prepayments are required to be made hereon, all in
the events, on the terms and with the effects provided in the Credit Agreement.
All capitalized terms used herein without definition shall have the same meaning
herein as such terms have in the Credit Agreement.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
TRANSPORT CORPORATION OF AMERICA, INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
2
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE AGREEMENT
AGREEMENT dated as of _____________, _____ among [ASSIGNOR] (the
"ASSIGNOR"), [ASSIGNEE] (the "ASSIGNEE"), TRANSPORT CORPORATION OF AMERICA, INC.
(the "BORROWER") and ABN AMRO BANK N.V. as Agent (the "AGENT").
WITNESSETH
WHEREAS, this Assignment and Acceptance Agreement (the "AGREEMENT") relates
to the Credit Agreement dated as of August 13, 1998 among the Borrower, the
Assignor and the other Banks party thereto and the Agent (as the same has been
amended, extended, modified or restated, the "CREDIT AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower and to purchase a participation from
the Issuing Agent in Letters of Credit issued pursuant to Section 2.3 of the
Credit Agreement in an aggregate principal amount at any time outstanding not to
exceed $____________________;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $________________ are outstanding
at the date hereof;
WHEREAS, there is an aggregate face amount of Letters of Credit outstanding
of $____________ of which Assignor's aggregate Participating Interest equals
$______________ and an aggregate principal amount of $________________
Reimbursement Obligations outstanding at the date hereof owing to the Assignor
by the Borrower under the Credit Agreement; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $______________________ (the
"ASSIGNED AMOUNT"), together with a corresponding portion of its outstanding
Loans, Reimbursement Obligations outstanding at the date hereof owing to the
Assignor by the Borrower and its participation obligation in connection with
outstanding Letters of Credit and the Assignee proposes to accept assignment of
such rights and assume the corresponding obligations from the Assignor on such
terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Loans made by the Assignor, Reimbursement Obligations owing to the Assignor and
the corresponding portion of the Assignors participation obligation in
connection with outstanding Letters of Credit. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Borrower and the Agent and the payment
of the amounts specified in Section 6 hereof (a) the Assignee shall, as of the
date hereof, succeed to the rights and be obligated to perform the obligations
of a Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (b) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
represents and warrants that (a) the Assignor has full power and authority, and
has taken all action necessary to execute and deliver this Assignment Agreement
and any other documents required or permitted to be executed or delivered by it
in connection with this Assignment Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Assignment
Agreement and no governmental authorizations or other authorizations are
required in connection therewith and (b) this Assignment Agreement constitutes
the legal, valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with its terms.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
represents and warrants that (a) the Assignee has full power and authority, and
has taken all action necessary to execute and deliver this Assignment Agreement
and any other documents required or permitted to be executed or delivered by it
in connection with this Assignment Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Assignment
Agreement and no governmental authorizations or other authorizations are
required in connection therewith and (b) this Assignment Agreement constitutes
the legal, valid and binding obligation of the Assignee, enforceable against the
Assignee in accordance with its terms. In addition, the Assignee (i) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the most recent financial statements
delivered by the Borrower pursuant thereto and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under the Credit Agreement and
the other Credit Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement and the other Credit Documents are required to
be performed by it as a Bank; (iv) specifies as its address for notices and its
Lending
2
Office the applicable offices indicated beside its signature below; and (vi)
represents that it is either (y) a corporation organized under the laws of the
United States or a state thereof or (z) entitled to complete exemption from
United States withholding tax imposed on or with respect to any payments,
including fees, to be made to it pursuant to the Credit Agreement (A) under an
applicable provision of a tax convention to which the United States is a party
of (B) because it is acting through a branch, agency or office in the United
States and any payment to be received by it under the Credit Agreement and the
other Credit Documents is effectively connected with a trade or business in the
United States.
SECTION 5. DELIVERY OF RELATED DOCUMENTS AND FURTHER ASSURANCES. The
Assignor and the Assignee hereby agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment Agreement.
SECTION 6. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in immediately available funds the amount heretofore agreed between
them. It is understood that fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the account
of such other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party unless otherwise provided in the
Credit Agreement.
SECTION 7. CONSENT OF THE BORROWER AND THE AGENT. This Agreement is
conditioned upon the consent of the Borrower (except Borrower's consent is not
required during the occurrence and continuance of a Default or Event of Default)
and the Agent pursuant to Section 11.12 of the Credit Agreement. The execution
of this Agreement by the Borrower and the Agent is evidence of such consent. The
Borrower agrees to execute and deliver a Note (a) in the amount of the Assigned
Amount payable to the order of the Assignee to evidence the assignment and
assumption provided for herein and (b) in the amount of the Assignor's remaining
Commitment, if less than all of the Assignor's Commitment is being assigned
hereunder, payable to the order of the Assignor. Upon receipt of its new Note
and/or confirmation that the Assignee has received its Note, as applicable, the
Assignor shall immediately return its old Note marked canceled.
SECTION 8. NON-RELIANCE ON ASSIGNOR. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
3
SECTION 9. ADMINISTRATION FEE. The Assignee agrees to pay to the Agent upon
the execution of this Assignment Agreement a $2,500 recordation fee in
accordance with Section 11.12 of the Credit Agreement.
SECTION 10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois.
SECTION 11. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:______________________________________
Title:
Address for notices: [ASSIGNEE]
By:______________________________________
Title:
Telephone:
Telecopy:
Lending Offices:
Base Rate Loans:
Eurodollar Loans:
TRANSPORT CORPORATION OF AMERICA, INC.
By:______________________________________
Title:
ABN AMRO Bank N.V., as Agent
By:______________________________________
Title:
By:______________________________________
Title:
5
