<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(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, 1996
[ ] 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: 0-19582
OLD DOMINION FREIGHT LINE, INC.
(Exact name of registrant as specified in its charter)
VIRGINIA 56-0751714
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1730 WESTCHESTER DRIVE
HIGH POINT, NC 27262
(Address of principal executive offices)
TELEPHONE NUMBER (910) 889-5000
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.
Yes X . No .
As of August 8, 1996, there were 8,345,608 shares of the registrant's
Common Stock ($.10 par value) outstanding.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
OLD DOMINION FREIGHT LINE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
QUARTER ENDED SIX MONTHS ENDED
--------------------------------- ----------------------------------
JUNE 30, June 30, JUNE 30, June 30,
1996 1995 1996 1995
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA) (UNAUDITED) (Unaudited) (UNAUDITED) (Unaudited)
- ----------------------------------------------------------------------- --------------- --------------- -----------------
<S> <C> <C> <C> <C>
Revenue from operations $74,862 $ 60,371 $143,124 $ 118,115
-------------- --------------- --------------- ----------------
Operating expenses:
Salaries, wages and benefits 41,202 33,180 79,418 65,339
Purchased transportation 5,859 4,533 11,415 8,920
Operating supplies and expenses 7,751 5,594 14,949 10,654
Depreciation and amortization 4,011 3,221 7,783 6,394
Building and office equipment rents 1,788 1,432 3,467 2,784
Operating taxes and licenses 3,207 2,531 6,293 4,894
Insurance and claims 2,688 2,031 5,094 4,115
Communications and utilities 1,443 1,170 2,925 2,334
General supplies and expenses 2,798 2,597 5,522 5,019
Miscellaneous expenses 722 492 1,169 842
-------------- --------------- --------------- ----------------
Total operating expenses 71,469 56,781 138,035 111,295
-------------- --------------- --------------- ----------------
Operating income 3,393 3,590 5,089 6,820
-------------- --------------- --------------- ----------------
Other deductions:
Interest expense, net 649 294 1,195 569
Other expense, net 94 94 184 175
-------------- --------------- --------------- ----------------
Total other deductions 743 388 1,379 744
-------------- --------------- --------------- ----------------
Income before income taxes 2,650 3,202 3,710 6,076
Provision for income taxes 1,007 1,233 1,410 2,339
-------------- --------------- --------------- ----------------
Net income $ 1,643 $ 1,969 $ 2,300 $ 3,737
============== =============== =============== ================
INCOME PER COMMON SHARE:
Net income $ 0.20 $ 0.24 $ 0.28 $ 0.45
Average number of shares outstanding 8,345,608 8,359,792 8,345,608 8,362,053
</TABLE>
See notes to consolidated financial statements.
2
<PAGE>
OLD DOMINION FREIGHT LINE, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30, December 31,
1996 1995
(In thousands, except share data) (UNAUDITED) (Audited)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,027 $ 986
Customer receivables, less allowances of $5,309
and $5,083, respectively 40,691 34,378
Other receivables 791 3,042
Tires on equipment 4,085 3,939
Prepaid expenses 3,509 5,221
Deferred income taxes 2,899 2,899
------------------ -------------------
Total current assets 56,002 50,465
------------------ -------------------
Property and equipment:
Revenue equipment 123,342 110,175
Land and structures 32,239 24,188
Other equipment 16,029 13,543
Leasehold improvements 538 508
------------------ -------------------
Total property and equipment 172,148 148,414
Less accumulated depreciation and amortization (67,856) (60,350)
------------------ -------------------
Net property and equipment 104,292 88,064
Other assets, less insurance policy loans of $1,733 at
June 30, 1996, and December 31, 1995, respectively 5,005 4,817
------------------ -------------------
Total assets $ 165,299 $ 143,346
================== ===================
</TABLE>
3
<PAGE>
OLD DOMINION FREIGHT LINE, INC.
CONSOLIDATED BALANCE SHEETS
(CONTINUED)
<TABLE>
<CAPTION>
JUNE 30, December 31,
1996 1995
(In thousands, except share data) (UNAUDITED) (Audited)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 12,398 $ 10,504
Compensation and benefits 7,069 5,095
Claims and insurance accruals 9,333 8,645
Other accrued liabilities 1,395 1,423
Income taxes payable 287 -
Current maturities of long-term debt 4,623 6,194
------------------ -------------------
Total current liabilities 35,105 31,861
------------------ -------------------
Long-term debt 40,134 24,022
Other non-current liabilities 7,573 8,383
Deferred income taxes 11,403 10,296
------------------ -------------------
Total long-term liabilities 59,110 42,701
------------------ -------------------
Stockholders' equity:
Common stock - $.10 par value, 25,000,000 shares
authorized, 8,345,608 shares outstanding at
June 30, 1996, and December 31, 1995, respectively 835 835
Capital in excess of par value 23,352 23,352
Retained earnings 46,897 44,597
------------------ -------------------
Total stockholders' equity 71,084 68,784
Commitments and contingencies - -
------------------ -------------------
Total liabilities and stockholders' equity $ 165,299 $ 143,346
================== ===================
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
OLD DOMINION FREIGHT LINE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Six Months Ended June 30,
-------------------------------
(In thousands) 1996 1995
- -------------------------------------------------------------------- --------------- --------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 2,300 $ 3,737
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 7,783 6,394
Deferred income taxes 1,107 -
Loss (Gain) on sale of property and equipment 134 (519)
Changes in assets and liabilities:
Receivables, net (4,062) (1,717)
Tires on equipment (146) 243
Prepaid expenses and other assets 1,524 725
Accounts payable 1,894 1,566
Compensation, benefits and other accrued liabilities 1,946 965
Estimated liability for claims 688 (2,182)
Income taxes payable 287 (517)
Other liabilities (810) 1,547
--------------- --------------
Net cash provided by operating activities 12,645 10,242
--------------- --------------
Cash flows from investing activities:
Purchase of property and equipment (24,185) (15,758)
Proceeds from sale of property and equipment 40 854
Net cash used in investing activities (24,145) (14,904)
--------------- --------------
Cash flows from financing activities:
Proceeds from issuance of long term debt 37,000 -
Principal payments under debt and capital lease agreements (10,459) (3,869)
Net proceeds (payments) on short-term revolving line of credit (12,000) 7,300
Purchase and retirement of restricted stock - 251
--------------- --------------
Net cash provided by financing activities 14,541 3,682
--------------- --------------
Increase (Decrease) in cash and cash equivalents 3,041 (980)
Cash and cash equivalents at beginning of period 986 2,393
--------------- --------------
Cash and cash equivalents at end of period $ 4,027 $ 1,413
=============== ==============
</TABLE>
See notes to consolidated financial statements.
5
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The consolidated financial statements are unaudited and reflect all
adjustments (consisting only of normal recurring adjustments) which
are, in the opinion of management, necessary for a fair presentation of
the financial position and operating results for the interim periods.
Certain prior year amounts have been reclassified to conform with the
current year presentation. The consolidated financial statements should
be read in conjunction with the consolidated financial statements and
notes thereto contained in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995. The results of operations for
the six months ended June 30, 1996, are not necessarily indicative of
the results for the entire fiscal year ending December 31, 1996.
2. On June 15, 1996, the Company entered into a $30,000,000 private
placement of debt through a Note Purchase Agreement with two insurance
companies. The Note Purchase Agreement consists of a $10,000,000, 7.3%
Senior Note due December 15, 2002, and a $20,000,000, 7.59% Senior Note
due June 15, 2006. The 2002 note provides for semi-annual interest
payments with increasing annual principal payments beginning December
15, 1998. The 2006 note provides for semi-annual interest payments with
equal annual principal payments beginning June 15, 2000. The Note
Purchase Agreement, which is uncollateralized, contains certain
financial covenants that limit the Company's debt to total capital
ratio, requires stated levels of tangible net worth and specifies an
interest coverage ratio. Proceeds of the private placement were used to
reduce the outstanding line of credit and short-term notes by
$26,650,000 with the remaining proceeds to be used during the third
quarter of 1996 for planned capital expenditures.
As a result of the private placement of debt, the committed Credit
Agreement that previously provided a $25,000,000 line of credit and a
$15,000,000 letter of credit facility was amended to a $15,000,000 line
of credit and a $17,500,000 letter of credit facility.
3. Net income per share of common stock is based on the weighted average
number of shares outstanding during each period.
6
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS FOR THE THREE MONTHS AND SIX MONTHS ENDED JUNE 30, 1996
VS. JUNE 30, 1995
EXPENSES AS A PERCENTAGE OF REVENUE FROM OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
1996 1995 1996 1995
------------------------------- ------------------------------
<S> <C> <C> <C> <C>
Revenue from operations 100.0% 100.0% 100.0% 100.0%
------------- ------------- ------------- -------------
Operating expenses:
Salaries, wages and benefits 55.0 55.0 55.5 55.3
Purchased transportation 7.8 7.5 8.0 7.6
Operating supplies and expenses 10.4 9.3 10.4 9.0
Depreciation and amortization 5.4 5.3 5.4 5.4
Building and office equipment rents 2.4 2.4 2.4 2.4
Operating taxes and licenses 4.3 4.2 4.4 4.1
Insurance and claims 3.6 3.4 3.6 3.5
Communications and utilities 1.9 1.9 2.0 2.0
General supplies and expenses 3.7 4.3 3.9 4.2
Miscellaneous expenses 1.0 0.8 0.8 0.7
------------- ------------- ------------- -------------
Total operating expenses 95.5 94.1 96.4 94.2
------------- ------------- ------------- -------------
Operating income 4.5 5.9 3.6 5.8
Interest expense, net 0.9 0.5 0.8 0.5
Other expense, net 0.1 0.1 0.2 0.1
------------- ------------- ------------- -------------
Income before income taxes 3.5 5.3 2.5 5.2
Provision for income taxes 1.3 2.0 1.0 2.0
------------- ------------- ------------- -------------
Net income 2.2% 3.3% 1.6% 3.2%
============= ============= ============= =============
</TABLE>
7
<PAGE>
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1996, VERSUS THREE MONTHS ENDED JUNE 30, 1995
Net revenue for the second quarter of 1996 was $74,862,000, an increase of
24.0%, compared to $60,371,000 for the same quarter of 1995. Less than truckload
(LTL) tonnage increased 23.7% due primarily to a 20.5% increase in LTL shipments
as well as an increase in the LTL weight per shipment. The increase in LTL
shipments reflects the geographical expansion in 1995 into 15 additional
terminals in 10 new states.
Average LTL revenue per hundredweight was $11.17 for the current second quarter
compared to $11.00 for the second quarter of 1995, an increase of 1.5%. This
increase reflects a rate increase that went into effect on January 1, 1996, and
a continuing effort to improve the Company's revenue yield during the second
quarter of the current year. An increase of 2.6% in the LTL weight per shipment,
combined with the increased revenue per hundredweight, resulted in a 4.3%
increase in the revenue per LTL shipment to $116.97 from $112.20.
Operating expenses as a percentage of net revenue (operating ratio) increased to
95.5% for the second quarter 1996 from 94.1% for the same period of 1995. The
increase in the operating ratio was due mainly to increases in operating
supplies and expenses, which increased to 10.4% of revenue from 9.3%. Most of
the increase in operating supplies and expenses was due to fuel expense,
which increased to 4.8% of net revenue from 3.8%, excluding fuel taxes. Fuel
cost per gallon, excluding fuel taxes, was 12.6 cents, or 20.8%, higher during
the current second quarter compared to the second quarter of 1995. To offset a
portion of this increased expense, the Company imposed a fuel surcharge
effective on May 13, 1996. The increase in fuel costs, after the offsetting
effect of the fuel surcharge, reduced the Company's earnings by 1.3 cents per
share in the second quarter. In addition to higher fuel expense, maintenance
costs increased to 2.3% of net revenue compared to 2.1%.
Capital expenditures during the second quarter of 1996 were $13,010,000
resulting in an increase in depreciation expense to 5.4% of revenue compared to
5.3% for the same quarter of the previous year.
Interest expense increased to .9% of revenue in the second quarter of 1996 from
.5% for the same quarter of 1995. The increase is due to a higher average
outstanding debt for the quarter compared to the same quarter the previous year.
Long-term debt outstanding was $44,757,000 at June 30, 1996, compared to
$22,056,000 at June 30, 1995. The increased debt is due mainly to significant
planned capital expenditures of $24,185,000 in the first half of 1996.
Net income was $1,643,000 for the quarter ended June 30, 1996, a decrease of
16.6%, compared to $1,969,000 for the same quarter the previous year. The
effective tax rate was approximately 38% compared to 38.5% for the same period
of 1995.
SIX MONTHS ENDED JUNE 30, 1996, VERSUS SIX MONTHS ENDED JUNE 30, 1995
Net revenue for the six months ended June 30, 1996, was $143,124,000, an
increase of 21.2%, compared to $118,115,000 for the same period of 1995. LTL
tonnage increased 21.8% due primarily to an increase in LTL shipments as well as
an increase in the LTL weight per shipment. This increase in LTL shipments
reflects the geographical expansion throughout 1995 into 15 additional terminals
in 10 new states. LTL shipments were up by 19.6%, and the weight per shipment
increased 1.8% during the six-month period of the current year.
Average LTL revenue per hundredweight was $11.11 for the six months ended June
30, 1996, compared to $10.94 for the same period of 1995. This increase reflects
a rate increase that went into effect on January 1, 1996, and a continuing
effort to improve the Company's revenue yield. The increase in the LTL weight
per shipment, combined with a 1.6% increase in revenue per hundredweight,
resulted in a 3.4% increase in the revenue per LTL shipment to $116.10 from
$112.33.
8
<PAGE>
Operating expenses as a percentage of net revenue (operating ratio) were 96.4%
for the six months ended June 30, 1996, compared to 94.2% for the same period of
1995. Combined, salaries, wages and benefits, purchased transportation,
operating supplies and expenses and operating taxes and licenses increased to
78.3% of net revenue compared to 76.0%. With the exception of increased fuel
cost, these increases reflect lower density in linehaul lanes as a result of the
Company's geographical expansion beginning in the first quarter of 1995.
Density, expressed as average linehaul laden load, was down 7.2% compared to
pre-expansion periods. The decline in density was generally a result of
protecting the Company's superior delivery standards through scheduled linehaul
service. As this density improves through continued increases in market share,
the linehaul laden load average will increase, and these costs will decrease to
more historical levels.
Much of the increase in the operating ratio was due to increases in operating
supplies and expenses, which increased to 10.4% of revenue for the current
six-month period from 9.0% for the same period of 1995. Most of the increase in
operating supplies and expenses was due to fuel expense, excluding fuel
taxes, which increased to 4.8% of revenue from 3.8%. Fuel cost per gallon,
excluding fuel taxes, was 10.7 cents, or 17.5%, higher during the current
six-month period compared to the same period of 1995. This increase resulted in
a negative effect on earnings per share of 7.6 cents per share, of which 3.3
cents per share was recouped as a result of a fuel surcharge (reflected in net
revenue) imposed on May 13, 1996. In addition to higher fuel expense,
maintenance costs increased to 2.3% of net revenue compared to 1.9% in the same
period of 1995.
The Company's net interest expense was .8% of revenue for the six months ended
June 30, 1996, compared to .5% for the same period of 1995 due to the increase
in average outstanding debt in 1996.
Net income was $2,300,000 for the six months ended June 30, 1996, a decrease of
38.5%, compared to $3,737,000 for the same six-month period the previous year.
The effective tax rate was 38.0% for 1996 and 38.5% for 1995.
LIQUIDITY AND CAPITAL RESOURCES
In order to maintain an appropriate equipment replacement cycle and allow for
future growth, the Company currently anticipates capital expenditures of between
$35,000,000 and $37,000,000 for 1996. These expenditures include approximately
$10,000,000 to $12,000,000 for larger terminals in existing coverage areas that
were either outgrown or previously leased. Capital expenditures will be financed
principally by internally generated cash flow supplemented with borrowings.
Capital expenditures during the quarter and six months ended June 30, 1996, were
approximately $13,010,000 and $24,185,000, respectively. Long-term debt,
including current maturities, increased to $44,757,000 at June 30, 1996, from
$30,216,000 at December 31, 1995. The outstanding long-term debt at June 30,
1996, includes debt proceeds of $3,350,000 held in working capital for planned
capital expenditures during the third quarter of the current year.
The Company generally meets its working capital needs with cash generated from
operations. Working capital requirements are generally higher during the first
and fourth quarters because of seasonal declines in revenue and annual payments
of property taxes, equipment tags and licenses.
On June 15, 1996, the Company entered into a $30,000,000 private placement of
debt through a Note Purchase Agreement with two insurance companies. The Note
Purchase Agreement consists of a $10,000,000, 7.3% Senior Note due December 15,
2002, and a $20,000,000, 7.59% Senior Note due June 15, 2006. The 2002 note
provides for semi-annual interest payments with increasing annual principal
payments beginning December 15, 1998. The 2006 note provides for semi-annual
interest payments with equal annual principal payments beginning June 15, 2000.
The Note Purchase Agreement, which is uncollateralized, contains certain
financial covenants that limit the Company's debt to total capital ratio,
requires stated levels of tangible net worth and specifies an interest coverage
ratio. Proceeds of the private placement were used to reduce the outstanding
line of credit and short-term notes by $26,650,000 with the remaining proceeds
to be used during the third quarter of 1996 for planned capital expenditures.
As a result of the private placement of debt, the committed Credit Agreement
that previously provided a $25,000,000 line of credit and a $15,000,000 letter
of credit facility was amended to a $15,000,000 line of credit and a $17,500,000
letter of credit facility. Interest on the line of credit is charged at rates
that can vary based upon a certain financial performance ratio and the stated
period of time the borrowings are
9
<PAGE>
outstanding. The applicable interest rate is based upon LIBOR plus .6% for
periods of 30-180 days and prime minus 1% for periods less than 30 days. The
Company has also entered into a separate International Swap Dealers Association
(ISDA) Agreement that hedges the interest rate on a portion of the outstanding
amount on the credit line over a specified term. Pursuant to this agreement, as
of June 30, 1996, the Company has fixed $3,500,000 of the outstanding credit
line at a rate of 6.54% through June 19, 1998. A fee of .2% is charged on the
unused portion of the $32,500,000 line of credit and letter of credit facility,
and a fee of .6% is charged on outstanding letters of credit. At June 30, 1996,
there were $5,500,000 outstanding borrowings on the line of credit and
$12,150,000 outstanding on the letter of credit facility, which is required for
self-insured retention reserves for bodily injury, property damage and workers'
compensation insurance. The Company believes that there are sufficient credit
lines and capacity to meet seasonal and long-term financial needs.
INFLATION
Most of the Company's expenses are affected by inflation, which will generally
result in increased costs. During the second quarter and for the six-month
period ended June 30, 1996, the effect of inflation on the Company's results of
operations was minimal.
SEASONALITY
The Company's operations are subject to seasonal trends common in the trucking
industry. Operating results in the winter months of the first and fourth
quarters are normally lower due to reduced shipments. The second and third
quarters are stronger due to increased demand for services during the spring and
summer months.
ENVIRONMENTAL
The Company is subject to federal, state and local environmental laws and
regulations, particularly relative to underground storage tanks ("UST's"). The
Company is in compliance with applicable environmental laws and regulations
relating to UST's and does not believe that the cost of future compliance should
have a material adverse effect on the Company's operations or financial
condition.
10
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its 1996 Annual Meeting of Stockholders on May 6, 1996. The
only item on the agenda was the election of directors for which votes were cast
or withheld as follows:
Nominee For Withheld
------- --- --------
Earl E. Congdon 7,265,413 2,510
John R. Congdon 7,265,413 2,510
John A. Ebeling 7,265,413 2,510
Harold G. Hoak 7,265,413 2,510
Franz F. Holscher 7,265,413 2,510
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits:
Exhibit No. Description
4.4.3 Second Amendment to the Credit Agreement between Old
Dominion Freight Line, Inc. and First Union National
Bank of North Carolina, dated April 29, 1996
4.4.4 Third Amendment to the Credit Agreement between Old
Dominion Freight Line, Inc. and First Union National
Bank of North Carolina, dated June 15, 1996
4.5 Note Purchase Agreement between Nationwide Life
Insurance Company, New York Life Insurance Company
and Old Dominion Freight Line, Inc., dated June 15,
1996
4.5.1 Form of notes issued by Company pursuant to Note
Purchase Agreement between Nationwide Life Insurance
Company, New York Life Insurance Company and Old
Dominion Freight Line, Inc., dated June 15, 1996
b) Reports on Form 8-K: No reports on Form 8-K were filed during the
quarter ended June 30, 1996.
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.
OLD DOMINION FREIGHT LINE, INC.
DATE: August 9, 1996 J. WES FRYE
----------------- ------------------
J. Wes Frye
Treasurer (Principal Financial Officer)
DATE: August 9, 1996 JOHN P. BOOKER III
----------------- ------------------
John P. Booker III
Controller (Principal Accounting Officer)
11
<PAGE>
EXHIBIT 4.4.3
April 29, 1996
SECOND AMENDMENT TO
CREDIT AGREEMENT
Old Dominion Freight Line, Inc.
1730 Westchester Drive
High Point, North Carolina 27261
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement, dated June
14, 1995, as amended by First Amendment thereto, dated February 2, 1996 (the
Credit Agreement, as amended, being hereinafter referred to as the "Credit
Agreement"), between Old Dominion Freight Line, Inc., a Virginia corporation
("Borrower"), and First Union National Bank of North Carolina, a national
banking association ("Bank"), pursuant to which Bank, upon the terms and subject
to the conditions contained therein, has agreed to make a credit facility of
$40,000,000 available for Borrower's use from time to time during the term of
the Credit Agreement, comprised of a $25,000,000 revolving line of credit
evidenced by Borrower's $25,000,000 Amended and Restated Revolving Credit Note,
dated February 2, 1996, and a $15,000,000 letter of credit facility evidenced by
the Credit Agreement. All capitalized terms used herein without definition shall
have the meanings ascribed to such terms in the Credit Agreement.
Borrower has requested that Bank amend the definition of Gross Rents as
set forth in Section 1.1 of the Credit Agreement, and Bank has agreed to such
request.
Therefore, Borrower and Bank have agreed to amend Section 1.1 of the
Credit Agreement by deleting the definition of "Gross Rents" in its entirety and
by substituting in lieu thereof
<PAGE>
the following:
"Gross Rents" shall mean the aggregate of all payments which
Borrower is required to make pursuant to the terms of any lease by
Borrower, which lease, including any renewals thereof, has a term of
six (6) months or longer, of any real or personal Property consisting
of tractors, trailers, trucks, forklifts and terminals.
Except as herein expressly amended, the Credit Agreement shall remain
unchanged and in full force and effect in accordance with its terms. Nothing
contained herein shall constitute (a) a waiver by Bank of any Event of Default
under the Credit Agreement or any of the other Loan Documents, or (b) a waiver
by Bank of any rights or remedies of Bank against Borrower.
If this letter correctly states the terms of our agreement to amend the
Credit Agreement as herein set forth, please so indicate in the space marked
below for your signature and return a fully executed copy to us.
Yours very truly,
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: JERRY HIGHSMITH
Title: SENIOR VICE PRESIDENT
Agreed to and accepted this
29th day of April, 1996.
OLD DOMINION FREIGHT LINE, INC.
By: J. WES FRYE
Title: CHIEF FINANCIAL OFFICER
<PAGE>
EXHIBIT 4.4.4
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
the 15th day of June, 1996, is made by and between OLD DOMINION FREIGHT LINE,
INC., a Virginia corporation (the "Borrower"), and FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, a national banking association (the "Bank"), to the Credit
Agreement, dated June 14, 1995, as amended by First Amendment thereto, dated
February 2, 1996, and by Second Amendment thereto, dated April 29, 1996 (the
Credit Agreement as amended, modified, restated or supplemented from time to
time, being called the "Credit Agreement"). All capitalized terms used herein
without definition shall have the meanings ascribed to such terms in the Credit
Agreement.
RECITALS
A. Pursuant to the Credit Agreement, the Bank has made available to the
Borrower a Revolving Line of Credit in the amount of $25,000,000, a Letter of
Credit Facility in the amount of $15,000,000, an additional revolving line of
credit in the amount of $5,000,000, and an additional revolving line of credit
in the amount of $2,000,000.
B. The Borrower has requested that the Bank (i) decrease the amount of
the Revolving Line of Credit Commitment from the sum of $25,000,000 to the sum
of $15,000,000, (ii) increase the amount of the Letter of Credit Facility
Commitment from the sum of $15,000,000 to the sum of $17,500,000, and (iii)
amend certain financial and other covenants set forth in the Credit Agreement.
C. The Bank has agreed to such requests, and the Borrower and the Bank
have therefore agreed to amend the Credit Agreement as set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and
<PAGE>
sufficiency of which are hereby expressly acknowledged, the Borrower and the
Bank hereby agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the date of the consummation of the transactions
contemplated by that certain Master Note Purchase Agreement, dated on or about
the date hereof, and receipt by the Borrower of the proceeds thereof (the
"Placement"), the Credit Agreement is hereby amended as follows:
1.1 Recitals. The third recital of the Credit Agreement is amended in
its entirety to read as follows:
"WHEREAS, Bank has agreed to extend financial accommodations
for such purposes to Borrower in the form of a (a) $15,000,000
revolving line of credit, which may be increased as evidenced by
additional notes executed or to be executed by Borrower to the order of
Bank, and (b) $17,500,000 standby letter of credit facility to be made
in accordance with, and subject to, the terms and conditions set forth
below;"
1.2 Defined Terms. Section 1.1 of the Credit Agreement is amended as
follows:
(a) The following definitions are amended in their
entirety to read as follows:
"Applicable Margin" shall mean, at any date of determination thereof, a
sum equal to the percentage set forth below based on the Fixed Charge Coverage
Ratio on such date, which shall be determined on the Closing Date and at the end
of each Interest Period selected by Borrower and, if appropriate, the Applicable
Margin shall be reduced or increased for the next Interest Period selected by
Borrower, according to the following schedule:
Fixed Charge Applicable Margin Applicable Margin Applicable Margin
Coverage Ratio For LIBOR Rate Loan for CD Rate Loan for Prime Rate Loan
Equal to or 0.50% 0.625% -1.0%
<PAGE>
greater than
3.75 to 1.0
Equal to or 0.60% 0.725% -1.0%
greater than
2.75 to 1.0 but
less than 3.75
to 1.0
Less than 2.75 0.75% 0.875% -1.0%
to 1.0
"Gross Rents" shall mean the aggregate amount of all payments
which Borrower is required to make pursuant to the terms of any lease
by Borrower of any building or office equipment or revenue producing
equipment which lease has a term of more than six (6) months, including
renewals thereof.
"Letter of Credit Facility Commitment" shall mean $17,500,000.
"Revolving Credit Note" shall mean the promissory note of
Borrower executed and delivered to Bank pursuant to Section 2.2 hereof
evidencing Borrower's obligation to repay the Revolving Loans, as well
as any Additional Notes of Borrower executed and delivered to Bank
evidencing Borrower's obligation to repay additional loans made by Bank
to Borrower, together with any amendments, modifications and
supplements thereto, and any renewals, replacements or extensions
thereof, in whole or in part.
"Revolving Line of Credit Commitment" shall mean $15,000,000.
"Revolving Loans" shall mean the loans made by Bank to
Borrower under the Revolving Line of Credit and the loans made by Bank
to Borrower evidenced by Additional Notes.
(b) The following definitions are added in the
-3-
<PAGE>
appropriate alphabetical sequence:
"Additional Notes" shall mean any promissory notes of Borrower
executed and delivered to Bank to evidence loans made pursuant to the
terms of this Agreement, which loans are in addition to the Revolving
Loans made under the Revolving Line of Credit Commitment. All
Additional Notes shall evidence Obligations of Borrower to Bank and
shall be governed by the terms and provisions of this Agreement.
"Funded Debt" shall mean all Indebtedness for money borrowed
of Borrower, whether direct or contingent, as determined in accordance
with Generally Accepted Accounting Principles, including, without
limitation, Capitalized Lease Obligations, the deferred purchase price
of any Property or asset or Indebtedness evidenced by a promissory
note, bond, guaranty or similar written obligation for the payment of
money (including, but not limited to, conditional sales or similar
title retention agreements).
"Total Capitalization" shall mean, at any date of
determination thereof, the sum of Funded Debt and Tangible Net Worth.
(c) The definition of "Current Maturities of Long Term Debt"
is amended by deleting in line 2 thereof the words "Money Borrowed Indebtedness"
and by substituting in lieu thereof the words "Funded Debt".
(d) The definition of "Money Borrowed Indebtedness" is hereby
deleted.
1.3 Negative Covenants. Section 8 of the Credit Agreement is amended by
deleting Sections 8.3, Money Borrowed Indebtedness, 8.10, Sale and Leasebacks,
8.16, Indebtedness to Tangible Net Worth, and 8.17, Fixed Charge Coverage Ratio,
in their entirety and by substituting in lieu thereof the following:
"8.3 Funded Debt. Create, incur or suffer to
-4-
<PAGE>
exist any Funded Debt except for: (a) the Obligations owed to Bank
under this Agreement and the other Loan Documents; (b) the Funded Debt
set forth on Exhibit J attached hereto; (c) Permitted Purchase Money
Indebtedness; and (d) Indebtedness not to exceed $30,000,000 in the
aggregate principal amount evidenced by senior unsecured notes issued
by Borrower pursuant to the terms and provisions of those certain Note
Purchase Agreements, dated as of June 15, 1996, between Borrower and
the purchasers named therein, as amended, modified or supplemented from
time to time ("Note Purchase Agreements"), and all other Indebtedness
outstanding under the Note Purchase Agreements subject to the
limitations with respect to the principal amount thereof set forth in
this clause (d).
8.10 Sale and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by Borrower of any asset which has
been sold or transferred by Borrower to such Person if such arrangement
occurs more than ninety (90) days after the purchase of such asset by
Borrower.
8.16 Indebtedness to Net Worth. Permit the percentage of
Funded Debt to Total Capitalization to be greater than 50% at any time.
8.17 Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio to be less than 1.25 t 1.0 at any time from the date of
the Third Amendment to this Agreement through and including March 31,
1997; 1.5 to 1.0 at any time from April 1, 1997 through and including
December 31, 1997; and 1.75 to 1.0 at any time thereafter."
1.4 Subsection (e) of Section 9.1, Event of Default, is amended by
deleting in lines 5 and lines 7 and 8 thereof the words "Money Borrowed
Indebtedness" and by substituting in lieu thereof the words "Funded Debt".
1.5 Exhibit J to the Agreement is amended by renaming the
-5-
<PAGE>
description of such exhibit as "Funded Debt".
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
2.1 Acknowledgement of Obligations. As of the close of business on June
18, 1996, the aggregate principal amount of Revolving Loans owing by Borrower is
in the sum of $23,700,000, the aggregate amount of Letter of Credit Obligations
owing by the Borrower is in the sum of $12,150,176, the aggregate principal
amount of loans owing under the $5,000,000 Additional Revolving Credit Note,
dated May 3, 1996, is in the amount of $5,000,000, the aggregate principal
amount of loans owing by the Borrower under the $2,000,000 Second Additional
Revolving Credit Note, dated June 17, 1996, is in the amount of $2,000,000, and
that all such Obligations are owing by the Borrower to the Bank without any
defense, deduction, offset or counterclaim of any nature.
2.2 Compliance with Credit Agreement. As of the execution of this
Amendment, the Borrower is in compliance with all of the terms and provisions
set forth in the loan documents to be observed or performed by the Borrower,
except for the failure by the Borrower to comply has been waived in writing by
the Bank.
2.3 Representations in Credit Agreement. The representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct in all material respects.
2.4 No Event of Default. No Default or Event of Default exists.
2.5 Use of Proceeds of the Placement. To the extent that the
outstanding balance of Revolving Loans exceeds $15,000,000 in the aggregate on
the effective date of this Amendment, the Borrower agrees that it shall use the
proceeds received from the Placement to pay such Revolving Loans which are
outstanding in excess of $15,000,000.
-6-
<PAGE>
ARTICLE III
MODIFICATION OF LOAN DOCUMENTS
3.1 Loan Documents. Any individual or collective reference to any of
the Loan Documents shall hereafter mean such Loan Document as amended by this
Amendment, and as further amended, restated and supplemented or modified from
time to time, including, without limitation, all references to the Credit
Agreement, which shall mean the Credit Agreement as amended hereby and as
further amended from time to time.
ARTICLE IV
GENERAL
4.1 Full Force and Effect. Except as expressly amended hereby, the
Credit Agreement and the other Loan Documents shall continue in full force and
effect in accordance with the provisions thereof. As used in the Credit
Agreement and the other Loan Documents, "hereinafter", "hereto", "hereof", or
words of similar import, shall mean the Credit Agreement or the other Loan
Documents, as the case may be, as amended by this Amendment.
4.2 Applicable Law. This Amendment shall be governed by and construed
in accordance with the internal laws and judicial decisions of the State of
North Carolina.
4.3 Headings. The headings of this Amendment are for the purpose of
reference only and shall not effect the construction of this Amendment.
4.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER AND THE BANK EACH WAIVE THE RIGHT TO A JURY TRIAL IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT
AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered under seal by their duly
-7-
<PAGE>
authorized officers to be effective as of the date first above written.
ATTEST: OLD DOMINION FREIGHT LINE, INC.
JOEL B. MCCARTY, JR. By: J. WES FRYE
Secretary Title: CHIEF FINANCIAL OFFICER
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: JERRY HIGHSMITH
Title: SENIOR VICE PRESIDENT
-8-
<PAGE>
Exhibit 4.5
[COMPOSITE CONFORMED COPY]
================================================================================
OLD DOMINION FREIGHT LINE, INC.
$10,000,000 7.30% Senior Notes due December 15, 2002
and
$20,000,000 7.59% Senior Notes due June 15, 2006
--------------
NOTE PURCHASE AGREEMENT
-------------
Dated as of June 15, 1996
================================================================================
<PAGE>
COMPOSITE CONFORMED COPY OF NOTE PURCHASE AGREEMENT
Four separate Note Purchase Agreements, each in the form of the
following Note Purchase Agreement, were entered into between Old Dominion
Freight Line, Inc. and each of the Purchasers named in Schedule A thereto. Each
of said separate Note Purchase Agreements was executed on behalf of Old Dominion
Freight Line, Inc. as indicated on page 37 and accepted by each of the
respective Purchasers as indicated on page 37.
<PAGE>
TABLE OF CONTENTS
(Not a part of the Agreement)
<TABLE>
<CAPTION>
SECTION HEADING PAGE
<S> <C> <C>
SECTION 1. AUTHORIZATION OF NOTES..................................................................1
SECTION 2. SALE AND PURCHASE OF NOTES..............................................................1
SECTION 3. CLOSING.................................................................................2
SECTION 4. CONDITIONS TO CLOSING...................................................................2
Section 4.1. Representations and Warranties......................................................2
Section 4.2. Performance; No Default.............................................................2
Section 4.3. Compliance Certificates.............................................................3
Section 4.4. Opinions of Counsel.................................................................3
Section 4.5. Purchase Permitted By Applicable Law, etc...........................................3
Section 4.6. Sale of Other Notes.................................................................3
Section 4.7. Payment of Special Counsel Fees.....................................................3
Section 4.8. Private Placement Number............................................................3
Section 4.9. Changes in Corporate Structure......................................................4
Section 4.10. Proceedings and Documents...........................................................4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................4
Section 5.1. Organization; Power and Authority...................................................4
Section 5.2. Authorization, etc..................................................................4
Section 5.3. Disclosure..........................................................................4
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates....................5
Section 5.5. Financial Statements................................................................5
Section 5.6. Compliance with Laws, Other Instruments, etc........................................6
Section 5.7. Governmental Authorizations, etc....................................................6
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders...........................6
Section 5.9. Taxes...............................................................................6
Section 5.10. Title to Property; Leases...........................................................7
Section 5.11. Licenses, Permits, etc..............................................................7
Section 5.12. Compliance with ERISA...............................................................7
Section 5.13. Private Offering by the Company.....................................................8
Section 5.14. Use of Proceeds; Margin Regulations.................................................8
Section 5.15. Existing Debt; Future Liens.........................................................8
Section 5.16. Foreign Assets Control Regulations, etc.............................................9
Section 5.17. Status under Certain Statutes.......................................................9
Section 5.18. Environmental Matters...............................................................9
i
<PAGE>
SECTION 6. REPRESENTATIONS OF THE PURCHASER........................................................10
Section 6.1. Purchase for Investment.............................................................10
Section 6.2. Source of Funds.....................................................................10
SECTION 7. INFORMATION AS TO COMPANY...............................................................11
Section 7.1. Financial and Business Information..................................................11
Section 7.2. Officer's Certificate...............................................................14
Section 7.3. Inspection..........................................................................14
SECTION 8. PREPAYMENT OF THE NOTES.................................................................15
Section 8.1. Required Prepayments................................................................15
Section 8.2. Optional Prepayments with Make-Whole Amount.........................................16
Section 8.3. Prepayment of Notes upon Change in Control..........................................16
Section 8.4. Allocation of Partial Prepayments...................................................18
Section 8.5. Maturity; Surrender, etc............................................................18
Section 8.6. Purchase of Notes...................................................................18
Section 8.7. Make-Whole Amount...................................................................18
SECTION 9. AFFIRMATIVE COVENANTS...................................................................20
Section 9.1. Compliance with Law.................................................................20
Section 9.2. Insurance...........................................................................20
Section 9.3. Maintenance of Properties...........................................................20
Section 9.4. Payment of Taxes and Claims.........................................................20
Section 9.5. Corporate Existence, etc............................................................21
SECTION 10. NEGATIVE COVENANTS......................................................................21
Section 10.1. Consolidated Tangible Net Worth.....................................................21
Section 10.2. Fixed Charges Coverage Ratio........................................................21
Section 10.3. Limitations on Debt.................................................................21
Section 10.4. Liens...............................................................................21
Section 10.5. Restricted Payments and Restricted Investments......................................23
Section 10.6. Merger, Consolidation, etc..........................................................24
Section 10.7. Sale of Assets, etc.................................................................25
Section 10.8. Sale-and-Leasebacks.................................................................25
Section 10.9. Transactions with Affiliates........................................................26
Section 10.10. Line of Business....................................................................26
SECTION 11. EVENTS OF DEFAULT.......................................................................26
SECTION 12. REMEDIES ON DEFAULT, ETC................................................................28
Section 12.1. Acceleration........................................................................28
Section 12.2. Other Remedies......................................................................29
ii
<PAGE>
Section 12.3. Rescission..........................................................................29
Section 12.4. No Waivers or Election of Remedies, Expenses, etc...................................29
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES...........................................30
Section 13.1. Registration of Notes...............................................................30
Section 13.2. Transfer and Exchange of Notes......................................................30
Section 13.3. Replacement of Notes................................................................30
SECTION 14. PAYMENTS ON NOTES.......................................................................31
Section 14.1. Place of Payment....................................................................31
Section 14.2. Home Office Payment.................................................................31
SECTION 15. EXPENSES, ETC...........................................................................31
Section 15.1. Transaction Expenses................................................................31
Section 15.2. Survival............................................................................32
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT............................32
SECTION 17. AMENDMENT AND WAIVER....................................................................32
Section 17.1. Requirements........................................................................32
Section 17.2. Solicitation of Holders of Notes....................................................33
Section 17.3. Binding Effect, etc.................................................................33
Section 17.4. Notes Held by Company, etc..........................................................33
SECTION 18. NOTICES.................................................................................33
SECTION 19. REPRODUCTION OF DOCUMENTS...............................................................34
SECTION 20. CONFIDENTIAL INFORMATION................................................................34
SECTION 21. SUBSTITUTION OF PURCHASER...............................................................35
SECTION 22. MISCELLANEOUS...........................................................................36
Section 22.1. Successors and Assigns..............................................................36
Section 22.2. Payments Due on Non-Business Days...................................................36
Section 22.3. Severability........................................................................36
Section 22.4. Construction........................................................................36
Section 22.5. Counterparts........................................................................36
Section 22.6. Governing Law.......................................................................36
Section 22.7. Additional Debt.....................................................................36
iii
<PAGE>
Signature..........................................................................................................37
</TABLE>
ATTACHMENTS TO NOTE PURCHASE AGREEMENT:
SCHEDULE A -- Information Relating To Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE C -- Existing Debt
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.14 -- ERISA Affiliates and Plans
SCHEDULE 5.15 -- Existing Debt
SCHEDULE 10.4 -- Existing Liens
EXHIBIT 1-A -- Form of 2002 Notes
EXHIBIT 1-B -- Form of 2006 Notes
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the
Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the
Purhasers
EXHIBIT 4.5 -- Legality Certificate
iv
<PAGE>
OLD DOMINION FREIGHT LINE, INC.
1730 WESTCHESTER DRIVE
HIGH POINT, NORTH CAROLINA 27261
$10,000,000 7.30% Senior Notes due December 15, 2002
and
$20,000,000 7.59% Senior Notes due June 15, 2006
Dated as of
June 15, 1996
TO EACH OF THE PURCHASERS LISTED IN THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
OLD DOMINION FREIGHT LINE, INC., a Virginia corporation (the
"COMPANY"), agrees with you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $10,000,000 aggregate
principal amount of its 7.30% Senior Notes due December 15, 2002 and $20,000,000
aggregate principal amount of its 7.59% Senior Notes due June 15, 2006
(respectively, the "2002 NOTES" and the "2006 NOTES", each being a "SERIES" of
Notes and collectively the "NOTES", such term to include any such notes issued
in substitution therefor pursuant to Section 13 of this Agreement or the Other
Agreements (as hereinafter defined)). The Notes shall be substantially in the
respective forms set out in Exhibits 1-A and 1-B, with such changes therefrom,
if any, as may be approved by you and the Company. Certain capitalized terms
used in this Agreement are defined in Schedule B; references to a "Schedule" or
an "Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will issue
and sell to you and you will purchase from the Company, at the Closing provided
for in Section 3, Notes in the principal amount and of the Series specified
opposite your name in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this Agreement, the Company
is entering into separate Note Purchase Agreements (the "OTHER AGREEMENTS")
identical with this Agreement with the other purchasers named in Schedule A (the
"OTHER PURCHASERS"), providing for the sale at such Closing to the Other
Purchasers of Notes in the principal amount and of the Series specified opposite
its name in Schedule A. Your
<PAGE>
Old Dominion Freight Line, Inc. Note Purchase Agreement
obligation hereunder, and the obligations of the Other Purchasers under the
Other Agreements, are several and not joint obligations, and you shall have no
obligation under the Other Agreements and no liability to any Person for the
performance or nonperformance by the Other Purchasers thereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Chapman and Cutler, 111 West Monroe
Street, Chicago, Illinois 60603, at 10:00 A.M. Chicago time, at a closing (the
"CLOSING") on June 20, 1996 or on such other Business Day thereafter on or prior
to June 28, 1996 as may be agreed upon by the Company and you and the Other
Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $1,000,000 as you may request) dated the date of
the Closing and registered in your name (or in the name of your nominee),
against delivery by you to the Company or its order of immediately available
funds in the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Company to account number
2073 7811 32196 at First Union National Bank, High Point, North Carolina (ABA
#053000219). If at the Closing the Company shall fail to tender such Notes to
you as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions:
SECTION 4.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company in this Agreement shall be correct when made and
at the time of the Closing.
SECTION 4.2. PERFORMANCE; NO DEFAULT. The Company shall have
performed and complied with all agreements and conditions contained in this
Agreement required to be performed or complied with by it prior to or at the
Closing, and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Section 5.14), no Default
or Event of Default shall have occurred and be continuing. Neither the Company
nor any Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Section 10 hereof had such Section
applied since such date.
2
<PAGE>
Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 4.3. COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) SECRETARY'S CERTIFICATE. The Company shall have delivered to you
a certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Notes and the Agreements.
SECTION 4.4. OPINIONS OF COUNSEL. You shall have received opinions
in form and substance satisfactory to you, dated the date of the Closing (a)
from Womble Carlyle Sandridge & Rice, PLLC, special counsel for the Company,
covering the matters set forth in Exhibit 4.4(a) and covering such other matters
incident to the transactions contemplated hereby as you or your counsel may
reasonably request (and the Company hereby instructs its counsel to deliver such
opinion to you) and (b) from Chapman and Cutler, your special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(b) and covering such other matters incident to such transactions as
you may reasonably request.
SECTION 4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC. On the date
of the Closing your purchase of Notes shall (i) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment, (ii) not violate any applicable law or
regulation (including, without limitation, Regulation G, T or X of the Board of
Governors of the Federal Reserve System) and (iii) not subject you to any tax,
penalty or liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If requested by
you, you shall have received an Officer's Certificate (or legality certificate
in the form of Exhibit 4.5 hereto) certifying as to such matters of fact as you
may reasonably specify to enable you to determine whether such purchase is so
permitted.
SECTION 4.6. SALE OF OTHER NOTES. Contemporaneously with the
Closing, the Company shall sell to the Other Purchasers, and the Other
Purchasers shall purchase, the Notes to be purchased by it at the Closing as
specified in Schedule A.
SECTION 4.7. PAYMENT OF SPECIAL COUNSEL FEES. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the Closing
the fees, charges and disbursements of your special counsel referred to in
Section 4.4 to the extent reflected in a statement of such counsel rendered to
the Company at least one Business Day prior to the Closing.
SECTION 4.8. PRIVATE PLACEMENT NUMBER. A Private Placement Number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the
Securities Valuation Office of
3
<PAGE>
Old Dominion Freight Line, Inc. Note Purchase Agreement
the National Association of Insurance Commissioners) shall have been obtained
for each Series of the Notes.
SECTION 4.9. CHANGES IN CORPORATE STRUCTURE. The Company shall not
have changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
SECTION 4.10. PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as you or they may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
SECTION 5.1. ORGANIZATION; POWER AND AUTHORITY. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Other
Agreements and the Notes and to perform the provisions hereof and thereof.
SECTION 5.2. AUTHORIZATION, ETC. This Agreement, the Other
Agreements and the Notes have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 5.3. DISCLOSURE. The Company, through its agent, First
Union Capital Markets Corp., has delivered to you and the Other Purchasers a
copy of a Confidential Private Placement Memorandum, dated April 19, 1996 (the
"MEMORANDUM"), relating to the transactions contemplated hereby. The Memorandum
fairly describes, in all material respects, the general nature of the business
and principal properties of the Company and its Subsidiaries. This Agreement,
the Memorandum, the documents, certificates or other writings delivered to you
by or on behalf of the Company in connection with the transactions contemplated
hereby and the
4
<PAGE>
Old Dominion Freight Line, Inc. Note Purchase Agreement
financial statements listed in Schedule 5.5, taken as a whole, do
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made. Since December 31, 1995, there
has been no change in the financial condition, operations, business, properties
or prospects of the Company or any Subsidiary except changes that individually
or in the aggregate could not reasonably be expected to have a Material Adverse
Effect. There is no fact known to the Company that could reasonably be expected
to have a Material Adverse Effect.
SECTION 5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien.
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement and restrictions imposed
by the corporate law of the jurisdiction under which such Subsidiary exists)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
SECTION 5.5. FINANCIAL STATEMENTS. The Company has delivered to
each Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial statements (including
in each case the related schedules and notes) fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries
as of the respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective periods so
specified and have been prepared in accordance with
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Old Dominion Freight Line, Inc. Note Purchase Agreement
GAAP consistently applied throughout the periods involved except as set forth
in the notes thereto (subject, in the case of any interim financial statements,
to normal year-end adjustments).
SECTION 5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
SECTION 5.7. GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority or pursuant to the Interstate Commerce Act, as amended,
is required in connection with the execution, delivery or performance by the
Company of this Agreement or the Notes.
SECTION 5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND
ORDERS. (a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 5.9. TAXES. The Company and its Subsidiaries have filed all
tax returns that are required to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all other taxes
and assessments levied upon them or their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent, except for any taxes and assessments (i)
the amount of which is not individually or in the aggregate Material or (ii) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate reserves in accordance
with GAAP. The Company knows of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its Subsidiaries in
respect of Federal,
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Old Dominion Freight Line, Inc. Note Purchase Agreement
state or other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended December 31, 1991.
SECTION 5.10. TITLE TO PROPERTY; LEASES. The Company and its
Subsidiaries have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and are
in full force and effect in all material respects.
SECTION 5.11. LICENSES, PERMITS, ETC. (a) The Company and its
Subsidiaries own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without known
conflict with the rights of others.
(b) To the best knowledge of the Company, no product of the Company
infringes in any Material respect any license, permit, franchise, authorization,
patent, copyright, service mark, trademark, trade name or other right owned by
any other Person.
(c) To the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its Subsidiaries
with respect to any patent, copyright, service mark, trademark, trade name or
other right owned or used by the Company or any of its Subsidiaries.
SECTION 5.12. COMPLIANCE WITH ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability pursuant
to Title I of ERISA or the penalty or excise tax provisions of the Code relating
to employee benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that could reasonably be
expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I of ERISA or to such penalty or excise tax provisions of the
Code, other than such liabilities or Liens as would not be individually or in
the aggregate Material.
(b) Neither the Company nor any ERISA Affiliate participates in,
contributes to or has any liability with respect to any pension plan subject to
Title IV of ERISA.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
(c) The expected post-retirement benefit obligation (determined as of
the last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(d) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation
by the Company in the first sentence of this Section 5.12(d) is made in reliance
upon and subject to (i) the accuracy of your representation in Section 6.2 as to
the sources of the funds used to pay the purchase price of the Notes to be
purchased by you and (ii) the assumption, made solely for the purpose of making
such representation, that Department of Labor Interpretive Bulletin 75-2 with
respect to prohibited transactions remains valid in the circumstances of the
transactions contemplated herein.
(e) Schedule 5.14 contains a complete and correct list of all ERISA
Affiliates and all Plans established or maintained by the Company and its ERISA
Affiliates.
SECTION 5.13. PRIVATE OFFERING BY THE COMPANY. Neither the Company
nor anyone acting on its behalf has offered the Notes or any similar securities
for sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than you, the
Other Purchasers and not more than eighty (80) other Institutional Investors,
each of which has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the registration
requirements of Section 5 of the Securities Act.
SECTION 5.14. USE OF PROCEEDS; MARGIN REGULATIONS. The Company will
use the proceeds of the sale of the Notes to prepay certain existing Funded
Debt, to fund capital expenditures and for general corporate purposes. No part
of the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation G of the Board of Governors of the Federal Reserve System
(12 CFR 207), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). The Company does not
presently own any margin stock and does not have any present intention to
acquire any margin stock in the future. As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall have the meanings
assigned to them in said Regulation G.
SECTION 5.15. EXISTING DEBT; FUTURE LIENS. (a) Schedule 5.15 sets
forth a complete and correct list of all outstanding Debt of the Company and its
Subsidiaries as of the date of this Agreement, since which date there has been
no Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Company or its Subsidiaries.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
Neither the Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of
the Company or such Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Subsidiary that would permit (or that with notice
or the lapse of time, or both, would permit) one or more Persons to cause such
Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Neither the Company nor any Subsidiary has agreed or consented to
cause or permit in the future (upon the happening of a contingency or otherwise)
any of its property, whether now owned or hereafter acquired, to be subject to a
Lien not permitted by Section 10.4.
SECTION 5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC. Neither the
sale of the Notes by the Company hereunder nor its use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
SECTION 5.17. STATUS UNDER CERTAIN STATUTES. Neither the Company nor
any subsidiary is subject to regulation under the Investment Company Act of
1940, as amended, the Public Utility Holding Company Act of 1935, as amended, or
the Federal Power Act, as amended.
SECTION 5.18. ENVIRONMENTAL MATTERS. Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of any claim,
and no proceeding has been instituted raising any claim against the Company or
any of its Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets, alleging any
damage to the environment or violation of any Environmental Laws, except, in
each case, such as could not reasonably be expected to result in a Material
Adverse Effect. Except as otherwise disclosed to you in writing:
(a) neither the Company nor any Subsidiary has knowledge of
any facts which would give rise to any claim, public or private, of
violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties now or
formerly owned, leased or operated by any of them or to other assets or
their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has
stored any Hazardous Materials on real properties now or formerly
owned, leased or operated by any of them and or has disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws in
each case in any manner that could reasonably be expected to result in
a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance
with applicable Environmental
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Old Dominion Freight Line, Inc. Note Purchase Agreement
Laws, except where failure to comply could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
SECTION 6.1. PURCHASE FOR INVESTMENT. You represent that you are
purchasing the Notes for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, PROVIDED that the disposition of
your or their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
SECTION 6.2. SOURCE OF FUNDS. You represent that at least one of
the following statements is an accurate representation as to each source of
funds (a "SOURCE") to be used by you to pay the purchase price of the Notes to
be purchased by you hereunder:
(a) the Source is an "insurance company general account"
within the meaning of Department of Labor Prohibited Transaction
Exemption ("PTE") 95-60 (issued July 12, 1995), and there is no
employee benefit plan (treating as a single plan all plans maintained
by the same employer or employee organization) with respect to which
the amount of the general account reserves and liabilities for all
contracts held by or on behalf of such plan exceed 10% of the total
reserves and liabilities of such general account (exclusive of separate
account liabilities) plus surplus, as set forth in your most recent
annual statement in the form required by the National Association of
Insurance Commissioners as filed with your state of domicile; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited Transaction
Exemption 90-1 (issued January 29, 1990), or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38 (issued July 12,
1991) and, except as you have disclosed to the Company in writing
pursuant to this paragraph (b), no employee benefit plan or group of
plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part l(c)
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Old Dominion Freight Line, Inc. Note Purchase Agreement
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a
person controlling or controlled by the QPAM (applying the definition
of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more
interest in the Company and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant
to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN",
"GOVERNMENTAL PLAN", "PARTY IN INTEREST" and "SEPARATE ACCOUNT" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
SECTION 7.1. FINANCIAL AND BUSINESS INFORMATION. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) QUARTERLY STATEMENTS -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of:
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting from year-end
adjustments, PROVIDED that delivery within the time period specified above of
copies of the Company's Quarterly Report on Form 10-Q prepared in compliance
with the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section 7.1 (a);
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Old Dominion Freight Line, Inc. Note Purchase Agreement
(b) ANNUAL STATEMENTS -- within 120 days after the end of
each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied
(A) by an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that such
financial statements present fairly, in all material
respects, the financial position of the companies
being reported upon and their results of operations
and cash flows and have been prepared in conformity
with GAAP, and that the examination of such
accountants in connection with such financial
statements has been made in accordance with generally
accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants
stating that they have reviewed this Agreement and
stating further whether, in making their audit, they
have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then
exists, specifying the nature and period of the
existence thereof (it being understood that such
accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such
accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted
auditing standards or did not make such an audit),
PROVIDED that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year (together
with the Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance
with the requirements therefor and filed with the Securities and
Exchange Commission, together with the accountant's certificate
described in clause (B) above, shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC AND OTHER REPORTS -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by the
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Old Dominion Freight Line, Inc. Note Purchase Agreement
Company or any Subsidiary with the Securities and Exchange Commission
and of all press releases and other statements made available generally
by the Company or any Subsidiary to the public concerning developments
that are Material;
(d) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- promptly, and in
any event within five days after a Responsible Officer becoming aware
of the existence of any Default or Event of Default or that any Person
has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes to
take with respect thereto;
(e) ERISA MATTERS -- promptly, and in any event within five
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date hereof;
or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) NOTICES FROM GOVERNMENTAL AUTHORITY -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect; and
(g) REQUESTED INFORMATION -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or
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Old Dominion Freight Line, Inc. Note Purchase Agreement
properties of the Company or any of its Subsidiaries or relating to the
ability of the Company to perform its obligations hereunder and under
the Notes as from time to time may be reasonably requested by any such
holder of Notes.
SECTION 7.2. OFFICER'S CERTIFICATE. Each set of financial
statements delivered to a holder of Notes pursuant to Section 7.1(a) or Section
7.1(b) hereof shall be accompanied by a certificate of a Senior Financial
Officer setting forth:
(a) COVENANT COMPLIANCE -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Section 10.1 through
Section 10.8 hereof, inclusive, during the quarterly or annual period
covered by the statements then being furnished (including with respect
to each such Section, where applicable, the calculations of the maximum
or minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
(b) EVENT OF DEFAULT -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
SECTION 7.3. INSPECTION. The Company shall permit the
representatives of each holder of Notes that is an Institutional Investor:
(a) NO DEFAULT -- if no Default or Event of Default then
exists, at the expense of such holder (and if a Default or Event of
Default exists, at the expense of the Company) and upon reasonable
prior notice to the Company, to visit the principal executive office of
the Company, to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company's officers, and (with the
consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of
the Company, which consent will not be unreasonably withheld) to visit
the other offices and properties of the Company and each Subsidiary,
all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) DEFAULT -- if a Default or Event of Default then exists,
at the expense of the Company to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other
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Old Dominion Freight Line, Inc. Note Purchase Agreement
papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the
Company authorizes said accountants to discuss the affairs, finances
and accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
SECTION 8. PREPAYMENT OF THE NOTES.
SECTION 8.1. REQUIRED PREPAYMENTS.
(a) 2002 NOTES. On each date listed below, the Company will prepay
the principal amount listed below opposite such date (or such lesser principal
amount as shall then be outstanding) of the 2002 Notes at par and without
payment of the Make-Whole Amount or any premium:
DATE PREPAYMENT AMOUNT
December 15, 1998 $1,000,000
December 15, 1999 $1,500,000
December 15, 2000 $2,000,000
December 15, 2001 $2,500,000
PROVIDED that (i) upon any partial prepayment of the 2002 Notes pursuant to
Section 8.2, such partial prepayment shall be deemed to be applied first, to the
amount of principal scheduled to remain unpaid on the 2002 Notes on December 15,
2002, and then to the remaining scheduled principal payments in inverse
chronological order and (ii) upon any partial prepayment of the 2002 Notes
pursuant to Section 8.3 or purchase of the 2002 Notes permitted by Section 8.6,
the principal amount of each required prepayment of the 2002 Notes becoming due
under this Section 8.1 on and after the date of such prepayment or purchase
shall be reduced in the same proportion as the aggregate unpaid principal amount
of the 2002 Notes is reduced as a result of such prepayment or purchase.
(b) 2006 NOTES. On June 15, 2000 and on each June 15 thereafter, to
and including June 15, 2005, the Company will prepay $2,857,143 principal amount
(or such lesser principal amount as shall then be outstanding) of the 2006 Notes
at par and without payment of the Make-Whole Amount or any premium, provided
that (i) upon any partial prepayment of the 2006 Notes pursuant to Section 8.2,
such partial prepayment shall be deemed to be applied first, to the amount of
principal scheduled to remain unpaid on the 2006 Notes on June 15, 2006, and
then to the remaining scheduled principal payments in inverse chronological
order and (ii) upon any partial prepayment of the 2006 Notes pursuant to Section
8.3 or purchase of the 2006 Notes permitted by Section 8.6, the principal amount
of each required prepayment of the 2006 Notes becoming due under this Section
8.1 on and after the date of such prepayment or purchase shall be reduced in the
same proportion as the aggregate unpaid principal amount of the 2006 Notes is
reduced as a result of such prepayment or purchase.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 8.2. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT. The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of, the Notes, in an amount not less than 10%
of the aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount so prepaid. The Company will give each holder of Notes written
notice of each optional prepayment under this Section 8.2 not less than 30 days
and not more than 60 days prior to the date fixed for such prepayment. Each such
notice shall specify such date, the aggregate principal amount of the Notes to
be prepaid on such date, the principal amount of each Note held by such holder
to be prepaid (determined in accordance with Section 8.4), and the interest to
be paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by a certificate of a Senior Financial Officer
as to the estimated Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer specifying the calculation of such Make-Whole Amount as
of the specified prepayment date.
SECTION 8.3. PREPAYMENT OF NOTES UPON CHANGE IN CONTROL.
(a) NOTICE OF CHANGE IN CONTROL OR CONTROL EVENT. The Company will,
within five Business Days after any Responsible Officer has knowledge of the
occurrence of any Change in Control or Control Event, give written notice of
such Change in Control or Control Event to each holder of Notes. In the case
that a Change in Control has occurred, such notice shall contain and constitute
an offer to prepay Notes as described in subparagraph (b) of this Section 8.3
and shall be accompanied by the certificate described in subparagraph (e) of
this Section 8.3.
(b) OFFER TO PREPAY NOTES. The offer to prepay Notes contemplated by
subparagraph (a) of this Section 8.3 shall be an offer to prepay, in accordance
with and subject to this Section 8.3, all, but not less than all, of the Notes
held by each holder (in this case only, "HOLDER" in respect of any Note
registered in the name of a nominee for a disclosed beneficial owner shall mean
such beneficial owner) on a date specified in such offer (the "PROPOSED
PREPAYMENT DATE") that is not less than 45 days and not more than 60 days after
the date of such offer (if the Proposed Prepayment Date shall not be specified
in such offer, the Proposed Prepayment Date shall be the 45th day after the date
of such offer).
(c) ACCEPTANCE. A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company at least 20 days prior to the Proposed Prepayment Date.
If the Company shall not have received a written response to the offer to prepay
pursuant to this Section 8.3 from each holder of Notes within ten Business Days
after the date of making such offer to such holder of Notes, then the Company
shall immediately send a second written notice with offer to prepay via an
overnight air courier of national reputation to each such holder of Notes who
shall have not previously responded to the Company. If the offer is so accepted
by any holder of Notes, the Company at least 15 days prior to the Proposed
Prepayment Date shall give written notice to each holder of
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Old Dominion Freight Line, Inc. Note Purchase Agreement
Notes that has not so accepted the offer, in which notice the Company shall (i)
state the aggregate outstanding principal amount of Notes in respect of which
the offer has been accepted and (ii) renew the offer and extend the time for
acceptance by stating that any holder of Notes may yet accept the offer, whether
theretofore rejected or not, by causing a notice of such acceptance to be
delivered to the Company at least five days prior to the Proposed Prepayment
Date. A failure by a holder of Notes to respond to an offer to prepay made
pursuant to this Section 8.3 shall be deemed to constitute an acceptance of such
offer by such holder.
(d) PREPAYMENT. Prepayment of the Notes to be prepaid pursuant to
this Section 8.3 shall be at 100% of the principal amount of such Notes, plus
the Make-Whole Amount determined for the date of prepayment with respect to such
principal amount, together with interest on such Notes accrued to the date of
prepayment. Two Business Days prior to the date of prepayment, the Company shall
deliver to each holder of Notes being prepaid a certificate of a Senior
Financial Officer showing the Make-Whole Amount due in connection with such
prepayment and setting forth the details of the computation of such amount. The
prepayment shall be made on the Proposed Prepayment Date.
(e) OFFICER'S CERTIFICATE. Each offer to prepay the Notes pursuant to
this Section 8.3 shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this
Section 8.3; (iii) the principal amount of each Note offered to be prepaid; (iv)
the estimated Make-Whole Amount, if any, due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation; (v) the interest that would be
due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date;
(vi) that the conditions of this Section 8.3 have been fulfilled; and (vii) in
reasonable detail, the nature and date of the Change in Control.
(f) "CHANGE IN CONTROL" AND "CURRENT MANAGEMENT" DEFINED. "CHANGE IN
CONTROL" shall mean any event or circumstance resulting in any Person or group
of Persons acting in concert, other than a group of Persons including, and under
the general direction of, Current Management, legally or beneficially owning or
controlling, directly or indirectly, more than 50% (by number of votes) of the
voting stock of the Company. "CURRENT MANAGEMENT" shall mean and include Earl E.
Congdon, John R. Congdon, David S. Congdon and John A. Ebeling.
(g) "CONTROL EVENT" DEFINED. "CONTROL EVENT" means:
(i) the execution by the Company or any of its Subsidiaries
or Affiliates of any agreement or letter of intent with respect to any
proposed transaction or event or series of transactions or events
which, individually or in the aggregate, may reasonably be expected to
result in a Change in Control, or
(ii) the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in Control.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 8.4. ALLOCATION OF PARTIAL PREPAYMENTS. In the case of each
partial prepayment of the Notes made pursuant to Section 8.1 or Section 8.2, the
principal amount of the Notes to be prepaid shall be allocated among all of the
Notes of all Series at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment. All partial prepayments made pursuant to Section 8.3
shall be applied only to the Notes of the holders who have elected to
participate in such prepayment.
SECTION 8.5. MATURITY; SURRENDER, ETC. In the case of each
prepayment of Notes pursuant to this Section 8, the principal amount of each
Note to be prepaid shall mature and become due and payable on the date fixed for
such prepayment, together with interest on such principal amount accrued to such
date and the applicable Make-Whole Amount, if any. From and after such date,
unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as aforesaid,
interest on such principal amount shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to the Company and cancelled and shall not
be reissued, and no Note shall be issued in lieu of any prepaid principal amount
of any Note.
SECTION 8.6. PURCHASE OF NOTES. The Company will not and will not
permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly
or indirectly, any of the outstanding Notes except upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
Notes. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to
any provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
SECTION 8.7. MAKE-WHOLE AMOUNT. The term "MAKE-WHOLE AMOUNT" means,
with respect to any Note, an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal, PROVIDED that
the Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
Section 8.3 or has become or is declared to be immediately due and
payable pursuant to Section 12. 1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, 0.5% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 500" on the
Telerate Access Service (or such other display as may replace Page 500
on Telerate Access Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or (ii) if such
yields are not reported as of such time or the yields reported as of
such time are not ascertainable, the Treasury Constant Maturity Series
Yields reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical
Release H. 15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield will be determined, if necessary,
by (a) converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b)
interpolating linearly between (1) the actively traded U.S. Treasury
security with the duration closest to and greater than the Remaining
Average Life and (2) the actively traded U.S. Treasury security with
the duration closest to and less than the Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, PROVIDED that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2, Section 8.3 or Section
12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or Section 8.3 or has become or is declared to
be immediately due and payable pursuant to Section 12.1, as the context
requires.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
SECTION 9.1. COMPLIANCE WITH LAW. The Company will and will cause
each of its Subsidiaries to comply with all laws, ordinances or governmental
rules or regulations to which each of them is subject, including, without
limitation, ERISA and Environmental Laws, and will obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2. INSURANCE. The Company will and will cause each of its
Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
SECTION 9.3. MAINTENANCE OF PROPERTIES. The Company will and will
cause each of its Subsidiaries to maintain and keep, or cause to be maintained
and kept, their respective properties in good repair, working order and
condition (other than ordinary wear and tear), so that the business carried on
in connection therewith may be properly conducted at all times, PROVIDED that
this Section shall not prevent the Company or any Subsidiary from discontinuing
the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company has
concluded that such discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 9.4. PAYMENT OF TAXES AND CLAIMS. The Company will and will
cause each of its Subsidiaries to file all tax returns required to be filed in
any jurisdiction and to pay and discharge all taxes shown to be due and payable
on such returns and all other taxes, assessments, governmental charges, or
levies imposed on them or any of their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent and all claims for which sums have become due and
payable that have or might become a Lien on properties or assets of the Company
or any Subsidiary, PROVIDED that neither the Company nor any Subsidiary need pay
any such tax or assessment or claims if (i) the amount, applicability or
validity thereof is contested by the Company or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the Company or a
Subsidiary has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Subsidiary or (ii) the nonpayment of all such
taxes and assessments in the aggregate could not reasonably be expected to have
a Material Adverse Effect.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 9.5. CORPORATE EXISTENCE, ETC. The Company will at all
times preserve and keep in full force and effect its corporate existence.
Subject to Sections 10.6 and 10.7, the Company will at all times preserve and
keep in full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a Subsidiary) and all rights and
franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
SECTION 10.1. CONSOLIDATED TANGIBLE NET WORTH. The Company will not,
at any time, permit Consolidated Tangible Net Worth to be less than the sum of
(a) $55,000,000, plus (b) an aggregate amount equal to 50% of its Consolidated
Net Income (but, in each case, only if a positive number) for each completed
fiscal quarter beginning with the fiscal quarter ended June 30, 1996.
SECTION 10.2. FIXED CHARGES COVERAGE RATIO. The Company will not, at
any time, permit the Fixed Charges Coverage Ratio to be less than 1.75 to 1.
SECTION 10.3. LIMITATIONS ON DEBT. (a) The Company will not at any
time permit Consolidated Funded Debt to exceed 55% of Consolidated Total
Capitalization as of the then most recently ended fiscal quarter of the Company.
(b) The Company will not at any time permit Funded Debt of
Subsidiaries to exceed the remainder of (i) 15% of Consolidated Tangible Net
Worth minus (ii) the aggregate amount of Debt of the Company and its
Subsidiaries then outstanding secured by Liens permitted by Section 10.4(k).
SECTION 10.4. LIENS. The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly create, incur, assume or permit
to exist (upon the happening of a contingency or otherwise) any Lien on or with
respect to any property or asset (including, without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or any
such Subsidiary, whether now owned or held or hereafter acquired, or any income
or profits therefrom or assign or otherwise convey any right to receive income
or profits (unless it (i) makes, or causes to be made, effective provision
whereby the Notes will be equally and ratably secured with any and all other
obligations thereby secured, such security to be pursuant to an agreement
reasonably satisfactory to the Required Holders and, in any such case, the Notes
shall have the benefit, to the fullest extent that, and with such priority as,
the holders of the Notes may be entitled under applicable law, of an equitable
Lien on such property and (ii) delivers to each holder of the Notes an opinion
of counsel in form and substance satisfactory to the Required Holders to the
effect that such agreement constitutes a valid and perfected lien on
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Old Dominion Freight Line, Inc. Note Purchase Agreement
and security interest in such security and that the Notes are equally and
ratably secured with any and all other obligations thereby secured), except:
(a) Liens for taxes, assessments or other governmental
charges which are not yet due and payable or the payment of which is
not at the time required by Section 9.4;
(b) Liens created by or resulting from any judgment or award
which are being actively contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due
and payable or the payment of which is not at the time required by
Section 9.4;
(d) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to, and not interfering with, the ordinary
conduct of the business of the Company or any of its Subsidiaries,
PROVIDED that such Liens do not, in the aggregate, materially detract
from the value of such property;
(e) other Liens incidental to the normal conduct of the
business of the Company or any Subsidiary or the ownership of its
property and assets which are not incurred in connection with the
borrowing of money and which do not in the aggregate materially impair
the use of such property and assets in the operation of the business of
the Company or any Subsidiary or materially impair the value of such
property and assets for the purposes of such business;
(f) Liens on property or assets of the Company or any of its
Subsidiaries securing Debt owing to the Company or to any of its
Wholly-Owned Subsidiaries;
(g) Liens existing on the date of this Agreement and
reflected on Schedule 10.4;
(h) any Lien renewing, extending or refunding any Lien
permitted by paragraph (g) or paragraph (i) of this Section 10.4,
PROVIDED that (i) the principal amount of Debt secured by such Lien
immediately prior to such extension, renewal or refunding is not
increased or the maturity thereof reduced, (ii) such Lien is not
extended to any other property, and (iii) immediately after such
extension, renewal or refunding no Default or Event of Default would
exist;
(i) any Lien created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay all or any
part of the purchase price or cost of construction, of real or tangible
personal property (or any improvement thereon or
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Old Dominion Freight Line, Inc. Note Purchase Agreement
thereto) acquired or constructed by the Company or a Subsidiary after
the date of the Closing, PROVIDED that
(i) any such Lien shall extend solely to the item or
items of such property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument
originally creating such Lien, other property (or improvement
thereon) which is an improvement to or is acquired for
specific use in connection with such acquired or constructed
property (or improvement thereon) or which is real property
being improved by such acquired or constructed property (or
improvement thereon),
(ii) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to the Fair
Market Value (as determined in good faith by the board of
directors of the Company) of such property (or improvement
thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously
with, or within 120 days after, the acquisition or completion
of construction of such property;
(j) any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Debt secured thereby shall
have been assumed), PROVIDED that (i) no such Lien shall have been
created or assumed in contemplation of such consolidation or merger or
such Person's becoming a Subsidiary or such acquisition of property,
(ii) each such Lien shall extend solely to the item or items of
property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement
to or is acquired for specific use in connection with such acquired
property and (iii) the principal amount of the Debt secured by any such
Lien shall at no time exceed an amount equal to the Fair Market Value
(as determined in good faith by the board of directors of the Company)
of such property (or such improvement thereon) at the time of such
acquisition; and
(k) other Liens not otherwise permitted by paragraphs (a)
through (j) securing Debt of the Company or any Subsidiary, provided
that all Debt secured by such Liens does not at any time exceed the
remainder of (i) 15% of Consolidated Tangible Net Worth minus (ii) the
aggregate amount of Funded Debt of Subsidiaries then outstanding.
SECTION 10.5.RESTRICTED PAYMENTS AND RESTRICTED INVESTMENTS.
(a) LIMITATION. The Company will not, and will not permit any of its
Subsidiaries to, declare, make or incur any liability to make any Restricted
Payment or make or authorize any Restricted Investment UNLESS immediately after
giving effect to such action:
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Old Dominion Freight Line, Inc. Note Purchase Agreement
(i) the sum of (x) the aggregate value of all Restricted
Investments of the Company and its Subsidiaries (valued immediately
after such action), plus (y) the aggregate amount of Restricted
Payments of the Company and its Subsidiaries declared or made during
the period commencing on March 31, 1996 and ending on the date such
Restricted Payment or Restricted Investment is declared or made,
inclusive, would not exceed the sum of
(A) $5,000,000, plus
(B) 50% of Consolidated Net Income for such period
(or minus 100% of Consolidated Net Income for such period if
Consolidated Net Income for such period is a loss), plus
(C) the aggregate amount of Net Proceeds of Capital
Stock for such period; and
(ii) no Default or Event of Default would exist.
(b) TIME OF PAYMENT. The Company will not, nor will it permit any of
its Subsidiaries to, authorize a Restricted Payment that is not payable within
60 days of authorization.
SECTION 10.6. MERGER, CONSOLIDATION, ETC. The Company will not, and
will not permit any of its Subsidiaries to, consolidate with or merge with any
other corporation or convey, transfer or lease substantially all of its assets
in a single transaction or series of transactions to any Person (except that (x)
a Subsidiary of the Company may consolidate with or merge with, or convey,
transfer or lease substantially all of its assets in a single transaction or
series of transactions to, the Company or another Wholly-Owned Subsidiary of the
Company and (y) each of the Company and its Subsidiaries may convey, transfer or
lease all of its assets in compliance with the provisions of Section 10.7),
provided that the foregoing restriction does not apply to the consolidation or
merger of the Company with, or the conveyance, transfer or lease of
substantially all of the assets of the Company in a single transaction or series
of transactions to, any Person so long as:
(a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety, as the case may be (the "SUCCESSOR CORPORATION"), shall be a
solvent corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia;
(b) if the Company is not the Successor Corporation, such
corporation shall have executed and delivered to each holder of Notes
its assumption of the due and punctual performance and observance of
each covenant and condition of this Agreement and the Notes (pursuant
to such agreements and instruments as shall be reasonably satisfactory
to the Required Holders), and the Company shall have caused to be
delivered to each holder of Notes an opinion of nationally recognized
independent counsel, or other
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Old Dominion Freight Line, Inc. Note Purchase Agreement
independent counsel reasonably satisfactory to the Required Holders, to
the effect that all agreements or instruments effecting such assumption
are enforceable in accordance with their terms and comply with the
terms hereof; and
(c) immediately after giving effect to such transaction, (i)
no Default or Event of Default would exist and (ii) Consolidated Funded
Debt does not exceed 55% of Consolidated Total Capitalization.
No such conveyance, transfer or lease of substantially all of the assets of the
Company shall have the effect of releasing the Company or any Successor
Corporation from its liability under this Agreement or the Notes.
SECTION 10.7. SALE OF ASSETS, ETC. Except as permitted under Section
10.6, the Company will not, and will not permit any of its Subsidiaries to, make
any Asset Disposition unless:
(a) in the good faith opinion of the Company, the Asset
Disposition is in exchange for consideration having a Fair Market Value
at least equal to that of the property exchanged and is in the best
interest of the Company or such Subsidiary; and
(b) immediately after giving effect to the Asset Disposition,
(i) no Default or Event of Default would exist and (ii) Consolidated
Funded Debt does not exceed 55% of Consolidated Total Capitalization;
and
(c) immediately after giving effect to the Asset Disposition,
(i) the Disposition Value of all property that was the subject of any
Asset Disposition occurring in the period of four fiscal quarters of
the Company then next ending would not exceed 15% of Consolidated
Assets as of the end of the then most recently ended fiscal quarter of
the Company and (ii) all of the property of the Company and its
Subsidiaries that was the subject of any Asset Disposition occurring in
the period of four fiscal quarters of the Company then next ending did
not account for more than 15% of Consolidated Net Income for the then
most recently ended four quarter fiscal period.
If the Net Proceeds Amount for any Transfer is applied to a Reinvestment
Application within 270 days after such Transfer, then such Transfer, only for
the purpose of determining compliance with subsection (c) of this Section 10.7
as of a date on or after the Net Proceeds Amount is so applied, shall be deemed
not to be an Asset Disposition.
SECTION 10.8. SALE-AND-LEASEBACKS. The Company will not, and will
not permit any Subsidiary to, enter into any Sale-and-Leaseback Transaction
unless the Net Proceeds Amount received by the Company or such Subsidiary in
respect of such Sale-and-Leaseback Transaction is applied within 270 days of the
consummation thereof to a Reinvestment Application.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 10.9. TRANSACTIONS WITH AFFILIATES. The Company will not and
will not permit any Subsidiary to enter into directly or indirectly any
transaction or Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company or
another Subsidiary), except in the ordinary course and pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
SECTION 10.10. LINE OF BUSINESS. The Company will not, and will not
permit any of its Subsidiaries to, engage in any business if, as a result, the
general nature of the business in which the Company and its Subsidiaries, taken
as a whole, would then be engaged would be substantially changed from the
general nature of the business in which the Company and its Subsidiaries, taken
as a whole, are engaged on the date of this Agreement.
SECTION 11. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on
any Note for more than five Business Days after the same becomes due
and payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in Sections 10.1 through 10.3 or Sections 10.5
through 10.8; or
(d) the Company defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on
behalf of the Company or by any officer of the Company in this
Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole
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Old Dominion Freight Line, Inc. Note Purchase Agreement
amount or interest on any Debt that is outstanding in an aggregate
principal amount of at least $5,000,000 beyond any period of grace
provided with respect thereto, or (ii) the Company or any Subsidiary is
in default in the performance of or compliance with any term of any
evidence of any Debt in an aggregate outstanding principal amount of at
least $5,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Debt has become, or has been declared,
due and payable before its stated maturity or before its regularly
scheduled dates of payment, or (iii) as a consequence of the occurrence
or continuation of any event or condition (other than the passage of
time or the right of the holder of Debt to convert such Debt into
equity interests), (x) the Company or any Subsidiary has become
obligated to purchase or repay Debt before its regular maturity or
before its regularly scheduled dates of payment in an aggregate
outstanding principal amount of at least $5,000,000, or (y) one or more
Persons have the right to require the Company or any Subsidiary so to
purchase or repay such Debt and shall have exercised such right; or
(g) the Company or any Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any of its Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any of its
Subsidiaries, or any such petition shall be filed against the Company
or any of its Subsidiaries and such petition shall not be dismissed
within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 (excluding any judgment, or portion
thereof, as to which a solvent insurer shall have accepted
responsibility) are rendered against one or more of the Company and its
Subsidiaries and which judgments are not, within 45 days after entry
thereof, bonded, discharged or stayed pending appeal, or are not
discharged within 45 days after the expiration of such stay; or
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Old Dominion Freight Line, Inc. Note Purchase Agreement
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected
to be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $5,000,000, (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or
any Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
SECTION 12.1. ACCELERATION. (a) If an Event of Default with respect
to the Company described in paragraph (g) or (h) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (g) or described in clause
(vi) of paragraph (g) by virtue of the fact that such clause encompasses clause
(i) of paragraph (g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 25% in principal amount of the Notes of any
Series at the time outstanding may at any time at its or their option, by notice
or notices to the Company, declare all the Notes of such Series then outstanding
to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at the
time outstanding affected by such Event of Default may at any time, at its or
their option, by notice or notices to the Company, declare all the Notes held by
it or them to be immediately due and payable.
Upon any Note becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law),
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Old Dominion Freight Line, Inc. Note Purchase Agreement
shall all be immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which are hereby waived.
The Company acknowledges, and the parties hereto agree, that each holder of a
Note has the right to maintain its investment in the Notes free from repayment
by the Company (except as herein specifically provided for), and that the
provision for payment of a Make-Whole Amount by the Company in the event that
the Notes are prepaid or are accelerated as a result of an Event of Default, is
intended (a) to provide compensation for the deprivation of such right under
such circumstances and (b) to be liquidated damages for loss of bargain and not
a penalty.
SECTION 12.2. OTHER REMEDIES. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
SECTION 12.3. RESCISSION. At any time after any Notes of any Series
have been declared due and payable pursuant to clause (b) of Section 12.1, the
holders of not less than 66-2/3% in principal amount of the Notes of such Series
then outstanding, by written notice to the Company, may rescind and annul any
such declaration and its consequences if (a) the Company has paid all overdue
interest on the Notes of such Series, all principal of and Make-Whole Amount, if
any, on any Notes of such Series that are due and payable and are unpaid other
than by reason of such declaration, and all interest on such overdue principal
and Make-Whole Amount, if any, and (to the extent permitted by applicable law)
any overdue interest in respect of the Notes of such Series, at the Default
Rate, (b) all Events of Default and Defaults, other than non-payment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the Notes of
such Series. No rescission and annulment under this Section 12.3 will extend to
or affect any subsequent Event of Default or Default or impair any right
consequent thereon.
SECTION 12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC. No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
SECTION 13.1. REGISTRATION OF NOTES. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
SECTION 13.2. TRANSFER AND EXCHANGE OF NOTES. Upon surrender of any
Note at the principal executive office of the Company for registration of
transfer or exchange (and in the case of a surrender for registration of
transfer, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of such Note or its attorney duly authorized
in writing and accompanied by the address for notices of each transferee of such
Note or part thereof), the Company shall execute and deliver, at the Company's
expense (except as provided below), one or more new Notes (as requested by the
holder thereof) of the same Series in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Exhibit 1. Each such new Note shall be
dated and bear interest from the date to which interest shall have been paid on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations of
less than $1,000,000, PROVIDED that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $1,000,000. Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to
have made the representation set forth in Section 6.2.
SECTION 13.3. REPLACEMENT OF NOTES. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (PROVIDED that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a
Note with a minimum net worth of at least $100,000,000, such Person's
own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,the Company at its own expense shall execute and
deliver, in lieu thereof, a new Note of the same Series, dated and
bearing interest from the date to which interest shall have been
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Old Dominion Freight Line, Inc. Note Purchase Agreement
paid on such lost, stolen, destroyed or mutilated Note or dated the
date of such lost, stolen, destroyed or mutilated Note if no interest
shall have been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
SECTION 14.1. PLACE OF PAYMENT. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in High Point, North Carolina at the principal office of
the Company in such jurisdiction. The Company may at any time, by notice to each
holder of a Note, change the place of payment of the Notes so long as such place
of payment shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust company in such
jurisdiction.
SECTION 14.2. HOME OFFICE PAYMENT. So long as you or your nominee
shall be the holder of any Note, and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Company will pay all sums
becoming due on such Note for principal, Make-Whole Amount, if any, and interest
by the method and at the address specified for such purpose below your name in
Schedule A, or by such other method or at such other address as you shall have
from time to time specified to the Company in writing for such purpose, without
the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company made concurrently with
or reasonably promptly after payment or prepayment in full of any Note, you
shall surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1. Prior
to any sale or other disposition of any Note held by you or your nominee you
will, at your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect transferee of any Note
purchased by you under this Agreement and that has made the same agreement
relating to such Note as you have made in this Section 14.2.
SECTION 15. EXPENSES, ETC.
SECTION 15.1. TRANSACTION EXPENSES. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by you and the Other Purchasers or
each other holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses incurred
in enforcing or defending (or determining whether or how to enforce or defend)
any rights under this Agreement or the Notes or in responding to any subpoena or
other legal process or informal investigative
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Old Dominion Freight Line, Inc. Note Purchase Agreement
demand issued in connection with this Agreement or the Notes, or by reason of
being a holder of any Note, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by you).
SECTION 15.2. SURVIVAL. The obligations of the Company under this
Section 15 will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the Notes, and the
termination of this Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties of the Company under this Agreement.
Subject to the preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
SECTION 17.1. REQUIREMENTS. This Agreement and the Notes may be
amended, and the observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any
defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 17 or 20.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 17.2. SOLICITATION OF HOLDERS OF NOTES.
(a) SOLICITATION. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) PAYMENT. The Company will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes or any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
SECTION 17.3. BINDING EFFECT, ETC. Any amendment or waiver consented
to as provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
SECTION 17.4. NOTES HELD BY COMPANY, ETC. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
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Old Dominion Freight Line, Inc. Note Purchase Agreement
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of J. Wes Frye, or at
such other address as the Company shall have specified to the holder of
each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, PROVIDED that such term does not
include information that (a) was publicly known or otherwise known to you prior
to the time of such disclosure, (b) subsequently becomes publicly known through
no act or omission by you or any person acting on your behalf, (c) otherwise
becomes known to you other than through disclosure by the Company or any
Subsidiary or (d) constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available. You will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by you in good faith to protect confidential information of third
parties delivered to you, PROVIDED that
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Old Dominion Freight Line, Inc. Note Purchase Agreement
you may deliver or disclose Confidential Information to (i) your directors,
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by your Notes), (ii) your financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which you sell or offer
to sell such Note or any part thereof or any participation therein (if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (v) any Person
from which you offer to purchase any security of the Company (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is continuing, to
the extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the rights
and remedies under your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this Section 20.
SECTION 21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
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Old Dominion Freight Line, Inc. Note Purchase Agreement
SECTION 22. MISCELLANEOUS.
SECTION 22.1. SUCCESSORS AND ASSIGNS. All covenants and other
agreement contained in this Agreement by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
SECTION 22.2. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
SECTION 22.3. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 22.4. CONSTRUCTION. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
SECTION 22.5. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
SECTION 22.6. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
SECTION 22.7. ADDITIONAL DEBT. Subject to the terms and provisions
hereof, the Company may, from time to time, issue and sell additional senior
promissory notes and may, in connection with the documentation thereof,
incorporate by reference various provisions of this agreement. Such
incorporation by reference shall not modify, dilute or otherwise affect the
terms and provisions hereof and in no event shall any holder of Notes have any
obligation to purchase any such additional promissory notes referred to above.
36
<PAGE>
Old Dominion Freight Line, Inc. Note Purchase Agreement
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
OLD DOMINION FREIGHT LINE, INC.
By /s/ John A. Ebeling
Its President
The foregoing is hereby agreed
to as of the date thereof.
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Michael D. Groseclose
Its Associate Vice President
Corporate Fixed-Income Securities
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By /s/ Michael D. Groseclose
Its Associate Vice President
Corporate Fixed-Income Securities
NEW YORK LIFE INSURANCE COMPANY
By /s/ David L. Bangs
Its Investment Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By /s/ John E. Schumacher
Its Investment Vice President
37
<PAGE>
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF NOTES TO
NAME AND ADDRESS OF PURCHASER BE PURCHASED SERIES
$8,000,000 2002 NOTES
NATIONWIDE LIFE INSURANCE COMPANY
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Old
Dominion Freight Line, Inc., 7.30% Senior Notes due 2002, PPN 679580 A* 1,
principal or interest") to:
Morgan Guaranty Trust Company of New York (ABA #021-000-238)
JOURNAL #999-99-024
F/A/O Nationwide Life Insurance Company Custody A/C #71615
Attention: Custody Service Department
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-09)
Columbus, Ohio 43215-2220
Attention: Corporate Money Management
All notices and communications other than those in respect to payments to be
addressed:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4156830
SCHEDULE A
(to Note Purchase Agreement)
<PAGE>
PRINCIPAL AMOUNT OF NOTES TO
NAME AND ADDRESS OF PURCHASER BE PURCHASED SERIES
$2,000,000 2002 NOTES
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Old
Dominion Freight Line, Inc., 7.30% Senior Notes due 2002, PPN 679580 A* 1,
principal or interest") to:
Morgan Guaranty Trust Company of New York (ABA #021-000-238)
JOURNAL #999-99-024
F/A/O Nationwide Life and Annuity Insurance Company Custody A/C #71620
Attention: Custody Service Department
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-32-09)
Columbus, Ohio 43215-2220
Attention: Corporate Money Management
All notices and communications other than those in respect to payments to be
addressed:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-1000740
A-2
<PAGE>
PRINCIPAL AMOUNT OF NOTES TO
NAME AND ADDRESS OF PURCHASER BE PURCHASED SERIES
$10,000,000 2006 NOTES
NEW YORK LIFE INSURANCE COMPANY
51 Madison Avenue
New York, New York 10010
Attention: Investment Department, Private Finance Group, Room 206
Telefacsimile Number: (212) 447-4122
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Old
Dominion Freight Line, Inc., 7.59% Senior Notes due 2006, PPN 679580 A@ 9,
principal, premium or interest") to:
Morgan Guaranty Trust Company of New York (ABA #021-000-238)
New York, New York 10015
for credit to: New York Life Insurance Company
General Account Number 810-00-000
Notices
All notices with respect to payments and written confirmation of each such
payment, to be addressed:
New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department, Securities Income Section, Room 209
All other notices and communications to be addressed as first provided above,
with a copy to: Office of the General Counsel, Investment Section, Room 10SB,
Telefacsimile Number (212) 576-8340
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-5582869
A-3
<PAGE>
PRINCIPAL AMOUNT OF NOTES TO
NAME AND ADDRESS OF PURCHASER BE PURCHASED SERIES
$10,000,000 2006 NOTES
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Investment Department, Room 206
Telecopier Number: (212) 447-4122
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Old
Dominion Freight Line, Inc., 7.59% Senior Notes due 2006, PPN 679580 A@ 9,
principal, premium or interest") to:
Chemical Bank (ABA #021-000-128)
New York, New York
for credit to: New York Life Insurance and Annuity Corporation
General Account Number 008-0-57001
Notices
All notices and communications regarding unscheduled or optional payments to be
addressed:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department
Securities Income Section, Room 209
Telefacsimile Number: (212) 576-4296
All other notices and communications to be addressed as first provided above,
with a copy to: Investment Section, Office of the General Counsel, Room 10SB,
Telefacsimile Number: (212) 576-8340
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-3044743
A-4
<PAGE>
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"AFFILIATE" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "AFFILIATE"
is a reference to an Affiliate of the Company.
"ASSET DISPOSITION" means any Transfer except:
(a) any Transfer from the Company to a Subsidiary or from a
Subsidiary to another Subsidiary, which in either case is for Fair
Market Value, and so long as immediately before and immediately after
the consummation of any such Transfer and after giving effect thereto,
no Default or Event of Default exists; and
(b) any Transfer made in the ordinary course of business and
involving only property that is either (i) inventory held for sale or
(ii) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Company or any of its Subsidiaries
or that is obsolete.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York, New York or High Point, North Carolina
are required or authorized to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"CHANGE IN CONTROL" has the meaning set forth in Section 8.3(f).
"CLOSING" is defined in Section 3.
SCHEDULE B
(to Note Purchase Agreement)
<PAGE>
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"COMPANY" means Old Dominion Freight Line, Inc., a Virginia
corporation, and any successor corporation permitted under Section 10.6.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED FUNDED DEBT" means, as of any date of determination, the
total of all Funded Debt of the Company and its Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated in the course
of the preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED INCOME AVAILABLE FOR FIXED CHARGES" means, with respect
to any period, Consolidated Net Income for such period plus all amounts deducted
in the computation thereof on account of (a) Fixed Charges, (b) taxes imposed on
or measured by income or excess profits, (c) depreciation and (d) amortization.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period (taken as a
cumulative whole), as determined in accordance with GAAP, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any time, the stockholders
equity of the Company and its Subsidiaries determined on a consolidated basis as
of such time in accordance with GAAP MINUS the net book amount of all assets of
the Company and its Subsidiaries (after deducting any reserves applicable
thereto) which would be shown as intangible assets on a consolidated balance
sheet of the Company and its Subsidiaries as of such time prepared in accordance
with GAAP.
"CONSOLIDATED TOTAL CAPITALIZATION" means, at any time, the sum of
Consolidated Tangible Net Worth and Consolidated Funded Debt.
"CONTROL EVENT" has the meaning set forth in Section 8.3(g).
"CURRENT MATURITIES OF FUNDED DEBT" means, at any time and with respect
to any item of Funded Debt, the portion of such Funded Debt outstanding at such
time which by the terms of such Funded Debt or the terms of any instrument or
agreement relating thereto is due on demand or within one year from such time
(whether by sinking fund, other required prepayment or final payment at
maturity) and is not directly or indirectly renewable, extendible or refundable
at the
B-2
<PAGE>
option of the obligor under an agreement or firm commitment in effect at such
time to a date one year or more from such time.
"DEBT" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) its Capital Lease Obligations;
(d) letters of credit issued for the account of such Person
including, but without duplication, amounts required to be reimbursed
by such Person to the issuer of the letter of credit;
(e) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities); and
(f) any Guaranty of such Person with respect to liabilities
of a type described in any of clauses (a) through (e) hereof.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (f) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed to
be extinguished under GAAP. Debt shall exclude (i) any such liabilities,
obligations or Guaranties referred to in clauses (a) through (f) above if owed
by the Company to a Wholly-Owned Subsidiary or by a Subsidiary to the Company or
a Wholly-Owned Subsidiary and (ii) any unfunded obligations which may exist now
or hereafter in any pension plan maintained by the Company or any Subsidiary.
"DEFAULT" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"DEFAULT RATE" means that rate of interest that is the greater of (i)
2% per annum above the rate of interest stated in clause (a) of the first
paragraph of any Note or (ii) 2% over the rate of interest publicly announced by
Citibank, N.A., in New York, New York as its "base" or "prime" rate.
"DISPOSITION VALUE" means, at any time, with respect to any property
(a) in the case of property that does not constitute
Subsidiary Stock, the book value thereof, valued at the time of such
disposition in good faith by the Company, and
B-3
<PAGE>
(b) in the case of property that constitutes Subsidiary
Stock, an amount equal to that percentage of book value of the assets
of the Subsidiary that issued such stock as is equal to the percentage
that the book value of such Subsidiary Stock represents of the book
value of all of the outstanding capital stock of such Subsidiary
(assuming, in making such calculations, that all Securities convertible
into such capital stock are so converted and giving full effect to all
transactions that would occur or be required in connection with such
conversion) determined at the time of the disposition thereof, in good
faith by the Company.
"DISTRIBUTION" means, in respect of any corporation, association or
other business entity:
(a) dividends or other distributions or payments on capital
stock or other equity interest of such corporation, association or
other business entity (except distributions in such stock or other
equity interest); and
(b) the redemption or acquisition of such stock or other
equity interests or of warrants, rights or other options to purchase
such stock or other equity interests.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"FIXED CHARGES" means, with respect to any period, the sum of (a)
Interest Charges for such period and (b) Lease Rentals for such period.
B-4
<PAGE>
"FIXED CHARGES COVERAGE RATIO" means, at any time, the ratio of (a)
Consolidated Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (b) Fixed Charges for such period.
"FUNDED DEBT" means, with respect to any Person, but without
duplication (i) all Debt of such Person which by its terms or by the terms of
any instrument or agreement relating thereto matures, or which is otherwise
payable or unpaid, one year or more from, or is directly or indirectly renewable
or extendible at the option of the obligor in respect thereof to a date one year
or more (including, without limitation, an option of such obligor under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from, the date of the creation
thereof, (ii) Capitalized Lease Obligations, (iii) Current Maturities of Funded
Debt (iv) all other Debt of such Person outstanding under a working capital line
or revolving credit agreement or similar agreement unless there shall have been
during the 12 calendar month period immediately preceding any date of
determination a period of at least 30 consecutive days on each of which there
shall have been no Debt outstanding thereunder and (v) all Guaranties of any of
the foregoing.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"GUARANTY" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet
B-5
<PAGE>
condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or
payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"INSTITUTIONAL INVESTOR" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"INTEREST CHARGES" means, with respect to any period, all amounts (in
each case, eliminating all offsetting debits and credits between the Company and
its Subsidiaries and all other items required to be eliminated in the course of
the preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP) deducted in computing Consolidated Net
Income on account of interest on Debt and shall include, in any event: (a) all
interest in respect of Debt of the Company and its Subsidiaries (including
imputed interest on Capital Lease Obligations) deducted in determining
Consolidated Net Income for such period, (b) all Debt discount and expense
amortized or required to be amortized in the determination of Consolidated Net
Income for such period, (c) fees and commissions for letters of credit and
bankers acceptances, and (d) the net interest cost in respect of interest rate
swaps, interest rate caps and other hedging arrangements.
"INVESTMENT" means any investment, made in cash or by delivery of
property, by the Company or any of its Subsidiaries (i) in any Person, whether
by acquisition of stock, Debt or
B-6
<PAGE>
other obligation or Security, or by loan, Guaranty, advance, capital
contribution or otherwise, or (ii) in any property.
"LEASE RENTALS" means, with respect to any period, the sum of the
minimum amount of rental and other obligations required to be paid during such
period by the Company or any Subsidiary as lessee under all leases of real or
personal property (other than Capital Leases), excluding any amounts required to
be paid by the lessee (whether or not therein designated as rental or additional
rental) (a) which are on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, or (b) which are based on profits,
revenues or sales realized by the lessee from the leased property or otherwise
based on the performance of the lessee.
"LIEN" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"MAKE-WHOLE AMOUNT" is defined in Section 8.7.
"MATERIAL" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"NET PROCEEDS AMOUNT" means, with respect to any Transfer of any
property by any Person, an amount equal to the DIFFERENCE of
(a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation
of such Transfer) received by such Person in respect of such Transfer,
MINUS
(b) all ordinary and reasonable out-of-pocket costs and
expenses actually incurred by such Person in connection with such
Transfer.
"NET PROCEEDS OF CAPITAL STOCK" means, with respect to any period, cash
proceeds (net of all costs and out-of-pocket expenses in connection therewith,
including, without limitation,
B-7
<PAGE>
placement, underwriting and brokerage fees and expenses), received by the
Company and its Subsidiaries during such period, from the sale of all capital
stock (other than Redeemable capital stock) of the Company, including in such
net proceeds:
(a) the net amount paid upon issuance and exercise during
such period of any right to acquire any capital stock, or paid during
such period to convert a convertible debt Security to capital stock
(but excluding any amount paid to the Company upon issuance of such
convertible debt Security); and
(b) any amount paid to the Company upon issuance of any
convertible debt Security issued after March 31, 1996 and thereafter
converted to capital stock during such period.
"NOTES" is defined in Section 1.
"OFFICER'S CERTIFICATE" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER PURCHASERS" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"REDEEMABLE" means, with respect to the capital stock of any Person,
each share of such Person's capital stock that is:
B-8
<PAGE>
(a) redeemable, payable or required to be purchased or
otherwise retired or extinguished, or convertible into Debt of such
Person (i) at a fixed or determinable date, whether by operation of
sinking fund or otherwise, (ii) at the option of any Person other than
such Person, or (iii) upon the occurrence of a condition not solely
within the control of such Person; or
(b) convertible into other Redeemable capital stock.
"REINVESTMENT APPLICATION" means, with respect to any Transfer of
property, the application of an amount equal to the Net Proceeds Amount with
respect to such Transfer (i) to the acquisition by the Company or any Subsidiary
of operating assets of the Company or such Subsidiary to be used in the ordinary
course of business of such Person or (ii) for reinvestment in the business of
the Company or such Subsidiary as such business is conducted as of the date of
this Agreement.
"REQUIRED HOLDERS" means, at any time, the holders of at least 66-2/3%
in principal amount of the Notes of each Series at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this agreement.
"RESTRICTED INVESTMENTS" means all Investments except the following:
(a) property to be used in the ordinary course of business of
the Company and its Subsidiaries;
(b) current assets arising from the sale of goods and
services in the ordinary course of business of the Company and its
Subsidiaries;
(c) Investments in one or more Subsidiaries or any Person
that concurrently with such Investment becomes a Subsidiary;
(d) Investments existing on the date of the Closing and
disclosed in Schedule C;
(e) Investments in United States Governmental Securities,
PROVIDED that such obligations mature within 365 days from the date of
acquisition thereof;
(f) Investments in certificates of deposit or banker's
acceptances issued by an Acceptable Bank, PROVIDED that such
obligations mature within 365 days from the date of acquisition
thereof;
B-9
<PAGE>
(g) Investments in commercial paper given the highest rating
by a credit rating agency of recognized national standing and maturing
not more than 270 days from the date of creation thereof;
(h) Investments in Repurchase Agreements; and
(i) Investments in tax-exempt obligations of any state of the
United States of America, or any municipality of any such state, in
each case rated "AA" or better by S&P, "Aa2" or better by Moody's or an
equivalent rating by any other credit rating agency of recognized
national standing, PROVIDED that such obligations mature within 365
days from the date of acquisition thereof.
As of any date of determination, each Restricted Investment shall be valued at
the lesser of:
(x) the amount at which such Restricted Investment is shown
on the books of the Company or any of its Subsidiaries in accordance
with GAAP; and
(y) the excess of (A) the cost thereof to the Company or its
Subsidiary over (B) any return of capital (after income taxes
applicable thereto) upon such Restricted Investment through the sale or
other liquidation thereof or part thereof or otherwise.
Notwithstanding anything contained in the foregoing to the contrary, if any
Restricted Investment is not shown on the books of the Company or any of its
Subsidiaries, such Restricted Investment shall be valued in accordance with
clause (y) above.
As used in this definition of "Restricted Investments":
"ACCEPTABLE BANK" means any bank or trust company (i) which is
organized under the laws of the United States of America or any State
thereof, (ii) which has capital, surplus and undivided profits
aggregating at least $100,000,000, and (iii) whose long-term unsecured
debt obligations (or the long-term unsecured debt obligations of the
bank holding company owning all of the capital stock of such bank or
trust company) shall have been given a rating of "A-" or better by S&P,
"A3" or better by Moody's or an equivalent rating by any other credit
rating agency of recognized national standing.
"ACCEPTABLE BROKER-DEALER" means any Person other than a
natural person (i) which is registered as a broker or dealer pursuant
to the Exchange Act and (ii) whose long-term unsecured debt obligations
shall have been given a rating of "A" or better by S&P, "A2" or better
by Moody's or an equivalent rating by any other credit rating agency of
recognized national standing.
"MOODY'S" means Moody's Investors Service, Inc.
"REPURCHASE AGREEMENT" means any written agreement
B-10
<PAGE>
(a) that provides for (i) the transfer of one or
more United States Governmental Securities in an aggregate
principal amount at least equal to the amount of the Transfer
Price (defined below) to the Company or any of its
Subsidiaries from an Acceptable Bank or an Acceptable
Broker-Dealer against a transfer of funds (the "TRANSFER
PRICE") by the Company or such Subsidiary to such Acceptable
Bank or Acceptable Broker-Dealer, and (ii) a simultaneous
agreement by the Company or such Subsidiary, in connection
with such transfer of funds, to transfer to such Acceptable
Bank or Acceptable Broker-Dealer the same or substantially
similar United States Governmental Securities for a price not
less than the Transfer Price plus a reasonable return thereon
at a date certain not later than 365 days after such transfer
of funds,
(b) in respect of which the Company or such
Subsidiary shall have the right, whether by contract or
pursuant to applicable law, to liquidate such agreement upon
the occurrence of any default thereunder, and
(c) in connection with which the Company or such
Subsidiary, or an agent thereof, shall have taken all action
required by applicable law or regulations to perfect a Lien in
such United States Governmental Securities.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc.
"UNITED STATES GOVERNMENTAL SECURITY" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority
granted by the Congress of the United States of America, so long as
such obligation or guarantee shall have the benefit of the full faith
and credit of the United States of America which shall have been
pledged pursuant to authority granted by the Congress of the United
States of America.
"RESTRICTED PAYMENT" means any Distribution in respect of the Company
or any Subsidiary of the Company (other than on account of capital stock or
other equity interests of a Subsidiary owned legally and beneficially by the
Company or another Subsidiary), including, without limitation, any Distribution
resulting in the acquisition by the Company of Securities which would constitute
treasury stock. For purposes of this Agreement, the amount of any Restricted
Payment made in property shall be the greater of (x) the Fair Market Value of
such property (as determined in good faith by the board of directors (or
equivalent governing body) of the Person making such Restricted Payment) and (y)
the net book value thereof on the books of such Person, in each case determined
as of the date on which such Restricted Payment is made.
"SALE-AND-LEASEBACK TRANSACTION" means a transaction or series of
transactions pursuant to which the Company or any Subsidiary shall sell or
transfer to any Person (other than the Company or a Subsidiary) any property,
whether now owned or hereafter acquired, and, as part of the same transaction or
series of transactions, the Company or any Subsidiary shall rent or
B-11
<PAGE>
lease as lessee (other than pursuant to a Capital Lease), or similarly acquire
the right to possession or use of, such property or one or more properties which
it intends to use for the same purpose or purposes as such property.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SENIOR FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"SERIES" is defined in Section 1.
"SUBSIDIARY" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"SUBSIDIARY STOCK" means, with respect to any Person, the stock (or any
options or warrants to purchase stock or other Securities exchangeable for or
convertible into stock) of any Subsidiary of such Person.
"SUCCESSOR CORPORATION" has the meaning set forth in Section 10.6.
"TRANSFER" means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding a
separate Net Proceeds Amount. In any such case, (a) the Disposition Value of any
property subject to each such separate Transfer and (b) the amount of
Consolidated Net Income attributable to any property subject to each such
separate Transfer shall be determined by ratably allocating the aggregate
Disposition Value of, and the aggregate Consolidated Net Income attributable to,
all property subject to all such separate Transfers to each such separate
Transfer on a proportionate basis.
"2002 NOTES" is defined in Section 1.
"2006 NOTES" is defined in Section 1.
"WHOLLY-OWNED SUBSIDIARY" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests of
B-12
<PAGE>
which are owned by any one or more of the Company and the Company's other
Wholly-Owned Subsidiaries at such time.
B-13
<PAGE>
EXISTING INVESTMENTS
DESCRIPTION AMOUNT
1. The Company: Certificate of Deposit $200,000.00
First Union National Bank
(Deposit for self-insured workers' compensation status)
Maturity: 12/25/96
4.83% yield 4.95%
2. The Company: Certificate of Deposit $300,000.00
First Union National Bank
(Deposit for self-insured workers' compensation status)
Maturity: 9/23/96
5.47% yield 5.62%
3. ODIS, INC.: Delaware Trust - Conestoga Fund $200,480.36
Tax Free Mutual Fund
Various maturities and yields
-----------
TOTAL $700,480,36
SCHEDULE C
(to Note Purchase Agreement)
<PAGE>
SCHEDULE 5.4
(i) SUBSIDIARIES OF THE COMPANY
JURISDICTION PERCENTAGE OF
CORPORATE NAME OF INCORPORATION SHARES HELD
ODIS, INC. Delaware 100%
(ii) AFFILIATES OF THE COMPANY
Old Dominion Truck Leasing, Inc.
E&J Enterprises
Robert A. Cox, Jr., Trustee U/A dated as of 7/15/75
with Earl E. Congdon and John R. Congdon
(iii) DIRECTORS AND SENIOR OFFICERS OF THE COMPANY
<TABLE>
<CAPTION>
<S> <C>
Earl E. Congdon Chairman of the Board of Directors and Chief Executive Officer
John R. Congdon Vice Chairman of the Board of Directors
John A. Ebeling President, Chief Operating Officer and Director
Harold G. Hoak Director
Franz F. Holscher Director
J. Wes Frye Treasurer, Chief Financial Officer and Asst. Secretary
Joel B. McCarty, Jr. General Counsel and Secretary
Ernest Brantley Vice President - Operations
David S. Congdon Vice President - Quality
J. Edward Richardson Vice President - Equipment and Maintenance
J. Timothy Turner Vice President - Sales
John B. Yowell Vice President - Corporate Services
</TABLE>
SCHEDULE 5.4
(to Note Purchase Agreement)
<PAGE>
SCHEDULE 5.5
LIST OF FINANCIAL STATEMENTS
1993 Annual Report to Shareholders
1994 Annual Report to Shareholders
1995 Annual Report to Shareholders
SCHEDULE 5.5
(to Note Purchase Agreement)
<PAGE>
SCHEDULE 5.14
ERISA AFFILIATES AND PLANS
401K -- Old Dominion 401K Retirement Plan
125 -- Old Dominion Section 125 Plan
Health and Long-Term Disability --
Old Dominion Benefit Plan:
o Group Health
o Group Dental
o Group Life Insurance
o Long-Term Disability
o Variable Employee Benefit Trust
SCHEDULE 5.14
(to Note Purchase Agreement)
<PAGE>
SCHEDULE 5.15
EXISTING DEBT
<TABLE>
<CAPTION>
BORROWER LENDER OUTSTANDING AMOUNT DESCRIPTION
<S> <C> <C> <C> <C>
1. Company Philadelphia National Bank $465,280 5.50% Promissory Note due July, 1996
secured by 81 tractors
2. Company Philadelphia National Bank $1,666,668 5.20% Promissory Note due January, 1998
secured by 700 1993 Wabash trailers
3. Company Philadelphia National Bank $4,875,000 6.64% Unsecured Promissory Note due
August, 1999
4. Company First Union $570,000 8.00% Promissory Note due May, 1997
secured by 69 1992 tractors
5. Company First Union $56,569 5.50% Promissory Note due July, 1996
secured by 27 1993 tractors
6. Company First Union $622,216 5.00% Promissory Note due December, 1996
secured by 70 1994 tractors
7. Company ABN-Amro $1,666,665 6.40% Promissory Note due July, 1998
secured by 76 1994 tractors
8. Company First Union $30,000,000 Revolving Credit Agreement
(approximately
$26,500,000 to be paid
down at closing)
9. Company Lease Plan, Inc. $27,617 6.63% Installment Note due August, 1996,
which, together with Item 10, is secured
by 13 tractors and 29 forklifts
10. Company Lease Plan, Inc. $36,855 6.63% Installment Note due November,
1996, which, together with Item 9, is
secured by 13 tractors and 29 forklifts
</TABLE>
SCHEDULE 5.15
(to Note Purchase Agreement)
<PAGE>
SCHEDULE 10.4
EXISTING LIENS
Liens described in and securing Debt of the Company referred to in Items 1, 2,
4, 5, 6, 7, 9 and 10 of Schedule 5.15.
SCHEDULE 10.4
(to Note Purchase Agreement)
<PAGE>
[FORM OF 2002 NOTES]
OLD DOMINION FREIGHT LINE, INC.
7.30% SENIOR NOTE DUE December 15, 2002
No. [_________] [Date]
$[____________] PPN 679580 A* 1
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC.
(herein called the "COMPANY"), a corporation organized and existing under the
laws of the Commonwealth of Virginia, hereby promises to pay to
[________________], or registered assigns, the principal sum of
[________________] DOLLARS on December 15, 2002, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.30% per annum from the date hereof, payable
semiannually, on the fifteenth day of June and December in each year, commencing
with the June 15 or December 15 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.30% or (ii) 2% over the rate of interest publicly announced by
Citibank, N.A. from time to time in New York, New York as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company in High Point, North Carolina or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Senior Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, dated as of June
15, 1996 (as from time to time amended, the "NOTE PURCHASE Agreements"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the
EXHIBIT 1-A
(to Note Purchase Agreement)
<PAGE>
purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
OLD DOMINION FREIGHT LINE, INC.
By
Its
1-A-2
<PAGE>
[FORM OF 2006 NOTES]
OLD DOMINION FREIGHT LINE, INC.
7.59% SENIOR NOTE DUE June 15, 2006
No. [_________] [Date]
$[____________] PPN 679580 A@ 9
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC.
(herein called the "COMPANY"), a corporation organized and existing under the
laws of the Commonwealth of Virginia, hereby promises to pay to
[________________], or registered assigns, the principal sum of
[________________] DOLLARS on June 15, 2006, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.59% per annum from the date hereof, payable
semiannually, on the fifteenth day of June and December in each year, commencing
with the June 15 or December 15 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.59% or (ii) 2% over the rate of interest publicly announced by
Citibank, N.A. from time to time in New York, New York as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company in High Point, North Carolina or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Senior Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, dated as of June
15, 1996 (as from time to time amended, the "NOTE PURCHASE Agreements"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the
EXHIBIT 1-B
(to Note Purchase Agreement)
<PAGE>
purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
OLD DOMINION FREIGHT LINE, INC.
By
Its
1-B-2
<PAGE>
DESCRIPTION OF CLOSING OPINION OF
COUNSEL TO THE COMPANY
The closing opinion of Womble Carlyle Sandridge & Rice, PLLC, special
counsel to the Company, which is called for by Section 4.4(a) of the Note
Purchase Agreements, shall be dated the date of the Closing and addressed to the
Purchasers, shall be satisfactory in scope and form to the Purchasers and shall
be to the effect that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Virginia, has the corporate power and the corporate authority to
execute and perform the Note Purchase Agreements and to issue the Notes
and has the full corporate power and the corporate authority to conduct
the activities in which it is now engaged and is duly licensed or
qualified and is in good standing as a foreign corporation in each
jurisdiction in which the character of the properties owned or leased
by it or the nature of the business transacted by it makes such
licensing or qualification necessary.
2. Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good standing
in each jurisdiction in which the character of the properties owned or
leased by it or the nature of the business transacted by it makes such
licensing or qualification necessary and all of the issued and
outstanding shares of capital stock of each such Subsidiary have been
duly issued, are fully paid and nonassessable and are owned by the
Company, by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
3. Each Note Purchase Agreement has been duly authorized by
all necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company and constitutes the legal,
valid and binding contract of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
4. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed
and delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body, Federal, state or local, is
EXHIBIT 4.4(a)
(to Note Purchase Agreement)
<PAGE>
necessary in connection with the execution, delivery and performance
of the Note Purchase Agreements or the Notes.
6. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Note Purchase Agreements
do not conflict with or result in any breach of any of the provisions
of or constitute a default under or result in the creation or
imposition of any Lien upon any of the property of the Company pursuant
to the provisions of the Articles of Incorporation or By-laws of the
Company or any agreement or other instrument known to such counsel to
which the Company is a party or by which the Company may be bound.
7. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreements do not,
under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
8. The issuance of the Notes and the use of the proceeds of
the sale of the Notes in accordance with the provisions of and
contemplated by the Note Purchase Agreements do not violate or conflict
with Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System.
9. There is no litigation pending or, to the best knowledge
of such counsel, threatened which in such counsel's opinion could
reasonably be expected to have a materially adverse effect on the
Company's business or assets or which would impair the ability of the
Company to issue and deliver the Notes or to comply with the provisions
of the Note Purchase Agreements.
The opinion of Womble Carlyle Sandridge & Rice, PLLC shall cover such
other matters relating to the sale of the Notes as the Purchasers may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company.
4.4(a)-2
<PAGE>
DESCRIPTION OF CLOSING OPINION OF
SPECIAL COUNSEL TO THE PURCHASERS
The closing opinion of Chapman and Cutler, special counsel to the
Purchasers called for by Section 4.4(b) of the Note Purchase Agreements, shall
be dated the date of the Closing and addressed to the Purchasers, shall be
satisfactory in form and substance to the Purchasers and shall be to the effect
that:
1. The Company is a corporation, validly existing and in
good standing under the laws of the Commonwealth of Virginia and has
the corporate power and the corporate authority to execute and deliver
the Note Purchase Agreements and to issue the Notes.
2. Each Note Purchase Agreement has been duly authorized by
all necessary corporate action on the part of the Company, have been
duly executed and delivered by the Company and constitute the legal,
valid and binding contracts of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed
and delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreements does not,
under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of
Womble Carlyle Sandridge & Rice, PLLC is satisfactory in scope and form to
Chapman and Cutler and that, in their opinion, you are justified in relying
thereon.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler may rely solely upon an examination of the Articles of Incorporation
certified by and a certificate of good standing of the Company from, the
Secretary of State of the Commonwealth of Virginia and the By-laws of the
Company. The opinion of Chapman and Cutler is limited to the laws of the State
of New York and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials and
officers of the Company.
EXHIBIT 4.4(b)
(to Note Purchase Agreement)
<PAGE>
TO: New York Life Insurance and Annuity Corporation
FROM: Old Dominion Freight Line, Inc.
DATE: June __. 1996
RE: $20,000,000 Senior Notes Due 2006 of Old Dominion Freight Line, Inc.
LEGALITY CERTIFICATE
Section 1308(2) Delaware Insurance Code
(000's omitted)
Indicate basis used:
Consolidated
<TABLE>
<CAPTION>
For Fiscal Years Ended December 31,
1991 1992 1993 1994 1995 TOTAL
<S> <C> <C> <C> <C> <C> <C>
1. Net Income Available for Dividends..........
2. Add: Federal and State and Other Income
Taxes of Parent (and of ___% or more owned
subsidiaries if computed on consolidated
basis) Extraordinary Non-Recurring Items of
Expenses(a).........
3. Sub-Total (1 plus 2)........................ [See Exhibit A Attached Hereto]
4. Deduct: Extraordinary Non-Recurring Items
of Income(a).............................
5. Adjust Net Income (3 minus 4)...............
6. Add Fixed Charges:
Interest on Funded and Unfunded
Debt....................................
Amortization of Debt Discount............
Rental for Leased Properties(b)..........
Preferred Dividends of Subsidiaries
Payable to Others(c)....................
7. Net Earnings Available for Fixed Charged
(5 plus 6)..................................
8. Fixed Charges Times Earned
(7 divided by 6)...........................
</TABLE>
OLD DOMINION FREIGHT LINE, INC.
By
Its
- --------
a Include only those appearing in regular statements; state nature of
items and amounts.
b Include all payments (whether or not stated to be "rentals")
required to be made by lessee, such as taxes, insurance premiums, etc.
c Not applicable to company only basis
EXHIBIT 4.5
(to Note Purchase Agreement)
Exhibit 4.5.1
[FORM OF 2002 NOTES]
OLD DOMINION FREIGHT LINE, INC.
7.30% SENIOR NOTE DUE DECEMBER 15, 2002
No. [_________] [Date]
$[____________] PPN 679580 A*1
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC.
(herein called the "COMPANY"), a corporation organized and existing under the
laws of the Commonwealth of Virginia, hereby promises to pay to
[________________], or registered assigns, the principal sum of
[________________] DOLLARS on December 15, 2002, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.30% per annum from the date hereof, payable
semiannually, on the fifteenth day of June and December in each year, commencing
with the June 15 or December 15 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.30% or (ii) 2% over the rate of interest publicly announced by
Citibank, N.A. from time to time in New York, New York as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company in High Point, North Carolina or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Senior Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, dated as of June
15, 1996 (as from time to time amended, the "NOTE PURCHASE Agreements"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the
<PAGE>
Company may treat the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
Old Dominion Freight Line, Inc.
By
Its
<PAGE>
[FORM OF 2006 NOTES]
OLD DOMINION FREIGHT LINE, INC.
7.59% SENIOR NOTE DUE JUNE 15, 2006
No. [_________] [Date]
$[____________] PPN 679580 A@ 9
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC.
(herein called the "COMPANY"), a corporation organized and existing under the
laws of the Commonwealth of Virginia, hereby promises to pay to
[________________], or registered assigns, the principal sum of
[________________] DOLLARS on June 15, 2006, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.59% per annum from the date hereof, payable
semiannually, on the fifteenth day of June and December in each year, commencing
with the June 15 or December 15 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time equal to the
greater of (i) 9.59% or (ii) 2% over the rate of interest publicly announced by
Citibank, N.A. from time to time in New York, New York as its "base" or "prime"
rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company in High Point, North Carolina or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Senior Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, dated as of June
15, 1996 (as from time to time amended, the "NOTE PURCHASE Agreements"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the
<PAGE>
Company may treat the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
OLD DOMINION FREIGHT LINE, INC.
By
Its
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1996
<PERIOD-START> JAN-01-1996 JAN-01-1996
<PERIOD-END> MAR-31-1996 JUN-30-1996
<CASH> 1,229 4,027
<SECURITIES> 0 0
<RECEIVABLES> 44,640 4,600
<ALLOWANCES> (5,260) (5,309)
<INVENTORY> 3,758 4,085
<CURRENT-ASSETS> 51,109 56,002
<PP&E> 159,429 172,148
<DEPRECIATION> (64,043) (67,856)
<TOTAL-ASSETS> 151,841 165,299
<CURRENT-LIABILITIES> 38,684 35,105
<BONDS> 0 0
0 0
0 0
<COMMON> 835 835
<OTHER-SE> 68,606 70,249
<TOTAL-LIABILITY-AND-EQUITY> 151,841 165,299
<SALES> 68,262 143,124
<TOTAL-REVENUES> 68,262 143,124
<CGS> 0 0
<TOTAL-COSTS> 66,566 138,035
<OTHER-EXPENSES> 90 184
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 546 1,195
<INCOME-PRETAX> 1,060 3,710
<INCOME-TAX> 403 1,410
<INCOME-CONTINUING> 657 2,300
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 657 2,300
<EPS-PRIMARY> .08 .28
<EPS-DILUTED> .08 .28
</TABLE>
