RESTRUCTURE AGREEMENT
RESTRUCTURE AGREEMENT ("Agreement") dated as of November 27, 2000, by
and among GULF NORTHERN TRANSPORT, INC., a Wisconsin corporation ("Gulf
Northern"), PROSTAR, INC., a South Carolina corporation ("Prostar") and UST
LOGISTICS, INC., a Florida corporation ("UST Logistics"; together with Gulf
Northern and Prostar, individually and collectively, the "Borrowers"), U.S.
TRUCKING, INC. ("U.S. Trucking") and the other guarantors listed on the
signature pages hereto (the Borrowers and the Guarantors are each, individually,
a "Credit Party" and, collectively, the "Credit Parties") and GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation ("Lender" or "GE Capital").
W I T N E S S E T H:
WHEREAS, Lender and Borrowers have entered into certain financing
arrangements pursuant to the Loan and Security Agreement, dated as of December
22, 1998 by and between Lender and Borrowers (and as amended hereby, and as the
same may have heretofore been or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement", and
together with the Existing Forbearance Agreements (as defined below), all Loan
Documents and all other agreements, documents and instruments at any time
executed and/or delivered in connection therewith or related thereto,
collectively, the "Financing Agreements");
WHEREAS, as of the date hereof, Events of Default under the Loan
Agreement and the other Financing Agreements exist and are continuing;
WHEREAS, in connection with certain Events of Default, Lender and the
Credit Parties entered into that certain October, 2000 Amendment and Forbearance
Agreement, dated as of October 12, 2000 and that certain November, 2000
Amendment and Forbearance Agreement, dated as of November 7, 2000 (collectively
the "Existing Forbearance Agreement"), pursuant to which, inter alia, Lender
agreed to forbear from exercising its rights and remedies with respect to
certain Events of Default;
WHEREAS, as of the date hereof, Borrowers are in default under the
Existing Forbearance Agreement and the Forbearance Period, as defined therein,
has terminated;
WHEREAS, each of Gulf Northern, Prostar and UST Logistics has executed
and delivered in favor of Lender a Letter re: Surrender of Collateral;
WHEREAS, Each Credit Party has requested that Lender continue to
provide accommodations to or for the benefit of U.S. Trucking and/or the
Borrowers in an effort to assist them in their efforts to repay their respective
obligations to Lender;
WHEREAS, Lender and Credit Parties have agreed to certain modifications
of the financing arrangements as more particularly set forth below.
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NOW, THEREFORE, in consideration of the foregoing, and the respective
Agreements, warranties and covenants contained herein, the parties hereto agree
that:
SECTION 1. Interpretation.
1.1 All capitalized terms used herein (including the recitals hereto)
shall have the respective meanings assigned thereto in the Loan Agreement unless
otherwise defined herein, except that, the definition of "Obligations" as used
herein shall mean and include all "Obligations" as defined in the Loan Agreement
and all "Indebtedness" as defined in the Master Security Agreement dated
December 28, 1998 (the "GE/CEF Master Security Agreement") among U.S. Trucking,
Gulf Northern and GE Capital Commercial Equipment Funding (hereinafter,
"GE/CEF"). Unless otherwise referenced herein, all references to "Financing
Agreements" herein shall exclude the GE/CEF Agreements (as defined in Section
7.13 below).
SECTION 2. ACKNOWLEDGMENT
2.1 Acknowledgment of Obligations under the Loan Agreement. Credit
Parties hereby acknowledge, confirm and agree that as of the date hereof,
Borrowers are indebted to Lender in respect of the Revolving Credit Loan in the
principal amount of approximately $14,081,283 as of the close of business on
November 22, 2000, (the "Outstanding Revolving Credit Loans"). All such Loans,
together with interest accrued and accruing thereon, and fees, costs, expenses
and other charges now or hereafter payable by the Credit Parties to Lender, are
unconditionally owing by the Credit Parties to Lender, without offset, defense
or counterclaim of any kind, nature or description whatsoever.
2.2 Acknowledgment of Security Interests. Each Credit Party hereby
acknowledges, confirms and agrees that Lender has and shall continue to have
valid, enforceable and perfected first-priority liens upon and security
interests in the Collateral heretofore granted to Lender pursuant to the
Financing Agreements or otherwise granted to or held by Lender.
2.3 Binding Effect of Documents. Each Credit Party hereby acknowledges,
confirms and agrees that: (a) each of the Financing Agreements to which it is a
party has been duly executed and delivered to Lender by such Credit Party, and
each is in full force and effect as of the date hereof, (b) the Agreements and
obligations of such Credit Party contained in such documents and in this
Agreement constitutes the legal, valid and binding Obligations of such Credit
Party, enforceable against it in accordance with their respective terms, and the
Credit Parties have no valid defense to the enforcement of such Obligations, and
(c) Lender is and shall be entitled to the rights, remedies and benefits
provided for in the Financing Agreements and applicable law.
SECTION 3. ACKNOWLEDGMENT; NO WAIVER.
3.1 Acknowledgment of Default. Each Credit Party hereby acknowledges
and agrees that Events of Default have occurred and are continuing, each of
which entitles Lender to exercise its rights and remedies under the Financing
Agreements, applicable law or otherwise. Lender has not waived, presently does
not intend to waive and may never waive such Events of Default and nothing
contained herein or the transactions contemplated hereby shall be deemed to
constitute any such waiver. Each Credit Party hereby acknowledges and agrees
that Lender has the presently exercisable right to declare the Obligations to be
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immediately due and payable under the terms of the Financing Agreements and may
immediately decline, without notice of any kind, to make any advances or
extensions of credit to any Borrower, in its sole and absolute discretion, and
that Lender may exercise such right and all other rights and remedies against
each of the Credit Parties and/or the Collateral available to Lender under the
Financing Agreements and under applicable law without notice of any kind to any
Credit Party.
3.2 No Waivers; Reservation of Rights.
(a) Lender has not waived, is not by this Agreement waiving, and has no
intention of waiving, any Events of Default which may be continuing on the date
hereof or any Events of Default which may occur after the date hereof (whether
the same or similar to any existing Events of Default or otherwise), and Lender
has not agreed to forbear with respect to any of its rights or remedies
concerning any Events of Default which may have occurred or are continuing as of
the date hereof or which may occur after the date hereof.
(b) Lender reserves the right, in its discretion, to exercise any or
all of its rights and remedies under the Loan Agreement and the other Financing
Agreements as a result of any Events of Default which may be continuing on the
date hereof or any Event of Default which may occur after the date hereof, and
Lender has not waived any of such rights or remedies, and nothing in this
Agreement, and no delay on its part in exercising any such rights or remedies,
should be construed as a waiver of any such rights or remedies.
SECTION 4. AMENDMENTS AND SUPPLEMENTARY PROVISIONS
4.1 U.S. Trucking Promissory Note. (a) On or prior to November 29,
2000, to evidence U.S. Trucking's Obligations to Lender (including the
obligations under the GE Capital-CEF Agreements (as defined in Section 7.13
below)), U.S. Trucking shall execute and deliver a Promissory Note (the
"Trucking Note") in the original principal amount of the Obligations outstanding
as of November 27, 2000 (such Obligations, together with all other Obligations
accruing under the Financing Agreements after November 27, 2000, collectively,
the "Trucking Obligations"). The execution and delivery of the Trucking Note,
which shall be dated as of the date hereof, shall not relieve or discharge the
Borrowers or any other Credit Party (including U.S. Trucking) from their
respective joint and several obligations to repay the Obligations to Lender. The
Trucking Note shall provide that Trucking's Obligations shall be repaid in
thirty-six (36) consecutive monthly installments, of which the first three (3)
installments shall each be in the amount of $25,000, the next thirty-two (32)
installments shall each be in the amount of 1/60th of the sum of the principal
amount of the Trucking Obligations outstanding as of April 1, 2001 plus all
unpaid interest which has accrued as of April 1, 2001, plus the amount of
interest that shall accrue through December 31,2001 based upon the interest rate
in effect as of April 1, 2001 (it being expressly understood and agreed that the
interest which shall accrue from April 1, 2001 through December 31, 2001 shall
be adjusted on a monthly basis based upon the Index Rate in effect from time to
time), and the last and thirty-sixth (36th) installment shall be due and payable
on December 1, 2003 in an amount equal to the entire unpaid balance (including
all principal, interest, fees, costs and expenses)of the Trucking Note. Each
installment shall be paid on the first (1st) day of each month, commencing on
January 1, 2001. All Obligations evidenced by the Trucking Note shall be
immediately due and payable upon the occurrence of a Termination Event (as
defined in Section 5.4 below).
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(b) The Obligations evidenced by the Trucking Note shall bear interest
at the Index Rate plus 4.5%, except that, from and after the occurrence of a
Termination Event, the Trucking Note shall bear interest at the Index Rate plus
6.5%. From the date hereof up to the first anniversary of the date hereof,
interest payable under the Trucking Note shall accrue and be payable with the
thirty-sixth (36th) and final installment of the Trucking Note. Commencing with
the first anniversary of this Agreement, interest on the Trucking Note shall be
paid monthly on the first day of each month and shall be remitted
contemporaneously with the remittance of each principal installment due under
the Trucking Note.
(c) (i) U.S. Trucking may prepay the Trucking Note at any time without
penalty or premium. (ii) U.S. Trucking shall make or cause to be made mandatory
prepayments from the proceeds of any sale permitted under Section 4.5 below and,
on or prior to January 31, 2001, a prepayment in the amount of not less than
$800,000 from the sale of the capital stock of E-View, HBOA and Nexxus
Communication (or such lesser sum if and only if Lender, in its sole and
absolute discretion, consents, in writing, to the sale of such securities prior
to January 31, 2001 for an aggregate sale price of less than $800,000). Any
prepayments made under this Section 4.1 (c) (ii) being applied, first, against
accrued and unpaid interest, and second, against the unpaid principal
installments of the Trucking Note, in the inverse order of maturity thereof.
(iii) In addition, U.S. Trucking, any U.S. Trucking Affiliate and any other
Credit Parties shall make a mandatory prepayment in respect of the Trucking Note
(A) in an amount equal to thirty-five (35%) percent of such Person's pre-tax
income (exclusive of any non-cash income recognized from the discharge of any
indebtedness in any bankruptcy case of any Borrower and exclusive of any
non-cash income recognized from the collection of Borrowers' Accounts existing
on the date hereof in excess of the loss reserve booked by the Borrowers in
respect of such Accounts) as reflected in the Quarterly Financial Statements (as
defined in Section 4.10(b) below) and in the annual Financial Statements
required to be delivered under Section 4.10(c) below; and (B) in an amount equal
to five (5%) percent of the gross sales and other revenues from any Business
Interest (or one and one-half (1.5%) percent of the gross sales or other
revenues in the case of any segment of a Business Interest engaged solely in the
pickup or delivery of freight, whether as principal or agent). For the purposes
of this Section 4.1 (c) (iii) (A), to the extent that any Person or Persons
prepare their Financial Statements on a consolidated basis, then the required
prepayments under this sub-Section shall be made by such Persons on a joint and
several basis, without duplication. The prepayment required to be paid under
Section 4.1 (c) (iii) (A) above shall be remitted to Lender on a quarterly basis
within 45 days after the end of each such Person's first three (3) Fiscal
Quarters, and 90 days after the end of each such Person's Fiscal Year (with
respect to such Person's last Fiscal Quarter) and the prepayment required to be
paid under Section 4.1 (c) (iii) (B) above shall be remitted to Lender on a
daily basis to an account specified by Lender. Each prepayment required to be
made under this Section 4.1 (c) (iii) shall be applied first to accrued and
unpaid interest and second, to the unpaid principal installments of the Trucking
Note in the direct order of maturity thereof (as a way of example and for
purposes of clarity only, after the payment of any accrued and unpaid interest,
any remaining amounts shall be applied to the then current installment under the
Trucking Note; to the extent that there is any excess amounts, such excess shall
be applied against the immediately following monthly installment under the
Trucking Note, with any excess amounts continued to be applied against each
successive monthly installment under the Trucking Note in the same manner as
illustrated in this parenthetical, whether or not such installment is due).
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4.2 Collateral. So long as any of the Obligations remain unpaid, Lender
shall continue to maintain its first priority Lien upon the Collateral. The
principal face amount of the Trucking Note shall be reduced by the proceeds
indefeasibly received by Lender from the Collateral. Such proceeds shall be
applied against the Obligations first, against accrued and unpaid interest, and
second, against the unpaid principal installments of the Trucking Note, in the
inverse order of maturity thereof.
4.3 Wisconsin Real Property. Each Credit Party acknowledges, consents
and agrees that the net proceeds from the refinancing of the real property
located in Wisconsin Rapids, Wisconsin, which proceeds shall be in an amount of
not less than $220,000, shall be remitted to Lender on or prior to November 30,
2000 (the "Refinancing Proceeds"). Such Credit Party may direct Lender to prepay
the Trucking Note with Refinancing Proceeds, with such prepayment to be applied
first against accrued and unpaid interest, and second, to the unpaid principal
installments of the Trucking Note in the inverse order of maturity thereof.
Lender shall hold the Refinancing Proceeds pursuant to a cash collateral
arrangement satisfactory to Lender or, in Lender's sole discretion, such
Refinancing Proceeds may be used by such Credit Party to purchase a certificate
of deposit from a bank satisfactory to Lender, which certificate of deposit
shall be held by Lender and shall be subject to Lender's perfected first
priority interest therein. Prior to making such funds available to such Credit
Party to purchase a certificate of deposit, Lender shall have received from the
bank or financial institution issuing such certificate of deposit a written
agreement in favor of Lender agreeing and acknowledging that the certificate of
deposit to be issued is subject to Lender's perfected first priority security
interest therein. In connection therewith, the applicable Credit Party(s) shall
execute and deliver to Lender a pledge agreement with respect to the foregoing
which shall be in form and substance satisfactory to Lender in its sole
discretion. Without in any way limiting the foregoing, in the event that the
applicable Credit Party requests Lender to release the certificate of deposit or
cash collateral referenced in this Section 4.3 so that the proceeds thereof can
be used by such Credit Party to acquire a Business Interest permitted under
Section 4.4, Lender agrees to release its Lien upon the certificate of deposit
or cash collateral, provided that, contemporaneously with the release of such
Lien, Lender receives a replacement Lien on real or personal property acceptable
to Lender in its sole discretion, which property shall have a value (as
determined by Lender in its sole discretion) not less than the amount of the
certificate of deposit or cash collateral.
4.4 Permitted Investments. From and after the date hereof, U.S.
Trucking, W. Anthony Huff, Danny Pixler, the Huff Granchildren's Trust, or any
other Credit Party shall be permitted to acquire, establish or otherwise invest
in a Business Interest (as defined below) in a Person (such Person, together
with U.S. Trucking, W. Anthony Huff, Danny Pixler, the Huff Granchildren's
Trust, any other Credit Party executing this Agreement and any other Person now
owned or hereinafter directly or indirectly owned (whether in whole or in part)
by any of the foregoing Persons are hereinafter collectively referred to as a
"U.S. Trucking Affiliate"), provided that, in each instance, such Credit Party
provides Lender with not less than ten (10) days prior written notice thereof,
which notice shall describe such proposed transaction in detail satisfactory to
Lender. Any Person that becomes a U.S. Trucking Affiliate, after giving effect
to the acquisition of, investment in or establishment of such Business Interest
shall be a Credit Party hereunder and under the Financing Agreements. As used
herein, "Business Interest" shall mean any direct or indirect legal or
beneficial interest (whether as owner, lessor, investor or otherwise) in any
Person, including, without limitation, any equitable or ownership interest in
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such Person or any ownership interest in any Stock, real or personal property or
assets of such Person and shall further include the investment in, acquisition
of or establishment of any business related to the transportation of freight,
whether as agent, owner/operator, broker or otherwise. Any Person that becomes a
U.S. Trucking Affiliate after the date hereof shall execute and deliver a
Guaranty guarantying the Obligations of U.S. Trucking under the Trucking Note,
an allonge endorsement to the Trucking Note pursuant to which such Person shall
become a direct obligor thereunder, a general security agreement pursuant to
which such Person shall grant Lender a first priority security interest in the
assets of such Person, subject only to any lien granted to any third party that
provides the applicable Credit Party with financing used by such Credit Party to
acquire such Business Interest, and such other agreements and documents as
Lender shall request, including a pledge agreement pursuant to which Lender
shall be granted a first priority Lien upon the Stock of such Person.
4.5 Sale of Business Interest. In the event that any U.S. Trucking
Affiliate elects to sell all or any part of a Business Interest, such U.S.
Trucking Affiliate shall first obtain Lender's prior written consent which
consent shall not be unreasonably withheld, so long as the sale of such Business
Interest is not to a U.S. Trucking Affiliate or any Affiliate thereof. If the
sale of such Business Interest is to a U.S. Trucking Affiliate or any Affiliate
thereof, Lender's consent shall be in Lender's sole and absolute discretion. The
net proceeds from such sale shall be remitted to Lender for application to the
Obligations in such order and manner as Lender may elect, in its sole
discretion, except that with respect to the Trucking Note, such proceeds shall
be applied in accordance with Section 4.1 (c) (ii) above. Notwithstanding the
foregoing, Lender shall remit to such Credit Party any cash proceeds received
from such sale, for distribution to any Person that is not a U.S. Trucking
Affiliate that has a direct or indirect equity interest in such Business
Interest ("Non-Affiliated Owner"), in an amount equal to the product of (x) the
cash proceeds received from such sale multiplied by (y) fifty (50%) percent of
such Non-Affiliated Owner's equity interest in such Business Interest. In the
event that in connection with such sale, such Credit Party receives non-cash
consideration (e.g., stock, instruments, or notes), such non-cash consideration
shall be remitted to Lender and shall be subject to Lender's perfected first
priority security interest therein. In the event that Lender receives any cash
consideration in respect thereof, Lender shall make available to such Credit
Party for distribution to such Non-Affiliated Owner the applicable percentage of
such cash based upon the formula set forth above in this Section 4.5.
4.6 Stock Pledge. On or before December 4, 2000 each Credit Party,
including W. Anthony Huff, the Huff Grandchildren's Trust and Danny L. Pixler,
shall pledge, as collateral for the Obligations, all shares of Stock of U.S.
Trucking which are beneficially owned or controlled by such Credit Party and
which, as of the date hereof, are not pledged in favor of any other Person. In
connection therewith, such Credit Party shall execute and deliver in favor of
Lender a pledge agreement granting Lender a first priority security interest in
such Stocks and shall deliver, or cause to be deliver, the applicable stock
certificate together with stock powers with respect thereto and such other
documents and instruments as Lender may request in connection therewith, all of
which shall be in form and substance satisfactory to Lender in its sole
discretion. Except to the extent that they have heretofore granted a Lien upon
their respective interests in the Stock of U.S. Trucking, each of W. Anthony
Huff, the Huff Grandchildren's Trust and Danny L. Pixler agrees that they will
not pledge or otherwise grant a Lien upon their interest in the Stock of U.S.
Trucking from the date hereof up to and including the date that such Stock is
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received by Lender. In the event that any Stock of U.S. Trucking heretofore
pledged in favor of any Person by W. Anthony Huff, the Huff Grandchildren's
Trust and/or Danny L. Pixler becomes unencumbered, W. Anthony Huff, the Huff
Grandchildren's Trust and/or Danny L. Pixler agrees to deliver such Stock to
Lender as collateral for the Obligations. So long as no Termination Event
exists, Lender agrees not to exercise any voting rights with respect to the
shares of Stock of U.S. Trucking pledged to Lender hereunder.
4.7 Bankruptcy Cases. Each of the Borrowers has advised Lender that it
will file a Chapter 11 petition under Title 11 of the United States Code on or
prior to November 29, 2000 in the United States Bankruptcy Court located in
Jacksonville, Florida.. Each Borrower and other Credit Party agrees that it will
provide Lender with prior notice of any such filing and that it will cooperate
with Lender with respect to, among other things, the realization of the
Collateral. With respect to such petition, each of the Borrowers hereby agrees
that it will file an application with the Bankruptcy Court seeking the
appointment of a trustee in such bankruptcy case or, alternatively, each of the
Borrowers will consent to the appointment of a court appointed trustee in the
event that Lender, in its discretion, files a motion for the appointment of a
court appointed trustee in each such bankruptcy case(s). In addition, in any
such insolvency or bankruptcy case, each of the Credit Parties hereby agrees
that: (a) it will not object to or oppose a sale or other disposition of any
assets securing the Obligations (or any portion thereof) free and clear of
security interests, liens or other claims under Section 363 of the Bankruptcy
Code or any other provision of the Bankruptcy Code if Lender has consented to
such sale or disposition of such assets, and (b) it will not initiate or
prosecute or encourage any other Person to initiate or prosecute any claim,
action or other proceeding against Lender or any of the Collateral (i)
challenging the enforceability of the Lender's claim, (ii) challenging the
enforceability of any liens or security interests in assets securing the
Obligations or (iii) asserting any claims which any Borrower may hold with
respect to the Lender (and its successors and assigns, and its present and
former shareholders, affiliates, subsidiaries, divisions, predecessors,
directors, officers, attorneys, employees, agents and other representatives),
the Obligations or the Collateral.
4.8 Consent Judgments. On or prior to November 28, 2000, each Credit
Party executing this Agreement shall execute and deliver in favor of Lender such
documents as Lender and its counsel shall require permitting Lender to enter
judgment against such Credit Party in a court of competent jurisdiction
("Confessions of Judgment"). Each Confession of Judgment shall be held in escrow
by Lender until the occurrence of a Termination Event. From and after the
occurrence of a Termination Event, Lender shall be permitted to insert the
amount of principal and interest due to Lender and to enter judgment against
each such Credit Party or any of them. Each Credit Party acknowledges that such
judgment shall be final, not subject to appeal and any right of appeal, whether
under applicable law or otherwise, is hereby expressly waived. Lender agrees to
give the applicable Credit Party two (2) Business Days written notice, pursuant
to Section 7.10 hereof, of the occurrence of a Termination Event prior to
enforcing such Confession of Judgment and Lender will not enter judgment
pursuant to such Confession of Judgment if the Termination Event has been cured
or remedied. If such Termination Event is not capable of being cured or if such
Termination Event relates to a default in the payment, when due, of any amount
under the Trucking Note, including the payment of any mandatory prepayment
required to be paid hereunder, or if Lender is prevented from giving such notice
under applicable law, including the automatic stay under Title 11 of the United
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States Code, then Lender shall be permitted to enforce the judgment or judgments
pursuant to the Confessions of Judgment without notice to any Credit Party.
4.9 Kentucky Real Property. On or prior to December 8, 2000, Lender
shall receive an appraisal of the Grayson County, Kentucky property, which shall
be in form and substance satisfactory to Lender. In addition, with respect to
the Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing executed and deliver by the Huff Grandchildren's Trust with respect to
the real property located in Grayson County, Kentucky, Lender shall enter into a
separate agreement with the Huff Grandchildren's Trust providing, among other
things, that Lender shall agree to forbear for exercising its rights and
remedies under such mortgage so long as no Termination Event shall exist, and
subject to other terms and conditions satisfactory to Lender.
4.10 Financial Statements. (a) (i) On or prior to December 1, 2000, W.
Anthony Huff, Danny Pixler, and the Huff Grandchildren's Trust shall each
deliver to Lender a personal financial statement in form and substance
satisfactory to Lender, which financial statements shall be duly executed by
such Person. In addition, on a calendar quarter basis, commencing with the
calendar quarter ending March 31, 2001, W. Anthony Huff, Danny Pixler, and the
Huff Grandchildren's Trust shall each deliver to Lender an updated personal
financial statement in form and substance satisfactory to Lender. Such updated
personal financial statement shall be dated as of the end of such calendar
quarter and shall be delivered to Lender within ten (10) Business Days after the
end of each such calendar quarter. (ii) (A) With respect to Sheri Huff, W.
Anthony Huff hereby represents and warrants that since November, 1998, except
for required alimony payments, W. Anthony Huff, the Huff Grandchildren's Trust,
Sebrite Investment Corporation, Logistics Management LLC or any other Person
that is an Affiliate of W. Anthony Huff has not transferred, either directly or
indirectly, any real or personal, tangible or intangible, property to Sheri Huff
or any Person that is an Affiliate of Sheri Huff and (B) with respect to Roxann
Pixler, Danny Pixler hereby represents and warrants that since November, 1998,
Danny Pixler or any other Person that is an Affiliate of Danny Pixler has not
transferred, either directly or indirectly, any real or personal, tangible or
intangible, property to Roxann Pixler or any Person that is an Affiliate of
Roxann Pixler.
(b) Within forty-five (45) days following the end of each of such
Credit Party's first three (3) Fiscal Quarters, each Credit Party (other than W.
Anthony Huff, the Huff Grandchildren's Trust, Danny L. Pixler and any Credit
Party that is a debtor under Title 11 of the United States Code), in addition to
the Financial Statements required to be delivered under the Loan Agreement,
shall deliver to Lender the Financial Statements for such Fiscal Quarter, which
shall provide comparisons to budget and actual results for the corresponding
period during the prior Fiscal Year, both on a quarterly and year-to-date basis,
and accompanied by a certification by the Chief Executive Officer or Chief
Financial Officer of such Corporate Credit Party that such Financial Statements
are complete and correct and that no Termination Event under this Agreement
exists (the "Quarterly Financial Statements").
(c) Within ninety (90) days following the close of each Fiscal Year,
each Credit Party (other than W. Anthony Huff, the Huff Grandchildren's Trust
and Danny L. Pixler and any Credit Party that is a debtor under Title 11 of the
United States Code), in addition to the Financial Statements required to be
delivered under the Loan Agreement, shall deliver to Lender the Financial
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Statements for such Fiscal Year certified without qualification by an
independent certified accounting firm acceptable to Lender, which shall provide
comparisons to the prior Fiscal Year, and shall be accompanied by (i) a
statement in reasonable detail showing the calculations used in determining
compliance with the financial covenants hereunder, (ii) a report from Borrower's
accountants to the effect that in connection with their audit examination
nothing has come to their attention to cause them to believe that a Default has
occurred or specifying those Defaults of which they are aware, and (iii) any
management letter that may be issued. To the extent that any Financial
Statements are prepared on a consolidated basis, then the Credit Parties which
are the subject of such consolidated Financial Statements shall be required to
only deliver such consolidated Financial Statements and not a separate Financial
Statement prepared for each such Credit Party.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS Each Credit Party
hereby represents, warrants and covenants with and to Lender as follows:
5.1 Representations in Financing Agreements. Each of the
representations and warranties made by or on behalf of the Credit Parties to
Lender in any of the Financing Agreements was true and correct when made and in
all material respects is, except for the representation and warranty set forth
in the Loan Agreement relating to the non-existence of an Event of Default, true
and correct on and as of the date of this Agreement with the same full force and
effect as if each of such representations and warranties had been made by the
Credit Parties on the date hereof and in this Agreement.
5.2 Binding Effect of Documents. This Agreement and the other Financing
Agreements have been duly executed and delivered to the Lender by the Credit
Parties and are in full force and effect, as modified hereby.
5.3 No Conflict, Etc. The execution and delivery and performance of
this Agreement by Borrowers will not violate any Requirement of Law or
Contractual Obligation of the Credit Parties and will not result in, or require,
the creation or imposition of any Lien on any of its properties or revenues.
5.4 Termination Events; Additional Events of Default. (a) The parties
hereto acknowledge, confirm and agree that each of the following shall
constitute a Termination Event hereunder (each such event, a "Termination
Event"): (i) any misrepresentation by any Credit Party; (ii) any failure of any
Credit Party to comply with the covenants, provisions, conditions and agreements
contained in any Financing Agreement, in this Agreement or in any other
agreement, document or instrument at any time executed and/or delivered by any
Credit Party with, to or in favor of Lender, including, without limitation, the
breach of any representation, warranty or covenant contained herein, including
those set forth in Section 4.6 hereof and including the investment in,
establishment of or acquisition of any Business Interest other than in
compliance with Section 4.4 hereof, (iii) the failure to make any payment when
due under the Trucking Note or failure to make any other payment when due
required to be made hereunder, (iv) any misrepresentation, omission, untrue or
incorrect statements contained in any of the financial statements heretofore
delivered to Lender under the Financing Agreements or required to be delivered
under Section 4.10 hereof, (v) with respect to any U.S. Trucking Affiliate
(other than Borrowers) the occurrence of any default under Sections 7.1 (e), (f)
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or (g) of the Loan Agreement, or (vi) the failure of the Borrowers to file the
bankruptcy petition as required under Section 4.7 hereof or the failure to
consent to the appointment of a court appointed trustee as required under
Section 4.7. From and after the date hereof, the breach by any Borrower that is
a debtor under Title 11 of the United States Code of a covenant contained
herein, after the commencement of such bankruptcy case, which relates to the
failure of such Borrower to take any action required to be taken hereunder,
shall not constitute a Termination Event.
(b) The occurrence of a Termination Event shall constitute an Event of
Default under this Agreement, the Loan Agreement and the other Financing
Agreements. In the event any Person, other than Lender, shall at any time
exercise for any reason any of its rights or remedies against any Credit Party
or any obligor providing credit support for such Credit Party's obligations to
such other Person, or against such Credit Party's or such obligor's properties
or assets, and obtain a judgment for an amount in excess of $100,000 such event,
unless stayed, remedied or cured within sixty (60) days, shall constitute an
immediate Termination Event hereunder and an immediate Event of Default under
the Loan Agreement.
SECTION 6. ADDITIONAL DOCUMENTS/COVENANTS.
6.1 Additional Financial Statements. Lender shall receive, on or prior
to the dates set forth below, the following documents:
(a) On or prior to December 1, 2000, all bank statements, brokerage
statements and all other reports and other information, documentation and
correspondence for the months of September and October, 2000 from Fifth Third
Bank, Fifth Third Securities or any other financial intermediary with respect to
any deposit accounts, trust accounts, bank accounts, investment or other
accounts of W. Anthony Huff, his spouse, the Huff Grandchildren's Trust, Sebrite
Investment Corporation, and Logistics Management LLC, or relating to any loans
or other transactions with any such Persons. In addition, commencing December,
2000 and each month thereafter, Lender shall receive all bank statements,
brokerage statements and all other correspondence with respect to the HBOA.com,
Inc. stock Pledged to Lender on a current monthly basis.
(b) On or prior to November 29, 2000, Lender shall receive a bailment
agreement in form and substance satisfactory to Lender with any Person in
possession of the Nexus stock. On or prior to December 4, 2000, Lender shall
receive original stock certificate(s), together with the power of attorney duly
executed in blank, with respect to the Nexus stock pledged in favor of Lender as
security for the Obligations.
(c) On or prior to December 1, 2000, Borrowers shall deliver to Lender
an analysis of Borrowers' loss for the nine months ended September 30, 2000, in
detail satisfactory to Lender, including, without limitation, a detailed summary
of all Account write-offs during such period.
(d) On or prior to December 1, 2000, Borrowers shall deliver to Lender
a reconciliation of Borrowers' and Guarantors' cash balance as of September 30,
2000, to Borrowers' and Guarantors' cash balance as of January 1, 2000, and
including without limitation, all cash flows among Borrowers and Guarantors and
their respective affiliates, in form and detail satisfactory to Lender.
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6.2 Additional Covenants.
(a) Credit Parties shall, (i) on or prior to December 1, 2000 provide
Phoenix Advisors and Collection Inc. ("Phoenix"), at Gulf Northern's location at
13920 Thomas Imeson Avenue, Jacksonville, Florida or at such other address as
Lender or Phoenix shall direct, with all books and records and supporting
documentation relating to the accounts of the Borrowers, including, without
limitation, all bills of lading with respect to all paid and unpaid accounts,
rate confirmation sheets, trailer interchanges and proofs of delivery, and such
other documentation as Phoenix may request from time to time, (ii) on or prior
to December 10, 2000, certify to Lender that all chassis and containers have
been returned to their appropriate owner or agent and that all customer freight
has been delivered and all of the Borrowers' owned or leased equipment has been
returned from shipper's locations to the sites agreed to among Credit Parties
and Lender; and (iii) on or prior to December 1, 2000, mail, for the benefit of
Lender, all invoices for any goods sold or services rendered as of the date
hereof, which, as of the date hereof, have not yet been billed.
(b) In connection with the winding down of the business operations of
the Borrowers (including, without limitation, the container division, air
freight operation and truck loading operation), each Credit Party covenants that
such a wind down will be conducted in a safe and efficient manner, in compliance
with applicable law.
(c) Each Credit Party will assist and cooperate with Lender, its agents
and designees (including Phoenix) in the collection and realization of the
Collateral. Each Credit Party shall further provide any and all documentation
and information with respect to the Collateral as Lender may request from time
to time in connection therewith.
(d) Each Credit Party shall provide Lender, on or prior to December 1,
2000, with a detailed schedule (together with all supporting documents) of all
pending litigation or any potential litigation or action which such Credit Party
has or may have with respect to the Collateral, the business affairs of such
Credit Party or any other matter where such Credit Party, in good faith,
believes that such Credit Party has an action or cause of action of any kind
against any Person.
SECTION 7. PROVISIONS OF GENERAL APPLICATION
7.1 Effect of this Agreement. (a) Except as modified pursuant hereto,
no other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Agreement and the other Financing Agreements, the terms of this Agreement shall
control. The Loan Agreement and this Agreement shall be read and construed as
one Agreement.
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(b) When pursuing its rights and remedies, Lender, may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Credit Parties or any other Person or against any Collateral or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by the Lender, to pursue such other rights or remedies or to collect any
payments from any Credit Party or any such other Person or to realize upon any
such Collateral or guarantee or to exercise any such right of offset, or any
release of any Credit Party or any such other Person or any such Collateral,
guarantee or right of offset shall not relieve any Credit Party of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express implied or available as a matter of law, of the Lender against any
Credit Party.
7.2 Costs and Expenses. Each Credit Party absolutely and
unconditionally agrees to pay to the Lender, on demand by the Lender at any time
and as often as the occasion therefor may require, whether or not all or any of
the transactions contemplated by this Agreement are consummated: all fees and
disbursements of any counsel to Lender in connection with the preparation,
negotiation, execution, or delivery of this Agreement and any other agreement,
document or instrument delivered in connection with the transactions
contemplated hereby and expenses which shall at any time be incurred or
sustained by the Lender or any participant of Lender or any of their respective
directors, officers, employees or agents as a consequence of or in any way in
connection with the preparation, negotiation, execution, or delivery of this
Agreement and any other agreement, document or instrument prepared, negotiated,
executed or delivered in connection with the transactions contemplated hereby.
7.3 Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
7.4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns, including any debtor in possession or trustee in bankruptcy.
7.5 Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by Lender or any closing shall
affect the representations and warranties or the right of Lender to rely upon
them.
7.6 Release.
(a) In consideration of the Agreements of Lender contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each Credit Party, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges the
Lender, and its successors and assigns, and its present and former shareholders,
affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (the Lender and all such
other Persons being hereinafter referred to collectively as the "Releasees" and
individually as a "Releasee"), of and from all demands, actions, causes of
action, suits, covenants, contracts, controversies, Agreements, promises, sums
of money, accounts, bills, reckonings, damages and any and all other claims,
counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
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(individually, a "Claim" and collectively, "Claims") of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which
such Credit Party or any of its successors, assigns, or other legal
representatives may now or hereafter own, hold, have or claim to have against
the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause or thing whatsoever which arises at any time on or prior to the
day and date of this Agreement, including, without limitation, for or on account
of, or in relation to, or in any way in connection with any of the Loan
Agreement, or any of the other Financing Agreements or transactions thereunder
or related thereto.
(b) Each Credit Party understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be
used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of
such release.
(c) Each Credit Party agrees that no fact, event, circumstance,
evidence or transaction which could now be asserted or which may hereafter be
discovered shall affect in any manner the final, absolute and unconditional
nature of the release set forth above.
7.7 Covenant Not to Sue. Each Credit Party, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that it will not sue (at law, in equity, in any regulatory proceeding
or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by such Credit Party pursuant to Section 7.6 above. If any Credit
Party or any of its successors, assigns or other legal representations violates
the foregoing covenant, such Credit Party, for itself and its successors,
assigns and legal representatives, agrees to pay, in addition to such other
damages as any Releasee may sustain as a result of such violation, all
attorneys' fees and costs incurred by any Releasee as a result of such
violation.
7.8 Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement.
7.9 Reviewed by Attorneys. Each Credit Party represents and warrants to
Lender that it (a) understands fully the terms of this Agreement and the
consequences of the execution and delivery of this Agreement, (b) has been
afforded an opportunity to have this Agreement reviewed by, and to discuss this
Agreement and document executed in connection herewith with, such attorneys and
other persons as such Credit Party may wish, and (c) has entered into this
Agreement and executed and delivered all documents in connection herewith of its
own free will and accord and without threat, duress or other coercion of any
kind by any Person. The parties hereto acknowledge and agree that neither this
Agreement nor the other documents executed pursuant hereto shall be construed
more favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiation and preparation of this Agreement and the other documents
executed pursuant hereto or in connection herewith.
7.10 Governing Law: Consent to Jurisdiction and Venue. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE FINANCING AGREEMENTS, IN ALL
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RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OTHER FINANCING AGREEMENTS AND THE OBLIGATIONS ARISING UNDER
THE FINANCING AGREEMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN ANY CREDIT PARTY AND LENDER PERTAINING TO THIS AGREEMENT OR
ANY OF THE OTHER FINANCING AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS; PROVIDED, THAT
LENDER AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK; AND FURTHER PROVIDED,
THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
LENDER. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT
PARTY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH HEREIN
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
CREDIT PARTY'S' ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID.
7.11 Mutual Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN LENDER AND THE CREDIT PARTIES
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ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED THERETO.
7.12 Specific Enforcement. Each Credit Party hereby acknowledges that
Lender will be irreparably damaged by the failure to comply with the covenants
and agreements set forth herein and Lender may demand specific performance of
this Agreement. Each Credit Party hereby irrevocably waives any defense based on
the adequacy of a remedy at law and any other defense which might be asserted to
bar the remedy of specific performance in any action which may be brought by
Lender against such Credit Party for specific performance of this Agreement or
any transaction contemplated hereunder or related hereto.
7.13 Agreements with GE/CEF. As of the date hereof, certain Credit
Parties have executed and delivered the GE/CEF Master Security Agreement, that
certain Master Lease Agreement dated December 22, 1998 and various notes,
agreements, guaranties and documents executed and delivered in connection
therewith (as the same exists or may hereafter be amended, modified, renewed,
supplemented or extended, collectively, the "GE/CEF Agreements"). Each of the
parties hereto acknowledge, confirm and agree that (a) except as explicitly
stated herein, nothing contained herein shall prejudice, waive, compromise,
settle, impair or otherwise affect, or deemed to prejudice, waive, compromise,
settle, impair or otherwise affect, in any manner whatsoever, any rights,
claims, interests, or remedies which GE/CEF has or may have against any Credit
Party under the GE/CEF Agreements, or any transaction relating thereto or
arising thereunder; and (b) the execution and delivery of this Agreement and the
agreements and understandings set forth herein are between each of the Credit
Parties hereto and the Business Credit unit of General Electric Capital
Corporation.
Credit Parties hereby absolutely convey, transfer and assign to GE/CEF
the GE/CEF Rolling Stock (as hereinafter defined) listed on Schedule 7.13
annexed hereto. The Credit Parties collectively acknowledge GE/CEF's intention
to sell, at a private sale transaction (the "Sale"), the GE/CEF Rolling Stock as
a result of some or all of such Credit Parties' monetary defaults, all of which
remain uncured, under the GE/CEF Agreements. The Sale shall take place at Gulf
Northern's offices in Wisconsin Rapids, Wisconsin on or after November 28, 2000.
Credit Parties hereby collectively waive any notice of the Sale, whether
required either by law, under the GE/CEF Agreements or otherwise. The Credit
Parties expressly acknowledge and agree that their waiver of notice of the Sale
is reasonable notification in light of the possible diminution in value of the
GE/CEF Rolling Stock that may result if the Sale were not to occur immediately.
Such property listed on Schedule 7.13 that is to be sold, or the leased property
to be relet or otherwise disposed of at the Sale, shall include all rolling
stock which GE/CEF owns as lessor, or in which GE/CEF has a leasehold interest
under the GE/CEF Agreements (collectively, the "GE/CEF Rolling Stock").
With respect to any and all GE/CEF Rolling Stock which GE/CEF owns as a
lessor or in which GE/CEF has a leasehold interest under the GE/CEF Agreements
that is not listed on Schedule 7.13 (collectively, the "Non-Schedule 7.13
Rolling Stock"), Credit Parties hereby acknowledge and agree not to oppose any
motion filed by Lender to lift the automatic stay in any bankruptcy cases
commenced by any Credit Party such that Lender may sell such Non-Schedule 7.13
Rolling Stock in a private sale in the manner as set forth in the immediately
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preceding paragraph. Credit Parties hereby agree to assemble and return each
item of Non-Schedule 7.13 Rolling Stock to facilities or terminals as Lender
shall designate. Subsequent to such return of the GE/CFC Rolling Stock by the
Credit Parties as aforesaid, the Credit Parties acknowledge and agree that they
shall have no further interest in or to the GE/CFC Rolling Stock.
In consideration of the Credit Parties' agreements contained in this
Section 7.13, GE/CEF hereby acknowledges and agrees that solely with respect to
those obligations due and owing from the Credit Parties to GE Capital as
evidenced by the GE/CEF Agreements, the deficiency balance thereunder shall be
an amount equal to the following: (a) in the case of the year 2000 volvo
tractors (the "Tractors") only, an amount equal to: the lesser of (i) the actual
deficiency due and owing from the Credit Parties to GE Capital under the GE/CEF
Agreements following the Sale; or (ii) the deficiency that would result if each
such Tractor were sold for an amount equal to Fifty Five Thousand and no/100
Dollars ($55,000); and (b) in the case of all other items of GE/CEF Rolling
Stock, an amount equal to the total amount due and owing from the Credit Parties
to GE Capital under the GE/CEF Agreements (less the amount applied against such
obligations in respect of the Tractors referred to in sub-paragraph (a) of this
paragraph) less the greater of: (i) the liquidation value of the GE/CEF Rolling
Stock as determined pursuant to an appraisal thereof by the firm of Taylor &
Martin; or (ii) the amount of net proceeds realized by GE Capital as a result of
the Sale of the GE/CEF Rolling Stock.
7.14 Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same Agreement.
[REST OF PAGE INTENTIONALY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
day and year first above written.
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title: Duly Authorized Signatory
GULF NORTHERN TRANSPORT, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
PROSTAR, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
UST LOGISTICS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE'
U.S. TRUCKING, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
MENCOR, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
HUFF GRANDCHILDREN'S TRUST
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
LOGISTICS MANAGEMENT LLC
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE'
SEBRITE INVESTMENT CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 10602 Timberwood Circle Suite #9
Louisville, KY 40223
-------------------------------------
DANNY PIXLER, individually
Address: 10004 Crooked Oak Road
Summerville, S.C. 29485
-------------------------------------
W. ANTHONY HUFF, individually
Address: 707 Oxmoor Woods Parkway
Louisville, KY 40222
