<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________________ to _____________________
Commission file number 33-99716
AMERITRUCK DISTRIBUTION CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2619368
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
City Center Tower II, Suite 1101, 76102
301 Commerce Street, Fort Worth, Texas (Zip Code)
(Address of principal executive offices)
(817) 332-6020
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [X] Yes [ ] No
<PAGE>
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
TABLE OF CONTENTS
Part I FINANCIAL INFORMATION Page
----
Item 1. Financial Statements 1
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations 10
Part II OTHER INFORMATION
Item 1. Legal Proceedings 18
Item 6. Exhibits and Reports on Form 8-K 18
i
<PAGE>
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
----------------- ------------------
1997* 1996* 1997* 1996*
------- ------- -------- -------
<S> <C> <C> <C> <C>
Operating revenue $60,287 $53,673 $115,955 $98,322
------- ------- -------- -------
Operating expenses:
Salaries, wages and fringe benefits 20,314 17,685 39,530 32,125
Purchased transportation 14,635 13,889 27,644 24,072
Fuel and fuel taxes 7,453 6,401 14,938 12,015
Operating supplies and expenses 4,016 3,472 7,627 6,474
Depreciation and amortization of capital leases 4,014 3,233 7,732 6,220
Claims and insurance 2,209 2,026 4,527 3,724
Operating taxes and licenses 1,383 1,163 2,666 2,165
General supplies and expenses 2,874 2,148 5,486 3,651
Building and office equipment rents 471 372 933 686
Amortization of intangibles 372 265 665 498
Gain on disposal of property and equipment (106) (68) (60) (255)
Restructuring charge 7,184 - 7,184 -
------- ------- -------- -------
Total operating expenses 64,819 50,586 118,872 91,375
------- ------- -------- -------
Operating income (loss) (4,532) 3,087 (2,917) 6,947
Interest expense 4,778 3,955 9,272 7,643
Amortization of financing fees 147 120 271 235
Other income, net (83) (135) (166) (290)
------- ------- -------- -------
Loss before income taxes and extraordinary items (9,374) (853) (12,294) (641)
Income taxes benefit (2,889) (380) (4,057) (287)
------- ------- -------- -------
Loss before extraordinary items (6,485) (473) (8,237) (354)
Extraordinary items, loss on early retirement of debt,
net of taxes of $120 and $154, respectively (243) - (243) (230)
------- ------- ------- -------
Net loss $(6,728) $ (473) $ (8,480) $ (584)
======= ======= ======== =======
</TABLE>
* Comparisons between periods are affected by acquisitions - see Note 2.
See accompanying notes to consolidated financial statements.
1
<PAGE>
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars and shares in thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1997* 1996*
----------- -----------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ - $ 734
Accounts and notes receivable, net 38,207 29,001
Prepaid expenses 11,513 7,735
Repair parts and supplies 2,109 1,092
Deferred income taxes 1,467 1,467
Assets held for sale 6,650 -
Other current assets 2,081 1,388
-------- --------
Total current assets 62,027 41,417
Property and equipment, net 130,523 103,801
Goodwill, net 58,590 39,399
Other assets 10,319 8,031
-------- --------
Total assets $261,459 $192,648
======== ========
LIABILITIES AND STOCKHOLDERS' DEFICIENCY
Current liabilities:
Current portion of long-term debt $ 27,314 $ 11,988
Accounts payable and accrued expenses 24,548 13,557
Claims and insurance accruals 2,720 1,684
Other current liabilities 641 593
-------- --------
Total current liabilities 55,223 27,822
Long-term debt 202,468 157,338
Deferred income taxes 4,476 8,571
Other liabilities 6,117 2,741
-------- --------
Total liabilities 268,284 196,472
-------- --------
Commitments and contingencies (Note 5)
Redeemable preferred stock 3,000 -
Stockholders' equity (deficiency):
Common stock; $.01 par value; 4,230
shares and 3,503 shares issued
and outstanding, respectively 42 35
Additional paid-in capital 2,891 898
Loans to stockholders (1,401) (1,880)
Accumulated deficit (11,357) (2,877)
-------- --------
Total stockholders'
deficiency (9,825) (3,824)
-------- --------
Total liabilities and
stockholders' deficiency $261,459 $192,648
======== ========
</TABLE>
* Comparisons between periods are affected by acquisitions - See Note 2
See accompanying notes to consolidated financial statements.
2
<PAGE>
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
-----------------
1997* 1996*
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss $ (8,480) $ (584)
Adjustments to reconcile net loss to
net cash used in operating activities:
Depreciation and amortization of
capital leases 7,732 6,220
Amortization of intangibles 665 498
Gain on disposal of property and
equipment (60) (255)
Benefit for deferred income taxes (4,057) (287)
Extraordinary items, loss on early
retirement of debt, net of taxes 243 230
Restructuring charge 7,184 -
Restructuring costs paid (1,043) -
Other, net (1,744) (446)
Changes in current assets and
liabilities, net of effects
from acquisitions:
Accounts and notes receivable, net (1,939) (8,588)
Prepaid expenses (232) (1,507)
Repair parts and supplies (503) (25)
Other current assets (32) (7)
Accounts payable and accrued expenses (11) (973)
Claims and insurance accruals (712) 988
Other current liabilities (137) 76
-------- --------
Net cash used in operating activities (3,126) (4,660)
-------- --------
INVESTING ACTIVITIES:
Purchase of Freymiller Assets, net of
liabilities assumed - (18,821)
Payments for acquisitions (17,139) -
Purchase of property and equipment (2,747) (17,388)
Proceeds from sale of property and
equipment 4,257 3,162
Other, net 317 528
-------- --------
Net cash used in investing activities (15,312) (32,519)
-------- --------
FINANCING ACTIVITIES:
Revolving line of credit, net 19,524 28,596
Proceeds from issuance of long-term
debt - 13,365
Repayment of long-term debt (6,525) (15,124)
Proceeds from issuance of redeemable
preferred stock 3,000 -
Proceeds from issuance of common stock 2,000 -
Other, net (295) (874)
-------- --------
Net cash provided by financing
activities 17,704 25,963
-------- --------
Net decrease in cash and cash
equivalents (734) (11,216)
Cash and cash equivalents, beginning of
period 734 15,286
-------- --------
Cash and cash equivalents, end of period $ - $ 4,070
======== ========
Supplemental cash flow information:
Cash paid during the period for:
Interest $ 9,035 $ 7,650
Income taxes 39 97
Property and equipment financed
through capital lease obligations
and other debt 1,241 5,786
Noncash consideration for acquisitions 1,000 -
</TABLE>
* Comparisons between periods are affected by acquisitions - see Note 2.
See accompanying notes to consolidated financial statements.
3
<PAGE>
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. ACCOUNTING POLICIES AND INTERIM RESULTS
The 1996 Annual Report on Form 10-K for AmeriTruck Distribution Corp.
("AmeriTruck" or the "Company") and its wholly-owned subsidiaries includes
a summary of significant accounting policies and should be read in
conjunction with this Form 10-Q. The statements for the periods presented
are condensed and do not contain all information required by generally
accepted accounting principles to be included in a full set of financial
statements. In the opinion of management, all adjustments (consisting of
only normal recurring adjustments) necessary to present fairly the
financial position as of June 30, 1997 and December 31, 1996, and the
results of operations for the three-month and six-month periods ended June
30, 1997 and 1996, and cash flows for the six-month periods ended June 30,
1997 and 1996 have been included. The results of operations for any
interim period are not necessarily indicative of the results of operations
to be expected for the entire year. Certain prior year data has been
reclassified to conform to current year presentation.
Separate financial statements of the Company's subsidiaries are not
included because (a) all of the Company's direct and indirect subsidiaries
have guaranteed the Company's obligations under the Indenture, dated as of
November 15, 1995 (the "Indenture"), among the Company, such subsidiaries
(in such capacity, the "Guarantors"), and The Bank of New York, as Trustee,
(b) the Guarantors have fully and unconditionally guaranteed the 12 1/4%
Senior Subordinated Notes due 2005 ("Subordinated Notes") issued under the
Indenture on a joint and several basis, (c) the Company is a holding
company with no independent assets or operations other than its investments
in the Guarantors and (d) the separate financial statements and other
disclosures concerning the Guarantors are not presented because management
has determined that they would not be material.
2. ACQUISITIONS
AmeriTruck was formed in August 1995 to effect the combination of six
regional trucking lines in November 1995: W&L Services Corp. ("W&L"),
Thompson Bros., Inc. ("TBI"), J.C. Bangerter & Sons, Inc. ("Bangerter"),
CMS Transportation Services, Inc. and certain related companies, Scales
Transport Corporation and a certain related company ("Scales") and C.B.S.
Express, Inc. ("CBS"). Prior to these acquisitions, W&L and TBI had
certain common stockholders who controlled approximately 87 percent of the
common equity of W&L and TBI on a combined basis. In addition, these
stockholders controlled approximately 67 percent of the outstanding common
stock of AmeriTruck after the consummation of these acquisitions.
Therefore, these common stockholders of W&L and TBI have been treated as
the acquirer for purposes of accounting for these acquisitions.
In June 1997, AmeriTruck purchased all the outstanding stock of Tran-
Star, Inc. ("Tran-Star") which was owned by Allways Services, Inc. The
purchase price of $2.6 million included $1.6 million in cash and a $1
million note payable.
Tran-Star is a carrier of refrigerated and non-refrigerated products.
Headquartered in Waupaca, Wisconsin, Tran-Star operates primarily between
the upper midwestern U.S. and the northeast and southeast, with terminals
in Etters and Wyalusing Pennsylvania. The Company is currently coordinating
Tran-Star's activities with those of the other carriers within the
refrigerated group. See Notes to Consolidated Financial Statements - Note
3. Restructuring Charge.
In May 1997, AmeriTruck purchased the capital stock of Monfort
Transportation Company ("Monfort") and Lynn Transportation Co., Inc.
("Lynn"), both subsidiaries of ConAgra, Inc. ("ConAgra"). The purchase
price of $15 million was paid in cash.
4
<PAGE>
Monfort and Lynn operated primarily as in-house carriers for the red-meat
division of Monfort, Inc., a ConAgra subsidiary, and the poultry and turkey
divisions of ConAgra Poultry Company, a ConAgra subsidiary. The Company
entered into a Transportation Services Agreement with subsidiaries of
ConAgra. The ConAgra subsidiaries will tender freight from Monfort, Inc.'s
red-meat division, ConAgra Poultry Company's poultry and turkey divisions
and Swift-Ekrich, Inc.'s processed meats division in designated lanes and
minimum annual volumes. The term of this agreement is four years, with
pricing fixed for the first two years and adjusted prices in the third and
fourth years. The Company will coordinate Monfort and Lynn activities with
those of the refrigerated group. See Notes to Consolidated Financial
Statements--Note 3. Restructuring Charge.
The Tran-Star, Monfort and Lynn acquisitions were accounted for using the
purchase method of accounting. Accordingly, the purchase price was
allocated to the assets acquired and liabilities assumed based on their
estimated fair values at the date of acquisition. The total purchase price
including cash, note payable, miscellaneous acquisition costs and
liabilities assumed was $42.0 million for Tran-Star and $35.2 million for
Monfort and Lynn. The excess of the purchase price over fair values of the
net assets acquired has been recorded as goodwill. The Tran-Star net
assets acquired were as follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
Accounts receivable, net $ 6,653
Property and equipment, net 25,315
Goodwill 7,007
Other assets 2,981
Long-term debt (28,916)
Other liabilities (10,270)
--------
Net assets acquired $ 2,770
========
</TABLE>
The Monfort and Lynn net assets acquired were as follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
Accounts receivable, net $ 3,805
Property and equipment, net 15,138
Goodwill 12,209
Other assets 4,087
Long-term debt (14,201)
Other liabilities (5,669)
--------
Net assets acquired $ 15,369
========
</TABLE>
During the third quarter of 1996, Ameritruck purchased all of the
outstanding stock of KTL, Inc ("KTL") for a purchase price of $8.1 million in
cash and 225,000 shares of Class A common stock of AmeriTruck valued at
$900,000.
KTL is a trucking company founded in 1983 which specializes in the
truckload transportation of refrigerated commodities and less-than-truckload
shipments requiring expedited, timed-delivery services. At the time of purchase,
KTL operated approximately 140 tractors and 300 trailers and employed
approximately 300 persons, of whom 240 were drivers and many of whom operated
as two-driver teams.
The KTL acquisition was accounted for using the purchase method of
accounting. Accordingly, the purchase price was allocated to the assets acquired
and liabilities assumed based on their estimated fair values at the date of
acquisition. The total purchase price including cash, common stock,
miscellaneous acquisition costs and liabilities assumed was $21.9 million. The
excess of the purchase price over the fair values of the net assets acquired has
been recorded as goodwill.
The following unaudited pro forma operating results of the Company for
the six months ended June 30, 1997 and 1996, reflect the Monfort, Lynn and
Tran-Star acquisitions as if they had occurred on January 1, 1996.
<TABLE>
<CAPTION>
Six Months Ended
June 30,
-------------------
1997 1996
--------- --------
<S> <C> <C>
(In thousands)
Operating revenue $195,131 $192,472
Operating income (loss) (1,209) 13,249
Income (loss) before extraordinary items (9,150) 1,687
Net income (loss) (9,393) 1,457
</TABLE>
Pro forma operating income during 1997 decreased partially as a result of
the restructuring charge of $7.2 million taken during the second quarter of
1997 in connection with these acquisitions and the reorganization of the
refrigerated carrier group.
The profits of the companies that make up the refrigerated carrier group
were negatively impacted by market pressures on pricing. Management
believes that the freight networks of these companies, independently
operated, did not have the critical mass necessary to compete efficiently
in the changed refrigerated markets. To address this issue, the Company is
integrating these operations into one network. The traffic lanes awarded by
ConAgra subsidiaries in the Transportation Services Agreement, representing
approximately $25 million of additional annual revenue in excess of the
amount provided by ConAgra historically, were selected because of their
contribution to an efficient nationwide refrigerated freight network.
Furthermore, ConAgra, which represents more than 50 percent of Monfort's
revenue, is contractually committed to restore business volume and rates
paid Monfort to the approximate levels that existed during the first half
of 1996.
In addition, Tran-Star's operating income declined by $2.5 million as it
experienced deteriorating operating results. Included in operating expenses
for the first half of 1997 were merger related expenses of approximately
$700,000 and increased maintenance expense of approximately $500,000
related to deferral of its normal tractor replacement cycle. The Company
will take delivery of tractors sufficient to replace half of Tran-Star's
fleet in the remaining months of 1997.
These pro forma results have been prepared for comparative purposes only
and include pro forma adjustments for conformed depreciation lives and
salvage values and certain other adjustments including adjustment of the
effective tax rate to the expected rate of AmeriTruck. They are not
necessarily indicative of the results of operations that might have
occurred had the acquisitions actually taken place on January 1, 1996 or of
future results of operations of the consolidated entities.
5
<PAGE>
In February 1996, the Company, through CMS Transportation Services,
Inc., purchased certain assets of Freymiller Trucking Inc. ("Freymiller")
in order to supplement its existing temperature-controlled trucking
business. Freymiller had been the subject of a Chapter 11 bankruptcy
proceeding in Oklahoma. CMS purchased certain specific automobiles,
computer hardware and software, furniture and fixtures, rights to the trade
name "Freymiller", existing spare parts, tires and fuel, rights under
certain leases, certain leasehold improvements and shop equipment and
installment sales contracts relating to tractors and trailers sold by
Freymiller out of the ordinary course of business (with all of the
foregoing referred to as the "Freymiller Assets"). The Company also
negotiated with Freymiller's lenders and lessors to purchase approximately
185 tractors and 309 trailers, previously operated by Freymiller, for
approximately $14 million. An additional 80 trailers were leased for a
seven-year period. In exchange for the Freymiller Assets, the Company paid
approximately $2.7 million in cash at closing and assumed approximately $2
million in existing equipment financing. In addition, the Company assumed
a lease for Freymiller's maintenance facility in Oklahoma City and certain
routine executory business contracts. Except as provided above, the
Company did not assume any obligations or liabilities of Freymiller.
In connection with these transactions, the Company purchased real
property in Oklahoma City, Oklahoma from Freymiller's Chairman of the
Board, President and Chief Executive Officer for approximately $1.5 million
in cash.
In April 1996, CMS Transportation Services, Inc. changed its corporate
name to "AmeriTruck Refrigerated Transport, Inc." ("ART"), and the
distribution functions previously conducted under the corporate name "CMS
Transportation Services, Inc." were continued as a division of ART. In
addition, in June 1996, the business operations of CBS, a general freight
carrier (which then operated under the name "CBS Express, Inc."), were
transferred to Scales. In December 1996, the distribution functions of the
CMS Transportation division of ART were transferred to CBS and its name was
changed to "CMS Transportation Services, Inc." ("CMS"). The CMS
Transportation distribution business currently operated by CMS is sometimes
referred to below as the "CMS distribution business" and the business
operations previously operated under the name CBS Express, Inc. and
transferred to Scales are sometimes referred to as the "CBS Express
business."
The Company's principal subsidiaries currently are W&L, TBI, Bangerter,
CMS, Scales, ART, KTL, AmeriTruck Logistics Services, Inc. ("ALS", formed
in January 1997 to broker freight), Monfort, Lynn and Tran-Star (the
"Operating Companies"). All significant intercompany accounts and
transactions have been eliminated.
6
<PAGE>
3. RESTRUCTURING CHARGE
With the addition of Tran-Star, Monfort and Lynn to the AmeriTruck
organization, the Company plans to organize into three operating groups to
serve its customers. The AmeriTruck Refrigerated Carrier Group is being
formed to offer nationwide, truckload refrigerated service. This new
company will combine the resources of TBI, Bangerter, ART, Tran-Star,
Monfort and Lynn. The AmeriTruck Specialized Carrier Group is being formed
to service customers with unique needs in transportation and distribution.
This group includes W&L, the largest U.S. hauler of new furniture, CMS,
serving the medical distribution industry, Scales, offering premium,
short-haul dry van service, and ALS a freight property broker. The
AmeriTruck Regional LTL Group offers less-than-truckload, refrigerated and
non-refrigerated service. The lead carrier in this group is KTL, offering
service to and from the Florida market.
In connection with the above reorganization and to eliminate the
duplicate facility and employee costs related to the recently acquired
entities, the Company announced a plan in the second quarter of 1997 to
restructure its refrigerated carrier group. The Company recorded $7.2
million in restructuring costs, which included $2.3 million for employee
termination costs, $4.2 million for duplicate facility costs, including the
impairment of certain long-lived assets and $650,000 of other costs. The
Company may incur additional pre-tax restructuring costs during the second
half of 1997. As of June 30, 1997, the Company has liabilities of $2.4
million related to the restructuring charge. In addition, the Company has
transfered $6.7 million of property and equipment to assets, held for sale.
4. LONG-TERM DEBT
FINOVA Credit Facility
In May 1997, the Company and its subsidiaries entered into a Loan and
Security Agreement and related documents (collectively, the "FINOVA Credit
Facility") with FINOVA Capital Corporation ("FINOVA") pursuant to which
FINOVA has agreed to provide a $60 million credit facility to the Company.
The initial borrowings under the FINOVA Credit Facility were used to
refinance the Company's prior credit facility with NationsBank of Texas,
N.A. Additional borrowings under the FINOVA Credit Facility can be used for
acquisitions, capital expenditures, letters of credit, working capital and
general corporate purposes. Pursuant to the FINOVA Credit Facility, FINOVA
has agreed to provide a $60 million revolving credit facility, with a $10
million sublimit for the issuance of letters of credit, maturing on May 5,
2000 (subject to additional one-year renewal periods at the discretion of
FINOVA). The FINOVA Credit Facility is also subject to a borrowing base
consisting of eligible receivables and eligible revenue equipment.
Currently, the Company's borrowing base supports borrowings of
approximately $54 million. Revolving credit loans under the FINOVA Credit
Facility bear interest at a per annum rate equal to either the prime rate
plus a margin equal to 0.75 percent of the rate of interest offered in the
London interbank market plus a margin equal to 2.75 percent. The Company
also pays a monthly unused facility fee and a monthly collateral monitoring
fee in connection with the FINOVA Credit Facility. Revolving credit loans
under the FINOVA Credit Facility were $44.0 million at June 30, 1997 and
were primarily used for refinancing borrowings under the Company's prior
facility with NationsBank of Texas, N.A. and to fund the 1997 acquisitions.
Available borrowings were $5.6 million at June 30, 1997, as there were $4.3
million in letters of credit outstanding.
The Company's obligations under the FINOVA Credit Facility are
collateralized by substantially all of the unencumbered assets of the
Company and its subsidiaries and are guaranteed in full by each of the
Operating Companies. For purposes of the Indenture, the borrowings under
the FINOVA Credit Facility constitute Senior Indebtedness of the Company
and Guarantor Senior Indebtedness of the Operating Companies.
The FINOVA Credit Facility contains customary representations and
warranties and events of default and requires compliance with a number of
affirmative, negative and financial covenants, including a limitation on
the incurrence of indebtedness and a requirement that the Company maintain
a specified Current Ratio, Net Worth, Debt Service Coverage Ratio and
Operating Ratio.
7
<PAGE>
Volvo Credit Facilities
In February 1996, the Company and the Operating Companies entered into a
Loan and Security Agreement, a Financing Integration Agreement and related
documents (collectively, the "Volvo Credit Facilities") with Volvo Truck
Finance North America, Inc. ("Volvo") pursuant to which Volvo has
committed, subject to the terms and conditions of the Volvo Credit
Facilities, to provide (i) a $10 million line of credit facility (the
"Volvo Line of Credit") to the Company and the Operating Companies, and
(ii) up to $28 million in purchase money or lease financing (the "Equipment
Financing Facility") in connection with the Operating Companies'
acquisition of new tractors and trailers manufactured by Volvo GM Heavy
Truck Corporation. Borrowings under the Volvo Line of Credit are secured by
certain specified tractors and trailers of the Company and the Operating
Companies (which must have a value equal to at least 1.75 times the
outstanding amount of borrowings under the Volvo Line of Credit) and are
guaranteed in full by each of the Operating Companies. As of June 30, 1997,
the Operating Companies have pledged Collateral which provides for a $9.5
million line of credit. Borrowings under the Volvo Line of Credit bear
interest at the prime rate. The Volvo Line of Credit contains customary
representations and warranties and events of default and requires
compliance with a number of affirmative and negative covenants, including a
profitability requirement and a coverage ratio.
The Equipment Financing Facility is being provided by Volvo in
connection with the Operating Companies' agreement to purchase 400 new
trucks manufactured by Volvo GM Heavy Truck Corporation between March 1,
1996 and June 30, 1997. The borrowings under the Equipment Financing
Facility are collateralized by the specific trucks being financed and are
guaranteed in full by each of the Operating Companies. Borrowings under
this facility bear interest at the prime rate.
At June 30, 1997, borrowings outstanding under the Volvo Line of Credit
were $9.4 million with available borrowings of $100,000. The outstanding
debt balance under the Equipment Financing Facility was $3.7 million at
June 30, 1997; however, available financing under this facility is less
than $4 million as financing was also obtained through operating leases.
The Equipment Financing Facility contains customary representations
and warranties, covenants and events of default. For purposes of the
Indenture, the borrowings under the Volvo Credit Facilities constitute
Senior Indebtedness of the Company and Guarantor Senior Indebtedness of the
Operating Companies.
5. CONTINGENCIES
Under the requirements of the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980 and certain other laws,
the Company is potentially liable for the cost of clean-up of various
contaminated sites identified by the U.S. Environmental Protection Agency
("EPA") and other agencies. The Company cannot predict with any certainty
that it will not in the future incur liability with respect to
environmental compliance or liability associated with the contamination of
sites owned or operated by the Company and its subsidiaries, sites formerly
owned or operated by the Company and its subsidiaries (including
contamination caused by prior owners and operators of such sites), or off-
site disposal of hazardous material or waste that could have a material
adverse effect on the Company's consolidated financial condition,
operations or liquidity.
The Company and the Operating Companies are a party to litigation
incidental to its business, primarily involving claims for personal injury
or property damages incurred in the transportation of freight. The Company
is not aware of any claims or threatened litigation that might have a
material adverse effect on the Company's Consolidated financial position,
operations or liquidity.
8
<PAGE>
6. OTHER INCOME, NET
Other (income) expenses consist of the following (in thousands):
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Interest income $ (85) $(135) $(127) $(286)
Miscellaneous, net 2 - (39) (4)
----- ----- ----- -----
$ (83) $(135) $(166) $(290)
===== ===== ===== =====
</TABLE>
7. REDEEMABLE PREFERRED AND COMMON STOCK
In conjunction with the 1997 acquisitions of Monfort, Lynn and Tran-Star,
the Company issued 3,000 shares of Series A Redeemable Preferred Stock and
727,272 shares of Common Stock with warrants to certain existing
stockholders, directors and executive officers of the Company. The
Preferred Stock was issued at a $1,000 per share for a total purchase price
of $3.0 million. Dividends on each share of the Preferred Stock accrue
cumulative on a daily basis at a rate of 5 percent per annum on the
liquidation value thereof, provided that the rate will increase to 10% per
annum upon the earlier of the date of a disposition event and November 15,
1998. The dividends are payable in kind on the last day of each fiscal
quarter. The Company will redeem all of the Series A Preferred Stock
outstanding on December 31, 2005 at a liquidation value of $1,000 per
share. The Common Stock, along with detached warrants for 1,500,000 shares
of Common Stock, was issued for $2.75 per share ($.01 par value) for a
total purchase price of $2.0 million. The detached warrants can be
exercised any time prior to May 23, 2007 at $2.00 per share.
8. SUBSEQUENT EVENT
Transamerica Lease Facility
In July 1997, the Company received a commitment letter from Transamerica
Business Credit Corporation ("TBCC") to provide the Company and its
subsidiaries with an arrangement to lease up to 300 new 1998 model tractors
(the "TBCC Lease"). The line under the TBCC Lease will not exceed $22.8
million based upon a per vehicle cost of $76,000, subject to an unused line
fee of one percent if the Company leases all 300 of the new trucks but does
not use the entire line. The lease term is 48 months and is subject to a
terminal rental adjustment clause at the end of the term. The Company will
account for this lease as an operating lease for accounting purposes.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following analysis should be read in conjunction with the consolidated
financial statements included in Item 1 - "Financial Statements." Results for
the three and six months ended June 30, 1996 include W&L, TBI, Bangerter, the
CMS distribution business and Scales (including the CBS Express business) for
the entire periods and the results of ART, as it relates to the Freymiller
Assets, since February 5, 1996. Results for the three and six months ended June
30, 1997 for the Company include the results of W&L, TBI, Bangerter, the CMS
distribution business, Scales (including the CBS Express business), ART, ALS and
KTL for the entire 1997 periods. The results for Monfort and Lynn have been
included for one month in 1997.
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1997 COMPARED WITH THREE MONTHS ENDED JUNE 30, 1996
Net Loss
For the quarter ended June 30,1997, the Company had a net loss of $6.7
million compared with a net loss of $473,000 for the same period in 1996.
Results for the second quarter of 1997 were negatively impacted primarily by a
$7.2 million charge to restructure the Company's refrigerated carrier group and
an increase in interest costs. The net loss in 1997 includes an extraordinary
item, loss on early retirement of debt of $243,000, net of taxes. The loss
related primarily to the write off of the deferred financing costs
with respect to the Company's prior senior credit facility with NationsBank.
Revenues
Second quarter revenues for 1997 improved $6.6 million, compared with the
second quarter of 1996. KTL generated $8.0 million and Monfort and Lynn
generated $5.4 million of revenue in 1997; however, a decline in volumes at ART
partially offset the additional revenue generated by the acquisitions.
Expenses
The following table sets forth operating expenses as a percentage of
revenue and the related variance from 1997 to 1996.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JUNE 30, VARIANCE
------------------ INCREASE
1997 1996 (DECREASE)
--------- ------- ----------
<S> <C> <C> <C>
Salaries, wages and fringe benefits 33.7% 32.9% 0.8%
Purchased transportation 24.2 25.9 (1.7)
Fuel and fuel taxes 12.3 11.9 0.4
Operating supplies and expenses 6.7 6.5 0.2
Depreciation and amortization of
capital leases 6.7 6.0 0.7
Claims and insurance 3.7 3.8 (0.1)
Operating taxes and licenses 2.3 2.2 0.1
General supplies and expenses 4.8 4.0 0.8
Building and office equipment rents 0.8 0.7 0.1
Amortization of intangibles 0.6 0.5 0.1
Gain on disposal of property and
equipment (0.2) (0.1) (0.1)
Restructuring charge 11.9 - 11.9
----- ---- ----
Operating Ratio 107.5% 94.3% 13.2%
===== ==== ====
</TABLE>
Salaries, wages and fringe benefits for the second quarter of 1997
increased 0.8 percentage points as a percent of revenue. This increase is
primarily due to an increase in driver wages, which replaced driver per diems at
three of the Operating Companies as well as employer health insurance premium
10
<PAGE>
contributions at another Operating Company. The increase is also due to an
increase in salaries at the corporate location as a result of continued
development of support staff necessary for the acquired companies.
Purchased transportation costs decreased 1.7 percentage points as a percent
of revenue when compared with the second quarter of 1996. The decrease is due
primarily to the acquisition of KTL in the third quarter of 1996, which has a
company-driver work force.
Fuel and fuel taxes during the second quarter of 1997 increased 0.4
percentage points as a percent of revenue. This increase is due to the
acquisition of KTL in the third quarter of 1996, which has a company-driver
work force thereby increasing the percentage of company drivers versus owner
operators in the overall fleet. The impact of this increase from KTL was
partially offset by lower fuel prices during the second quarter of 1997.
Depreciation and amortization of capital leases increased as a percent of
revenue by 0.7 percentage points when compared with the prior year quarter
primarily due to the purchase of new tractors and trailers during 1996. The
Company began taking deliveries of the new Volvo tractors in May 1996. The
increase is also attributable to the purchase of new computer equipment used in
the consolidation of the Company's computer systems.
General supplies and expenses for the second quarter of 1997 increased 0.8
percentage points as a percent of revenue when compared with the same period in
1996. This increase is due to increased professional and consulting fees
resulting from increased driver recruitment and advertising and added costs for
system and mobile communications, which should be partially offset in the future
by improved operating efficiencies.
In connection with AmeriTruck's plans to organize into three operating
groups and to eliminate the duplicate facility and employee costs related to the
recently acquired entities, the Company announced a plan in the second quarter
of 1997 to restructure its refrigerated carrier group. The Company recorded
$7.2 million in restructuring costs, which included $2.3 million for employee
termination costs, $4.2 million for duplicate facility costs, including the
impairment of certain long-lived assets, and $650,000 of other costs. The
Company may incur additional pre-tax restructuring costs during the second half
of 1997. See Notes to Consolidated Financial Statements-Note 3. Restructuring
Charge.
Interest expense increased $823,000 for the quarter ended June 30, 1997
over the same period in 1996. Interest on the revolving lines of credit, which
were used to fund acquisitions, were the primary contributors to this increase.
SIX MONTHS ENDED JUNE 30, 1997 COMPARED WITH SIX MONTHS ENDED JUNE 30, 1996
Net Loss
For the six months ended June 30,1997, the Company had a net loss of $8.5
million compared with a net loss of $584,000 for the same period in 1996.
Results for 1997 were negatively impacted primarily by a charge of $7.2 million
to restructure the Company's refrigerated carrier group and an increase in
interest costs. The net loss in both 1997 and 1996 includes extraordinary items,
loss on early retirement of debt, of $243,000 and $230,000, net of taxes. These
losses related to the write off of deferred financing costs in 1997 with respect
to the Company's prior senior credit facility with NationsBank and to early
retirements related to the use of proceeds from the Company's Subordinated Notes
offering in 1995, which were used to retire debt in 1996.
Revenues
Revenues for the first six months of 1997 improved $17.6 million, compared
with the first six months of 1996. This increase is due to 1997 revenue of $15.4
million from the KTL acquisition and $5.4
11
<PAGE>
million from the Monfort and Lynn acquisitions. This increase was partially
offset by a decline in volumes at ART.
Expenses
The following table sets forth operating expenses as a percentage of
revenue and the related variance from 1997 to 1996.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, VARIANCE
---------------- INCREASE
1997 1996 (DECREASE)
-------- ------ ----------
<S> <C> <C> <C>
Salaries, wages and fringe benefits 34.1% 32.7% 1.4%
Purchased transportation 23.8 24.5 (0.7)
Fuel and fuel taxes 12.9 12.2 0.7
Operating supplies and expenses 6.6 6.6 -
Depreciation and amortization of
capital leases 6.7 6.3 0.4
Claims and insurance 3.9 3.8 0.1
Operating taxes and licenses 2.3 2.2 0.1
General supplies and expenses 4.7 3.7 1.0
Building and office equipment rents 0.8 0.7 0.1
Amortization of intangibles 0.6 0.5 0.1
Gain on disposal of property and
equipment (0.1) (0.3) 0.2
Restructuring charge 6.2 - 6.2
----- ---- ----
Operating Ratio 102.5% 92.9% 9.6%
===== ==== ====
</TABLE>
Salaries, wages and fringe benefits for the first six months of 1997
increased 1.4 percentage points as a percent of revenue. This increase is
primarily due to an increase in driver wage employer, which replaced driver per
diems at three of the Operating Companies as well as health insurance premium
contributions at another Operating Company. The increase is also due to an
increase in salaries at the corporate location as a result of continued
development of support staff necessary for the acquired companies.
Purchased transportation costs decreased 0.7 percentage points as a percent
of revenue when compared with the first six months of 1996. The decrease is
primarily due to the acquisition of KTL in the third quarter of 1996, which has
a company-driver work force.
Fuel and fuel taxes increased 0.7 percentage points as a percent of revenue
when compared with the first six months of 1996 due to the acquisition of KTL in
the third quarter of 1996, which has a company-driver work force. The increase
was also due to lower miles per gallon as a result of severe weather and
unfavorable fuel prices in the first quarter of 1997. According to a Department
of Energy survey, reported by the American Trucking Association, the average
price of diesel fuel for the first six months of 1997 was approximately two
cents above the average price for the same period in 1996.
Depreciation and amortization of capital leases increased as a percent of
revenue by 0.4 percentage points when compared with the prior year primarily due
to the purchase of new tractors and trailers during 1996. The Company began
taking deliveries of the new Volvo tractors in May 1996. The increase is also
attributable to the purchase of new computer equipment used in the consolidation
of the Company's computer systems.
General supplies and expenses for the first six months of 1997 increased
1.0 percentage points as a percent of revenue when compared with the same period
in 1996. This increase is due to increased professional and consulting fees
resulting from increased driver recruitment and advertising and added costs for
system and mobile communications, which should be partially offset in the future
by improved operating efficiencies.
In connection with AmeriTruck's plans to organize into three operating
groups and to eliminate the duplicate facility and employee costs related to the
recently acquired entities, the Company announced a
12
<PAGE>
plan in the second quarter of 1997 to restructure its refrigerated carrier
group. The Company recorded $7.2 million in restructuring costs, which included
$2.3 million for employee termination costs, $4.2 million for duplicate facility
costs, including the impairment of certain long-lived assets, and $650,000 of
other costs. The Company may incur additional pre-tax restructuring costs during
the second half of 1997. See Notes to Consolidated Financial Statements-Note 3.
Restructuring Charge.
Interest expense increased $1.6 million for the six months ended June 30,
1997 over the same period in 1996. Interest on the revolving lines of credit,
which were used to fund acquisitions, were the primary contributors to this
increase.
CONTINGENCIES
Under the requirements of the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and certain other laws, the Company is
potentially liable for the cost of clean-up of various contaminated sites
identified by the U.S. Environmental Protection Agency ("EPA") and other
agencies. The Company cannot predict with any certainty that it will not in the
future incur liability with respect to environmental compliance or liability
associated with the contamination of sites owned or operated by the Company and
its subsidiaries, sites formerly owned or operated by the Company and its
subsidiaries (including contamination caused by prior owners and operators of
such sites), or off-site disposal of hazardous material or waste that could have
a material adverse effect on the Company's consolidated financial condition,
operations or liquidity.
The Company and the Operating Companies are a party to litigation
incidental to its business, primarily involving claims for personal injury or
property damages incurred in the transportation of freight. The Company is not
aware of any claims or threatened litigation that might have a material adverse
effect on the Company's consolidated financial position, operations or
liquidity.
LIQUIDITY AND CAPITAL RESOURCES
Net cash used in operating activities for the six months ended June 30,
1997 was $3.1 million compared with $4.7 million for the six months ended June
30, 1996. The decrease of cash used in operations was primarily attributable to
additional cash from the collection of accounts receivable. The increase in cash
from the collection of accounts receivable was partially offset by an increase
in the deferred tax benefit for the first six months of 1997 and cash used for
restructuring in 1997. Management believes that borrowings available under the
credit facilities should be sufficient to cover anticipated future cash needs.
REDEEMABLE PREFERRED AND COMMON STOCK
In May 1997, the Company issued 3,000 Shares of Series A Redeemable
Preferred Stock and 727,272 shares of Common Stock with warrants to certain
existing stockholders, directors and executive officers of the Company. The
issuance was made in conjunction with the 1997 acquisitions and totalled $5
million. See Notes to Consolidated Financial Statements - Note 7. Redeemable
Preferred and Common Stock.
FINOVA Credit Facility
In May 1997, the Company and its subsidiaries entered into a Loan and
Security Agreement and related documents (collectively, the "FINOVA Credit
Facility") with FINOVA Capital Corporation ("FINOVA") pursuant to which FINOVA
has agreed to provide a $60 million credit facility to the Company. The initial
borrowings under the FINOVA Credit Facility were used to refinance the Company's
prior credit facility with NationsBank of Texas, N.A. Additional borrowings
under the FINOVA Credit Facility can be used for acquisitions, capital
expenditures, letters of credit, working capital and general corporate purposes.
Pursuant to the FINOVA Credit Facility, FINOVA has agreed to provide a $60
million revolving credit facility, with a $10 million sublimit for the issuance
of letters of credit, maturing on May 5, 2000 (subject to additional one year
renewal periods at the discretion of FINOVA). The FINOVA Credit Facility is
also subject to a borrowing base consisting of eligible receivables and eligible
revenue equipment. Currently, the Company's borrowing base supports borrowings
of approximately $54 million. Revolving credit loans under the FINOVA Credit
Facility bear interest at a per annum rate equal to either the prime rate plus a
margin equal to 0.75 percent or the rate of interest offered in the London
interbank market plus a margin equal to 2.75 percent. The Company also pays a
monthly unused facility fee and a monthly collateral monitoring fee in
connection with the FINOVA Credit Facility. Revolving credit loans under the
FINOVA Credit Facility were $44.0 million at June 30, 1997 and were primarily
used for refinancing borrowings under the Company's prior facility with
NationsBank of Texas, N.A. and to fund the 1997 acquisitions. Available
borrowings were $5.6 million at June 30, 1997, as there were $4.3 million in
letters of credit outstanding.
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<PAGE>
The Company's obligations under the FINOVA Credit Facility are
collateralized by substantially all of the unencumbered assets of the Company
and its subsidiaries and are guaranteed in full by each of the Operating
Companies. For purposes of the Indenture, the borrowings under the FINOVA
Credit Facility constitute Senior Indebtedness of the Company and Guarantor
Senior Indebtedness of the Operating Companies.
The FINOVA Credit Facility contains customary representations and
warranties and events of default and requires compliance with a number of
affirmative, negative and financial covenants, including a limitation on the
incurrence of indebtedness and a requirement that the Company maintain a
specified Current Ratio, Net Worth, Debt Service Coverage Ratio and Operating
Ratio.
Volvo Credit Facilities
In February 1996, the Company and the Operating Companies entered into a
Loan and Security Agreement, a Financing Integration Agreement and related
documents (collectively, the "Volvo Credit Facilities") with Volvo Truck Finance
North America, Inc. ("Volvo") pursuant to which Volvo has committed, subject to
the terms and conditions of the Volvo Credit Facilities, to provide (i) a $10
million line of credit facility (the "Volvo Line of Credit") to the Company and
the Operating Companies, and (ii) up to $28 million in purchase money or lease
financing (the "Equipment Financing Facility") in connection with the Operating
Companies' acquisition of new tractors and trailers manufactured by Volvo GM
Heavy Truck Corporation. Borrowings under the Volvo Line of Credit are secured
by certain specified tractors and trailers of the Company and the Operating
Companies (which must have a value equal to at least 1.75 times the outstanding
amount of borrowings under the Volvo Line of Credit) and are guaranteed in full
by each of the Operating Companies. As of June 30, 1997, the Operating Companies
have pledged collateral which provides for a $9.5 million line of credit.
Borrowings under the Volvo Line of Credit bear interest at the prime rate. The
Volvo Line of Credit contains customary representations and warranties and
events of default and requires compliance with a number of affirmative and
negative covenants, including a profitability requirement and a coverage ratio.
The Equipment Financing Facility is being provided by Volvo in connection
with the Operating Companies' agreement to purchase 400 new trucks manufactured
by Volvo GM Heavy Truck Corporation between March 1, 1996 and June 30, 1997. The
borrowings under the Equipment Financing Facility are collateralized by the
specific trucks being financed and are guaranteed in full by each of the
Operating Companies. Borrowings under this facility bear interest at the prime
rate.
At June 30, 1997, borrowings outstanding under the Volvo Line of Credit
were $9.4 million with available borrowings of $100,000. The outstanding debt
balance under the Equipment Financing Facility was $3.7 million at June 30,
1997; however, available financing under this facility is less than $4 million
as financing was also obtained through operating leases.
The Equipment Financing Facility contains customary representations and
warranties, covenants and events of default. For purposes of the Indenture, the
borrowings under the Volvo Credit Facilities constitute Senior Indebtedness of
the Company and Guarantor Senior Indebtedness of the Operating Companies.
Transamerica Lease Facility
In July 1997, the Company received a commitment letter from Transamerica
Business Credit Corporation ("TBCC") to provide the Company and its subsidiaries
with an arrangement to lease up to 300 new 1998 model tractors (the "TBCC
Lease"). The line under the TBCC Lease will not exceed $22.8 million based upon
a per vehicle cost of $76,000, subject to an unused line fee of one percent if
the Company leases all 300 of the new trucks but does not use the entire line.
The lease term is 48 months and is subject to a terminal rental adjustment
clause at the end of the term. The Company will account for this lease as an
operating lease for accounting purposes.
14
<PAGE>
Capital Expenditures and Resources
For the six months ended June 30, 1997, the Company had proceeds from
property and equipment dispositions in excess of capital expenditures of $1.5
million, excluding the 1997 acquisitions of Monfort, Lynn and Tran-Star,
compared with capital expenditures, net of cash proceeds from dispositions, of
$14.2 million for the six months ended June 30, 1996, excluding the purchase of
the Freymiller Assets. The proceeds from property and equipment dispositions for
the first six months of 1997 were primarily from the sale of tractors, some of
which were financed through debt. These tractors were replaced with new tractors
financed through operating leases.
During 1997, the Company plans to purchase approximately 525 new trucks,
including the remaining Volvo trucks. Approximately 500 of these new tractors
will replace existing tractors. These plans include the new equipment purchases
for the recently acquired companies. These equipment purchases and commitments
will likely be financed using a combination of sources including, but not
limited to, cash from operations, leases, debt issuances and other miscellaneous
sources. Each financing decision will be based upon the most appropriate
alternative available.
In June 1997, AmeriTruck purchased all the outstanding stock of Tran-Star,
Inc. ("Tran-Star") which was owned by Allways Services, Inc. The purchase price
of $2.6 million included $1.6 million in cash and a $1 million note payable.
Tran-Star is a carrier of refrigerated and non-refrigerated products.
Headquartered in Waupaca, Wisconsin, Tran-Star operates primarily in between the
upper midwestern U.S. and the northeast and southeast, with terminals in Etters
and Wyalusing, Pennsylvania. The Company is currently coordinating Tran-Star's
activities with those of the other Operating Companies.
In May 1997, AmeriTruck purchased the capital stock of Monfort
Transportation Company ("Monfort") and Lynn Transportation Co., Inc. ("Lynn"),
both subsidiaries of ConAgra, Inc. ("ConAgra"). The purchase price of $15
million was paid in cash.
Monfort and Lynn operated primarily as in-house carriers for the red meat
division of Monfort, Inc., a ConAgra subsidiary, and the poultry and turkey
divisions of ConAgra Poultry Company, a ConAgra subsidiary. The Company entered
into a Transportation Services Agreement with subsidiaries of ConAgra. The
ConAgra subsidiaries will tender freight from Monfort, Inc.'s red meat division,
ConAgra Poultry Company's poultry and turkey divisions and Swift-Ekrich, Inc.'s
processed meats division in designated lanes and minimum annual volumes. The
term of this agreement is four years, with pricing fixed for the first two years
and adjusted prices in the third and fourth years. The Company will coordinate
Monfort and Lynn activities with those of the refrigerated group.
The Tran-Star, Monfort and Lynn acquisitions were accounted for using the
purchase method of accounting. Accordingly, the purchase price was allocated to
the assets acquired and liabilities assumed based on their estimated fair values
at the date of acquisition. The total purchase price including cash, note
payable, miscellaneous acquisition costs and liabilities assumed was $42.0
million for Tran-Star and $35.2 million for Monfort and Lynn. The excess of the
purchase price over fair values of the net assets acquired has been recorded as
goodwill.
During the third quarter of 1996, AmeriTruck purchased all of the
outstanding stock of KTL, Inc. ("KTL") for a purchase price of $8.1 million in
cash and 225,000 shares of Class A common stock of AmeriTruck valued at
$900,000.
15
<PAGE>
KTL is a trucking company founded in 1983 which specializes in the
truckload transportation of refrigerated commodities and less-than-truckload
shipments requiring expedited, timed-delivery services. At the time of
purchase, KTL operated approximately 140 tractors and 300 trailers and employed
approximately 300 persons, of whom 240 were drivers and many of who operated as
two-driver teams.
The KTL acquisition was accounted for using the purchase method of
accounting. Accordingly, the purchase price was allocated to the assets
acquired and liabilities assumed based on their estimated fair values at the
date of acquisition. The total purchase price including cash, common stock,
miscellaneous acquisition costs and liabilities assumed was $21.9 million. The
excess of the purchase price over the fair values of the net assets acquired has
been recorded as goodwill.
In February 1996, the Company, through CMS Transportation Services, Inc.,
purchased certain assets of Freymiller Trucking Inc. ("Freymiller") in order to
supplement its existing temperature-controlled trucking business. Freymiller had
been the subject of a Chapter 11 bankruptcy proceeding in Oklahoma. CMS
purchased certain specific automobiles, computer hardware and software,
furniture and fixtures, rights to the trade name "Freymiller", existing spare
parts, tires and fuel, rights under certain leases, certain leasehold
improvements and shop equipment and installment sales contracts relating to
tractors and trailers sold by Freymiller out of the ordinary course of business
(with all of the foregoing referred to as the "Freymiller Assets"). The Company
also negotiated with Freymiller's lenders and lessors to purchase approximately
185 tractors and 309 trailers, previously operated by Freymiller, for
approximately $14 million. An additional 80 trailers were leased for a seven-
year period. In exchange for the Freymiller Assets, the Company paid
approximately $2.7 million in cash at closing and assumed approximately $2
million in existing equipment financing. In addition, the Company assumed a
lease for Freymiller's maintenance facility in Oklahoma City and certain routine
executory business contracts. Except as provided above, the Company did not
assume any obligations or liabilities of Freymiller.
In connection with these transactions, the Company purchased real property
in Oklahoma City, Oklahoma from Freymiller's Chairman of the Board, President
and Chief Executive Officer for approximately $1.5 million in cash.
In April 1996, CMS Transportation Services, Inc. changed its corporate name
to "AmeriTruck Refrigerated Transport, Inc." ("ART"), and the distribution
functions previously conducted under the corporate name "CMS Transportation
Services, Inc." were continued as a division of ART. In addition, in June 1996,
the business operations of CBS, a general freight carrier (which then operated
under the name "CBS Express, Inc."), were transferred to Scales. In December
1996, the distribution functions of the CMS Transportation division of ART were
transferred to CBS and its name was changed to "CMS Transportation Services,
Inc." ("CMS").
Opportunistic Acquisitions
The Company will pursue opportunistic acquisitions to broaden its
geographic scope, to increase freight network density and to expand into other
specialized trucking segments. Through acquisitions, the Company believes it can
capture additional market share and increase its driver base without adopting a
growth strategy based on widespread rate discounting and driver recruitment,
which the Company believes would be less successful. The Company believes its
large size relative to many other potential acquirers could afford it greater
access to acquisition financing sources such as banks and capital markets.
AmeriTruck has entered into revolving credit facilities, the Volvo Line of
Credit and the FINOVA Credit Facility, which will give AmeriTruck the ability to
pursue acquisitions that the Company could not otherwise fund through cash
provided by operations. In addition to revolving credit Facilities, the Company
may finance its acquisitions through equity issuances, seller financing and
other debt financings.
In June, the Company completed the acquisition of Tran-Star and in May the
acquisition of Monfort and Lynn. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Liquidity and Capital Resources"
for additional information regarding these acquisitions.
The Company is a holding company with no operations of its own. The
Company's ability to make required interest payments on the Subordinated Notes
depends on its ability to receive funds from the Operating Companies. The
Company, at its discretion, controls the receipt of dividends or other payments
from the Operating Companies.
16
<PAGE>
OTHER MATTERS
Inflation and Fuel Costs
Inflation can be expected to have an impact on the Company's earnings.
Extended periods of escalating costs or fuel price increases without
compensating freight rate increases would adversely affect the Company's results
of operations. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations - Expenses."
The industry as a whole has seen some increases in fuel prices. According
to a Department of Energy survey, reported by the American Trucking Association,
the average price of diesel fuel for the first six months of 1997 was
approximately two cents above the average price for the first six months of
1996. The Company has seen its fuel prices increase at a rate slightly below the
national average due to the Company's ability to buy fuel at volume discounts.
FORWARD LOOKING STATEMENTS AND RISK FACTORS
From time to time, the Company issues statements in public filings
(including this Form 10-Q) or press releases, or officers of the Company make
public oral statements with respect to the Company, that may be considered
forward-looking within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934. Such forward-looking
statements in this Form 10-Q include statements concerning future cost savings,
projected levels of capital expenditures and the timing of deliveries of new
trucks and trailers, the Company's financing plans, driver recruitment and
training and the Company's pursuit of opportunistic acquisitions. These forward-
looking statements are based on a number of risks and uncertainties, many of
which are beyond the Company's control. The Company believes that the following
important factors, among others, could cause the Company's actual results for
its 1997 fiscal year and beyond to differ materially from those expressed in any
forward-looking statements made by, on behalf of, or with respect to, the
Company: the adverse impact of inflation and rising fuel costs; the Company's
substantial leverage and its effect on the Company's ability to pay principal
and interest on the Subordinated Notes, to pursue other business opportunities
and to withstand any adverse economic and industry conditions; the risk that the
Company will not be able to integrate the Operating Companies' businesses on an
economic basis or that any anticipated economies of scale or other cost savings
will be realized; the ability of the Company to identify suitable acquisition
candidates, complete acquisitions or successfully integrate any acquired
businesses; competition; the ability of the Company to attract and retain
qualified drivers; and the Company's dependence on key management personnel.
These and other applicable risk factors are discussed in more detail in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996 and
other filings the Company has made with the Securities and Exchange Commission
and are incorporated by reference.
17
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is a party to litigation incidental to its business, primarily
involving claims for personal injury or property damages incurred in the
transportation of freight. The Company is not aware of any claims or threatened
litigation that might have a material adverse affect on the Company's
consolidated financial position, operations or liquidity.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. Exhibits
The following exhibits are filed as part of this report:
Exhibit Number Description
-------------- -----------
* 10.1 Stock Purchase Agreement, dated as of April 28,
1997, between the Company and Monfort, Inc., and
ConAgra Poultry Company.
** 10.2 Stock Purchase Agreement, dated as of June 27, 1997
between the Company and Allways Services, Inc. and
TranStar Services, Inc.
10.3 Loan and Security Agreement, dated as of May 5,
1997, between the Company and Finova Capital
Corporation
12 Computation of Ratio of Earnings to Fixed Charges
27 Financial Data Schedule
* Incorporated by reference to the Company's Current Report on Form
8-K filed with the Securities and Exchange Commission on June 6,
1997.
** Incorporated by reference to the Company's current Report on Form
8-K filed with the Securities and Exchange Commission on July 11,
1997.
B. Reports on Form 8-K
On April 8, 1997, the Company filed a report on Form 8-K in connection
with its financial results for 1996, a new financing commitment and the
Company's proposed acquisition of Tran-Star, Inc.; and the Company's
expectations for the first quarter of 1997.
On June 6, 1997, the Company filed a report on Form 8-K in connection
with the acquisition of Monfort and Lynn. On August 6, 1997 the Company
filed an amendment on Form 8-K/A.
Items 2, 3, 4, and 5 of Part II were not applicable and have been
omitted.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
AMERITRUCK DISTRIBUTION CORP.
By: /s/ Michael L. Lawrence
---------------------------------
Michael L. Lawrence
Chairman of the Board and
Chief Executive Officer
By: /s/ Kenneth H. Evans, Jr.
---------------------------------
Kenneth H. Evans, Jr.
Treasurer and Chief Financial and
Accounting Officer
Date: August 14, 1997
19
<PAGE>
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
EXHIBIT INDEX
Page
Exhibit Number Description Number
- -------------- ----------- ------
10.3 Loan and Security Agreement, dated as of May 5, 1997,
between the Comopany and Finova Capital Corporation
12 Computation of Ratio of Earnings to Fixed Charges
27 Financial Data Schedule
<PAGE>
FINOVA EXHIBIT 10.3
LOAN AND SECURITY AGREEMENT
BORROWER: AMERITRUCK DISTRIBUTION CORP.
ADDRESS: 301 COMMERCE, SUITE 1101
CITY CENTER TOWER II
FORT WORTH, TEXAS 76102
DATE: MAY 5, 1997
THIS LOAN AND SECURITY AGREEMENT ("Agreement") dated the date set forth above,
is entered into by and between the borrower named above ("Borrower"), whose
address is set forth above and FINOVA CAPITAL CORPORATION ("Lender"), whose
address is 355 South Grand Avenue, Suite 2400, Los Angeles, California 90071.
1. LOANS.
1.1 Total Facility. Upon the terms and conditions set forth herein and
--------------
provided that no Event of Default or event which, with the giving of notice or
the passage of time, or both, would constitute an Event of Default, shall have
occurred and be continuing, Lender shall, upon Borrower's request, make advances
to Borrower from time to time in an aggregate outstanding principal amount not
to exceed the Total Facility amount (the "Total Facility") set forth on the
schedule hereto (the "Schedule"). The Schedule is an integral part of this
Agreement and all references to "herein", "herewith" and words of similar import
shall for all purposes be deemed to include the Schedule.
1.2 Loans. Advances under the Total Facility ("Loans") shall be comprised
-----
of the amounts shown on the Schedule.
1.3 Overlines. If at any time or for any reason the outstanding amount of
---------
advances made pursuant hereto exceeds any of the dollar or percentage
limitations contained in the Schedule (any such excess, an "Overline"), then
Borrower shall, upon Lender's demand, immediately pay to Lender, in cash, the
full amount of such Overline; provided, that if the amount of such Overline is
--------
less than Five Hundred Thousand Dollars ($500,000), Borrower shall pay to
Lender, in cash, the full amount of such Overline within five (5) Business Days
following demand by Lender. Without limiting Borrower's obligation to repay to
Lender on demand the amount of any Overline, Borrower agrees to pay Lender
interest on the outstanding principal amount of any Overline, on demand, at the
rate set forth on the Schedule.
1.4 Letters of Credit. At the request of Borrower, Lender may, in its
-----------------
sole discretion, arrange for the issuance of letters of credit for the account
of Borrower and guarantees of payment of such letters of credit, in each case in
form and substance satisfactory to Lender in its reasonable discretion
(collectively, "Letters of Credit"). The aggregate undrawn amount of all
outstanding Letters of Credit from time to time shall not exceed the amount
shown on the Schedule, and shall be reserved against the availability of
Revolving Loans. Borrower shall pay all bank charges for the issuance of Letters
of Credit, together with an additional fee to Lender equal to the percentage set
forth on the Schedule of the aggregate undrawn amount of each Letter of Credit
outstanding from time to time during the term of this Agreement (the "L/C Fee").
The L/C Fee shall be deemed to be fully earned upon the issuance of each Letter
of Credit and shall be due and payable in arrears on the first business day of
each month following a month
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
during which any Letter of Credit is outstanding. Any advance by Lender under or
in connection with a Letter of Credit shall constitute an Obligation hereunder
and an advance of the Revolving Loans. Each Letter of Credit shall have an
expiry date no later than thirty (30) days prior to the last day of the Initial
Term or, if issued during any Renewal Term no later than thirty (30) days prior
to the last day of such Renewal Term. Immediately upon any termination of this
Agreement, Borrower shall either: (i) provide cash collateral to Lender in an
amount equal to the maximum amount of Lender's obligations under or in
connection with all then outstanding Letters of Credit, or (ii) cause to be
delivered to Lender releases of all Lender's obligations under outstanding
Letters of Credit. At Lender's discretion, any proceeds of Collateral received
by Lender may be held as the cash collateral required by this Section 1.4.
Borrower hereby agrees to indemnify, save, and hold Lender harmless from any
loss, cost, expense, or liability, including payments made by Lender, expenses,
and reasonable attorneys' fees incurred by Lender arising out of or in
connection with any Letters of Credit, except for such loss, cost, expense or
liability arising as a result of Lender's gross negligence or willful
misconduct. Borrower agrees to be bound by the issuing bank's regulations and
interpretations of any Letters of Credit guarantied by Lender and opened for
Borrower's account or by Lender's interpretations of any Letter of Credit issued
by Lender for Borrower's account, and Borrower understands and agrees that
Lender shall not be liable for any error, negligence, or mistake, whether of
omission or commission, in following Borrower's instructions or those contained
in the Letters of Credit or any modifications, amendments, or supplements
thereto. Borrower understands that Letters of Credit may require Lender to
indemnify the issuing bank for certain costs or liabilities arising out of
claims by Borrower against such issuing bank. Borrower hereby agrees to
indemnify and hold Lender harmless with respect to any loss, cost, expense, or
liability incurred by Lender under any Letter of Credit as a result of Lender's
indemnification of any such issuing bank, except for such loss, cost, expense or
liability arising as a result of Lender's gross negligence or willful
misconduct.
1.5 Loan Account. All advances made hereunder shall be added to and
------------
deemed part of the Obligations when made. Lender may from time to time charge
all Obligations of Borrower to Borrower's loan account with Lender.
2. CONDITIONS PRECEDENT.
2.1 Initial Advance. The obligation of Lender to make the initial advance
----------------
hereunder is subject to the fulfillment, to the satisfaction of Lender and its
counsel, of each of the following conditions on or prior to the date set forth
on the Schedule: (a) Loan Documents. Lender shall have received (i) each of the
--------------
Loan Documents, executed by each of the parties thereto and, if applicable, duly
acknowledged for recording or filing in the appropriate governmental offices;
(ii) such Blocked Account or Dominion Account agreements as it shall determine;
and (iii) such other documents, instruments and agreements in connection
herewith as Lender shall require, executed, certified and/or acknowledged by
such parties as Lender shall designate; (b) Terminations by Existing Lender.
-------------------------------
Borrower's existing lender, NationsBank of Texas, N.A., shall have executed and
delivered (or agreed to execute and deliver) UCC termination statements and
other documentation evidencing the termination of its liens and security
interests in the assets of each Loan Party; (c) Charter Documents. Lender shall
-----------------
have received copies of each Loan Party's By-laws and Articles or Certificate of
Incorporation, as amended, modified, or supplemented to the Closing Date,
certified by the Secretary of such Loan Party; (d) Good Standing. Lender shall
----
shall have received a certificate of corporate status with respect to each Loan
Party, dated within ten (10) days of the Closing Date, by the Secretary of State
of the state of incorporation of such Loan Party, which certificate shall
indicate that such Loan Party is in good standing in such state; (e) Foreign
-------
Qualification. Lender shall have received certificates of corporate status with
- -------------
respect to each Loan Party, each dated within ten (10) days of the Closing Date,
issued by the Secretary of State of each state in which its failure to be duly
qualified or licensed would have a material adverse effect on the financial
condition or assets of the Loan Parties, taken as a whole, indicating that such
Loan Party is in good standing; (f) Authorizing Resolutions and Incumbency.
--------------------------------------
Lender shall have received a certificate from the Secretary of each Loan Party
attesting to (i) the adoption of resolutions of each Loan Party's Board of
Directors and Shareholders (if necessary) authorizing the borrowing of money
from Lender, or the guaranty of the obligations of Borrower to Lender, as
applicable, and execution and delivery of this Agreement and the other Loan
Documents to which such Loan Party is a party, and authorizing specific officers
of such Loan Party to execute same, and (ii)
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<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
the authenticity of original specimen signatures of such officers; (g)
Insurance. Lender shall have received the insurance certificates, in form and
- ---------
substance satisfactory to Lender and its counsel; (h) Searches; Certificates of
-------------------------
Title. Lender shall have received UCC, tax lien and judgment and other searches
- -----
as Lender shall request with respect to each Loan Party, acknowledgments (by the
filing office of the jurisdiction) of the filing of its financing statements in
each jurisdiction as it shall determine; and original certificates of title with
respect to the Collateral, together with lien applications relating thereto,
which shall have been duly executed in a manner sufficient to perfect all of the
security interests granted to Lender; (i) Intentionally Omitted.; (j) Fees.
--------------------- ----
Borrower shall have paid all fees payable by it on the Closing Date pursuant to
this Agreement; (k) Opinion of Counsel. Lender shall have received an opinion of
------------------
Borrower's counsel covering such matters as Lender shall determine in its sole
discretion (including, without limitation, an opinion that the transactions
contemplated hereby do not violate or cause a breach of the Indenture); (l)
Officer Certificate. Lender shall have received a certificate of the President
- -------------------
and the Chief Financial Officer or similar official of Borrower, attesting to
the accuracy of each of the representations and warranties of Borrower set forth
in the Agreement and the fulfillment of all conditions precedent to the initial
advance thereunder; (m) Solvency Certificate. Lender shall have received a
--------------------
signed certificate of Borrower's Chief Financial Officer concerning the solvency
and financial condition of Borrower and its subsidiaries, on Lender's standard
form; (o) Intentionally Omitted. (p) Schedule Conditions. Borrower shall
--------------------- -------------------
have complied with all additional conditions precedent as set forth in the
Schedule attached hereto; and (q) Other Matters. All other documents and
-------------
legal matters in connection with the transactions contemplated by this Agreement
shall have been delivered or executed or recorded and shall be in form and
substance satisfactory to Lender and its counsel.
2.2 Subsequent Advances. The obligation of Lender to make any advance or
--------------------
issue or cause any Letter of Credit to be issued hereunder (including the
initial advance or Letter of Credit) shall be subject to the further conditions
precedent that, on and as of the date of such advance or Letter of Credit
issuance: (a) The representations and warranties of Borrower set forth in this
Agreement shall be accurate in all material respects, before and after giving
effect to such advance or issuance and to the application of any proceeds
thereof except to the extent that such representations and warranties expressly
relate to an earlier date; and (b) No Event of Default and no event which, with
notice or passage of time or both, would constitute an Event of Default has
occurred and is continuing, or would result from such advance or issuance or
from the application of any proceeds thereof.
3. INTEREST RATE AND OTHER CHARGES.
3.1 Interest; Fees. Borrower shall pay Lender interest on the daily
--------------
outstanding balance of Borrower's loan account at the per annum rate set forth
on the Schedule. Borrower shall also pay Lender the fees set forth on the
Schedule.
3.2 Default Interest Rate. Upon the occurrence of an Event of Default and
---------------------
notice thereof to Borrower by Lender, Borrower shall pay Lender interest on the
daily outstanding balance of Borrower's loan account at a rate per annum which
is two percent (2%) in excess of the rate which would otherwise be applicable
thereto (the "Default Rate") pursuant to the Schedule.
3.3 Examination Fees. Borrower agrees to pay to Lender an examination fee
----------------
in the amount set forth on the Schedule in connection with each audit or
examination of the Loan Parties performed by Lender prior to or after the date
hereof.
3.4 Excess Interest. In no event whatsoever shall the interest rate and
---------------
other charges charged hereunder exceed the highest rate permissible under any
law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that a court determines that Lender has
received interest and other charges hereunder in excess of the highest
permissible rate applicable thereto, Lender shall promptly apply such excess to
the Obligations in such order as Lender shall determine in its sole discretion
or refund the amount thereof to Borrower, and the provisions hereof shall be
deemed amended to provide for such permissible rate.
4. COLLATERAL.
4.1 Security Interest in the Borrower Collateral. To secure the payment
--------------------------------------------
and performance of the Obligations when due, Borrower hereby grants to Lender a
first priority security interest in all of Borrower's now owned or hereafter
acquired or
-3-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
arising Inventory, investment property, Equipment, Receivables and the proceeds
thereof, Trademarks, Licenses, and Patents, and General Intangibles, including,
without limitation, all of Borrower's Deposit Accounts, money, any and all
property now or at any time hereafter in Lender's possession (including claims
and credit balances), and all proceeds (including proceeds of any insurance
policies, proceeds of proceeds and claims against third parties), all products
and all books and records related to any of the foregoing (all of the foregoing,
together with all other property in which Lender may be granted a lien or
security interest by Borrower, is referred to herein, collectively, as the
"Borrower Collateral"); provided, that Borrower Collateral shall not include
--------
(i) any of the vehicles listed on Exhibit A hereto to the extent Volvo has not
---------
released its lien with respect thereto, (ii) any vehicles financed by Volvo and
all parts, accessories and communications systems financed by Volvo, together
with all attachments, accessions, replacements, parts and proceeds thereof,
including amounts payable under any insurance policies pertaining thereto, to
the extent Volvo has not released its lien with respect thereto, or (iii) any
Equipment subject to a purchase money security interest or capital or operating
lease permitted hereunder to the extent a lien on such Equipment in favor of
Lender would cause a default under the agreements entered into in connection
with such purchase money security interest or lease. Notwithstanding anything
contained herein to the contrary, Borrower Collateral shall include any vehicle
evidenced by a certificate of title that has been delivered to Lender and upon
which Lender's lien has been noted and which lien has not been released by
Lender.
4.2 Perfection and Protection of Security Interest. Borrower shall, at
----------------------------------------------
its expense, take all actions requested by Lender at any time to perfect,
maintain, protect and enforce Lender's security interest and other rights in the
Borrower Collateral and the priority thereof from time to time, including,
without limitation, (i) executing and filing financing or continuation
statements and amendments thereof and executing and delivering such documents
and titles in connection with motor vehicles as Lender shall reasonably require,
all in form and substance reasonably satisfactory to Lender, (ii) maintaining
complete and accurate records of its vehicles, and (iii) delivering to Lender
all letters of credit on which Borrower is named beneficiary. Lender may file,
without Borrower's signature, one or more financing statements disclosing
Lender's security interest under this Agreement. Borrower agrees that a carbon,
photographic, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. If any Borrower
Collateral is at any time in the possession or control of any warehouseman,
bailee or any of Borrower's agents or processors, Borrower shall notify such
Person of Lender's security interest in such Borrower Collateral and, upon
Lender's request, instruct them to hold all such Borrower Collateral for
Lender's account subject to Lender's instructions. From time to time, Borrower
shall, upon Lender's reasonable request, execute and deliver confirmatory
written instruments pledging the Borrower Collateral to Lender, but Borrower's
failure to do so shall not affect or limit Lender's security interest or other
rights in and to the Borrower Collateral. Until the Payment Obligations have
been fully satisfied and Lender's obligation to make further advances hereunder
has terminated, Lender's security interest in the Borrower Collateral shall
continue in full force and effect.
4.3 Preservation of Collateral. Lender may, in its reasonable discretion,
--------------------------
at any time discharge any lien or encumbrance on the Collateral not permitted
hereunder or bond the same, pay any insurance, obtain any record or take any
other action reasonably necessary to preserve the Collateral and charge the cost
thereof to Borrower's loan account as an Obligation; provided, that so long as
--------
no Event of Default exists, Lender shall provide written notice to Borrower
prior to discharging any lien or encumbrance and shall not discharge any such
lien or encumbrance being contested in good faith by a Loan Party pursuant to
appropriate proceedings to the extent adequate reserves under Section 1.1 have
been established therefor.
4.4 Insurance. Borrower will maintain and deliver evidence to Lender of
---------
the insurance required by Lender with respect to Borrower and the other Loan
Parties, written by insurers and in amounts satisfactory to Lender. All premiums
shall be paid by Borrower as and when due. Accurate and complete copies of the
policies (other than workmen's' compensation policies) shall be delivered by
Borrower to Lender. If Borrower fails to do so, Lender may (but shall not be
required to) procure such insurance at Borrower's expense and charge the cost
thereof to Borrower's loan account as an Obligation; provided, that Lender shall
--------
not procure insurance in addition to that then maintained by Borrower unless
Lender has
-4-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
provided Borrower with at least ten (10) days' prior written notice. Lender
acknowledges that the insurance of Borrower as of the date hereof is adequate as
of the date hereof.
4.5 Vehicle Titles. Lender shall hold all vehicle titles pertaining to
--------------
the Collateral; provided, that Lender shall reconsider its requirement to hold
--------
the vehicle titles if the fact that of its holding such vehicle titles unduly
delays the ability of the Loan Parties to sell vehicles in the ordinary course
of business, subject to the terms of this Agreement.
5. EXAMINATION OF RECORDS; FINANCIAL REPORTING.
5.1 Examinations. Lender shall at all reasonable times (and with
------------
reasonable prior notice so long as no Event of Default exists) have full access
to and the right to examine, audit, make abstracts and copies from and inspect
Borrower's records, files, books of account and all other documents, instruments
and agreements relating to the Borrower Collateral and the right to check, test
and appraise the Borrower Collateral. Borrower will deliver to Lender any
instrument necessary for Lender to obtain records from any service bureau
maintaining records for Borrower. Lender may, at any time after the occurrence
of an Event of Default, remove from Borrower's premises copies of Borrower's
books and records (or the originals thereof in connection with the enforcement
of Lender's security interests) or require Borrower to deliver such copies to
Lender. Lender may, without expense to Lender, use such of Borrower's personnel,
supplies and premises as may be reasonably necessary for maintaining or, after
the occurrence and during the continuance of an Event of Default, enforcing
Lender's security interest.
5.2 Reporting Requirements. Borrower shall furnish Lender, upon request,
----------------------
such information and statements as Lender shall reasonably request from time to
time regarding each Loan Party's business affairs, financial condition and the
results of its operations. Without limiting the generality of the foregoing,
Borrower will provide Lender with (i) summaries of sales invoices (together with
copies of any invoice in the amount of Fifty Thousand Dollars ($50,000) or
more), customer statements and credit memoranda issued, remittance advices and
reports and copies of deposit slips of each Loan Party, daily; (ii) on or prior
to the dates set forth on the Schedule, on a consolidated and consolidating
basis for Borrower and the other Loan Parties, monthly agings (aged from invoice
date) and reconciliations of Receivables (with listings of concentrated
accounts), payables reports, borrowing base certificates, vehicle reports and
unaudited financial statements with respect to the prior month prepared on a
basis consistent with such statements prepared in prior months and otherwise in
accordance with generally accepted accounting principles, consistently applied
(subject, in the case of unaudited financial statements, to the absence of
footnotes and to year-end audit adjustments); (iii) consolidated audited annual
financial statements, prepared in accordance with generally accepted accounting
principles applied on a basis consistent with the most recent Prepared
Financials provided to Lender by Borrower, with the unqualified report thereon
of any "Big Six" independent public accountants or any other independent
certified public accountants acceptable to Lender (together with a consolidating
schedule prepared by Borrower's management reconciled to such audited financial
statements), as soon as available, and in any event, within one hundred five
(105) days after the end of each of Borrower's fiscal years; (iv) an annual
operating budget (including income statements, balance sheets and cash flow
statements by month) for the upcoming fiscal year, at least thirty (30) days
after the end of Borrower's fiscal year; and (v) such certificates relating to
the foregoing as Lender may reasonably request, including, without limitation, a
monthly certificate in the form of Exhibit B hereto from the president or the
---------
chief financial officer of Borrower showing Borrower's compliance with each of
the financial covenants set forth in this Agreement, and stating whether any
Event of Default has occurred or event which, with giving of notice or the
passage of time, or both, would constitute an Event of Default, and if so, the
steps being taken to prevent or cure such Event of Default.
5.3 Appraisals. At the expense of Borrower, Lender may obtain such
----------
Appraisals as Lender deems appropriate from time to time; provided, that (i) so
--------
long as no Event of Default exists and the advance rate with respect to the
Eligible Equipment has been reduced to sixty percent (60%), no more than two
Appraisals shall be conducted in any calendar year, (ii) so long as no Event of
Default exists and the advance rate with respect to the Eligible Equipment is
above sixty percent (60%), Borrower shall not be liable for more than two
Appraisals in any calendar year, (iii) so long as no Event of Default exists no
more than one such
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<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
Appraisal in any calendar year shall involve more than (x) a "desktop" appraisal
or (y) a physical inspection of Equipment, and (iv) so long as no Event of
Default is continuing, no physical inspection of vehicles will include more than
twenty-five percent (25%) of each type or category (as determined by Lender or
its appraiser in its reasonable judgment) of the vehicles of the Loan Parties,
and no physical inspection of vehicles will require the interruption of normal
business operations of the Loan Parties and the normal routing of vehicles.
6. COLLATERAL REPORTING.
6.1 Invoices. Borrower will not, and will not permit any other Loan Party
--------
to, re-date any invoice or sale from the original date thereof.
6.2 Instruments. In the event any Receivable is or becomes evidenced by a
-----------
promissory note, trade acceptance or any other instrument for the payment of
money in the amount in excess of Fifty Thousand Dollars ($50,000), Borrower
will, and will cause each other Loan Party to, immediately deliver such
instrument to Lender appropriately endorsed to Lender and, regardless of the
form of any presentment, demand, notice of dishonor, protest and notice of
protest with respect thereto, such Loan Party will remain liable thereon until
such instrument is paid in full.
7. PRINCIPAL PAYMENTS; PROCEEDS OF COLLATERAL.
7.1 Principal Payments. Except where evidenced by notes or other
------------------
instruments issued or made by Borrower to Lender specifically containing payment
provisions which are in conflict with this Section 7.1 (in which event the
conflicting provisions of said notes or other instruments shall govern and
control), that portion of the Obligations consisting of principal payable on
account of Revolving Loans shall be payable by Borrower to Lender immediately
upon the earliest of (i) the receipt by Lender or any Loan Party of any proceeds
of any of the Collateral in good collected funds, to the extent of said
proceeds, (ii) the occurrence of an Event of Default in consequence of which
Lender accelerates the maturity and payment of such loans, or (iii) any
termination of this Agreement pursuant to Section 16 hereof; provided, however
-------- -------
that any Overline shall be payable on demand pursuant to the provisions of
Section 1.3 hereof.
7.2 Collections. Lender or its designee may, at any time, notify account
-----------
debtors that the Receivables have been assigned to Lender and of Lender's
security interest therein, and during the continuance of an Event of Default,
may collect the Receivables directly and charge the collection costs and
expenses to Borrower's loan account. Borrower agrees that, in computing the
charges under this Agreement, all items of payment shall be deemed applied by
Lender on account of the Obligations one (1) Business Day after receipt by
Lender of good funds which have been finally credited to Lender's account,
whether such funds are received directly from a Loan Party or from the Blocked
Account bank or the Dominion Account bank, pursuant to Section 7.3. Lender is
not, however, required to credit Borrower's account for the amount of any item
of payment which is unsatisfactory to Lender in its sole discretion and Lender
may charge Borrower's loan account for the amount of any item of payment which
is returned to Lender unpaid.
7.3 Establishment of a Lockbox Account or Dominion Account. All proceeds
------------------------------------------------------
of Collateral shall, at the direction of Lender, be deposited by a Loan Party
into a lockbox account, or such other "blocked account" as Lender may require
(each, a "Blocked Account") pursuant to an agreement acceptable to Lender with
such bank as may be selected by Borrower and be acceptable to Lender. Borrower
shall, and shall cause each other Loan Party to, issue to any such bank an
irrevocable letter of instruction directing said bank to transfer such funds so
deposited to Lender, either to any account maintained by Lender at said bank or
by wire transfer to appropriate account(s) of Lender. Lender assumes no
responsibility for any Blocked Account arrangement, including without
limitation, any claim of accord and satisfaction or release with respect to
deposits accepted by any bank thereunder. Alternatively, Lender may establish
depository accounts in the name of Lender at a bank or banks for the deposit of
such funds (each, a "Dominion Account") and Borrower shall, and shall cause each
other Loan Party to, deposit all proceeds of Receivables and all cash proceeds
of Eligible Equipment or cause same to be deposited, in kind, in such Dominion
Accounts of Lender in lieu of depositing same to Blocked Accounts.
7.4 Payments Without Deductions. Borrower shall pay principal, interest,
---------------------------
and all other amounts payable hereunder, or under any related
-6-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
---------------------------------------------------------------------------
agreement, without any deduction whatsoever, including, but not limited to, any
deduction for any setoff or counterclaim. Borrower shall be permitted to deduct
and withhold, to the extent required by law, from any payments due to foreign
lenders.
7.5 Intentionally Omitted.
---------------------
7.6 Monthly Accountings. Lender will provide Borrower monthly with an
-------------------
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Lender), unless Borrower
notifies Lender in writing to the contrary within thirty (30) days after each
account is rendered, describing the nature of any alleged errors or omissions.
7.7. Intercompany Accounts. Borrower shall maintain records of all
---------------------
intercompany transactions among the Loan Parties, and at the reasonable request
of Lender, provide copies thereof to Lender.
8. POWER OF ATTORNEY.
Borrower appoints Lender and its designees as Borrower's attorney, with the
power to endorse Borrower's name on any checks, notes, acceptances, money orders
or other forms of payment or security that come into Lender's possession; during
the continuance of any Event of Default to sign Borrower's name on any invoice
or bill of lading relating to any Receivable, on drafts against customers, on
assignments of Receivables, and on notices of assignment; to sign Borrower's
name on financing statements and to send requests (so long as no Event of
Default exists, with prior notice to Borrower of the Loan Party to be subject to
such verification) for verification of Receivables to customers or account
debtors; during the continuance of any Event of Default, to notify the post
office authorities to change the address for delivery of Borrower's mail to an
address designated by Lender and to open and dispose of all mail addressed to
Borrower; and to do all other things Lender deems necessary or desirable to
carry out the terms of this Agreement. Borrower hereby ratifies and approves
all acts of such attorney. Neither Lender nor any of its designees will be
liable for any acts or omissions nor for any error of judgment or mistake of
fact or law acting as Borrower's attorney, except for Lender's gross negligence
or willful misconduct. This power, being coupled with an interest, is
irrevocable until the Payment Obligations have been fully satisfied and Lender's
obligation to provide loans hereunder shall have terminated.
9. RECEIVABLES.
9.1 Eligibility. Borrower represents and warrants that each Receivable
-----------
covers and will cover a bona fide sale or lease and delivery by a Loan Party of
goods or the rendition by such Loan Party of services in the ordinary course of
such Loan Party's business, and will be for a liquidated amount. Borrower
further represents and warrants that to the best of its knowledge no Receivable
classified as an Eligible Receivable by Borrower will be subject to any offset,
deduction, counterclaim, rights of return or cancellation, lien or other such
condition at the time classified as an Eligible Receivable unless such offset,
deduction, counterclaim, rights of return or cancellation, lien or such other
condition is deducted from the amount of such Receivable.
9.2 Disputes. Borrower shall notify Lender promptly of all material
--------
disputes and claims with respect to the Receivables and settle or adjust or
cause to be settled or adjusted such disputes or claims at no expense to Lender,
but no discount, credit or allowance shall be granted to any account debtor
shall be accepted by Borrower or any other Loan Party without Lender's consent,
except for discounts, credits and allowances made or given in the ordinary
course of Borrower's or such Loan Party's business. Lender may, at any time
after the occurrence of an Event of Default, settle or adjust disputes and
claims with respect to the Receivables directly with account debtors for amounts
and upon terms which Lender considers advisable in its reasonable credit
judgment and, in all cases, Lender will credit Borrower's loan account with only
the net amounts received by Lender in payment of any Receivables. Lender shall
endeavor to notify Borrower of any such settlement or adjustment but shall not
be liable to Borrower for the failure to do so.
10. EQUIPMENT.
Borrower shall, and shall cause the other Loan Parties to, keep and
maintain the Eligible Equipment in good operating condition and repair and make
all necessary replacements thereto to maintain and preserve the value and
operating efficiency thereof at all times consistent with Borrower's or such
Loan Party's past practice, ordinary wear and tear excepted. Borrower shall,
and
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FINOVA LOAN AND SECURITY AGREEMENT
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shall cause each other Loan Party to, keep correct and accurate records as
to the status of the Eligible Equipment, and report such information to Lender
as provided in Section 5.2.
11. OTHER LIENS; NO DISPOSITION OF COLLATERAL.
Borrower represents, warrants and covenants that (a) all Collateral is and
will continue to be owned by a Loan Party free and clear of all liens, claims
and encumbrances whatsoever (except for Lender's security interest, Permitted
Encumbrances, and such other liens, claims and encumbrances as may be permitted
by Lender in its sole discretion from time to time in writing), and (b) Borrower
will not, and will not permit any other Loan Party to, without Lender's prior
written approval, sell or dispose of or permit the sale or disposal of any
Collateral or any interest therein; provided, that so long as an Event of
--------
Default does not then exist, (a) Equipment may be sold for fair market value in
an arm's length transaction, (b) inventory and scrap, obsolete, excess and worn-
out assets may be sold in the ordinary course of business, and (c) any
subsidiary of Borrower may be merged with and into Borrower or any other
subsidiary. The proceeds of any such sales shall be remitted to Lender pursuant
to this Agreement for application to the Obligations.
12. GENERAL REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that:
12.1 Due Organization. Each Loan Party is a corporation duly organized,
----------------
validly existing and in good standing under the laws of the State set forth on
the Schedule, is qualified and authorized to do business and is in good standing
in all states in which such qualification and good standing are necessary in
order for such Loan Party to conduct its business and own its property, except
where the failure to so qualify could not reasonably be expected to have a
materially adverse effect on the business, assets, operations or financial
condition of Borrower and its subsidiaries, taken as a whole, and has all
requisite power and authority to conduct its business as presently conducted, to
own its property and to execute and deliver each of the Loan Documents to which
it is a party and perform all of its obligations thereunder, and has not taken
any steps to wind-up, dissolve or otherwise liquidate its assets;
12.2 Other Names. Neither Borrower nor any other Loan Party has, during
-----------
the preceding five (5) years, been known by or used any other corporate or
fictitious name except as set forth on the Schedule, nor has Borrower nor any
other Loan Party been the surviving corporation of a merger or consolidation or
acquired all or substantially all of the assets of any person during such time
except as set forth on the Schedule;
12.3 Due Authorization. The execution, delivery and performance by each
-----------------
Loan Party of the Loan Documents to which it is a party have been authorized by
all necessary corporate action and do not and will not constitute a violation of
any applicable law or of such Loan Party's Articles or Certificate of
Incorporation or By-Laws or any other material document, agreement or instrument
to which such Loan Party is a party or by which such Loan Party or its assets
are bound;
12.4 Binding Obligation. Each of the Loan Documents to which a Loan Party
------------------
is a party is the legal, valid and binding obligation of such Loan Party
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and equitable principles of general
applicability (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
12.5 Intangible Property. Each Loan Party possesses adequate licenses,
-------------------
patents, patent applications, copyrights, trademarks, trademark applications and
trade names for the present and planned future conduct of its business without
any known material conflict with the rights of others, and all such material
intellectual property is valid and has been duly registered or filed with the
appropriate governmental authorities;
12.6 Capital. Each Loan Party has capital sufficient to conduct its
-------
business, is able to pay its debts as they mature, and owns property having a
fair salable value greater than the amount required to pay all of its debts
(including contingent debts);
12.7 Material Litigation. No Loan Party has any pending or overtly
-------------------
threatened litigation, actions or proceedings which would materially and
adversely affect the business, assets, operations, prospects or condition,
financial or otherwise the Loan Parties taken as a whole, or the Collateral or
any of Lender's interests therein taken as a whole;
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FINOVA LOAN AND SECURITY AGREEMENT
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12.8 Title; Security Interests of Lender. Each Loan Party has good,
-----------------------------------
indefeasible and merchantable title to the Collateral and, upon the filing of
UCC-1 Financing Statements and certificates of title with lien applications with
respect thereto, in each case in the appropriate offices, this Agreement and
such documents will create valid and perfected first priority liens in the
Collateral, subject only to Permitted Encumbrances;
12.9 Restrictive Agreements; Labor Contracts. Other then in connection
---------------------------------------
with the Specified Indebtedness, no Loan Party is a party or subject to any
contract or subject to any charge, corporate restriction, judgment, decree or
order materially and adversely affecting the business, assets, operations,
prospects or condition, financial or otherwise of the Loan Parties taken as a
whole, or which restricts its right or ability to incur Indebtedness, and no
Loan Party is a party to any labor dispute which could reasonably be expected to
materially and adversely affect the business, assets, operations, prospects or
condition, financial or otherwise, of Borrower and its subsidiaries, taken as a
whole. In addition, no labor contract to which a Loan Party is a party is
scheduled to expire during the Initial Term of this Agreement, except as
disclosed to Lender in writing prior to the date hereof;
12.10 Laws. No Loan Party is in violation of any applicable statute,
----
regulation, ordinance or any order of any court, tribunal or governmental
agency, in any respect materially and adversely affecting the Collateral (taken
as a whole) or the business, assets, operations, prospects or condition,
financial or otherwise of the Loan Parties, taken as a whole;
12.11 Consents. Each Loan Party has obtained or caused to be obtained or
--------
issued any required consent of a governmental agency or other Person in
connection with the financing contemplated hereby;
12.12 Defaults. No Loan Party is in default with respect to any note,
--------
indenture, loan agreement, mortgage, lease, deed or other agreement to which it
is a party or by which it or its assets are bound, the effect of which would
cause any Event of Default under Section 17.1(x);
12.13 Financial Condition. The financial statements dated as of March 31,
-------------------
1997 fairly present the financial condition of the Loan Parties on a
consolidated basis and results of operations of the Loan Parties on a
consolidated basis as of the date thereof (subject to the absence of footnotes
and year-end audit adjustments); and there has been no material and adverse
change in such financial conditions or operations since December 31, 1996
(except for Borrower's pretax loss for the quarter ending March 31, 1997 of up
to Three Million Five Hundred Thousand Dollars ($3,500,000));
12.14 ERISA. None of Borrower, any other Loan Party, any ERISA Affiliate,
-----
or any Plan is in violation of any of the provisions of ERISA, any of the
qualification requirements of IRC Section 401(a) or any of the published
interpretations thereunder, nor have Borrower, any other Loan Party or any ERISA
Affiliate received any notice to such effect which any case could reasonably be
expected to materially and adversely affect the business, assets, operations,
prospects or condition, financial or otherwise, of the Loan Parties, taken as a
whole. No notice of intent to terminate a Plan has been filed under Section
4041 of ERISA, nor has any Plan been terminated under ERISA which any case could
reasonably be expected to materially and adversely affect the business, assets,
operations, prospects or condition, financial or otherwise, of the Loan Parties,
taken as a whole. The PBGC has not instituted proceedings to terminate, or
appoint a trustee to administer, a Plan. Neither Borrower, any other Loan Party
nor any ERISA Affiliate has incurred any withdrawal liability with respect to
any Multiemployer Plan. There is no accumulated funding deficiency in excess of
One Million Dollars ($1,000,000) in any Plan, whether or not waived;
12.15 Taxes. Each Loan Party has filed all tax returns and such other
-----
reports as it is required by law to file and has paid or made adequate provision
for the payment on or prior to the date when due of all taxes, assessments and
similar charges that are due and payable;
12.16 Locations. Each Loan Party's chief executive office and the offices
---------
and locations where it keeps the Collateral are at the locations set forth on
the Schedule, except to the extent that such locations may have been changed
after notice to Lender in accordance with Section 13.5 below;
12.17 Business Relationships. There exists (i) no actual or threatened
----------------------
termination, cancellation or limitation of, or any modification or change in,
the business relationship between a Loan Party and any customer or any group of
customers whose purchases individually or in the aggregate are
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FINOVA LOAN AND SECURITY AGREEMENT
---------------------------------------------------------------------
material to the business of such Loan Party, or with any material supplier, and
(ii) no present condition or state of facts or circumstances which, in either
case, could reasonably be expected to materially and adversely affect the Loan
Parties taken as a whole or prevent the Loan Parties taken as a whole from
conducting such business after the consummation of the transactions contemplated
by this Agreement in substantially the same manner in which it has heretofore
been conducted;
12.18 Appraised Vehicles. The vehicles described in that certain
------------------
Appraisal dated April 14, 1997 by Arrow Truck Sales Incorporated constitute
Eligible Equipment and Borrower has delivered original certificates of title for
such vehicles to Lender on the date hereof; and
12.19 Reaffirmations. Each request for a loan made by Borrower pursuant
--------------
to this Agreement shall constitute (i) an automatic representation and warranty
by Borrower to Lender that there does not then exist any Event of Default and
(ii) a reaffirmation as of the date of said request of all of the
representations and warranties of Borrower contained in this Agreement and the
other Loan Documents.
13. AFFIRMATIVE COVENANTS.
Borrower covenants that, so long as any Payment Obligation remains
outstanding and this Agreement is in effect, it shall, and shall cause each
other Loan Party to:
13.1 Expenses. Reimburse Lender for all reasonable costs, fees and
--------
expenses incurred by Lender in connection with the negotiation, preparation,
execution, delivery, administration and enforcement of each of the Loan
Documents, including, but not limited to, the reasonable attorneys' and
paralegals' fees of in-house and outside counsel, lien, title search and
insurance fees, appraisal fees, all charges and expenses incurred in connection
with any and all environmental reports and environmental remediation activities,
and all other costs, expenses, taxes and filing or recording fees payable in
connection with the transactions contemplated by this Agreement including
without limitation all such costs, fees and expenses as Lender shall incur or
for which Lender shall become obligated in connection with (i) any inspection or
verification of the Collateral (subject to Section 5.3), (ii) any proceeding
relating to the Loan Documents or the Collateral, (iii) actions taken with
respect to the Collateral and Lender's security interest therein, including,
without limitation, the defense or prosecution of any action involving Lender
and any Loan Party or any third party, (iv) enforcement of any of Lender's
rights and remedies with respect to the obligations owing by any Loan Party to
Lender or Collateral and (v) consultation with Lender's attorneys and
participation in any workout, bankruptcy or other insolvency or other proceeding
involving any Loan Party or any Affiliate, whether or not suit is filed.
Borrower shall also pay all Lender charges in connection with bank wire
transfers, forwarding of loan proceeds, deposits of checks and other items of
payment, returned checks, establishment and maintenance of lock boxes and other
blocked accounts, and all other bank and administrative matters, in accordance
with Lender's schedule of bank and administrative fees and charges in effect
from time to time. Notwithstanding the foregoing, Borrower shall not be liable
for any fees, costs or expenses of any participant or assignee of Lender in
connection with the sale of any participation or assignment of Lender's rights
hereunder.
13.2 Taxes. Pay or make adequate provision for the payment of all taxes,
-----
assessments and other charges on or prior to the date when due and file all tax
returns (except for those state tax returns the failure of which to file would
not have a material adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of the Loan Parties, taken as a
whole).
13.3 Notice of Litigation. Promptly notify Lender in writing of any
--------------------
litigation, suit or administrative proceeding which may materially and adversely
affect the Collateral or its business, assets, operations, prospects or
condition, financial or otherwise, whether or not the claim is covered by
insurance.
13.4 ERISA. Notify Lender in writing (i) promptly upon the occurrence of
-----
any Reportable Event and (ii) prior to any termination, partial termination or
merger of a Plan or a transfer of a Plan's assets.
13.5 Change in Location. Notify Lender in writing ten (10) days prior to
------------------
any change in the location of its chief executive office or the location of any
Collateral (other than rolling stock), or its opening or closing of any other
place of business.
13.6 Corporate Existence. Except for the merger of a Loan Party (other
-------------------
than Borrower) into
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FINOVA LOAN AND SECURITY AGREEMENT
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another Loan Party or into Borrower or the dissolution or a Loan Party pursuant
to Section 13.15, maintain its corporate existence and its qualification to do
business and good standing in all states necessary for the conduct of its
business and the ownership of its property, except where the failure to maintain
such existence, qualification or standing would not have a material adverse
effect on the business, assets, operations, prospects or condition, financial or
otherwise, of Borrower and its subsidiaries, taken as a whole, and maintain
adequate assets, licenses, patents, copyrights, trademarks and trade names for
the conduct of its business.
13.7 Labor Disputes. Promptly notify Lender in writing of any material
--------------
labor dispute to which it is or may become subject and the expiration of any
labor contract to which it is a party or bound.
13.8 Violations of Law. Promptly notify Lender in writing of any
-----------------
violation
of any law, statute, regulation or ordinance of any governmental entity, or of
any agency thereof, applicable to it which may materially and adversely affect
the Collateral or its business, assets, prospects, operations or condition,
financial or otherwise.
13.9 Defaults. Notify Lender in writing within five (5) Business Days of
--------
its default under any note, indenture, loan agreement, mortgage, lease or other
agreement to which it is a party or bound, or of any other default under any of
its Indebtedness which results in an Event of Default under Section 17.1.
13.10 Capital Expenditures. Promptly notify Lender in writing of the
--------------------
making of, or commitment to make, any Capital Expenditure in excess of Five
Million Dollars ($5,000,000).
13.11 Books and Records. Keep adequate records and books of account with
-----------------
respect to its business activities in which proper entries are made in
accordance with generally accepted accounting principles consistently applied,
reflecting all its financial transactions.
13.12 Leases; Warehouse Agreements. Provide Lender with (i) copies of all
----------------------------
agreements between it and any landlord or warehouseman which owns any premises
at which any Collateral may, from time to time, be located, and (ii) within
sixty (60) days following the date hereof, landlord waivers in the form of
Exhibit C-1 hereto for the leased locations described on Exhibit C-2 hereto. In
- ----------- -----------
addition, Borrowers shall provide additional landlord waivers in the form of
Exhibit C-1 hereto with respect to all locations where any material amount of
- -----------
inventory of account debtors is stored.
13.13 Additional Documents. At Lender's request, promptly execute or
--------------------
cause to be executed and delivered to Lender any and all documents, instruments
and agreements deemed necessary by Lender to facilitate the collection of the
Collateral or otherwise to give effect to or carry out the terms or intent of
this Agreement or any of the other Loan Documents. At the request of Lender,
Borrower shall use its reasonable efforts to comply with the provisions of the
Federal Assignment of Claims Act with respect to any contracts with the United
States of America or any department, agency, subdivision or instrumentality
thereof.
13.14 Financial Covenants. Comply with the financial covenants set forth
-------------------
on the Schedule.
13.15 Mortgages; Merger or Dissolution of Certain Subsidiaries. Within
--------------------------------------------------------
sixty (60) days following the date hereof, Borrower shall cause (a) mortgages
and/or deeds of trust in form and substance satisfactory to Lender with respect
to the real property described on Exhibit D hereto to be executed and delivered
---------
by the appropriate Loan Party pursuant to which such Loan Party shall grant to
Lender a first priority lien on such property and (b) title insurance policies
(with endorsements reasonably specified by Lender) with respect to such property
to be delivered to Lender (with such title insurance not to exceed 50% of the
value of such property). Within thirty (30) days following the date hereof,
Borrower shall have commenced reasonable efforts to dissolve, or merge into a
Loan Party, the following Loan Parties (provided, that any merger shall be with
a Loan Party other than one of the following Loan Parties): BLS Investments,
Inc., Frontier Freight, Inc., CAS Transportation, CAS Services Company, Inc. and
Billings Trucking Corporation. Within one hundred twenty (120) days following
the date hereof, all of the foregoing Loan Parties shall have been dissolved or
so merged. Borrower acknowledges and agrees that none of the Receivables or
Equipment of the foregoing Loan Parties shall be considered Eligible Receivables
or Eligible Equipment. Borrower also acknowledges and agrees that none or the
Receivables or Equipment of AmeriTruck Operations Services or Best Way Motor
Lines, Inc. shall be considered Eligible Receivables or Eligible Equipment until
such time as Lender shall have completed its UCC, tax and judgment searches with
respect to such Loan Parties
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
and then only to the extent such Receivables and Equipment satisfy the criteria
of Eligible Receivables and Eligible Equipment, respectively. Within fifteen
(15) days following the date hereof, Borrower shall provide evidence that each
Loan Party (other than the Loan Parties that are to be dissolved or merged as
provided above) is in good standing in its state of incorporation and all other
states where such qualification is necessary to make the representation set
forth in Section 12.1 accurate.
14. NEGATIVE COVENANTS.
Without Lender's prior written consent, so long as any Payment Obligation
remains outstanding and this Agreement is in effect, Borrower shall not, and
shall not permit any other Loan Party to: (a) Mergers. Merge or consolidate
-------
with or acquire any other Person (except that Borrower may consummate the Tran-
Star Acquisition and any Loan Party (other than Borrower) may merge into
Borrower or into any other Loan Party), or make any other material change in its
capital structure or in its business or operations which might adversely affect
the repayment of the Obligations; (b) Loans. Make advances, loans or
-----
extensions of credit to, or invest in, any Person (except that (i) any Loan
Party may make advances, loans or extensions of credit to, or invest in, any
other Loan Party, (ii) in addition to the loans described on Exhibit G, the Loan
---------
Parties may make loans to their employees in the ordinary course of their
business for travel expenses, salary advances and the like so long as the
aggregate amount of such loans outstanding at any time does not exceed Two
Million Five Hundred Thousand Dollars ($2,500,000) and the aggregate amount of
such loans outstanding at any time to officers and senior management of the Loan
Parties does not exceed Two Hundred Fifty Thousand Dollars ($250,000) at any
time, (iii) in addition to the loans described on Exhibit G, the Loan Parties
---------
may make loans to its officers and senior management for moving and relocation
expenses so long as the aggregate amount of such loans outstanding does not
exceed the amount by which Two Hundred Fifty Thousand Dollars ($250,000) exceeds
the aggregate outstanding loans to such officers and senior management for
travel expenses, salary advances and the like, (iv) Borrower may make loans to
its senior management to permit such senior management to purchase capital stock
of Borrower so long as all of the proceeds of such loans are used to purchase
such capital stock, (v) the Loan Parties may extend credit to account debtors in
the form of deferred payment obligations in the ordinary course of business and
in connection with the compromise of Receivables in the ordinary course of
business) and (vi) the Loan Parties may maintain the loans described on Exhibit
-------
G hereto; (c) Dividends. Declare or pay cash dividends upon any of its stock
- - ---------
or distribute any of its property or redeem, retire, purchase or acquire
directly or indirectly any of its stock (except that subsidiaries of Borrower
may declare and pay dividends or make distributions on their capital stock or
distribute any of their property to Borrower or any other Loan Party, and so
long as no Event of Default exists or would be caused thereby, Borrower may
effect the purchase , redemption, acquisition, cancellation, or other retirement
for value of shares of its capital stock, options on any such shares or related
phantom stock or stock appreciation rights or similar securities held by
officers or employees or former officers or employees (or their estates or
beneficiaries under their estates) or by an employee benefit plan, upon the
death, disability, retirement or termination of employment of such employee or
former employee, pursuant to the terms of an employee benefit plan or any other
agreement under which such shares of stock or related rights were issued;
provided, however, that the aggregate cash consideration paid, or distributions
- -------- -------
made, by Borrower pursuant to this provision does not in any one (1) fiscal year
exceed an aggregate amount of Seven Hundred Fifty Thousand Dollars ($750,000)
plus the cash proceeds received by or contributed to Borrower from any
reissuance of its capital stock to members of management and employees of
Borrower and the subsidiaries); (d) Adverse Transactions. Enter into any
--------------------
transaction which materially and adversely affects the Collateral (taken as a
whole) or the ability of the Loan Parties to repay the obligations owing to
Lender in full as and when due; (e) Indebtedness of Others. Become directly
----------------------
or contingently liable for the Indebtedness of any Person, except (i) by
endorsement of instruments for deposit, (ii) as described on the Schedule, and
(iii) any guaranty of Indebtedness described on the Schedule permitted to be
incurred by this Agreement; (f) Intentionally Omitted. (g) Name. Use any
--------------------- ----
corporate or fictitious name other than its corporate name as set forth in its
Articles or Certificate of Incorporation on the date hereof without giving
Lender at least ten (10) days prior notice thereof; (h) Intentionally Omitted;
---------------------
(i) Intentionally Omitted; (j) Compensation. Pay total cash compensation,
--------------------- ------------
including salaries, withdrawals, fees, bonuses, commissions, drawing accounts
and other payments,
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FINOVA LOAN AND SECURITY AGREEMENT
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whether directly or indirectly, during any fiscal year to the five (5) most
highly compensated executives, officers and directors of the Loan Parties in an
amount in excess of the amount set forth on the Schedule; (k) Indebtedness.
------------
Create, incur, assume or permit to exist any Indebtedness (including
Indebtedness in connection with Capital Leases) except as set forth on the
Schedule; (l) Affiliate Transactions. Except as set forth below or otherwise
----------------------
permitted under this Agreement, sell, transfer, distribute or pay any money or
property to any Affiliate, or invest in (by capital contribution or otherwise)
or purchase or repurchase any stock or Indebtedness, or any property, of any
Affiliate, or become liable on any guaranty of the indebtedness, dividends or
other obligations of any Affiliate. Notwithstanding the foregoing, (A) the Loan
Parties may pay compensation permitted by Section 14(j) to employees who are
Affiliates, (B) a Loan Party may engage in transactions (including transferring
property or assets from one Loan Party to another Loan Party) with other Loan
Parties, and (C) a Loan Party may engage in transactions with Affiliates in the
normal course of business, in amounts and upon terms which are fully disclosed
to Lender and which are no less favorable to such Loan Party than would be
obtainable in a comparable arm's length transaction with a Person who is not an
Affiliate; (m) Nature of Business. Enter into any new business, other than
------------------
businesses reasonably related to existing businesses; (n) Amendment of
------------
Specified Indebtedness. Not, and not permit any other Loan Party to, amend,
- ----------------------
modify or alter agreements, instruments or documents evidencing the Specified
Indebtedness if the effect of such amendment or modification is to (i) increase
the principal amount of the Indebtedness evidenced by any such documents, (ii)
accelerate any date fixed for any payment of principal or interest on the
Indebtedness evidenced by any such documents, (iii) increase the interest rate
or any fees or charges, or add any fees or charges, payable in connection with
the Indebtedness evidenced by any such documents, (iv) make any covenant,
default or other provision contained herein more restrictive on any Loan Party,
or (v) amend or modify any provision of any such documents in a manner adverse
to Lender (provided, that so long as no Event of Default exists and no event
which, with notice or passage of time or both, would constitute an Event of
Default has occurred and is continuing, Borrower may amend, modify or alter the
agreements, instruments or documents evidencing the Indebtedness owing to Volvo
without the consent of Lender); (o) Subsidiaries. Form or acquire any
------------
subsidiaries (except in connection with the Tran-Star Acquisition); or (p)
Margin Security. Own, purchase or acquire (or enter into any contract to
- ---------------
purchase or acquire) any "margin security" as defined by any regulation of the
Federal Reserve Board as now in effect or as the same may hereafter be in
effect.
15. ENVIRONMENTAL MATTERS.
Borrower shall comply with the terms of that certain Environmental
Certificate of even date herewith, executed by Borrower in favor of Lender.
16. TERM; TERMINATION.
16.1 Term. The initial term of this Agreement shall be as set forth on the
----
Schedule (the "Initial Term") and shall be automatically renewed for successive
periods of one (1) year (each, a "Renewal Term"), unless earlier terminated as
provided herein.
16.2 Prior Notice. Each party shall have the right to terminate this
------------
Agreement at the end of the Initial Term or at the end of any Renewal Term by
giving the other party written notice not less than sixty (60) days prior to the
effective date of such termination, by registered or certified mail.
16.3 Payment in Full. Upon the effective date of termination, the
---------------
Obligations shall become immediately due and payable in full in cash.
16.4 Early Termination; Termination Fee. In addition to the procedure set
----------------------------------
forth in Section 16.2, Borrower may terminate this Agreement at any time upon
not less than twenty (20) days' prior written notice and prepay the Obligations;
provided, that if such prepayment of the Obligations does not occur within
- --------
fifteen (15) days of the date specified in such notice, this Agreement will not
terminate as a result of such notice and such notice shall have no force or
effect. Upon any such early termination by Borrower prior to the end of the
Initial Term or any termination of this Agreement by Lender upon the occurrence
of an Event of Default prior to the end of the Initial Term, then, and in any
such event, Borrower shall pay to Lender upon the effective date of such
termination a fee (the "Termination Fee") in an amount equal to the amount shown
on the Schedule; provided, that if Lender terminates this Agreement upon the
--------
occurrence of an Event of Default, the Termination Fee payable by Borrower
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
shall be reduced by the amount of the additional interest paid to Lender at the
Default Rate during the term of this Agreement over the interest that would have
been paid to Lender had the Default Rate not been in effect.
17. DEFAULT.
17.1 Events of Default. Any one or more of the following events shall
-----------------
constitute an Event of Default under this Agreement:
(i) Borrower fails to pay when due and payable any portion of the
Obligations at stated maturity, upon acceleration or otherwise;
(ii) Borrower or any other Loan Party fails or neglects to perform, keep,
or observe any term, provision, condition, covenant or agreement contained in
any Loan Document to which such Loan Party is a party and such failure shall
continue for twenty (20) days; provided, that, such twenty (20) day period shall
--------
not apply in the case of: (A) any failure to observe any such term, covenant,
condition or provision which is not capable of being cured in full within such
twenty (20) day period or which has been the subject of a prior failure within a
six (6) month period, (B) an intentional breach by Borrower or any other Loan
Party of any such term, covenant, condition or provision, (C) the failure to
observe or perform any of the covenants or provisions contained in Sections 4.4,
7, 13.14 or 14 of this Agreement or any covenants or agreements covering
substantially the same matter as such sections in any of the Loan Documents, or
(D) the failure to deliver any borrowing base or other collateral reporting or
Borrower's audited financial statements within five (5) days of the date when
due;
(iii) Any material adverse change occurs in business, assets, operations,
prospects or condition, financial or otherwise of the Loan Parties taken as a
whole;
(iv) The value or priority of Lender's security interest in the
Collateral (taken as a whole) is materially impaired;
(v) Any material portion of any Loan Party's assets is seized, attached,
subjected to a writ or distress warrant, is levied upon or comes into the
possession of any judicial officer;
(vi) Any Loan Party shall generally not pay its debts as they become due
or shall enter into any agreement (whether written or oral), or offer to enter
into any agreement, with all or a significant number of its creditors regarding
any moratorium or other indulgence with respect to its debts or the
participation of such creditors or their representatives in the supervision,
management or control of the business of such Loan Party;
(vii) Any bankruptcy or other insolvency proceeding is commenced by a Loan
Party, or any such proceeding is commenced against a Loan Party and remains
undischarged or unstayed for forty-five (45) days;
(viii) Any notice of lien, levy or assessment is filed of record with
respect to any of the Loan Parties' assets, which liens, levies or assessments
in the aggregate with respect to the Loan Parties are in excess of One Million
Dollars ($1,000,000);
(ix) Any judgments are entered against the Loan Parties in an aggregate
uninsured amount exceeding One Million Dollars ($1,000,000) unless such
judgments have been fully bonded and the execution thereof have been stayed;
(x) Any default shall occur under any agreement, instrument or document
evidencing any of the Specified Indebtedness or under any other Indebtedness
having an aggregate principal amount in excess of One Million Dollars
($1,000,000) and such default entitles the holder of such Indebtedness to
accelerate the maturity of such Indebtedness;
(xi) Any representation or warranty made or deemed to be made by Borrower
or any other Loan Party in any Loan Document or any other statement, document or
report made or delivered to Lender in connection therewith shall prove to have
been misleading in any material respect;
(xii) Any Guarantor terminates or attempts to terminate its guarantee or
becomes subject to any bankruptcy or other insolvency proceeding;
(xiii) Any Prohibited Transaction or Reportable Event shall occur with
respect to a Plan which has a material adverse effect on the financial condition
of the Loan Parties, taken as a whole; any liens upon the assets of the Loan
Parties in connection with any Plan shall arise, which liens involve in the
aggregate in excess of One Million Dollars ($1,000,000); or the Loan Parties and
their ERISA Affiliates create or permit the creation of any accumulated funding
deficiency in excess of One Million Dollars ($1,000,000), whether or not waived;
-14-
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
(xiv) A Change in Control (as defined in the Indenture) shall occur; or
(xv) The prepayment, purchase or redemption of any Specified Indebtedness
(including, without limitation, the Indebtedness under the Indenture (and notes
issued pursuant thereto)) unless otherwise consented to by Lender or unless
contemporaneously therewith the Payment Obligations are paid in full and this
Agreement is terminated (provided, that Borrower may prepay the Indebtedness
owing to Volvo so long as no Event of Default exists and no event which, with
notice or passage of time to both, would constitute an Event of Default has
occurred and is continuing and such prepayment is financed with Indebtedness
that is secured by the same type and amount of collateral that secures the
Indebtedness owing to Volvo).
17.2 Remedies. Upon the occurrence and continuance of an Event of
--------
Default, Lender may, at its option and in its sole discretion and in addition to
all of its other rights under the Loan Documents, terminate this Agreement and
declare all of the Obligations to be immediately payable in full. During the
continuance of an Event of Default, Lender shall also have all of its rights and
remedies under applicable law, including, without limitation, the default rights
and remedies of a secured party under the Code, and further, Lender may, at any
time, during the continuance of an Event of Default, take possession of the
Borrower Collateral and keep it on Borrower's premises, at no cost to Lender, or
remove any part of it to such other place(s) as Lender may desire or Borrower
shall, upon Lender's demand, at Borrower's sole cost, assemble the Borrower
Collateral and make it available to Lender at a place reasonably convenient to
Lender and Lender may sell and deliver any Borrower Collateral at public or
private sales, for cash, upon credit or otherwise, at such prices and upon such
terms as Lender deems advisable, at Lender's discretion, and may, if Lender
deems it reasonable, postpone or adjourn any sale of the Borrower Collateral by
an announcement at the time and place of sale or of such postponed or adjourned
sale without giving a new notice of sale. Borrower agrees that Lender has no
obligation to preserve rights to the Borrower Collateral or marshall any
Borrower Collateral for the benefit of any Person. Lender is hereby granted a
license or other right to use, without charge, Borrower's labels, patents,
copyrights, name, trade secrets, trade names, trademarks and advertising matter,
or any similar property, in completing production, advertising or selling any
Borrower Collateral and Borrower's rights under all licenses and all franchise
agreements shall inure to Lender's benefit. Any requirement of reasonable notice
shall be met if such notice is mailed postage prepaid to Borrower at its address
set forth in the heading to this Agreement at least ten (10) days before sale or
other disposition. The proceeds of sale shall be applied, first, to all
attorneys fees and other expenses of sale, and second, to the Obligations in
such order as Lender shall elect, in its sole discretion. Lender shall return
any excess to Borrower and Borrower shall remain liable for any deficiency to
the fullest extent permitted by law.
17.3 Standards for Determining Commercial Reasonableness. Borrower and
---------------------------------------------------
Lender agree that the following conduct by Lender with respect to any
disposition of Borrower Collateral shall conclusively be deemed commercially
reasonable (but other conduct by Lender, including, but not limited to, Lender's
use in its sole discretion of other or different times, places and manners of
noticing and conducting any disposition of Borrower Collateral shall not be
deemed unreasonable): Any public or private disposition as to which on no later
than the tenth calendar day prior thereto written notice thereof is mailed or
personally delivered to Borrower and, with respect to any public disposition, on
no later than the tenth calendar day prior thereto notice thereof describing in
general non-specific terms, the Borrower Collateral to be disposed of is
published once in a newspaper of general circulation in the county where the
sale is to be conducted, at any place designated by Lender, with or without the
Borrower Collateral being present, and which commences at any time between 8:00
a.m. and 5:00 p.m. (provided that no notice of any public or private
disposition need be given to Borrower if the Borrower Collateral is perishable
or threatens to decline speedily in value or is of a type customarily sold on a
recognized market). Without limiting the generality of the foregoing, Borrower
expressly agrees that, with respect to any disposition of accounts, instruments
and general intangibles, it shall be commercially reasonable for Lender to
direct any prospective purchaser thereof to ascertain directly from Borrower any
and all information concerning the same, including, but not limited to, the
terms of payment, aging and delinquency, if any, the financial condition of any
obligor or account debtor thereon or guarantor thereof, and any collateral
therefor.
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FINOVA LOAN AND SECURITY AGREEMENT
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18. DEFINITIONS.
18.1 Defined Terms. As used in this Agreement, the following terms have
-------------
the definitions set forth below:
"Affiliate" means any Person controlling, controlled by or under common control
---------
with a Loan Party. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause direction of
the management and policies of a Loan Party, whether through ownership of common
or preferred stock or other equity interests, by contract or otherwise.
"Appraisal" means an appraisal in form and substance acceptable to Lender with
---------
respect to the Eligible Equipment, prepared by an appraiser acceptable to
Lender.
"Base Rate" means the rate of interest announced publicly by Citibank, N.A.,
---------
from time to time as its "base rate" (or any successor thereto), which may not
be such institution's lowest rate. Each change on the Base Rate shall be
effective hereunder on the first day following the announcement of such change,
without notice of any kind.
"Base Rate Option" shall mean the interest rate option described in Section
----------------
3.1(A)(1)(a) of the Schedule.
"Base Rate Portion" shall mean the portion of the Revolving Loan, if any, which
-----------------
bears interest at the rate described in Section 3.1(A)(1)(a) of the Schedule.
"Borrower Collateral" has the meaning set forth in Section 4.1.
-------------------
"Business Day" means any day on which commercial banks in both Los Angeles,
------------
California and Phoenix, Arizona are open for business; provided, that with
--------
respect to all notices, determinations, fundings and payments in connection with
any LIBOR Rate Portion of the Revolving Loans, a Business Day means any day that
is also a day for trading by and between banks in U.S. Dollar deposits in the
interbank LIBOR market.
"Capital Expenditures" means all expenditures made and liabilities incurred for
--------------------
the acquisition of any fixed asset or improvement, replacement, substitution or
addition thereto which has a useful life of more than one (1) year and
including, without limitation, those arising in connection with Capital Leases
and which are required to be capitalized in accordance with generally accepted
accounting principles.
"Capital Lease" means any lease of property by a Loan Party that, in accordance
-------------
with generally accepted accounting principles, should be capitalized for
financial reporting purposes and reflected as a liability on the consolidated
balance sheet of Borrower.
"Closing" means the initial advance made by Lender pursuant to this Agreement.
-------
"Closing Date" means the date of the Closing.
------------
"Code" means the Uniform Commercial Code as adopted, amended, and in effect in
----
the State of Arizona from time to time.
"Collateral" means all property in which Lender has been granted a lien or
----------
security interest by a Loan Party as security for the Obligations, and includes,
without limitation, Borrower Collateral.
"Current Assets" at any date means the amount at which the current assets would
--------------
be shown on a consolidated balance sheet of Borrower as at such date, prepared
in accordance with generally accepted accounting principles, provided that
--------
amounts due from Affiliates and investments in Affiliates shall be excluded
therefrom.
"Current Liabilities" at any date means the amount at which the current
-------------------
liabilities would be shown on a consolidated balance sheet of Borrower as at
such date, prepared in accordance with generally accepted accounting principles.
"Default Rate" has the meaning set forth in Section 3.2.
------------
"Deposit Accounts" has the meaning set forth in Section 47-9105 of the Code.
----------------
"Eligible Equipment" means the rolling stock of the Loan Parties which is
------------------
subject to Lender's duly perfected, first priority security interest.
"Eligible Receivables" means all Receivables, other than any Interline
--------------------
Receivable (to the extent of the amount payable by a Loan Party to a common
carrier in connection therewith) and other than any Receivable with respect to
which (i) the account debtor has failed to pay the Receivable within a period of
ninety (90) days after invoice date, to the extent of any amount remaining
unpaid after such period; (ii) the account debtor has failed to pay more than
fifty percent (50%) of all outstanding Receivables owed by it to the Loan
Parties within ninety (90) days after invoice date; (iii) the account
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
debtor is an Affiliate of a Loan Party; (iv) the goods relating thereto are
placed on consignment, guaranteed sale, "bill and hold" or other terms pursuant
to which payment by the account debtor may be conditional; (v) the account
debtor is not located in the United States or Canada, unless the Receivable is
supported by a letter of credit or other form of guaranty or security, in each
case in form and substance satisfactory to Lender; (vi) if the account debtor is
the United States or any department, agency or instrumentality thereof or any
State, city or municipality of the United States, the obligations owing by the
United States exceed fifteen percent (15%) of all Eligible Receivables, to the
extent of such excess (and with respect to the United States Postal Service, in
excess of ten percent (10%), to the extent of such excess) (provided, that if an
Event of Default exists, the Receivables owing by the United States or any
department, agency or instrumentality thereof shall not be Eligible Receivables
unless the applicable Loan Party with respect thereto has complied with the
Federal Assignment of Claims Act); (vii) a Loan Party is liable to the account
debtor but only to the extent of such liability; (viii) the account debtor's
total obligations to the Loan Parties exceed ten percent (10%) (or with respect
to the account debtors listed on Exhibit E or any other account debtors approved
---------
by Lender in its reasonable discretion, twenty percent (20%) (provided, that
Lender reserves the right to reduce such percentage to ten percent (10%) if
there is a material adverse change in the business, assets or financial
condition of any such account debtor)) of all Eligible Receivables, to the
extent of such excess; (ix) the account debtor disputes liability or makes any
claim with respect thereto or with respect to a Loan Party (up to the amount of
such liability or claim), or is subject to any insolvency or bankruptcy
proceeding, or becomes insolvent, fails or goes out of a material portion of its
business; (x) the amount thereof consists of late charges or finance charges;
(xi) the face amount thereof exceeds Fifty Thousand Dollars ($50,000), unless
accompanied by the invoice relating thereto; or (xii) facts or events have
occurred which, in Lender's reasonable credit judgment (based on its
examinations and other credit and collateral considerations) adversely affect
the collectibility of such Receivable.
"Equipment" means all of a Loan Party's present and hereafter acquired
---------
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in such Loan Party's operations or owned by such Loan Party and
any interest in any of the foregoing, and all attachments, accessories,
accessions, replacements, substitutions, additions and improvements to any of
the foregoing, wherever located.
"Equipment Advance Rate" means seventy-five percent (75%); provided, that such
---------------------- --------
percentage shall be reduced by three (3) percentage points on the first day of
each August, November, February and May beginning August 1, 1997 until reduced
to sixty percent (60%).
"ERISA" means the Employment Retirement Income Security Act of 1974, as amended,
-----
and the regulations thereunder.
"ERISA Affiliate" means each trade or business (whether or not incorporated and
---------------
whether or not foreign) which is or may hereafter become a member of a group of
which a Loan Party is a member and which is treated as a single employer under
ERISA Section 4001(b)(1), or IRC Section 414.
"Event of Default" means any of the events set forth in Section 17.1 of this
----------------
Agreement.
"General Intangibles" means all general intangibles of Borrower, whether now
-------------------
owned or hereafter created or acquired by Borrower, including, without
limitation, interstate and intrastate operating authorities, all choses in
action, causes of action, corporate or other business records, Deposit Accounts,
inventions, designs, drawings, blueprints, patents, patent applications,
trademarks and the goodwill of the business symbolized thereby, names, trade
names, trade secrets, goodwill, copyrights, registrations, licenses, franchises,
customer lists, security and other deposits, rights in all litigation presently
or hereafter pending for any cause or claim (whether in contract, tort or
otherwise), and all judgments now or hereafter arising therefrom, all claims of
Borrower against Lender, rights to purchase or sell real or personal property,
rights as a licensor or licensee of any kind, royalties, telephone numbers,
proprietary information, purchase orders, and all insurance policies and claims
(including without limitation credit, liability, property and other
insurance)tax refunds and claims, computer programs, discs, tapes and tape
files, claims under guaranties, security interests or other security held by or
granted to Borrower to secure payment of any of the Receivables by an account
debtor, all rights to
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
indemnification and all other intangible property of every kind and nature
(other than Receivables).
"Guarantors" means any Person that executes a Guaranty, and includes, without
----------
limitation, the Persons set forth on the Schedule.
"Guaranty" means a guaranty of the Obligations, and includes, without
--------
limitation, each Continuing Guaranty of even date herewith from a Loan Party
(other than Borrower) in favor of Lender in a form acceptable to Lender.
"Indebtedness" means all of a Loan Party's Indebtedness, as defined in the
------------
Indenture as in effect on the date hereof.
"Indenture" means the Indenture dated as of November 15, 1995 among Borrower,
---------
the guarantors a party thereto and The Bank of New York, as Trustee.
"Initial Term" has the meaning set forth on the Schedule.
------------
"Interest Period" has the meaning set forth in the Schedule.
---------------
"Interest Rate Determination Date" has the meaning set forth in the Schedule.
--------------------------------
"Interline Receivable" means a Receivable arising under a transaction with an
--------------------
account debtor pursuant to which transaction the Loan Parties are not the only
common carriers providing services to such account debtor.
"Inventory" means all of Borrower's now owned and hereafter acquired goods,
---------
merchandise and other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in Borrower's business or
used in connection with the manufacture, packing, shipping, advertising, selling
or finishing of such goods, merchandise and other personal property, and all
documents of title or other documents representing them.
"IRC" means the Internal Revenue Code of 1986, as amended, and the regulations
---
thereunder.
"Landlord Reserve" means an amount equal to the sum of three (3) months rent for
----------------
all leased locations of any Loan Party with respect to which Lender has not been
provided a landlord waiver in the form of Exhibit C-1 hereto; provided, that no
----------- --------
reserve shall be required for Borrower's leased location at 301 Commerce, Suite
1101, Fort Worth, Texas 76102.
"Letters of Credit" has the meaning set forth in Section 1.4.
-----------------
"LIBOR Rate" shall mean, for any LIBOR Rate Portion, the per annum rate of
----------
interest which is ordinarily reported on page 3750 of the Telerate Matrix (in
U.S. Dollars) for a principal amount substantially equal to the amount of such
LIBOR Rate Portion and having a maturity comparable to the Interest Period
proposed to be applicable to such LIBOR Rate Portion, as quoted to Borrower by
Lender; provided, however, if, for whatever reason, Lender shall be unable to
-------- -------
ascertain the LIBOR Rate pursuant to the preceding provisions, the LIBOR Rate in
such circumstances shall be the rate per annum determined by Lender by dividing
--------
(the resulting quotient to be rounded upward to the nearest 1/100 of one
percent) (i) the per annum rate of interest at which deposits in U.S. Dollars in
an amount substantially equal to such LIBOR Rate Portion and having a maturity
comparable to the Interest Period proposed for such LIBOR Rate Portion, are
offered Citibank, N.A. or its affiliates in the London interbank market at
approximately 11:00 a.m. (London time) on the applicable Interest Rate
Determination Date, by (ii) a number equal to 1.0 minus the aggregate (but
-----
without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the applicable Interest Rate Determination Date
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other governmental authority having jurisdiction with respect thereto,
as now and from time to time in effect) for Eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board) which
are required to be maintained by Lender.
"LIBOR Rate Option" shall mean the interest rate option described in Section
-----------------
3.1(A)(1)(b) of the Schedule.
"LIBOR Rate Portion" shall mean the portion of the Revolving Loan, if any, which
------------------
bears interest at the rate described in subsection 3.1(A)(1)(b) of the Schedule.
"Loan Documents" means, collectively, this Agreement, the Guaranties, the
--------------
Security Agreements, any note or notes executed by Borrower and payable
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
to Lender in respect of amounts owing under this Agreement, and any other
agreement entered into in connection with this Agreement, such security
agreements, intellectual property assignments and mortgages as Lender may
require with respect to this Agreement or the Guaranties, together with all
alterations, amendments, changes, extensions, modifications, renewals,
restatements, or supplements, of or to any of the foregoing.
"Loan Party" means Borrower and each Guarantor.
----------
"Multiemployer Plan" means a "multiemployer plan" as defined in ERISA Sections
------------------
3(37) or 4001(a)(3) or IRC Section 414(f) which covers employees of a Loan Party
or any ERISA Affiliate and which is subject to IRC Section 412 or ERISA Section
302.
"Net Capital Expenditures" means, for any period, the amount of Capital
------------------------
Expenditures of the Loan Parties for such period, less the amount of proceeds
received by the Loan Parties from the disposition of Equipment (net of the
amount of such proceeds used to repay Indebtedness secured by such Equipment);
provided, that for purposes of this definition, if the Indebtedness repaid is
- --------
owing to Lender, the amount of Indebtedness deemed to be repaid will be an
amount equal to the product of the Equipment Advance Rate multiplied by the
Orderly Liquidation Value of the Equipment disposed of.
"Net Worth" at any date means Borrower's net worth as determined on a
---------
consolidated basis in accordance with generally accepted accounting principles,
consistently applied, excluding the effect of Restructuring Charges.
"Notice of Conversion/Continuation" shall mean a notice in the form of Exhibit
--------------------------------- -------
F.
- -
"Obligations" means all present and future loans, advances, debts, liabilities,
-----------
obligations, covenants, duties and indebtedness at any time owing by Borrower to
Lender under any of the Loan Documents, whether arising from an extension of
credit, opening of a letter of credit, banker's acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect, absolute or
contingent, due or to become due, including, without limitation, all interest,
charges, expenses, fees, attorney's fees and any other sums chargeable to
Borrower hereunder.
"Operating Cash Flow" means, for any period, Borrower's consolidated net income
-------------------
or loss (excluding the effect of any extraordinary items and Restructuring
Charges), determined in accordance with generally accepted accounting
principles, plus each of the following items (determined on a consolidated
----
basis) to the extent deducted from the revenues of Borrower in the calculation
of consolidated net income or loss: (i) depreciation; (ii) amortization; and
(iii) interest expense paid or accrued; less all actual Net Capital Expenditures
----
made (to the extent of the portion thereof not financed by a Person) during such
period. For purposes of this definition, Capital Expenditures shall be deemed
financed by Lender to the extent such Capital Expenditure involves the purchase
of vehicles and Lender obtains a perfected lien on such vehicles and the amount
so financed shall be deemed to be the product of the Equipment Advance Rate
multiplied by the purchase price of the Equipment purchased with such Capital
Expenditures.
"Operating Ratio" means, for any period, the ratio of operating expenses of
---------------
Borrower, on a consolidated basis, for such period (exclusive of interest
expense, tax expense, amortization expense, extraordinary expense and
Restructuring Charges), to revenues (excluding extraordinary income) of
Borrower, on a consolidated basis, for such period, in each case determined in
accordance with generally accepted accounting principals; provided, that
--------
depreciation shall be included in the amount of operating expenses only to the
extent the method of calculating such depreciation is consistent with Borrower's
past practices.
"Orderly Liquidation Value" means, with respect to the Eligible Equipment, the
-------------------------
orderly liquidation value of such Eligible Equipment as determined by the most
recently delivered Appraisal to Lender.
"Overlines" has the meaning set forth in Section 1.3.
---------
"Payment Obligations" means all Obligations other than (i) contingent
-------------------
obligations of Borrower with respect to which Lender has not asserted a claim
against Borrower, and (ii) non-monetary obligations of performance; provided,
--------
that Payment Obligations shall include the Obligations with respect to the
Letters of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Permitted Encumbrance" means each of the liens, mortgages and other security
---------------------
interests set forth on the Schedule and incorporated herein by this reference.
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FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
"Person" means any individual, sole proprietorship, partnership, joint venture,
------
trust, unincorporated organization, association, corporation, government, or any
agency or political division thereof, or any other entity.
"Plan" means any plan described in ERISA Section 3(2) maintained for employees
----
of a Loan Party or any ERISA Affiliate which is subject to IRC Section 412 or
ERISA Section 302, other than a Multiemployer Plan.
"Prepared Financials" means the balance sheets of Borrower as of the date set
-------------------
forth in the Schedule, and as of each subsequent date on which audited balance
sheets are delivered to Lender from time to time hereunder, and the related
statements of operations, changes in stockholder's equity and changes in cash
flow for the periods ended on such dates.
"Prohibited Transaction" means any transaction described in Section 406 of ERISA
----------------------
which is not exempt by reason of Section 408 of ERISA, and any transaction
described in Section 4975(c) of the IRC which is not exempt by reason of Section
4975(c)(2) of the IRC.
"Purchase Money Indebtedness" shall mean (i) any Indebtedness incurred for the
---------------------------
payment of all or any part of the purchase price or lease of any fixed asset
(including, without limitation, Equipment), (ii) any Indebtedness incurred for
the sole purpose of financing or refinancing all or any part of the purchase
price or lease of any fixed asset, and (iii) any renewals, extension or
refinancings thereof (but not any increases in the principal amounts thereof
outstanding at that time).
"Purchase Money Lien" shall mean any lien upon any fixed assets (including,
-------------------
without limitation, Equipment) which secures the Purchase Money Indebtedness
related thereto but only if such lien shall at all times be confined solely to
the asset the purchase price or lease of which was financed or refinanced
through the incurrence of the Purchase Money Indebtedness secured by such lien
and only if such lien secures such Purchase Money Indebtedness.
"Receivables" means all of a Loan Party's now owned and hereafter acquired
-----------
accounts (whether or not earned by performance), proceeds of any letters of
credit naming such Loan Party as beneficiary, contract rights, chattel paper,
instruments, documents and all other forms of obligations at any time owing to
such Loan Party, all guaranties and other security therefor, whether secured or
unsecured, all merchandise returned to or repossessed by such Loan Party, and
all rights of stoppage in transit and all other rights or remedies of an unpaid
vendor, lienor or secured party.
"Renewal Term" has the meaning set forth in the Schedule.
------------
"Reportable Event" means a reportable event described in Section 4043 of ERISA
----------------
or the regulations thereunder other than one as to which the requirement of a
thirty (30) day notice has been waived, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4068(f)
of ERISA.
"Restructuring Charges" means, for any period, the restructuring charges
---------------------
incurred by the Loan Parties during such period in connection with combining the
operations of acquired businesses with that of the Loan Parties; provided, that
--------
Restructuring Charges shall not include (i) any restructuring charges incurred
by the Loan Parties on or prior to the date hereof, or (ii) any portion of the
restructuring charges incurred after the date hereof in the aggregate amount in
excess of Five Million Dollars ($5,000,000).
"Revolving A Loans" has the meaning set forth in the Schedule.
-----------------
"Revolving B Loans" has the meaning set forth in the Schedule.
-----------------
"Revolving Loans" has the meaning set forth in the Schedule.
---------------
"Security Agreements" means a security agreement executed by a Guarantor, and
-------------------
includes, without limitation, each Security Agreement of even date herewith
between a Loan Party (other than Borrower) and Lender in a form acceptable to
Lender.
"Senior Contractual Debt Service" means, for any period, Total Contractual Debt
-------------------------------
Service (excluding the sum of payments under or required to be made by the Loan
Parties during such period for scheduled principal payments due under the
Indenture (and any notes issued pursuant thereto) and accrued interest (whether
or not paid) during such period on all such Indebtedness with respect to the
Indenture (and any notes issued pursuant thereto)).
"Specified Indebtedness" means the Indebtedness under the Indenture (and notes
----------------------
issued pursuant thereto) and Indebtedness under (i) that certain Loan and
Security Agreement dated February 21, 1996, by
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<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
and between Volvo, Borrower, W&L Services Corp., Thompson Bros., Inc., J.C.
Bangerter & Sons, Inc., CMS Transportation Services, Inc., Scales Transport
Corporation and C.B.S. Express, Inc. (collectively the "Volvo Borrowers"), (ii)
that certain Line of Credit Note dated February 21, 1996, issued by the Volvo
Borrowers to Volvo in the face amount of $10,000,000, (iii) that certain Mutual
Continuing Guaranty dated February 21, 1996, by each of the Volvo Borrowers in
favor of Volvo, (iv) that certain Financing Integration Agreement dated February
21, 1996 by and between Volvo and the Volvo Borrowers, and (v) those certain
Master Conditional Sales Contracts between each Volvo Borrower and Volvo.
"Total Contractual Debt Service" means, for any period, the sum of payments made
------------------------------
or required to be made by the Loan Parties during such period for scheduled
principal payments due on any and all Indebtedness of the Loan Parties and
accrued interest (whether or not paid) during such period on all such
Indebtedness.
"Total Facility" has the meaning set forth on the Schedule.
--------------
"Tran-Star Acquisition" means the acquisition of all of the capital stock of
---------------------
Tran-Star, Inc. pursuant to the terms of that certain Stock Purchase Agreement,
by and among Borrower, Allways Services, Inc. and Transtar Services, Inc., dated
as of March 31, 1997, a copy of which has been delivered to the Lender.
"Trademarks, Licenses and Patents" means all of Borrower's right, title and
--------------------------------
interest in and to: (i) trademarks, trademark registrations, trade names, trade
name registrations, and trademark or trade name applications, including without
limitation such as are listed on the Schedule, attached hereto and made a part
hereof, as the same may be amended from time to time, and (a) renewals thereof,
(b) all income, royalties, damages and payments now and hereafter due and/or
payable with respect thereto, including, without limitation, damages and
payments for past or future infringements thereof, (c) the right to sue for
past, present and future infringements thereof, (d) all rights corresponding
thereto throughout the world, and (e) the goodwill of the business operated by
Assignor connected with and symbolized by any trademarks or trade names; (ii)
license agreements, including without limitation such as are listed on the
Schedule attached hereto and made a part hereof, and the right to prepare for
sale, sell, and advertise for sale any Inventory now or hereafter owned by
Assignor and now or hereafter covered by such licenses; and (iii) patents and
patent applications, registered or pending, including without limitation such as
are listed on the Schedule, attached hereto, together with all income,
royalties, shop rights, damages and payments thereto, the right to sue for
infringements thereof, and all rights thereto throughout the world and all
reissues, divisions, continuations, renewals, extensions and continuations-in-
part thereof, and the goodwill of the business connected with the use of and
symbolized by such patents.
"Volvo " means Volvo Truck Finance North America, Inc.
-----
18.2 Other Terms. All accounting terms used in this Agreement, unless
-----------
otherwise indicated, shall have the meanings given to such terms in accordance
with generally accepted accounting principles, consistently applied. All other
terms contained in this Agreement, unless otherwise indicated, shall have the
meanings provided by the Code, to the extent such terms are defined therein.
19. MISCELLANEOUS.
19.1 Recourse to Security; Certain Waivers. All Obligations shall be
-------------------------------------
payable by Borrower as provided for herein and, in full, at the termination of
this Agreement; recourse to security will not be required at any time. Except
for notices expressly required by the Loan Documents, Borrower waives
presentment and protest of any instrument and notice thereof, notice of default
and, to the extent permitted by applicable law, all other notices to which
Borrower might otherwise be entitled.
19.2 No Waiver by Lender. Lender's failure to exercise any right, remedy
-------------------
or option under this Agreement or any supplement or other agreement between
Lender and Borrower or delay by Lender in exercising the same will not operate
as a waiver. No waiver by Lender will be effective unless in writing and then
only to the extent stated. No waiver by Lender shall affect its right to
require strict performance of this Agreement. Lender's rights and remedies will
be cumulative and not exclusive.
19.3 Binding on Successor and Assigns. All terms, conditions, promises,
--------------------------------
covenants, provisions and warranties shall inure to the benefit of and bind
Lender's and Borrower's respective representatives, successors and assigns.
-21-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
19.4 Severability. If any provision of this Agreement shall be prohibited
------------
or invalid under applicable law, it shall be ineffective only to such extent,
without invalidating the remainder of this Agreement.
19.5 Amendments; Assignments. This Agreement may not be modified, altered
-----------------------
or amended, except by an agreement in writing signed by Borrower and Lender.
Borrower may not sell, assign or transfer any interest in this Agreement or any
other Loan Document, or any portion thereof, including, without limitation, any
of Borrower's rights, title, interests, remedies, powers and duties hereunder or
thereunder. Borrower hereby consents to Lender's participation, sale,
assignment, transfer or other disposition, at any time or times hereafter, of
this Agreement and any of the other Loan Documents, or of any portion hereof or
thereof, including, without limitation, Lender's rights, title, interests,
remedies, powers and duties hereunder or thereunder; provided, that Lender may
--------
not assign any portion of such rights, title, interests, remedies, powers and
duties to any Person without the prior written consent of Borrower which will
not be unreasonably withheld or delayed and any such assignment shall be in a
minimum amount of Ten Million Dollars ($10,000,000); provided, further, that
-------- -------
Lender may assign all or any portion of such rights, title, interests, remedies,
powers and duties to an affiliate of Lender without the consent of Borrower. If
Lender enters into a participation arrangement, Lender shall continue to remain
solely responsible for the performance of its obligations hereunder and Borrower
shall continue to deal solely and directly with Lender. In connection
therewith, Lender may disclose all documents and information which Lender now or
hereafter may have relating to Borrower or Borrower's business. To the extent
that Lender assigns its rights and obligations hereunder to a third party,
Lender shall thereafter be released from such assigned obligations to Borrower
and such assignment shall not effect a novation between Borrower and such third
party.
19.6 Integration. This Agreement, together with the Schedule (which is a
-----------
part hereof) and the other Loan Documents, reflect the entire understanding of
the parties with respect to the transactions contemplated hereby.
19.7 Governing Law; Waivers. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
----------------------
MADE IN THE STATE OF ARIZONA AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF ARIZONA AND NOT THE CONFLICT OF LAWS RULES OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
BORROWER HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF MARICOPA, STATE OF ARIZONA OR IN ANY OTHER
COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER WAIVES
ANY OBJECTION OF FORUM NON CONVENIENS AND VENUE. BORROWER FURTHER WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE IN THE MANNER SET FORTH IN SECTION 19.13 HEREOF FOR
THE GIVING OF NOTICE.
19.8 Survival. All of the representations and warranties of Borrower
--------
contained in this Agreement shall survive the execution, delivery and acceptance
thereof by the parties. No termination of this Agreement or of any guaranty of
the Obligations shall affect or impair the powers, obligations, duties, rights,
representations, warranties or liabilities of the parties hereto and all shall
survive such termination.
19.9 Evidence of Obligations. Each Obligation may, in Lender's discretion,
-----------------------
be evidenced by notes or other instruments issued or made by Borrower to Lender.
If not so evidenced, such Obligation shall be evidenced solely by entries upon
Lender's books and records.
19.10 Collateral Security. The Obligations shall constitute one loan
-------------------
secured by the Collateral. Lender may, in compliance with the Loan Documents its
sole discretion, (i) exchange, enforce, waive or release any of the Collateral,
(ii) apply Collateral and direct the order or manner of sale thereof as it may
determine and (iii) settle, compromise, collect or otherwise liquidate any
Collateral in any manner without affecting its right to take any other action
with respect to any other Collateral. Lender will release its security interest
in the Collateral upon termination of this Agreement and payment in full of the
Payment Obligation. In connection with the release of any security interest in
-22-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
any of the Collateral, Lender will execute such documents as are reasonably
requested by Borrower to evidence such release.
19.11 Application of Collateral. Lender shall have the continuing and
-------------------------
exclusive right to apply or reverse and re-apply any and all payments to any
portion of the Obligations; provided, that so long as no Event of Default then
--------
exists, any payment to be applied to the principal balance of the Revolving
Loans, shall be applied to the Revolving A Loan and Revolving B Loans as
directed by Borrower. To the extent that Borrower makes a payment or Lender
receives any payment or proceeds of the Collateral for Borrower's benefit which
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, debtor in possession, receiver or
any other party under any bankruptcy law, common law or equitable cause, then,
to such extent, the Obligations or part thereof intended to be satisfied shall
be revived and continue as if such payment or proceeds had not been received by
Lender.
19.12 Loan Requests. Each oral or written request for a loan by any
-------------
Person who purports to be any employee, officer or authorized agent of Borrower
shall be made to Lender on or prior to 10:00 a.m., Chicago time, on the
Business Day on which the proceeds thereof are requested to be paid to Borrower
and shall be conclusively presumed to be made by a Person authorized by Borrower
to do so and the crediting of a loan to Borrower's operating account shall
conclusively establish Borrower's obligation to repay such loan; provided, that
--------
loans to bear interest with reference to the LIBOR Rate shall be requested as
set forth in the Schedule. Unless and until Borrower otherwise directs Lender in
writing, all loans shall be wired to Borrower's operating account set forth on
the Schedule.
19.13 Notices. Any notice required hereunder shall be in writing and
-------
addressed to Borrower and Lender at their addresses set forth at the beginning
of this Agreement (except for notices in connection with borrowings which shall
be delivered to such Lender's office as Lender shall specify). Notices
hereunder shall be deemed received on the earlier of receipt, whether by mail,
personal delivery, facsimile, or otherwise, or three (3) days after deposit in
the United States mail, postage prepaid.
19.14 Brokerage Fees. Borrower represents and warrants to Lender that,
--------------
with respect to the financing transaction herein contemplated, no Person is
entitled to any brokerage fee or other commission (except Smith Barney in the
amount not to exceed One Hundred Fifty Thousand Dollars ($150,000)) and Borrower
agrees to indemnify and hold Lender harmless against any and all claims for any
brokerage fee arising from obligations created by any Loan Party.
19.15 Disclosure. No representation or warranty made by Borrower in this
----------
Agreement, or in any financial statement, report, certificate or any other
document furnished in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact known to Borrower
which Borrower has not disclosed to Lender in writing with respect to the
transactions contemplated by this Agreement which materially and adversely
affects the business, assets, operations, prospects or condition (financial or
otherwise), of Borrower.
19.16 Publicity. Each party hereto is hereby authorized to issue
---------
appropriate press releases and to cause a tombstone to be published announcing
the consummation of this transaction and the aggregate amount thereof.
19.17 Captions. The Section titles contained in this Agreement are
--------
without substantive meaning and are not part of this Agreement.
19.18 Injunctive Relief. Borrower recognizes that, in the event Borrower
-----------------
fails to perform, observe or discharge any of its Obligations under this
Agreement, any remedy at law may prove to be inadequate relief to Lender.
Therefore, Lender, if it so requests, shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages.
19.19 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which taken together shall constitute one and the same
instrument.
19.20 Construction. The parties acknowledge that each party and its
------------
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
-23-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
19.21 Time of Essence. Time is of the essence for the performance by
---------------
Borrower of the Obligations set forth in this Agreement.
19.22 Limitation of Actions. Borrower agrees that any claim or cause of
---------------------
action by Borrower against Lender, or any of Lender's directors, officers,
employees, agents, accountants or attorneys, based upon, arising from, or
relating to this Agreement, or any other present or future agreement, or any
other transaction contemplated hereby or thereby or relating hereto or thereto,
or any other matter, cause or thing whatsoever, whether or not relating hereto
or thereto, occurred, done, omitted or suffered to be done by Lender, or by
Lender's directors, officers, employees, agents, accountants or attorneys,
whether sounding in contract or in tort or otherwise, shall be barred unless
asserted by Borrower by the commencement of an action or proceeding in a court
of competent jurisdiction by the filing of a complaint within one (1) year after
Borrower obtains knowledge of (but no more than three (3) years after,
regardless of whether Borrower has knowledge) the act, occurrence or omission
upon which such claim or cause of action, or any part thereof, is based and
service of a summons and complaint on an officer of Lender or any other person
authorized to accept service of process on behalf of Lender, within thirty (30)
days thereafter. Borrower agrees that such one (1) year period (or three (3)
year period, as applicable) of time is a reasonable and sufficient time for a
Borrower to investigate and act upon any such claim or cause of action. The one
(1) year period (or three (3) year period, as applicable) provided herein shall
not be waived, tolled, or extended except by a specific written agreement of
Lender. This provision shall survive any termination of this Loan Agreement or
any other agreement.
19.23 Liability. Neither Lender nor any Lender Affiliate shall be liable
---------
for any indirect, special, incidental or consequential damages in connection
with any breach of contract, tort or other wrong relating to this Agreement or
the Obligations or the establishment, administration or collection thereof
(including without limitation damages for loss of profits, business
interruption, and the like), whether such damages are foreseeable or
unforeseeable, even if Lender has been advised of the possibility of such
damages. Neither Lender, nor any Lender Affiliate shall be liable for any
claims, demands, losses or damages, of any kind whatsoever, made, claimed,
incurred or suffered by Borrower through the ordinary negligence of Lender, or
any Lender Affiliate (except to the extent incurred or suffered as a result of
Lender's or any Lender Affiliate's bad faith). "Lender Affiliate" shall mean
Lender's directors, officers, employees, agents, attorneys and any other person
or entity affiliated with or representing Lender.
19.24 Notice of Breach by Lender. Borrower agrees to give Lender written
--------------------------
notice of (i) any action or inaction by Lender or any attorney of Lender in
connection with any Loan Documents that may be actionable against Lender or any
attorney of Lender or (ii) any defense to the payment of the Obligations for
any reason, including, but not limited to, commission of a tort or violation of
any contractual duty or duty implied by law. Borrower agrees that unless such
notice is fully given as promptly as possible (and in any event within ninety
(90) days) after Borrower has knowledge, or with the exercise of reasonable
diligence should have had knowledge, of any such action, inaction or defense,
Borrower shall not assert, and Borrower shall be deemed to have waived, any
claim or defense arising therefrom.
19.25 Application of Insurance Proceeds. The net proceeds of any casualty
---------------------------------
insurance insuring the Collateral, after deducting all costs and expenses
(including attorneys' fees) of collection, shall be applied, at Lender's option,
either toward replacing or restoring the Collateral, in a manner and on terms
satisfactory to Lender, or toward payment of the Obligations. Subject to
Section 19.11, any proceeds applied to the payment of Obligations shall be
applied in such manner as Lender may elect. In no event shall such application
relieve Borrower from payment in full of all installments of principal and
interest which thereafter become due in the order of maturity thereof.
19.26 MUTUAL WAIVER OF RIGHT TO JURY TRIAL. LENDER AND BORROWER EACH
-------------------------------------
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY
OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN LENDER AND BORROWER; OR
(III) ANY CONDUCT, ACTS OR OMISSIONS OF LENDER OR BORROWER OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER
-24-
<PAGE>
FINOVA LOAN AND SECURITY AGREEMENT
----------------------------------------------------------------------
PERSONS AFFILIATED WITH LENDER OR BORROWER; IN EACH OF THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
19.27 Confidentiality. Lender agrees to keep confidential any financial
---------------
and other data and information of Borrower to the extent designated by Borrower
as confidential, provided that this section shall not preclude Lender from
furnishing any such data or information (a) as may be required by order of any
court of competent jurisdiction or requested by any governmental agency having
any regulatory authority over Lender, (b) to any other party to this Agreement,
(c) to any actual or prospective transferee of all or part of Lender's rights
arising out of or in connection with this Agreement so long as such prospective
transferee to whom disclosure is made agrees to be bound by the provisions of
this Section 19.27, (d) to anyone if it shall have been publicly disclosed
(other than by Lender in contravention of this Section 19.27), (e) to the extent
reasonably required in connection with the exercise of any right or remedy under
this Agreement and (F) to Lender's legal counsel, auditors, accountants or
affiliates, or such other Persons that in the ordinary course of Lender's
business, review Lender's loan documentation and credit material pertaining to
its borrowers.
BORROWER:
AMERITRUCK DISTRIBUTION CORP.
BY /s/ KENNETH H. EVANS JR.
------------------------
TITLE______________________
FEDERAL TAX I.D. NO. 72-2619368
LENDER:
FINOVA CAPITAL CORPORATION
BY /s/ CARLETON S. BREED
---------------------
TITLE___________________
-25-
<PAGE>
EXHIBIT 12
AMERITRUCK DISTRIBUTION CORP. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- ------------------
1997* 1996* 1997* 1996*
---------- -------- --------- -------
<S> <C> <C> <C> <C>
Earnings:
Loss before income taxes and
extraordinary items $(9,374) $ (853) $(12,294) $ (641)
------- ------ -------- ------
Fixed charges:
Interest expense and amortization
of debt discount and premium on
all indebtedness 4,778 3,955 9,272 7,643
Portion of rent under long-term
operating leases representative
of an interest factor 718 434 1,401 760
Redeemable preferred stock dividend
requirements 23 - 23 -
------- ------ -------- ------
Total fixed charges 5,519 4,389 10,696 8,403
------- ------ -------- ------
Earnings (loss) before income taxes,
extraordinary items and fixed charges $(3,855) $3,536 $ (1,598) $7,762
======= ====== ======== ======
Ratio of earnings to fixed charges /(1)/ - - - -
======= ====== ======== ======
</TABLE>
/(1)/ The Company's earnings were insufficient to cover fixed charges by
$9,374 and $853 for the three month periods ended June 30, 1997 and
1996. The Company's earnings were also insufficient to cover fixed
charges by $12,294 and $641 for the six month periods ended June 30,
1997 and 1996.
* Comparisons between periods are affected by acquisitions - see Note 2
contained in the unaudited Notes to Consolidated Financial Statements.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AMERITRUCK
DISTRIBUTION CORP'S CONSOLIDATED FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED
JUNE 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 39,525
<ALLOWANCES> 1,318
<INVENTORY> 2,109
<CURRENT-ASSETS> 62,027
<PP&E> 163,950
<DEPRECIATION> 33,427
<TOTAL-ASSETS> 261,459
<CURRENT-LIABILITIES> 55,223
<BONDS> 229,782
3,000
0
<COMMON> 42
<OTHER-SE> (9,867)
<TOTAL-LIABILITY-AND-EQUITY> 261,459
<SALES> 0
<TOTAL-REVENUES> 115,955
<CGS> 0
<TOTAL-COSTS> 118,872
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 240
<INTEREST-EXPENSE> 9,272
<INCOME-PRETAX> (12,294)
<INCOME-TAX> (4,057)
<INCOME-CONTINUING> (8,237)
<DISCONTINUED> 0
<EXTRAORDINARY> (243)
<CHANGES> 0
<NET-INCOME> (8,480)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
