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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE YEAR ENDED DECEMBER 31, 1999.
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number 0-22276
ALLIED HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
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Georgia 58-0360550
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(State or other jurisdiction of incorporation or organization) (I.R.S. Employer ID Number)
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160 Clairemont Avenue, Suite 200, Decatur, Georgia 30030
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(Address of principal executive office)
Registrant's telephone number, including area code (404) 373-4285
Securities registered pursuant to Section 12(b) of the Act:
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No par value Common Stock New York Stock Exchange
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(Title of Class) (Name of Exchange on which Registered)
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Securities registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months, and (2) has been subject to such
filing requirements for the past 90 days.
YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by referenced in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
As of March 3, 2000 Registrant had outstanding 8,002,690 shares of common
stock. The aggregate market value of the common stock held by nonaffiliates of
the Registrant, based upon the closing sales price of the common stock on March
3, 2000 as reported on the New York Stock Exchange, was approximately
$38,436,585.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the proxy statement for Registrant's 2000 Annual Meeting of
Shareholders to be held May 17, 2000 are incorporated by reference in Part III.
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ALLIED HOLDINGS, INC.
TABLE OF CONTENTS
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PAGE
CAPTION NUMBER
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PART I.
ITEM 1. BUSINESS...................................................................................2
ITEM 2. PROPERTIES.................................................................................7
ITEM 3. LEGAL PROCEEDINGS........................................ .................................8
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS........................................9
PART II.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.......................................................................11
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA......................................................12
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.......................................................13
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA...............................................19
ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE......................................19
PART III.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT........................................19
ITEM 11. EXECUTIVE COMPENSATION....................................................................19
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT................................................................................19
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS............................................19
PART IV.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND
REPORTS ON FORM 8-K.......................................................................20
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PART I
ITEM 1. BUSINESS.
1. GENERAL
Allied Holdings, Inc. (the "Company" or "Allied"), founded in 1934, is
a holding company which operates through its wholly-owned subsidiaries. The
Company's principal operating divisions are Allied Automotive Group, Inc.
(collectively with its subsidiaries referred to as the "Allied Automotive Group"
or "Automotive Group") and Axis Group, Inc. ("Axis" or the "Axis Group"). Allied
Automotive Group is the largest motor carrier in the world specializing in the
transportation of new and used automobiles and light trucks utilizing
specialized tractor trailers ("Rigs" or "Rig") and serves all of the major
domestic and foreign automotive manufacturers. The Axis Group provides logistics
and distribution services to the new and used vehicle distribution market and
other segments of the automotive industry. Axis is the global logistics services
arm of the Allied Holdings family of companies.
Allied Automotive Group offers a full range of automotive delivery
services including transporting new, used and off-lease vehicles to dealers from
plants, rail ramps, ports and auctions, and providing vehicle rail-car loading
and unloading services. Allied Automotive Group represented approximately 98% of
the Company's consolidated 1999 revenues. Allied Automotive Group operates
primarily in the short-haul segment of the automotive transportation industry
with an average length of haul of less than 200 miles. General Motors, Ford and
DaimlerChrysler represent the Company's largest customers, accounting for in
total approximately 75% of 1999 revenues. Allied Automotive Group also provides
services to all of the major foreign manufacturers, including Honda, Mazda,
Nissan, Toyota, Isuzu, Volkswagen and Mitsubishi. Allied Automotive Group
participated in the transportation of approximately 65% of the new vehicles sold
in the United States and Canada in 1999, and had 1999 revenues nearly five times
greater than its closest competitor.
The Company provides logistics and distribution services to the
automotive market through the Axis Group that complement Allied's new vehicle
distribution services operations. Axis provides carrier management services for
various automotive clients, leases equipment for containerized international
shipment of vehicles, and provides vehicles processing services at ports and
inland distribution centers. In February 2000 Axis acquired CT Group, Inc. and
its subsidiaries, CT Services and Cordin Transportation, which provide a variety
of logistics services to the pre-owned vehicle market. In addition, Axis has
established joint ventures to manage the distribution of Ford vehicles in the
United Kingdom, a joint venture in Brazil to provide automotive logistics
services in the Mercosur region, and a subsidiary which provides logistics and
distribution services in Mexico.
2. INTEGRATION OF RYDER AUTOMOTIVE GROUP
On September 30, 1997, the Company acquired Ryder Automotive Carrier
Services, Inc. and RC Management Corp. (collectively, "Ryder Automotive Group")
from Ryder System, Inc. (the "Ryder Automotive Group Acquisition"). Ryder
Automotive Group, prior to its acquisition by the Company, was North America's
largest motor carrier of new and used automobiles and light trucks offering a
full range of automotive delivery services including transporting new, used and
off-lease vehicles to dealers from plants, railramps, ports and auctions, and
providing vehicle rail-car loading and unloading services. The Ryder Automotive
Group also provided logistics solutions and other services to the new and used
vehicle distribution market and other segments of the automotive industry,
including the growing used car superstore market.
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3. SERVICES
Allied Automotive Group is the largest motor carrier in North America
specializing in the transportation of new and used automobiles and light trucks
for all the major domestic and foreign automotive manufacturers. Allied
Automotive Group participated in the transportation of approximately 65% of the
new vehicles sold in the United States and Canada in 1999, including more than
50% of the North American production of General Motors, Ford and
DaimlerChrysler. Allied Automotive Group believes it can capture a larger
percentage of its major customers' North American production by building upon
its relationships with manufacturers and leveraging its reputation for high
quality services, competitive pricing and value-added services. Allied
Automotive Group also believes that it can expand the types of services
provided to its existing customers by utilizing its sophisticated technology in
order to deliver vehicles and provide other services more efficiently and cost
effectively than its competitors.
The Company has made a significant commitment to providing
complementary services to its existing customers and to new customers through
its Axis Group subsidiary. Axis Group is aggressively pursuing opportunities to
provide logistics and distribution services to customers in the automotive
industry and seeks to leverage its proprietary information systems in order to
efficiently provide such services. These services include identifying new and
innovative distribution methods for customers, providing solutions relating to
improving the management of inventory of new and used vehicles, and providing
reconditioning services relating to the used and remarketed vehicle market. The
Axis Group further believes that significant opportunities exist for it to
provide additional automotive distribution services to its existing customers in
the United States and internationally through acquisitions, and through the
formation of joint ventures or alliances with established local service
providers. For example, in February 2000 Axis Group acquired CT Group, Inc. and
its subsidiaries, CT Services and Cordin Transportation, which provide a variety
of logistics services to the pre-owned vehicle market. In 1999 Axis Group formed
two joint ventures for the purpose of managing the distribution of Ford vehicles
in the United Kingdom. In addition, Axis owns a minority interest in Axis
Sinimbu Logistica ("ASL"). ASL provides automotive distribution services to the
automotive industry in Brazil. Axis has also formed a subsidiary which provides
logistics and distribution services in Mexico.
4. CUSTOMER RELATIONSHIPS
Allied Automotive Group has contracts with most of its customers.
Allied Automotive Group's contracts with its customers establish rates for the
transportation of vehicles and generally are based upon a fixed rate per
vehicle transported and a variable rate for each mile a vehicle is transported.
Certain of these contracts provide that the rate per vehicle may vary depending
on the size and weight of the vehicle. While the contracts generally do not
permit Allied Automotive Group to recover for increases in fuel prices, fuel
taxes or labor cost, Allied Automotive Group has negotiated fuel surcharges
with certain of its customers as a result of fuel cost increases occurring in
1999. Allied Automotive Group operates under a 30 day rolling contract with
Ford which provides that the Allied Automotive Group is the primary carrier for
24 locations in the United States and 12 Canadian locations. A second contract
with Ford expires in June 2000 and provides that Allied Automotive Group is the
primary carrier for 6 locations in the United States. Allied Automotive Group
is the primary carrier for 18 locations in the United States and 14 in Canada
for DaimlerChrysler under contracts which may be terminated on thirty day's
notice by either party. Allied Automotive Group has a contract with General
Motors which expires in October 2000 and provides that Allied Automotive Group
is the primary carrier for 36 locations in the United States and 16 locations
in Canada.
Allied Automotive Group negotiated rate increases applicable to all of
the light trucks and sport utility vehicles it delivers in response to an
adverse change in the number of vehicles delivered per load in 1999. However,
the rate increases went into effect during the third or fourth quarter of 1999,
depending on the customer. The number of vehicles delivered per load has
decreased due to an increase in the number of light trucks and sport utility
vehicles delivered.
5. PROPRIETARY MANAGEMENT INFORMATION SYSTEMS
The Company has made a long-term commitment to utilizing technology to
serve its customers. The Company's information systems subsidiary, Link
Information Systems, Inc. ("Link") provides information systems services to the
Allied Automotive Group, Axis Group and other subsidiaries of the Company.
Link's advanced
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management information system is a centralized, fully integrated information
system utilizing a mainframe computer together with client servers. The system
is based on a company-wide information database, which allows Link to quickly
respond to customer information requests without having to combine data files
from several sources. Updates with respect to vehicle load, dispatch and
delivery are immediately available for reporting to customers and for better
control and tracking of customer vehicle inventories. Through electronic data
interchange ("EDI"), Link communicates directly with manufacturers in the
process of delivering vehicles and electronically bills and collects from
manufacturers. Link also utilizes EDI to communicate with inspection companies,
railroads, port processors and other carriers.
Subsidiaries of the Company utilize Link's information system to allow
them to operate more efficiently. For example, the information systems
automatically design an optimal load for each Rig, taking into account factors
such as the capacity of the Rig, the size of the vehicles, the route, the drop
points, applicable weight and height restrictions and the formula for paying
drivers. The system also determines the most economical and efficient load
sequence and drop sequence for the vehicles to be transported.
6. MANAGEMENT STRATEGY
The Company has adopted a performance management strategy which it
believes contributes to quality, enhanced efficiency, safety and profitability
in its operations. The Company's management strategy and culture is designed to
enhance employee performance through careful selection and continuous training
of new employees, with individual performance goals established for each
employee and performance measured regularly through the Company's management
information system. The Company believes that its performance management
strategy is unique with respect to the role that employees play in the form of
participation in this process.
The Company has developed and implemented various programs to
encourage and reward increased employee productivity. The various programs
developed by the Company reward damage-free delivery by drivers, driver
efficiency and driver safety. The Company believes that these programs have
improved customer and employee satisfaction and driver related productivity in
areas such as damage-free deliveries.
The Company has adopted an economic value added ("EVA") based
performance measurement and incentive compensation system. EVA is the measure
used by the Company to determine incentive compensation for senior management.
EVA also provides management with a measure to gauge financial performance,
allocate capital to appropriate projects, assist in providing valuations in
regard to proposed acquisitions, and evaluate daily operating decisions. The
Company believes that the EVA based performance measurement and incentive
compensation system promotes the creation of economic value and shareholder
value by aligning the interests of senior management with that of the Company's
shareholders.
The Board of Directors and the shareholders of the Company have adopted
an Employee Stock Purchase Plan to provide all employees the opportunity to
purchase shares of the Company's common stock.
7. RISK MANAGEMENT AND INSURANCE
The Company's risk management subsidiary, Haul Risk Management
Services, Inc. ("HRMS"), is responsible for defining risks and securing
appropriate insurance programs and coverages at cost effective rates for the
Company. HRMS internally administers all claims for auto and general liability
and for workers compensation claims in Alabama, Florida, Georgia, Missouri,
North Carolina, Ohio, South Carolina, Tennessee and Virginia. Liability and
workers compensation claims are subject to periodic audits by the Company's
commercial insurance carriers. In the United States, the Company currently
retains up to $650,000 of liability for each claim for workers' compensation
and up to $500,000 of liability for automobile and general liability, including
personal injury and property damage claims. In addition to the $500,000 per
occurrence deductible for automobile liability, there is a $1,500,000 aggregate
deductible for those claims which exceed the $500,000 per occurrence
deductible, subject to a $1,000,000 per claim limit. The Company also retains
up to $250,000 of liability for each cargo damage claim. In Canada, the Company
retains up to C$100,000 of liability for each claim for personal injury,
property damage or cargo damage. If the Company were to experience a material
increase in the frequency or severity of accidents or workers' compensation
claims or unfavorable developments in existing claims, the Company's operating
results
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could be adversely affected. The Company formed Haul Insurance Limited in
December 1995 as a captive insurance subsidiary to provide insurance coverage
to the Company.
8. EQUIPMENT, MAINTENANCE AND FUEL
Allied Automotive Group operates approximately 5,200 Rigs with an
average age of 7 years. Allied Automotive Group has historically invested
heavily in both new equipment and equipment upgrades, which have served to
increase efficiency and extend the useful life of Rigs. Currently, new 75-foot
Rigs cost between $120,000 and $140,000 and have a useful life of between 10 to
15 years when properly maintained.
All of Allied Automotive Group's terminals have access to a central
parts warehouse through the management information system. The system
calculates maximum and minimum parts inventory quantities based upon usage and
automatically reorders parts. Minor modifications of equipment are performed at
terminal locations. Major modifications involving change in length,
configuration or load capacity are performed by the trailer manufacturers.
In order to reduce fuel costs, Allied Automotive Group purchases
approximately 30% of its fuel in bulk. Also, fuel is purchased by drivers on
the road from a few major suppliers that offer discounts and central billing.
Allied Automotive Group has entered into futures contracts to manage a portion
of its exposure to fuel price fluctuations.
9. COMPETITION
The transportation of vehicles in the long-haul segment of the
automotive industry has been primarily controlled by rail carriers. In the
1970s and 1980s, following deregulation of the trucking industry by the
Interstate Commerce Commission and as importers obtained a more significant
share of United States automobile sales, new motor carriers, some without union
contracts, began to compete for automobile traffic. In some instances, these
new carriers were created, or their creation facilitated, by automotive
manufacturers.
Fundamental changes which are being made by automotive manufacturers
are beginning to have an impact on competition. Automotive manufacturers are
making changes to their vehicle distribution systems in an effort to increase
the speed of delivery of finished vehicles to dealers with a goal of reducing
inventory and improving the reliability of delivery. Certain manufacturers are
creating vehicle consolidation centers where rail traffic from numerous
manufacturing plants is re-mixed for delivery to the dealers. In addition,
manufacturers are creating new rail ramps in order to place vehicles in more
central locations closer to the market but off the dealer lots. These new rail
ramps may reduce the average length of haul for motor carriers of automobiles.
In metropolitan areas, competition for traffic from the new rail ramps to the
dealers may increase as local delivery carriers and equipment and driver
leasing companies may become new competitors for the traffic. In addition, some
parties may attempt to utilize drive-away operators or dealer pick-ups to
deliver vehicles.
Another recent development, which is beginning to have an impact on
competition, is an increase in the use of fourth party logistics companies by
automotive manufacturers. An example is the recently announced joint venture
between Ford and Autogistics, Inc., a subsidiary of UPS Logistics. Ford has
announced that it has enlisted Autogistics to oversee its delivery network
whereby all Ford vehicles in North America will be shipped under the direction
of Autogistics. Management of the Company believes that the formation of this
joint venture will provide the Company with an opportunity to participate more
in the long haul segment of the industry and improve the speed and reliability
of vehicles delivered.
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Major motor carriers specializing in the delivery of new vehicles that
are competitors of the Allied Automotive Group include Leaseway, Jack Cooper,
Cassens, Hadley and E & L, all of which are privately held companies.
Additionally, motor carriers utilizing non-union labor have increased.
10. EMPLOYEES AND OWNER OPERATORS
The Company has approximately 9,100 employees, including approximately
6,100 drivers. All drivers and shop and yard personnel are represented by
various labor unions. The majority of Allied Automotive Group's employees are
covered by the Master Agreement with the International Brotherhood of Teamsters
("IBT") which expires on May 31, 2003. The Master Agreement was entered into in
June 1999 and provides for an increase of approximately 3% per year in wage and
benefits in excess of the prior contract with the IBT. The compensation and
benefits paid by Allied Automotive Group to union employees are established by
union contracts. Allied Automotive Group also utilizes approximately 800
owner-operators, with approximately 200 driving exclusively for Allied Systems
(Canada) Company, a subsidiary of Allied Automotive Group, in Canada and
approximately 600 driving exclusively from terminals in the United States. The
owner-operators are either paid a percentage of the revenues they generate or
receive normal driver pay plus a truck allowance.
11. REGULATION
The Company is regulated in the United States by the United States
Department of Transportation ("DOT") and various state agencies, and in Canada
by the National Transportation Agency of Canada and various provincial
transport boards. Truck and trailer length, height, width, maximum weight
capacity and other specifications are regulated federally in the United States,
as well as by individual states and provinces. In recent years, the automotive
manufacturers have increased the percentage of vehicles that are light trucks
as well as increased the size and weight of many vehicles. Due to the
regulations on truck and trailer length, height, width and maximum weight
capacity, the number of vehicles Allied Automotive Group delivers per load has
decreased. Allied Automotive Group successfully negotiated rate increases on
all of its sports utility and light truck business in 1999 to account for this
reduction in the number of deliveries per load. Interstate motor carrier
operations are subject to safety requirements prescribed by the DOT. The DOT
also regulates certain safety features incorporated in the design of Rigs. The
motor carrier transportation industry is also subject to regulatory and
legislative changes which can affect the economics of the industry by requiring
changes in operating policies or influencing the demand for, and the cost of
providing, services to shippers.
In addition, the Company's terminal operations are subject to
environmental laws and regulations enforced by federal, state, provincial and
local agencies, including those related to the treatment, storage and disposal
of wastes, and those related to the storage and handling of lubricants. The
Company maintains regular ongoing testing programs for those underground
storage tanks ("USTs") located at their terminals for compliance with
environmental laws and regulations.
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12. INDUSTRY OVERVIEW
The following table summarizes historic new vehicle production and
sales in the United States and Canada, the primary sources of the Company's
revenues:
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YEAR ENDED DECEMBER 31,
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1996 1997 1998 1999
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NEW VEHICLE PRODUCTION (IN MILLIONS OF UNITS)
United States .................................... 11.5 11.8 11.6 12.6
Percent increase (decrease) over prior year ...... (0.9)% 2.6% (1.7)% 8.6%
Canada ........................................... 2.4 2.5 2.5 3.0
Percent increase (decrease) over prior year ...... 0.0% 4.2% 0.0% 20.0%
NEW VEHICLE SALES (IN MILLIONS OF UNITS)
United States .................................... 15.1 15.1 15.6 16.9
Percent increase (decrease) over prior year ...... 2.5% 0.0% 3.3% 8.3%
Canada ........................................... 1.2 1.4 1.4 1.5
Percent increase (decrease) over prior year ...... 3.5% 16.7% 0.0% 7.1%
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Domestic automotive manufacturing plants are typically dedicated to
manufacturing a particular model or models. Vehicles destined for dealers within
a radius of approximately 250 miles from the plant are usually shipped by truck.
The remaining vehicles are shipped by rail to rail ramps throughout the United
States and Canada where trucking companies handle final delivery to dealers. The
rail or truck carrier is responsible for loading the vehicles on railcars or
trailers and for any damages incurred while the vehicles are in the carrier's
custody. Automobiles manufactured in Europe and Asia are shipped into the United
States and Canada and usually are delivered directly to dealers from seaports by
truck or shipped by rail to rail ramps and delivered by trucks to dealers.
Vehicles transported are normally prepared for delivery in port processing
centers, which involves cleaning and may involve installing accessories. The
port processor releases the vehicles to the carrier which loads the vehicles and
delivers them to a rail ramp or directly to dealers.
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains forward-looking statements,
including statements regarding, among other items, (i) the Company's plans,
intentions or expectations, (ii) general industry trends, competitive
conditions and customer preferences, (iii) the Company's management information
systems, (iv) the Company's efforts to reduce costs, (v) the adequacy of the
Company's sources of cash to finance its current and future operations and (vi)
resolution of litigation without material adverse effect on the Company. This
notice is intended to take advantage of the "safe harbor" provided by the
Private Securities Litigation Reform Act of 1995 with respect to such
forward-looking statements. These forward-looking statements involve a number
of risks and uncertainties. Among others, factors that could cause actual
results to differ materially are the following: economic recessions or
downturns in new vehicle production or sales; the highly competitive nature of
the automotive distribution industry; dependence on the automotive industry;
loss or reduction of revenues generated by the Company's major customers; the
variability of quarterly results and seasonality of the automotive distribution
industry; labor disputes involving the Company or its significant customers;
the dependence on key personnel who have been hired or retained by the Company;
the availability of strategic acquisitions or joint venture partners; changes
in regulatory requirements which are applicable to the Company's business;
changes in vehicle sizes and weights which may adversely impact vehicle
deliveries per load; risks associated with doing business in foreign countries;
problems related to information technology systems and computations that must
be made by the Company or its customers and vendors in 2000 or beyond; and the
risk factors listed herein from time to time in the Company's Securities and
Exchange Commission reports, including but not limited to, its Annual Reports
on Form 10-K.
ITEM 2. PROPERTIES.
The Company's executive offices are located in Decatur, Georgia, a
suburb of Atlanta. The Company
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leases approximately 96,000 square feet of space for its executive offices,
which is sufficient to permit the Company to conduct its operations. The
Company operates from 121 terminals which are located at or near manufacturing
plants, ports, and railway terminals. The Company currently owns 29 of its
terminals. The Company leases the remainder of its facilities. Most of the
leased facilities are leased on a year to year basis from railroads at rents
that are not material to the Company.
Over the past 10 years, changes in governmental regulations have
gradually permitted the lengthening of Rigs from 55 to 75 feet. The Company has
worked closely with manufacturers to develop specialized equipment to meet the
specific needs of manufacturers.
Allied Automotive Group's Rigs are maintained at 57 shops by
approximately 570 maintenance personnel, including supervisors. Rigs are
scheduled for regular preventive maintenance inspections. Each shop is equipped
to handle repairs resulting from inspection or driver write up, including
repairs to electrical systems, air conditioners, suspension, hydraulic systems,
cooling systems, and minor engine repairs. Major engine overhaul and engine
replacement can be handled at larger terminal facilities, while smaller
terminals rely on outside vendors. The trend has been to use engine suppliers'
outlets for engine repairs due to the long-term warranties obtained by the
Company.
ITEM 3. LEGAL PROCEEDINGS.
The Company is routinely a party to litigation incidental to its
business, primarily involving claims for personal injury and property damage
incurred in the transportation of vehicles. The Company does not believe that
any of such pending litigation, if adversely determined, would have a material
adverse effect on the Company.
The Company is a defendant in a lawsuit (Gateway Development &
Manufacturing, Inc. v. Commercial Carriers, Inc., et al, Index No. 1997/8920),
pending in Supreme Court of Erie County, New York claiming that the Company
tortiously interfered with a business transaction involving the plaintiff and a
defendant in the action other than the Company. The Company has moved to
dismiss all claims against the Company. If the Company is unsuccessful with its
motion to dismiss, it intends to vigorously defend this case as it believes the
claims against the Company are without merit. While the ultimate results of
this litigation cannot be determined, management does not expect that the
resolution of this proceeding will have a material adverse effect on the
Company's consolidated financial position or results of operations.
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ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
NONE
Executive Officers of the Registrant
The following table sets forth certain information regarding the
executive officers of the Company and certain of its subsidiaries:
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Name Age Title
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Robert J. Rutland 58 Chairman and Director
Guy W. Rutland, III 63 Chairman Emeritus and Director
A. Mitchell Poole, Jr. 52 Vice-Chairman, Chief Executive Officer, and Director
Bernard O. De Wulf 51 Vice-Chairman, Executive Vice-President and Director
Randall E. West 51 President, Chief Operating Officer and Director
Guy W. Rutland, IV 36 Senior Vice President of Operations of Allied
Automotive Group and Director
Joseph W. Collier 57 Executive Vice-President, Planning and Development
and Director
Hugh E. Sawyer 46 President of Allied Automotive Group
Douglas A. Lauer 36 President of Link Information Systems
Daniel H. Popky 35 Senior Vice President and Chief Financial Officer, and
President of Allied Industries
Herbert A. Terwilliger 50 President of Haul Risk Management Services and Haul
Insurance Limited
Thomas M. Duffy 39 Vice President, Corporate Affairs, General Counsel and
Secretary
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Mr. Rutland has been Chairman of the Company since December 1995 and
was Chief Executive Officer from 1995 through December 1999. Mr. Rutland served
as President and Chief Executive Officer of the Company from 1986 to December
1995. Prior to October 1993, Mr. Rutland was Chief Executive Officer of each of
the Company's subsidiaries.
Guy Rutland, III was elected Chairman Emeritus in December 1995. Mr.
Rutland served as Chairman of the Board of the Company from 1986 to December
1995. Prior to October 1993, Mr. Rutland was Chairman or Vice Chairman of each
of the Company's subsidiaries.
Mr. Poole has been Vice-Chairman and Chief Executive Officer since
January 2000. Mr. Poole was President, Chief Operating Officer, and Assistant
Secretary of the Company from December 1995 through
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December 1999. Prior to December 1995, Mr. Poole served as Executive Vice
President and Chief Financial Officer of the Company. Mr. Poole continued to
serve as Chief Financial Officer until November 1998. Mr. Poole joined Allied
Systems, Ltd. in 1988 as Senior Vice President and Chief Financial Officer. He
was appointed President of Allied Industries, Inc. in December 1990 and served
in that capacity until December 1997. Prior to joining the Company in 1988, Mr.
Poole was an audit partner with Arthur Andersen LLP, independent public
accountants.
Mr. De Wulf has been Vice Chairman and an Executive Vice President of
the Company since October 1993. Prior to such time, Mr. De Wulf was Vice
Chairman of each of the Company's subsidiaries. Mr. De Wulf was Vice Chairman
of Auto Convoy from 1983 until 1988 when the Company and Auto Convoy became
affiliated.
Mr. West has been President and Chief Operating Officer of the Company
since January 2000. Mr. West was the President of Axis Group from October 1997
through December 1999. Mr. West was President of Ryder Automotive Carrier
Services, Inc. from January 1996 to October 1997 and Senior Vice President and
General Manager of Ryder International from 1993 to 1995.
Mr. Rutland, IV has been Senior Vice President - Operations of Allied
Automotive Group since November 1997. Mr. Rutland was Vice President -
Reengineering Core Team of Allied Automotive Group from November 1996 to
November 1997. From January 1996 to November 1996 Mr. Rutland was Assistant
Vice President of the Central and Southeast Region of Operations for Allied
Systems, Ltd. From March 1995 to January 1996 Mr. Rutland was Assistant Vice
President of the Central Division of Operations for Allied Systems, Ltd. From
June 1994 to March 1995, Mr. Rutland was Assistant Vice President of the
Eastern Division of Operations for Allied Systems, Ltd. From 1993 to June 1994
Mr. Rutland was assigned to special projects with an assignment in Industrial
Relations/Labor Department and from 1988 to 1993, Mr. Rutland was Director of
Performance Management.
Mr. Collier has been Executive Vice-President of Planning and
Development of the Company since January 2000. Mr. Collier was the President of
Allied Automotive Group from December 1995 through December 1999. Mr. Collier
had been Executive Vice President of Marketing and Sales and Senior Vice
President of Allied Systems, Ltd. since 1991. Prior to joining the Company in
1979, Mr. Collier served in management positions with Bowman Transportation and
also with the Federal Bureau of Investigation.
Mr. Sawyer has been President of Allied Automotive Group since January
2000. Mr. Sawyer was President and Chief Executive Officer of National Linen
Services, Inc from February 1996 through December 1999. Mr. Sawyer was
President and Chief Executive Officer of Wells Fargo Armored Service
Corporation, a subsidiary of Borg-Warner Corporation, from December 1995 to
July 1998.
Mr. Lauer has been President of Link Information Systems since July
1996. From January 1996 to July 1996 Mr. Lauer was Vice President and Chief
Information Officer of Allied Industries, Inc. Mr. Lauer has 11 years of
information technology experience. Prior to joining the Company, he was
Director, Information Systems at Exel Logistics.
Mr. Popky has been Senior Vice President and Chief Financial Officer
of the Company since November 1998. He was appointed President of Allied
Industries, Inc. in December 1997 and continues to serve in such capacity. Mr.
Popky was Senior Vice President, Finance of the Company from December 1997 to
November 1998. From December 1995 to December 1997, Mr. Popky was Vice
President, Finance of the Company. From January 1995 to December 1995 Mr. Popky
was Vice President and Controller and from October 1994 to January 1995 he was
Assistant Vice President and Controller for the Company. Prior to joining the
Company, Mr. Popky held various positions with Arthur Andersen LLP for 9 years.
Mr. Terwilliger has been President of Haul Insurance Limited since its
inception in December 1995 and President of Haul Risk Management Services since
its inception in April 1997. From August 1994 to April 1997, Mr. Terwilliger
was Vice President Risk Management of Allied Industries. From July 1992 to
August 1994, Mr. Terwilliger was Director Risk Management of Allied Industries.
Prior to joining the Company in 1992, Mr.
10
<PAGE> 12
Terwilliger spent 18 years with various companies in the insurance and risk
management industry.
Mr. Duffy has been Vice President, Corporate Affairs, General Counsel
and Secretary of the Company since June 1998. From May 1997 to June 1998, Mr.
Duffy was a partner with the law firm of Troutman Sanders LLP. Prior to May
1997, Mr. Duffy was a partner with the law firm of Peterson Dillard Young
Asselin & Powell LLP.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
The Company's common stock is traded on the New York Stock Exchange
under the symbol AHI. The common stock began trading on September 29, 1993 on
The Nasdaq Stock Market and has been trading on the New York Stock Exchange
since March 3, 1998. Prior to September 29, 1993, there had been no established
public trading market for the common stock. Market information regarding the
common stock is set forth in Financial Statements and Supplementary Data
included elsewhere herein.
As of March 1, 2000, there were approximately 2,500 holders of the
Company's common stock. The Company has paid no cash dividends in the last two
years.
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<PAGE> 13
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below for each of
the five years in the period ended December 31, 1999 are derived from the
Company's Consolidated Financial Statements which have been audited by Arthur
Andersen LLP, independent public accountants. The selected consolidated
financial data should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Consolidated
Financial Statements and notes thereto.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
-----------------------------------------------------------------
1999 1998 1997 1996 1995
----------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATION DATA:
Revenues $ 1,081,309 $ 1,026,799 $ 581,530 $ 392,547 $ 381,464
----------- ----------- --------- --------- ---------
Operating expenses:
Salaries, wages and fringe benefits 585,380 547,780 302,539 204,838 195,952
Operating supplies and expenses 185,541 169,498 96,206 62,880 62,179
Purchased transportation 103,967 109,884 59,925 34,533 32,084
Insurance and claims 48,252 40,339 22,737 16,849 16,022
Operating taxes and licenses 41,288 40,779 23,028 16,122 16,564
Depreciation and amortization 58,019 53,327 33,340 26,425 25,431
Rent expense 8,974 10,072 5,720 4,975 5,354
Communications and utilities 9,060 9,341 4,530 3,111 3,435
Other operating expenses 10,945 7,429 6,812 4,219 3,522
Acquisition related realignment(1) -- -- 8,914 -- --
----------- ----------- --------- --------- ---------
Total operating expenses 1,051,426 988,449 563,751 373,952 360,543
----------- ----------- --------- --------- ---------
Operating Income 29,883 38,350 17,779 18,595 20,291
----------- ----------- --------- --------- ---------
Equity in earnings (loss) of joint ventures, net of tax 1,733 (470) -- -- --
Interest expense (32,001) (26,146) (14,095) (10,720) (11,260)
Interest income 2,112 3,270 868 603 707
----------- ----------- --------- --------- ---------
Income before income taxes and extraordinary item 1,727 15,004 4,552 8,478 10,368
Income tax provision (178) (6,527) (2,150) (3,557) (4,222)
----------- ----------- --------- --------- ---------
Income before extraordinary item 1,549 8,477 2,402 4,921 6,146
Extraordinary loss on early extinguishment of debt -- -- -- (935) --
----------- ----------- --------- --------- ---------
Net Income $ 1,549 $ 8,477 $ 2,402 $ 3,986 $ 6,146
=========== =========== ========= ========= =========
Income before extraordinary item per share - basic $ 0.20 $ 1.09 $ 0.31 $ 0.64 $ 0.80
Income before extraordinary item per share - diluted 0.20 1.08 0.31 0.64 0.80
Net income per share - basic 0.20 1.09 0.31 0.52 0.80
Net income per share - diluted 0.20 1.08 0.31 0.52 0.80
Weighted average common shares outstanding - basic 7,810 7,747 7,728 7,725 7,725
Weighted average common shares outstanding - diluted 7,851 7,846 7,810 7,725 7,725
Balance Sheet Data:
Current assets $ 225,617 $ 195,759 $ 149,673 $ 49,202 $ 50,421
Current liabilities 128,771 145,730 157,679 48,494 43,257
Total assets 649,920 621,627 558,939 211,083 214,686
Long-term debt & capital lease obligations, less
current portion 330,101 291,096 228,003 93,708 106,634
Stockholders' equity 66,914 62,853 57,328 56,709 53,022
</TABLE>
(1) Represents a non-cash charge the Company recorded during 1997 to write
down Company Rigs and terminal facilities that were idled or closed as a
result of the Ryder Automotive Group Acquisition.
12
<PAGE> 14
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth the percentage relationship of expense
items to revenues for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1999 1998 1997
----- ----- -----
<S> <C> <C> <C>
Revenues 100.0% 100.0% 100.0%
----- ----- -----
Operating Expenses:
Salaries, wages and fringe benefits 54.1 53.3 52.0
Operating supplies and expenses 17.2 16.5 16.5
Purchased transportation 9.6 10.7 10.3
Insurance and claims 4.5 3.9 3.9
Operating taxes and licenses 3.8 4.0 4.0
Depreciation and amortization 5.4 5.2 5.7
Rent expense 0.8 1.0 1.0
Communications and utilities 0.8 0.9 0.8
Other operating expenses 1.0 0.8 1.2
Acquisition related realignment 0.0 0.0 1.5
----- ----- -----
Total operating expenses 97.2 96.3 96.9
----- ----- -----
Operating income 2.8 3.8 3.1
----- ----- -----
Other income(expense):
Equity in earnings(loss) of joint ventures, net of tax 0.2 (0.1) 0.0
Interest expense (3.0) (2.5) (2.4)
Interest income 0.2 0.3 0.1
----- ----- -----
(2.6) (2.1) (2.3)
----- ----- -----
Income before income taxes 0.2 1.5 0.8
Income tax provision (0.0) (0.7) (0.4)
----- ----- -----
Net Income 0.2% 0.8% 0.4%
===== ===== =====
</TABLE>
1999 Compared to 1998
Revenues were $1.08 billion in 1999 compared to $1.03 billion in 1998,
an increase of $54.5 million, or 5.3%. The increase in revenues was
primarily the result of a 6.8% increase in the number of vehicles
delivered due to increased new vehicle sales in the United States and
Canada, together with rate increases implemented during the second
half of 1999. Revenues from higher vehicle delivery volumes were
offset by lower revenue per vehicle delivered due to a slightly lower
average length of haul. Net income in 1999 was $1.5 million compared
with net income of $8.5 million in 1998. Basic and diluted earnings
per share for 1999 were $0.20, versus basic earnings per share of
$1.09 and diluted earnings per share of $1.08 in 1998. Net income
during 1999 was adversely impacted by the effect of reduced load
averages.
During 1999 the Company experienced a significant increase in the
percentage of vehicles delivered that were light trucks as well as an
overall increase in the size and weight of most vehicles delivered.
Due to regulations on tractor and trailer length, height, width, and
maximum weight capacity, this change in mix resulted in the number of
vehicles delivered per load in 1999 being approximately 4% lower than
in 1998. The change in mix negatively impacts operating results as
revenue is realized on a per vehicle basis, thus the Company's revenue
per load decreased. The Company estimates that operating income for
1999 was reduced by approximately $5 million per quarter as a result
of the load average decline. Throughout the year, the Company
discussed the load average decline with its customers. The Company has
put into effect rate increases to offset the effect of the load
average decline; however, the increases were in effect for only a
portion of the year.
13
<PAGE> 15
The operating ratio (operating expenses as a percentage of revenues) for 1999
was 97.2%, compared to 96.3% in 1998.
The following is a discussion of the changes in the Company's major expense
categories:
Salaries, wages and fringe benefits increased from 53.3% of revenues in 1998 to
54.1% of revenues in 1999. The increase was primarily due to annual salary and
benefit increases combined with inefficiencies resulting from the load average
decline, which was offset by continued productivity and efficiency
improvements.
Operating supplies and expenses increased from 16.5% of revenues in 1998 to
17.2% of revenues in 1999. The increase was due primarily to the inefficiencies
that resulted in the decrease in load averages and certain one-time costs
related to contingency planning for US labor negotiations that occurred in
1999, combined with the effect of higher fuel prices.
Purchased transportation decreased from 10.7% of revenues in 1998 to 9.6% of
revenues in 1999. The decrease was due primarily to the decrease in the mix of
loads hauled by owner-operators and other carriers versus company drivers. The
number of owner-operators year-to-year was comparable; thus company drivers
delivered the additional loads hauled by the Company.
Insurance and claims expense increased from 3.9% of revenues in 1998 to 4.5% of
revenues in 1999. The increase was due primarily to an increase in the
frequency of damage claims. The Company has put in place new quality
initiatives to reduce the frequency of damage claims in 2000.
Operating taxes and licenses decreased from 4.0% of revenues in 1998 to 3.8% of
revenues in 1999. This was due to a reduction in the number of active rigs
operating during 1999 versus 1998 resulting from operating efficiencies
realized in 1999.
Depreciation and amortization increased from 5.2% of revenues in 1998 to 5.4%
of revenues in 1999. The increase was related to an increase in the Company's
capital expenditures in 1999.
Rent expense decreased from 1.0% of revenues in 1998 to 0.8% of revenues in
1999. The decrease was due primarily to terminal closures related to the Ryder
Acquisition Realignment.
Equity in earnings of joint ventures, net of tax, increased from a loss of
$470,000, or 0.1% of revenues, in 1998 to earnings of $1.7 million, or 0.2% of
revenues, in 1999. The increase was due to earnings from the Company's joint
ventures in the United Kingdom "UK", which started operations in May 1999.
Earnings from the UK ventures offset losses from the Company's Brazilian
venture, which began operations in February 1998.
Interest expense increased from $26.2 million, or 2.5% of revenues, in 1998 to
$32.0 million, or 3.0% of revenues, in 1999. The increase was due to higher
long-term debt levels in 1999 versus 1998 and an increase in the interest rates
on the Company's revolving credit facility.
Interest income decreased from 0.3% of revenues in 1998 to 0.2% of revenues in
1999. The decrease was due to lower investment income from the Company's
captive insurance subsidiary, Haul Insurance Limited, which was a result of
increasing interest rates in 1999 that lowered the value of the its bond
portfolio.
The effective tax rate decreased from 43.5% of pre-tax income in 1998 to 10.3%
of pre-tax income in 1999. This decrease was due solely to the equity in
earnings of the joint ventures being presented net of taxes. Including income
taxes on earnings from joint ventures, the effective tax rate was 43.5% in both
1998 and 1999.
14
<PAGE> 16
1998 Compared to 1997
Revenues were $1.03 billion in 1998 compared to $581.5 million in 1997, an
increase of $448.5 million, or 77%. The increase in revenues was primarily due
to a 75% increase in the number of vehicles delivered. The number of vehicles
delivered increased 71% because of the Ryder Automotive Group Acquisition and
the inclusion of the Ryder Automotive Group's results since September 30, 1997,
the date of the acquisition. The remaining increase in vehicle deliveries was
primarily due to increased new vehicle sales in the United States together with
rail-car shortages which led to increased deliveries by the Company's U.S.
operations. Net income in 1998 was $8.5 million compared with net income of
$2.4 million in 1997. Basic earnings per share for 1998 were $1.09 while
diluted earnings per share were $1.08, versus basic and diluted earnings per
share of $0.31 in 1997. The 1998 results were impacted by an eight-week work
stoppage at most General Motors manufacturing plants. The Company estimates
that the work stoppages reduced earnings in 1998 by approximately $0.75 per
share. In addition, the 1998 results include a $0.15 per share charge relating
to a voluntary early retirement program instituted in the fourth quarter. The
1997 results include a charge of $0.67 per share to write down Rigs and
terminal facilities idled or closed as a result of the Ryder Automotive Group
Acquisition. Excluding these unusual items, the significant increase in
earnings in 1998 was primarily due to contributions from the Ryder Automotive
Group acquisition.
The operating ratio (operating expenses as a percentage of revenues) for 1998
was 96.3%, compared to 96.9% in 1997. However, excluding the effect of the
General Motors work stoppages and voluntary early retirement program costs in
1998 and the acquisition-related charge in 1997, the operating ratio improved
from 95.4% in 1997 to 95.1% in 1998. The improvement in the operating ratio is
due to the operating income contribution from the Ryder Automotive Group.
The following is a discussion of the changes in the Company's major expense
categories:
Salaries, wages and fringe benefits increased from 52.0% of revenues in 1997 to
53.3% in 1998. The increase was primarily due to annual salary and benefit
increases together with additional labor costs due to inefficiencies caused by
the lower volumes from the loss of General Motors business as a result of the
work stoppages offset by continued productivity and efficiency improvements.
Also, the Company expensed approximately $2 million during 1998 for a voluntary
early retirement program and such costs are included in salaries, wages and
fringe benefits.
Operating supplies and expenses as a percentage of revenues remained unchanged
in 1998 from 1997. Lower fuel prices were offset by inefficiencies caused by
the lower volumes from the loss of General Motors business as a result of the
work stoppages.
Purchased transportation increased from 10.3% of revenues in 1997 to 10.7% in
1998 primarily due to an increase in the number of vehicles hauled by other
carriers for the Company as part of an exchange program to improve loaded
miles.
Depreciation and amortization as a percentage of revenues decreased from 5.7%
in 1997 to 5.2% in 1998. The decrease was primarily the result of depreciation
expense on the Rigs acquired as part of the Ryder Automotive Group acquisition
representing a lower percentage of revenues than the Company's due to the age
and useful lives of the Rigs.
Interest expense increased from $14.1 million, or 2.4% of revenues, in 1997, to
$26.2 million, or 2.5% of revenues in 1998. The increase is primarily due to
interest on additional borrowings used to finance the Ryder Automotive Group
acquisition.
Interest income increased from $0.9 million, or 0.1% of revenues in 1997, to
$3.3 million, or 0.3% of revenues in 1998. The increase is due to an increase
in earnings from the Company's captive insurance subsidiary, Haul Insurance
Limited, due to increases in the amount of investments that were held by the
Company's captive insurance company.
The income tax provision as a percentage of revenues increased from 0.4% in
1997 to 0.7% in 1998, however, the effective tax rate decreased from 47.2% of
pre-tax income in 1997 to 43.5% of pre-tax income in 1998. The
15
<PAGE> 17
decrease in the effective tax rate was due to lower pre-tax income in 1997
because of the acquisition-related charge, which made non-deductible expenses a
greater percentage of pre-tax income.
LIQUIDITY AND CAPITAL RESOURCES
The Company's sources of liquidity are funds provided by operations and
borrowings under its revolving credit facility with a syndicate of banks. The
Company's liquidity needs are for the acquisition and maintenance of Rigs and
terminal facilities, the payment of operating expenses and the payment of
interest on and repayment of long-term debt.
Net cash provided by operating activities totaled $25.6 million in 1998 versus
$20.1 million in 1999. The decrease in cash provided by operating activities
was primarily due to a $6.9 million reduction in net income during 1999, as
well as an $8.3 million signing bonus, net of amortization, paid in 1999. The
signing bonus was negotiated under the new US Teamsters Union Contract and was
in lieu of a pay increase in the first year of the new contract. The signing
bonus will be amortized over the life of the new contract. These decreases in
operating cash flows were offset by a decline in the rate of increase in the
receivables balance. The receivables balance increased in 1998 due to the
change in payment terms with one of the Company's customers, and increased a
lesser amount in 1999 due to higher revenues and additional receivables from
the Company's customers for rate increases that went into effect in 1999 but
had not been paid at year-end.
Net cash used in investing activities totaled $79.3 million in 1998 versus
$66.2 million in 1999. The decrease was due primarily to a change in the
investment portfolio mix of the Company's captive insurance company which
increased short-term investments by $21.0 million and reduced cash and cash
equivalents by a like amount in 1999. This was offset by an $11.9 million
investment in Axis do Brasil in 1998. In addition, cash paid to purchase
capital items decreased $16.8 million from 1998 to 1999. Total equipment
expenditures in 1999 were comparable to the 1998 levels; however, the Company
leased a portion of the new Rigs that were acquired in 1999.
Net cash provided by financing activities totaled $65.5 million in 1998 versus
$37.7 million in 1999. The decrease was primarily due to additional borrowings
from the Company's revolving credit facility in 1998 due to the losses
associated with the General Motors work stoppages, the change in payment terms
for a customer and the investment in Brazil. These decreases were offset by
borrowings in 1999 to finance operations.
In connection with the acquisition of the Ryder Automotive Group, the Company
refinanced its revolving credit facility, which was amended and restated in
January 2000, with a syndicate of banks. The new revolving credit facility
allows the Company to borrow, under a revolving line of credit, and issue
letters of credit, up to the lesser of $230 million or a borrowing base amount
that is determined based on a defined percentage of the Company's accounts
receivable and equipment. The credit facility matures in September 2002 and the
interest rate is, at the Company's option, either (i) the bank's base rate, as
defined, or (ii) the bank's Eurodollar rate, as defined, as determined at the
date of each borrowing, plus an applicable margin. The Company has the right to
repay the outstanding debt under the credit facility, in whole or in part,
without penalty or premium, subject to a limitation that prepayment of
Eurodollar rate loans will be subject to a breakage penalty if prepaid other
than on the last day of the applicable interest period. The Company will be
subject to mandatory prepayment with a defined percentage of net proceeds from
certain asset sales, new debt offerings and new equity offerings. The credit
facility gives the Company the ability to reduce the commitment amount and the
Company periodically reviews its borrowing needs. The Company had borrowings of
$140.0 million outstanding under the revolving credit facility at December 31,
1999 bearing interest at a weighted average interest rate of 8.6%. In addition,
the Company had approximately $2.5 million of letters of credit outstanding
under its revolving credit facility at December 31, 1999.
The credit facility, the $150 million of 8 5/8% Senior Notes due in 2007, and
the $40 million of 12% Senior Subordinated Notes due in 2003, set forth a
number of affirmative, negative, and financial covenants binding on the
Company. The negative covenants limit the ability of the Company to, among
other things, incur debt, incur liens, make investments, make dividend or other
distributions, or enter into any merger or other consolidation transaction.
16
<PAGE> 18
The financial covenants include the maintenance of a minimum consolidated
tangible net worth, compliance with two leverage ratios and a coverage ratio
and limitations on capital expenditures.
The Company's obligations under the Senior Notes due in 2007 are guaranteed by
substantially all of the subsidiaries of the Company (the "Guarantors").
Separate financial statements of the Guarantors are not provided herein as (i )
the Guarantors are jointly and severally liable for the Company's obligations
under the Notes, (ii) the subsidiaries which are not Guarantors are
inconsequential to the consolidated operations of the Company and its
subsidiaries, and (iii) the net assets and earnings of the Guarantors are
substantially equivalent to the net assets and earnings of the consolidated
entity as reflected in the Company's consolidated financial statements. There
are no restrictions on the ability of the Guarantors to make distributions to
the Company.
Disclosures About Market Risks
The market risk inherent in the Company's market risk sensitive instruments and
positions is the potential loss arising from adverse changes in short-term
investment prices, interest rates, fuel prices, and foreign currency exchange
rates.
SHORT-TERM INVESTMENTS - The Company does not use derivative financial
instruments in its investment portfolio. The Company places its investments in
instruments that meet high credit quality standards, as specified in the
Company's investment policy guidelines. The policy also limits the amount of
credit exposure to any one issue, issuer, and type of instrument. Short-term
investments at December 31, 1999, which are recorded at fair value of $44.3
million, have exposure to price risk. This risk is estimated as the potential
loss in fair value resulting from a hypothetical 10% adverse change in quoted
prices and amounts to $4.4 million.
INTEREST RATES - The Company primarily issues long-term debt obligations to
support general corporate purposes including capital expenditures and working
capital needs. The majority of the Company's long-term debt obligations bear a
fixed rate of interest. A one-percentage point increase in interest rates
affecting the Company's floating rate long-term debt would reduce pre-tax
income by $1.4 million over the next fiscal year. A one-percentage point change
in interest rates would not have a material effect on the fair value of the
Company's fixed rate long-term debt.
FUEL PRICES - The Company is dependent on diesel fuel to operate its fleet of
Rigs. Diesel fuel prices are subject to fluctuations due to unpredictable
factors such as weather, government policies, changes in global demand, and
global production. To reduce price risk caused by market fluctuations, the
Company generally follows a policy of hedging a portion of its anticipated
diesel fuel consumption. The instruments used are principally readily
marketable exchange traded futures contracts that are designated as hedges. The
changes in market value of such contracts have a high correlation to the price
changes of diesel fuel. Gains and losses resulting from fuel hedging
transactions are recognized when the underlying fuel being hedged is used. A
10% increase in diesel fuel prices would reduce pre-tax income by $4.0 million
over the next fiscal year.
FOREIGN CURRENCY EXCHANGE RATES - Although the majority of the Company's
operations are in the United States, the Company does have foreign subsidiaries
(primarily Canada). The net investments in foreign subsidiaries translated into
dollars using year-end exchange rates at December 31, 1999, is $84.6 million.
The potential loss in fair value impacting other comprehensive income resulting
from a hypothetical 10% change in quoted foreign currency exchange rates
amounts to $8.5 million. The Company does not use derivative financial
instruments to hedge its exposure to changes in foreign currency exchange
rates.
Year 2000
Year 2000 ("Y2K" ) issues were addressed by the Company. The Company, like most
other major companies, addressed a universal problem commonly referred to as
"Year 2000 Compliance," which related to the ability of
17
<PAGE> 19
computer programs and systems to properly recognize and process date sensitive
information before and after January 1, 2000.
The Company analyzed its internal information technology ("IT") systems ("IT
systems") to identify any computer programs that were not Year 2000 Compliant
and implemented changes required to make such systems Year 2000 Compliant. The
Company's critical IT systems functioned without substantial Year 2000
Compliance problems.
As of December 31, 1999, the Company's total incremental costs (historical plus
estimated future costs) of addressing Y2K issues were estimated to be in the
range of $5.0 million, of which approximately $4.1 million was incurred in
1999. The Company estimates that approximately 30% of the costs incurred in
1999 were internal costs, including compensation and benefits of employees
assigned primarily to Y2K procedures. Internal costs addressing Y2K issues
during 1998 were not material. These costs were funded through operating cash
flow. The Company does not expect to incur material Y2K related costs in 2000.
New Accounting Standards
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." The
statement establishes accounting and reporting standards requiring that every
derivative instrument (including certain derivative instruments embedded in
other contracts) be recorded in the balance sheet as either an asset or
liability measured at its fair value. SFAS No. 133 requires that changes in the
derivative's fair value be recognized currently in earnings unless specific
hedge accounting criteria are met. Special accounting for qualifying hedges
allows a derivative's gains and losses to offset related results on the hedged
item in the income statement, and requires that a company must formally
document, designate, and assess the effectiveness of transactions that receive
hedge accounting.
During 1999, SFAS No. 137 was issued which defers the effective date
of SFAS No. 133 until fiscal quarters of all fiscal years beginning after June
15, 2000. The Company will adopt this statement in the first quarter of 2001.
The Company has not yet quantified the impact of adopting SFAS No. 133 on the
consolidated financial statements. This statement could increase volatility in
earnings and other comprehensive income.
Seasonality and Inflation
The Company's revenues are seasonal, with the second and fourth
quarters generally experiencing higher revenues than the first and third
quarters. The volume of vehicles shipped during the second and fourth quarters
is generally higher due to the introduction of new models which are shipped to
dealers during those periods and the higher spring and early summer sales of
automobiles and light trucks. During the first and third quarters, vehicle
shipments typically decline due to lower sales volume during those periods and
scheduled plant shut downs. Inflation has not significantly affected the
Company's results of operations.
18
<PAGE> 20
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information required under this item is provided under the caption
"Disclosures about Market Risks" under Item 7. Management's Discussion and
Analysis of Financial Condition and Results of Operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
Financial statements and supplementary data are set forth beginning on
page F-1 of this Report.
ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.
NONE.
PART III
Certain information required by Part III is omitted from this report
in that the Registrant will file a definitive Proxy Statement pursuant to
Regulation 14A (the "Proxy Statement") not later than 120 days after the end of
the fiscal year covered by this report, and certain information included
therein is incorporated herein by reference. Only those sections of the Proxy
Statement which specifically address the items set forth herein are
incorporated by reference. Such information does not include the Compensation
Committee Report or the Performance Graph included in the Proxy Statement.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The information concerning the Company's directors required by this
Item is incorporated by reference to the Company's Proxy Statement. The
information concerning the Company's executive officers required by this Item
is incorporated by reference to the section in Part I, Item 4, entitled
"Executive Officers of the Registrant."
The information regarding compliance with Section 16 of the Securities
Exchange Act of 1934, as amended, is to be set forth in the Proxy Statement and
is hereby incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION.
The information required by this Item is incorporated by reference to
the Company's Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The information required by this Item is incorporated by reference to
the Company's Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information required by this Item is incorporated by reference to
the Company's Proxy Statement.
19
<PAGE> 21
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K.
(a) The following documents are filed as part of this report:
(1) Financial Statements:
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants ...................................................... F-1
Consolidated Balance Sheets at December 31, 1999 and 1998 ..................................... F-2
Consolidated Statements of Operations for the Years Ended December 31, 1999, 1998 and 1997 .... F-3
Consolidated Statements of Changes in Stockholders' Equity for the Years Ended
December 31, 1999, 1998, and 1997 .................................................... F-4
Consolidated Statements of Cash Flows for the Years Ended December 31, 1999, 1998 and 1997 .... F-5
Notes to Consolidated Financial Statements .................................................... F-6
</TABLE>
(2) Financial Statement Schedules:
INDEX TO FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants ...................................................... S-1
Schedule II - Valuation and Qualifying Accounts for the Years Ended
December 31, 1999, 1998 and 1997 ............................................................ S-2
</TABLE>
All other schedules are omitted as the required information is inapplicable or
the information is presented in the financial statements or related notes.
(b) Reports on Form 8-K.
(i) The Company filed a report on Form 8-K on October
25, 1999 regarding the issuance of a press release announcing
the adoption of a stock repurchase plan.
(ii) The Company filed a report on Form 8-K on December
6, 1999 regarding the issuance of a press release in
connection with the reorganization of certain aspects of
management of the Company.
(c) Exhibits;
(d) Financial Statement Schedules
SEPARATE FINANCIAL STATEMENTS OF SUBSIDIARIES' NOT CONSOLIDATED
The 1999 financial statements of ANSA Logistics Limited required to be
included in this report pursuant to Rule 3-09 of Regulation S-X, will be
included in an amendment to this report to be filed within 90 days of the date
of this report.
Exhibit Index filed as part of this report
20
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- -------------------
<S> <C> <C>
(1) 3.1 Amended and Restated Articles of Incorporation of the Company.
3.2 Amended and Restated Bylaws of the Company.
3.3 Amendment to By-laws as of March 21, 2000.
(1) 4.1 Specimen Common Stock Certificate.
(6) 4.2 Indenture dated September 30, 1997 by and among the Company,
the Guarantors and The First National Bank of Chicago, as
Trustee.
4.3 $230 million Revolving Credit Agreement among Allied
Holdings, Inc. and BankBoston, N.A., individually and as
Administrative Agent, et al., dated January 20, 2000.
10.1 Form of the Company's Employment Agreement with executive
officers.
(1) 10.2 The Company's Long Term Incentive Plan dated July 1993.
(2) 10.3 The Company's 401(k) Retirement Plan and Defined Benefit
Pension Plan and Trust.
(3) 10.4 Form of 12% Senior Subordinated Notes due February 1, 2003.
(4) 10.5 Agreement between the Company and Ford Motor Company, as
amended.
(5) 10.7 Agreement between the Company and General Motors Corporation.
(7) 10.8 Acquisition Agreement among Allied Holdings, Inc., AH
Acquisition Corp., Canadian Acquisition Corp., and Axis
International Incorporated and Ryder System, Inc. dated
August 20, 1997.
(8) 10.9 The Company's 1999 Employee Stock Purchase Plan.
21.1 List of subsidiary corporations.
23.1 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included within the signature pages of
this Report).
27.1 Financial Data Schedule (for SEC use only).
</TABLE>
- ----------------------
(1) Incorporated by reference from Registration Statement (File Number
33-66620) as filed with the Securities and Exchange Commission on July
28, 1993 and amended on September 2, 1993 and September 17, 1993 and
deemed effective on September 29, 1993.
(2) Incorporated by reference from Registration Statement (File Number
33-76108) as filed with the SEC on March 4, 1994 and deemed effective
on such date, and Annual Report on Form 10-K for the year ended
December 31, 1993.
(3) Incorporated by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1996.
(4) Incorporated by reference from form 10-Q filed with the Commission on
November 12, 1999. Portions of the agreement are omitted pursuant to a
request for confidential treatment granted by the Commission.
(5) Incorporated by reference from Form 10-K filed with the Commission on
March 30, 1999. Portions of the agreement are omitted pursuant to a
request for confidential treatment granted by the Commission.
(6) Incorporated by reference from Registration Statement (File Number
33-37113) as filed with the SEC on October 3, 1997.
(7) Incorporated by reference from Form 8-K filed with the Commission on
August 29, 1997. Portions of the agreement are omitted pursuant to a
request for confidential treatment granted by the Commission.
(8) Incorporated by reference from Registration Statement (File Number
333-72053) as filed with the SEC on February 9, 1999.
21
<PAGE> 23
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
<TABLE>
<CAPTION>
ALLIED HOLDINGS, INC.
<S> <C>
Date: March 27, 2000 By: /s/ Robert J. Rutland
---------------------- ------------------------------------------------------
Robert J. Rutland, Chairman
Date: March 27, 2000 By: /s/ A. Mitchell Poole, Jr.
---------------------- ------------------------------------------------------
A. Mitchell Poole, Jr., Vice-Chairman and Chief Executive
Officer
Date: March 27, 2000 By: /s/ Daniel H. Popky
---------------------- ------------------------------------------------------
Daniel H. Popky, Senior Vice President and Chief Financial
Officer (Principal Financial and Accounting Officer)
</TABLE>
22
<PAGE> 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Rutland and A. Mitchell Poole,
Jr., jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities to sign any amendments to this
Report on Form 10-K, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert J. Rutland 3-27-00
- -------------------------- Chairman and Director ------------------
Robert J. Rutland
/s/ Guy W. Rutland, III 3-27-00
- -------------------------- Chairman Emeritus and Director ------------------
Guy W. Rutland, III
/s/ A. Mitchell Poole, Jr. 3-27-00
- -------------------------- Vice-Chairman, Chief Executive ------------------
A. Mitchell Poole, Jr. Officer and Director
- -------------------------- Vice Chairman, Executive Vice ------------------
Bernard O. De Wulf President, and Director
/s/ Joseph W. Collier 3-27-00
- -------------------------- Executive Vice-President and Director ------------------
Joseph W. Collier
/s/ Randall E. West 3-27-00
- -------------------------- President, Chief Operating Officer and ------------------
Randall E. West Director
/s/ David G. Bannister 3-27-00
- -------------------------- Director ------------------
David G. Bannister
/s/ Robert R. Woodson 3-27-00
- -------------------------- Director ------------------
Robert R. Woodson
/s/ William P. Benton 3-27-00
- -------------------------- Director ------------------
William P. Benton
/s/ Berner F. Wilson, Jr. 3-27-00
- -------------------------- Director ------------------
Berner F. Wilson, Jr.
/s/ Guy W. Rutland, IV 3-27-00
- -------------------------- Director ------------------
Guy W. Rutland, IV
</TABLE>
23
<PAGE> 25
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Financial Statements
as of December 31, 1999 and 1998
Together With Auditors' Report
<PAGE> 26
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders of
Allied Holdings, Inc.:
We have audited the accompanying consolidated balance sheets of ALLIED HOLDINGS,
INC. (a Georgia corporation) AND SUBSIDIARIES as of December 31, 1999 and 1998
and the related consolidated statements of operations, changes in stockholders'
equity, and cash flows for each of the three years in the period ended December
31, 1999. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Allied Holdings, Inc. and
subsidiaries as of December 31, 1999 and 1998 and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999 in conformity with accounting principles generally accepted
in the United States.
/s/ Arthur Andersen LLP
- -----------------------
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 11, 2000
F-1
<PAGE> 27
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1999 AND 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
ASSETS
1999 1998
--------- ---------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 13,984 $ 21,977
Short-term investments 44,325 23,323
Receivables, net of allowance for doubtful accounts of
$1,508 and $1,545 in 1999 and 1998, respectively 121,058 103,968
Inventories 7,949 6,788
Deferred tax assets 16,119 20,773
Prepayments and other current assets 22,182 18,930
--------- ---------
Total current assets 225,617 195,759
--------- ---------
PROPERTY AND EQUIPMENT, NET 287,838 297,530
--------- ---------
OTHER ASSETS:
Goodwill, net 93,104 94,577
Other 43,361 33,761
--------- ---------
Total other assets 136,465 128,338
--------- ---------
Total assets $ 649,920 $ 621,627
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt $ 185 $ 2,746
Trade accounts payable 42,931 42,196
Accrued liabilities 85,655 100,788
--------- ---------
Total current liabilities 128,771 145,730
--------- ---------
LONG-TERM DEBT, LESS CURRENT MATURITIES 330,101 291,096
--------- ---------
POSTRETIREMENT BENEFITS OTHER THAN PENSIONS 11,973 11,165
--------- ---------
DEFERRED INCOME TAXES 37,409 39,953
--------- ---------
OTHER LONG-TERM LIABILITIES 74,752 70,830
--------- ---------
COMMITMENTS AND CONTINGENCIES (NOTES 5, 7, AND 8)
STOCKHOLDERS' EQUITY:
Common stock, no par value; 20,000 shares authorized,
7,997 and 7,878 shares outstanding at December 31,
1999 and 1998, respectively 0 0
Additional paid-in capital 44,437 43,614
Treasury stock, 29 shares at cost at December 31, 1999 (186) 0
Retained earnings 26,903 25,354
Accumulated other comprehensive income, net of tax (4,240) (6,115)
--------- ---------
Total stockholders' equity 66,914 62,853
--------- ---------
Total liabilities and stockholders' equity $ 649,920 $ 621,627
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
balance sheets.
F-2
<PAGE> 28
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
REVENUES $ 1,081,309 $ 1,026,799 $ 581,530
----------- ----------- -----------
<S> <C> <C> <C>
OPERATING EXPENSES:
Salaries, wages, and fringe benefits 585,380 547,780 302,539
Operating supplies and expenses 185,541 169,498 96,206
Purchased transportation 103,967 109,884 59,925
Insurance and claims 48,252 40,339 22,737
Operating taxes and licenses 41,288 40,779 23,028
Depreciation and amortization 58,019 53,327 33,340
Rent expense 8,974 10,072 5,720
Communications and utilities 9,060 9,341 4,530
Other operating expenses 10,945 7,429 6,812
Acquisition related realignment 0 0 8,914
----------- ----------- -----------
Total operating expenses 1,051,426 988,449 563,751
----------- ----------- -----------
Operating income 29,883 38,350 17,779
----------- ----------- -----------
OTHER INCOME (EXPENSE):
Equity in earnings (loss) of joint
ventures, net of tax 1,733 (470) 0
Interest expense (32,001) (26,146) (14,095)
Interest income 2,112 3,270 868
----------- ----------- -----------
(28,156) (23,346) (13,227)
----------- ----------- -----------
INCOME BEFORE INCOME TAXES 1,727 15,004 4,552
INCOME TAX PROVISION (178) (6,527) (2,150)
----------- ----------- -----------
NET INCOME $ 1,549 $ 8,477 $ 2,402
=========== =========== ===========
PER COMMON SHARE:
Net income per common share--basic $ 0.20 $ 1.09 $ 0.31
=========== =========== ===========
Net income per common share--diluted $ 0.20 $ 1.08 $ 0.31
=========== =========== ===========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic 7,810 7,747 7,728
=========== =========== ===========
Diluted 7,851 7,846 7,810
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-3
<PAGE> 29
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL
COMPREHENSIVE ---------------------- PAID-IN TREASURY
INCOME SHARES AMOUNT CAPITAL STOCK
-------------- -------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 7,810 0 $ 42,977 $ 0
Net income $ 2,402 0 0 0 0
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$1,331 (2,083) 0 0 0 0
--------
Comprehensive income $ 319
========
Nonqualified options exercised 17 0 163 0
Restricted stock, net (8) 0 137 0
-------- -------- -------- --------
BALANCE, DECEMBER 31, 1997 7,819 0 43,277 0
Net income $ 8,477 0 0 0 0
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$2,089 (3,289) 0 0 0 0
--------
Comprehensive income $ 5,188
========
Issuance of common stock 1 0 22 0
Nonqualified options exercised 3 0 24 0
Restricted stock, net 55 0 291 0
-------- -------- -------- --------
BALANCE, DECEMBER 31, 1998 7,878 0 43,614 0
Net income $ 1,549 0 0 0 0
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$1,432 1,875 0 0 0 0
--------
Comprehensive income $ 3,424
========
Issuance of common stock 71 0 415 0
Nonqualified options exercised 3 0 27 0
Repurchases of common stock (29) 0 0 (186)
Restricted stock, net 74 0 381 0
-------- -------- -------- --------
BALANCE, DECEMBER 31, 1999 7,997 $ 0 $ 44,437 $ (186)
======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
OTHER
RETAINED COMPREHENSIVE
EARNINGS INCOME TOTAL
-------- ------------- --------
<S> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 $ 14,475 $ (743) $ 56,709
Net income 2,402 0 2,402
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$1,331 0 (2,083) (2,083)
Comprehensive income
Nonqualified options exercised 0 0 163
Restricted stock, net 0 0 137
-------- -------- --------
BALANCE, DECEMBER 31, 1997 16,877 (2,826) 57,328
Net income 8,477 0 8,477
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$2,089 0 (3,289) (3,289)
Comprehensive income
Issuance of common stock 0 0 22
Nonqualified options exercised 0 0 24
Restricted stock, net 0 0 291
-------- -------- --------
BALANCE, DECEMBER 31, 1998 25,354 (6,115) 62,853
Net income 1,549 0 1,549
Other comprehensive income--foreign currency
translation adjustment, net of income taxes of
$1,432 0 1,875 1,875
Comprehensive income
Issuance of common stock 0 0 415
Nonqualified options exercised 0 0 27
Repurchases of common stock 0 0 (186)
Restricted stock, net 0 0 381
-------- -------- --------
BALANCE, DECEMBER 31, 1999 $ 26,903 $ (4,240) $ 66,914
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-4
<PAGE> 30
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 1,549 $ 8,477 $ 2,402
------- ------- --------
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 58,019 53,327 33,340
Loss (gain)on sale of property and equipment 628 (32) 141
Acquisition related realignment 0 0 8,914
Payment of teamsters union signing bonus, net of
amortization (8,298) 0 0
Equity in (income) loss, net of tax of joint ventures (1,733) 470 0
Compensation expense related to restricted stock grants 33 291 75
Deferred income taxes 718 1,852 2,990
Change in operating assets and liabilities, excluding
effect of businesses acquired:
Receivables, net (16,123) (30,321) (4,314)
Inventories (1,090) (1,505) 382
Prepayments and other current assets (3,102) 2,384 1,216
Trade accounts payable 359 6,366 2,296
Accrued liabilities (10,839) (15,751) 474
------- ------- --------
Total adjustments 18,572 17,081 45,514
------- ------- --------
Net cash provided by operating activities 20,121 25,558 47,916
------- ------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (45,027) (61,868) (27,243)
Proceeds from sale of property and equipment 2,749 606 953
Purchase of businesses, net of cash acquired (1,879) (942) (123,492)
Investment in joint ventures (306) (11,920) 0
Increase in short-term investments (21,002) (3,783) (11,020)
Increase in the cash surrender value of life insurance (773) (1,373) (2,451)
------- ------- --------
Net cash used in investing activities (66,238) (79,280) (163,253)
------- ------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds of long-term debt, net 36,444 62,859 133,052
Proceeds from exercise of stock options 27 24 163
Proceeds from issuance of common stock 415 0 0
Repurchase of common stock (186) 0 0
Other, net 971 2,613 (9,277)
------- ------- --------
Net cash provided by financing activities 37,671 65,496 123,938
------- ------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS 453 (327) (44)
------- ------- --------
NET CHANGE IN CASH AND CASH EQUIVALENTS (7,993) 11,447 8,557
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 21,977 10,530 1,973
------- ------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR $13,984 $21,977 $ 10,530
======= ======= ========
</TABLE>
The accompanying notes are an integral part of these statements.
F-5
<PAGE> 31
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998, AND 1997
1. ORGANIZATION AND OPERATIONS
Allied Holdings, Inc. (the "Company"), a Georgia corporation, is a
holding company which operates through its wholly owned subsidiaries. The
principal operating divisions of the Company are Allied Automotive Group,
Inc. ("Allied Automotive Group") and Axis Group, Inc. ("Axis Group").
Allied Automotive Group, through its subsidiaries, is engaged in the
business of transporting automobiles and light trucks from manufacturing
plants, ports, auctions, and railway distribution points to automobile
dealerships. Axis Group, through its subsidiaries, provides distribution
and logistics services for the automotive industry.
The Company acquired Ryder Automotive Carrier Services, Inc. and RC
Management Corp. (collectively, "Ryder Automotive Carrier Group") on
September 30, 1997 (Note 2), resulting in the Company becoming the largest
motor carrier of automobiles and light trucks in North America.
The Company has four additional operating divisions: Allied Industries,
Inc. ("Allied Industries"), Haul Insurance Limited ("Haul"), Link
Information Systems, Inc. ("Link"), and Haul Risk Management Services, Inc.
("Risk Management"), which provide services to Allied Automotive Group,
Axis Group, and the other subsidiaries of the Company. Allied Industries
provides administrative, financial, and other related services. Haul, a
captive insurance company, was formed for the purpose of insuring general
liability, automobile liability, and workers' compensation for the Company.
Link provides information systems hardware, software, and support. Risk
Management was incorporated in 1997 and offers a range of risk management
and claims administration services.
2. ACQUISITION OF RYDER AUTOMOTIVE CARRIER GROUP
On September 30, 1997, the Company completed the acquisition of Ryder
Automotive Carrier Group from Ryder System, Inc. for approximately $114.5
million in cash, subject to postclosing adjustments. The acquisition has
been accounted for under the purchase method, and accordingly, the
operating results of Ryder Automotive Carrier Group have been included in
the accompanying financial statements since the date of the acquisition.
In conjunction with the acquisition, the Company issued $150,000,000 of 8
5/8% senior notes (the "Senior Notes") in order to finance the acquisition,
pay related fees and expenses, and reduce borrowings (Note 6). Upon
completion of the acquisition, the Company recorded a pretax charge of
approximately $8.9 million (the "Acquisition Charge") to write down Company
rigs and terminal facilities that were idled or closed as a result of the
acquisition. During 1999 and 1998, the Company paid approximately
$1,950,000 and $5,887,977, respectively, against the Acquisition Charge
related to employee severance and in 1997 charged approximately $7,412,000
to the Acquisition Charge to write-down rigs and terminal facilities that
were idled or closed as a result of the acquisition.
F-6
<PAGE> 32
The following unaudited pro forma results of operations for the year ended
December 31, 1997 assumes that the acquisition of Ryder Automotive Carrier
Group and the Senior Notes offering had occurred on January 1, 1997. The
pro forma results are not necessarily indicative of what actually would
have occurred if the acquisition had been consummated on January 1, 1997
nor are they intended to be a projection of future results from combined
operations (in thousands, except per share data).
<TABLE>
<CAPTION>
1997
----------
<S> <C>
Revenues $1,044,875
Operating income 43,904
Income before extraordinary item 15,515
Net income 15,515
Income per share before extraordinary item:
Basic $ 2.01
Diluted $ 1.99
Net income per share:
Basic $ 2.01
Diluted $ 1.99
Weighted average common shares outstanding 7,728
</TABLE>
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its subsidiaries. All significant intercompany transactions and
accounts have been eliminated.
FOREIGN CURRENCY TRANSLATION
The assets and liabilities of the Company's foreign subsidiaries are
translated into U.S. dollars using current exchange rates in effect at the
balance sheet date, and revenues and expenses are translated at average
monthly exchange rates. The resulting translation adjustments are recorded
as accumulated other comprehensive income in the accompanying consolidated
statements of changes in stockholders' equity, net of related income taxes.
REVENUE RECOGNITION
Substantially all revenue is derived from transporting automobiles and
light trucks from manufacturing plants, ports, auctions, and railway
distribution points to automobile dealerships. Revenue is recorded by the
Company when the vehicles are delivered to the dealerships.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents.
INVENTORIES
Inventories consist primarily of tires, parts, materials, and supplies for
servicing the Company's tractors and trailers. Inventories are recorded at
the lower of cost (on a first-in, first-out basis) or market.
F-7
<PAGE> 33
PREPAYMENTS AND OTHER CURRENT ASSETS
Prepayments and other current assets consist of the following at December
31, 1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Tires on tractors and trailers $ 13,506 $ 13,378
Prepaid insurance 865 1,355
Other 7,811 4,197
-------- --------
$ 22,182 $ 18,930
======== ========
</TABLE>
TIRES ON TRACTORS AND TRAILERS
New tires on tractors and trailers are capitalized and amortized to
operating supplies and expenses on a cents per mile basis.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Major property additions,
replacements, and betterments are capitalized, while maintenance and
repairs which do not extend the useful lives of these assets are expensed
currently. Depreciation is provided using the straight-line method for
financial reporting and accelerated methods for income tax purposes. The
detail of property and equipment at December 31, 1999 and 1998 is as
follows (in thousands):
<TABLE>
<CAPTION>
1999 1998 Useful Lives
----------- ----------- -----------
<S> <C> <C> <C>
Tractors and trailers $ 395,288 $ 367,380 4 to 10 years
Buildings and facilities (including
leasehold improvements) 51,033 46,322 4 to 25 years
Land 17,722 17,772
Furniture, fixtures, and equipment 34,041 23,677 3 to 10 years
Service cars and equipment 2,879 2,309 3 to 10 years
----------- -----------
500,963 457,460
Less accumulated depreciation and amortization 213,125 159,930
----------- -----------
$ 287,838 $ 297,530
=========== ===========
</TABLE>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Cash paid during the year for interest $31,982 $24,540 $ 9,189
Cash paid during the year for income taxes, net of refunds 1,056 378 278
Liabilities assumed in connection with businesses acquired* 0 0 (170,745)
</TABLE>
*Includes trade accounts payable, accrued liabilities, postretirement
benefits other than pensions, deferred income taxes, and other
long-term liabilities.
F-8
<PAGE> 34
GOODWILL
The acquisition of Ryder Automotive Carrier Group resulted in goodwill of
approximately $68,079,000. Goodwill related to the acquisition is being
amortized on a straight-line basis over 40 years. Other goodwill is being
amortized on a straight-line basis over 20 to 30 years. Amortization
(included in depreciation and amortization expense) for the years ended
December 31, 1999, 1998, and 1997 amounted to approximately $3,466,000,
$3,235,000, and $2,086,000, respectively. Accumulated amortization was
approximately $10,930,000 and $7,164,000 at December 31, 1999 and 1998,
respectively. The Company periodically evaluates the realizability of
goodwill based on expectations of nondiscounted cash flows and operating
income for each subsidiary having a material goodwill balance. In the
opinion of management, no impairment of goodwill exists at December 31,
1999.
CASH SURRENDER VALUE OF LIFE INSURANCE
The Company maintains life insurance policies for certain employees of the
Company. Under the terms of the policies, the Company will receive, upon
the death of the insured, the lesser of aggregate premiums paid or the face
amount of the policy. Any excess proceeds over premiums paid are remitted
to the employee's beneficiary. The Company records the increase in cash
surrender value each year as a reduction of premium expense. The Company
has recorded approximately $8,723,000 and $7,950,000 of cash surrender
value as of December 31, 1999 and 1998, respectively, included in other
assets on the accompanying balance sheets.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements. Estimates also affect the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates.
RECLASSIFICATION
Certain amounts in the December 31, 1999 and 1998 financial statements have
been reclassified to conform to the current year presentation.
FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards ("SFAS") No. 107, "Disclosures
About Fair Value of Financial Instruments," requires disclosure of the
following information about the fair value of certain financial instruments
for which it is practicable to estimate that value. For purposes of the
following disclosure, the fair value of a financial instrument is the
amount at which the instrument could be exchanged in a current transaction
between willing parties, other than in a forced sale or liquidation.
The amounts disclosed represent management's best estimates of fair value.
In accordance with SFAS No. 107, the Company has excluded certain financial
instruments and all other assets and liabilities from its disclosure.
Accordingly, the aggregate fair value amounts presented are not intended
to, and do not, represent the underlying fair value of the Company.
F-9
<PAGE> 35
The methods and assumptions used to estimate fair value are as follows:
CASH AND CASH EQUIVALENTS
The carrying amount approximates fair value due to the relatively
short period to maturity of these instruments.
SHORT-TERM INVESTMENTS
The Company's short-term investments are comprised of debt and equity
securities, all classified as trading securities, which are carried at
their fair value based on the quoted market prices of those
investments. Accordingly, net realized and unrealized gains and losses
on trading securities are included in net earnings.
LONG-TERM DEBT
The carrying amount approximates fair value based on the borrowing
rates currently available to the Company for borrowings with similar
terms and average maturities.
FUEL HEDGING CONTRACTS
The Company has entered into futures contracts to manage a portion of
the Company's exposure to fuel price fluctuations. Gains and losses
resulting from fuel hedging transactions are recognized when the
underlying fuel being hedged is used. The fair value of fuel hedging
contracts is estimated based on quoted market prices.
The financial instruments are generally executed with major financial
institutions which expose the Company to acceptable levels of market and
credit risks and may at times be concentrated with certain counterparties
or groups of counterparties. The creditworthiness of counterparties is
subject to continuing review and full performance is anticipated.
The asset and (liability) amounts recorded in the balance sheet and the
estimated fair values of financial instruments at December 31, 1999
consisted of the following (in thousands):
<TABLE>
<CAPTION>
CARRYING FAIR
AMOUNT VALUE
-------- -------
<S> <C> <C>
Cash and cash equivalents $ 13,984 $ 13,984
Short-term investments 44,325 44,325
Long-term debt (330,101) (330,101)
Fuel hedging contracts 0 411
</TABLE>
ACCRUED LIABILITIES
Accrued liabilities consist of the following at December 31, 1999 and 1998 (in
thousands):
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Wages and benefits $ 39,728 $ 46,615
Claims and insurance reserves 24,691 23,158
Other 21,236 31,015
-------- --------
$ 85,655 $100,788
======== ========
</TABLE>
F-10
<PAGE> 36
The long-term portion of claims and insurance reserves is included in the
balance sheets as other long-term liabilities and amounts to approximately
$74,073,000 and $69,475,000 at December 31, 1999 and 1998, respectively.
CLAIMS AND INSURANCE RESERVES
In the United States, the Company retains liability up to $650,000 for each
workers' compensation claim and $500,000 for each claim for automobile and
general liability, including personal injury and property damage claims. In
addition to the $500,000 per occurrence deductible for automobile
liability, there is a $1,500,000 aggregate deductible for those claims
which exceed the $500,000 per occurrence deductible, subject to a
$1,000,000 per claim limit. In addition, the Company retains liability up
to $250,000 for each cargo damage claim. In Canada, the Company retains
liability up to CDN $100,000 for each claim for personal injury, property
damage, and cargo damage.
Most reserves for self-insured workers' compensation, automobile, and
general liability losses are based on actuarial estimates that are
discounted at 6% to their present value based on the Company's historical
claims experience adjusted for current industry trends. The undiscounted
amount of the reserves for claims and insurance at December 31, 1999 and
1998 was approximately $103,365,000 and $97,114,000, respectively. The
claims and insurance reserves are adjusted periodically as such claims
mature to reflect changes in actuarial estimates based on actual
experience.
The estimated costs of all known and potential losses are accrued by the
Company. In the opinion of management, adequate provision has been made for
all incurred claims.
COMPREHENSIVE INCOME
In 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive
Income," which requires companies to report all changes in equity during a
period, except those resulting from investment by owners and distribution
to owners, in a financial statement for the period in which they are
recognized. The Company has chosen to disclose comprehensive income, which
encompasses net income and foreign currency translation adjustment, net of
income taxes, in the accompanying consolidated statements of changes in
stockholders' equity. The accompanying statement of stockholders' equity
for the year ended December 31, 1997 has been restated to conform to the
statement requirements.
INCOME TAXES
The Company follows the practice of providing for income taxes based on
SFAS No. 109, "Accounting for Income Taxes." SFAS No. 109 requires
recognition of deferred tax liabilities and assets for the expected future
tax consequences of events that have been included in the financial
statements or tax returns (Note 4).
EQUITY INVESTMENTS
During 1999 and 1998, Axis Group completed the formation of three joint
ventures for the purpose of managing the distribution of vehicles in the
United Kingdom and Brazil. Axis Group initially invested $10,395,000 in the
ventures. The Company is accounting for the investments under the equity
method of accounting with its share of the ventures' earnings or loss
reflected as equity in earnings (loss) of joint ventures in the
consolidated statements of operations. The related equity investments are
included in other assets in the accompanying consolidated balance sheets.
F-11
<PAGE> 37
The majority of the Company's equity in earnings of joint ventures in 1999
was derived from its joint venture in the United Kingdom, Ansa Logistics
Limited. Summarized financial information of Ansa Logistics Limited as of
December 31, 1999 and the year then ended is as follows (in thousands):
<TABLE>
<CAPTION>
1999
-------
<S> <C>
Current assets $21,652
Other assets 7,235
-------
Total assets $28,887
=======
Current liabilities $25,273
=======
Revenues $85,345
=======
Operating income $ 5,758
=======
Income from continuing operations $ 5,703
=======
Net income $ 3,614
=======
</TABLE>
EARNINGS PER SHARE
In February 1997, the Financial Accounting Standards Board issued SFAS No.
128, "Earnings Per Share." This statement requires presentation of basic
and diluted earnings per share. Basic earnings per share are calculated by
dividing net income available to common stockholders by the weighted
average number of common shares outstanding for the years presented.
Diluted earnings per share reflect the potential dilution that could occur
if securities and other contracts to issue common stock were exercised or
converted into common stock or resulted in the issuance of common stock
that then shared in the earnings of the entity. Basic and diluted earnings
per share are not materially different for the years presented. A
reconciliation of the number of weighted average shares used in calculating
basic and diluted earnings per share is as follows (in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Weighted average number of common shares
outstanding--basic earnings per share 7,810 7,747 7,728
Effect of potentially dilutive shares outstanding 41 99 82
-------- -------- --------
Weighted average number of common shares
outstanding--diluted earnings per share 7,851 7,846 7,810
======== ======== ========
</TABLE>
NEW ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." The
statement establishes accounting and reporting standards requiring that
every derivative instrument (including certain derivative instruments
embedded in other contracts) be recorded in the balance sheet as either an
asset or liability measured at its fair value. SFAS No. 133 requires that
changes in the derivative's fair value be recognized currently in earnings
unless specific hedge accounting criteria are met. Special accounting for
qualifying hedges allows a derivative's gains and losses to offset related
results on the hedged item in the income statement, and requires that a
company must formally document, designate, and assess the effectiveness of
transactions that receive hedge accounting.
During 1999, SFAS No. 137 was issued which defers the effective date of
SFAS No. 133 until fiscal quarters of all fiscal years beginning after June
15,
F-12
<PAGE> 38
2000. The Company will adopt this statement in the first quarter of 2001.
The Company has not yet quantified the impact of adopting SFAS No. 133 on
the consolidated financial statements. This statement could increase
volatility in earnings and other comprehensive income.
4. INCOME TAXES
The following summarizes the components of the income tax provision (in
thousands):
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Current:
Federal $ 10 $ (38) $ (874)
State (239) 795 110
Foreign 1,058 1,316 340
Deferred:
Federal (3,533) 3,319 3,148
State (1,402) 215 415
Foreign 4,284 920 (989)
-------- -------- --------
Total income tax provision $ 178 $ 6,527 $ 2,150
======== ======== ========
</TABLE>
The provision for income taxes differs from the amounts computed by applying
federal statutory rates due to the following (in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Provision computed at the federal statutory rate $ 587 $ 5,101 $ 1,548
State income taxes, net of federal income tax effects (1,083) 667 346
Insurance premiums, net of recovery 101 0 258
Amortization of goodwill 423 405 274
Earnings (losses) in jurisdictions taxed at rates different from
the statutory U.S. federal rate 1,024 (121) (166)
Equity income in affiliates, reflected net of tax (1,014) 0 0
Other, net 140 475 (110)
-------- -------- --------
Total income tax provision $ 178 $ 6,527 $ 2,150
======== ======== ========
</TABLE>
The tax effect of significant temporary differences representing deferred tax
assets and liabilities at December 31, 1999 and 1998 is as follows (in
thousands):
F-13
<PAGE> 39
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Deferred tax assets:
Claims and insurance expense $ 19,729 $ 23,316
Accrued compensation expense 7,179 6,290
Postretirement benefits 5,045 4,567
Other liabilities not currently deductible 3,599 3,934
Tax carryforwards 15,516 9,625
Other, net 4,729 7,136
-------- --------
Total deferred tax assets 55,797 54,868
-------- --------
Deferred tax liabilities:
Prepaids currently deductible (5,704) (2,469)
Depreciation and amortization (65,115) (67,143)
Postemployment benefits (1,192) (299)
Other, net (5,076) (4,137)
-------- --------
Total deferred tax liabilities (77,087) (74,048)
-------- --------
Net deferred tax liabilities $(21,290) $(19,180)
======== ========
</TABLE>
The Company has certain tax carryforwards available to offset future income
taxes consisting of net operating losses that expire from 2004 to 2019,
foreign tax credits that expire from 2001 to 2004, charitable contributions
that expire from 2002 to 2003, and alternative minimum tax credits that
have no expiration dates.
Management believes that a valuation allowance is not considered necessary
based on the Company's earnings history, the projections for future taxable
income, and other relevant considerations over the periods during which the
deferred tax assets are deductible.
The 1996 consolidated federal income tax return of the Company is presently
under examination by the Internal Revenue Service. The ultimate result of
the examination cannot be predicted at this time. In the opinion of
management, any additional tax liability resulting from the examination
would not have a material adverse impact on the consolidated financial
position or operating results of the Company.
5. LEASE COMMITMENTS
RELATED PARTIES
The Company leased office space through December 1997 from a related party
under a lease which was to expire in 2003. In the opinion of management,
the terms of this lease were as favorable as those which could be obtained
from unrelated lessors. On December 31, 1997, this space was sold to an
unrelated party, and a new and revised agreement was signed effective
January 1, 1998 which extends the lease term through 2007. Rental expense
under the noncancelable, related party lease amounted to approximately
$1,456,000 in 1997.
UNRELATED PARTIES
The Company leases equipment, office space, and certain terminal facilities
from unrelated parties under noncancelable operating lease agreements which
expire in various years through 2007. Rental expenses under these leases
amounted to approximately $9,118,000, $6,540,000, and $4,277,000 for the
years ended December 31, 1999, 1998, and 1997, respectively.
F-14
<PAGE> 40
The Company also leases certain terminal facilities from unrelated parties
under cancelable leases (i.e., month-to-month terms). The total rental
expenses under these leases were approximately $3,686,000, $5,187,000, and
$2,198,000 for the years ended December 31, 1999, 1998, and 1997,
respectively.
During 1999, the Company entered into a sublease agreement with a third
party for a leased building obtained in connection with the Ryder
Automotive Carrier acquisition. The Company's commitment under the lease
expires in 2006. The sublease agreement with the third party expires in
2004. Total sublease income earned during 1999 was approximately $623,000.
Future minimum rental commitments and related sublease income under all
noncancelable operating lease agreements, excluding lease agreements that
expire within one year, are as follows as of December 31, 1999 (in
thousands):
<TABLE>
<CAPTION>
SUBLEASE
COMMITMENTS INCOME
----------- ----------
<S> <C> <C>
2000 $ 10,479 $ 936
2001 10,368 961
2002 9,022 986
2003 8,403 1,011
2004 8,002 361
Thereafter 13,391 0
----------- ----------
Total $ 59,665 $ 4,255
=========== ==========
</TABLE>
6. LONG-TERM DEBT
Long-term debt consisted of the following at December 31, 1999 and 1998 (in
thousands):
<TABLE>
<CAPTION>
1999 1998
---------- ----------
<S> <C> <C>
Revolving credit facility $ 140,000 $ 100,837
Senior notes 150,000 150,000
Senior subordinated notes 40,000 40,000
Other 286 3,005
---------- ----------
330,286 293,842
Less current maturities of long-term debt (185) (2,746)
---------- ----------
$ 330,101 $ 291,096
========== ==========
</TABLE>
In September 1997, the Company issued $150,000,000 of Senior Notes through
a private placement. Subsequently, the Senior Notes were registered with
the Securities and Exchange Commission. The Senior Notes mature October 1,
2007 and bear interest at 8 5/8% annually. Interest on the Senior Notes is
payable semiannually in arrears on April 1 and October 1 of each year.
Borrowings under the Senior Notes are general unsecured obligations of the
Company. The Company's obligations under the Senior Notes are guaranteed by
substantially all of the subsidiaries of the Company (the "Guarantors").
Separate financial statements of the Guarantors are not provided herein as
(i) the Guarantors are jointly and severally liable for the Company's
obligations under the Senior Notes, (ii) the subsidiaries which are not
Guarantors are inconsequential to the consolidated operations of the
Company and its subsidiaries, and (iii) the net assets and earnings of the
Guarantors are substantially equivalent to the net assets and earnings of
the
F-15
<PAGE> 41
consolidated entity, as reflected in these consolidated financial
statements. There are no restrictions on the ability of Guarantors to make
distributions to the Company.
The Senior Notes set forth a number of negative covenants binding on the
Company. The covenants limit the Company's ability to, among other things,
purchase or redeem stock, make dividend or other distributions, make
investments, and incur or repay debt (with the exception of payment of
interest or principal at stated maturity).
Concurrent with the issuance of the Senior Notes, the Company closed on a
revolving credit facility (the "Revolving Credit Facility"). The Revolving
Credit Facility was subsequently amended and restated in January 2000. The
Revolving Credit Facility allows the Company to borrow under a revolving
line of credit and to issue letters of credit up to the lesser of
$230,000,000 or a borrowing base amount, as defined in the Revolving Credit
Facility. Annual commitment fees are due on the undrawn portion of the
commitment. Amounts outstanding under the Revolving Credit Facility mature
in 2002. The interest rate for the Revolving Credit Facility is, at the
Company's option, either (i) the bank's base rate, as defined, or (ii) the
bank's Eurodollar rate, as defined, as determined at the date of each
borrowing, plus an applicable margin.
Borrowings under the Revolving Credit Facility are secured by a first
priority security interest on assets (other than real estate) of the
Company and certain of its subsidiaries, including a pledge of stock of
certain subsidiaries. In addition, certain subsidiaries of the Company
jointly and severally guarantee the obligations of the Company under the
Revolving Credit Facility.
The Revolving Credit Facility sets forth a number of affirmative, negative,
and financial covenants binding on the Company. The negative covenants
limit the ability of the Company to, among other things, incur debt, incur
liens, make investments, make dividend or other distributions, or enter
into any merger or other consolidation transaction. The financial covenants
include the maintenance of a minimum consolidated net worth, compliance
with two leverage ratios and a coverage ratio, and limitations on capital
expenditures.
In February 1996, the Company issued $40,000,000 of senior subordinated
notes ("Senior Subordinated Notes") through a private placement. The Senior
Subordinated Notes mature February 1, 2003 and bear interest at 12%
annually. Proceeds from the Senior Subordinated Notes were used to reduce
outstanding company borrowings.
Future maturities of long-term debt are as follows at December 31, 1999 (in
thousands):
<TABLE>
<S> <C>
2000 $ 185
2001 101
2002 140,000
2003 40,000
2004 0
Thereafter 150,000
--------
$330,286
========
</TABLE>
At December 31, 1999, the weighted average interest rate on borrowings
under the Revolving Credit Facility was 8.6%, and approximately $2,500,000
was committed under letters of credit. At December 31, 1999, the Company
had available borrowings under the Revolving Credit Facility of
approximately $83,000,000.
F-16
<PAGE> 42
7. EMPLOYEE BENEFITS
PENSION AND POSTRETIREMENT BENEFIT PLANS
The Company maintains the Allied Defined Benefit Pension Plan, a trusteed
noncontributory defined benefit pension plan for management and office
personnel in the United States, and the Pension Plan for Employees of
Allied Systems (Canada) Company and Associated Companies for management and
office personnel in Canada (the "Canada Plan") (collectively, the "Plans").
Under the Plans, benefits are paid to eligible employees upon retirement
based primarily on years of service and compensation levels at retirement.
Contributions to the Plans reflect benefits attributed to employees'
services to date and services expected to be rendered in the future. The
Company's funding policy is to contribute annually at a rate that is
intended to fund future service benefits at a level percentage of pay and
past service benefits over a 30-year period. At December 31, 1998,
participation in the Canada Plan was frozen.
The Company also provides certain health care and life insurance benefits
for eligible employees who retired prior to July 1, 1993 and their
dependents, except for certain employees participating in the Voluntary
Early Retirement Plan ("VERP"). Generally, the health care plan pays a
stated percentage of most medical expenses reduced for any deductibles and
payments by government programs or other group coverage. The life insurance
plan pays a lump-sum death benefit based on the employee's salary at
retirement. These plans are unfunded. Employees retiring after July 1, 1993
are not entitled to any postretirement medical or life insurance benefits.
In conjunction with the Ryder Automotive Carrier Group acquisition, the
Company took over a postretirement benefit plan to provide retired
employees with certain health care and life insurance benefits.
Substantially all employees not covered by union-administered medical plans
and who had retired as of September 30, 1997 are eligible for these
benefits. Benefits are generally provided to qualified retirees under age
65 and eligible dependents. Furthermore, the Company took over two defined
pension plans for a certain terminal. One of the plans benefit provides a
monthly benefit based on years of service upon retirement. The other plan
provides benefits to eligible employees upon retirement based primarily on
years of service and compensation levels at retirement.
During 1998, the Company adopted SFAS No. 132, "Employers' Disclosures
about Pension and Other Postretirement Benefits." This statement requires
additional disclosure information on changes in plan assets and benefit
obligations. All disclosures related to the Company's pension and
postretirement benefit plans have been prepared in accordance with SFAS No.
132.
The change in the projected benefit obligation of the defined benefit
pension plans and the postretirement benefit plans consisted of the
following during fiscal 1999 and 1998 (in thousands):
F-17
<PAGE> 43
<TABLE>
<CAPTION>
DEFINED BENEFIT POSTRETIREMENT
PENSION PLANS BENEFIT PLANS
----------------------- ------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of
fiscal year $ 35,887 $ 31,886 $ 10,164 $ 10,642
Service cost 2,932 2,981 0 0
Interest cost 2,519 2,119 607 925
Foreign currency translation 348 (426) 0 0
Plan amendments and other (3,046) 2,219 (152) 98
Curtailment loss 0 1,092 0 790
Actuarial loss (gain) 4,536 (2,787) (696) (1,228)
Benefits paid (1,568) (1,197) (1,115) (1,063)
--------- --------- --------- ---------
Benefit obligation at end of fiscal year $ 41,608 $ 35,887 $ 8,808 $ 10,164
========= ========= ========= =========
</TABLE>
The change in plan assets and funded status of the defined benefit pension
plans and the postretirement benefit plans consisted of the following
during fiscal 1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
DEFINED BENEFIT POSTRETIREMENT
PENSION PLANS BENEFIT PLANS
----------------------- ------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Change in plan assets:
Fair value of plan assets at beginning of
year $ 28,403 $ 26,673 $ 0 $ 0
Actual return on plan assets 3,415 1,539 0 0
Participants' contributions 0 162 0 0
Foreign currency translation 367 (382) 0 0
Employer contribution 1,159 1,608 1,115 1,063
Benefits paid (1,568) (1,197) (1,115) (1,063)
--------- --------- --------- ---------
Fair value of plan assets at end of year $ 31,776 $ 28,403 $ 0 $ 0
========= ========= ========= =========
Funded status $ (9,832) $ (7,484) $ (8,808) $ (10,164)
Unrecognized actuarial loss (gain) 5,347 4,469 (3,505) (1,185)
Unrecognized prior service cost 859 1,105 0 0
Unrecognized transition asset (168) (218) 0 0
--------- --------- --------- ---------
Accrued benefit cost $ (3,794) $ (2,128) $ (12,313) $ (11,349)
========= ========= ========= =========
</TABLE>
F-18
<PAGE> 44
<TABLE>
<CAPTION>
DEFINED BENEFIT POSTRETIREMENT
PENSION PLANS BENEFIT PLANS
----------------------- ------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Amounts recognized in the consolidated balance sheets consist of:
Accrued liabilities $ (3,794) $ (2,128) $ (340) $ (184)
Postretirement benefit other than pension 0 0 (11,973) (11,165)
--------- --------- -------- ---------
$ (3,794) $ (2,128) $ (12,313) $ (11,349)
========= ========= ========= =========
</TABLE>
The following assumptions were used in determining the actuarial present
value of the projected pension benefit obligation and postretirement
benefit obligation at December 31, 1999 and 1998:
<TABLE>
<CAPTION>
DEFINED BENEFIT POSTRETIREMENT
PENSION PLANS BENEFIT PLANS
----------------------- ------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Weighted average discount rate 7.64% 6.84% 7.75% 7.00%
Weighted average expected long-term rate of return on
assets 9.20 9.29 N/A N/A
Weighted average rate of compensation increase 3.71 4.06 N/A N/A
</TABLE>
The net periodic benefit cost recognized for the defined benefit pension
plans and the postretirement benefit plans includes the following
components at December 31, 1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
DEFINED BENEFIT POSTRETIREMENT
PENSION PLANS BENEFIT PLANS
----------------------- ------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Components of net periodic benefit cost:
Service cost $ 2,932 $ 2,981 $ 0 $ 0
Interest cost 2,519 2,119 607 925
Expected return on plan assets (2,642) (2,490) 0 0
Amortization of prior service cost 246 247 0 0
Amortization of transition asset (50) (52) 0 0
Curtailment loss (0) 1,092 0 790
Recognized actuarial loss (gain) 878 25 (41) (53)
--------- --------- -------- ---------
Net periodic benefit cost $ 3,883 $ 3,922 $ 566 $ 1,662
========= ========= ========= =========
</TABLE>
As reflected in the net periodic benefit cost table above, for fiscal 1998,
the Company recognized an aggregate net curtailment loss of $1,882,000
related to the VERP offered to qualified nonunion employees in December
1998. The effect of the VERP was to increase the benefit obligation based
on the acceleration of years of credited service. This transaction is
recognized as a curtailment loss in accordance with SFAS No. 88, "Employer
Accounting for Settlements and Curtailments of Defined Benefit Pension
Plans."
F-19
<PAGE> 45
The weighted average annual assumed rate of increase in the per capital
cost of covered benefits (i.e., health care trend rate) for the health
plans is 7.35% for 1998 and 7.15% for 1999, grading to 5.5% over five
years. The effect of a 1% increase in the assumed trend rate would have
increased the accumulated postretirement benefit obligation as of December
31, 1999 by approximately $231,000 The effect of this change on the
periodic postretirement benefit cost for 1999 would be approximately
$70,000.
At December 31, 1999, plan assets consisted primarily of U.S. and
international corporate bonds and stocks, convertible equity securities,
and U.S. and Canadian government securities.
A substantial number of the Company's employees are covered by
union-sponsored, collectively bargained multiemployer pension plans. The
Company contributed and charged to expense approximately $43,451,000,
$38,068,000, and $17,926,000 for the years ended December 31, 1999, 1998,
and 1997, respectively, for such plans. These contributions are determined
in accordance with the provisions of negotiated labor contracts and are
generally based on the number of man-hours worked.
Also, a substantial number of the Company's employees are covered by
union-sponsored, collectively bargained multiemployer health and welfare
benefit plans. The Company contributed and charged to expense approximately
$47,027,000, $44,796,000, and $22,402,000 in 1999, 1998, and 1997,
respectively, in connection with these plans. These required contributions
are determined in accordance with the provisions of negotiated labor
contracts and are for both active and retired employees.
401(K) PLAN
The Company has a 401(k) plan covering all of its employees in the United
States. The Company's administrative expense for the 401(k) plan was
approximately $110,000, $69,000, and $102,000 in fiscal years 1999, 1998,
and 1997, respectively. The Company contributes the lesser of 3% of
participant wages or $1,000 per year for each nonbargaining unit
participant of the plan. The Company contributed approximately $760,000,
$625,000, and $319,000 to the plan during the years ended December 31,
1999, 1998, and 1997, respectively.
EMPLOYEE STOCK PURCHASE PLAN
During December 1998, the Company approved an Employee Stock Purchase Plan
(the "ESPP"). The ESPP allows eligible employees, as defined, the right to
purchase common stock of the Company on a quarterly basis at 85% of the
lower of the fair market value on the first business day of the calendar
quarter or on the last business day of the calendar quarter. There are
350,000 shares of the Company's common stock reserved under the ESPP, of
which 71,000 shares were issued to employees during 1999.
8. COMMITMENTS AND CONTINGENCIES
The Company negotiates fixed rates with its customers for the delivery of
vehicles. The delivery rates are based on contract agreements that expire
at various dates through 2005. During 1999, the Company renegotiated rates
for the majority of its customers to adjust its contract pricing to reflect
the continuing trend toward shipments with larger vehicles.
The Company is involved in various litigation and environmental matters
relating to employment practices, damages, and other matters arising from
operations in the ordinary course of business. In the opinion of
management,
F-20
<PAGE> 46
the ultimate disposition of these matters will not have a material adverse
effect on the Company's financial position or results of operations.
The Company has also been added as a defendant in a lawsuit (Gateway
Development & Manufacturing, Inc. vs. Commercial Carriers, Inc., et. al.)
pending in Supreme Court of Erie County, New York. In the lawsuit, the
plaintiff claims that the Company tortuously interfered with a business
transaction involving the plaintiff and one of the defendants. The Company
has moved to dismiss the lawsuit. The Company believes the case is without
merit and intends to vigorously defend this case. While the ultimate
resolution of this litigation cannot be determined, management does not
expect that the resolution of their proceeding will have a material adverse
effect on the Company's consolidated financial position or results of
operations.
The Company has entered into employment agreements with certain executive
officers of the Company. The agreements provide for compensation to the
officers in the form of annual base salaries and bonuses based on earnings.
The employment agreements also provide for severance benefits upon the
occurrence of certain events, including a change in control, as defined.
Approximately 86% of the Company's total labor force is covered by
collective bargaining agreements. Collective bargaining agreements
representing the majority of the total workforce were renewed during 1999
and expire in 2003.
9. REVENUES FROM MAJOR CUSTOMERS
Substantially all of the Company's revenues are realized through the
automotive industry.
In 1999, 1998, and 1997, approximately 75%, 73%, and 77%, respectively, of
the Company's revenues were derived from the three largest domestic
automobile manufacturers. In 1999, 1998, and 1997, General Motors
Corporation accounted for approximately 33%, 32%, and 22%, respectively, of
revenues, Ford Motor Company accounted for approximately 26%, 26%, and 41%,
respectively, of revenues, and Chrysler Corporation accounted for 16%, 15%,
and 14%, respectively, of revenues.
10. INDUSTRY SEGMENT AND GEOGRAPHIC INFORMATION
During 1998, the Company adopted SFAS No. 131, "Disclosures about Segments
of an Enterprise and Related Information." SFAS No. 131 establishes
standards for reporting information about operating segments in annual
financial statements and requires reporting selected information about
operating segments in interim financial reports issued to stockholders.
The Company operates in one reportable industry segment: transporting
automobiles and light trucks from manufacturing plants, ports, auctions,
and railway distribution points to automotive dealerships. Geographic
financial information for 1999, 1998, and 1997 is as follows (in
thousands):
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Revenues:
United States $ 902,364 $ 858,772 $ 425,090
Canada 178,945 168,027 156,440
----------- ----------- -----------
$ 1,081,309 $ 1,026,799 $ 581,530
=========== =========== ===========
</TABLE>
F-21
<PAGE> 47
<TABLE>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Long-lived assets:
United States $ 352,556 $ 350,897 $ 333,061
Canada 71,747 74,971 76,205
----------- ----------- -----------
$ 424,303 $ 425,868 $ 409,266
=========== =========== ===========
</TABLE>
Revenues are attributed to the respective countries based on the location
of the origination terminal.
11. STOCKHOLDERS' EQUITY
The Company has authorized 5,000,000 shares of preferred stock with no par
value. No shares have been issued, and therefore, there were no shares
outstanding at December 31, 1999 and 1998. The board of directors has the
authority to issue these shares and to fix dividends, voting and conversion
rights, redemption provisions, liquidation preferences, and other rights
and restrictions.
During 1999, the Company's board of directors authorized the repurchase of
up to 500,000 shares of the Company's outstanding common stock through
fiscal year 2000 in open market transactions. As of December 31, 1999 the
Company had repurchased 29,000 shares which are included as treasury stock
in the accompanying consolidated balance sheets.
The Company has a long-term incentive plan which allows the issuance of
grants or awards of incentive stock options, restricted stock, stock
appreciation rights, performance units, and performance shares to employees
and directors of the Company to acquire up to 650,000 shares of the
Company's common stock.
During 1999 and 1998, the Company granted 83,759 and 54,523 shares,
respectively, of restricted stock to certain employees of the Company. In
connection with the awards of the restricted stock, during 1999, 1998, and
1997, the Company recorded compensation expense of $33,000, $291,000, and
$286,000, respectively. Compensation expense is recorded over five years,
the vesting period of the restricted stock. During 1999, 1998, and 1997,
3,241, 5,282, and 8,000 shares, respectively, of restricted stock were
canceled.
In addition, the Company has granted nonqualified and incentive stock
options under the long-term incentive plan. Options granted become
exercisable after one year in 20% or 33 1/3% increments per year and expire
ten years from the date of the grant.
F-22
<PAGE> 48
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
OPTION PRICE EXERCISE
SHARES (PER SHARE) PRICE
------------ ------------ ------------
<S> <C> <C> <C>
Outstanding as of December 31, 1996 171,050 $9.00-$11.75 $ 9.51
Granted 10,000 $17.13 17.13
Exercised (17,495) $9.00-$11.75 9.42
Canceled (18,500) $9.00-$11.75 9.07
------------
Outstanding as of December 31, 1997 145,055 $9.00-$17.13 10.11
Granted 15,000 $10.38 10.38
Exercised (2,500) $ 9.50 9.50
Canceled 0 N/A N/A
------------
Outstanding as of December 31, 1998 157,555 $9.00-$17.13 10.14
Granted 170,000 $ 7.06 7.06
Exercised (2,750) $9.50-$11.75 9.70
Canceled (40,255) $9.50-$11.75 9.70
------------
Outstanding as of December 31, 1999 284,550 $7.06-$17.13 8.37
============
</TABLE>
<TABLE>
<CAPTION>
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Options exercisable at year-end 87,882 115,855 75,048
Weighted average exercise price of options exercisable at year-end $ 10.13 $ 9.85 $ 9.70
Per share weighted average fair value of
options granted during the year $ 3.86 $ 5.09 $ 8.27
</TABLE>
The weighted average remaining contractual life of options outstanding at
December 31, 1999 was nine years.
The Company has adopted the disclosure-only provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation," but applies Accounting
Principles Board Opinion No. 25 and related interpretations in accounting
for the long-term incentive plan. If the Company had elected to recognize
compensation cost for the long-term incentive plan based on the fair value
at the grant dates for awards under the plan, consistent with the method
prescribed by SFAS No. 123, net income and earnings per share would have
been changed to the pro forma amounts indicated below at December 31, 1999,
1998, and 1997 (in thousands, except per share data):
<TABLE>
<CAPTION>
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Net income:
As reported $ 1,549 $ 8,477 $ 2,402
Pro forma 1,421 8,367 2,305
Earnings per share:
As reported:
Basic $ .20 $ 1.09 $ 0.31
Diluted .20 1.08 0.31
Pro forma:
Basic $ .18 $ 1.08 $ 0.30
Diluted .18 1.07 0.30
</TABLE>
The fair value of the Company's stock options used to compute pro forma net
income and earnings per share disclosures is the estimated present value at
grant date using the Black-Scholes option pricing model with the following
weighted average assumptions for 1999, 1998, and 1997: dividend yield of
0%,
F-23
<PAGE> 49
expected volatility of 55%, 49% and 34%, respectively, a risk-free interest
rate of 5.84%, 5.09% and 5.7%, respectively, and an expected holding period
of five years.
The Black-Scholes option pricing model was developed for use in estimating
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option valuation models require the input
of highly subjective assumptions, including expected stock price
volatility. Because the Company's employee stock options have
characteristics significantly different from those of traded options and
because changes in the subjective input assumptions can materially affect
the fair value estimate, in management's opinion, the existing models do
not necessarily provide a reliable single measure of the fair value of its
employee stock options.
12. QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
1999
------------------------------------------------------
FIRST SECOND THIRD FOURTH
--------- --------- --------- ---------
(IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $ 261,249 $ 286,984 $ 240,058 $ 293,018
Operating income (loss) 30 14,741 (734) 15,846
Net (loss) income (4,005) 4,132 (3,823) 5,245
Basic and diluted net (loss) income per share (.51) .53 (.49) .67
Average shares outstanding:
Basic 7,790 7,792 7,818 7,842
Diluted 7,790 7,800 7,818 7,859
Stock prices:
High $ 14.438 $ 9.563 $ 9.313 $ 7.688
Low 9.563 6.500 6.063 5.000
</TABLE>
<TABLE>
<CAPTION>
1998
------------------------------------------------------
FIRST SECOND THIRD FOURTH
--------- --------- --------- ---------
(IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues $ 253,390 $ 280,641 $ 217,468 $ 275,300
Operating income (loss)* 6,787 19,324 (3,418) 15,187
Net income (loss)* 690 7,697 (4,960) 5,050
Net income (loss) per share:*
Basic $ 0.09 $ 0.99 $ (0.64) $ 0.65
Diluted 0.09 0.98 (0.64) 0.65
Average shares outstanding:
Basic 7,746 7,748 7,748 7,748
Diluted 7,746 7,861 7,748 7,829
Stock prices:
High $ 22.500 $ 22.313 $ 21.938 $ 16.750
Low 18.000 17.750 10.250 11.375
</TABLE>
*The Company's second and third quarter earnings were impacted by
an eight-week work stoppage at most General Motors manufacturing
plants. Also, during the fourth quarter, the Company expensed
approximately $2 million for the VERP.
F-24
<PAGE> 50
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders of
Allied Holdings, Inc.:
We have audited in accordance with auditing standards generally accepted in the
United States, the consolidated financial statements included in ALLIED
HOLDINGS, INC.'S 1999 annual report to stockholders and this Form 10-K, and
have issued our report thereon dated February 11, 2000. Our audit was made for
the purpose of forming an opinion on those financial statements taken as a
whole. The schedule listed in Item 14 of this Form 10-K is the responsibility
of the Company's management, is presented for purposes of complying with the
Securities and Exchange Commission's rules, and is not part of the basic
financial statements. This schedule has been subjected to the auditing
procedures applied in the audits of the basic financial statements and, in our
opinion, fairly states in all material respects the financial data required to
be set forth therein in relation to the basic financial statements taken as a
whole.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 11, 2000
S-1
<PAGE> 51
ALLIED HOLDINGS, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
(In Thousands)
<TABLE>
<CAPTION>
Additions
Balance at Charged To Balance
Beginning Costs and at End
Classification of Period Expenses Deductions Adjustments of Year
- --------------- ---------- ---------- ---------- ----------- -------
<S> <C> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1999:
Allowance for doubtful accounts $1,545 $136 (173)(a) 0 $1,508
YEAR ENDED DECEMBER 31, 1998:
Allowance for doubtful accounts 2,078 201 (734)(a) 0 1,545
YEAR ENDED DECEMBER 31, 1997:
Allowance for doubtful accounts 564 159 (19)(a) 1,374(b) 2,078
</TABLE>
(a) Write-off of uncollectable accounts.
(b) Balance assumed from the acquisition of Ryder
Automotive Carrier Group.
S-2
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
ALLIED HOLDINGS, INC.
ADOPTED AS OF NOVEMBER 29, 1999
ARTICLE ONE
OFFICES
1.1 Offices. The Corporation may have offices at such place or
places (within or without the State of Georgia) as the Board of Directors may
from time to time determine or the business of the Corporation may require or
make desirable.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
2.1 Place of Meetings. All meetings of the Shareholders shall be
held at the principal offices of the Corporation, or at such other place as may
be determined from time to time by the Board of Directors.
2.2 Annual Meetings. The annual meeting of the Shareholders shall
be held each year on a date and at a time determined by the Board of Directors
of the Corporation, at which the Shareholders shall elect, by a majority vote
of the outstanding common stock, subject to the rights, if any, of the holders
of preferred stock, a Board of Directors and transact such other business as
may properly be brought before the meeting.
2.3 Special Meetings. Special meetings of the Shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or the Articles
of Incorporation, may be called by the Board of Directors, the Chairman or the
Chief Executive Officer of the Corporation, or at the request in writing of
Shareholders owning not less than sixty-six and two-thirds percent (66.67%) of
the outstanding shares of the Corporation entitled to vote in an election of
directors. Such request shall state the purpose or purposes of the proposed
meeting.
2.4 Notice. Except as otherwise required by statute or the
Articles of Incorporation, written notice of each meeting of the Shareholders,
whether annual or special, shall be served, either personally or by mail, upon
each Shareholder of record entitled to vote at such meeting, no fewer than ten
(10) nor more than sixty (60) days before such meeting. If mailed, such notice
shall be directed to a Shareholder at his post office address last shown on the
records of the Corporation. Notice of any special meeting of Shareholders shall
state the purpose or purposes for which the meeting is called. Notice of any
meeting of Shareholders shall not be required to be given to any Shareholder
who, in person or by such Shareholder's attorney so authorized, either before
or after such meeting, shall waive such notice. Attendance of a Shareholder at
a meeting, either in person or by proxy, shall of itself constitute waiver of
notice and waiver of any and all objections to the place of the meeting, the
time of the meeting, and the manner in which it
<PAGE> 2
has been called or convened, except when a Shareholder attends a meeting solely
for the purpose of stating, at the beginning of the meeting, any such objection
or objections to the transaction of business. Notice of any adjourned meeting
need not be given otherwise than by announcement at the meeting at which the
adjournment is taken.
2.5 Quorum of Shareholders. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Shareholders for the transaction of business, except as otherwise provided by
law, by the Articles of Incorporation, or by these Bylaws. If, however, such
majority shall not be present or represented at any meeting of the
Shareholders, the Shareholders entitled to vote thereat, present in person or
by proxy, shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of voting stock shall be present. At such adjourned meeting at which a
quorum shall be present in person or by proxy, any business may be transacted
that might have been transacted at the meeting as originally called.
2.6 Voting and Proxy. At every meeting of the Shareholders,
including (but without limiting the generality of the foregoing language)
meetings of Shareholders for the election of directors, any Shareholder having
the right to vote shall be entitled to vote in person or by proxy, but no proxy
shall be voted after eleven (11) months from its date, unless said proxy
provides for a longer period (but no proxy shall be of unlimited duration).
Each Shareholder shall have one (1) vote for each share of stock having voting
power, registered in such Shareholder's name on the books of the Corporation.
If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the Shareholders, except as otherwise provided by law, by the
Articles of Incorporation or by these Bylaws.
2.7 Action Taken by Shareholders Without a Meeting. Whenever the
vote of Shareholders at a meeting thereof is required or permitted to be taken
in connection with any corporate action, the meeting and vote of the
shareholders may be dispensed with, if all of the shareholders who would have
been entitled to vote upon the action if such meeting were held shall consent
in writing to such corporate action being taken.
2.8 Proposed Actions. Any proposal for action to be presented by
any Shareholder at any annual or special meeting of shareholders, other than a
nomination for director which must be made in accordance with Section 3.5 of
these Bylaws, shall be out of order unless specifically described in the
Corporation's notice to all Shareholders of the meeting and the matters to be
acted upon thereat, or unless the proposal shall have been submitted in writing
to the Secretary of the Corporation and received at the principal executive
offices of the Corporation at least sixty (60) days prior to the date of the
annual or special meeting regarding such proposal, and such proposal is, under
law, an appropriate subject for shareholder action.
2.9 Inspectors. Before any meeting of Shareholders, the Board of
Directors shall appoint one or more persons, other than nominees for office,
directors or Shareholders, to act as inspector(s) of election at the meeting or
its adjournment. An inspector may be an officer or employee of the Corporation.
If any person appointed as inspector fails to appear or fails or
2
<PAGE> 3
refuses to act, the chairman of the meeting shall appoint a person to fill that
vacancy. The inspector shall:
(a) Ascertain the number of shares outstanding and the voting
power of each;
(b) Determine the shares represented at a meeting;
(c) Determine the validity of proxies and ballots;
(d) Count all votes;
(e) Determine the result; and
(f) Make a written report of his or her findings.
ARTICLE THREE
DIRECTORS
3.1 Powers of Directors. Except as may be otherwise provided by
any legal agreement among Shareholders, the property and business of the
Corporation shall be managed by its Board of Directors. In addition to the
powers and authority expressly conferred upon the Board of Directors by these
Bylaws, the Board of Directors may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by law, by any legal
agreement among Shareholders, by the Articles of Incorporation or by these
Bylaws directed or required to be exercised or done by the Shareholders.
3.2 Number of Directors, Election and Term. The number of members
of the Board of Directors of the Corporation shall be eleven (11) directors,
unless a greater or lesser number of directors shall be fixed from time to time
by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66.67%) of the outstanding shares of common stock entitled to vote for
the election of directors or upon the affirmative vote of a majority of the
Board of Directors, subject to the rights, if any, of the holders of preferred
stock then outstanding. The directors shall be divided into three (3) classes
as nearly equal in number as possible, with the directors in each class to hold
office until their successors are elected and qualified. Any increase or
decrease in the number of directors shall be so apportioned among the classes
as to make all classes as nearly equal in number as possible. At each annual
meeting of shareholders of the Corporation, the successors to the class of
directors whose term shall then expire shall be elected to hold office for a
three (3) year term.
3.3 Vacancies. Any vacancy in the Board of Directors resulting
from the death, resignation or retirement of a director, or any other cause
other than an increase in the number of directors, shall be filled by a
majority vote of the remaining directors, though less than a quorum, for a term
corresponding to the unexpired term of the new director's predecessor in
office. When the number of directors is increased and any newly created
directorships are filled by the
3
<PAGE> 4
Board of Directors, the terms of the additional directors shall expire at the
next election of directors by the shareholders.
3.4 Removal. Any or all of the directors of the Corporation may
be removed from office by the shareholders at any annual or special meeting of
Shareholders of the Corporation, the notice of which shall state that the
removal of a director or directors is among the purposes of the meeting, but
only for cause, by the affirmative vote of at least sixty-six and two-thirds
percent (66.67%) of the outstanding shares of common stock of the Corporation,
subject to the rights, if any, of the holders of preferred stock then
outstanding.
3.5 Nominations. Subject to the rights, if any, of the holders of
preferred stock then outstanding, only persons who are nominated in accordance
with the following provisions shall be eligible for election as directors:
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of Shareholders by or at the direction of
the Board of Directors, by any nominating committee or person appointed by the
Board of Directors, or by any Shareholder of the Corporation entitled to vote
for the election of directors at the meeting of Shareholders who complies with
the notice procedures set forth in this Section 3.5. Such nominations, other
than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a Shareholder's notice must be delivered to, or mailed and received at,
the principal executive offices of the Corporation not less than sixty (60)
days prior to the scheduled annual meeting of Shareholders, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than sixty (60) days' notice or prior public
disclosure of the date of the scheduled annual meeting of Shareholders is given
or made, notice by the Shareholder, to be timely, must be so delivered or
received not later than the close of business on the tenth (10th) day following
the earlier of the day on which such notice of the date of the scheduled annual
meeting of Shareholders was mailed or the day on which such public disclosure
was made. A Shareholder's notice to the Secretary shall set forth, as to each
person whom the Shareholder proposes to nominate for election or reelection as
a director, the following:
3.5.1 the name, age, business address and residence address of the
person;
3.5.2 the principal occupation or employment of the person;
3.5.3 the class and number of shares of stock of the Corporation
which are beneficially owned by the person; and
3.5.4 any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of
directors pursuant to Rule 14a under the Securities Exchange
Act of 1934, as amended.
4
<PAGE> 5
A Shareholder's notice to the Secretary shall also set forth, as to
the Shareholder giving the notice:
(i) the name and address, as they appear on the
Corporation's books, of the Shareholder; and
(ii) the class and number of shares of the Corporation's
stock which are beneficially owned by the Shareholder on the date of such
Shareholder notice.
3.6 Determination of Validity of Nominations. The Corporation may
require any nominee under Section 3.5 of these Bylaws to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as director of the Corporation.
The presiding officer of the annual meeting shall determine and declare at the
annual meeting whether a nomination was made in accordance with the terms of
Section 3.5. If the presiding officer determines the nomination was not made in
accordance with the terms of Section 3.5, he or she shall so declare at the
annual meeting and any such defective nomination shall be disregarded.
3.7 Qualifications. Directors shall be natural persons of the age
of eighteen (18) or over. Directors need not be residents of the State of
Georgia or shareholders of the Corporation.
3.8 Place of Meetings. The Board of Directors may hold its
meetings at such place or places (within or without the State of Georgia) as it
may from time to time determine.
3.9 Compensation of Directors. Directors shall be paid such
compensation for attendance at regular or special meetings of the Board of
Directors and of any special or standing committees thereof as may, from time
to time, be determined by resolution of the Board of Directors.
ARTICLE FOUR
COMMITTEES
4.1 Executive Committee. The Board of Directors may, by resolution
adopted by a majority of the entire Board, designate an Executive Committee of
two (2) or more directors.
4.1.1 Each member of the Executive Committee shall hold
office until the first meeting of the Board of Directors after the annual
meeting of Shareholders next following such member's election and until such
member's successor member of the Executive Committee is elected, or until such
member's death, resignation or removal, or until such member shall cease to be
a director.
4.1.2 During the intervals between the meetings of the
Board of Directors, the Executive Committee may exercise all of the powers of
the Board of Directors in the management of the business affairs of the
Corporation, including all powers herein or in the Articles of Incorporation
specifically granted to the Board of Directors, and may authorize the
5
<PAGE> 6
seal of the Corporation to be affixed to all papers which may require it;
provided, however, that the Executive Committee shall not have the power to
amend or repeal any resolution of the Board of Directors that by its terms
shall not be subject to amendment or repeal by the Executive Committee, and the
Executive Committee shall not have the authority of the Board of Directors in
reference to (1) amending the Articles of Incorporation or Bylaws of the
Corporation; (2) adopting a plan of merger or consolidation; (3) the sale,
lease, exchange or other disposition of all or substantially all of the
property and assets of the Corporation; or (4) a voluntary dissolution of the
Corporation or a revocation of any such voluntary dissolution.
4.1.3 The Executive Committee shall meet from time to
time on call of the Chairman, Chief Executive Officer or of any two (2) or
more members of the Executive Committee. Meetings of the Executive Committee
may be held at such place or places, within or without the State of Georgia, as
the Executive Committee shall determine or as may be specified or fixed in the
respective notices or waivers of such meetings. The Executive Committee may fix
its own rules of procedure, including provision for notice of its meetings. It
shall keep a record of its proceedings and shall report these proceedings to
the Board of Directors at the meeting thereof held next after they have been
taken, and all such proceedings shall be subject to revision or alteration by
the Board of Directors except to the extent that action shall have been taken
pursuant to or in reliance upon such proceedings prior to any such revision or
alteration.
4.1.4 The Executive Committee shall act by majority vote
of its members.
4.1.5 The Board of Directors, by resolution adopted in
accordance with Section 4.1 of this Article, may designate one (1) or more
directors as alternate members of any such committee, who may act in the place
and stead of any absent member or members at any meeting of such committee.
4.2 Other Committees. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate one (1) or more
additional committees, each committee to consist of three (3) or more of the
directors of the Corporation, which shall have such name or names and shall
have and may exercise such powers of the Board of Directors in the management
of the business and affairs of the Corporation, except the powers denied to the
Executive Committee, as may be determined from time to time by the Board of
Directors.
4.3 Board of Director Control of Committees. The Board of
Directors, by resolution adopted by a majority of the entire Board, shall have
power at any time to remove any member of any committee, with or without cause,
and to fill vacancies in and to dissolve any such committee.
ARTICLE FIVE
MEETINGS OF THE BOARD OF DIRECTORS
5.1 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place (within or without the State
of Georgia) as shall from time to time be determined by the Board of Directors.
6
<PAGE> 7
5.2 Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman or Chief Executive Officer on not less than two
(2) days notice, given, in accordance with Section 9.1 of these Bylaws, to each
director and shall be called by the Chairman, Chief Executive Officer or the
Secretary in like manner and on like notice on the written request of any two
(2) or more directors. Any such special meeting shall be held at such time and
place (within or without the State of Georgia) as shall be stated in the notice
of meeting.
5.3 Notice Need Not State Purpose. No notice of any meeting of the
Board of Directors need state the purposes thereof.
5.4 Meetings via Conference Telephone or Similar Communications
Equipment. Any meeting, regular or special, may be held by conference
telephone, electronic video screen communication or other communications
equipment, if (1) each member participating in the meeting can communicate with
all of the other members concurrently, and (2) each member is provided the
means of participating in all matters before the Board of Directors, including
without limitation the capacity to propose, or to interpose an objection to, a
specific action to be taken by the Corporation. Participation in a meeting as
permitted by this Section 5.4 shall constitute presence in person at such
meeting.
5.5 Quorum and Voting. At all meetings of the Board of Directors,
the presence of a majority of the number of directors in office shall be
necessary and sufficient to constitute a quorum for the transaction of
business. The act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, by the Articles of Incorporation
or by these Bylaws. In the absence of a quorum a majority of the directors
present at any meeting may adjourn the meeting from time to time until a quorum
of directors shall be present. Notice of any adjourned meeting need only be
given by announcement at the meeting at which the adjournment is taken.
5.6 Action Taken By Directors Without a Meeting. Any action
required or permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if, prior to such
action, a written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the Board or committee.
ARTICLE SIX
OFFICERS
6.1 Enumeration. The Board of Directors at its first meeting after
each annual meeting of Shareholders shall appoint the following officers: a
Chairman, one or more Vice Chairmen, a President, a Secretary and a Treasurer.
In accordance with the terms and conditions set forth in the succeeding
sections of this Article Six, one of such officers shall be designated Chief
Executive Officer and one shall be designated Chief Operating Officer. The
Board of Directors at any time and from time to time may appoint such other
officers as it shall deem necessary or desirable, including, without
limitation, one or more Vice Presidents (one or more of whom may be
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designated Executive Vice President and one or more of whom may be designated
Senior Vice President), one or more Assistant Vice Presidents, one or more
Assistant Treasurers, and one or more Assistant Secretaries, who shall hold
their offices for such terms as shall be determined by the Board of Directors
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors. The Chief Executive Officer may
appoint one or more Assistant Secretaries or Assistant Treasurers, from time to
time, for administrative convenience, who shall have a term expiring at the
next annual election of officers and who shall have such duties as shall be
specified by the Chief Executive Officer.
6.2 Qualifications. Any person may hold any two or more offices.
No officer needs to be a shareholder.
6.3 Compensation. The salaries of the officers of the Corporation
shall be fixed by the Board of Directors based on the advice of the
Compensation Committee, except that the Board of Directors may delegate to any
officer or officers the power to fix the compensation of any officer appointed
in accordance with the second sentence of Section 6.1 of these Bylaws.
6.4 Term. Each officer of the Corporation shall hold office until
his successor is chosen or until his earlier resignation, death or removal, or
the termination of his office. Any officers may be removed by a majority vote
of the Board of Directors whenever in its judgment the best interest of the
Corporation will be served thereby.
6.5 Chairman. The Corporation shall have a Chairman who shall call
meetings of the Shareholders, the Board of Directors and the Executive
Committee to order and shall act as chairman of such meetings. The Chairman
shall also be, ex officio, a member of all standing committees, unless
otherwise provided in the resolution appointing the same; shall serve as
adviser to the officers of the Corporation at the request of the Board of
Directors; and, shall have such other duties and powers as may, from time to
time, be delegated by the Board of Directors. In the absence or disability of
the Chief Executive Officer, or in the event of, and during the period of, a
vacancy in such office, the Chairman shall also be the Chief Executive Officer.
6.6 Vice Chairman. The Corporation shall have one or more Vice
Chairmen, the exact number of whom shall be determined from time to time by the
Board of Directors. Each Vice-Chairman shall report to the Chief Executive
Officer of the Corporation and shall have such duties and powers as may, from
time to time, be delegated by the Chief Executive Officer or the Board of
Directors.
6.7 Chief Executive Officer. The Board of Directors shall
designate either the Chairman or one of the Vice-Chairmen to be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall,
subject to the provisions of these Bylaws and to the discretion of the Board of
Directors, have ultimate authority for decisions relating to the general
management and control of the affairs and business of the Corporation and shall
have all duties and powers commonly incident to the position of Chief Executive
Officer or which are, or from time to time may be, delegated to him by the
Board of Directors or which are or may at any time be authorized or required by
law. He shall be, ex officio, a member of all standing committees, unless
otherwise provided in the resolution appointing the same. He may redelegate
from time to time and to the full extent permitted by law, in writing,
to officers or employees of the
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Corporation any or all of such duties and powers, and any such redelegation may
be either general or specific. Whenever he shall so delegate any of his
authority, he shall file a copy of the redelegation with the Secretary of the
Corporation. In the absence or disability of the Chairman, or in the event of,
and during the period of, a vacancy in such office, the Chief Executive Officer
shall perform the duties of the Chairman.
6.8 President. The Corporation shall have a President, who shall
be the chief operating officer of the Corporation (the "Chief Operating
Officer") and shall have such duties and powers as shall, from time to time, be
determined by the Chief Executive Officer.
6.9 Vice Presidents. The Vice Presidents shall have such duties
and powers as the Chief Executive Officer or Chief Operating Officer shall
request or delegate. One or more Vice Presidents may be designated, by the
Board of Directors, Executive Vice President, Senior Vice President or such
other distinguishing designation as may be deemed desirable which may reflect
seniority, duties or responsibilities of such Vice President; each such Vice
President shall have such additional duties and powers as are prescribed by the
Chief Executive Officer, Chief Operating Officer or Board of Directors. The
Assistant Vice Presidents shall have such powers and duties as may be
prescribed from time to time by the Chief Executive Officer.
6.10 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the Shareholders and record all votes
and the minutes of all proceedings in books to be kept for that purpose and
shall perform like duties for the standing committees when required. The
Secretary shall give, or cause to be given, any notice required to be given of
any meetings of the Shareholders and of the Board of Directors, and in general,
shall perform all the duties incident to the office of a secretary to a
corporation, and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer, under whose supervision the Secretary
shall be. The Secretary shall keep in safe custody the seal of the Corporation
and, when authorized by the Board of Directors or the Chief Executive Officer,
shall affix the seal to any instrument requiring it and by his or her signature
attest the seal or shall cause the signature of the Treasurer to attest the
seal. The Assistant Secretary or Assistant Secretaries shall, in the absence or
disability of the Secretary, or at his or her request, perform the Secretary's
duties and powers.
6.11 Treasurer. The Treasurer shall be the Chief Financial Officer
of the Corporation and shall have charge of and be responsible for all funds,
securities, receipts and disbursements of the Corporation, and shall deposit,
or cause to be deposited, in the name of the Corporation, all monies or other
valuable effects, in such banks, trust companies or other depositories as
shall, from time to time, be selected by the Board of Directors. The Treasurer
shall render to the Chief Executive Officer and the Board of Directors,
whenever requested, an account of the financial condition of the Corporation,
and in general, shall perform all the duties incident to the office of a
treasurer of a corporation, and such other duties as may be assigned to him or
her by the Board of Directors or the Chief Executive Officer, under whose
supervision the Treasurer shall be. The Assistant Treasurer or Assistant
Treasurers shall, in the absence or disability of the Treasurer, or at his or
her request, perform the Treasurer's duties and exercise the Treasurer's duties
and powers.
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6.12 Delegation of Duties. In case of the absence of any officer of
the Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may delegate, for the time being, any or all
of the duties or powers of such officer to any other officer or to any
director.
ARTICLE SEVEN
CAPITAL STOCK
7.1 Certificates for Shares. The interest of each Shareholder
shall be evidenced by a certificate or certificates representing shares of
stock of the Corporation, which shall be in such form as the Board of Directors
may from time to time adopt and shall be numbered and shall be entered in the
books of the Corporation as they are issued. Each certificate shall exhibit the
holder's name, the number of shares and class of shares and series, if any,
represented thereby, a statement that the Corporation is organized under the
laws of the State of Georgia, and, if applicable, the par value of each share
or a statement that the shares are without par value. Each certificate shall be
signed by the Chief Executive Officer and the Secretary or the Treasurer and
shall be sealed with the seal of the Corporation; provided, however, that where
such certificate is signed by a transfer agent, or by a transfer clerk acting
on behalf of the Corporation and a registrar, the signature of any such
officer, and such seal, may be facsimile. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be delivered
as though the person or persons who signed such certificate or certificates or
whose facsimile signatures shall have been used thereon had not ceased to be
such officer or officers.
7.2 Shareholders List. The Corporation shall keep a record of the
Shareholders of the Corporation which readily shows, in alphabetical order or
by alphabetical index, the names of the Shareholders entitled to vote, with the
addresses of and the number of shares held by each. Said record shall be
presented at all meetings of the Shareholders.
7.3 Transfer of Shares of Stock. Transfers of stock shall be made
on the books of the Corporation only by the person named in the certificate, or
by attorney lawfully constituted in writing, and upon surrender of the
certificate therefor, or in the case of a certificate alleged to have been
lost, stolen or destroyed, upon compliance with the provisions of Section 7.8
of these Bylaws.
7.4 Closing of Stock Transfer Books. For the purpose of
determining Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of Shareholders for any other
proper purpose, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period not to exceed sixty (60) days. If the
stock transfer books shall be closed for the purpose of determining
Shareholders entitled to notice of or to vote at a meeting
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of shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
7.5 Record Date. In lieu of closing the stock transfer books, the
Board of Directors may fix in advance a date as the record date for any such
determination of Shareholders, such date to be not more than sixty (60) days,
and in case of a meeting of Shareholders, not less than ten (10) days, prior to
the date on which the particular action, requiring such determination of
shareholders, is to be taken.
7.6 Reliance. The Corporation shall be entitled to treat the
holder of any share of stock of the Corporation as the person entitled to vote
such share, to receive any dividend or other distribution with respect to such
share, and for all other purposes and accordingly shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
7.7 Transfer Agent and Registrar. The Board of Directors may
appoint one (1) or more transfer agents and one (1) or more registrars and may
require each stock certificate to bear the signature or signatures of a
transfer agent or a registrar, or both.
7.8 Lost Certificates. Any person claiming a certificate of stock
to be lost, stolen or destroyed shall make a written affidavit or written
affirmation of the fact in such manner as the Board of Directors may require
and shall, if the directors so require, give the Corporation a bond of
indemnity in form and amount and with one (1) or more sureties satisfactory to
the Board of Directors, whereupon an appropriate new certificate may be issued
in lieu of the one alleged to have been lost, stolen or destroyed.
ARTICLE EIGHT
MISCELLANEOUS
8.1 Books and Records. The Board of Directors shall have power to
determine which accounts and books of the Corporation, if any, shall be open to
the inspection of Shareholders, except such as may by law be specifically open
to inspection, and shall have power to fix reasonable rules and regulations not
in conflict with the applicable law for the inspection of accounts and books
which by law or by determination of the Board of Directors shall be open to
inspection, and the Shareholders' rights in this respect are and shall be
restricted and limited accordingly.
8.2 Fiscal Year. The fiscal year of the Corporation shall end on a
day and date to be determined by the Board of Directors.
8.3 Corporate Seal. The corporate seal shall be in such form as
the Board of Directors may from time to time determine.
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ARTICLE NINE
NOTICES AND WAIVER OF NOTICE
9.1 Notice to Shareholders. Except as otherwise specifically
provided in these Bylaws, whenever under the provisions of these Bylaws notice
is required to be given to any shareholder, it shall not be construed to mean
personal notice, but such notice may be given either by personal notice or by
cable or telegraph, or by mail by depositing the same in the post office or
letter box in a postpaid sealed wrapper, or by overnight courier service,
addressed to such Shareholder, at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
9.2 Notice to Directors, Officers or Committee Members. Except as
otherwise specifically provided in these Bylaws, whenever under the provisions
of these Bylaws notice is required to be given to any director, officer, or
committee member, it shall not be construed to mean personal notice, but such
notice may be given either by personal notice or by cable, telegraph,
facsimile, telephone, electronic mail message or by mail by depositing the same
in the post office or letter box in a postpaid sealed wrapper, or by overnight
courier service, addressed to such officer, director or committee member at
such address as appears on the books of the Corporation, and such notice shall
be deemed to be given at the time when the same shall be thus sent or mailed.
As used herein, notice by telephone shall be deemed to include a voice
messaging system or other system or technology designed to record and
communicate messages, or wireless, to the recipient, including the recipient's
designated voice mailbox or address on such a system.
9.3 Waiver. When any notice whatsoever is required to be given by
law, by the Articles of Incorporation or by these Bylaws, a waiver thereof by
the person or persons entitled to said notice given before or after the time
stated therein, in writing, which shall include a waiver given by telegraph,
cable, telecopy or facsimile, shall be deemed equivalent thereto. No notice of
any meeting need be given to any person who shall attend such meeting.
ARTICLE TEN
REIMBURSEMENT OF SALARY
10.1 Reimbursement. Any payments made to an officer of the
Corporation, including, but not limited to salaries, commissions, interest,
bonuses, rent, or reimbursement of expenses incurred by him, which shall be
disallowed in whole or in part as a deductible expense of the Corporation by
the Internal Revenue Service shall be reimbursed by such officer to the
Corporation to the extent of such disallowance. It shall be the duty of the
Board of Directors to enforce payment of each such amount disallowed. In lieu
of payment by the officer, subject to the approval of the Board of Directors,
proportionate amounts may be withheld from such officer's future compensation
payments until the amount owed to the Corporation has been received.
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ARTICLE ELEVEN
AMENDMENTS
11.1 Amendments by Directors or Shareholders. The authority to
make, amend, alter, change or repeal the Bylaws of the Corporation is hereby
expressly and solely granted to and vested in the Board of Directors of the
Corporation with any such amendment to be adopted by majority vote of the Board
of Directors, subject always to the power of shareholders to make, amend,
alter, change or repeal the Bylaws of the Corporation by the affirmative vote
of holders of sixty-six and two-thirds percent (66.67%) of the outstanding
shares of common stock of the Corporation, subject to the rights, if any, of
the holders of preferred stock.
ARTICLE TWELVE
INDEMNIFICATION
12.1 Obligation to Indemnify. The Corporation shall indemnify or
obligate itself to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, or proceeding if he acted in a manner he
reasonably believed in good faith to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not meet the standard of conduct set forth
above. Indemnification permitted under this Section in connection with a
proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
12.2 Authority to Indemnify for Expenses. Under the circumstances
prescribed in Section 12.3, the Corporation shall have the power to indemnify
and hold harmless any person who was or is a party or is threatened to be made
a party to any threatened, pending, or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Superior Court
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of the liability but in view of all
the circumstances of
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the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Superior Court or such other court shall deem proper.
12.3 Expenses. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in Sections 12.1 or
12.2, or in defense of any claim, issue, or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
12.4 Standards of Conduct. Except as provided in Section 12.3 and
except as may be ordered by the court, the Corporation may not indemnify a
director, officer, employee or agent under Section 12.1 or Section 12.2 unless
authorized thereunder and a determination has been made in the specific case
that indemnification of the director, officer, employee or agent is permissible
under the circumstances because he or she has met the standard of conduct set
forth in Section 12.1. The determination shall be made:
(1) By the Board of Directors by a majority vote of a
quorum consisting of directors not at the time parties to the proceedings;
(2) If a quorum cannot be obtained, by a majority vote of
a committee duly designated by the Board of Directors (in which designation
directors who are parties may participate), consisting solely of two (2) or
more directors not at the time parties to the proceeding;
(3) By special legal counsel (i) selected by the Board of
Directors or its committee in the manner prescribed in Section 12.4(1) or
12.4(2) of this Section, or (ii) if a quorum of the Board of Directors cannot
be obtained and a committee cannot be designated or selected by majority vote
of the full Board of Directors (in which selection directors who are parties
may participate); or
(4) By the Shareholders, but shares owned by or voted
under the control of directors, who are at the time parties to the proceeding,
may not be voted on the determination.
12.5 Advancement of Expenses. Expenses incurred in defending a
civil or criminal action, suit, or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit, or proceeding if (1)
he or she furnishes the Corporation written affirmation of his or her good
faith belief that he or she has met the standard of conduct set forth in
Section 12.1 and (2) he or she furnishes the Corporation a written undertaking
to repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Section or
otherwise pursuant to the laws of Georgia.
12.6 Rights Cumulative. The indemnification and advancement of
expenses provided or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, agreement, vote of
disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office. Any
indemnification, whether
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required under this Bylaw or permitted by statute or otherwise, shall continue
as to a person who has ceased to be a director, officer, or employee and shall
inure to the benefit of the heirs, executors, and administrators of such
person.
12.7 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this article.
12.8 Notice of Payments. If any expenses or other amounts are paid
by way of indemnification, otherwise than by court order or by an insurance
carrier pursuant to insurance maintained by the Corporation, not later than the
next annual meeting of shareholders, unless such meeting is held within three
(3) months from the date of' such payment, and in any event, within fifteen
(15) months from the date of such payment, shall send in accordance with the
manner specified in the Official Code of Georgia Annotated Section 14-2-705 to
its shareholders of record a statement specifying the persons paid, the amounts
paid, and the nature and status at the time of such payment of the litigation
or threatened litigation.
12.9 Binding on Successors. For purposes of this Article Twelve,
references to "the Corporation" shall include, in addition to the surviving or
new corporation, any merging or consolidating corporation (including any
merging or consolidating corporation of a merging or consolidating corporation)
absorbed in a merger or consolidation so that any person who is or was a
director, officer, employee or agent of such merging or consolidating
corporation, or is or was serving at the request of such merging or
consolidating corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article Twelve with respect
to the resulting or surviving corporation as he or she would if he or she had
served the resulting or surviving corporation in the same capacity.
ARTICLE THIRTEEN
BUSINESS COMBINATIONS
13.1 Fair Price Statute. Effective as of July 28, 1993, the
provisions of the Georgia Business Corporation Code's Fair Price Statute
(Sections 14-2-1110 to 14-2-1113) shall apply to the Corporation.
13.2 Business Combination Statute. Effective as of July 28, 1993,
the provisions of the Georgia Business Corporation Code's Business Combination
Statute (Sections 14-2-1131 to 14-2-1133) shall apply to the Corporation.
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EXHIBIT 3.3
The following resolution was adopted by the Board of Directors of
Allied Holdings, Inc. effective March 21, 2000:
RESOLVED, that the By-laws of the Corporation are hereby amended by
deleting in its entirety Article Ten thereof and renumbering the remaining
Articles and Sections of the By-laws accordingly.
<PAGE> 2
AMENDED BYLAWS
OF
ALLIED HOLDINGS, INC.
EFFECTIVE AS OF MARCH 21, 2000
ARTICLE ONE
OFFICES
1.1 Offices. The Corporation may have offices at such place or places
(within or without the State of Georgia) as the Board of Directors may from time
to time determine or the business of the Corporation may require or make
desirable.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
2.1 Place of Meetings. All meetings of the Shareholders shall be held
at the principal offices of the Corporation, or at such other place as may be
determined from time to time by the Board of Directors.
2.2 Annual Meetings. The annual meeting of the Shareholders shall be
held each year on a date and at a time determined by the Board of Directors of
the Corporation, at which the Shareholders shall elect, by a majority vote of
the outstanding common stock, subject to the rights, if any, of the holders of
preferred stock, a Board of Directors and transact such other business as may
properly be brought before the meeting.
2.3 Special Meetings. Special meetings of the Shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or the Articles of
Incorporation, may be called by the Board of Directors, the Chairman or the
Chief Executive Officer of the Corporation, or at the request in writing of
Shareholders owning not less than sixty-six and two-thirds percent (66.67%) of
the outstanding shares of the Corporation entitled to vote in an election of
directors. Such request shall state the purpose or purposes of the proposed
meeting.
2.4 Notice. Except as otherwise required by statute or the Articles of
Incorporation, written notice of each meeting of the Shareholders, whether
annual or special, shall be served, either personally or by mail, upon each
Shareholder of record entitled to vote at such meeting, no fewer than ten (10)
nor more than sixty (60) days before such meeting. If mailed, such notice shall
be directed to a Shareholder at his post office address last shown on the
records of the Corporation. Notice of any special meeting of Shareholders shall
state the purpose or purposes for which the meeting is called. Notice of any
meeting of Shareholders shall not be required to be given to any Shareholder
who, in person or by such Shareholder's attorney so authorized, either before or
after such meeting, shall waive such notice. Attendance of a Shareholder at a
meeting, either in person or by proxy, shall of itself constitute waiver of
notice and waiver of any and all objections to the place of the meeting, the
time of the meeting, and the manner in which it has been called or convened,
except when a Shareholder attends a meeting solely for the purpose
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of stating, at the beginning of the meeting, any such objection or objections to
the transaction of business. Notice of any adjourned meeting need not be given
otherwise than by announcement at the meeting at which the adjournment is taken.
2.5 Quorum of Shareholders. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Shareholders for the transaction of business, except as otherwise provided by
law, by the Articles of Incorporation, or by these Bylaws. If, however, such
majority shall not be present or represented at any meeting of the Shareholders,
the Shareholders entitled to vote thereat, present in person or by proxy, shall
have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until the requisite amount of voting stock
shall be present. At such adjourned meeting at which a quorum shall be present
in person or by proxy, any business may be transacted that might have been
transacted at the meeting as originally called.
2.6 Voting and Proxy. At every meeting of the Shareholders, including
(but without limiting the generality of the foregoing language) meetings of
Shareholders for the election of directors, any Shareholder having the right to
vote shall be entitled to vote in person or by proxy, but no proxy shall be
voted after eleven (11) months from its date, unless said proxy provides for a
longer period (but no proxy shall be of unlimited duration). Each Shareholder
shall have one (1) vote for each share of stock having voting power, registered
in such Shareholder's name on the books of the Corporation. If a quorum is
present, the affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
Shareholders, except as otherwise provided by law, by the Articles of
Incorporation or by these Bylaws.
2.7 Action Taken by Shareholders Without a Meeting. Whenever the vote
of Shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action, the meeting and vote of the shareholders
may be dispensed with, if all of the shareholders who would have been entitled
to vote upon the action if such meeting were held shall consent in writing to
such corporate action being taken.
2.8 Proposed Actions. Any proposal for action to be presented by any
Shareholder at any annual or special meeting of shareholders, other than a
nomination for director which must be made in accordance with Section 3.5 of
these Bylaws, shall be out of order unless specifically described in the
Corporation's notice to all Shareholders of the meeting and the matters to be
acted upon thereat, or unless the proposal shall have been submitted in writing
to the Secretary of the Corporation and received at the principal executive
offices of the Corporation at least sixty (60) days prior to the date of the
annual or special meeting regarding such proposal, and such proposal is, under
law, an appropriate subject for shareholder action.
2.9 Inspectors. Before any meeting of Shareholders, the Board of
Directors shall appoint one or more persons, other than nominees for office,
directors or Shareholders, to act as inspector(s) of election at the meeting or
its adjournment. An inspector may be an officer or employee of the Corporation.
If any person appointed as inspector fails to appear or fails or
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refuses to act, the chairman of the meeting shall appoint a person to fill that
vacancy. The inspector shall:
(a) Ascertain the number of shares outstanding and the voting
power of each;
(b) Determine the shares represented at a meeting;
(c) Determine the validity of proxies and ballots;
(d) Count all votes;
(e) Determine the result; and
(f) Make a written report of his or her findings.
ARTICLE THREE
DIRECTORS
3.1 Powers of Directors. Except as may be otherwise provided by any
legal agreement among Shareholders, the property and business of the Corporation
shall be managed by its Board of Directors. In addition to the powers and
authority expressly conferred upon the Board of Directors by these Bylaws, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law, by any legal agreement among
Shareholders, by the Articles of Incorporation or by these Bylaws directed or
required to be exercised or done by the Shareholders.
3.2 Number of Directors, Election and Term. The number of members of
the Board of Directors of the Corporation shall be eleven (11) directors, unless
a greater or lesser number of directors shall be fixed from time to time by the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66.67%) of the outstanding shares of common stock entitled to vote for the
election of directors or upon the affirmative vote of a majority of the Board of
Directors, subject to the rights, if any, of the holders of preferred stock then
outstanding. The directors shall be divided into three (3) classes as nearly
equal in number as possible, with the directors in each class to hold office
until their successors are elected and qualified. Any increase or decrease in
the number of directors shall be so apportioned among the classes as to make all
classes as nearly equal in number as possible. At each annual meeting of
shareholders of the Corporation, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a three (3) year
term.
3.3 Vacancies. Any vacancy in the Board of Directors resulting from the
death, resignation or retirement of a director, or any other cause other than an
increase in the number of directors, shall be filled by a majority vote of the
remaining directors, though less than a quorum, for a term corresponding to the
unexpired term of the new director's predecessor in office. When the number of
directors is increased and any newly created directorships are filled by the
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Board of Directors, the terms of the additional directors shall expire at the
next election of directors by the shareholders.
3.4 Removal. Any or all of the directors of the Corporation may be
removed from office by the shareholders at any annual or special meeting of
Shareholders of the Corporation, the notice of which shall state that the
removal of a director or directors is among the purposes of the meeting, but
only for cause, by the affirmative vote of at least sixty-six and two-thirds
percent (66.67%) of the outstanding shares of common stock of the Corporation,
subject to the rights, if any, of the holders of preferred stock then
outstanding.
3.5 Nominations. Subject to the rights, if any, of the holders of
preferred stock then outstanding, only persons who are nominated in accordance
with the following provisions shall be eligible for election as directors:
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of Shareholders by or at the direction of the Board of
Directors, by any nominating committee or person appointed by the Board of
Directors, or by any Shareholder of the Corporation entitled to vote for the
election of directors at the meeting of Shareholders who complies with the
notice procedures set forth in this Section 3.5. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a Shareholder's notice must be delivered to, or mailed and received at,
the principal executive offices of the Corporation not less than sixty (60) days
prior to the scheduled annual meeting of Shareholders, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than sixty (60) days' notice or prior public
disclosure of the date of the scheduled annual meeting of Shareholders is given
or made, notice by the Shareholder, to be timely, must be so delivered or
received not later than the close of business on the tenth (10th) day following
the earlier of the day on which such notice of the date of the scheduled annual
meeting of Shareholders was mailed or the day on which such public disclosure
was made. A Shareholder's notice to the Secretary shall set forth, as to each
person whom the Shareholder proposes to nominate for election or reelection as a
director, the following:
3.5.1 the name, age, business address and residence address of the
person;
3.5.2 the principal occupation or employment of the person;
3.5.3 the class and number of shares of stock of the Corporation
which are beneficially owned by the person; and
3.5.4 any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to Rule 14a under the Securities Exchange Act of 1934, as amended.
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A Shareholder's notice to the Secretary shall also set forth, as to the
Shareholder giving the notice:
(i) the name and address, as they appear on the Corporation's
books, of the Shareholder; and
(ii) the class and number of shares of the Corporation's stock
which are beneficially owned by the Shareholder on the date of such Shareholder
notice.
3.6 Determination of Validity of Nominations. The Corporation may
require any nominee under Section 3.5 of these Bylaws to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as director of the Corporation.
The presiding officer of the annual meeting shall determine and declare at the
annual meeting whether a nomination was made in accordance with the terms of
Section 3.5. If the presiding officer determines the nomination was not made in
accordance with the terms of Section 3.5, he or she shall so declare at the
annual meeting and any such defective nomination shall be disregarded.
3.7 Qualifications. Directors shall be natural persons of the age of
eighteen (18) or over. Directors need not be residents of the State of Georgia
or shareholders of the Corporation.
3.8 Place of Meetings. The Board of Directors may hold its meetings at
such place or places (within or without the State of Georgia) as it may from
time to time determine.
3.9 Compensation of Directors. Directors shall be paid such
compensation for attendance at regular or special meetings of the Board of
Directors and of any special or standing committees thereof as may, from time to
time, be determined by resolution of the Board of Directors.
ARTICLE FOUR
COMMITTEES
4.1 Executive Committee. The Board of Directors may, by resolution
adopted by a majority of the entire Board, designate an Executive Committee of
two (2) or more directors.
4.1.1 Each member of the Executive Committee shall hold office until
the first meeting of the Board of Directors after the annual meeting of
Shareholders next following such member's election and until such member's
successor member of the Executive Committee is elected, or until such member's
death, resignation or removal, or until such member shall cease to be a
director.
4.1.2 During the intervals between the meetings of the Board of
Directors, the Executive Committee may exercise all of the powers of the Board
of Directors in the management of the business affairs of the Corporation,
including all powers herein or in the Articles of Incorporation specifically
granted to the Board of Directors, and may authorize the
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seal of the Corporation to be affixed to all papers which may require it;
provided, however, that the Executive Committee shall not have the power to
amend or repeal any resolution of the Board of Directors that by its terms shall
not be subject to amendment or repeal by the Executive Committee, and the
Executive Committee shall not have the authority of the Board of Directors in
reference to (1) amending the Articles of Incorporation or Bylaws of the
Corporation; (2) adopting a plan of merger or consolidation; (3) the sale,
lease, exchange or other disposition of all or substantially all of the property
and assets of the Corporation; or (4) a voluntary dissolution of the Corporation
or a revocation of any such voluntary dissolution.
4.1.3 The Executive Committee shall meet from time to time on call
of the Chairman, Chief Executive Officer or of any two (2) or more members of
the Executive Committee. Meetings of the Executive Committee may be held at such
place or places, within or without the State of Georgia, as the Executive
Committee shall determine or as may be specified or fixed in the respective
notices or waivers of such meetings. The Executive Committee may fix its own
rules of procedure, including provision for notice of its meetings. It shall
keep a record of its proceedings and shall report these proceedings to the Board
of Directors at the meeting thereof held next after they have been taken, and
all such proceedings shall be subject to revision or alteration by the Board of
Directors except to the extent that action shall have been taken pursuant to or
in reliance upon such proceedings prior to any such revision or alteration.
4.1.4 The Executive Committee shall act by majority vote of its
members.
4.1.5 The Board of Directors, by resolution adopted in accordance
with Section 4.1 of this Article, may designate one (1) or more directors as
alternate members of any such committee, who may act in the place and stead of
any absent member or members at any meeting of such committee.
4.2 Other Committees. The Board of Directors, by resolution adopted by
a majority of the entire Board, may designate one (1) or more additional
committees, each committee to consist of three (3) or more of the directors of
the Corporation, which shall have such name or names and shall have and may
exercise such powers of the Board of Directors in the management of the business
and affairs of the Corporation, except the powers denied to the Executive
Committee, as may be determined from time to time by the Board of Directors.
4.3 Board of Director Control of Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board, shall have power at any
time to remove any member of any committee, with or without cause, and to fill
vacancies in and to dissolve any such committee.
ARTICLE FIVE
MEETINGS OF THE BOARD OF DIRECTORS
5.1 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place (within or without the State of
Georgia) as shall from time to time be determined by the Board of Directors.
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5.2 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman or Chief Executive Officer on not less than two (2) days
notice, given, in accordance with Section 9.1 of these Bylaws, to each director
and shall be called by the Chairman, Chief Executive Officer or the Secretary in
like manner and on like notice on the written request of any two (2) or more
directors. Any such special meeting shall be held at such time and place (within
or without the State of Georgia) as shall be stated in the notice of meeting.
5.3 Notice Need Not State Purpose. No notice of any meeting of the
Board of Directors need state the purposes thereof.
5.4 Meetings via Conference Telephone or Similar Communications
Equipment. Any meeting, regular or special, may be held by conference telephone,
electronic video screen communication or other communications equipment, if (1)
each member participating in the meeting can communicate with all of the other
members concurrently, and (2) each member is provided the means of participating
in all matters before the Board of Directors, including without limitation the
capacity to propose, or to interpose an objection to, a specific action to be
taken by the Corporation. Participation in a meeting as permitted by this
Section 5.4 shall constitute presence in person at such meeting.
5.5 Quorum and Voting. At all meetings of the Board of Directors, the
presence of a majority of the number of directors in office shall be necessary
and sufficient to constitute a quorum for the transaction of business. The act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by law, by the Articles of Incorporation or by these
Bylaws. In the absence of a quorum a majority of the directors present at any
meeting may adjourn the meeting from time to time until a quorum of directors
shall be present. Notice of any adjourned meeting need only be given by
announcement at the meeting at which the adjournment is taken.
5.6 Action Taken By Directors Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if, prior to such action, a
written consent thereto is signed by all members of the Board or of such
committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the Board or committee.
ARTICLE SIX
OFFICERS
6.1 Enumeration. The Board of Directors at its first meeting after each
annual meeting of Shareholders shall appoint the following officers: a Chairman,
one or more Vice Chairmen, a President, a Secretary and a Treasurer. In
accordance with the terms and conditions set forth in the succeeding sections of
this Article Six, one of such officers shall be designated Chief Executive
Officer and one shall be designated Chief Operating Officer. The Board of
Directors at any time and from time to time may appoint such other officers as
it shall deem necessary or desirable, including, without limitation, one or more
Vice Presidents (one or more of whom may be designated Executive Vice President
and one or more of whom may be
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designated Senior Vice President), one or more Assistant Vice Presidents, one or
more Assistant Treasurers, and one or more Assistant Secretaries, who shall hold
their offices for such terms as shall be determined by the Board of Directors
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors. The Chief Executive Officer may
appoint one or more Assistant Secretaries or Assistant Treasurers, from time to
time, for administrative convenience, who shall have a term expiring at the next
annual election of officers and who shall have such duties as shall be specified
by the Chief Executive Officer.
6.2 Qualifications. Any person may hold any two or more offices. No
officer needs to be a shareholder.
6.3 Compensation. The salaries of the officers of the Corporation shall
be fixed by the Board of Directors based on the advice of the Compensation
Committee, except that the Board of Directors may delegate to any officer or
officers the power to fix the compensation of any officer appointed in
accordance with the second sentence of Section 6.1 of these Bylaws.
6.4 Term. Each officer of the Corporation shall hold office until his
successor is chosen or until his earlier resignation, death or removal, or the
termination of his office. Any officers may be removed by a majority vote of the
Board of Directors whenever in its judgment the best interest of the Corporation
will be served thereby.
6.5 Chairman. The Corporation shall have a Chairman who shall call
meetings of the Shareholders, the Board of Directors and the Executive Committee
to order and shall act as chairman of such meetings. The Chairman shall also be,
ex officio, a member of all standing committees, unless otherwise provided in
the resolution appointing the same; shall serve as adviser to the officers of
the Corporation at the request of the Board of Directors; and, shall have such
other duties and powers as may, from time to time, be delegated by the Board of
Directors. In the absence or disability of the Chief Executive Officer, or in
the event of, and during the period of, a vacancy in such office, the Chairman
shall also be the Chief Executive Officer.
6.6 Vice Chairman. The Corporation shall have one or more Vice
Chairmen, the exact number of whom shall be determined from time to time by the
Board of Directors. Each Vice-Chairman shall report to the Chief Executive
Officer of the Corporation and shall have such duties and powers as may, from
time to time, be delegated by the Chief Executive Officer or the Board of
Directors.
6.7 Chief Executive Officer. The Board of Directors shall designate
either the Chairman or one of the Vice-Chairmen to be the Chief Executive
Officer of the Corporation. The Chief Executive Officer shall, subject to the
provisions of these Bylaws and to the discretion of the Board of Directors, have
ultimate authority for decisions relating to the general management and control
of the affairs and business of the Corporation and shall have all duties and
powers commonly incident to the position of Chief Executive Officer or which
are, or from time to time may be, delegated to him by the Board of Directors or
which are or may at any time be authorized or required by law. He shall be, ex
officio, a member of all standing committees, unless otherwise provided in the
resolution appointing the same. He may redelegate from time to time and to the
full extent permitted by law, in writing, to officers or employees of the
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Corporation any or all of such duties and powers, and any such redelegation may
be either general or specific. Whenever he shall so delegate any of his
authority, he shall file a copy of the redelegation with the Secretary of the
Corporation. In the absence or disability of the Chairman, or in the event of,
and during the period of, a vacancy in such office, the Chief Executive Officer
shall perform the duties of the Chairman.
6.8 President. The Corporation shall have a President, who shall be the
chief operating officer of the Corporation (the "Chief Operating Officer") and
shall have such duties and powers as shall, from time to time, be determined by
the Chief Executive Officer.
6.9 Vice Presidents. The Vice Presidents shall have such duties and
powers as the Chief Executive Officer or Chief Operating Officer shall request
or delegate. One or more Vice Presidents may be designated, by the Board of
Directors, Executive Vice President, Senior Vice President or such other
distinguishing designation as may be deemed desirable which may reflect
seniority, duties or responsibilities of such Vice President; each such Vice
President shall have such additional duties and powers as are prescribed by the
Chief Executive Officer, Chief Operating Officer or Board of Directors. The
Assistant Vice Presidents shall have such powers and duties as may be prescribed
from time to time by the Chief Executive Officer.
6.10 Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the Shareholders and record all votes and the
minutes of all proceedings in books to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, any notice required to be given of any
meetings of the Shareholders and of the Board of Directors, and in general,
shall perform all the duties incident to the office of a secretary to a
corporation, and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer, under whose supervision the Secretary
shall be. The Secretary shall keep in safe custody the seal of the Corporation
and, when authorized by the Board of Directors or the Chief Executive Officer,
shall affix the seal to any instrument requiring it and by his or her signature
attest the seal or shall cause the signature of the Treasurer to attest the
seal. The Assistant Secretary or Assistant Secretaries shall, in the absence or
disability of the Secretary, or at his or her request, perform the Secretary's
duties and powers.
6.11 Treasurer. The Treasurer shall be the Chief Financial Officer of
the Corporation and shall have charge of and be responsible for all funds,
securities, receipts and disbursements of the Corporation, and shall deposit, or
cause to be deposited, in the name of the Corporation, all monies or other
valuable effects, in such banks, trust companies or other depositories as shall,
from time to time, be selected by the Board of Directors. The Treasurer shall
render to the Chief Executive Officer and the Board of Directors, whenever
requested, an account of the financial condition of the Corporation, and in
general, shall perform all the duties incident to the office of a treasurer of a
corporation, and such other duties as may be assigned to him or her by the Board
of Directors or the Chief Executive Officer, under whose supervision the
Treasurer shall be. The Assistant Treasurer or Assistant Treasurers shall, in
the absence or disability of the Treasurer, or at his or her request, perform
the Treasurer's duties and exercise the Treasurer's duties and powers.
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6.12 Delegation of Duties. In case of the absence of any officer of the
Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may delegate, for the time being, any or all
of the duties or powers of such officer to any other officer or to any director.
ARTICLE SEVEN
CAPITAL STOCK
7.1 Certificates for Shares. The interest of each Shareholder shall be
evidenced by a certificate or certificates representing shares of stock of the
Corporation, which shall be in such form as the Board of Directors may from time
to time adopt and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall exhibit the holder's
name, the number of shares and class of shares and series, if any, represented
thereby, a statement that the Corporation is organized under the laws of the
State of Georgia, and, if applicable, the par value of each share or a statement
that the shares are without par value. Each certificate shall be signed by the
Chief Executive Officer and the Secretary or the Treasurer and shall be sealed
with the seal of the Corporation; provided, however, that where such certificate
is signed by a transfer agent, or by a transfer clerk acting on behalf of the
Corporation and a registrar, the signature of any such officer, and such seal,
may be facsimile. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be delivered as though the person
or persons who signed such certificate or certificates or whose facsimile
signatures shall have been used thereon had not ceased to be such officer or
officers.
7.2 Shareholders List. The Corporation shall keep a record of the
Shareholders of the Corporation which readily shows, in alphabetical order or by
alphabetical index, the names of the Shareholders entitled to vote, with the
addresses of and the number of shares held by each. Said record shall be
presented at all meetings of the Shareholders.
7.3 Transfer of Shares of Stock. Transfers of stock shall be made on
the books of the Corporation only by the person named in the certificate, or by
attorney lawfully constituted in writing, and upon surrender of the certificate
therefor, or in the case of a certificate alleged to have been lost, stolen or
destroyed, upon compliance with the provisions of Section 7.8 of these Bylaws.
7.4 Closing of Stock Transfer Books. For the purpose of determining
Shareholders entitled to notice of or to vote at any meeting of Shareholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of Shareholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books shall be closed for
a stated period not to exceed sixty (60) days. If the stock transfer books shall
be closed for the purpose of determining Shareholders entitled to notice of or
to vote at a meeting
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of shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
7.5 Record Date. In lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date as the record date for any such
determination of Shareholders, such date to be not more than sixty (60) days,
and in case of a meeting of Shareholders, not less than ten (10) days, prior to
the date on which the particular action, requiring such determination of
shareholders, is to be taken.
7.6 Reliance. The Corporation shall be entitled to treat the holder of
any share of stock of the Corporation as the person entitled to vote such share,
to receive any dividend or other distribution with respect to such share, and
for all other purposes and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.7 Transfer Agent and Registrar. The Board of Directors may appoint
one (1) or more transfer agents and one(1) or more registrars and may require
each stock certificate to bear the signature or signatures of a transfer agent
or a registrar, or both.
7.8 Lost Certificates. Any person claiming a certificate of stock to be
lost, stolen or destroyed shall make a written affidavit or written affirmation
of the fact in such manner as the Board of Directors may require and shall, if
the directors so require, give the Corporation a bond of indemnity in form and
amount and with one (1) or more sureties satisfactory to the Board of Directors,
whereupon an appropriate new certificate may be issued in lieu of the one
alleged to have been lost, stolen or destroyed.
ARTICLE EIGHT
MISCELLANEOUS
8.1 Books and Records. The Board of Directors shall have power to
determine which accounts and books of the Corporation, if any, shall be open to
the inspection of Shareholders, except such as may by law be specifically open
to inspection, and shall have power to fix reasonable rules and regulations not
in conflict with the applicable law for the inspection of accounts and books
which by law or by determination of the Board of Directors shall be open to
inspection, and the Shareholders' rights in this respect are and shall be
restricted and limited accordingly.
8.2 Fiscal Year. The fiscal year of the Corporation shall end on a day
and date to be determined by the Board of Directors.
8.3 Corporate Seal. The corporate seal shall be in such form as the
Board of Directors may from time to time determine.
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ARTICLE NINE
NOTICES AND WAIVER OF NOTICE
9.1 Notice to Shareholders. Except as otherwise specifically provided
in these Bylaws, whenever under the provisions of these Bylaws notice is
required to be given to any shareholder, it shall not be construed to mean
personal notice, but such notice may be given either by personal notice or by
cable or telegraph, or by mail by depositing the same in the post office or
letter box in a postpaid sealed wrapper, or by overnight courier service,
addressed to such Shareholder, at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
9.2 Notice to Directors, Officers or Committee Members. Except as
otherwise specifically provided in these Bylaws, whenever under the provisions
of these Bylaws notice is required to be given to any director, officer, or
committee member, it shall not be construed to mean personal notice, but such
notice may be given either by personal notice or by cable, telegraph, facsimile,
telephone, electronic mail message or by mail by depositing the same in the post
office or letter box in a postpaid sealed wrapper, or by overnight courier
service, addressed to such officer, director or committee member at such address
as appears on the books of the Corporation, and such notice shall be deemed to
be given at the time when the same shall be thus sent or mailed. As used herein,
notice by telephone shall be deemed to include a voice messaging system or other
system or technology designed to record and communicate messages, or wireless,
to the recipient, including the recipient's designated voice mailbox or address
on such a system.
9.3 Waiver. When any notice whatsoever is required to be given by law,
by the Articles of Incorporation or by these Bylaws, a waiver thereof by the
person or persons entitled to said notice given before or after the time stated
therein, in writing, which shall include a waiver given by telegraph, cable,
telecopy or facsimile, shall be deemed equivalent thereto. No notice of any
meeting need be given to any person who shall attend such meeting.
ARTICLE TEN
AMENDMENTS
10.1 Amendments by Directors or Shareholders. The authority to make,
amend, alter, change or repeal the Bylaws of the Corporation is hereby expressly
and solely granted to and vested in the Board of Directors of the Corporation
with any such amendment to be adopted by majority vote of the Board of
Directors, subject always to the power of shareholders to make, amend, alter,
change or repeal the Bylaws of the Corporation by the affirmative vote of
holders of sixty-six and two-thirds percent (66.67%) of the outstanding shares
of common stock of the Corporation, subject to the rights, if any, of the
holders of preferred stock.
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ARTICLE ELEVEN
INDEMNIFICATION
11.1 Obligation to Indemnify. The Corporation shall indemnify or
obligate itself to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Corporation) by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in a manner he reasonably
believed in good faith to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not meet the standard of conduct set forth
above. Indemnification permitted under this Section in connection with a
proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
11.2 Authority to Indemnify for Expenses. Under the circumstances
prescribed in Section 11.3, the Corporation shall have the power to indemnify
and hold harmless any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Superior Court or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of the liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Superior Court or such other court shall deem proper.
11.3 Expenses. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in Sections 11.1 or 11.2,
or in defense of any claim, issue, or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
11.4 Standards of Conduct. Except as provided in Section 11.3 and
except as may be ordered by the court, the Corporation may not indemnify a
director, officer, employee or agent under Section 11.1 or Section 11.2 unless
authorized thereunder and a determination has been
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made in the specific case that indemnification of the director, officer,
employee or agent is permissible under the circumstances because he or she has
met the standard of conduct set forth in Section 11.1. The determination shall
be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceedings;
(2) If a quorum cannot be obtained, by a majority vote of a
committee duly designated by the Board of Directors (in which designation
directors who are parties may participate), consisting solely of two (2) or more
directors not at the time parties to the proceeding;
(3) By special legal counsel (i) selected by the Board of
Directors or its committee in the manner prescribed in Section 11.4(1) or
11.4(2) of this Section, or (ii) if a quorum of the Board of Directors cannot be
obtained and a committee cannot be designated or selected by majority vote of
the full Board of Directors (in which selection directors who are parties may
participate); or
(4) By the Shareholders, but shares owned by or voted under
the control of directors, who are at the time parties to the proceeding, may not
be voted on the determination.
11.5 Advancement of Expenses. Expenses incurred in defending a civil or
criminal action, suit, or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit, or proceeding if (1) he or she
furnishes the Corporation written affirmation of his or her good faith belief
that he or she has met the standard of conduct set forth in Section 11.1 and (2)
he or she furnishes the Corporation a written undertaking to repay such amount
if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Section or otherwise
pursuant to the laws of Georgia.
11.6 Rights Cumulative. The indemnification and advancement of expenses
provided or granted pursuant to this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any statute, agreement, vote of disinterested
directors, or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office. Any indemnification,
whether required under this Bylaw or permitted by statute or otherwise, shall
continue as to a person who has ceased to be a director, officer, or employee
and shall inure to the benefit of the heirs, executors, and administrators of
such person.
11.7 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this article.
15
<PAGE> 16
11.8 Notice of Payments. If any expenses or other amounts are paid by
way of indemnification, otherwise than by court order or by an insurance carrier
pursuant to insurance maintained by the Corporation, not later than the next
annual meeting of shareholders, unless such meeting is held within three (3)
months from the date of' such payment, and in any event, within fifteen (15)
months from the date of such payment, shall send in accordance with the manner
specified in the Official Code of Georgia Annotated Section 14-2-705 to its
shareholders of record a statement specifying the persons paid, the amounts
paid, and the nature and status at the time of such payment of the litigation or
threatened litigation.
11.9 Binding on Successors. For purposes of this Article Eleven,
references to "the Corporation" shall include, in addition to the surviving or
new corporation, any merging or consolidating corporation (including any merging
or consolidating corporation of a merging or consolidating corporation) absorbed
in a merger or consolidation so that any person who is or was a director,
officer, employee or agent of such merging or consolidating corporation, or is
or was serving at the request of such merging or consolidating corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the
provisions of this Article Eleven with respect to the resulting or surviving
corporation as he or she would if he or she had served the resulting or
surviving corporation in the same capacity.
ARTICLE TWELVE
BUSINESS COMBINATIONS
12.1 Fair Price Statute. Effective as of July 28, 1993, the provisions
of the Georgia Business Corporation Code's Fair Price Statute (Sections
14-2-1110 to 14-2-1113) shall apply to the Corporation.
12.2 Business Combination Statute. Effective as of July 28, 1993, the
provisions of the Georgia Business Corporation Code's Business Combination
Statute (Sections 14-2-1131 to 14-2-1133) shall apply to the Corporation.
16
<PAGE> 1
EXHIBIT 4.3
$230,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
among
ALLIED HOLDINGS, INC.
and
ALLIED SYSTEMS (CANADA) COMPANY
and
The Lending Institutions Listed on Schedule 1.1 hereto
and
BANKBOSTON, N.A., AS ADMINISTRATIVE AGENT,
and
ABN AMRO BANK N.V., AS DOCUMENTATION AGENT
and
BANK ONE, NA, AS CO-AGENT
and
BANK OF AMERICA, N. A., AS CO-AGENT
and
THE BANK OF NOVA SCOTIA, AS CANADIAN AGENT
dated as of January 20, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C> <C>
ss.1. DEFINITIONS.............................................................. 1
ss.2. THE CREDIT FACILITIES.................................................... 28
ss.2.1. Commitment to Lend.......................................... 28
ss.2.1.1. Domestic Loans................................... 28
ss.2.1.2. Canadian Revolving Credit Loans.................. 29
ss.2.1.3. Limitation on Borrowings......................... 29
ss.2.2. Termination; Reduction of Commitments....................... 29
ss.2.3. Reallocation of Commitments................................. 31
ss.2.4. The Notes................................................... 33
ss.2.5. Interest on Revolving Credit Loans.......................... 34
ss.2.6. Procedure for Borrowing..................................... 34
ss.2.7. Interest Rate Conversion Options............................ 35
ss.2.8. Optional Prepayments of Revolving Credit Loans.............. 36
ss.2.9. Mandatory Prepayments of Loans.............................. 36
ss.2.10. Funds for Loans............................................. 38
ss.2.11. Maturity of the Loans....................................... 39
ss.2.12. The Domestic Swing Line Loans............................... 39
ss.2.13. The Canadian Swing Line Loans............................... 42
ss.3. LETTERS OF CREDIT........................................................ 45
ss.3.1. Letters of Credit........................................... 45
ss.3.2. Effects of Drawings......................................... 46
ss.3.3. Letter of Credit Loan Obligations Absolute.................. 46
ss.3.4. Obligations of the Banks.................................... 47
ss.4. BANKERS' ACCEPTANCES..................................................... 48
ss.4.1. Acceptance and Purchase..................................... 48
ss.4.2. Refunding Bankers' Acceptances.............................. 51
ss.4.3. Acceptance Fee.............................................. 51
ss.4.4. Circumstances Making Bankers' Acceptances
Unavailable................................................. 52
ss.5. FEES..................................................................... 52
ss.5.1. Commitment Fee.............................................. 52
ss.5.2. Letter of Credit Fee........................................ 52
ss.5.3. Closing Fee................................................. 53
ss.5.4. Administrative Agent's Fee.................................. 53
ss.6. CERTAIN GENERAL PROVISIONS............................................... 53
ss.6.1. Payments.................................................... 53
ss.6.2. Computations................................................ 53
ss.6.3. Interest Rate Upon Event of Default......................... 54
</TABLE>
<PAGE> 3
-ii-
<TABLE>
<S> <C> <C> <C>
ss.6.4. Interest Limitation......................................... 54
ss.6.5. Capital Adequacy............................................ 54
ss.6.6. Additional Costs, Etc....................................... 55
ss.6.7. Bank Certificates........................................... 56
ss.6.8. Payments to be Free of Deductions........................... 57
ss.6.9. Inability to Determine Eurodollar Rate...................... 57
ss.6.10. Illegality.................................................. 57
ss.6.11. Indemnity................................................... 58
ss.6.12. Currency of Payment......................................... 58
ss.6.13. Currency Fluctuations....................................... 58
ss.6.14. Replacement of Banks........................................ 59
ss.7. SECURITY AND GUARANTIES.................................................. 60
ss.8. REPRESENTATIONS AND WARRANTIES........................................... 62
ss.8.1. Existence and Good Standing, Etc............................ 62
ss.8.2. Power; Consents; Absence of Conflict with
Other Agreements, Etc....................................... 62
ss.8.3. Binding Effect of Documents................................. 63
ss.8.4. Title to Properties......................................... 63
ss.8.5. Financial Statements and Projections........................ 64
ss.8.6. No Material Changes, Etc.................................... 65
ss.8.7. Litigation.................................................. 65
ss.8.8. No Materially Adverse Contracts, Etc........................ 65
ss.8.9. Compliance with Other Instruments, Laws, Etc................ 65
ss.8.10. Tax Status.................................................. 66
ss.8.11. Employee Benefit Plans...................................... 66
ss.8.12. Location of Office.......................................... 67
ss.8.13. Business.................................................... 67
ss.8.14. Disclosure.................................................. 68
ss.8.15. Title and Registration...................................... 68
ss.8.16. Capitalization.............................................. 68
ss.8.17. Holding Company and Investment Company Acts................. 68
ss.8.18. Certain Transactions........................................ 69
ss.8.19. Operating Rights............................................ 69
ss.8.20. Material Contracts.......................................... 69
ss.8.21. Environmental Compliance.................................... 70
ss.8.22. Collateral.................................................. 71
ss.8.23. No Default.................................................. 71
ss.8.24. Insurance................................................... 71
ss.8.25. Subordinated Debt Documents................................. 72
ss.8.26. Use of Proceeds............................................. 72
ss.8.27. Perfection of Security Interests............................ 73
ss.8.28. Bank Accounts............................................... 73
ss.8.29. Senior Notes................................................ 73
</TABLE>
<PAGE> 4
-iii-
<TABLE>
<S> <C> <C> <C>
ss.9. CLOSING CONDITIONS....................................................... 73
ss.9.1. Delivery of Loan Documents; Payment of Fees................. 73
ss.9.2. Representations and Warranties.............................. 74
ss.9.3. Performance; No Default..................................... 74
ss.9.4. Requisite Action............................................ 74
ss.9.5. Proceedings and Documents................................... 74
ss.9.6. Opinions of Counsel......................................... 74
ss.9.7. Banking Law Requirements.................................... 75
ss.9.8. Delivery of Charter and Other Documents..................... 75
ss.9.9. Security Documents.......................................... 75
ss.9.10. Perfection Certificates and UCC Search Results.............. 75
ss.9.11. Borrowing Base Certificate.................................. 76
ss.9.12. Other Indebtedness.......................................... 76
ss.9.13. Commercial Finance Examination.............................. 76
ss.9.14. Capital Structure........................................... 76
ss.9.15. No Material Adverse Change.................................. 76
ss.9.16. No Litigation............................................... 76
ss.9.17. Consents and Approvals...................................... 77
ss.10. CONDITIONS OF SUBSEQUENT BORROWINGS...................................... 77
ss.10.1. Representations and Warranties.............................. 77
ss.10.2. Performance; No Default..................................... 77
ss.11. AFFIRMATIVE COVENANTS.................................................... 77
ss.11.1. Punctual Payment............................................ 78
ss.11.2. Maintenance of Office....................................... 78
ss.11.3. Records and Accounts........................................ 78
ss.11.4. Financial Statements, Certificates and Information.......... 78
ss.11.5. Business and Legal Existence................................ 80
ss.11.6. Compliance with Laws, Contracts, Licenses and Permits....... 80
ss.11.7. Payment of Taxes............................................ 81
ss.11.8. Maintenance of Property..................................... 81
ss.11.9. Insurance................................................... 81
ss.11.10. Inspection of Properties and Books.......................... 81
ss.11.11. Title and Registration...................................... 82
ss.11.12. Notice of Material Claims and Litigation.................... 82
ss.11.13. Funding of Pension Plans.................................... 82
ss.11.14. Copies of Pension Plan Reports.............................. 82
ss.11.15. Notice of Termination....................................... 83
ss.11.16. Payment of Pension Benefits................................. 83
ss.11.17. Operating Rights............................................ 83
ss.11.18. Environmental Compliance.................................... 84
ss.11.19. Line of Business............................................ 84
ss.11.20. Further Assurances.......................................... 84
ss.11.21. Commercial Finance Examinations............................. 84
</TABLE>
<PAGE> 5
-iv-
<TABLE>
<S> <C> <C> <C>
ss.11.22. Notice of Default........................................... 84
ss.12. NEGATIVE COVENANTS....................................................... 84
ss.12.1. Indebtedness................................................ 84
ss.12.2. Liens....................................................... 87
ss.12.3. Investments................................................. 88
ss.12.4. Distributions............................................... 91
ss.12.5. Merger, Consolidation or Sale of Assets; Acquisitions....... 91
ss.12.6. No Leasebacks............................................... 93
ss.12.7. Leases; Leases with Affiliates.............................. 93
ss.12.8. Consolidated Cash Flow Ratio................................ 93
ss.12.9. Consolidated Net Worth...................................... 94
ss.12.10. Funded Debt to EBITDA Ratio................................. 94
ss.12.11. Capital Expenditures........................................ 94
ss.12.12. Senior Debt and Motor Vehicle Operating Lease
Obligations to EBITDA and Rental Expense Ratio.............. 95
ss.12.13. Transactions with Affiliates................................ 95
ss.12.14. Subordinated Debt........................................... 95
ss.12.15. Senior Notes................................................ 96
ss.12.16. Negative Pledges............................................ 96
ss.13. EVENTS OF DEFAULT; ACCELERATION; ETC..................................... 97
ss.13.1. Events of Default and Acceleration.......................... 97
ss.13.2. Termination of Commitments.................................. 100
ss.14. NOTICE AND WAIVERS OF DEFAULT............................................ 101
ss.14.1. Notice of Default........................................... 101
ss.14.2. Waivers of Default.......................................... 101
ss.15. REMEDIES ON DEFAULT, ETC................................................. 101
ss.15.1. Rights of Banks............................................. 101
ss.15.2. Setoff...................................................... 101
ss.15.3. Distribution of Collateral Proceeds......................... 102
ss.16. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION............................ 103
ss.16.1. Sharing of Information with Section 20 Subsidiary........... 103
ss.16.2. Confidentiality............................................. 103
ss.16.3. Prior Notification.......................................... 104
ss.16.4. Other....................................................... 104
ss.17. THE AGENTS............................................................... 104
ss.17.1. Authorization............................................... 104
ss.17.2. Employees and Agents........................................ 105
ss.17.3. No Liability................................................ 105
ss.17.4. No Representations.......................................... 105
ss.17.5. Payments.................................................... 106
</TABLE>
<PAGE> 6
-v-
<TABLE>
<S> <C> <C> <C>
ss.17.6. Holders of Notes............................................ 107
ss.17.7. Indemnity................................................... 107
ss.17.8. Agents as Banks; Documentation Agent; Co-Agents............. 108
ss.17.9. Resignation; Removal........................................ 108
ss.17.10. Notification of Defaults and Events of Default.............. 108
ss.18. ASSIGNMENT AND PARTICIPATION............................................. 109
ss.18.1. Conditions to Assignment by Banks........................... 109
ss.18.2. Certain Representations and Warranties;
Limitations; Covenants...................................... 109
ss.18.3. Register.................................................... 110
ss.18.4. Restated Notes.............................................. 110
ss.18.5. Participations............................................. 111
ss.18.6. Disclosure.................................................. 111
ss.18.7. Assignee or Participant Affiliated with the Borrower........ 112
ss.18.8. Miscellaneous Assignment Provisions......................... 112
ss.18.9. Assignment by Borrower...................................... 112
ss.19. EXPENSES ................................................................ 112
ss.20. SURVIVAL OF COVENANTS, ETC............................................... 113
ss.21. NOTICES ................................................................ 114
ss.22. MISCELLANEOUS............................................................ 115
ss.23. ENTIRE AGREEMENT, ETC.................................................... 115
ss.24. CONSENTS, AMENDMENTS, WAIVERS, ETC....................................... 115
ss.25. WAIVER AND RELEASE....................................................... 116
ss.26. TERMINATION.............................................................. 117
ss.27. INDEMNIFICATION.......................................................... 117
ss.28. CANADIAN GUARANTY........................................................ 118
ss.29. GOVERNING LAW............................................................ 122
ss.30. WITHHOLDING TAXES........................................................ 122
ss.31. PARI PASSU TREATMENT..................................................... 125
ss.32. TRANSITIONAL ARRANGEMENTS................................................ 126
</TABLE>
<PAGE> 7
-vii-
LIST OF EXHIBITS AND SCHEDULES
Exhibits:
Exhibit E-1 Form of Opinion of Borrower's Counsel
Exhibit E-2 Form of Opinion of Borrower's Canadian Counsel
Exhibit F Form of Compliance Certificate
Exhibit H Form of Guaranty
Schedules:
Schedule 1.1 Banks; Commitments; Commitment Percentages;
Domestic Lending Offices; Eurodollar Lending Offices
Schedule 1.2 Depreciation Schedule
Schedule 1.3 Management Group
Schedule 1.4 Existing Letters of Credit
Schedule 8.1 Qualifications to do Business
Schedule 8.2 Conflicts
Schedule 8.5(a) Financial Statements
Schedule 8.6 Changes
Schedule 8.7 Litigation
Schedule 8.10 Taxes
Schedule 8.12 Chief Executive Offices
Schedule 8.13 Business
Schedule 8.15 Re-registrations
Schedule 8.16(a) Subsidiaries of the Borrower
Schedule 8.16(b) Subsidiaries of the Borrower's Subsidiaries
Schedule 8.18 Certain Transactions
Schedule 8.19(a) Operating Rights
Schedule 8.19(b) Canadian Operating Authorizations
Schedule 8.20 Material Contracts
Schedule 8.21 Hazardous Substances
Schedule 8.24 Insurance
Schedule 8.27 Perfection of Security Interest
Schedule 8.28 Bank Accounts
Schedule 12.1 Existing Indebtedness
Schedule 12.2 Existing Liens
Schedule 12.3 Existing Investments
<PAGE> 8
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of
January 20, 2000, is among ALLIED HOLDINGS, INC. (the "Borrower"), a Georgia
corporation having its principal place of business at 160 Clairemont Avenue,
Suite 510, Decatur, Georgia 30030, ALLIED SYSTEMS (CANADA) COMPANY (f/k/a Auto
Haulaway Inc., a corporation organized under the laws of Ontario, having its
principal place of business at 4320 Harvester Road, Burlington, Ontario L7L 5S4
(together with its successors, the "Canadian Borrower"), BANKBOSTON, N.A.
("BKB") and the other lending institutions identified as Banks herein, BKB, as
administrative agent for itself and the other Banks (the "Administrative
Agent"), ABN AMRO BANK, N.V., as Documentation Agent (the "Documentation
Agent"), BANK ONE, NA (f/k/a The First National Bank of Chicago), as co-agent
("BANKONE") and BANK OF AMERICA, N.A. (f/k/a NationsBank, N.A.) (together with
BANKONE, the "Co-Agents"), and The BANK OF NOVA SCOTIA, as the Canadian Agent
(the "Canadian Agent").
WHEREAS, the Borrower, the Canadian Borrower, the Banks, the
Administrative Agent, the Documentation Agent, the Co-Agents, and the Canadian
Agent are parties to that certain Revolving Credit Agreement, dated as of
September 30, 1997 (as heretofore amended, the "Existing Credit Agreement"),
pursuant to which the Banks have, among other things, extended credit to the
Borrower and the Canadian Borrower, and
WHEREAS, the Borrower and the Canadian Borrower have requested that the
Banks, the Administrative Agent, the Documentation Agent, the Co-Agents, and the
Canadian Agent amend and restate the Existing Credit Agreement upon the terms
and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree that, on and as of the
Effective Date (defined below), the Existing Credit Agreement shall be amended
and restated as set forth herein.
SS.1. DEFINITIONS. (a) The following terms shall have the meanings
assigned to them below in this ss.1 or in the provisions of this Agreement or
the Exhibits and the Schedules hereto referred to below:
"AAGI" - Allied Automotive Group, Inc., a Georgia corporation and a
wholly-owned Subsidiary of the Borrower.
"Acceptance Fee" - see ss.4.3.
"Adjustment Date" - the first day of the month immediately following
the month in which a Compliance Certificate is delivered by the Borrower
pursuant to ss.11.4(e) hereof.
<PAGE> 9
-2-
"Administrative Agent" - see the preamble.
"Administrative Agent's Fee" - as defined in the Fee Letter.
"Administrative Agent's Special Counsel" - Bingham Dana LLP, or such
other counsel as may be approved by the Administrative Agent.
"Affected Bank" - see ss.6.14.
"Affiliate" - any Person that would be considered to be an affiliate of
another Person under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if such other Person
were issuing securities.
"Agents" - the Administrative Agent and the Canadian Agent.
"Agreement" - this Amended and Restated Revolving Credit Agreement,
with all Exhibits and Schedules hereto, as originally executed, or if this
Revolving Credit Agreement is amended, restated or supplemented from time to
time, as so amended, restated or supplemented.
"AH" - AH Industries Inc., an Alberta corporation and a wholly-owned
Subsidiary of the Borrower.
"Allied Systems" - Allied Systems, Ltd. (L.P.), a Georgia limited
partnership of which AAGI is the managing general partner and of which any one
or more of the Borrower or its wholly-owned Subsidiaries which is a Guarantor is
a general partner.
"Applicable Acceptance Fee Rate" - at any time, the rate per annum
equal to the Applicable Margin with respect to Eurodollar Rate Loans.
"Applicable BA Discount Rate" - with respect to any Bankers' Acceptance
being purchased by a Canadian Bank on any day, the average Bankers' Acceptance
discount rate for the term of such Bankers' Acceptance as quoted on Reuters
Service Page CDOR at or about 10:00 a.m. (Toronto, Ontario time) on such day.
"Applicable Margin" - for each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable percentage
set forth below with respect to the Borrower's Funded Debt Ratio, as determined
at the end of the fiscal quarter of the Borrower and its Subsidiaries ending
immediately prior to the applicable Rate Adjustment Period:
<PAGE> 10
-3-
<TABLE>
<CAPTION>
EURODOLLAR RATE
BASE RATE LOANS LOANS AND LETTER COMMITMENT FEE
LEVEL FUNDED DEBT RATIO OF CREDIT FEES
<S> <C> <C> <C> <C>
I Greater than or equal to 4.0 to 1.00 1.25% 2.50% 0.50%
II Less than 4.0 to 1.00 and greater 1.00% 2.25% 0.50%
than or equal to 3.50 to 1.00
III Less than 3.50 to 1.00 and greater 0.75% 2.00% 0.50%
than or equal to 3.00 to 1.00
IV Less than 3.00 to 1.00 and greater 0.50% 1.75% 0.375%
than or equal to 2.75 to 1.00
V Less than 2.75 to 1.00 and greater 0.25% 1.50% 0.375%
than or equal to 2.50 to 1.00
V Less than 2.50 to 1.00 0% 1.25% 0.375%
</TABLE>
Notwithstanding the foregoing, (a) if the Borrower fails to deliver any
Compliance Certificate pursuant to ss.11.4(e) hereof, then for the period
commencing on the first day of the month immediately following the date such
Compliance Certificate was due through the date immediately preceding the
Adjustment Date that occurs immediately following the date on which such
Compliance Certificate is delivered, the Applicable Margin shall be that
percentage corresponding to Level I in the table above; and (b) in the event
that the Borrower shall, at any time, receive Net Cash Proceeds from the sale of
equity securities in an amount in excess of $20,000,000, then the Borrower may
deliver a pro forma Compliance Certificate to the Administrative Agent and the
Banks, based on the most recently ended fiscal quarter for which financial
statements have been prepared and giving effect to such issuance of equity
securities, and the Applicable Margin shall be subject to adjustment as of the
first day of the calendar month immediately succeeding the date such Compliance
Certificate is delivered to the Administrative Agent and the Banks.
"Assignment and Acceptance" - see ss.18 hereof.
"Axis" - Axis International, Inc., a Georgia corporation and a
wholly-owned Subsidiary of the Borrower.
"BA Discount Proceeds" - with respect to any Bankers' Acceptance to be
accepted and purchased by a Canadian Bank, an amount (rounded to the nearest
whole Canadian cent, and with one-half of one Canadian cent being rounded up)
calculated on such day by multiplying (a) the face amount of such Bankers'
Acceptance times (b) the quotient equal to (such quotient being
<PAGE> 11
-4-
rounded up or down to the nearest fifth decimal place and .000005 being rounded
up) (i) one divided by (ii) the sum of (A) one plus (B) the product of (1) the
Applicable BA Discount Rate (expressed as a decimal) applicable to such Bankers'
Acceptance times (2) the quotient equal to (aa) the number of days remaining in
the term of such Bankers' Acceptance divided by (bb) 365.
"Balance Sheet Date" - December 31, 1998.
"Bankers' Acceptance" - a bill of exchange denominated in Canadian
Dollars drawn on, and accepted by, a Canadian Bank pursuant to ss.4 hereof.
"Bankers' Acceptance Notice" - see ss.4.1.
"Banks" - collectively, the Domestic Banks, the Canadian Banks, the
Swing Line Banks and the Letter of Credit Bank.
"Base Rate Loans" - collectively, the Canadian Base Rate Loans and the
Domestic Base Rate Loans.
"BKB" - see the preamble.
"Borrower" - see the preamble.
"Borrowing" - a borrowing hereunder consisting of the making of a
Revolving Credit Loan, a Swing Line Loan, the issuance of a Letter of Credit or
the purchase and acceptance of a Bankers' Acceptance.
"Borrowing Base Amount" - as at any date of determination, an amount,
determined by the Administrative Agent by reference to the most recent Borrowing
Base Certificate, which is equal to the sum of (a) 80% of the Net Receivables
Value, plus (b) 80% of the Net Equipment Value of all Borrowing Base Equipment.
For purposes of determining the Borrowing Base Amount, assets which are valued
in Canadian Dollars shall be converted to a value in United States Dollars at an
exchange rate of $0.75 United States Dollars for each Canadian Dollar, provided
that if the actual exchange rate on the date of any Borrowing Base Certificate
(as quoted in The Wall Street Journal) equals or exceeds $0.80 United States
Dollars for each Canadian Dollar or is less than or equal to $0.70 United States
Dollars for each Canadian Dollar, then such assets shall be valued on such date
using the actual exchange rate in effect for such date.
"Borrowing Base Certificate" - see ss.11.4(e) hereof.
"Borrowing Base Equipment" - Motor Vehicle Equipment in which the
Borrower or any of the Guarantors has title and in which the Administrative
Agent has a first priority perfected lien and security interest or, as to Motor
<PAGE> 12
-5-
Vehicle Equipment of any Person acquired pursuant to a Permitted Acquisition,
with respect to which all Indebtedness secured by such Motor Vehicle Equipment
has been repaid in full in connection with such Permitted Acquisition and
arrangements reasonably satisfactory to the Administrative Agent in all respects
have been made for the termination of record of all liens on and security
interests in such Motor Vehicle Equipment and all steps have been taken to
perfect a first priority lien and security interest in favor of the
Administrative Agent.
"Business Day" - when used in connection with (a) a Domestic Loan, a
Domestic Business Day; (b) a Eurodollar Rate Loan, a Eurodollar Business Day;
and (c) a Canadian Revolving Credit Loan or a Bankers' Acceptance, a Canadian
Business Day.
"Canadian Agent" - as defined in the introductory paragraph hereof.
"Canadian Banks" - the Banks which shall have agreed to make Canadian
Revolving Credit Loans to the Canadian Borrower and to purchase and accept
Bankers' Acceptances, as evidenced by such Bank having a positive figure beside
its name in the column titled "Canadian Commitment" on Schedule 1.1 hereto, as
such Schedule may be updated from time to time.
"Canadian Base Rate" - (a) with respect to a Canadian Swing Line Loan,
the greater of (i) the annual rate of interest announced from time to time by
the Canadian Swing Line Bank as its prime commercial rate then in effect for
determining interest rates for commercial loans made in Canadian Dollars by the
Canadian Swing Line Bank in Canada and (ii) the average rate for 30 day Canadian
Dollar bankers' acceptances as quoted on Reuters Screen CDOR Page at 10:00 a.m.
(Toronto time) on the Drawdown Date thereof plus 0.75% per annum and (b) with
respect to a Canadian Revolving Credit Loan, the greater of (i) the annual rate
of interest announced from time to time by the Canadian Agent as its prime
commercial rate then in effect for determining interest rates for commercial
loans made in Canadian Dollars by the Canadian Agent in Canada and (ii) the
average rate for 30 day Canadian Dollar bankers' acceptances as quoted on
Reuters Screen CDOR Page at 10:00 a.m. (Toronto time) on the Drawdown Date
thereof plus 0.75% per annum.
"Canadian Base Rate Loans" - Canadian Loans bearing interest calculated
by reference to the Canadian Base Rate.
"Canadian Borrower" - see preamble.
"Canadian Business Day" - any day other than a Saturday, Sunday, or any
day on which banking institutions in Toronto, Ontario, Canada, Boston,
Massachusetts or New York, New York are authorized or required by law to be
closed.
<PAGE> 13
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"Canadian Commitment" - with respect to each Canadian Bank, the amount
set forth on Schedule 1.1 hereto (as such Schedule may be updated from time to
time) as the amount of such Canadian Bank's commitment to make Canadian
Revolving Credit Loans to and to accept Bankers' Acceptances for, the Canadian
Borrower, as the same may be reduced or increased from time to time, pursuant to
ss.ss.2.2, 2.3 or 2.9 hereof; or if such commitment is terminated pursuant to
ss.ss.2.2 or 13.2 hereof, zero.
"Canadian Commitment Fee" - see ss.5.1 hereof.
"Canadian Commitment Percentage" - with respect to each Canadian Bank,
the percentage set forth on Schedule 1.1 hereto, as such Schedule may be updated
from time to time, as such Canadian Bank's percentage of the Total Canadian
Commitment.
"Canadian Dollar Equivalent" - with respect to an amount of U.S.
Dollars on any date, the amount of Canadian Dollars that may be purchased with
such amount of U.S. Dollars at the Exchange Rate with respect to U.S. Dollars on
such date.
"C$ or Canadian Dollars" - dollars in lawful currency of Canada.
"Canadian Guaranty" - the guaranty by the Borrower set forth in ss.28
hereof of the Canadian Borrower's obligations in respect of Canadian Swing Line
Loans, Canadian Revolving Credit Loans and Bankers' Acceptances.
"Canadian Loans" - collectively, the Canadian Revolving Credit Loans
and the Canadian Swing Line Loans.
"Canadian Plans" - see ss.8.11 hereof.
"Canadian Revolving Credit Loan(s)" - collectively, revolving credit
loans made to the Canadian Borrower by the Canadian Banks pursuant to ss.2.1.2
hereof.
"Canadian Revolving Credit Note" - see ss.2.4.
"Canadian Security Documents" - collectively, (i) the several General
Security Agreements, each dated as of the Original Closing Date, entered into
between, respectively, the Canadian Borrower and the other Canadian Subsidiaries
(other than AH) and the Administrative Agent, (ii) the several Hypothec on
Movables agreements, each dated as of the Original Closing Date, entered into
between, respectively, the Canadian Borrower and the other Canadian Subsidiaries
(other than AH) and the Administrative Agent, (iii) the several Debenture
agreements, each dated as of the Original Closing Date,
<PAGE> 14
-7-
entered into between, respectively, the Canadian Borrower and the other Canadian
Subsidiaries (other than AH) and the Administrative Agent, and (iv) the several
Assignment of Book Debts agreements, each dated as of the Original Closing Date,
entered into between, respectively, the Canadian Borrower and the other Canadian
Subsidiaries (other than AH) and the Administrative Agent.
"Canadian Subsidiaries" - each Subsidiary (direct and indirect,
existing on the date hereof or acquired or formed hereafter in accordance with
the provisions hereof) of the Borrower which is incorporated under the laws of
Canada or a political subdivision thereof.
"Canadian Swing Line Bank" - The Bank of Nova Scotia.
"Canadian Swing Line Loan" - any loan made by the Canadian Swing Line
Bank pursuant to ss.2.13 hereof.
"Canadian Swing Line Note" - see ss.2.13 hereof.
"Capital Assets" - fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such as patents,
trademarks, copyrights, franchises and goodwill), provided that capital assets
shall not include any Investment permitted pursuant to ss.12.3 hereof or any
item customarily charged directly to expense or depreciated over a useful life
of 12 months or less in accordance with Generally Accepted Accounting
Principles.
"Capital Expenditures" - for any period, amounts paid or Indebtedness
(including, without limitation, Indebtedness in respect of Operating Lease
Obligations (determined at the time of each initiation or extension of each
Rental Agreement), other than Operating Lease Obligations arising from the lease
of the Borrower's headquarters at 160 Clairemont Avenue, Decatur, Georgia 30030)
incurred or assumed by the Borrower or any of its Subsidiaries or for which any
of such Persons becomes liable in connection with the purchase or lease by the
Borrower or any of its Subsidiaries of Capital Assets during such period, but
not including the aggregate of all amounts paid (whether in cash, stock or a
combination thereof), all Indebtedness assumed by the Borrower or any of its
Subsidiaries in connection with a Permitted Acquisition and any fees, expenses
and transaction costs incurred in connection with such Permitted Acquisition
which would be required to be capitalized in accordance with Generally Accepted
Accounting Principles.
"CERCLA" - see ss.8.21 hereof.
"Co-Agent(s)" - see the preamble.
<PAGE> 15
-8-
"Collateral" - all of the property rights and interests of the Borrower
and its Subsidiaries that are, or are intended pursuant to this Agreement and
the Security Documents to be, subject to the security interests created by the
Security Documents.
"Commercial Finance Examination" - an examination by employees, agents
or consultants of the Administrative Agent of the assets of the Borrower and its
Subsidiaries which, without limiting the generality of the foregoing, may
include a review of the Borrower's books and records and the books and records
of the Borrower's Subsidiaries.
"Commitment(s)" - with respect to any Bank, its Domestic Commitment
and/or Canadian Commitment.
"Commitment Fee" - the Domestic Commitment Fee and/or the Canadian
Commitment Fee.
"Commitment Percentage" - with respect to each Bank, the percentage set
forth beside its name on Schedule 1.1 hereto, as such Bank's percentage of the
Total Commitment.
"Compliance Certificate" - see ss.11.4(e) hereof.
"Consolidated" or "consolidated" - with reference to any term used in
this Agreement, the relevant figures for the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with Generally Accepted Accounting
Principles.
"Consolidated Cash Flow" - for any fiscal period of the Borrower, an
amount equal to the remainder of (a) Consolidated EBITDA for such period, minus
(b) Capital Expenditures of the Borrower and its Subsidiaries during such
period, provided that for purposes of calculating the Consolidated Cash Flow
Ratio for any period, there shall be deducted from the actual amount of Capital
Expenditures for such period (i) an amount equal to the aggregate amount of Net
Cash Proceeds received by the Borrower and its Subsidiaries from the sale of
Capital Assets during such period, and (ii) Capital Expenditures consisting of
Operating Lease Obligations incurred in such period.
"Consolidated Cash Flow Ratio" - for any period, the ratio of (a) the
Consolidated Cash Flow for such period to (b) the aggregate amount of
Consolidated Interest Charges for such period, each as determined in accordance
with Generally Accepted Accounting Principles.
"Consolidated EBITDA" - for any fiscal period of the Borrower, an
amount equal to the sum of (a) Consolidated Net Income for such period, plus
<PAGE> 16
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(b) interest expense of the Borrower and its Subsidiaries for such period, plus
(c) without duplication, all prepayment penalties, make-whole amounts and
similar prepayment fees incurred in connection with any repayment, prepayment,
redemption, retirement, or repurchase of the Subordinated Debt or the Senior
Notes pursuant to ss.ss.12.14 or 12.15, to the extent such costs are paid from
the proceeds of the sale of equity securities used to repay such Subordinated
Debt or Senior Notes, as the case may be, plus (d) the aggregate amount of
income tax expense of the Borrower and its Subsidiaries deducted in the
calculation of Consolidated Net Income for such period, plus (e) the aggregate
amount of consolidated depreciation and amortization of the Borrower and its
Subsidiaries deducted in the calculation of Consolidated Net Income for such
period, minus (f) to the extent included in the calculation of Consolidated Net
Income for such period, interest income of the Borrower and its Subsidiaries for
such period, minus (g) with respect to any income of a non-wholly-owned
Subsidiary which is included in the calculation of Consolidated Net Income, and
to the extent so included, if the ability of such Subsidiary to distribute all
or a portion of such income to the Borrower or a Guarantor is restricted
(whether by contract, law, constitutive document or otherwise) an amount equal
to the amount of income so restricted, minus (h) to the extent included in the
calculation of Consolidated Net Income for such period, income of any Person
which is not a Subsidiary of the Borrower for such period to the extent such
income has not actually been distributed to the Borrower or a Guarantor.
"Consolidated Funded Indebtedness" - as at any date of determination,
an amount equal to the sum (without duplication) of (a) the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis, related to the borrowing of money or in respect of capitalized leases,
plus (b) the Maximum Drawing Amount of all Letters of Credit and any other
letters of credit outstanding (other than the Haul Insurance L/Cs so long as
such letters of credit are not guaranteed by the Borrower or any of its other
Subsidiaries), plus (c) all Indebtedness guaranteed by the Borrower and its
Subsidiaries, less (d) the amount of cash and cash equivalents (other than cash
or cash equivalents of Non-Guarantor Subsidiaries, including, without
limitation, Haul Insurance) reflected on the consolidated balance sheet of the
Borrower and its Subsidiaries as at such date in excess of $3,000,000, in each
case as determined in accordance with Generally Accepted Accounting Principles.
"Consolidated Interest Charges" - for any fiscal period, the remainder
of (a) the consolidated expenses of the Borrower and its Subsidiaries paid or
accrued for such period for interest (including the finance charges applicable
to capitalized leases) on Indebtedness (including the current portion thereof),
as determined in accordance with Generally Accepted Accounting Principles, minus
(b) non-cash interest expense of the Borrower and its Subsidiaries accrued
during such period, minus (c) interest income of the Borrower and its
<PAGE> 17
-10-
Subsidiaries during such period, minus (d) to the extent included in the
calculation of interest expense for such period, all prepayment penalties,
make-whole amounts and similar prepayment fees incurred in connection with any
repayment, prepayment, redemption, retirement, or repurchase of the Subordinated
Debt or the Senior Notes pursuant to ss.ss.12.14 or 12.15, to the extent such
costs are paid from the proceeds of the sale of equity securities used to repay
such Subordinated Debt or Senior Notes, as the case may be.
"Consolidated Net Income" - the consolidated net income of the Borrower
and its Subsidiaries for any period as determined in accordance with Generally
Accepted Accounting Principles.
"Consolidated Net Worth" - with respect to the Borrower and its
Subsidiaries, the remainder of (a) all assets of the Borrower and its
Subsidiaries on a consolidated basis which are properly classified as assets in
accordance with Generally Accepted Accounting Principles, minus (b) all
liabilities of the Borrower and its Subsidiaries on a consolidated basis which
are properly classified as liabilities in accordance with Generally Accepted
Accounting Principles. For purposes of the calculation of Consolidated Net Worth
hereunder there shall be disregarded (i) the foreign currency translation
adjustment component of shareholders' equity made in accordance with Financial
Accounting Standards Board Statement No. 52 and (ii) any adjustments to
shareholders' equity as a result of any unrealized gains or losses resulting
from hedging obligations in accordance with Financial Accounting Standards Board
Statement No. 80.
Consolidated Rental Expense. For any period, the consolidated rental
expense of the Borrower and its Subsidiaries for such period under Rental
Agreements for trucks, trailers, tractors, service vehicles, automobiles (other
than automobiles leased for employee use), tires, and all related equipment and
accessions that have an initial term of one year or longer.
"Conversion Request" - a notice given by the Borrower or the Canadian
Borrower to the appropriate Agent of the Borrower's or the Canadian Borrower's
election to convert or continue a Loan in accordance with ss.2.7 hereof.
"Consolidated Revenues" - for any fiscal period, the consolidated
revenues of the Borrower and its Subsidiaries as determined in accordance with
Generally Accepted Accounting Principles.
"Consolidated Senior Debt" - as at any date of determination, an amount
equal to the sum (without duplication) of the aggregate amount of Indebtedness
of the Borrower and its Subsidiaries, determined on a consolidated basis,
related to the borrowing of money or in respect of capitalized leases, plus (a)
the Maximum Drawing Amount of all Letters of Credit and any other letters of
<PAGE> 18
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credit outstanding (other than the Haul Insurance L/Cs so long as such letters
of credit are not guaranteed by the Borrower or any of its other Subsidiaries),
minus (b) the aggregate amount of such Indebtedness consisting of guarantees,
endorsements and other contingent liabilities, whether direct or indirect, in
respect of Indebtedness of others, minus (c) the amount of cash and cash
equivalents (other than cash or cash equivalents of Non-Guarantor Subsidiaries,
including, without limitation, Haul Insurance) reflected on the consolidated
balance sheet of the Borrower and its Subsidiaries as at such date in excess of
$3,000,000, in each case as determined in accordance with Generally Accepted
Accounting Principles, minus (d) the aggregate amount of such Indebtedness
consisting of the Senior Notes and the Subordinated Debt.
"Default(s)" - see ss.13.1 hereof.
"Delinquent Bank" - see ss.17.5 hereof.
"Distribution" - the declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of any Person, other than
dividends payable solely in shares of common stock of such Person; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
any Person, directly or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by any Person to its shareholders as such; or
any other distribution on or in respect of any shares of any class of capital
stock of any Person.
"Documentation Agent" - see preamble.
"Dollar Equivalent" - with respect to an amount of Canadian Dollars on
any date, the amount of U.S. Dollars that may be purchased with such amount of
Canadian Dollars at the Exchange Rate applicable to Canadian Dollars on such
date.
"Domestic Bank(s)" - the Banks that shall have agreed to make Domestic
Loans to the Borrower and to participate in the risk associated with Canadian
Swing Line Loans and Letters of Credit, as evidenced by such Bank having a
positive figure beside its name in the column titled "Domestic Commitment" on
Schedule 1.1 hereto, as such Schedule may be updated from time to time.
"Domestic Base Rate" - for any day, a fluctuating rate per annum
(rounded upwards, if necessary, to the next 1/8 of 1%) equal to the greater of
(a) the rate of interest announced from time to time by the Administrative Agent
at its Head Office as its "base rate", as in effect on such day, or (b) the
Federal Funds Effective Rate in effect on such day plus 1/2%. "Federal Funds
Effective Rate" shall mean, for any day, a fluctuating interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as
<PAGE> 19
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published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
For purposes of this Agreement, any change in the Domestic Base Rate due to a
change in the Administrative Agent's "base rate" or the Federal Funds Effective
Rate shall be effective on the effective day of such change in the
Administrative Agent's "base rate" or the Federal Funds Effective Rate, as
applicable. If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including, without
limitation, the inability or failure of the Administrative Agent to obtain
sufficient bids or publications in accordance with the terms hereof, the
Domestic Base Rate shall be the Administrative Agent's "base rate" as in effect
at the applicable time until the circumstances giving rise to such inability no
longer exist.
"Domestic Base Rate Loans" - Domestic Loans bearing interest calculated
by reference to the Domestic Base Rate.
"Domestic Business Day" - any day other than Saturday, Sunday, or any
day on which banking institutions in Boston, Massachusetts or New York, New York
are authorized or required by law to be closed.
"Domestic Commitment" - with respect to each Domestic Bank, the amount
set forth on Schedule 1.1 hereto (as such Schedule may be updated from time to
time) as the amount of such Domestic Bank's commitment to make Domestic Loans to
the Borrower and to participate in the risk associated with Canadian Swing Line
Loans and Letters of Credit, as the same may be reduced or increased from time
to time, pursuant to ss.ss.2.2, 2.3 or 2.9 hereof; or if such commitment is
terminated pursuant to ss.ss.2.2 or 13.2 hereof, zero.
"Domestic Commitment Fee" - see ss.5.1 hereof.
"Domestic Commitment Percentage" - with respect to each Domestic Bank,
the percentage set forth on Schedule 1.1 hereto, as such Schedule may be updated
from time to time, as such Domestic Bank's percentage of the Total Domestic
Commitment.
"Domestic Eurodollar Rate" - for any Interest Period with respect to a
Domestic Eurodollar Rate Loan, the rate of interest equal to (a) the rate per
annum at which the Administrative Agent's Eurodollar Lending Office is offered
Dollar deposits two Eurodollar Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office
<PAGE> 20
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are customarily conducted, for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to the
amount of the Domestic Eurodollar Rate Loan to which such Interest Period
applies, divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Rate.
"Domestic Eurodollar Rate Loans" - Domestic Revolving Credit Loans
bearing interest calculated by reference to the Domestic Eurodollar Rate.
"Domestic Lending Office" - initially, the office of each Bank
designated as such in Schedule 1.1 attached hereto; thereafter such other office
of such Bank, if any, that will be making or maintaining Base Rate Loans.
"Domestic Loans" - collectively, the Domestic Revolving Credit Loans
and the Domestic Swing Line Loans.
"Domestic Revolving Credit Loan(s)" - collectively, revolving credit
loans made to the Borrower by the Domestic Banks pursuant toss.2.1.1 hereof.
"Domestic Revolving Credit Note" - see ss.2.4.
"Domestic Subsidiaries" - each Subsidiary (direct and indirect,
existing on the date hereof or acquired or formed hereafter in accordance with
the provisions hereof) of the Borrower which is incorporated under the laws of a
State of the United States of America.
"Domestic Swing Line Bank" - BKB.
"Domestic Swing Line Loan" - any Loan made by the Domestic Swing Line
Bank pursuant to ss.2.12 hereof.
"Domestic Swing Line Note" - see ss.2.12 hereof.
"Drawdown Date" - the date on which any Revolving Credit Loan or Swing
Line Loan is made or is to be made, and the date on which any Revolving Credit
Loan is converted or continued in accordance with ss.2.7 hereof.
"Effective Date" - January 20, 2000.
"Eligible Assignee" - any Qualifying Bank that is (a) a commercial
bank, insurance company, commercial finance company or other financial
institution organized under the laws of the United States or any State thereof
or the District of Columbia or the laws of Canada, and having total assets in
excess of $1,000,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having a net worth of at least $100,000,000,
calculated in
<PAGE> 21
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accordance with Generally Accepted Accounting Principles; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; (d) the central bank of any country which is a member of
the OECD; or (e) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution approved by the Administrative Agent, such approval
not to be unreasonably withheld.
"Environmental Laws" - see ss.8.21 hereof.
"ERISA" - the Employees Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Rate" - for any day with respect to a Domestic
Eurodollar Rate Loan, the maximum rate (expressed as a decimal) at which any
lender which is a member bank of the Federal Reserve System with deposits
exceeding $5,000,000,000 would be required by law to maintain reserves under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D), if such
liabilities were outstanding.
"Eurodollar Business Day" - any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Administrative
Agent in its sole discretion acting in good faith, in the case of Domestic
Eurodollar Rate Loans.
"Eurodollar Lending Office" - initially, the office of each Bank
designated as such in Schedule 1.1 attached hereto; thereafter, such other
office of such Bank, if any, that shall be making or maintaining Eurodollar Rate
Loans.
"Eurodollar Rate Loans" - the Domestic Eurodollar Rate Loans.
"Event(s) of Default" - see ss.13.1 hereof.
"Exchange Rate" - on any day (a) with respect to Canadian Dollars in
relation to U.S. Dollars, the spot rate as quoted by the Canadian Swing Line
Bank as its noon spot rate at which U.S. Dollars are generally offered on such
day for Canadian Dollars at such time and (b) with respect to U.S. Dollars in
relation to Canadian Dollars, the spot rate as quoted by the Administrative
<PAGE> 22
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Agent as its noon spot rate at which Canadian Dollars are generally offered on
such day at such time for U.S. Dollars.
"Existing Credit Agreement" - as defined in the preliminary statements
hereto.
"Existing Letters of Credit" - the letters of credit outstanding on the
Effective Date and listed on Schedule 1.4 attached hereto.
"Fee Letter" - that certain Fee Letter, dated as of January 20, 2000,
between the Borrower and the Administrative Agent, as the same may be amended
and in effect from time to time.
"Foreign Subsidiaries" - each Subsidiary (direct and indirect, existing
on the date hereof or acquired or formed hereafter in accordance with the
provisions hereof) of the Borrower which is incorporated under the laws of a
jurisdiction other than a State of the United States of America.
"Fronting Fee" - see ss.5.2.
"Funded Debt Ratio" - with respect to the Borrower and its
Subsidiaries, as at any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four (4) consecutive fiscal quarters of the Borrower then ending.
"Generally Accepted Accounting Principles"- (i) when used in ss.12
hereof, whether directly or indirectly through reference to a capitalized term
used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower and its Subsidiaries reflected in the financial statements for the
year ended on the Balance Sheet Date, (ii) when used in general, other than as
provided above, means principles that are (A) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time, and (B) consistently applied with
past financial statements of the Borrower and its Subsidiaries adopting the same
principles, provided that in each case referred to in this definition of
"generally accepted accounting principles" a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
"Guaranteed Obligations" - see ss.28(a).
<PAGE> 23
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"Guaranteed Pension Plan" - any pension plan (other than a
Multiemployer Plan) maintained by the Borrower or any entity treated as a single
employer with the Borrower pursuant to ss.414(b) or (c) of the Internal Revenue
Code of 1986, as amended (a "Related Entity"), or to which any of them
contributes, with respect to which the Borrower or any Related Entity is
required to pay plan termination insurance premiums to the Pension Benefit
Guaranty Corporation.
"Guarantor(s)" - collectively, all of and, individually, each of, the
Borrower's Subsidiaries which have executed and delivered a Guaranty or which
have, from and after the Effective Date, executed and delivered a guaranty
pursuant to the terms of ss.7(c) hereof.
"Guaranties, Guaranty" - see ss.7(b) hereof.
"Haul Insurance" - Haul Insurance Limited, a Cayman Islands corporation
doing business as an insurance company regulated by the laws of the Cayman
Islands.
"Haul Insurance L/Cs" - letters of credit issued for the account of
Haul Insurance.
"Hazardous Substances" - see ss.8.21 hereof.
"Head Office" - when used in connection with (a) the Administrative
Agent, the Administrative Agent's head office located in Boston, Massachusetts,
or at such other location as the Administrative Agent may designate from time to
time and (b) the Canadian Agent, such location as the Canadian Agent may
designate from time to time.
"Indebtedness" - all obligations, contingent and otherwise, which in
accordance with Generally Accepted Accounting Principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including, without limitation, in any event and
whether or not so classified: (a) all debt and similar monetary obligations,
whether direct or indirect; (b) all liabilities secured by any mortgage, pledge,
security interest, lien, charge, or other encumbrance existing on property owned
or acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (c) all guarantees, endorsements and other contingent
obligations, whether direct or indirect, in respect of Indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase Indebtedness, or to assure the
owner of Indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the Indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
<PAGE> 24
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"Independent Accountant(s)" - a firm of independent public accountants
selected by the Board of Directors of the Borrower, which is "independent" as
that term is defined in Rule 2-01 of Regulation S-X promulgated by the
Securities and Exchange Commission.
"Ineligible Securities" - securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
"Intercompany Note" - a demand note in the form of Exhibit B attached
hereto issued by a Guarantor to the order of the Borrower or to the order of AH
and, in the case of each demand note payable to the Borrower, unless endorsed to
AH, pledged by the Borrower to the Administrative Agent, for the benefit of the
Banks, pursuant to the Pledge Agreement.
"Interest Payment Date" - (a) as to any Base Rate Loan, the last day of
the calendar quarter which includes the Drawdown Date thereof; and (b) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (i) three (3)
months or less, the last day of such Interest Period and (ii) more than three
(3) months, the date that is three (3) months from the first day of such
Interest Period and, in addition, the last day of such Interest Period.
"Interest Period" - with respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Loan through the
last day of one of the periods set forth below, as selected by the Borrower in a
Loan Request (A) for any Base Rate Loan the last day of the calendar quarter;
and (B) for any Eurodollar Rate Loan, 7, 14 or 21 days, if available or 1, 2, 3,
or 6 months provided that no more than three (3) Eurodollar Rate Loans with
Interest Periods of 7, 14 or 21 days shall be outstanding at any one time; and
(b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan through the last day of
one of the periods set forth above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall be extended to the next succeeding
Eurodollar Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Eurodollar
Business Day;
<PAGE> 25
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(ii) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(iii) if the Borrower shall fail to give notice as provided in
ss.2.6 hereof, the Borrower shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan to a Base Rate Loan and
the continuance of all Base Rate Loans as Base Rate Loans on the last
day of the then current Interest Period with respect thereto;
(iv) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(v) any Interest Period relating to any Loan that would
otherwise extend beyond the Maturity Date shall end on the Maturity
Date.
"Investments" - the aggregate of all expenditures made and all
liabilities incurred (contingently or otherwise) for the acquisition of stock
(except redemptions or repurchases by a corporation of any shares of its capital
stock) or Indebtedness of, or for loans, advances, capital contributions or
transfers of property to, or in respect of any guarantees (or other commitments
as described under Indebtedness), or obligations of, any Person (including,
without limitation, a joint venture or partnership), except transfers or
deliveries made against receipt of full value in cash or made in the ordinary
course of business. In determining the aggregate amount of Investments
outstanding at any particular time, (a) the amount of any Investment represented
by a guarantee shall be taken at not less than the aggregate amount of the
obligations guaranteed and still outstanding, (b) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid, (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital,
(d) there shall not be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as dividends, interest or
otherwise, except that accrued interest included as provided in the foregoing
clause (b) may be deducted when paid, and (e) there shall not be deducted from
the aggregate amount of Investments any decrease in the value thereof.
"Letter(s) of Credit" - standby letters of credit issued by the Letter
of Credit Bank from time to time for the account of the Borrower, including,
without limitation, the Existing Letters of Credit.
"Letter of Credit Bank" - BKB.
<PAGE> 26
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"Letter of Credit Fee" - see ss.5.2 hereof.
"Loan Documents" - collectively, this Agreement, the Notes, the
Security Documents, the Reimbursement Agreements, the Fee Letter, and any other
instruments or documents required to be delivered pursuant hereto or thereto, in
each case as amended, restated, modified or supplemented and in effect from time
to time.
"Loan Request" - see ss.2.6 hereof.
"Loan(s)" - individually, a Revolving Credit Loan or a Swing Line Loan
and collectively, the Revolving Credit Loans and the Swing Line Loans.
"Majority Banks" - as of any date, Banks holding at least 51% of the
outstanding principal amount of the Notes on such date; and if no such principal
is outstanding, Banks whose Commitment Percentages add up to at least 51%.
"Management Group" - collectively, those Persons (individually, a
"Management Person") listed on Schedule 1.3 attached hereto and each successor
or assignee of a Management Person's interest in the Borrower if such successor
or assignee is also a member of the Permitted Management Class.
As used herein, "Permitted Management Class" means (i) each
Management Person's spouse, descendants and spouses of his or her
descendants, and any trust for the benefit of any one or more of the
foregoing; (ii) any corporation, partnership or limited liability
company in which one or more members of the Management Group owns,
directly or indirectly, fifty-one percent (51%) or more of the voting
equity of such entity; and (iii) any charitable entity which is exempt
from federal income tax, to which contributions are deductible for
federal income tax, to which contributions are not subject to federal
gift tax and to which one or more members of the Management Group
contribute at least twenty-five percent (25%) of the annual
contributions received by such charitable entity and as to which
members of the Management Group and their spouses and descendants
constitute the majority of the trustees and have voting control over
such entities.
"Maturity Date" - September 30, 2002.
"Maximum Canadian Swing Line Loan Amount" - see ss.2.13.
"Maximum Domestic Swing Line Loan Amount" - see ss.2.12.
<PAGE> 27
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"Maximum Drawing Amount" - on the date as of which the maximum drawing
amount is to be determined, the aggregate of the maximum amounts which the
beneficiaries may draw from time to time under Letters of Credit issued for the
account of the Borrower pursuant to ss.3.1 hereof.
"Motor Vehicle Equipment" - all trucks, trailers, tractors, service
vehicles, automobiles, tires, and all related equipment and accessions, and all
prepaid tire inventory, with respect to which the Borrower or any of its
Subsidiaries now or hereafter has full and unencumbered title (except for liens
permitted under ss.ss.12.2 (a) and (d) hereof), which are used or usable by the
Borrower and its Subsidiaries in their business operations.
"Motor Vehicle Operating Lease Obligations" - at any time an amount
equal to the aggregate of all obligations of the Borrower and its Subsidiaries
(determined on consolidated basis for such Persons) under Rental Agreements for
trucks, trailers, tractors, service vehicles, automobiles (other than
automobiles leased for employee use), tires, and all related equipment and
accessions that have an initial term of one year or longer, calculated as an
amount equal to the lesser of (i) the net present value (calculated at a
discount rate of 10%) of the minimum future rental payments due over the term of
all such Rental Agreements which may not be terminated, or (ii) the minimum cost
to terminate (including rental payments applicable to any notice periods) any
such Rental Agreements which may be terminated.
"Multiemployer Plan" - a pension plan as defined inss.3(37) of ERISA to
which the Borrower or any Related Entity contributes.
"Net Cash Proceeds" - if from a sale of assets or of equity by the
Borrower or any of its Subsidiaries, the cash proceeds received from such sale,
net of all costs of sale (other than taxes), underwriting or brokerage costs,
and if from the incurrence of Indebtedness, the cash proceeds received from such
incurrence of Indebtedness, net of all costs thereof incurred and fees and all
expenses payable in connection therewith.
"Net Equipment Value" - with respect to either Borrowing Base Equipment
or Motor Vehicle Equipment, an aggregate amount equal to the net book value of
such equipment, as determined in accordance with Generally Accepted Accounting
Principles applied on a basis consistent with the consolidated balance sheet of
the Borrower and its Subsidiaries as of the Balance Sheet Date and as reported
on each Compliance Certificate delivered to the Banks pursuant to ss.11.4(e)
hereof. All such equipment shall be depreciated no more slowly and to a residual
value no greater than that resulting from the applicable method of depreciation
set forth on Schedule 1.2 attached hereto.
<PAGE> 28
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"Net Receivables Value" - the net amount of Receivables outstanding, as
determined in accordance with Generally Accepted Accounting Principles, after
deducting from the aggregate face amount of Receivables all payments,
adjustments, offsetting accounts payable of a material nature owed to account
debtors, and all credits applicable thereto.
"Non-Guarantor Subsidiaries" - each Subsidiary (direct and indirect) of
the Borrower which has not delivered a Guaranty of the Obligations pursuant to
ss.7 hereof.
"Note Record" - the grid attached to a Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by any Bank with respect to any Loan referred to in such Note.
"Notes" - collectively, the Revolving Credit Notes, the Domestic Swing
Line Note and the Canadian Swing Line Note.
"Obligations" - all indebtedness, obligations and liabilities of the
Borrower and the Canadian Borrower to the Agents and the Banks, existing on the
date of this Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred (i) under this Agreement, (ii) in respect of
Loans made, Letters of Credit, Bankers' Acceptances and the Notes or other
instruments at any time evidencing any thereof and (iii) in respect of any
foreign exchange or derivative arrangements entered into among the Borrower
and/or the Canadian Borrower and any Agent or Bank.
"Officer's Certificate" - a certificate signed by the President, the
Treasurer, the Chief Financial Officer, the Senior Vice President or the
Assistant Treasurer of the Person on whose behalf the certificate is executed.
"Operating Lease Obligations" - at any time an amount equal to the
aggregate of all obligations under Rental Agreements that (a) have an initial
term of one year or longer and (b) call for annual rental or lease payments of
$10,000 or more, in each case calculated as an amount equal to the lesser of (i)
the net present value (calculated at a discount rate of 10%) of the minimum
future rental payments due over the term of all such Rental Agreements which may
not be terminated, or (ii) the minimum cost to terminate (including rental
payments applicable to any notice periods) any such Rental Agreements which may
be terminated.
"Original Closing Date" - September 30, 1997.
<PAGE> 29
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"Partnership Agreement" - the Agreement of Limited Partnership of
Allied Systems, as such Agreement of Limited Partnership is in effect from time
to time.
"Partnership Certificate" - the Certificate of Limited Partnership of
Allied Systems filed in either the Office of the Secretary of State of the State
of Georgia or the office of the Clerk of DeKalb County, as required by law, on
June 7, 1988, as such Certificate of Limited Partnership is in effect from time
to time.
"Patent Security Agreements" - collectively, the several Patent
Collateral Assignment and Security Agreements, each dated as of the Original
Closing Date, between, respectively, the Borrower, certain other Subsidiaries
party thereto and the Administrative Agent, and each other Patent Collateral
Assignment and Security Agreement executed after the Original Closing Date
pursuant to which the Borrower or any of its Subsidiaries grants a security
interest in its patents and related rights to the Administrative Agent, for the
benefit of the Banks.
"Pension Benefit Guaranty Corporation" - the Pension Benefit Guaranty
Corporation created by Section 4002 of ERISA and any successor entities having
similar responsibilities.
"Permitted Acquisition" - see ss.12.5(d) hereof.
"Permitted Liens" - mortgages, liens, charges, security interests or
other encumbrances on any real or personal property which are permitted pursuant
to ss.12.2 hereof.
"Person" - any individual, corporation, partnership, trust,
unincorporated association, joint stock company, limited liability company or
other legal entity or organization and any government or agency or political
subdivision thereof.
"Pledge Agreement" - the Amended and Restated Pledge Agreement, dated
as of the date hereof, between the Borrower and the Administrative Agent.
"Pro Forma Basis" - (a) in connection with any proposed Permitted
Acquisition after the Effective Date, the calculation of compliance with the
financial covenants described in ss.12.5(e) hereof by the Borrower and its
Subsidiaries (including the Person to be acquired) with reference to the audited
historical financial results of such Person and the Borrower and its
Subsidiaries for the applicable Test Period after giving effect on a pro forma
basis to such Permitted Acquisition in the manner described in (i), (ii) and
(iii) below; and, following a Permitted Acquisition, the calculation of
compliance with the financial covenant set forth in ss.12.10 for the fiscal
quarter in which such Permitted Acquisition occurred and each of the three
fiscal quarters
<PAGE> 30
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immediately following such Permitted Acquisition with reference to the audited
historical financial results of the Person so acquired and the Borrower and its
Subsidiaries for the applicable Test Period after giving effect on a pro forma
basis to such Permitted Acquisition in the manner described in (i), (ii) and
(iii) below:
(i) all Indebtedness (whether under this Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all
Indebtedness of the Person acquired or to be acquired in such Permitted
Acquisition which was or will have been repaid in connection with the
consummation of the Permitted Acquisition shall be deemed to have been
repaid concurrently with the incurrence of the Indebtedness incurred in
connection with the Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant
to the preceding clause (i) shall be deemed to have borne interest at
the sum of (a) the arithmetic mean of (x) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the first day of the Test Period and (y) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the last day of the Test Period plus (b) the Applicable Margin then
in effect (after giving effect to the Permitted Acquisition on a Pro
Forma Basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to
the change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Administrative Agent in writing
(which approval shall not be unreasonably withheld) shall be deemed to
have been realized on the first day of the Test Period; and
(b) in connection with any Investment pursuant to ss.12.3(g) after
the Effective Date, the calculation of compliance with ss.12.10 hereof by the
Borrower and its Subsidiaries after giving effect on a pro forma basis to any
Indebtedness incurred in connection with such Investment.
"Qualifying Bank" - with respect to (a) any Domestic Bank, a bank,
insurance company, commercial finance company or other financial institution
that is incorporated or organized under the laws of the United States of America
or a state thereof or the District of Columbia or that is exempt from deduction
or withholding of United States federal income taxes; and (b) any Canadian Bank,
a bank or other financial institution which is resident in Canada and which is
named in Schedule I or Schedule II to the Bank Act (Canada).
<PAGE> 31
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"Rate Adjustment Period" - see Applicable Margin.
"RCRA" - see ss.8.21 hereof.
"Reallocation" - a transfer of a portion of the Total Domestic
Commitment to the Total Canadian Commitment or a transfer of all or a portion of
the Total Canadian Commitments to the Total Domestic Commitment in accordance
with ss.2.3 hereof.
"Receivables" - trade accounts receivable of the Borrower and any of
the Guarantors (as entered on the books of the Borrower and its Subsidiaries in
accordance with Generally Accepted Accounting Principles, after eliminating all
intercompany receivables), (a) which have arisen with respect to sales of
products or services of the Borrower or any of the Guarantors, (b) which have
not been outstanding for more than 90 days past the invoice date, (c) in which
the Administrative Agent has a valid and perfected first priority security
interest, (d) that, unless the Administrative Agent otherwise agrees, are
payable in either United States Dollars or Canadian Dollars, (e) that, unless
the Administrative Agent otherwise agrees, are payable from an office in either
the United States of America or Canada, (f) that the Borrower reasonably and in
good faith determines to be collectible, and (g) that are not subject to any
pledge, restriction, security interest or other lien or encumbrance, other than
the security interest in favor of the Administrative Agent.
"Refunding Bankers' Acceptance" - see ss.4.2.
"Register" - see ss.18.3 hereof.
"Reimbursement Agreements" - the applications made and agreements
entered into between the Letter of Credit Bank and the Borrower relating to
Letters of Credit, substantially in the form of Exhibit C attached hereto, as
the same are in effect from time to time.
"Related Entity" - see Guaranteed Pension Plan.
"Rental Agreements" - rental agreements or leases of real or personal
property, other than (a) capitalized lease obligations, (b) obligations which
can be terminated by the giving of notice without liability to such Person or
its Subsidiaries in excess of the liability for rent due as of the date such
notice is given and under which no penalty or premium is paid as a result of any
such termination, and (c) with respect to the Borrower and any of its
Subsidiaries, obligations to brokers or owner-operators of vehicles used in
connection with such Person's business.
"Replacement Bank" - see ss.6.14.
<PAGE> 32
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"Reset Date" - see ss.6.13.
"Revolving Credit Loans" - collectively, the Canadian Revolving Credit
Loans and the Domestic Revolving Credit Loans.
"Revolving Credit Notes" - collectively, the Canadian Revolving Credit
Notes and the Domestic Revolving Credit Notes.
"SARA" - see ss.8.21 hereof.
"Sale-Leaseback" - see ss.12.6 hereof.
"Section 20 Subsidiary" - a Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
"Secured Property Indebtedness" - (a) with respect to the Borrower and
its Subsidiaries, all Indebtedness (other than Operating Lease Obligations)
which is secured by any security interest, mortgage, charge, deed of trust, or
other similar lien on any non-current tangible property used by the Borrower and
its Subsidiaries in their business operations, including, without limitation,
Motor Vehicle Equipment and Indebtedness with respect to capitalized leases of
Motor Vehicle Equipment; provided that in each case such Indebtedness was
incurred in connection with the purchase or lease of such property or Motor
Vehicle Equipment by such Person and (b) all such secured Indebtedness of any
Person acquired in a Permitted Acquisition; provided that such Indebtedness was
not incurred by such Person in contemplation of or in connection with such
Permitted Acquisition.
"Security Agreement" - the Amended and Restated Security Agreement,
dated as of the date hereof, among the Borrower, each of the Domestic
Subsidiaries and the Administrative Agent.
"Security Documents" - the Pledge Agreement, the Stock Pledge
Agreement, the Security Agreement, the Canadian Security Documents, the
Guaranties, the Trademark Security Agreements, the Patent Security Agreements,
each of the guaranties delivered pursuant to ss.7(c) hereof, and any other
instruments and documents delivered pursuant thereto, in each case as amended
and in effect from time to time.
"Senior Note Indenture" - the Indenture, dated as of September 30,
1997, between the Borrower and The First National Bank of Chicago, as Trustee,
in the form delivered to the Administrative Agent on or prior to the Original
Closing Date.
<PAGE> 33
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"Senior Notes" - the 8-5/8% Series A and Series B Senior Notes Due
2007, in the aggregate original principal amount of $150,000,000, issued by the
Borrower pursuant to the Senior Note Indenture, in the form delivered to the
Administrative Agent on or prior to the Original Closing Date.
"Stock Pledge Agreement" - the Amended and Restated Securities Pledge
Agreement, dated as of the date hereof, among the Borrower, the Administrative
Agent and the Subsidiaries of the Borrower party thereto, as the same may be
amended and in effect from time to time.
"Subordinated Debt" - the unsecured Indebtedness of the Borrower and
certain of its Subsidiaries under the Subordinated Debt Documents.
"Subordinated Debt Documents" - the Note Purchase Agreement dated as of
January 15, 1996 executed and delivered by the Borrower to The Northwestern
Mutual Life Insurance Company, the John Hancock Mutual Life Insurance Company,
and Barnett & Co., the unsecured 12% Senior Subordinated Notes due February 1,
2003 issued thereunder, the Subordinated Guaranty Agreements in favor of the
holders of such notes executed and delivered by certain Subsidiaries of the
Borrower in connection therewith (the "Subordinated Guaranty Agreements") and
all other documents issued and/or delivered in connection therewith, each of
which documents and instruments shall be in the form delivered to the
Administrative Agent prior to the Original Closing Date.
"Subordinated Guaranty Agreements" - see the definition of Subordinated
Debt Documents.
"Subsidiary" - in relation to any particular Person, any corporation,
association or other business entity, a majority (by number of votes) of the
outstanding voting stock or other comparable equity interest of which is at the
time owned or controlled by such Person, or by one or more subsidiaries of such
Person or by such Person and one or more subsidiaries of such Person and which
property would be included in such Person's consolidated balance sheet. All
Subsidiaries of the Borrower are listed on Schedule 8.16(a) and Schedule 8.16(b)
attached hereto, as such Schedules may be updated from time to time in
accordance with the provisions hereof.
"Swing Line Banks" - collectively, the Domestic Swing Line Bank and the
Canadian Swing Line Bank.
"Swing Line Loans" - collectively, the Domestic Swing Line Loans and
the Canadian Swing Line Loans.
"Swing Line Loan Maturity Date" - with respect to any Swing Line Loan,
the date specified by the Borrower or the Canadian Borrower, as applicable, in
<PAGE> 34
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the Loan Request relating thereto as the maturity date of such Swing Line Loan.
"Test Period" - (a) in connection with the calculation of financial
covenant compliance on a Pro Forma Basis as required by ss.12.5(e) with respect
to any proposed Permitted Acquisition, the period of four fiscal quarters most
recently ended prior to such Permitted Acquisition for which financial
information is available, and (b) in connection with the calculation of the
financial covenant set forth in ss.12.10 hereof following any Permitted
Acquisition, the period of all fiscal quarters (and any portion of a fiscal
quarter) prior to the date of such Permitted Acquisition included in the
calculation of such financial covenant.
"Total Canadian Commitment" - the sum of the Canadian Commitments of
the Canadian Banks, as in effect from time to time.
"Total Commitment" - the sum of the Total Canadian Commitment and the
Total Domestic Commitment, each as in effect from time to time; provided that
such sum shall not exceed $230,000,000. As of the date hereof, the Total
Commitment is $230,000,000.
"Total Commitment Percentage" - with respect to each Bank, the
percentage set forth next to such Bank on Schedule 1.1 hereto, as such Schedule
may be updated from time to time, as such Bank's percentage of the Total
Commitment.
"Total Domestic Commitment" - the sum of the Domestic Commitments of
the Domestic Banks, as in effect from time to time.
"Trademark Security Agreements" - collectively, the several Trademark
Collateral Security and Pledge Agreements, each dated as of the Original Closing
Date, between, respectively, the Borrower, certain other Subsidiaries party
thereto and the Administrative Agent, and each other Trademark Collateral
Security and Pledge Agreement executed after the date hereof pursuant to which
the Borrower or any of its Subsidiaries grants a security interest in its
trademarks and related rights to the Administrative Agent, for the benefit of
the Banks.
"Type" - as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Rate Loan.
"U.K. Ventures" - The two joint ventures (i.e., Autocar Logistics
Limited and ANSA Logistics Limited) entered into by the Borrower and Axis with
AutoLogic Holdings, plc for the purpose of managing and providing the
distribution of vehicles for Ford Motor Company in the United Kingdom.
<PAGE> 35
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"Uniform Act" - the Revised Uniform Limited Partnership Act of the
State of Georgia, as such act may be amended and in effect from time to time.
(b) All terms of an accounting character not specifically defined
herein shall have the meanings assigned thereto by Generally Accepted Accounting
Principles. All terms not specifically defined herein which are defined in the
Uniform Commercial Code as in effect in the Commonwealth of Massachusetts shall
have the same meanings herein as therein. Each reference herein to a particular
Person (including, without limitation, the Agents or any Bank) shall include a
reference to such Person's successors and permitted assigns. The words "herein",
"hereof", "hereunder" and words of like import shall refer to this Agreement as
a whole and not to any particular Section or subdivision of this Agreement. A
reference herein to any document or agreement shall include such document or
agreement as amended, modified or supplemented from time to time in accordance
with the terms of this Agreement. A reference to any law includes any amendment
to, or modification of, such law.
SS.2. THE CREDIT FACILITIES.
SS.2.1. COMMITMENT TO LEND.
SS.2.1.1. DOMESTIC LOANS. Subject to the terms and conditions
set forth in this Agreement, each of the Domestic Banks severally agrees to lend
to the Borrower and the Borrower may borrow, repay, and reborrow from time to
time from the Effective Date until the Maturity Date, upon notice by the
Borrower to the Administrative Agent given in accordance with this ss.2, such
sums in Dollars as are equal to such Domestic Bank's Domestic Commitment
Percentage of the Domestic Revolving Credit Loan requested by the Borrower in
such notice; provided that the sum of (a) the aggregate principal amount of all
Domestic Revolving Credit Loans outstanding plus (b) the aggregate principal
amount of all Domestic Swing Line Loans outstanding plus (c) the Dollar
Equivalent of the aggregate principal amount of all Canadian Swing Line Loans
outstanding plus (d) the aggregate Maximum Drawing Amount of all Letters of
Credit outstanding shall not, at any time and after giving effect to all amounts
requested, exceed the Total Domestic Commitment.
In addition to the foregoing, each of the Domestic Banks will, from the
Effective Date until the Maturity Date, and regardless of whether the conditions
set forth in ss.ss.9 and 10 are satisfied, make Domestic Revolving Credit Loans
to the Borrower solely for the purposes of (i) repaying Swing Line Loans
pursuant to ss.ss.2.12 and 2.13 hereof or (ii) repaying Indebtedness of the
Borrower to the Domestic Banks in respect of drawings under Letters of Credit
pursuant to ss.3.2 hereof. Sections 2.12 and 2.13 hereof shall govern the
Borrower's obligations with respect to Swing Line Loans, and ss.3.2 hereof shall
govern the Borrower's obligations with respect to drawings under Letters of
Credit.
<PAGE> 36
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SS.2.1.2. CANADIAN REVOLVING CREDIT LOANS. Subject to the
terms and conditions set forth in this Agreement (including, without limitation,
ss.2.3 hereof), each of the Canadian Banks severally agrees to lend to the
Canadian Borrower in Canadian Dollars, and the Canadian Borrower may borrow,
repay, and reborrow from time to time in Canadian Dollars from the Effective
Date until the Maturity Date, upon notice by the Canadian Borrower to the
Canadian Agent given in accordance with this ss.2, such sums in Canadian Dollars
as are equal to such Bank's Canadian Commitment Percentage of the Canadian
Revolving Credit Loan requested by the Canadian Borrower in such notice;
provided that the sum of (a) the Dollar Equivalent of the aggregate principal
amount of the Canadian Revolving Credit Loans outstanding, plus (b) the Dollar
Equivalent of the aggregate face amount of Bankers' Acceptances then outstanding
shall not, at any time and after giving effect to all amounts requested, exceed
the Total Canadian Commitment.
SS.2.1.3. LIMITATION ON BORROWINGS. Notwithstanding any other
provision of this Agreement, no Bank shall have any obligation to make any Loan,
issue, renew or extend any Letter of Credit, or purchase or accept any Bankers'
Acceptance if, after giving effect to such Borrowing, the sum of (a) the
aggregate principal amount of all Domestic Revolving Credit Loans outstanding
plus (b) the aggregate principal amount of all Domestic Swing Line Loans
outstanding plus (c) the aggregate Maximum Drawing Amount of all Letters of
Credit outstanding plus (d) the Dollar Equivalent of the aggregate principal
amount of all Canadian Revolving Credit Loans outstanding plus (e) the Dollar
Equivalent of all Canadian Swing Line Loans outstanding plus (f) the Dollar
Equivalent of the aggregate face amount of Bankers' Acceptances outstanding
exceeds the lesser of (i) the Borrowing Base Amount and (ii) the Total
Commitment.
SS.2.2. TERMINATION; REDUCTION OF COMMITMENTS.
(a) The Borrower may at any time prior to the Maturity Date,
terminate the Total Commitment in full by giving three Business Days' prior
written notice thereof to the Banks. A termination of the Total Commitment shall
be accompanied by the repayment in full of the Revolving Credit Loans, the Swing
Line Loans and the cash collateralization of the Bankers' Acceptances then
outstanding, the payment in full of all interest and fees due hereunder, and the
deposit with the Administrative Agent of cash collateral in an amount equal to
the Maximum Drawing Amount of all Letters of Credit then outstanding pursuant to
cash collateral arrangements in form and substance satisfactory to the
Administrative Agent.
(b) The Borrower may at any time prior to the Maturity Date,
reduce the unused portion of the Total Commitment in part in integral multiples
of $5,000,000 by giving three Business Days' prior written notice thereof to the
Banks. Each such reduction shall be made pro rata (i) among each Bank
<PAGE> 37
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according to such Bank's Total Commitment and Total Commitment Percentage (such
that each Bank will have the same Total Commitment Percentage both before and
after such reduction) and (ii) between the Total Domestic Commitment and the
Total Canadian Commitment. Notwithstanding the foregoing, (i) at no time shall
the Total Domestic Commitment be reduced to an amount less than the sum of the
Maximum Domestic Swing Line Loan Amount plus the Maximum Canadian Swing Line
Loan Amount plus the aggregate Maximum Drawing Amount of all Letters of Credit
then outstanding.
(c) Each reduction of the Total Commitment shall be accompanied by
(i) the payment by the Borrower to the Administrative Agent of the amount, if
any, by which the sum of the aggregate unpaid principal amount of the Domestic
Revolving Credit Loans plus the aggregate unpaid principal amount of all
Domestic Swing Line Loans outstanding plus the Dollar Equivalent of the
aggregate unpaid principal amount of all Canadian Swing Line Loans outstanding
plus the Maximum Drawing Amount of all Letters of Credit outstanding exceeds the
then reduced Total Domestic Commitment and (ii) the payment by the Canadian
Borrower to the Canadian Agent of the amount, if any, by which the sum of the
Dollar Equivalent of the aggregate unpaid principal amount of the Canadian
Revolving Credit Loans outstanding plus the Dollar Equivalent of the aggregate
face amount of Bankers' Acceptances then outstanding exceeds the then reduced
Total Canadian Commitment.
(d) As an alternative to depositing cash collateral under the
circumstances described in the foregoing paragraph (a), and under ss.2.9 hereof,
the Borrower may deliver to the Administrative Agent letters of credit issued by
banks which are acceptable to the Domestic Banks in their reasonable discretion
which will reimburse the Domestic Banks for all amounts payable by the Domestic
Banks under and with respect to the outstanding Letters of Credit, provided that
such back-up letters of credit contain terms and conditions which are
satisfactory to the Domestic Banks in all respects in their reasonable business
judgment, to allow the Domestic Banks to be reimbursed in the event a Letter of
Credit is drawn.
(e) In addition, upon any such termination or reduction, (i) the
Borrower shall pay to the Administrative Agent, for the pro rata accounts of the
Domestic Banks, the full amount of the accrued and unpaid Domestic Commitment
Fee on the amount of the Total Domestic Commitment so reduced or, as the case
may be, terminated and (ii) the Canadian Borrower shall pay to the Canadian
Agent, for the pro rata accounts of the Canadian Banks, the full amount of the
accrued and unpaid Canadian Commitment Fee on the amount of the Total Canadian
Commitment so reduced or, as the case may be, terminated.
(f) Subject to ss.6.11 hereof, any such termination or reduction
may be effected by the Borrower without penalty. Without conflict with the
provisions
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of ss.2.3 hereof, no termination or reduction of the Total Commitment, the Total
Domestic Commitment or the Total Canadian Commitment shall be subject to
reinstatement.
(g) Promptly after the effectiveness of any partial reduction in
the Total Commitment pursuant to this ss.2.2, the Administrative Agent shall
distribute to each Bank an updated Schedule 1.1 hereto reflecting such
reduction.
SS.2.3. REALLOCATION OF COMMITMENTS.
(a) As of the Effective Date, the Total Canadian Commitment is
$15,000,000. Subject to the conditions hereinafter set forth, the Borrower and
the Canadian Borrower shall have the right from time to time upon twenty (20)
Business Days prior written notice to each of the Agents to (i) increase the
Total Canadian Commitment to an aggregate amount not more than the Canadian
Dollar Equivalent of $40,000,000 by reducing and reallocating by an equivalent
amount a portion of the Total Domestic Commitment to the Total Canadian
Commitment and (ii) increase the Total Domestic Commitment by reducing and
reallocating by an equivalent amount all or a portion of the Total Canadian
Commitment to the Total Domestic Commitment.
(b) Each Reallocation shall also be subject to the following
conditions:
(i) The Borrower and the Canadian Borrower shall have
provided the Administrative Agent and the Banks with twenty (20) days prior
written notice of their intent to reallocate a portion of the Total Domestic
Commitment or the Total Canadian Commitment.
(ii) The increase in the Total Canadian Commitment, if
any, shall be offset by a corresponding and equivalent reduction in the Total
Domestic Commitment and the increase in the Total Domestic Commitment, if any,
shall be offset by a corresponding and equivalent reduction in the Total
Canadian Commitment, such that the Total Commitment in effect immediately before
a Reallocation shall be equal to the Total Commitment immediately after, and
after giving effect to, a Reallocation.
(iii) No Reallocation shall increase (A) the Total Domestic
Commitment in excess of $230,000,000, (B) the Total Canadian Commitment in
excess of the Canadian Dollar Equivalent of $40,000,000 or (C) the Total
Commitment in excess of $230,000,000.
(iv) No Reallocation shall, without the prior consent of
the Bank affected thereby, result in (A) any Domestic Bank having a positive
Canadian Commitment if such Domestic Bank, or its affiliate, did not have such
positive
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Canadian Commitment immediately prior to such Reallocation or (B) any increase
in the Total Commitment of any Bank and its affiliates.
(v) Subject to ss.2.3(b)(iv), each Reallocation shall be
made pro rata among the Banks whose Commitments are being reallocated from one
type of Commitment to another, but shall not cause the Commitments of any other
Banks to change.
(vi) In no event shall (A) the Total Domestic Commitment
be reduced to an amount less than the sum of (1) the aggregate amount of all
Domestic Revolving Credit Loans then outstanding, plus (2) the aggregate amount
of Domestic Swing Line Loans then outstanding, plus (3) the aggregate Maximum
Drawing Amount of all Letters of Credit then outstanding, plus (4) the Dollar
Equivalent of the aggregate amount of Canadian Swing Line Loans then outstanding
or (B) the Total Canadian Commitment be reduced to an amount less than the sum
of (1) the Dollar Equivalent of the aggregate amount of Canadian Revolving
Credit Loans outstanding plus (2) the Dollar Equivalent of the aggregate face
amount of all Bankers' Acceptances then outstanding.
(vii) There shall not be more than one (1) Reallocation in
any fiscal quarter of the Borrower.
(viii) Each Reallocation shall be effective as of the end of
a fiscal quarter of the Borrower.
(c) The Administrative Agent shall, promptly upon the
effectiveness of each Reallocation, distribute to each Bank an updated Schedule
1.1 hereto, reflecting the changes in the respective Commitments of the Banks.
SS.2.4. THE NOTES.
(a) The Domestic Revolving Credit Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the form of Exhibit
A-1 hereto (each, a "Domestic Revolving Credit Note"), dated as of the Original
Closing Date and completed with appropriate insertions. The Borrower agrees that
the Domestic Revolving Credit Notes issued under the Existing Credit Agreement
shall, from and after the Effective Date, evidence the Domestic Revolving Credit
Loans hereunder. One Domestic Revolving Credit Note shall be payable to the
order of each Domestic Bank in an amount equal to its Total Commitment, and
shall represent the obligation of the Borrower to pay such Domestic Bank such
principal amount or, if less, the outstanding principal amount of all Domestic
Revolving Credit Loans made by such Domestic Bank, plus interest accrued
thereon, as set forth herein.
(b) The Canadian Revolving Credit Loans shall be evidenced by
separate promissory note(s) of the Canadian Borrower in substantially the form
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of Exhibit A-2 hereto (each, a "Canadian Revolving Credit Note"), dated as of
the Original Closing Date and completed with appropriate insertions. The
Borrower agrees that the Canadian Revolving Credit Notes issued under the
Existing Credit Agreement shall, from and after the Effective Date, evidence the
Canadian Revolving Credit Loans hereunder. One Canadian Revolving Credit Note
shall be payable to the order of each Canadian Bank in an amount equal to its
Canadian Commitment, and shall represent the obligation of the Canadian Borrower
to pay such Canadian Bank such principal amount or, if less, the outstanding
principal amount of all Canadian Revolving Credit Loans made by such Canadian
Bank, plus interest accrued thereon, as set forth herein.
(c) Each of the Borrower and the Canadian Borrower irrevocably
authorizes each Bank to make, or cause to be made, in connection with a Drawdown
Date of any Revolving Credit Loan and at the time of receipt of any payment of
principal on any Note, an appropriate notation on such Bank's records or on the
schedule attached to such Bank's Note, or a continuation of such schedule
attached thereto, reflecting the making of such Loan or the receipt of such
payment (as the case may be). Each Bank may, prior to any transfer of any Note,
endorse on the reverse side thereof the outstanding principal amount of the
Loans evidenced thereby. The outstanding amount of the Loans set forth on such
Bank's records shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount shall not limit or otherwise affect the obligations
of the Borrower or the Canadian Borrower hereunder or under such Notes to make
payments of principal of or interest on any such Notes when due.
SS.2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as provided in
ss.6.3 hereof:
(a) Each Domestic Revolving Credit Loan shall bear interest at the
rate per annum equal to (i) the Domestic Base Rate plus the Applicable Margin on
all Domestic Base Rate Loans and (ii) the Domestic Eurodollar Rate plus the
Applicable Margin on all Domestic Eurodollar Rate Loans.
(b) Each Canadian Revolving Credit Loan shall bear interest at the
rate per annum equal to the Canadian Base Rate plus the Applicable Margin on all
Canadian Base Rate Loans.
(c) The Borrower and the Canadian Borrower promise to pay interest
on the Revolving Credit Loans made to such Person on each Interest Payment Date
with respect thereto. Each of the Borrower and the Canadian Borrower authorizes
the Administrative Agent and the Canadian Agent, as applicable, to charge and
subtract from its account maintained with such Agent on each day on which
interest is due and payable under this Agreement an amount equal to
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the interest then due and payable, and to apply such amount to pay such
interest. The Administrative Agent and the Canadian Agent shall notify the
Borrower and the Canadian Borrower, respectively, of the amount of such
deduction at such time as statements of account are customarily given to such
Person.
SS.2.6. PROCEDURE FOR BORROWING. The Borrower shall give to the
Administrative Agent and the Canadian Borrower shall give the Canadian Agent
written notice (with a copy to the Administrative Agent) in the form of Exhibit
D attached hereto (or telephonic notice confirmed in a writing in such form) of
each Revolving Credit Loan requested hereunder (a "Loan Request") no less than
(a) one (1) Business Day prior to the proposed Drawdown Date of any Base Rate
Loan (other than a Swing Line Loan), and (b) three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Rate Loan. Each such
notice shall specify (i) the principal amount of the Revolving Credit Loan
requested, (ii) the proposed Drawdown Date of such Revolving Credit Loan, (iii)
the Interest Period for such Revolving Credit Loan, and (iv) the Type of such
Revolving Credit Loan. Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Domestic Banks and the Canadian
Agent shall notify each of the Canadian Banks thereof. Each Loan Request shall
be irrevocable and binding on the Borrower or, as the case may be, the Canadian
Borrower, and shall obligate the Borrower or the Canadian Borrower to accept the
Revolving Credit Loan requested from such Banks on the proposed Drawdown Date.
Each Loan Request with respect to Domestic Revolving Credit Loans shall be in an
aggregate amount of at least $2,000,000. Each Loan Request with respect to
Canadian Revolving Credit Loans shall be in an aggregate amount of at least
C$1,000,000. Upon satisfaction of the applicable conditions set forth in this
Agreement, on the proposed Drawdown Date such Agent shall credit the funds to
the Borrower's or the Canadian Borrower's account maintained with such Agent at
its Head Office.
SS.2.7. INTEREST RATE CONVERSION OPTIONS.
(a) The Borrower or the Canadian Borrower may elect from
time to time to convert any outstanding Revolving Credit Loan to a Loan of
another Type, provided that (i) with respect to any such conversion of a
Eurodollar Rate Loan to a Base Rate Loan, the Borrower shall give the
Administrative Agent and the Canadian Borrower shall give the Canadian Agent
(with a copy to the Administrative Agent) at least one (1) Business Day prior
written notice of such election; (ii) with respect to any such conversion of a
Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the
Administrative Agent and the Canadian Borrower shall give the Canadian Agent
(with a copy to the Administrative Agent) at least three (3) Eurodollar Business
Days' prior written notice of such election; (iii) with respect to any such
conversion of a Eurodollar Rate Loan into a Base Rate Loan, such conversion
shall only be made on the last day of the Interest Period with respect thereto,
and (iv) no Base Rate Loan
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may be converted into a Eurodollar Rate Loan when any Default or Event of
Default has occurred and is continuing. On the date on which such conversion is
being made each Bank affected thereby shall take such action as is necessary to
transfer its portion of such Loans to its Domestic Lending Office or its
Eurodollar Lending Office, as the case may be. Any outstanding Revolving Credit
Loans of any Type may be converted into a Revolving Credit Loan of another Type
as provided herein, provided that any partial conversion shall be in an
aggregate principal amount of at least $2,000,000 with respect to Domestic
Revolving Credit Loans and C$1,000,000 with respect to Canadian Revolving Credit
Loans. Each Conversion Request relating to the conversion of a Base Rate Loan to
a Eurodollar Rate Loan shall be irrevocable by the Borrower and the Canadian
Borrower.
(b) Any Revolving Credit Loan of any Type may be
continued as a Revolving Credit Loan of the same Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower and the
Canadian Borrower with the notice provisions contained in ss.2.7(a) hereof;
provided that no Eurodollar Rate Loan may be continued as such when any Default
or Event of Default has occurred and is continuing, but shall be automatically
converted to a Base Rate Loan on the last day of the first Interest Period
relating thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent or the Canadian Agent
active upon the Borrower's or the Canadian Borrower's account have actual
knowledge. The Administrative Agent and the Canadian Agent shall notify the
Banks promptly when any such automatic conversion contemplated by this ss.2.7(b)
is scheduled to occur.
(c) Any conversion to or from Eurodollar Rate Loans shall
be in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of all Eurodollar Rate Loans
having the same Interest Period shall not be less than $2,000,000 or a whole
multiple of $1,000,000 in excess thereof with respect to Domestic Revolving
Credit Loans or C$1,000,000 or a whole multiple of C$500,000 in excess thereof
with respect to Canadian Revolving Credit Loans. No more than twelve (12)
Eurodollar Rate Loans with different interest periods shall be outstanding at
one time.
SS.2.8. OPTIONAL PREPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower
shall have the right, at its election, to repay the outstanding amount of the
Domestic Revolving Credit Loans and the Canadian Borrower shall have the right,
at its election, to repay the outstanding amount of the Canadian Revolving
Credit Loans, as a whole or in part, at any time without penalty or premium,
provided that any full or partial prepayment of the outstanding amount of any
Eurodollar Rate Loans pursuant to this ss.2.8 may be made only on the last day
of the Interest Period relating thereto. The Borrower shall give the
Administrative Agent and the Canadian Borrower shall give the Canadian
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Agent (with a copy to the Administrative Agent), in each case no later than
12:00 noon (local time for such Agent) at least one (1) Business Day prior
written notice of any proposed prepayment pursuant to this ss.2.8 of Revolving
Credit Loans, specifying the proposed date of prepayment of Revolving Credit
Loans and the principal amount to be prepaid. Each such partial prepayment of
the Revolving Credit Loans shall be in the minimum principal amount of
$2,000,000 or a larger integral multiple of $1,000,000 with respect to Domestic
Revolving Credit Loans or C$1,000,000 or a larger multiple of C$500,000 with
respect to Canadian Revolving Credit Loans, shall be accompanied by the payment
of accrued interest on the principal prepaid to the date of prepayment and shall
be applied, in the absence of instruction by the Borrower or the Canadian
Borrower, first to the principal of Base Rate Loans and then to the principal of
Eurodollar Rate Loans. Each partial prepayment shall be allocated among the
Banks, in proportion, as nearly as practicable, to the respective unpaid
principal amount of each Bank's Note, with adjustments to the extent practicable
to equalize any prior repayments not exactly in proportion. Subject to the
borrowing limitations set forth in ss.2.1 hereof, amounts prepaid prior to the
Maturity Date may be reborrowed.
SS.2.9. MANDATORY PREPAYMENTS OF LOANS.
(a) DOMESTIC FACILITY. If at any time the sum of the aggregate
principal amount of the Domestic Revolving Credit Loans outstanding plus the
aggregate principal amount of the Domestic Swing Line Loans outstanding plus the
Dollar Equivalent of the aggregate principal amount of the Canadian Swing Line
Loans outstanding plus the aggregate Maximum Drawing Amount of all Letters of
Credit outstanding exceeds the lesser of (i) the Total Domestic Commitment in
effect from time to time or (ii) the remainder of (A) the Borrowing Base Amount
then in effect minus (B) the Dollar Equivalent of the aggregate principal amount
of the Canadian Revolving Credit Loans outstanding minus (C) the Dollar
Equivalent of the aggregate face amount of Bankers' Acceptances then
outstanding, whether due to a reduction of the Total Domestic Commitment or as a
result of currency exchange fluctuations, or otherwise, then the Borrower shall
immediately pay the amount of such excess to the Administrative Agent, for the
benefit of the Domestic Banks, together with all interest accrued on such
principal amounts of the Domestic Revolving Credit Loans and/or Swing Line Loans
prepaid, for application first to the pro rata payment of Domestic Swing Line
Loans and Canadian Swing Line Loans outstanding, second to the payment of any
Domestic Revolving Credit Loans outstanding, and third to be held by the Letter
of Credit Bank as cash collateral for all Letters of Credit outstanding;
provided that if after repaying all Swing Line Loans and Domestic Revolving
Credit Loans, the aggregate Maximum Drawing Amount of all Letters of Credit
outstanding exceeds the lesser of the Total Domestic Commitment then in effect
or the Borrowing Base Amount then in effect, the Borrower shall, subject to
ss.2.2 hereof, deposit with the Administrative Agent, in pledge, cash or other
readily
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marketable securities acceptable to the Administrative Agent pursuant to pledge
agreements acceptable to the Administrative Agent such that the aggregate amount
of collateral so pledged is at least equal to the amount of such excess.
(b) CANADIAN FACILITY. If at any time the sum of the Dollar
Equivalent of the aggregate principal amount of the Canadian Revolving Credit
Loans outstanding plus the Dollar Equivalent of the aggregate face amount of
Bankers' Acceptances outstanding exceeds the lesser of (i) the Total Canadian
Commitment in effect from time to time or (ii) the remainder of (A) Borrowing
Base Amount then in effect minus (B) the aggregate principal amount of the
Domestic Revolving Credit Loans outstanding minus (C) the aggregate principal
amount of the Domestic Swing Line Loans outstanding minus (D) the Dollar
Equivalent of the aggregate principal amount of the Canadian Swing Line Loans
outstanding minus (E) the aggregate Maximum Drawing Amount of all Letters of
Credit, whether due to a reduction of the Total Canadian Commitment or as a
result of currency exchange fluctuations, or otherwise, then the Canadian
Borrower shall immediately pay the amount of such excess to the Canadian Agent,
for the benefit of the Canadian Banks, together with all interest accrued on
such principal amounts of the Canadian Revolving Credit Loans prepaid, for
application first to the payment of any Canadian Revolving Credit Loans
outstanding, and second to be held by the Canadian Agent as cash collateral for
all Banker's Acceptances outstanding; provided that if after repaying all
Canadian Revolving Credit Loans, the Dollar Equivalent of the aggregate face
amount of Bankers' Acceptances outstanding exceeds the lesser of the Total
Canadian Commitment then in effect or the Borrowing Base Amount then in effect,
the Canadian Borrower shall, subject to ss.2.2 hereof, deposit with the Canadian
Agent, in pledge, cash or other readily marketable securities acceptable to the
Canadian Agent pursuant to pledge agreements acceptable to the Canadian Agent
such that the aggregate amount of collateral so pledged is at least equal to the
amount of such excess.
(c) MANDATORY REPAYMENTS FROM ASSET SALES. In the event that the
Borrower or any of its Subsidiaries shall sell any of their assets or group of
related assets (other than assets sold pursuant to ss.12.5(c)), whether by sale
of assets or stock, for consideration with a value in excess of $1,000,000 in
any one calendar year, where such asset sale is either permitted pursuant to
ss.12.5 or is previously consented to in writing by the Administrative Agent,
then, immediately upon the receipt thereof, the Borrower shall repay the
Obligations in an amount equal to the amount of the net cash proceeds of such
asset sale (after taxes calculated at the effective book tax rate in accordance
with Generally Accepted Accounting Principles) in excess of $1,000,000, such
repayment of the Obligations to be in the manner set forth in ss.2.9(a).
Simultaneously with any such required repayment, the Total Commitment shall be
automatically and permanently reduced by an amount equal to the amount of
Obligations so repaid or required to be repaid.
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(d) MANDATORY PREPAYMENTS FROM NEW EQUITY. In the event that the
Borrower or any of its Subsidiaries shall, after the Effective Date, sell or
issue any shares of their stock, options or warrants for the purchase of its
stock or other equity or equity instruments (other than stock, warrants and
options awarded to employees and directors pursuant to incentive compensation
plans operated by such Persons), then, immediately upon the receipt thereof, the
Borrower shall, or shall cause such Subsidiary to, repay the Obligations in an
amount equal to fifty percent (50%) of the Net Cash Proceeds of such sale or
issuance of new equity, such repayment of the Obligations to be in the manner
set forth in ss.2.9(a). Simultaneously with any such required repayment, the
Total Commitment shall be automatically and permanently reduced by an amount
equal to the amount of Obligations so repaid or required to be repaid.
SS.2.10. FUNDS FOR LOANS. Not later than 12:00 noon (local time for
each Agent) on the proposed Drawdown Date of a Revolving Credit Loan each of the
Domestic Banks will make available to the Administrative Agent and each of the
Canadian Banks will make available to the Canadian Agent, at such Agent's Head
Office, in immediately available funds, the amount of its Commitment Percentage
of the amount of the requested Revolving Credit Loan. Upon receipt from each
Bank of such amount (or upon fulfillment of the conditions precedent to the
making of a Domestic Swing Line Loan pursuant to ss.2.12 or a Canadian Swing
Line Loan pursuant to ss.2.13, as applicable), and upon the satisfaction of the
other conditions set forth therein, to the extent applicable, the Administrative
Agent will make available to the Borrower the aggregate amount of such Loans
made available by the Domestic Banks, the Canadian Agent will make available to
the Canadian Borrower the aggregate amount of such Loans made available by the
Canadian Banks, the Domestic Swing Line Bank shall make available to the
Borrower the aggregate amount of funds otherwise available under ss.2.12, if
any, and the Canadian Swing Line Bank will make available to the Canadian
Borrower the aggregate amount of funds otherwise available under ss.2.13, if
any, in each case, not later than 3:00 p.m. (local time for such Agent or such
Bank). The failure or refusal of any Bank to make available to such Agent at the
aforesaid time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Revolving Credit Loan shall not relieve any other
Bank from its several obligations hereunder to make available to such Agent the
amount of such Bank's Commitment Percentage of any requested Revolving Credit
Loan.
SS.2.11. MATURITY OF THE LOANS. The Loans shall be due and payable on
the Maturity Date. The Borrower irrevocably promises to pay to the
Administrative Agent, for the pro rata accounts of the Domestic Banks, the
outstanding amount of all Domestic Revolving Credit Loans and Domestic Swing
Line Loans outstanding on the Maturity Date. The Canadian Borrower irrevocably
promises to pay to (i) the Canadian Agent, for the pro rata accounts of the
Canadian Banks, the aggregate amount of all Canadian Revolving Credit
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Loans and Bankers' Acceptances outstanding on the Maturity Date and (ii) the
Canadian Swing Line Bank the outstanding amount of all Canadian Swing Line Loans
outstanding on the Maturity Date. All such payments shall be made together with
any and all accrued and unpaid interest thereon, the accrued and unpaid
Commitment Fees with respect thereto, and any Letter of Credit Fees, Fronting
Fees and other fees and other amounts owing hereunder.
SS.2.12. THE DOMESTIC SWING LINE LOANS. (a) Subject to the terms and
conditions hereinafter set forth, upon notice by the Borrower made to the
Domestic Swing Line Bank in accordance with ss.2.12(b) hereof, the Domestic
Swing Line Bank agrees to lend to the Borrower Domestic Swing Line Loans on any
Business Day from the Effective Date until the Maturity Date in an aggregate
principal amount not to exceed $10,000,000 (the "Maximum Domestic Swing Line
Loan Amount"). Each Domestic Swing Line Loan shall be in a minimum amount equal
to $1,000 or an integral multiple thereof. Notwithstanding any other provisions
of this Agreement and in addition to the limit set forth above, at no time shall
the aggregate principal amount of all outstanding Domestic Swing Line Loans plus
the Dollar Equivalent of the aggregate principal amount of all Canadian Swing
Line Loans outstanding exceed the Total Domestic Commitment then in effect minus
the sum of (i) the aggregate principal amount of all Domestic Revolving Credit
Loans outstanding and (ii) the aggregate Maximum Drawing Amount of all Letters
of Credit outstanding; provided however that subject to the limitations set
forth in this ss.2.12(a) from time to time the sum of the aggregate outstanding
Domestic Swing Line Loans plus all outstanding Revolving Credit Loans made by
BKB plus the Maximum Drawing Amount of all Letters of Credit issued by BKB as
Letter of Credit Issuing Bank may exceed BKB's Commitment Percentage of the
Total Domestic Commitment then in effect.
(b) NOTICE OF BORROWING. When the Borrower desires the Domestic Swing
Line Bank to make a Domestic Swing Line Loan, it shall send to the
Administrative Agent and the Domestic Swing Line Bank a Loan Request, which
shall set forth the principal amount of the proposed Domestic Swing Line Loan
and the Swing Line Loan Maturity Date relating thereto, which shall in no event
be later than the Maturity Date. Each such Loan Request must be received by the
Domestic Swing Line Bank not later than 12:00 p.m. (Boston time) on the date of
the proposed borrowing. Each Loan Request shall be irrevocable and binding on
the Borrower and shall obligate the Borrower to borrow the Domestic Swing Line
Loan from the Domestic Swing Line Bank on the proposed Drawdown Date thereof.
Upon satisfaction of the applicable conditions set forth in this Agreement, on
the proposed Drawdown Date the Domestic Swing Line Bank shall make the Domestic
Swing Line Loan available to the Borrower no later than 3:00 p.m. (Boston time)
on the proposed Drawdown Date by crediting the amount of the Domestic Swing Line
Loan to the Borrower's account maintained with the Administrative Agent at the
Head Office; provided that the Domestic Swing Line Bank shall not advance any
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Domestic Swing Line Loans after it has received notice from any Bank that a
Default or Event of Default has occurred and stating that no new Domestic Swing
Line Loans are to be made until such Default or Event of Default has been cured
or waived in accordance with the provisions of this Agreement. The Domestic
Swing Line Bank shall not be obligated to make any Domestic Swing Line Loans at
any time when any Bank is a Delinquent Bank unless the Domestic Swing Line Bank
has entered into arrangements satisfactory to it to eliminate the Domestic Swing
Line Bank's risk with respect to such Delinquent Bank, including by cash
collateralizing such Delinquent Bank's Commitment Percentage of the outstanding
Domestic Swing Line Loans and any such additional Domestic Swing Line Loans to
be made.
(c) INTEREST ON DOMESTIC SWING LINE LOANS. Each Domestic Swing Line
Loan shall be a Base Rate Loan and, except as otherwise provided in ss.6.3
hereof, shall bear interest from the Drawdown Date thereof until repaid in full
at the rate per annum equal to the Domestic Base Rate, which shall be paid
quarterly in arrears on the last day of each calendar quarter.
(d) REPAYMENT OF DOMESTIC SWING LINE LOANS. The Borrower shall repay
each outstanding Domestic Swing Line Loan on or prior to the Swing Line Loan
Maturity Date relating thereto. Upon notice by the Domestic Swing Line Bank on
any Business Day (whether before or on the Maturity Date), each of the Domestic
Banks hereby agrees to make payments to the Administrative Agent, for the
account of the Domestic Swing Line Bank, on the next succeeding Business Day
following such notice, in an amount equal to such Bank's Commitment Percentage
of the aggregate amount of all Domestic Swing Line Loans outstanding. The
parties hereto agree that such payments made to the Administrative Agent for the
account of the Domestic Swing Line Bank shall constitute Domestic Revolving
Credit Loans made to the Borrower hereunder, and shall be a Base Rate Loan. The
proceeds thereof shall be applied directly to the Domestic Swing Line Bank to
repay the Domestic Swing Line Bank for such outstanding Domestic Swing Line
Loans. Each Domestic Bank hereby absolutely, unconditionally and irrevocably
agrees to make such Domestic Revolving Credit Loans upon one Business Day's
notice as set forth above, notwithstanding (i) that the amount of such Loan may
not comply with the applicable minimums set forth in ss.2.3 hereof, (ii) the
failure of the Borrower to meet the conditions set forth in ss.ss.9 or 10
hereof, (iii) the occurrence or continuance of a Default or an Event of Default
hereunder, (iv) the date of such Loan, and (v) the Total Domestic Commitment in
effect at such time. In the event that it is impracticable for such amounts to
be paid to the Administrative Agent or the Domestic Swing Line Bank or such Loan
to be made for any reason on the date otherwise required above, then each
Domestic Bank hereby agrees that it shall forthwith purchase (as of the date
such payment and such Loan would have been made, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Domestic Swing Line Bank, and the Domestic Swing Line Bank shall sell
to each
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Domestic Bank, such participations in the Domestic Swing Line Loans (including
all accrued and unpaid interest thereon) outstanding as shall be necessary to
cause the Domestic Banks to share in such Domestic Swing Line Loans pro rata
based on their respective Domestic Commitment Percentages (without regard to any
termination of the Total Domestic Commitment) by making available to the
Domestic Swing Line Bank an amount equal to such Domestic Bank's participation
in the Domestic Swing Line Loans; provided that (x) all interest payable on the
Domestic Swing Line Loans shall be for the account of the Domestic Swing Line
Bank as a funding and administrative fee until the date as of which the
respective participation is purchased (unless paid to the Domestic Swing Line
Bank pursuant to clause (y) below), and (y) at the time any purchase of such
participation is actually made, the purchasing Bank shall be required to pay the
Domestic Swing Line Bank interest on the principal amount of the participation
so purchased for each day from and including the date such Loan would otherwise
have been made until the date of payment for such participation at the rate of
interest in effect applicable to Base Rate Loans during such period.
(e) THE DOMESTIC SWING LINE NOTE. The obligation of the Borrower to
repay the Domestic Swing Line Loans made pursuant to this Agreement and to pay
interest thereon as set forth in this Agreement shall be evidenced by a
promissory note of the Borrower with appropriate insertions substantially in the
form of Exhibit A-3 attached hereto (the "Domestic Swing Line Note"), dated the
Original Closing Date and payable to the order of the Domestic Swing Line Bank
in a principal amount stated to be the lesser of (i) the Maximum Domestic Swing
Line Loan Amount, or (ii) the aggregate principal amount of Domestic Swing Line
Loans at any time advanced by the Domestic Swing Line Bank and outstanding
thereunder. The Borrower agrees that the Domestic Swing Line Note issued under
the Existing Credit Agreement shall, from and after the Effective Date, evidence
the Domestic Swing Line Loans hereunder. The Borrower irrevocably authorizes the
Domestic Swing Line Bank to make or cause to be made, at or about the time of
the Drawdown Date of any Domestic Swing Line Loan or at the time of receipt of
any payment of principal on the Domestic Swing Line Note, an appropriate
notation on the Note Record reflecting the making of such Domestic Swing Line
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Domestic Swing Line Loans set forth on such Note Record shall be prima
facie evidence of the principal amount thereof owing and unpaid to the Domestic
Swing Line Bank, but the failure to record, or any error in so recording, any
such amount on such Note Record shall not limit or otherwise affect the actual
amount of the obligations of the Borrower hereunder or under the Domestic Swing
Line Note to make payments of principal of or interest on the Domestic Swing
Line Note when due.
SS.2.13. THE CANADIAN SWING LINE LOANS. (a) Subject to the terms and
conditions hereinafter set forth, upon notice by the Canadian Borrower made
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to the Canadian Swing Line Bank in accordance with ss.2.13(b) hereof, the
Canadian Swing Line Bank agrees to lend to the Canadian Borrower Canadian Swing
Line Loans on any Business Day from the Effective Date until the Maturity Date
in an aggregate principal amount not to exceed C$10,000,000 (the "Maximum
Canadian Swing Line Loan Amount"). Each Canadian Swing Line Loan shall be in a
minimum amount equal to C$1,000 or an integral multiple thereof. Notwithstanding
any other provisions of this Agreement and in addition to the limit set forth
above, at no time shall the aggregate principal amount of the Domestic Swing
Line Loans outstanding plus the Dollar Equivalent of the aggregate principal
amount of the Canadian Swing Line Loans outstanding exceed the Total Domestic
Commitment then in effect minus the sum of the aggregate amount of Domestic
Revolving Credit Loans then outstanding plus the aggregate Maximum Drawing
Amount of all Letters of Credit outstanding; provided however that subject to
the limitations set forth in this ss.2.13(a) from time to time the sum of the
aggregate outstanding Canadian Swing Line Loans plus all outstanding Canadian
Revolving Credit Loans made by the Canadian Swing Line Bank may exceed the
Canadian Swing Line Bank's Commitment Percentage of the Total Canadian
Commitment then in effect.
(b) NOTICE OF BORROWING. When the Canadian Borrower desires the
Canadian Swing Line Bank to make a Canadian Swing Line Loan, it shall send to
the Canadian Swing Line Bank (with a copy to the Administrative Agent) a Loan
Request, which shall set forth the principal amount of the proposed Canadian
Swing Line Loan and the Swing Line Loan Maturity Date relating thereto, which
shall in no event be later than the Maturity Date. Each such Loan Request must
be received by the Canadian Swing Line Bank not later than 12:00 p.m. (Toronto,
Ontario time) on the date of the proposed borrowing. Each such Loan Request
shall be irrevocable and binding on the Canadian Borrower and shall obligate the
Canadian Borrower to borrow the Canadian Swing Line Loan from the Canadian Swing
Line Bank on the proposed Drawdown Date thereof. Upon satisfaction of the
applicable conditions set forth in this Agreement, on the proposed Drawdown Date
the Canadian Swing Line Bank shall make the Canadian Swing Line Loan available
to the Canadian Borrower no later than 3:00 p.m. (Toronto, Ontario time) on the
proposed Drawdown Date by crediting the amount of the Canadian Swing Line Loan
to the Canadian Borrower's account maintained with the Canadian Swing Line Bank
at an office designated by the Canadian Borrower by written notice to the
Canadian Agent; provided that the Canadian Swing Line Bank shall not advance any
Canadian Swing Line Loans after it has received notice from any Bank that a
Default or Event of Default has occurred and stating that no new Canadian Swing
Line Loans are to be made until such Default or Event of Default has been cured
or waived in accordance with the provisions of this Agreement. The Canadian
Swing Line Bank shall not be obligated to make any Canadian Swing Line Loans at
any time when any Bank is a Delinquent Bank unless the Canadian Swing Line Bank
has entered into arrangements
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satisfactory to it to eliminate the Canadian Swing Line Bank's risk with respect
to such Delinquent Bank, including by cash collateralizing such Delinquent
Bank's Commitment Percentage of the outstanding Canadian Swing Line Loans and
any such additional Canadian Swing Line Loans to be made.
(c) INTEREST ON CANADIAN SWING LINE LOANS. Each Canadian Swing Line
Loan shall be a Canadian Base Rate Loan and, except as otherwise provided in
ss.6.3 hereof, shall bear interest from the Drawdown Date thereof until repaid
in full at the rate per annum equal to the Canadian Base Rate plus the
Applicable Margin, which shall be paid quarterly in arrears on the last day of
each calendar quarter.
(d) REPAYMENT OF CANADIAN SWING LINE LOANS. The Canadian Borrower shall
repay each outstanding Canadian Swing Line Loan on or prior to the Swing Line
Loan Maturity Date relating thereto. Upon notice by the Canadian Swing Line Bank
on any Business Day (whether before or on the Maturity Date), each of the
Domestic Banks hereby agrees to make payments in Dollars to the Administrative
Agent, for the account of the Canadian Swing Line Bank, on the next succeeding
Business Day following such notice, in an amount equal to such Bank's Domestic
Commitment Percentage of the Dollar Equivalent of the aggregate amount of all
Canadian Swing Line Loans outstanding. The parties hereto agree that such
payments made to the Administrative Agent for the account of the Canadian Swing
Line Bank shall constitute Domestic Revolving Credit Loans made to the Borrower
hereunder, and shall be deemed to have been requested by the Borrower as
Domestic Revolving Credit Loans for the purpose of repaying the Borrower's
obligations under the Canadian Guaranty to the Canadian Swing Line Bank, and
shall constitute a Domestic Base Rate Loan. The proceeds thereof shall be
applied directly to the Canadian Swing Line Bank to repay the Canadian Swing
Line Bank for such outstanding Canadian Swing Line Loans and the Borrower hereby
authorizes such direct payment. Each Domestic Bank hereby absolutely,
unconditionally and irrevocably agrees to make such Domestic Revolving Credit
Loans upon one Business Day's notice as set forth above, notwithstanding (i)
that the amount of such Loan may not comply with the applicable minimums set
forth in ss.2.3 hereof, (ii) the failure of the Borrower to meet the conditions
set forth in ss.ss.9 or 10 hereof, (iii) the occurrence or continuance of a
Default or an Event of Default hereunder, (iv) the date of such Loan, and (v)
the Total Domestic Commitment in effect at such time. In the event that it is
impracticable for such payments to be made to the Administrative Agent or the
Canadian Swing Line Bank or such Loan to be made for any reason on the date
otherwise required above, then each Domestic Bank hereby agrees that it shall
forthwith purchase (as of the date such Loan would have been made, but adjusted
for any payments received from the Canadian Borrower or the Borrower on or after
such date and prior to such purchase) from the Canadian Swing Line Bank, and the
Canadian Swing Line Bank shall sell to each Domestic Bank, such participations
in Dollars in the
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Canadian Swing Line Loans (including all accrued and unpaid interest thereon)
outstanding as shall be necessary to cause the Domestic Banks to share in such
Canadian Swing Line Loans pro rata based on their respective Domestic Commitment
Percentages (without regard to any termination of the Total Domestic Commitment)
by making available to the Canadian Swing Line Bank an amount in Dollars equal
to such Bank's Dollar Equivalent of its participation in the Canadian Swing Line
Loans; provided that (x) all interest payable on the Canadian Swing Line Loans
shall be for the account of the Canadian Swing Line Bank as a funding and
administrative fee until the date as of which the respective participation is
purchased (unless paid to the Canadian Swing Line Bank pursuant to clause (y)
below), and (y) at the time any purchase of such participation is actually made,
the purchasing Bank shall be required to pay the Canadian Swing Line Bank
interest on the principal amount of the participation so purchased for each day
from and including the date such Loan would otherwise have been made until the
date of payment for such participation at the rate of interest in effect
applicable to Base Rate Loans during such period.
(e) THE CANADIAN SWING LINE NOTE. The obligation of the Canadian
Borrower to repay the Canadian Swing Line Loans made pursuant to this Agreement
and to pay interest thereon as set forth in this Agreement shall be evidenced by
a promissory note of the Canadian Borrower with appropriate insertions
substantially in the form of Exhibit A-4 attached hereto (the "Canadian Swing
Line Note"), dated the Original Closing Date and payable to the order of the
Canadian Swing Line Bank in a principal amount stated to be the lesser of (i)
the Maximum Canadian Swing Line Loan Amount, or (ii) the aggregate principal
amount of Canadian Swing Line Loans at any time advanced by the Canadian Swing
Line Bank and outstanding thereunder. The Borrower agrees that the Canadian
Swing Line Note issued under the Existing Credit Agreement shall, from and after
the Effective Date, evidence the Canadian Swing Line Loans hereunder. The
Canadian Borrower irrevocably authorizes the Canadian Swing Line Bank to make or
cause to be made, at or about the time of the Drawdown Date of any Canadian
Swing Line Loan or at the time of receipt of any payment of principal on the
Canadian Swing Line Note, an appropriate notation on the Note Record reflecting
the making of such Canadian Swing Line Loan or (as the case may be) the receipt
of such payment. The outstanding amount of the Canadian Swing Line Loans set
forth on such Note Record shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Canadian Swing Line Bank, but the failure to
record, or any error in so recording, any such amount on such Note Record shall
not limit or otherwise affect the actual amount of the obligations of the
Canadian Borrower hereunder or under the Canadian Swing Line Note to make
payments of principal of or interest on the Canadian Swing Line Note when due.
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SS.3. LETTERS OF CREDIT.
SS.3.1. LETTERS OF CREDIT. Subject to the terms and conditions set
forth in this Agreement, upon written request of the Borrower delivered to the
Letter of Credit Bank and upon the execution and delivery by the Borrower of
Reimbursement Agreements with the Letter of Credit Bank (with a copy to the
Administrative Agent), the Letter of Credit Bank shall issue, extend and renew
at any time from the Effective Date until the Maturity Date, and subject to the
satisfaction of the conditions precedent set forth in ss.ss.9 and 10 hereof,
Letters of Credit in such form as the Borrower and the Letter of Credit Bank
may agree for the account of the Borrower or any of its Subsidiaries, provided
that at no time shall the Maximum Drawing Amount of all Letters of Credit
outstanding exceed $50,000,000 or, if less, the Total Domestic Commitment, and
provided further that at no time shall the sum of (a) the aggregate principal
amount of all Domestic Revolving Credit Loans outstanding, plus (b) the
aggregate principal amount of all Domestic Swing Line Loans outstanding, plus
(c) the Dollar Equivalent of the aggregate principal amount of all Canadian
Swing Line Loans outstanding, plus (d) the aggregate Maximum Drawing Amount of
all Letters of Credit outstanding exceed the lesser of (A) the remainder of (i)
the Borrowing Base Amount then in effect minus (ii) the Dollar Equivalent of
the aggregate amount of Canadian Revolving Credit Loans then outstanding minus
(iii) the Dollar Equivalent of the aggregate face amount of Bankers'
Acceptances then outstanding or (B) the Total Domestic Commitment then in
effect. Each written request for the issuance of a Letter of Credit hereunder
shall be received by the Letter of Credit Bank at least ten (10) Business Days
prior to the proposed date of issuance, provided that the Letter of Credit Bank
shall use its best efforts to issue such Letter of Credit within five (5)
Business Days following its receipt of any written request therefor. The expiry
dates, amounts and beneficiaries of the Letters of Credit will be as agreed by
the Borrower and the Letter of Credit Bank in the applicable Reimbursement
Agreement. The Borrower may request, and the Letter of Credit Bank upon terms
and conditions approved by the Borrower shall issue, substitute Letters of
Credit for the Letters of Credit to reflect reductions in the amount of the
Borrower's obligations supported by such Letters of Credit. Each Letter of
Credit issued by the Letter of Credit Bank hereunder shall identify: (i) the
dates of issuance and expiry of such Letter of Credit, (ii) the amount of such
Letter of Credit (which shall be a sum certain), (iii) the beneficiary and
account party of such Letter of Credit, and (iv) the drafts and other documents
necessary to be presented to the issuing bank upon drawing thereunder. Each
Letter of Credit issued hereunder shall expire one year after its date of
issuance unless renewed by the Letter of Credit Bank in accordance with the
terms of such Letter of Credit. In no event shall any Letter of Credit issued
hereunder expire after the Maturity Date.
SS.3.2. EFFECTS OF DRAWINGS. Upon the payment by the Letter of Credit
Bank in respect of each drawing under a Letter of Credit, the unreimbursed
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amount of the payment shall be deemed to be a Revolving Credit Loan that is a
Base Rate Loan, made on the date of such payment by the Letter of Credit Bank,
for all purposes of this Agreement. The liability of the Borrower under this
Agreement to repay the Banks in respect of drawings under Letters of Credit
shall be Obligations hereunder and shall be secured pursuant to the Security
Documents.
SS.3.3. LETTER OF CREDIT LOAN OBLIGATIONS ABSOLUTE. (a) The
obligations of the Borrower to repay the Letter of Credit Bank and the Banks as
provided hereunder in respect of drawings under Letters of Credit shall rank
pari passu with the obligations of the Borrower to repay the Loans hereunder,
and shall be absolute and unconditional under any and all circumstances.
Without limiting the generality of the foregoing, the Borrower's obligation to
repay the Borrower's obligations in respect of drawings under Letters of
Credit, or any renewals or extensions thereof, shall not be subject to any
defense based on the non-application or misapplication by the beneficiary of
the proceeds of any such payment or the legality, validity, regularity or
enforceability of the Letter of Credit, or any renewal or extension thereof, or
any other document whatsoever. Subject to the limitations of the following
sentence, the Letter of Credit Bank may accept or pay any draft presented to it
under any Letter of Credit, or any renewal or extension thereof, regardless of
when drawn or made and whether or not negotiated, if such draft, accompanying
certificate or documents and any transmittal advice are presented on or before
the expiry date of the Letter of Credit, or the renewal or extension thereof
then in effect. Furthermore, neither the Letter of Credit Bank nor any of its
correspondents shall be responsible, as to any document presented under a
Letter of Credit or any renewal or extension thereof which appears to be
regular on its face, and appears on its face to conform to the terms of the
Letter of Credit and to make reasonable reference thereto, for the validity or
sufficiency of any signature or endorsement, for delay in giving any notice or
failure of any instrument to bear adequate reference to the Letter of Credit or
to any renewal or extension thereof, or failure of documents not clearly
specified in the Letter of Credit to accompany any instrument at negotiation,
or for failure of any person to note the amount of any draft on the reverse of
the Letter of Credit or on any renewal or extension thereof.
(b) Any action, inaction or omission on the part of the Letter of
Credit Bank or any of its correspondents under or in connection with any Letter
of Credit, or any renewal or extension thereof, or the related instruments,
documents or property, if in good faith and in conformity with such laws,
regulations or customs as are applicable and the terms of this ss.3.3, shall be
binding upon the Borrower and shall not place the Letter of Credit Bank or any
of its correspondents under any liability to the Borrower, in the absence of
gross negligence or willful misconduct by the Letter of Credit Bank or its
correspondents. The Letter of Credit Bank's rights, powers, privileges and
immunities specified in or arising under this Agreement are in addition to any
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heretofore or at any time hereafter otherwise created or arising, whether by
statute or rule of law or contract. All Letters of Credit issued hereunder
will, except to the extent otherwise expressly provided hereunder, be governed
by the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500, and any subsequent
revisions thereof.
SS.3.4. OBLIGATIONS OF THE BANKS. (a) Each Domestic Bank and the
Borrower hereby acknowledge that each Letter of Credit issued by the Letter of
Credit Bank pursuant to this Agreement is issued by the Letter of Credit Bank
on behalf of all of the Domestic Banks. Each Domestic Bank (other than the
Letter of Credit Bank) absolutely, unconditionally and irrevocably agrees to
reimburse the Letter of Credit Bank in an amount equal to such Bank's Domestic
Commitment Percentage of each drawing under any Letter of Credit made in
accordance with this ss.3 and to be responsible for its Commitment Percentage
of all liabilities incurred by the Letter of Credit Bank in respect of each
Letter of Credit opened or extended by the Letter of Credit Bank for the
account of the Borrower pursuant to this Agreement. In the event that for any
reason (including without limitation as a result of the commencement of any
proceedings under any bankruptcy, reorganization, insolvency or other similar
law with respect to the Borrower) it is impracticable for any Domestic Bank to
reimburse the Letter of Credit Bank in an amount equal to such Bank's Domestic
Commitment Percentage of any drawing under any Letter of Credit, then each such
Bank agrees that at the option of the Letter of Credit Bank it shall purchase a
participation in, or take an assignment from the Letter of Credit Bank of, the
Borrower's obligation to repay the Letter of Credit Bank in respect of such
drawing under such Letter of Credit in an amount equal such Bank's Domestic
Commitment Percentage of such drawing under the Letter of Credit. The
obligations of the Domestic Banks hereunder are several and the failure of any
Domestic Bank to fulfill its obligations shall not result in any Bank becoming
obligated to advance more than its Domestic Commitment Percentage of such
drawing under such Letter of Credit.
(b) The Letter of Credit Bank, upon receipt of any draft drawn under a
Letter of Credit, shall promptly examine such draft and any accompanying
certificate or other document in accordance with this ss.3 and with its
customary procedures for conformity to the requirements of such Letter of
Credit. In the event the Letter of Credit Bank determines to pay such draft in
accordance with the foregoing, each Bank shall, and hereby absolutely,
unconditionally and irrevocably agrees, to contemporaneously provide to the
Letter of Credit Bank, in funds immediately available to the Letter of Credit
Bank, such Bank's Commitment Percentage of the funds necessary to pay such
draft.
(c) Each Bank agrees with the Letter of Credit Bank and the other
Banks (other than the Letter of Credit Bank) that its obligations to provide to
the Letter of Credit Bank its Domestic Commitment Percentage of the amount
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of any draft drawn under any Letter of Credit in accordance with this ss.3.4
shall be absolute, irrevocable and unconditional and further agrees that such
obligations shall not be affected in any way by any intervening circumstances
occurring before or after the making of such payment by the Letter of Credit
Bank pursuant to any Letter of Credit, including without limitation:
(i) any modification or amendment of, or any consent, waiver,
release or forbearance with respect to, any of the terms of this
Agreement or any other instrument or document referred to herein;
(ii) any other act or omission to act of any kind by the
Letter of Credit Bank;
(iii) the existence of any Default or Event of Default; or
(iv) any change of any kind whatsoever in the financial
position or creditworthiness of the Borrower or any of its
Subsidiaries or any other Person.
SS.4. BANKERS' ACCEPTANCES.
SS.4.1. ACCEPTANCE AND PURCHASE. Subject to the terms and conditions
hereof, each Canadian Bank severally agrees to accept and purchase Bankers'
Acceptances drawn upon it by the Canadian Borrower denominated in Canadian
Dollars. The Canadian Borrower shall notify the Canadian Agent by irrevocable
written notice (each a "Bankers' Acceptance Notice") at least one (1) Business
Day prior to the date of any borrowing by way of Bankers' Acceptances. Each
borrowing by way of Bankers' Acceptances shall be in a minimum aggregate face
amount of C$1,000,000 or an integral multiple of C$100,000 thereof. The face
amount of each Bankers' Acceptance shall be C$100,000 or any integral multiple
thereof. Each Bankers' Acceptance Notice shall be in the form of Exhibit J. In
no event shall the Dollar Equivalent of the aggregate face amount of all
outstanding Bankers' Acceptances exceed the lesser of (a) the remainder of (i)
Borrowing Base Amount then in effect minus (ii) the aggregate principal amount
of the Domestic Revolving Credit Loans outstanding minus (iii) the aggregate
principal amount of the Domestic Swing Line Loans outstanding minus (iv) the
Dollar Equivalent of the aggregate principal amount of the Canadian Swing Line
Loans outstanding minus (v) the aggregate Maximum Drawing Amount of all Letters
of Credit and (b) the remainder of (1) the Total Canadian Commitment minus (2)
the Dollar Equivalent of the outstanding amount of all Canadian Revolving
Credit Loans.
(a) Term. Each Bankers' Acceptance shall be issued and shall mature on
a Canadian Business Day. Each Bankers' Acceptance shall have a term of 30, 60,
90 or 180 days, shall mature no later than five (5) days prior to the
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Maturity Date, and shall be in form and substance reasonably satisfactory to
the Canadian Bank which is accepting such Bankers' Acceptance.
(b) Bankers' Acceptances in Blank. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, the Canadian Borrower shall, on the
Effective Date and from time to time as required, provide to the Canadian Agent
bills of exchange, in form satisfactory to the Canadian Agent, duly executed
and endorsed in blank by the Canadian Borrower in quantities sufficient for
each Canadian Bank to fulfill its obligations hereunder. In addition, the
Canadian Borrower hereby appoints each Canadian Bank as its attorney to sign
and endorse on its behalf, in handwriting or by facsimile or mechanical
signature as and when deemed necessary by such Canadian Bank, blank forms of
Bankers' Acceptances. The Canadian Borrower recognizes and agrees that all
Bankers' Acceptances signed and/or endorsed on its behalf by a Canadian Bank
shall bind the Canadian Borrower as fully and effectually as if signed in the
handwriting of and duly issued by the proper signing officers of the Canadian
Borrower. Each Canadian Bank is hereby authorized to issue such Bankers'
Acceptances endorsed in blank in such face amounts as may be determined by such
Canadian Bank provided that the aggregate amount thereof is equal to the
aggregate amount of Bankers' Acceptances required to be accepted by such Bank
pursuant to clause (d) below. Neither any Canadian Bank nor the Canadian Agent
shall be responsible or liable for its failure to accept a Bankers' Acceptance
if the cause of such failure is, in whole or in part, due to the failure of the
Canadian Borrower to provide duly executed and endorsed bills of exchange to
the Canadian Agent on a timely basis nor shall any Canadian Bank or the
Canadian Agent be liable for any damage, loss or other claim arising by reason
of any loss or improper use of any such instrument except loss or improper use
arising by reason of the negligence or willful misconduct of such Bank or the
Canadian Agent, its officers, employees, agents or representatives. Each
Canadian Bank shall maintain a record with respect to Bankers' Acceptances (i)
received by it from the Canadian Agent in blank hereunder, (ii) voided by it
for any reason, (iii) accepted by it hereunder, (iv) purchased by it hereunder,
and (v) cancelled at their respective maturities. Each Canadian Bank further
agrees to retain such records in the manner and for the statutory periods
provided in the various Canadian provincial or federal statutes and regulations
which apply to such Bank.
(c) Execution of Bankers' Acceptances. Bills of exchange of the
Canadian Borrower to be accepted as Bankers' Acceptances hereunder shall be
duly executed by one or more duly authorized officers on behalf of the Canadian
Borrower. Notwithstanding that any person whose signature appears on any
Bankers' Acceptance as a signatory for the Canadian Borrower may no longer be
an authorized signatory for the Canadian Borrower at the date of issuance of a
Bankers' Acceptance, such signature shall nevertheless be valid and sufficient
for all purposes as if such authority had remained in force at the time of such
issuance and any such Bankers' Acceptance so signed shall
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be binding on the Canadian Borrower, unless the Canadian Bank accepting such
Bankers' Acceptance has actual knowledge that such signatory is no longer an
authorized signatory.
(d) Issuance of Bankers' Acceptances. Promptly following receipt of a
Bankers' Acceptance Notice, the Canadian Agent shall so advise the Canadian
Banks of the face amount of each Bankers' Acceptance to be accepted by it and
the term thereof. The aggregate face amount of Bankers' Acceptances to be
accepted by a Canadian Bank shall be determined by the Canadian Agent by
reference to the respective Canadian Commitments of the Canadian Banks, except
that, if the face amount of a Bankers' Acceptance, which would otherwise be
accepted by a Canadian Bank, would not be C$100,000 or an integral multiple
thereof, such face amount shall be increased or reduced by the Canadian Agent
in its sole and absolute discretion to the nearest integral multiple of
C$100,000.
(e) Acceptance of Bankers' Acceptances. Each Bankers' Acceptance to be
accepted by a Canadian Bank shall be accepted at such Bank's office shown on
Schedule 1.1 hereof or as otherwise designated by said Canadian Bank from time
to time.
(f) Purchase of Bankers' Acceptances. On the relevant date of
borrowing, each Canadian Bank severally agrees to purchase from the Canadian
Borrower, at the face amount thereof discounted by the Applicable BA Discount
Rate, any Bankers' Acceptance accepted by it and provide to the Canadian Agent,
for the account of the Canadian Borrower, the BA Discount Proceeds in respect
thereof after deducting therefrom the amount of the Acceptance Fee payable by
the Canadian Borrower to such Bank under ss.4.3 in respect of such Bankers'
Acceptance.
(g) Sale of Bankers' Acceptances. Each Canadian Bank may at any time
and from time to time hold, sell, rediscount or otherwise transfer, in each
case to a financial institution or bank resident in Canada, any or all Bankers'
Acceptances accepted and purchased by it.
(h) Waiver of Presentment and Other Conditions. The Canadian Borrower
waives presentment for payment and any other defense to payment of any amounts
due to a Canadian Bank in respect of a Bankers' Acceptance accepted by such
Canadian Bank pursuant to this Agreement which might exist solely by reason of
such Bankers' Acceptance being held, at the maturity thereof, by such Bank in
its own right. The Canadian Borrower shall not claim or require any days of
grace or require the Canadian Agent or any Canadian Bank to claim any days of
grace for the payment of any Bankers' Acceptance.
SS.4.2. REFUNDING BANKERS' ACCEPTANCES. With respect to each Bankers'
Acceptance, the Canadian Borrower, except during the occurrence and
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continuation of an Event of Default, may give irrevocable telephone or written
notice (or such other method of notification as may be agreed upon between the
Canadian Agent and the Canadian Borrower) to the Canadian Agent on the Business
Day prior to such maturity date of such Bankers' Acceptance of the Canadian
Borrower's intention to issue one or more Bankers' Acceptances on such maturity
date (each a "Refunding Bankers' Acceptance") to provide for the payment of
such maturing Bankers' Acceptance (it being understood that payments by the
Canadian Borrower and fundings by the Canadian Banks in respect of each
maturing Bankers' Acceptance and each related Refunding Bankers' Acceptance
shall be made on a net basis reflecting the difference between the face amount
of such maturing Bankers' Acceptance and the BA Discount Proceeds (net of the
applicable Acceptance Fee) of such Refunding Bankers' Acceptance). Any funding
on account of any maturing Bankers' Acceptance must be made at or before 12:00
noon (Toronto, Ontario time) on the maturity date of such Bankers' Acceptance.
If the Canadian Borrower fails to give such notice, the Canadian Borrower shall
be irrevocably deemed to have requested and to have been advanced a Canadian
Revolving Credit Loan bearing interest at the Canadian Base Rate in the face
amount of such maturing Bankers' Acceptance on the maturity date of such
maturing Bankers' Acceptance from the Canadian Bank which accepted such
maturing Bankers' Acceptance, which Loan shall thereafter bear interest as such
in accordance with the provisions hereof and otherwise shall be subject to all
provisions of this Agreement applicable to Canadian Revolving Credit Loans
until paid in full.
SS.4.3. ACCEPTANCE FEE. An acceptance fee (the "Acceptance Fee") shall
be payable by the Canadian Borrower to each Canadian Bank and each Canadian
Bank shall deduct the amount of such Acceptance Fee from the BA Discount
Proceeds (in the manner specified in ss.4.1(f) in respect of each Bankers'
Acceptance), said fee to be calculated at a rate per annum equal to the
Applicable Acceptance Fee Rate calculated on the face amount of such Bankers'
Acceptance and computed on the basis of the number of days in the term of such
Bankers' Acceptance and a year of 365 days.
SS.4.4. CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE. If, by
reason of circumstances affecting the money market generally, there is no
market for Bankers' Acceptances (i) the right of the Canadian Borrower to
request a borrowing of Bankers' Acceptances shall be suspended until the
circumstances causing a suspension no longer exist, and (ii) any Bankers'
Acceptance Notice which is outstanding shall be cancelled and the requested
borrowing shall not be made.
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SS.5. FEES.
SS.5.1. COMMITMENT FEE.
(a) The Borrower shall pay to the Administrative Agent for the
respective accounts of the Domestic Banks a commitment fee (the "Domestic
Commitment Fee") at the rate per annum equal to the Applicable Margin then in
effect on the daily average amount during each quarter or portion thereof from
the date hereof to the Maturity Date by which the Total Domestic Commitment
exceeded the sum of the aggregate principal balance of Revolving Credit Loans
outstanding plus the maximum Drawing Amount of all Letters of Credit
outstanding. The Domestic Commitment Fee shall be payable quarterly in arrears
on the last day of each March, June, September and December for the immediately
preceding quarter or portion thereof, commencing on the first such date after
the Effective Date with a final payment on the Maturity Date or any earlier
date on which the Total Domestic Commitment shall terminate.
(b) The Canadian Borrower shall pay to the Canadian Agent for the
respective accounts of the Canadian Banks a commitment fee (the "Canadian
Commitment Fee") at the rate per annum equal to the Applicable Margin then in
effect on the daily average amount during each quarter or portion thereof from
the date hereof to the Maturity Date by which the Canadian Dollar Equivalent of
the Total Canadian Commitment exceeded the sum of the aggregate principal
balance of Canadian Revolving Credit Loans outstanding plus the aggregate face
amount of Bankers' Acceptances outstanding. The Canadian Commitment Fee shall
be payable quarterly in arrears on the last day of each March, June, September
and December for the immediately preceding quarter or portion thereof,
commencing on the first such date after the Effective Date with a final payment
on the Maturity Date or any earlier date on which the Total Canadian Commitment
shall terminate.
SS.5.2. LETTER OF CREDIT FEE. The Borrower shall pay to the Letter of
Credit Bank a fee (the "Letter of Credit Fee") for each Letter of Credit issued
or renewed by the Letter of Credit Bank at a rate per annum (except as provided
in ss.6.3 hereof) equal to the Applicable Margin in effect from time to time on
the Maximum Drawing Amount of such Letter of Credit for the period such Letter
of Credit is outstanding. The Letter of Credit Bank shall, in turn, remit to
each Domestic Bank (including BKB) such Bank's Domestic Commitment Percentage
of the Letter of Credit Fee. In addition, the Borrower will pay the Letter of
Credit Bank a Fronting Fee (the "Fronting Fee") equal to one-tenth of one
percent (0.10%) per annum on the Maximum Drawing Amount of such Letter of
Credit for the period such Letter of Credit is outstanding, which shall be
retained by the Letter of Credit Bank for its own account. The Letter of Credit
Fee and the Fronting Fee shall be payable quarterly in arrears on the last day
of each calendar quarter.
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SS.5.3. CLOSING FEE. The Borrower agrees to pay to the Administrative
Agent on the Effective Date the Closing Fee as set forth in the Fee Letter.
Without limiting the obligations of the Canadian Borrower under the Guaranties,
nothing contained in this ss.5.3 shall impose any obligation on the Canadian
Borrower.
SS.5.4. ADMINISTRATIVE AGENT'S FEE. The Borrower shall pay to the
Administrative Agent, for its own account, the Administrative Agent's Fee as
set forth in the Fee Letter. Without limiting the obligations of the Canadian
Borrower under the Guaranties, nothing contained in this ss.5.4 shall impose
any obligation on the Canadian Borrower.
SS.6. CERTAIN GENERAL PROVISIONS.
SS.6.1. PAYMENTS. All payments hereunder (whether of principal,
interest, Reimbursement Obligations, Commitment Fees, Letter of Credit Fees,
Fronting Fees, Administrative Agent's Fees or otherwise) shall be made by the
Borrower and the Canadian Borrower to the applicable Agent in immediately
available funds at the Head Office of such Agent no later than 1:00 p.m. (local
time for such Agent). Payments hereunder shall be applied as provided herein;
provided that during such time as any amounts owed by the Borrower or the
Canadian Borrower hereunder are overdue, all payments received hereunder shall
be applied first to all amounts overdue starting with amounts most overdue and
continuing with amounts next most overdue until all such overdue amounts are
paid in full, and then to all other amounts due at such time as provided
herein.
SS.6.2. COMPUTATIONS. All computations of interest on the Loans (other
than Eurodollar Rate Loans), the Commitment Fees and all other fees shall be
based on a 365-day year and paid for the actual number of days elapsed. All
computations of interest on Eurodollar Rate Loans shall be based on a 360-day
year and paid for the actual number of days elapsed. For purposes of the
Interest Act (Canada), (i) whenever any interest or fee under this Agreement is
calculated using a base rate on a year of 360 days or 365 days, as the case may
be, the rate determined pursuant to such calculation, when expressed as an
annual rate, is equivalent to (x) the applicable rate based on a year of 360
days or 365 days, as the case may be, (y) multiplied by the actual number of
days in the calendar year in which the period for which such interest or fee is
payable (or compounded) ends, and (z) divided by 360 or 365, as the case may
be, (ii) the principle of deemed reinvestment of interest does not apply to any
interest calculation under this Agreement, and (iii) the rates of interest
stipulated in this Agreement are intended to be nominal rates and not effective
rates or yields. Except as otherwise provided in the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to
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the next succeeding Business Day, and interest and all applicable fees shall
accrue during such extension. The outstanding amount of the Loans as reflected
on the Note Records from time to time and any calculation of interest thereon
shall be considered correct and binding on the Borrower and the Canadian
Borrower absent manifest error, unless within five (5) Business Days after
receipt of any notice by an Agent or any of the Banks of such outstanding
amount, such Agent or such Bank shall notify the Borrower or the Canadian
Borrower to the contrary.
SS.6.3. INTEREST RATE UPON EVENT OF DEFAULT. Upon the occurrence and
during the continuance of any Event of Default, principal and (to the extent
permitted by applicable law) interest on the Loans, the Letter of Credit Fee(s)
and all other amounts payable hereunder shall bear interest compounded monthly
and payable on demand at a rate per annum equal to 2% above the rate otherwise
in effect for such Loans or Letter(s) of Credit, to accrue from the date any
Event of Default occurs until the obligation of the Borrower and/or the
Canadian Borrower, as the case may be, with respect to the payment thereof
shall be discharged whether before or after judgment.
SS.6.4. INTEREST LIMITATION. Notwithstanding any other term of this
Agreement or any other document referred to herein, the maximum amount of
interest which may be charged to or collected from any person liable hereunder
shall be absolutely limited to, and shall in no event exceed, the maximum
amount of interest which could lawfully be charged or collected under
applicable law (including, to the extent applicable, the provisions of ss.5197
of the Revised Statutes of the United States of America, as amended, 12 U.S.C.
ss.85, as amended), so that the maximum of all amounts constituting interest
under applicable law, howsoever computed, shall never exceed as to any person
liable therefor such lawful maximum, and any term of this Agreement or any
other document referred to herein which could be construed as providing for
interest in excess of such lawful maximum shall be and hereby is made expressly
subject to and modified by the provisions of this ss.6.4.
SS.6.5. CAPITaL ADEQUACY. If any change in law or any governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental
authority with appropriate jurisdiction affects the amount of capital required
or expected to be maintained by any Bank or any corporation controlling any
Bank and such Bank in good faith determines that the amount of capital required
is increased by or based upon the existence of the credit facility established
hereunder or any Loans made or Letters of Credit issued pursuant hereto, then
such Bank may notify the Borrower and/or the Canadian Borrower, as applicable,
of such fact. To the extent that the costs of such increased capital
requirements are not reflected in the Base Rate, the Borrower and/or the
Canadian Borrower and the Banks shall thereafter attempt to negotiate in good
faith an adjustment to the compensation payable hereunder which will adequately
compensate the
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Banks in light of these circumstances. If the Borrower and/or
the Canadian Borrower and the Banks are unable to agree to such adjustment
within 30 days of the day on which the Borrower or the Canadian Borrower
receives such notice, then commencing on the date of such notice (but not
earlier than the effective date of any such change), the fees payable hereunder
shall increase by an amount certified (with reasonably detailed calculations)
to the Borrower or the Canadian Borrower pursuant to ss.6.7 hereof which will,
in the applicable Bank's reasonable determination, provide adequate
compensation. The Banks shall allocate such cost increases among their
customers in good faith and on an equitable basis.
SS.6.6. ADDITIONAL COSTS, ETC. If any present or future applicable
law, which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Bank or Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to
this Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Loans (other than taxes based upon or
measured by the income or profits of such Bank or Agent) which could
also affect other similar agreements, loans, letters of credit or
commitments of such Bank or Agent, as the case may be, or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the
principal of or the interest on any Loans or any other amounts payable
to any Bank or Agent under this Agreement or any of the other Loan
Documents, or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Bank, or
(d) impose on any Bank or Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment,
or any class of loans, letters of credit or commitments of which any
of the Loans, the Letters of Credit or such Bank's Commitment forms a
part, which could also affect other similar agreements, loans, letters
of credit
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or commitments of such Bank or Agent, as the case may be, and the
result of any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment or any Letter of Credit,
or
(ii) to reduce the amount of principal, interest, or
other amount payable to such Bank or Agent hereunder on
account of such Bank's Commitment, any Letter of Credit or any
of the Loans, or
(iii) to require such Bank or Agent to make any
payment or to forego any interest or other sum payable
hereunder, the amount of which payment or foregone interest
or other sum is calculated by reference to the gross amount
of any sum receivable or deemed received by such Bank or
Agent from the Borrower or the Canadian Borrower hereunder,
then, and in each such case, the Borrower or the Canadian Borrower, as
applicable, will (to the extent lawful), upon demand made by such Bank or (as
the case may be) such Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the applicable Agent such
additional amounts as will be sufficient to compensate such Bank or such Agent
for such additional cost, reduction, payment or foregone interest or other sum.
SS.6.7. BANK CERTIFICATES. A certificate signed by an officer of a
Bank, setting forth any additional amount required to be paid by the Borrower
or the Canadian Borrower to such Bank under ss.ss.6.5 or 6.6 hereof and the
basis therefor, shall be delivered by a Bank to the Borrower or the Canadian
Borrower in connection with each demand made at any time by such Bank upon the
Borrower or the Canadian Borrower under such section, and each such certificate
shall constitute prima facie evidence of the additional amount required to be
paid by the Borrower or the Canadian Borrower, as applicable, to such Bank. A
claim by a Bank for all or any part of any additional amount required to be
paid by the Borrower or the Canadian Borrower under ss.ss.6.5 or 6.6 hereof may
be made at any time and from time to time as often as the occasion therefor may
arise. To the extent applicable, the Banks shall allocate all such cost
increases among their customers in good faith and on an equitable basis. The
Borrower or the Canadian Borrower, as applicable, shall not be required to pay
additional amounts under ss.ss.6.5 or 6.6 hereof which accrue or are incurred
more than ninety (90) days before an Agent or a Bank has given notice to the
Borrower or the Canadian Borrower pursuant to this ss.6.7.
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SS.6.8. PAYMENTS TO BE FREE OF DEDUCTIONS. All payments by the
Borrower and the Canadian Borrower under this Agreement and under any of the
other Loan Documents shall be made without set-off or counterclaim.
SS.6.9. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to
the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Administrative Agent or the Canadian Agent shall determine or be notified
by the Majority Banks that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan during any Interest
Period, the Administrative Agent or the Canadian Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrower, the Canadian Borrower and the Banks) to the Borrower, the Canadian
Borrower and the Banks. In such event (i) any Loan Request or Conversion
Request with respect to Eurodollar Rate Loans shall be automatically withdrawn
and shall be deemed a request for Base Rate Loans, (ii) each Eurodollar Rate
Loan will automatically, on the last day of the then current Interest Period
relating thereto, become a Base Rate Loan, and (iii) the obligations of the
Banks to make Eurodollar Rate Loans shall be suspended until the Administrative
Agent, the Canadian Agent or the Majority Banks determines that the
circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent, the Canadian Agent or, as the case may be, the
Administrative Agent or the Canadian Agent upon the instruction of the Majority
Banks, shall so notify the Borrower, the Canadian Borrower and the Banks.
SS.6.10. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Rate Loans, such Bank shall forthwith give notice
of such circumstances to the Borrower, the Canadian Borrower and the other
Banks and thereupon (i) the commitment of such Bank to make Eurodollar Rate
Loans or convert Loans of another Type to Eurodollar Rate Loans shall forthwith
be suspended and (ii) such Bank's Loans then outstanding as Eurodollar Rate
Loans, if any, shall be converted automatically to Base Rate Loans on the last
day of each Interest Period applicable to such Eurodollar Rate Loans or within
such earlier period as may be required by law. The Borrower and the Canadian
Borrower hereby agree promptly to pay the Administrative Agent for the account
of each Domestic Bank and the Canadian Agent for the account of each Canadian
Bank, upon demand by such Bank, any additional amounts due under ss.6.11 hereof
in connection with any conversion in accordance with this ss.6.10.
SS.6.11. INDEMNITY. The Borrower and the Canadian Borrower agree to
indemnify each Bank and to hold each Bank harmless from and against any loss,
cost or expense (excluding loss of anticipated profits) that such Bank may
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sustain or incur as a consequence of (i) default by the Borrower or the
Canadian Borrower in payment of the principal amount of or any interest on any
Eurodollar Rate Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Eurodollar Rate Loans, (ii) failure by
the Borrower or Canadian Borrower in making a borrowing or conversion after the
Borrower or Canadian Borrower has given (or is deemed to have given) a Loan
Request or a Conversion Request relating thereto in accordance with ss.ss.2.6
or 2.7 hereof or (iii) the making of any payment of a Eurodollar Rate Loan or a
Bankers' Acceptance or the making of any conversion of any such Eurodollar Rate
Loan to a Base Rate Loan on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain any such
Loans.
SS.6.12. CURRENCY OF PAYMENT. Except as provided in ss.31, payments of
principal or interest with respect to any Loan or obligation with respect to
Letters of Credit or Bankers' Acceptances shall be made in the currency in
which such Loan was advanced or in which such Letter of Credit or such Bankers'
Acceptance was issued; provided, that with respect to Domestic Revolving Credit
Loans deemed made to the Borrower pursuant to ss.2.13(d) in repayment of
Canadian Swing Line Loans made to the Canadian Borrower, the principal and
interest on such Domestic Revolving Credit Loans shall be repaid in Dollars.
SS.6.13. CURRENCY FLUCTUATIONS. (a) Not later than 1:00 p.m. (Boston
time) on the last Business Day of each calendar month or any other Business Day
if requested by the Canadian Agent before 10:00 a.m. on such day (the
"Calculation Date"), the Administrative Agent shall determine the Exchange Rate
as of such date. The Exchange Rate so determined shall become effective on the
first Business Day immediately following such determination (a "Reset Date")
and shall remain effective until the next succeeding Reset Date. Nothing
contained in this ss.6.13 shall be construed to require the Administrative
Agent to calculate compliance under this ss.6.13 more frequently than once each
month, unless requested to do so by the Canadian Agent pursuant to the first
sentence of this ss.6.13(a).
(b) Not later than 4:00 p.m. (Boston time) on each Reset Date, the
Administrative Agent shall, in consultation with the Canadian Agent, determine
the Dollar Equivalent of the outstanding Canadian Revolving Credit Loans and
Bankers' Acceptances.
(c) If, on any Reset Date and on the Maturity Date, the aggregate
outstanding amount of the Dollar Equivalent of all Canadian Revolving Credit
Loans and the Dollar Equivalent of the aggregate face amount of all Bankers'
Acceptances exceeds the Total Canadian Commitment (the amount of such
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excess referred to herein as the "Canadian Excess Amount") by more than one
percent (1%) of the aggregate amount of such Commitment, then (A) the Canadian
Agent shall give notice thereof to the Canadian Borrower and the Canadian Banks
and (B) within two (2) Business Days thereafter, the Canadian Borrower shall
repay or prepay Canadian Revolving Credit Loans in accordance with this
Agreement in an aggregate principal amount such that, after giving effect
thereto, the aggregate outstanding amount of the Dollar Equivalent of all
Canadian Revolving Credit Loans and the Dollar Equivalent of the aggregate face
amount of all Bankers' Acceptances no longer exceeds the Total Canadian
Commitment. Notwithstanding the foregoing, to avoid the incurrence of breakage
costs with respect to Canadian Revolving Credit Loans which are Eurodollar Rate
Loans, the Canadian Borrower shall not be obligated to repay any Canadian
Revolving Credit Loan that is a Eurodollar Rate Loan until the end of the
Interest Period relating thereto to the extent that the unused amount of the
Domestic Commitments of the Domestic Banks which are affiliates of the Canadian
Banks shall be greater than or equal to the Canadian Excess Amount. On each
Reset Date and until the Canadian Revolving Credit Loans are repaid in
accordance with the first sentence of this paragraph (c), the Total Domestic
Commitment shall be automatically reduced by an amount equal to the Canadian
Excess Amount. Such reduction shall be made by reducing the Domestic
Commitments of each such Domestic Bank that is an affiliate of a Canadian Bank
by an amount equal to such Domestic Bank's Domestic Commitment Percentage of
the Canadian Excess Amount.
SS.6.14. REPLACEMENT OF BANKS. If any Bank (an "Affected Bank") (i)
makes demand upon the Borrower or the Canadian Borrower for (or if the Borrower
or the Canadian Borrower is otherwise required to pay) amounts pursuant to
ss.ss.6.5, 6.6, 6.7 or 30, (ii) is unable to make or maintain Eurodollar Rate
Loans as a result of a condition described in ss.6.10 or (iii) defaults in its
obligation to make Loans, or accept and purchase Bankers' Acceptances, in
accordance with the terms of this Agreement (such Bank being referred to as a
"Defaulting Bank"), the Borrower or the Canadian Borrower may, within ninety
(90) days of receipt of such demand, notice (or the occurrence of such other
event causing the Borrower or the Canadian Borrower to be required to pay such
compensation or causing ss.6.10 to be applicable), or default, as the case may
be, by notice (a "Replacement Notice") in writing to the Administrative Agent
and, if a Canadian Bank, the Canadian Agent and such Affected Bank (A) request
the Affected Bank to cooperate with the Borrower or the Canadian Borrower in
obtaining a replacement bank satisfactory to the Administrative Agent and the
Borrower or the Canadian Borrower (the "Replacement Bank"); (B) request the
non-Affected Banks to acquire and assume all of the Affected Bank's Loans and
Commitment and accept and purchase Bankers' Acceptances, as provided herein,
but none of such Banks shall be under an obligation to do so; or (C) designate
a Replacement Bank approved by the Administrative Agent, such approval not to
be unreasonably withheld or
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delayed. If any satisfactory Replacement Bank shall be obtained, and/or if any
one or more of the non-Affected Banks shall agree to acquire and assume all of
the Affected Bank's Loans and Commitment and accept and purchase Bankers'
Acceptances, then such Affected Bank shall assign, in accordance with ss.18,
all of its Commitment, Loans, Bankers' Acceptances, Letter of Credit
participations, Notes and other rights and obligations under this Agreement and
all other Loan Documents to such Replacement Bank or non-Affected Banks, as the
case may be, in exchange for payment of the principal amount so assigned and
all interest and fees accrued on the amount so assigned, plus all other
Obligations then due and payable to the Affected Bank; provided, however, that
(i) such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Affected Bank
and such Replacement Bank and/or non-Affected Banks, as the case may be, and
(ii) prior to any such assignment, the Borrower or the Canadian Borrower, as
the case may be, shall have paid to such Affected Bank all amounts properly
demanded and unreimbursed under ss.ss.6.5, 6.6. 6.7, 6.10 and 30. Upon the
effective date of such assignment, the Borrower or the Canadian Borrower shall
issue replacement Notes to such Replacement Bank and/or non-Affected Banks, as
the case may be, and such institution shall become a "Bank" for all purposes
under this Agreement and the other Loan Documents.
SS.7. SECURITY AND GUARANTIES. (a) The Obligations of the Borrower and
the Canadian Borrower to the Banks, the Swing Line Banks, the Letter of Credit
Bank and the Agents under the Loan Documents shall (i) be secured by a pledge
by the Borrower of all Intercompany Notes owed to the Borrower pursuant to the
terms of the Pledge Agreement, (ii) be secured by a first priority perfected
lien on and security interest in substantially all of the assets of the
Borrower as provided in the Security Documents (including, without limitation,
accounts receivable, motor vehicles, trailers and Investments but excluding
real estate and the equity interests in the U.K. Ventures), and (iii) be
secured by a pledge by the Borrower of one hundred percent (100%) of the
capital stock of each of the Domestic Subsidiaries and the Canadian
Subsidiaries and not less than sixty-five percent (65%) of the capital stock of
each of the Foreign Subsidiaries (other than the Canadian Subsidiaries and
Kar-Tainer International Limited ("KTIL"); provided that, upon receipt of
necessary governmental approvals for the pledge of the capital stock of KTIL,
which the Borrower agrees to make good faith efforts to obtain, not less than
sixty-five percent (65%) of the capital stock of KTIL will be so pledged)
pursuant to the terms of the Stock Pledge Agreement. The Obligations of the
Canadian Borrower in respect of the Canadian Swing Line Loans, Canadian
Revolving Credit Loans and Bankers' Acceptances shall be guaranteed by the
Borrower pursuant to the terms of the Canadian Guaranty.
(b) The Obligations shall also be absolutely and unconditionally,
jointly and severally, guaranteed by each of the Borrower's Domestic
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Subsidiaries and the Canadian Subsidiaries (other than AH) pursuant to a
guaranty in substantially the form of Exhibit H attached hereto (such guaranty,
as amended, modified or supplemented from time to time, is referred to herein
as the "Guaranty"). The obligations of such Subsidiaries under the Guaranty
shall be secured by (i) a first priority perfected lien on and security
interest in substantially all of the assets of each such Subsidiary as provided
in the Security Documents (including, without limitation, accounts receivable,
motor vehicles, trailers and Investments but excluding real estate and the
equity interests in the U.K. Ventures) and (ii) a pledge by each such
Subsidiary of one hundred percent (100%) of the capital stock of each of its
Domestic Subsidiaries and Canadian Subsidiaries and not less than sixty-five
percent (65%) of the capital stock of each of its Foreign Subsidiaries (other
than the Canadian Subsidiaries) pursuant to the terms of the Stock Pledge
Agreement.
(c) The Borrower shall cause each of its Domestic Subsidiaries and
Canadian Subsidiaries acquired or formed after the Effective Date, no later
than thirty (30) days after the acquisition or formation of such Subsidiary, to
(i) execute and deliver to each of the Banks and the Administrative Agent a
guaranty which is substantially in the form of Exhibit H hereto and which is
reasonably satisfactory to the Banks and the Administrative Agent in all
respects; (ii) grant the Administrative Agent, for the benefit of the Banks a
first priority perfected lien on and security interest in substantially all of
its assets (including without limitation, accounts receivable, motor vehicles,
trailers and Investments but excluding real estate) pursuant to such documents
and instruments as shall be satisfactory to the Banks and the Administrative
Agent in all respects (it being understood that the documents and instruments
relating to the grant of a security interest by such Subsidiaries shall be
similar in form and content to the applicable Security Documents executed on
the Closing Date, with such changes as the Administrative Agent shall deem
necessary or desirable to account for additional types of collateral, local law
requirements, and such other matters as the Administrative Agent may deem
necessary or desirable in order to perfect its security interest in, or
remedies with respect to, such assets), and (iii) execute and deliver to each
of the Banks and the Administrative Agent all other documents and instruments,
including, without limitation, corporate authority documents and legal
opinions, as the Administrative Agent may reasonably request in connection with
the delivery of such guaranty and such security. The Borrower shall deliver to
the Banks an updated Schedule 8.16(a) or Schedule 8.16(b), as applicable, upon
the acquisition or formation of any Subsidiary.
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SS.8. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Banks as follows:
SS.8.1. EXISTENCE AND GOOD STANDING, ETC.
(a) Each of the Borrower and its Subsidiaries (other than Allied
Systems) is (i) a corporation, duly organized and validly existing and in good
standing under the laws of its jurisdiction of incorporation, and (ii) has
adequate power to own its property and conduct its business substantially as
presently conducted. Allied Systems is a limited partnership duly organized,
validly existing under the Uniform Act and in good standing under the laws of
Georgia, and has adequate power to own its property and conduct its business
substantially as presently conducted. AAGI has adequate power to act on behalf
of Allied Systems as managing general partner of Allied Systems.
(b) The Borrower and its Subsidiaries are qualified to do business and
in good standing in each of the jurisdictions listed on Schedule 8.1 attached
hereto, which constitute all of the jurisdictions in which the nature of their
businesses and properties make such qualification necessary, except for
jurisdictions in which the failure to qualify will have no material adverse
effect on the business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole, or the Borrower, considered individually,
or on the Borrower's or any of its Subsidiaries' ability to perform its
obligations under the Loan Documents to which such Person is a party.
SS.8.2. POWER; CONSENTS; ABSENCE OF CONFLICT WITH OTHER AGREEMENTS,
ETC. The (i) execution, delivery and performance by each of the Borrower and
its Subsidiaries (other than Allied Systems) of the Loan Documents, the Senior
Notes to which such Person is a party, and the borrowings and transactions
contemplated hereby and thereby, and (ii) the execution and delivery by AAGI on
behalf of Allied Systems and the performance by Allied Systems of the Loan
Documents and the Senior Notes to which Allied Systems is a party:
(a) are within the powers of such Person, and have been duly
authorized by all requisite corporate or partnership (as the case may be)
proceedings of such Person;
(b) do not require any approval or consent of, or filing with, any
governmental agency or authority bearing on the validity of such instruments
and borrowings which is required by applicable laws or regulations of any such
agency or authority having jurisdiction in the matter other than those
approvals and consents obtained and filings (i) made prior to the Effective
Date, (ii) under the Uniform Commercial Code and (iii) regarding the notation
of the lien in favor of the Administrative Agent on the certificates of title
with respect to motor vehicles, and are not in contravention of the corporate
charter or by-laws of any such Person, or any amendment thereof, or, with
respect to Allied
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Systems, the Uniform Act, the terms of the Partnership Agreement, Partnership
Certificate or any amendment thereof, or any law, regulation, order, judgment,
writ, injunction, license or permit, the non-compliance with which would
materially adversely affect the business, assets or financial condition of the
Borrower and its Subsidiaries, considered as a whole, or of the Borrower,
considered individually; and
(c) except as described on Schedule 8.2 attached hereto, will not
conflict with or result in any breach or contravention of, or the creation of
any lien (except as contemplated by the Security Documents) under, any
indenture, agreement, lease, instrument or undertaking to which the Borrower or
any of its Subsidiaries is a party or by which the Borrower or any of its
Subsidiaries is bound. No such breaches or liens will materially adversely
affect the business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole, or the Borrower, considered individually.
SS.8.3. BINDING EFFECT OF DOCUMENTS. The Borrower and each of its
Subsidiaries (other than Allied Systems) has duly executed and delivered each
of the Loan Documents to which such Person is a party and each of such
documents is in full force and effect. AAGI has duly executed and delivered on
behalf of Allied Systems each of the Loan Documents to which Allied Systems is
a party and each of such documents is in full force and effect. Each of the
Loan Documents to which the Borrower or any of its Subsidiaries is a party is
and will be the valid and legally binding obligation of such Person,
enforceable against such Person, in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting the enforcement of creditors' rights in general, and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SS.8.4. TITLE TO PROPERTIES. The Borrower and its Subsidiaries own all
of the assets reflected on the consolidated balance sheet of the Borrower and
its Subsidiaries as at the Balance Sheet Date, except (i) for assets subject to
the capitalized leases listed on Schedule 12.1 attached hereto, (ii) where the
failure to own such assets would not materially adversely affect the business,
assets or financial condition of the Borrower and its Subsidiaries, taken as a
whole, and (iii) for assets sold or otherwise disposed of in the ordinary
course of business since such dates, subject in each case to no mortgages,
security interests, leases, liens or other encumbrances except those permitted
by ss.12.2 hereof.
SS.8.5. FINANCIAL STATEMENTS AND PROJECTIONS.
(a) The Borrower has furnished to the Banks the audited consolidated
balance sheet of the Borrower and its Subsidiaries dated as at the Balance
Sheet Date, the unaudited consolidated balance sheets of the Borrower and its
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Subsidiaries dated as at September 30, 1999 and the related consolidated
statements of income and retained earnings and cash flows of the Borrower and
its Subsidiaries for the fiscal periods ended on such dates. Each of the
balance sheets and related statements of income and retained earnings and cash
flows as at the Balance Sheet Date and September 30, 1999, and for the fiscal
periods then ended, have been prepared in accordance with Generally Accepted
Accounting Principles and present fairly the financial position of the Borrower
and its Subsidiaries as at the dates thereof. There are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such dates
involving material amounts, known to the officers of the Borrower or its
Subsidiaries, which are not disclosed in such balance sheets and the notes
related thereto except as listed and described on Schedule 8.5(a) attached
hereto.
(b) The projections of the consolidated balance sheets and income and
cash flow statements of the Borrower and its Subsidiaries for the 2000 through
2002 fiscal years, copies of which have been delivered to the Banks, disclose
all assumptions deemed material by the Borrower which were made by the Borrower
with respect to its financial condition and the projected volume of motor
vehicles to be hauled by the Borrower and its Subsidiaries and which were used
in formulating such projections. To the knowledge of the Borrower or any of its
Subsidiaries, no facts have come to their attention that, individually or in
the aggregate, would, in accordance with the customary budgeting practices of
the Borrower, require a material change or result in a material change in any
such projections. The projections are based upon estimates and assumptions
which the Borrower believes to be reasonable, have been prepared in all
material respects on the basis of the assumptions stated therein and reflect
estimates of the Borrower and its Subsidiaries, which the Borrower believes to
be reasonable, of the results of operations and other information projected
therein. Neither the Borrower nor any Subsidiary of the Borrower makes any
representation or warranty that the projections will, in fact, be achieved.
(c) Each of the Borrower and its Subsidiaries is solvent, has assets
having a fair value in excess of the amount required to pay its probable
liabilities on their existing debts as they become absolute and matured, and
has, and based on current projections, will have, access to adequate capital
for the conduct of its business and the ability to pay its debts from time to
time incurred in connection therewith as such debts mature.
SS.8.6. NO MATERIAL CHANGES, ETC.
Since the Balance Sheet Date, there have occurred no changes in the
business, assets or financial condition of the Borrower and its Subsidiaries as
shown on or reflected in the consolidated balance sheet of the Borrower as at
the Balance Sheet Date, other than those described on Schedule 8.6 attached
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hereto and those disclosed in writing to the Banks prior to the Effective Date,
and all of such changes in the aggregate, have not been materially adverse.
SS.8.7. LITIGATION.
Except as disclosed on Schedule 8.7 attached hereto, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
best of the Borrower's knowledge and after due inquiry, threatened against the
Borrower or any of its Subsidiaries before any court, tribunal or
administrative agency or board which, if determined adversely, might, either in
any case or in the aggregate, materially adversely affect the properties,
assets, financial condition or business of the Borrower and its Subsidiaries,
considered as a whole, materially impair the rights of the Borrower and its
Subsidiaries to carry on their businesses substantially as now conducted,
result in any substantial liability not adequately covered by insurance, or
which question the validity of this Agreement or any of the other Loan
Documents or any action taken or to be taken pursuant hereto or thereto.
SS.8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor
any of its Subsidiaries is subject to any charter, corporate, partnership or
other legal restriction, or any judgment, decree, order, rule or regulation
which in the judgment of such Person's officers has or is expected in the
future to have a materially adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, considered as a whole. Neither
the Borrower nor any of its Subsidiaries is a party to any contract or
agreement which in the judgment of such Person's officers has or is expected to
have any materially adverse effect on the business of the Borrower and its
Subsidiaries, considered as a whole.
SS.8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is violating any provision of any charter
documents or by-laws or partnership documents, as applicable, or any agreement
or instrument by which it or any of its properties is bound, or any decree,
order, judgment, statute, license, rule or regulation, in each case in a manner
which could result in the imposition of substantial penalties or materially and
adversely affect the business, assets or financial condition of the Borrower
and its Subsidiaries, considered as a whole.
SS.8.10. TAX STATUS. Except as described in Schedule 8.10 attached
hereto, each of the Borrower and its Subsidiaries has (a) made or filed all
federal, state and provincial tax returns, reports and declarations required by
any jurisdiction to which it is subject, (b) paid all taxes and other
governmental assessments and charges, as shown or determined to be due on such
tax returns, reports and declarations, where the penalty for or the result of
any failure to do so would have a material adverse effect on the financial
condition of the Borrower and its Subsidiaries, considered as a whole, except
for taxes
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the amount, applicability or validity of which is currently being contested by
it in good faith by appropriate proceedings and with respect to which it has
set aside on its books reserves reasonably deemed by it to be adequate thereto,
and (c) set aside on its books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Borrower know of no basis for any such claim.
SS.8.11. EMPLOYEE BENEFIT PLANS. (a) All Guaranteed Pension Plans have
been operated and administered in all material respects in accordance with
ERISA and, to the extent applicable, the Internal Revenue Code of 1986, as
amended. The current value of all accrued benefits under all of such plans
which are subject to Title IV of ERISA as of January 1, 1995 does not exceed
the current value of the assets of such plans allocable to such accrued
benefits, based upon the actuarial assumptions used for such plans. No
Reportable Event (as defined in ERISA) has occurred with respect to any
Guaranteed Pension Plan, and no steps have been taken to terminate any
Guaranteed Pension Plan. Each of the Borrower and each Related Entity has made
all contributions to each Multiemployer Plan required pursuant to any
applicable collective bargaining agreement. To the best of the Borrower's
knowledge after due inquiry, neither the Borrower nor any Related Entity has
taken any action to trigger any termination liability with respect to any
Multiemployer Plan or incurred any material liability as a result of a complete
or partial withdrawal, as defined in ERISA, from any Multiemployer Plan. All
contributions required under applicable Canadian tax and pension law have been
made in respect of all pension plans of the Canadian Borrower and each Canadian
Subsidiary and each such pension plan is fully funded on a timely basis in
accordance with all applicable Canadian laws and regulations.
(b) No litigation or administrative or other proceeding is pending or,
to the best of the Borrower's knowledge after due inquiry, threatened with
respect to any pension plan, welfare benefit plan, bonus plan, stock option
plan, deferred compensation plan or other similar plans for the employees of
the Canadian Subsidiaries (collectively, the "Canadian Plans") which, if
determined adversely, might, either in any case or in the aggregate, materially
adversely affect the properties, assets, financial condition or business of any
of the Canadian Subsidiaries considered as a whole, and each Canadian Plan has
been administered in all respects in compliance with all applicable laws
including but not limited to the Income Tax Act (Canada) and the Pension
Benefits Standards Act (Canada) and with the terms of such Plan.
SS.8.12. LOCATION OF OFFICE. The Borrower's and each of its
Subsidiaries' chief executive office and principal place of business and the
location where its books and records are kept is described on Schedule 8.12
attached hereto.
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SS.8.13. BUSINESS. Except as disclosed on Schedule 8.13 attached
hereto, each of the Borrower and its Subsidiaries enjoys peaceful and
undisturbed possession under all leases which are material to the Borrower and
its Subsidiaries, considered as a whole, of real or personal property of which
any Person is lessee, subject to the rights of lessors, sublessors and
sublessees and other parties lawfully in possession in the ordinary course of
business, none of which contains, to the best of the Borrower's knowledge after
due inquiry, any unusual or burdensome provision which would be reasonably
likely to materially adversely affect or impair the operations of the Borrower
and its Subsidiaries, considered as a whole, and all such leases which are
material to the operations of the Borrower and its Subsidiaries are valid and
subsisting and in full force and effect. Each of the Borrower and its
Subsidiaries owns or possesses the right to use all of the franchises, rights
and licenses necessary for the conduct of its business as now conducted which
are material to the conduct of the business of the Borrower and its
Subsidiaries, considered as a whole, without any conflict with the rights of
others which would be reasonably likely to materially adversely affect such
Person's ownership of or right to use any such franchises, rights and licenses.
The Borrower and each of its Subsidiaries owns, leases or has the right to use
all properties, franchises, rights and licenses, and employs such employees
and/or engages such independent contractors, as are sufficient to operate its
business in all material respects as such business is operated on the Effective
Date. AH has no assets or liabilities other than the Intercompany Notes payable
to the Borrower and transferred by the Borrower to it, and AH does not conduct
any business activities of any kind other than such business as relates to the
holding of such Intercompany Notes. Haul Insurance has no assets or liabilities
other than those associated with the provision of insurance and related
services. Haul Insurance will not conduct any business activities other than
providing insurance and related services, substantially all of which insurance
and related services shall be provided for the benefit of the Borrower and its
Subsidiaries; provided that Haul Insurance may provide insurance and related
services to other Persons so long as (i) the insurance premiums relating to
such insurance are charged on a non-commingled basis and (ii) Haul Insurance
has taken appropriate steps (through reinsurance and other appropriate means)
to reduce the insurance risk relating to such third-party insurance to an
amount not in excess of the capital provided to support the same, all in a
manner reasonably acceptable to the Administrative Agent.
SS.8.14. DISCLOSURE. None of this Agreement or any of the other Loan
Documents to the knowledge of the management of the Borrower or any of its
Subsidiaries, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading. There is no fact known to the management of the
Borrower or any of its Subsidiaries which materially adversely affects, or
which is reasonably likely in the future to materially adversely affect, the
business,
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assets, financial condition or prospects of the Borrower and its
Subsidiaries, considered as a whole.
SS.8.15. TITLE AND REGISTRATION. All Motor Vehicle Equipment which,
under applicable law, is required to be registered is properly registered in
the name of the Borrower or the appropriate Subsidiary of the Borrower, and all
Motor Vehicle Equipment, the ownership of which, under applicable law, is
evidenced by a certificate of title, is properly titled in the name of the
Borrower or the appropriate Subsidiary of the Borrower, except, in each case,
for Motor Vehicle Equipment with respect to which the certificates of title
which have been lost and the net book value of which is less than $1,000,000;
provided that such certificates of title are replaced within a reasonable time
after discovery of such loss.
SS.8.16. CAPITALIZATION.
(a) Except as set forth on Schedule 8.16(a) attached hereto, on and as
of the Effective Date, the Borrower owns or holds of record and/or beneficially
(whether directly or indirectly) no shares of any class in the capital of any
other corporations and no legal and/or beneficial interest in any Person.
Except as set forth on Schedule 8.16(a) attached hereto, the Borrower has no
Subsidiaries. Schedule 8.16(a) lists the jurisdiction of incorporation of each
such Subsidiary and indicates whether such Subsidiary is a Guarantor.
(b) Except as set forth on Schedule 8.16(b) attached hereto, on and as
of the Effective Date, none of the Borrower's Subsidiaries owns or holds of
record and/or beneficially (whether directly or indirectly) any shares of any
class in the capital of any other corporations and no legal and/or beneficial
interest in any Person. Except as set forth on Schedule 8.16(b) attached
hereto, none of the Borrower's Subsidiaries has any Subsidiaries. Schedule
8.16(b) lists the jurisdiction of incorporation of each such Subsidiary and
indicates whether such Subsidiary is a Guarantor.
SS.8.17. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower nor any of its Subsidiaries is a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor
is it a "registered investment company", or an "affiliated company" or a
"principal underwriter" of a "registered investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
SS.8.18. CERTAIN TRANSACTIONS. Except for any transaction that (a) is
listed on Schedule 8.18 attached hereto, (b) has been approved by the majority
of the so-called "outside directors" of the Board of Directors of the Borrower,
(c) is in respect of intercompany Indebtedness or Investments between the
Borrower or any of the Guarantors or between Guarantors, or (d) does not
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require payments by the Borrower or any of its Subsidiaries in excess of
$60,000 in the aggregate, none of the officers, directors, or employees of the
Borrower or any of its Subsidiaries is presently a party to any transaction
with the Borrower or any of its Subsidiaries or Affiliates (other than for
services as employees, officers and directors), including, without limitation,
any contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of the Borrower, any corporation, partnership,
trust or other entity in which any officer, director, or any such employee has
a substantial interest or is an officer, director, trustee or partner.
SS.8.19. OPERATING RIGHTS. (a) The Borrower and its Subsidiaries have
all certificates of convenience and necessity and operating rights necessary to
conduct interstate and intrastate transportation businesses consisting of
transporting cars and trucks in and between the states listed on Schedule
8.19(a) attached hereto. Each of such certificates of convenience and necessity
and operating rights is listed on Schedule 8.19(a) attached hereto, and is in
full force and effect.
(b) Each of the Canadian Subsidiaries has all operating authorizations
necessary or desirable for the conduct of the business of each such Person as
conducted on the Effective Date. Each of such operating authorizations is
listed on Schedule 8.19(b) attached hereto, and (except as described on
Schedule 8.19(b) attached hereto) is in good standing, is in full force and
effect and is being held and operated by such Canadian Subsidiary in accordance
with the terms thereof. In the event that any Canadian Subsidiary is merged
with another Canadian Subsidiary, the Borrower shall provide the Administrative
Agent and the Banks with an updated Schedule 8.19(b) hereto.
SS.8.20. MATERIAL CONTRACTS. Neither the Borrower nor any of its
Subsidiaries is party to or bound by any contract material to such Person's
business other than the contracts listed and described on Schedule 8.20
attached hereto. Each of such contracts is in full force and effect, and there
exists thereunder no default by the Borrower or such Subsidiary, or to such
Person's knowledge, any accrued right of rescission.
SS.8.21. ENVIRONMENTAL COMPLIANCE.
(a) Neither the Borrower nor any of its Subsidiaries is in violation
of any applicable judgment, decree, order, law, license, rule or regulation
pertaining to environmental matters, including, without limitation, those
arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended, ("CERCLA") the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Water Pollution Control Act,
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the Toxic Substances Control Act or any other federal, state, provincial or
local statute, regulation, ordinance, order or decree relating to health,
safety or the environment (hereinafter "Environmental Laws"), which violation
would have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries, taken as a whole.
(b) Except as disclosed on Schedule 8.21 hereto, neither the Borrower
nor any of its Subsidiaries has received notice that it has been identified by
the United States Environmental Protection Agency as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B (1986) except as noted in Schedule 8.21;
nor has the Borrower or any of its Subsidiaries received any notification that
any Hazardous Waste, as defined by 42 U.S.C. ss.6903(5), any Hazardous
Substances as defined by 42 U.S.C. ss.9601(14), any "pollutant or contaminant"
as defined by 42 U.S.C. ss.9601(33) and any toxic substance, hazardous
materials, oil, or other chemicals or substances regulated by any Environmental
Laws (collectively, "Hazardous Substances") which it has disposed of has been
found at any site at which a federal, state or provincial agency is conducting
a remedial investigation or other corrective action pursuant to any
Environmental Law.
(c) Except for small quantities of solvents and cleaners and other
Hazardous Substances used or generated in the ordinary course of business in
material compliance with Environmental Laws and otherwise as set forth on
Schedule 8.21 attached hereto: (i) no portion of the Borrower's properties or
portion of any Subsidiaries' properties has been used for the handling,
processing, storage or disposal of Hazardous Substances and no underground tank
or other underground storage receptacle for Hazardous Substances is located on
such properties; (ii) in the course of its activities, neither Borrower nor any
of its Subsidiaries has generated or is generating any Hazardous Waste on any
of its properties; (iii) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping) of Hazardous
Substances by the Borrower or any of its Subsidiaries on, upon, or into the
properties of the Borrower or any of its Subsidiaries, which releases would
have a material adverse effect on the business, assets or financial condition
of the Borrower and its Subsidiaries, considered as a whole, or the Borrower,
considered individually, or on the Borrower's and its Subsidiaries', taken as a
whole, ability to perform their obligations under the Loan Documents. In
addition, to the best of Borrower's knowledge, there have been no such releases
on, upon, or into any real property in the vicinity of any of the real
properties of the Borrower or any of its Subsidiaries which, through soil or
groundwater contamination, may have come to be located on and which would have
a material adverse effect on the value of any real properties of the Borrower
or any of its Subsidiaries. Neither the Canadian Borrower nor any of its
Subsidiaries has transported, removed or disposed of any Hazardous Waste to
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a location outside of Canada, except in material compliance with all applicable
Environmental Laws.
SS.8.22. COLLATERAL.
(a) Except as otherwise provided in any of the Security Documents, all
of the Obligations of the Borrower, the Canadian Borrower and the Borrower's
other Subsidiaries to the Banks, the Letter of Credit Bank and the Agents under
or in respect of the Loan Documents will at all times from and after the
execution and delivery of each of the Security Documents be entitled to all of
the benefits of and be secured by each of such Security Documents.
(b) No financing statement which names the Borrower or any of its
Subsidiaries as a debtor, or encumbers or attempts to encumber any of the
material assets or a material portion of the assets of any of the Borrower or
its Subsidiaries, has been filed in any jurisdiction in the United States or
any State thereof pursuant to Article 9 of the Uniform Commercial Code of any
State or in Canada or any province thereof, and neither the Borrower nor any of
its Subsidiaries has signed any financing statement or any security agreement
authorizing any secured party thereunder to file any such financing statement
in any such jurisdiction, other than (i) financing statements with respect to
liens, security interests and other encumbrances permitted by ss.12.2 hereof
and (ii) filings for which arrangements reasonably satisfactory to the
Administrative Agent in all respects have been made for the termination of
record thereof.
(c) No mortgages, chattel mortgages, assignments, statements of
assignment, security agreements or deeds of trust have been filed by any person
or persons with respect to any material part of the property or assets of the
Borrower or any Subsidiary, except for mortgages and security agreements which
are otherwise permitted by the provisions of ss.12.2 hereof.
SS.8.23. NO DEFAULT. No Default or Event of Default exists.
SS.8.24. INSURANCE. Schedule 8.24 attached hereto lists the policies
and types and amounts of coverage (including deductibles) of theft, fire,
liability, property and casualty and other insurance (including self-insurance
as determined by the Borrower in its reasonable business judgment) owned, held
or maintained by the Borrower and its Subsidiaries on the date hereof. Such
policies of insurance (to the extent applicable) are maintained with
financially sound and reputable insurance companies (which may include Haul
Insurance), funds or underwriters and are of the kinds, cover such risks and
are in such amounts, with such deductibles and exclusions, as are consistent
with the general practices of businesses engaged in similar activities. All
such policies of insurance are in full force and effect and are valid and
enforceable policies and will remain in full force and effect through the
respective dates set
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forth in such schedule; and coverage thereunder will not be reduced by, or
terminate or lapse by reason of, the transactions contemplated by this
Agreement. The insurance maintained by the Borrower and its Subsidiaries is
sufficient for compliance by the Borrower and each of its Subsidiaries with all
requirements of law and all agreements to which the Borrower and each of its
Subsidiaries is a party, to the extent applicable. To the extent that the
Borrower or any Subsidiary of the Borrower engaged in the auto hauling business
self-insures certain of its respective properties, such self-insurance protects
against such casualties and contingencies and is at such levels as is in
accordance with sound business practices.
SS.8.25. SUBORDINATED DEBT DOCUMENTS. The Borrower has furnished to
the Banks true, correct and complete copies of the Subordinated Debt Documents.
None of the Subordinated Debt Documents has been amended, modified or
supplemented as of the date hereof, except as permitted by ss.12.14. Each of
the representations and warranties made by the Borrower and any of its
Subsidiaries in any of the Subordinated Debt Documents to which such Person is
a party was true and correct when made and continues to be true and correct in
all respects, and no event of default, or event which, with the passage of time
or the giving of notice would be an event of default, has occurred and is
continuing under the terms of the Subordinated Debt Documents.
SS.8.26. USE OF PROCEEDS.
(A) GENERAL. The proceeds of the Loans and Bankers' Acceptances shall
be used for working capital and general corporate purposes and to provide funds
for Permitted Acquisitions and for Investments permitted pursuant to ss.12.3
hereof. The Borrower will obtain Letters of Credit solely for general corporate
purposes.
(B) REGULATIONS G, U AND X. No portion of any Loan or Bankers'
Acceptance is to be used, and no portion of any Letter of Credit is to be
obtained, for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations G, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
(C) INELIGIBLE SECURITIES. No portion of the proceeds of any Loans or
Bankers' Acceptance is to be used, and no portion of any Letter of Credit is to
be obtained, for the purpose of (a) knowingly purchasing, or providing credit
support for the purchase of, Ineligible Securities from a Section 20 Subsidiary
during any period in which such Section 20 Subsidiary makes a market in such
Ineligible Securities, (b) knowingly purchasing, or providing credit support
for the purchase of, during the underwriting or placement period, any
Ineligible Securities being underwritten or privately placed by a Section 20
Subsidiary, or (c) making, or providing credit support for the making of,
payment of principal
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or interest on Ineligible Securities underwritten or privately placed by a
Section 20 Subsidiary and issued by or for the benefit of the Borrower or any
Subsidiary or other Affiliate of the Borrower.
SS.8.27. PERFECTION OF SECURITY INTEREST. Except as disclosed on
Schedule 8.27 hereto, all filings, assignments, pledges and deposits of
documents or instruments have been made and all other actions have been taken
that are necessary or advisable, under applicable law, to establish and perfect
the Administrative Agent's first-priority security interest in the Collateral.
The Collateral and the Administrative Agent's rights with respect to the
Collateral are not subject to any setoff, claims, withholdings or other
defenses, other than as may be held by account debtors with respect to
Collateral consisting of accounts or general intangibles. A Guarantor or the
Borrower is the owner of the Collateral free from any lien, security interest,
encumbrance and any other claim or demand, except for Permitted Liens.
SS.8.28. BANK ACCOUNTS. Schedule 8.28 sets forth the account numbers
and location of all bank accounts of the Borrower and each of its Subsidiaries.
SS.8.29. SENIOR NOTES. The Borrower has furnished to the Banks a true,
correct and complete copy of the Senior Note Indenture. The Senior Note
Indenture has not been amended, modified or supplemented as of the date hereof,
except as permitted by ss.12.15. Each of the representations and warranties of
the Borrower contained in the Senior Note Indenture is true and correct in all
material respects as of the Effective Date.
SS.9. CLOSING CONDITIONS. This Agreement shall become effective, and
the Existing Credit Agreement shall be amended and restated as set forth
herein, on the Effective Date, subject to the satisfaction of each of the
following conditions precedent:
SS.9.1. DELIVERY OF LOAN DOCUMENTS; PAYMENT OF FEES. (a) Each of the
Loan Documents shall have been duly and properly authorized, executed and
delivered by the respective party or parties thereto and shall be in full force
and effect on and as of the Effective Date.
(b) Executed original counterparts of the Loan Documents shall have
been furnished to each Bank.
(c) The Banks shall have received a certificate from the Borrower as
to the matters set forth in ss.ss.9.2, 9.3 and 9.4 hereof.
(d) The Administrative Agent shall have received from the Borrower the
Administrative Agent's Fee pursuant to the terms of the Fee Letter and other
fees payable by the Borrower on the Effective Date.
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SS.9.2. REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in ss.8 hereof shall have been correct as of the date on
which made and shall also be correct at and as of the Effective Date with the
same effect as if made at and as of such time, except to the extent that the
facts upon which such representations and warranties are based may have changed
in the ordinary course as a result of transactions permitted or contemplated
hereby.
SS.9.3. PERFORMANCE; NO DEFAULT. The Borrower and the Canadian
Borrower and each of their Subsidiaries shall have performed and complied with
all terms and conditions herein required to be performed or complied with by it
prior to or at the time of the Effective Date, and at the time of the Effective
Date, there shall exist no Default or Event of Default or condition which, with
either or both the giving of notice or the lapse of time, would result in a
Default or an Event of Default upon consummation of the initial borrowing of
Revolving Credit Loans or otherwise.
SS.9.4. REQUISITE ACTION. All requisite action necessary for the valid
execution, delivery and performance by the Borrower and each of its
Subsidiaries of this Agreement and the other Loan Documents to which it is or
is to become a party shall have been duly and effectively taken, and evidence
thereof satisfactory to the Banks shall have been provided to each of the
Banks.
SS.9.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Agreement and all documents incident
thereto shall be reasonably satisfactory in substance and in form to the
Administrative Agent and to the Administrative Agent's Special Counsel, and the
Administrative Agent and such counsel shall have received all information and
such counterpart originals or certified or other copies of such documents as
the Administrative Agent or such counsel may reasonably request.
SS.9.6. OPINIONS OF COUNSEL. (a) The Banks shall have received from
Cohen Pollock Merlin Axelrod and Tanenbaum, P.C., counsel to the Borrower and
each of its Domestic Subsidiaries, a favorable opinion addressed to the Banks
and dated the Effective Date, substantially in the form of Exhibit E-1 attached
hereto.
(b) The Banks shall have received from Stewart McKelvey Stirling
Scales, Canadian counsel to the Canadian Borrower and its Subsidiaries, a
favorable opinion addressed to the Banks and dated the Effective Date,
substantially in the form of Exhibit E-2 attached hereto.
SS.9.7. BANKING LAW REQUIREMENTS. The Banks shall have received from
the Borrower signed copies of such statements, in substance and form reasonably
satisfactory to the Banks, as they shall require for purposes of
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compliance with any applicable regulations of the Board of Governors of the
Federal Reserve System.
SS.9.8. DELIVERY OF CHARTER AND OTHER DOCUMENTS. The Banks shall have
received from the Borrower and each of its Subsidiaries, certified by a duly
authorized officer of such Person (or, in the case of Allied Systems, AAGI as
the managing general partner of Allied Systems) to be true and complete as of
the Effective Date, of each of (a) its charter or other incorporation
documents, or, in the case of Allied Systems, the Partnership Agreement, in
each case as in effect on such date, (b) its by-laws, or, in the case of Allied
Systems, the Partnership Certificate, in each case as in effect on such date,
(c) the records of all action taken to authorize the execution and delivery by
such Persons, or, in the case of Allied Systems, by the Borrower on behalf of
Allied Systems, of each of the Loan Documents and the performance by such
Person of all of its agreements and obligations under each of such documents
and, in the case of the Borrower and the Canadian Borrower, the borrowings and
other transactions contemplated by this Agreement, and (d) an incumbency
certificate giving the name and bearing a specimen signature of each individual
who shall be authorized to sign, in such Person's name and on such Person's
behalf, each of the Loan Documents to which it is a party, to make application
for the Loans (in the case of the Borrower and the Canadian Borrower), and to
give notices and to take other action on such Person's behalf under the Loan
Documents to which such Person is a party.
SS.9.9. SECURITY DOCUMENTS. The Security Documents shall be effective
to create in favor of the Administrative Agent a legal, valid and enforceable
first (except for liens permitted under ss.12.2 hereof and entitled to priority
under applicable law) security interest in and lien upon the Collateral. All
filings, recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Administrative Agent to protect and preserve
such security interests shall have been duly effected. The Administrative Agent
shall have received evidence thereof in form and substance satisfactory to the
Administrative Agent.
SS.9.10. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The
Administrative Agent shall have received from each of the Borrower and each of
its Subsidiaries a completed and fully executed Perfection Certificate (or a
certification that the Perfection Certificates previously delivered to the
Administrative Agent remain complete and correct on the Effective Date) and,
with respect to jurisdictions and Subsidiaries which are not already covered by
appropriate UCC and Canadian lien filings, the results of UCC searches and
applicable Canadian lien searches with respect to the Collateral, indicating no
liens other than Permitted Liens and otherwise in form and substance reasonably
satisfactory to the Administrative Agent.
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SS.9.11. BORROWING BASE CERTIFICATE. The Borrower shall have delivered
to the Administrative Agent a Borrowing Base Certificate, dated as of the
Effective Date, demonstrating the Borrowing Base Amount as of the end of the
most recently ended fiscal month, and in form and substance satisfactory to the
Administrative Agent.
SS.9.12. OTHER INDEBTEDNESS. The terms and conditions of any
Indebtedness (including, without limitation, maturities, interest rates,
prepayment and redemption requirements, covenants, defaults, remedies, security
provisions and subordination provisions) of the Borrower and its Subsidiaries
shall be satisfactory to the Administrative Agent in all respects, and the
Administrative Agent shall be satisfied that neither the Borrower nor its
Subsidiaries are subject to contractual or other restrictions that would be
violated by this Agreement or the other Loan Documents, including the granting
of security interests and guarantees and payment of dividends by Subsidiaries.
SS.9.13. COMMERCIAL FINANCE EXAMINATION. The Administrative Agent and
the Banks shall have received the results of a commercial finance examination,
in form and substance satisfactory to them, with respect to the assets included
in the Borrowing Base.
SS.9.14. CAPITAL STRUCTURE. The Administrative Agent shall be
satisfied in all respects with the financial condition, capital structure
(including, without limitation, amounts of senior and subordinated debt and
equity investments), corporate structure, assets and liabilities of the
Borrower and its Subsidiaries, including, without limitation, the continued
effectiveness of the Subordinated Debt.
SS.9.15. NO MATERIAL ADVERSE CHANGE. The Administrative Agent shall be
satisfied that there shall have occurred no material adverse change in the
business, operations, assets, properties or condition of the Borrower or its
Subsidiaries since the Balance Sheet Date.
SS.9.16. NO LITIGATION. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened that, in the
reasonable opinion of the Administrative Agent, could reasonably be expected to
have a material adverse effect on (i) the transactions contemplated hereby,
(ii) the business, assets, liabilities (actual or contingent) operations,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries, (iii) the ability of the Borrower and its Subsidiaries to perform
their obligations under the Loan Documents, (iv) the rights and remedies of the
Administrative Agent and the Banks under the Loan Documents, or (v) the
perfection or priority of any security interests granted to the Administrative
Agent under the Loan Documents.
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SS.9.17. CONSENTS AND APPROVALS. All governmental and third-party
approvals (including landlords' and other consents) necessary or advisable in
connection with the financings contemplated hereby and the continuing
operations of the Borrower and its Subsidiaries, if any, shall have been
obtained and be in full force and effect.
SS.10. CONDITIONS OF SUBSEQUENT BORROWINGS. The obligations of the
Banks to make any Revolving Credit Loans, the Swing Line Banks to make any
Swing Line Loans, the Letter of Credit Bank to issue, extend or renew any
Letters of Credit pursuant to ss.3 hereof, and the Canadian Banks to issue,
purchase or accept any Bankers' Acceptances subsequent to the Effective Date
are subject to the following conditions precedent:
SS.10.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in ss.8 and otherwise made by the Borrower or any of its
Subsidiaries in writing in connection with the transactions contemplated by
this Agreement subsequent to the date hereof shall have been correct in all
material respects as of the date on which made and shall also be correct in all
material respects at and as of the date of such Borrowing with the same effect
as if made at and as of such time, except to the extent that the facts upon
which such representations and warranties are based may have changed in the
ordinary course of business or as a result of transactions permitted or
contemplated hereby.
SS.10.2. PERFORMANCE; NO DEFAULT. The Borrower and each of its
Subsidiaries shall have performed and complied in all material respects with
all of the terms and conditions herein required to be performed or complied
with by them prior to or at the time of such Borrowing and at the time of such
Borrowing there shall exist no Default or Event of Default or condition which
would, with either or both the giving of notice or the lapse of time, result in
a Default or an Event of Default upon consummation of such Borrowing, or
otherwise.
SS.11. AFFIRMATIVE COVENANTS. The Borrower and the Canadian Borrower
hereby covenant and agree that, so long as any Domestic Commitment or Canadian
Commitment is in effect, any Notes, Letters of Credit or Bankers' Acceptances
are outstanding, any amounts are owing pursuant to this Agreement, the Swing
Line Banks have any obligation to make any Swing Line Loan, the Letter of
Credit Bank has any obligation to issue, extend or renew any Letter of Credit,
or the Canadian Banks have any obligation to issue, purchase or accept any
Bankers' Acceptance, they will and will cause each of their Subsidiaries to:
SS.11.1. PUNCTUAL PAYMENT. Duly and punctually pay or cause to be paid
the principal and interest on the Loans, the Notes, the Bankers' Acceptances,
the Commitment Fee, the Letter of Credit Fee, the Fronting Fee,
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the Administrative Agent's Fee and all other amounts from time to time owing
hereunder, all in accordance with the terms of this Agreement, the Notes and
the other Loan Documents.
SS.11.2. MAINTENANCE OF OFFICE. Maintain its chief executive office
and principal place of business at the location listed opposite such Person's
name on Schedule 8.12 attached hereto, unless it shall have (a) given the
Administrative Agent at least 30 days' prior written notice of such change of
chief executive office, and (b) filed in all necessary jurisdictions such UCC-3
financing statements or other documents as may be necessary to continue without
impairment or interruption the perfection and priority of the liens on the
Collateral. The Borrower and each of its Subsidiaries will retain its present
name unless it shall have complied with the provisions of clauses (a) and (b)
of the immediately preceding sentence.
SS.11.3. RECORDS AND ACCOUNTS. Keep true individual records and books
of account for each of the Borrower and its Subsidiaries, together with
worksheets to consolidate such records and books of account, in which full,
true and correct entries will be made in accordance with Generally Accepted
Accounting Principles, and maintain adequate accounts and reserves for all
taxes (including income taxes), all depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries, all
contingencies, and all other reserves.
SS.11.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. Furnish
to the Banks:
(a) As soon as practicable and, in any event, within one hundred and
twenty (120) days after the end of each fiscal year of the Borrower, (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the fiscal year then ended, each
setting forth in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with Generally Accepted Accounting
Principles, and accompanied by a report and unqualified opinion of the
Borrower's Independent Accountants (who shall be reasonably satisfactory to the
Banks), which report and opinion shall have been prepared in accordance with
generally accepted auditing standards and (ii) the consolidating balance sheets
of the Borrower and each of its Subsidiaries as at the end of such fiscal year,
and the consolidating statements of income and cash flows of the Borrower and
each of its Subsidiaries for the fiscal year then ended, in each case as
reflected on the unaudited worksheets prepared by the Borrower in support of
the consolidated financial statements delivered to the Banks pursuant to clause
(i) hereof. In addition, the Borrower will obtain from such Independent
Accountants and deliver to the Banks within said period of 120 days the
certified statement of such Independent Accountants that they have
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read a copy of this Agreement and that, in making the examination necessary for
said certification, performing activities within the normal scope of their
audit and without further inquiry, they have obtained no knowledge of any
Default then existing by the Borrower in the fulfillment of any of the terms,
covenants, provisions or conditions hereof (insofar as the same relate to
financial matters), the Notes, or, if such accountants shall have obtained
knowledge of any then existing Default, they shall disclose in such statement
any such Default; provided, that such accountants shall not be liable to the
Banks for failure to obtain knowledge of any Default.
(b) As soon as practicable and, in any event, within forty-five (45)
days after the end of each of the first three fiscal quarters in each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the portion
of the fiscal year then ended, each in reasonable detail, prepared in
accordance with Generally Accepted Accounting Principles consistently applied,
except for provisions for footnotes and subject to year-ended audit adjustment
and certified by an Officer's Certificate of the Borrower.
(c) Promptly upon receipt thereof, copies of all management letters of
substance and other reports of substance which are submitted to the Borrower by
its Independent Accountants in connection with any annual or interim audit of
the books of the Borrower made by such accountants.
(d) As soon as practicable but, in any event, within ten (10) Business
Days after the issuance thereof, copies of such other financial statements and
reports as the Borrower shall send to its stockholders generally and copies of
all regular and periodic reports which the Borrower may be required to file
with the Securities and Exchange Commission or any similar or corresponding
governmental commission, department or agency substituted therefor, and copies
of all regular and periodic reports which the Borrower or any of its
Subsidiaries may be required to file with the Interstate Commerce Commission or
any similar or corresponding federal governmental commission, department,
board, bureau, or agency substituted therefor.
(e) As soon as practicable and, in any event, within forty-five (45)
days after the end of each of the first three fiscal quarters in each fiscal
year of the Borrower, and within one hundred and twenty (120) days after the
end of the fourth fiscal quarter in each fiscal year of the Borrower, a
certificate substantially in the form of Exhibit F attached hereto (a
"Compliance Certificate") from the Borrower as at the end of such fiscal
quarter and, as soon as practicable and, in any event, within twenty (20) days
of the end of each calendar month, a certificate substantially in the form of
Exhibit G attached hereto showing the Borrowing Base Amount and the other
information set forth
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therein as at the end of the immediately preceding month (the "Borrowing Base
Certificate").
(f) As soon as practicable, and in any event, not later than February
1 of each fiscal year of the Borrower, beginning with the 1999 fiscal year
(except if such disclosure is prohibited under applicable securities laws), the
Borrower's annual forecast for such year, prepared on a quarterly or, at the
discretion of the Borrower, monthly basis, in form and detail substantially
similar to those annual forecasts delivered to the Administrative Agent prior
to the Effective Date.
(g) Simultaneously with the issuance thereof, copies of all notices,
financial statements, reports and other communications of any kind as the
Borrower shall send to the holders of the Subordinated Debt and/or the Senior
Notes.
(h) With reasonable promptness, such other data as the Banks may
reasonably request.
SS.11.5. BUSINESS AND LEGAL EXISTENCE. The Borrower will, and will
cause each of its Subsidiaries to, keep in full force and effect its legal
existence (except for mergers and other transactions permitted by ss.12.5
hereof) and all rights, licenses, leases and franchises reasonably necessary to
the conduct of their businesses.
SS.11.6. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS. The
Borrower will, and will cause each of its Subsidiaries to, comply, in all
material respects, with (i) the applicable laws and regulations wherever its
business is conducted, including all Environmental Laws, (ii) the provisions of
its charter documents and by-laws, and, in the case of Allied Systems, the
Partnership Agreement and Partnership Certificate, (iii) all agreements and
instruments by which it or any of its properties may be bound and (iv) all
applicable laws, regulations, decrees, orders, and judgments. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Borrower or such
Subsidiary is a party, the Borrower will, or (as the case may be) will cause
such Subsidiary to, immediately take or cause to be taken all reasonably steps
within the power of the Borrower or such Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the
Administrative Agent and the Banks with evidence thereof.
SS.11.7. PAYMENT OF TAXES. Promptly pay and discharge all lawful
state, provincial and federal taxes, assessments and governmental charges or
levies imposed upon them or upon their income or profit or upon any property,
real,
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personal or mixed, belonging to them; provided that the Borrower and its
Subsidiaries shall not be required to pay any such tax, assessment, charge or
levy if the same shall not at the time be due and payable or can be paid
thereafter without penalty or if the validity thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiaries shall have set aside on their books reserves deemed by them
reasonably adequate with respect to such tax, assessment, charge or levy.
SS.11.8. MAINTENANCE OF PROPERTY. Keep such Person's Motor Vehicle
Equipment and other properties material to the operation of such Person's
business in such condition and repair as is customary in such Person's industry
and historical practices, and make all needful and proper repairs,
replacements, additions and improvements thereto as are necessary, in the
reasonable business judgment of such Person's officers, for the conduct of such
Person's business, reasonable wear and tear excepted.
SS.11.9. INSURANCE. Maintain or cause to be maintained insurance in
accordance with historical practices (which may include reasonable
self-insurance for property damage) protecting the Borrower and its
Subsidiaries with respect to (a) fire and extended coverage, and (b) liability
for bodily injury and property damage resulting from operation of Motor Vehicle
Equipment and with respect to real property owned or leased by the Borrower or
any of its Subsidiaries, substantially as listed and described on Schedule 8.24
attached hereto; provided, that the Borrower and its Subsidiaries may, in their
reasonable discretion and consistent with past practices, change the insurances
listed on Schedule 8.24 in a manner not having a material adverse effect on the
business, assets or financial condition of the Borrower and its Subsidiaries,
considered as a whole, or the Borrower, considered individually, or on the
Borrower's or any of its Subsidiaries' ability to perform its obligations under
the Loan Documents to which such Person is a party. In the event that any of
such insurance coverages or policies shall be changed, the Borrower shall,
together with the Compliance Certificate relating to the fiscal quarter in
which such change occurs, deliver to the Administrative Agent an updated
Schedule 8.24. No policy of insurance shall be terminated or cancelled without
30 days' prior written notice to the Administrative Agent.
SS.11.10. INSPECTION OF PROPERTIES AND BOOKS. Permit the Banks, the
Administrative Agent and any designated representatives to visit and inspect
any of the properties of the Borrower and its Subsidiaries to examine the books
of account (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, such Person's officers, all at such
reasonable times and intervals as any Bank or the Administrative Agent may
reasonably request.
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SS.11.11. TITLE AND REGISTRATION. Cause all Motor Vehicle Equipment,
now owned or hereafter acquired by the Borrower or any of its Subsidiaries,
which, under applicable law, is required to be registered, to be properly
registered in the name of such Person and cause all Motor Vehicle Equipment,
now owned or hereafter acquired by the Borrower or any of its Subsidiaries, the
ownership of which, under applicable law, is evidenced by a certificate of
title, to be properly titled in the name of such Person, with the
Administrative Agent's lien noted thereon.
SS.11.12. NOTICE OF MATERIAL CLAIMS AND LITIGATION. Notify the Banks
within five (5) Business Days after becoming aware of the commencement of any
claims (other than claims under a policy of insurance in amounts which,
together with any interest accrued thereon, do not exceed the face value of
such policy), actions, suits, proceedings or investigations of any kind pending
or threatened against the Borrower or any of its Subsidiaries in an amount in
excess of $2,500,000, before any court, tribunal or administrative agency or
board or which, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the business, assets or financial
condition of the Borrower and its Subsidiaries, considered as a whole, or
materially impair the right of the Borrower and its Subsidiaries, considered as
a whole, to carry on their businesses substantially as now conducted, or which
question the validity of this Agreement or the Notes or any other Loan
Documents or any action taken or to be taken pursuant hereto or thereto.
SS.11.13. FUNDING OF PENSION PLANS. With respect to any Guaranteed
Pension Plan, at all times make payment of all contributions required to meet
the applicable minimum funding standards set forth in ERISA and applicable
Canadian tax and pension requirements, and make all contributions to
Multiemployer Plans required pursuant to any applicable collective bargaining
agreements. The Borrower will, and will cause each Related Entity to, prevent
any "employee pension benefit plan", as such term is defined in ss.3 of ERISA,
maintained by the Borrower or any Related Entity from engaging in any
"prohibited transaction", as such term is defined in ss.4975 of the Internal
Revenue Code of 1986, as amended, which could result in a material liability
for the Borrower or any Related Entity. The Borrower will not, nor will any
Related Entity, fail to contribute to or terminate any such pension plan in a
manner which could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any Related Entity pursuant to ss.ss.302(f) or 4068
of ERISA.
SS.11.14. COPIES OF PENSION PLAN REPORTS. Upon the request of the
Administrative Agent, deliver to the Administrative Agent (a) copies of all
Forms 5500, Forms 5500-C and/or Forms 5500-R relating to a Guaranteed Pension
Plan together with all attachments thereto, including any actuarial statement
required to be made under ss.103(d) of ERISA, promptly following the date on
which any such form is filed with the Internal Revenue Service and (b) copies
of
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all operating and governing documents pertaining to the Canadian Plans,
including without limitation summary plan descriptions, actuarial reports (if
any) and annual reports with respect thereto. The Borrower will, and will cause
each Related Entity to, deliver to the Administrative Agent copies of any
request for waiver from the funding standards or extension of the amortization
periods required by ss.ss.303 and 304 of ERISA or ss.412 of the Internal
Revenue Code of 1986, as amended, promptly following the date on which the
request is submitted to the Department of Labor or the Internal Revenue
Service, as the case may be.
SS.11.15. NOTICE OF TERMINATION. Furnish to the Administrative Agent
forthwith a copy of (a) any notice of the termination of a Guaranteed Pension
Plan sent by the Borrower or any Related Entity to the Pension Benefit Guaranty
Corporation under Section 4041(a) of ERISA, (b) any notice, report, or demand
sent or received by the Borrower or any Related Entity under ss.ss.4041, 4041A,
4042, 4043, 4062, 4063, 4064, 4066, or 4068 of ERISA or under Subtitle E of
Title IV of ERISA, and (c) any notice, report or demand of a corresponding type
sent or received by the Borrower, the Canadian Borrower or any of its
Subsidiaries under applicable law with respect to any Canadian Plan. The
Borrower will, and will cause each Related Entity to, promptly notify the
Administrative Agent of any "complete withdrawal", "partial withdrawal" or
"reorganization", as such terms are defined in ERISA, with respect to any
Multiemployer Plan upon the Borrower's learning of the existence of such event.
SS.11.16. PAYMENT OF PENSION BENEFITS. Cause each Guaranteed Pension
Plan to pay all benefits guaranteed by the Pension Benefit Guaranty Corporation
or any corresponding or similar Canadian Person, when due, except so long as
the obligation to pay such benefits is being contested in good faith by
appropriate proceedings by the Borrower or any Related Entity.
SS.11.17. OPERATING RIGHTS. Keep in full force and effect each of the
certificates of convenience and necessity, licenses, permits, operating rights
and operating authorizations listed on Schedule 8.19(a) and Schedule 8.19(b)
attached hereto (collectively, "Rights"); provided that any of such Rights may
be permitted to lapse if (i) it shall no longer be necessary to the conduct of
the business of the Borrower and its Subsidiaries or (ii) the Subsidiary owning
such Right shall merge into another Subsidiary of the Borrower. In the event of
the lapse or termination of any such Right, the Borrower shall promptly deliver
to the Administrative Agent and the Banks an updated Schedule 8.19(a) or
Schedule 8.19(b), as appropriate.
SS.11.18. ENVIRONMENTAL COMPLIANCE. Comply, in all material respects,
with all Environmental Laws, including, without limitation, those concerning
the establishment and maintenance of underground tanks and other underground
storage receptacles.
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SS.11.19. LINE OF BUSINESS. Continue to engage exclusively in the
businesses conducted by them on the Effective Date and in related businesses.
The Borrower shall cause Haul Insurance to engage exclusively in the business
of providing insurance and related services, substantially all of which
insurance and related services shall be provided for the benefit of the
Borrower and its other Subsidiaries, except as permitted pursuant to ss.8.13
hereof.
SS.11.20. FURTHER ASSURANCES. Cooperate with the Banks and the Agents
and execute such further instruments and documents as any Bank or Agent shall
reasonably request to carry out to its satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.
SS.11.21. COMMERCIAL FINANCE EXAMINATIONS. The Borrower shall permit
the Administrative Agent's commercial finance examiners to conduct periodic
Commercial Finance Examinations (for use by the Administrative Agent and the
Banks only) and the Borrower agrees that the Commercial Finance Examinations
shall be at the Borrower's expense, provided that prior to a Default or an
Event of Default, the Borrower shall not be obligated to pay for more than one
Commercial Finance Examination during any twelve month period.
SS.11.22. NOTICE OF DEFAULT. The Borrower shall promptly notify the
Administrative Agent and each of the Banks in writing of the occurrence of any
Default or Event of Default of which the Borrower shall have actual knowledge.
SS.12. NEGATIVE COVENANTS. The Borrower and the Canadian Borrower
agree that, so long as any Commitment is in effect, any Notes, Letters of
Credit or Bankers' Acceptances are outstanding, any amounts are owing pursuant
to this Agreement, the Swing Line Banks have any obligation to make any Swing
Line Loans, the Letter of Credit Bank has any obligation to issue, extend or
renew any Letter of Credit, or the Canadian Banks have any obligation to issue,
purchase or accept any Bankers' Acceptance, they will not and will not permit
any of their Subsidiaries to:
SS.12.1. INDEBTEDNESS. Create, incur, assume, guarantee, agree to
purchase, or repurchase or provide funds in respect of, or otherwise become or
be or remain liable with respect to, any Indebtedness of any type whatsoever
owed to any Person, except:
(a) with respect to the Notes and any other Indebtedness incurred
pursuant to the terms of this Agreement;
(b) Indebtedness and other liabilities incurred by the Borrower or any
of its Subsidiaries (other than AH or Haul Insurance) in the ordinary course of
business not incurred through (i) the borrowing of money, or (ii) the obtaining
<PAGE> 92
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of credit, except for credit on an open account basis customarily extended in
connection with normal purchases or leases of goods and services;
(c) Indebtedness for taxes, assessments, governmental charges or
levies to the extent that payment thereof shall not at the time be required to
be made in accordance with the provisions of ss.11.6 hereof;
(d) Secured Property Indebtedness of the Borrower or any of its
Subsidiaries (other than AH or Haul Insurance), provided that the aggregate
amount of all such Secured Property Indebtedness shall not exceed $25,000,000
at any time, and provided further, that on the date on which any such Secured
Property Indebtedness is incurred, created, assumed or guaranteed by the
Borrower or any of its Subsidiaries (other than AH or Haul Insurance), the
aggregate amount of such Secured Property Indebtedness (i) in the case of
Secured Property Indebtedness secured by Motor Vehicle Equipment, does not
exceed 100% and is not less than 80% of the Net Equipment Value of such Motor
Vehicle Equipment and (ii) in the case of Secured Property Indebtedness secured
by any other property, does not exceed 100% of the appraised value of such
property, based on appraisals reasonably satisfactory to the Administrative
Agent;
(e) Indebtedness in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder, or in respect of which the Borrower or the
appropriate Subsidiary of the Borrower shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a stay
or execution shall have been obtained pending such appeal or review;
(f) Indebtedness of a Guarantor to the Borrower or to AH and
Indebtedness of the Borrower to a Guarantor, in each case, which is evidenced
by an Intercompany Note;
(g) Indebtedness of the Borrower with respect to interest rate
protection arrangements, foreign exchange arrangements, and hedging
arrangements relating to fuel costs, provided that all such arrangements are
entered into in connection with bona fide hedging operations and not for
speculation;
(h) Indebtedness of the Borrower and its Subsidiaries (other than AH
or Haul Insurance) in respect of Sale-Leasebacks permitted under ss.12.6
hereof;
(i) the Subordinated Debt and any replacement or refinancing thereof
so long as such replacement or refinancing Indebtedness is unsecured, does not
increase the principal amount thereof, does not shorten the tenor thereof, is
on terms no more onerous to the Borrower, and is expressly subordinated and
made junior to the payment and performance in full of the Obligations
<PAGE> 93
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pursuant to subordination provisions in form and substance satisfactory to the
Administrative Agent;
(j) the Senior Notes and any Indebtedness of the Borrower issued in
replacement or refinancing thereof so long as such replacement or refinancing
Indebtedness is unsecured, is in an aggregate principal amount not greater
than, has a maturity not earlier than, and is on terms no more onerous to the
Borrower than, the Senior Notes;
(k) unsecured Indebtedness of the Borrower and the Guarantors,
provided that the aggregate amount of all such unsecured Indebtedness incurred
under this ss.12.1(k) shall not at any time exceed $5,000,000;
(l) other Indebtedness existing on the Effective Date and described on
Schedule 12.1 attached hereto;
(m) the Haul Insurance L/Cs, provided that none of the obligations,
contingent or otherwise, of Haul Insurance, including without limitation the
Haul Insurance L/Cs, shall be guarantied by the Borrower or any of its other
Subsidiaries;
(n) Indebtedness (which specifically shall not include obligations of
the Borrower to pay insurance premiums and related fees) of the Borrower to
Haul Insurance in a maximum aggregate amount outstanding at any time not to
exceed the amount of the Borrower's equity Investment in Haul Risk at such
time;
(o) Indebtedness in respect of operating leases;
(p) Indebtedness of a Foreign Subsidiary (other than Foreign
Subsidiaries which are Guarantors) incurred pursuant to a local working capital
line of credit; provided that (i) the aggregate outstanding amount of such
Indebtedness shall not, at any time, exceed $10,000,000 and (ii) the sum of (x)
the aggregate outstanding amount of such Indebtedness plus (y) the aggregate
amount of Indebtedness outstanding pursuant to ss.12.1(d) shall not, at any
time, exceed $30,000,000;
(q) Indebtedness consisting of the Investment permitted pursuant to
ss.12.3(n)(ii); and
(r) Indebtedness of the Borrower and the Guarantors consisting of a
guaranty of (i) Indebtedness of a Guarantor otherwise permitted under this
ss.12.1 or (ii) Indebtedness of a Foreign Subsidiary incurred pursuant to
ss.12.1(p); provided that the liability of the Borrower and the Guarantors
under such guaranty is limited to the equity interests in such Foreign
Subsidiary pledged by the Borrower and the Guarantors pursuant to ss.12.2(j).
<PAGE> 94
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SS.12.2. LIENS. Create, incur, assume or permit to exist any mortgage,
lien, charge, security interest or other encumbrance on any real or personal
property or asset, except:
(a) liens and security interests granted to secure the
Obligations, as contemplated by ss.7 hereof;
(b) liens for taxes or assessments or governmental charges or
levies if payment shall not at the time be required to be made in accordance
with ss.11.6 hereof;
(c) liens in respect of pledges or deposits by the Borrower or
any of its Subsidiaries (other than AH or Haul Insurance) (i) under workers'
compensation laws or similar legislation, (ii) in connection with surety,
appeal and similar bonds incidental to the conduct of litigation, fuel
purchases, road taxes, road use fees and customs, and (iii) in connection with
bid, performance or similar bonds which do not exceed in the aggregate
$2,500,000; and mechanics', laborers' and materialmen's and similar liens not
then delinquent or which are being contested in good faith by appropriate
proceedings; and liens incidental to the conduct of the business of the
Borrower and its Subsidiaries (other than AH or Haul Insurance) which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit, all of which liens permitted by this paragraph (c) do not in the
aggregate materially detract from the value of the property (except for any
liens which are being contested in good faith by appropriate proceedings) or
materially impair the use thereof in the operation of the business of the
Borrower and its Subsidiaries as a whole;
(d) liens on Motor Vehicle Equipment or real property financed by
Secured Property Indebtedness (to the extent such Secured Property Indebtedness
is permitted by ss.12.1(d) hereof);
(e) liens in respect of judgments or awards, the Indebtedness
with respect to which is permitted by ss.12.1(e) hereof;
(f) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the Borrower or a Subsidiary of the Borrower (other than AH or Haul
Insurance) is a party, and other minor liens or encumbrances on real or
personal property of the Borrower and its Subsidiaries (other than AH or Haul
Insurance) none of which in the opinion of the Borrower interferes materially
with the use of the property affected in the ordinary conduct of the business
of the Borrower and its Subsidiaries, which defects do not individually or in
the
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aggregate have a material adverse effect on the business of the Borrower
individually or of the Borrower and its Subsidiaries, considered as a whole;
(g) other liens existing on the Effective Date and described on
Schedule 12.2 attached hereto;
(h) liens on cash or cash equivalents of Haul Insurance to secure
the Haul Insurance L/Cs granted to the issuers thereof;
(i) liens on assets of Foreign Subsidiaries (other than Canadian
Subsidiaries) securing Indebtedness permitted pursuant to ss.12.1(p);
(j) liens on the equity interests owned by the Borrower and its
Subsidiaries in Foreign Subsidiaries which are pledged to the lenders
thereunder to secure the obligations of such Foreign Subsidiaries under
Indebtedness permitted pursuant to ss.12.1(p) and the guaranty obligations of
the Borrower and the Guarantors under ss.12.1(r); provided that the Borrower
and its Subsidiaries shall provide the Administrative Agent with a second
priority lien on such equity interests; and
(k) liens on the equity interests owned by the Borrower or Axis
in the U.K. Ventures which are pledged to the lenders providing certain working
capital credit facilities to the U.K. Ventures, provided that, such pledge
shall be made on the terms and conditions as shall have been previously
disclosed to the Banks and pursuant to such documentation as shall be
satisfactory to the Agent.
SS.12.3. INVESTMENTS. Make, or permit to exist, any Investments,
directly or indirectly, other than:
(a) Marketable direct obligations of the United States of America
which mature within one year from the date of issue;
(b) Certificates of deposit and bankers' acceptances of any Bank
or any Affiliate of any Bank;
(c) (i) Certificates of deposit and bankers' acceptances of other
domestic banks having total assets in excess of $10,000,000,000 or Fidelity
National Bank or such other banks as may be approved by the Banks in their sole
discretion, (ii) demand and time deposits in any United States or Canadian
bank, provided that the aggregate amount of such demand and time deposits in
any one such bank shall not exceed $500,000, and (iii) demand and time deposits
by any Foreign Subsidiary in any bank; provided that the aggregate amount of
such demand and time deposits shall not, at any time, exceed $2,000,000;
<PAGE> 96
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(d) Securities commonly known as "commercial paper" issued by any
company organized and existing under the laws of the United States of America
or any state thereof which at the time of purchase have been rated and the
ratings for which are not less than "P-1" if rated by Moody's, and not less
than "A-1" if rated by Standard and Poor's;
(e) Investments by the Borrower and AH in the Guarantors which
are evidenced by Intercompany Notes and Investments by the Borrower and AH in
the Guarantors which are equity investments;
(f) Investments by the Borrower or any Subsidiary of the Borrower
(other than AH or Haul Insurance) consisting of acquisitions permitted by
ss.12.5(e) hereof;
(g) Investments by the Borrower or any Subsidiary of the Borrower
(other than H or Haul Insurance) to acquire a less than majority interest in
another Person, provided that (i) such Person is in the same or a similar line
of business as the Borrower or such Subsidiary, as applicable, (ii) no Default
or Event of Default has occurred and is continuing or would exist after giving
effect thereto, (iii) the aggregate amount of all such Investments made after
the Effective Date minus the return of capital thereon shall not exceed (A) if
the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA,
determined on a Pro Forma Basis after giving effect to such Investment, is
greater than or equal to 4.0:1.0, $5,000,000 and (B) if the ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA, determined on a Pro
Forma Basis after giving effect to such Investment, is less than 4.0:1.0,
$10,000,000, and (iv) if the sum of the aggregate amount of all such
Investments made by the Borrower and its Subsidiaries during the period of
three hundred sixty-five (365) days ending on the date of such Investment plus
the aggregate consideration paid or to be paid (including assumption of
liabilities) by the Borrower and its Subsidiaries in connection with
acquisitions permitted pursuant to ss.12.5(e) hereof during the period of three
hundred sixty-five (365) days ending on the date of such Investment exceeds (A)
if the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA,
determined on a Pro Forma Basis after giving effect to such Investment, is
greater than or equal to 4.0:1.0, $5,000,000 and (B) if the ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA, determined on a Pro
Forma Basis after giving effect to such Investment, is less than 4.0:1.0,
$15,000,000, then the Majority Banks shall have given their prior written
consent to such Investment;
(h) Other Investments existing on the Effective Date and
described on Schedule 12.3 attached hereto;
(i) Investments by the Borrower in Haul Insurance in a maximum
aggregate amount not to exceed the amount of capital required to be maintained
by Haul Insurance under the laws of the Cayman Islands, provided
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that such Investments shall be limited to the amount of capital required which
arises from the insurance risks associated with the Borrower and its
Subsidiaries (and not insurance risks relating to third parties);
(j) Investments by Haul Insurance in the Borrower corresponding
to the Indebtedness permitted by ss.12.1(n) hereof and other Investments by
Haul Insurance permitted by the insurance and/or banking laws and regulations
of the Cayman Islands incidental to the conduct of its business as an insurance
company regulated by the laws of the Cayman Islands;
(k) Investments consisting of (i) notes payable to the Borrower
or any of its Subsidiaries from an employee of such Person and resulting from
the sale to such employee of rolling stock which is used by such employee in
the business operations of the Borrower and its Subsidiaries; provided that the
aggregate amount of such Investments shall not, at any time, exceed $8,000,000
and (ii) non-cash consideration received by the Borrower or any of its
Subsidiaries in connection with a sale of assets permitted pursuant to ss.12.5
hereof; provided that the aggregate amount of such Investments shall not, at
any time, exceed $5,000,000;
(l) Investments consisting of non-cash consideration received by
the Borrower or any of its Subsidiaries in connection with the settlement of
any claim or litigation;
(m) Investments in AH by the Borrower; provided that the
aggregate amount of such Investments (including any such Investments made prior
to the date hereof) shall not, at any time, exceed C$120,000,000; and
(n) Investments in the U.K. Ventures (i) in an aggregate amount
not to exceed $500,000 and (ii) additional Investments and incurring
Indebtedness consisting of a guaranty of certain working capital credit
facilities of the U.K. Ventures, provided that, (A) such Investments shall be
made on the terms and conditions as shall have been previously disclosed to the
Banks and pursuant to such documentation as shall be satisfactory to the Agent,
and (B) with respect to clause (ii), (I) the liability under such guaranty
shall be shared between the Borrower and its Subsidiaries, on the one hand, and
the other owners of the U.K. Ventures, on the other hand, in proportion to the
equity ownership (direct and indirect) of such Persons in the U.K. Ventures,
and (II) the aggregate amount of such Investment, and the maximum liability of
the Borrower and its Subsidiaries under such guaranty, shall not exceed the
remainder of $7,000,000 minus the aggregate amount of Investments made pursuant
to clause (i) above.
SS.12.4. DISTRIBUTIONS. (a) The Borrower will not make any
Distributions except that so long as no Default or Event of Default shall have
occurred and be continuing and none would result therefrom, the Borrower may
make
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Distributions in an aggregate amount not to exceed the amount of cash received
by the Borrower after April 1, 1999 from the sale of equity securities of the
Borrower to employees pursuant to employee stock purchase programs.
(b) None of the Borrower's Subsidiaries shall make any
Distributions, except that any Subsidiary of the Borrower may make
Distributions to (i) the Borrower or (ii) a Subsidiary of the Borrower which is
the owner of the capital stock of the Subsidiary making such Distribution;
provided, however, that non-wholly-owned Subsidiaries of the Borrower may make
Distributions on a pro rata basis among the holders of its equity interests.
(c) The Borrower shall not, and shall not permit any of its
Subsidiaries to, create or permit to exist any restriction (other than that
contained in ss.12.4(b) hereof) on the ability of any Subsidiary of the
Borrower to pay dividends to the Borrower or, in the case of a Subsidiary which
is not directly owned by the Borrower, the Subsidiary of the Borrower that is
the direct owner of the capital stock of such Subsidiary.
SS.12.5. MERGER, CONSOLIDATION OR SALE OF ASSETS; ACQUISITIONS. Become
a party to any merger, consolidation or disposition of assets, or agree to
effect any asset acquisition (other than acquisitions of capital assets in the
ordinary course of business) or stock acquisition, except:
(a) (i) mergers, consolidations or amalgamations of any
Subsidiary of the Borrower (other than AH, Haul Insurance and each other
Non-Guarantor Subsidiary of the Borrower) into another Subsidiary of the
Borrower (other than AH, Haul Insurance and each other Non-Guarantor Subsidiary
of the Borrower), (ii) mergers of a Non-Guarantor Subsidiary into another
Non-Guarantor Subsidiary, (iii) mergers or consolidations involving
Subsidiaries of the Borrower with the Borrower pursuant to which the Borrower
is the surviving Person, and (iv) the merger of a Non-Guarantor Subsidiary into
the Borrower or a Guarantor so long as (A) no Default or Event of Default shall
have occurred and be continuing or would result therefrom and (B) the Borrower
or such Guarantor is the survivor of such merger;
(b) mergers or consolidations involving the Borrower or any
Subsidiary of the Borrower (other than AH, Haul Insurance and each other
Non-Guarantor Subsidiary of the Borrower), provided that (i) the Borrower or
such Subsidiary of the Borrower is the surviving Person and (ii) no Default or
Event of Default has occurred and is continuing or would result from such
merger or consolidation;
(c) sales, leases or rentals of property (i) between the Borrower
and any Guarantor and/or between any Guarantors, and (ii) in the ordinary
course of business (which may include sales, leases or rentals of Motor Vehicle
Equipment and other equipment or real property to be upgraded, replaced or
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substituted with other similar or improved property and other such sales,
leases, or rentals consistent with past practices of the Borrower and its
Subsidiaries) and the sale or other transfer of tangible personal property
that, in the reasonable good-faith judgment of the Borrower, has become
obsolete or otherwise unusable in the business or operations of the Borrower
and its Subsidiaries; and
(d) the acquisition (whether of stock or of substantially all of
the assets of a business or business division as a going concern or by means of
a merger or consolidation) of a majority interest in any other Person (a
"Permitted Acquisition") provided that (i) such other Person is in the same or
a similar line of business as the Borrower or the acquiring Subsidiary, as
applicable, (ii) no Default or Event of Default has occurred and is continuing
or would exist after giving effect thereto, (iii) if the Borrower or the
acquiring Subsidiary merges with such other Person, the Borrower or such
Subsidiary, as the case may be, is the surviving party, (iv) if such Person is
a Domestic Subsidiary or a Canadian Subsidiary, such Person shall deliver a
guaranty as provided in ss.7(c) hereof and grant a first-priority perfected
lien on and security interest in its assets to the Administrative Agent, for
the benefit of the Banks and the Administrative Agent, (v) in connection with
any acquisition involving consideration paid or to be paid (including
assumption of liabilities) by the Borrower and its Subsidiaries in excess of
$1,000,000, the Borrower has delivered to the Administrative Agent Compliance
Certificates demonstrating, both immediately prior to and immediately after
such acquisition, compliance on a Pro Forma Basis with the covenants set forth
in ss.ss.12.1, 12.2, 12.8, 12.9, 12.10, and 12.12 of this Agreement, including
compliance with the highest performance ratio (in the case of such covenants
requiring a minimum level to be exceeded) or the lowest performance ratio (in
the case of such covenants setting forth a maximum level not to be exceeded)
applicable during the twelve month period immediately succeeding the date of
such Permitted Acquisition, and (vi) if any of (A) the consideration paid or to
be paid (including assumption of liabilities) by the Borrower and/or the
acquiring Subsidiary, as applicable, in connection with any such acquisition
exceeds (I) if the ratio of Consolidated Funded Indebtedness to Consolidated
EBITDA, determined on a Pro Forma Basis after giving effect to such
acquisition, is greater than or equal to 4.0:1.0, $5,000,000 and (II) if the
ratio of Consolidated Funded Indebtedness to Consolidated EBITDA, determined on
a Pro Forma Basis after giving effect to such acquisition, is less than
4.0:1.0, $15,000,000, (B) the aggregate consideration paid or to be paid
(including assumption of liabilities) by the Borrower and each acquiring
Subsidiary in connection with all such acquisitions during the period of three
hundred sixty-five (365) days ending on the date of such acquisition plus the
aggregate amount of Investments of the Borrower and its Subsidiaries made
during the period of three hundred sixty-five (365) days ending on the date of
such acquisition pursuant to ss.12.3(g), exceeds (y) if the ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA, determined on a Pro
Forma Basis after giving effect to such
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acquisition, is greater than or equal to 4.0:1.0, $5,000,000 and (z) if the
ratio of Consolidated Funded Indebtedness to Consolidated EBITDA, determined on
a Pro Forma Basis after giving effect to such acquisition, is less than
4.0:1.0, $15,000,000, or (C) the aggregate consideration paid or to be paid
(including assumption of liabilities) by the Borrower and each acquiring
Subsidiary in connection with all such acquisitions of Non-Guarantor
Subsidiaries after the Effective Date exceeds $10,000,000, then the Majority
Banks shall have given their prior written consent to such acquisition.
SS.12.6. NO LEASEBACKS. Become liable, directly or indirectly, as
lessee or guarantor or other surety, with respect to any lease of real or
personal property, whether now owned or hereafter acquired, (a) which is to be
sold or transferred by the Borrower or a Subsidiary of the Borrower to any
Person, or (b) which the Borrower or a Subsidiary of the Borrower intends to
use for substantially the same purpose as any other property which has been or
is to be sold or transferred by the Borrower or a Subsidiary of the Borrower to
any Person in connection with such lease (a "Sale-Leaseback"), except for (i)
Sale-Leasebacks between the Borrower and any Guarantor or between Guarantors
and (ii) other Sale-Leasebacks by the Borrower or any of its Subsidiaries
(other than AH or Haul Insurance), provided that the aggregate net book value
of the assets sold in connection with all such Sale-Leasebacks under this
clause (ii) does not exceed $5,000,000 at any time.
SS.12.7. LEASES; LEASES WITH AFFILIATES. Except for any transaction
(a) disclosed on Schedule 8.18 attached hereto, (b) approved by the majority of
the so-called "outside directors" of the Board of Directors of the Borrower, or
(c) pursuant to which the payments required by the Borrower or any of its
Subsidiaries do not exceed $60,000 in the aggregate, neither the Borrower nor
any of its Subsidiaries shall enter into any agreement to rent or lease, as
lessee or lessor, any real or personal property with any Affiliate, other than
transactions between the Borrower and a Guarantor or between Guarantors.
SS.12.8. CONSOLIDATED CASH FLOW RATIO. Permit, as at the end of each
fiscal quarter of the Borrower ending during any period described in the table
set forth below, the Consolidated Cash Flow Ratio for the period consisting of
such fiscal quarter and the three preceding fiscal quarters to be less than the
ratio set forth opposite such period in such table:
<TABLE>
<CAPTION>
Fiscal Quarters Ending Ratio
------ -------- ------ -----
<S> <C>
9/30/99 0.65:1.00
12/31/99 through 3/31/00 1.10:1.00
6/30/00 through 9/30/00 1.15:1.00
</TABLE>
<PAGE> 101
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<TABLE>
<S> <C>
12/31/00 through 9/30/01 1.20:1.00
12/31/01 and thereafter 1.25:1.00
</TABLE>
SS.12.9. CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at any
time to be less than the sum of (a) $60,000,000, plus (b) on a cumulative
basis, 50% of the sum of positive Consolidated Net Income for each fiscal year
of the Borrower ending after December 31, 1999 with no deductions for losses in
any year, plus (c) seventy-five percent (75%) of the proceeds (net of all
customary and reasonable related expenses) received after the Balance Sheet
Date by the Borrower in connection with any sale by the Borrower of equity
securities issued by the Borrower.
SS.12.10. FUNDED DEBT TO EBITDA RATIO. Permit, as at the end of each
fiscal quarter of the Borrower ending during any period described in the table
set forth below, the ratio of Consolidated Funded Indebtedness as at date to
Consolidated EBITDA for the period consisting of such fiscal quarter and the
three preceding fiscal quarters, to be greater than the ratio set forth
opposite such period in such table:
<TABLE>
<CAPTION>
Fiscal Quarters Ending Ratio
------ -------- ------ -----
<S> <C>
9/30/99 through 9/30/00 4.50:1.00
12/31/00 through 9/30/01 4.25:1.00
12/31/01 and thereafter 4.00:1.00
</TABLE>
SS.12.11. CAPITAL EXPENDITURES. If the ratio of Consolidated Funded
Indebtedness to Consolidated EBITDA as demonstrated on a Compliance Certificate
delivered in accordance with ss.11.4(e) at the end of any fiscal year of the
Borrower and its Subsidiaries is equal to or exceeds 2.50 to 1.00, the Borrower
shall not and shall not permit any of its Subsidiaries to make Capital
Expenditures during such fiscal year that exceed in the aggregate (a) for the
fiscal year ending December 31, 1999, 6.5% of Consolidated Revenues for such
fiscal year, (b) for the fiscal year ending December 31, 2000, 5.5% of
Consolidated Revenues for such fiscal year, and (c) for each fiscal year ending
thereafter, 6.5% of Consolidated Revenues for such fiscal year; provided that
(i) to the extent that the full amount of Capital Expenditures permitted
hereunder is not expended by the Borrower and its Subsidiaries in such fiscal
year, such unexpended portion may be carried over and expended in the
immediately following fiscal year only and (ii) such unexpended portion shall
be deemed expended last in such immediately following fiscal year. For purposes
of calculating the amount of Capital Expenditures permitted under this
ss.12.11, there shall be deducted from the actual amount of Capital
Expenditures for any fiscal year an amount equal to the greater of (a) $0 and
(b) the aggregate
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amount of Net Cash Proceeds received by the Borrower and its Subsidiaries from
the sale of assets pursuant to ss.ss.12.5(c) and (d) during such fiscal year
and all Capital Expenditures made with insurance or condemnation proceeds used
to repair or replace the property damaged, destroyed or taken.
SS.12.12. SENIOR DEBT AND MOTOR VEHICLE OPERATING LEASE OBLIGATIONS TO
EBITDA AND RENTAL EXPENSE RATIO. Permit, as at the end of each fiscal quarter
of the Borrower, the ratio of (a) the sum of (i) Consolidated Senior Debt as at
such date plus (ii) the aggregate amount of Motor Vehicle Operating Lease
Obligations as at such date to (b) the sum of (i) Consolidated EBITDA for the
period of such fiscal quarter and the three preceding fiscal quarters plus (ii)
Consolidated Rental Expense for the period of such fiscal quarter and the three
preceding fiscal quarters, to be greater than 2.50:1.0.
SS.12.13. TRANSACTIONS WITH AFFILIATES. Except for any transaction (a)
otherwise permitted by the terms of ss.ss.8.18 or 12.7 hereof, (b) approved by
the majority of the so-called "outside directors" of the Board of Directors of
the Borrower or (c) pursuant to which the payments required by the Borrower or
any of its Subsidiaries do not exceed $60,000 in the aggregate, the Borrower
shall not and shall not permit any of its Subsidiaries to engage in any
transaction with any Affiliate (other than for services as employees, officers
and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any such Affiliate has a
substantial interest or is an officer, director, trustee or partner on terms
more favorable to such Person than would have been obtainable on an
arm's-length basis in the ordinary course of business.
SS.12.14. SUBORDINATED DEBT. The Borrower will not effect or permit
any change in or amendment to any of the Subordinated Debt Documents, give any
notice of redemption or prepayment or offer to repurchase, or make any payment
of principal of or interest on or in redemption, retirement or repurchase of
any of the Subordinated Debt, provided that (i) so long as no Default or Event
of Default then exists or would result from such payment, the Borrower may make
regularly scheduled interest payments required by the terms of the Subordinated
Debt Documents, (ii) the Borrower may repay the Subordinated Debt with the
proceeds of replacement or refinancing subordinated Indebtedness incurred
pursuant to ss.12.1(i) hereof, and (iii) the Borrower may repay the
Subordinated Debt with the proceeds of the sale of equity securities to the
extent (A) the ratio of Consolidated Funded Indebtedness to Consolidated
EBITDA, determined as of the date of such repayment on a pro forma basis giving
effect to such repayment, is less than 3.0 to 1.0, (B) such proceeds are not
required to be applied to the repayment of the Obligations pursuant to
ss.2.9(d), (C) such repayment is made within three
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hundred sixty-five (365) days of such sale of equity securities. It is
understood by the parties hereto that, in connection with any repayment,
prepayment, redemption, retirement, or repurchase of the Subordinated Debt
pursuant to this ss.12.14, all principal, interest (other than interest accrued
or incurred in the ordinary course), premium and other costs relating thereto
(including, without limitation, any prepayment penalty, make-whole amount and
the like) shall be paid from the proceeds of such refinancing Indebtedness or
sale of equity securities.
SS.12.15. SENIOR NOTES. The Borrower will not effect or permit any
change in or amendment to any of the Senior Note Indenture or the Senior Notes,
give any notice of redemption or prepayment or offer to repurchase, or make any
payment of principal of or interest on or in redemption, retirement or
repurchase of any of the Senior Notes, provided that so long as no Default or
Event of Default then exists or would result from such payment, (i) the
Borrower may make regularly scheduled payments required by the terms of the
Senior Notes and (ii) the Borrower may repay the Senior Notes with the proceeds
of (A) the sale by it or any of its Subsidiaries of any shares of their stock,
options or warrants for the purchase of stock or other equity or equity
instruments to the extent (I) the ratio of Consolidated Funded Indebtedness to
Consolidated EBITDA, determined as of the date of such repayment on a pro forma
basis giving effect to such repayment, is less than 3.0 to 1.0, (II) such
proceeds are not required to be applied to repay the Obligations pursuant to
ss.2.9(d) hereof, and (III) such repayment is made within three hundred
sixty-five (365) days of such sale of equity securities, and (B) the issuance
of any Indebtedness permitted pursuant to ss.12.1(j). It is understood by the
parties hereto that, in connection with any repayment, prepayment, redemption,
retirement, or repurchase of the Senior Notes pursuant to this ss.12.15, all
principal, interest (other than interest accrued or incurred in the ordinary
course), premium and other costs relating thereto (including, without
limitation, any prepayment penalty, make-whole amount and the like) shall be
paid from the proceeds of such refinancing Indebtedness or sale of equity
securities.
SS.12.16. NEGATIVE PLEDGES. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any agreement or instrument which
prohibits the Borrower or any of its Subsidiaries from granting any security
interest in or any mortgage, pledge or lien on or from otherwise encumbering
any of its property or other assets to secure the obligations of the Borrower
or any Guarantor under this Agreement or any Guaranty or any amendment,
restatement, modification, supplement, refinancing or replacement of this
Agreement or any Guaranty, except, in each case, with respect to (i) the equity
interests in the U.K. Ventures and (ii) the assets of any Foreign Subsidiary
with respect to which the security interest granted herein is prohibited
pursuant to the terms of the Indebtedness of a Foreign Subsidiary permitted
pursuant to ss.12.1(p).
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SS.13. EVENTS OF DEFAULT; ACCELERATION; ETC.
SS.13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if notice or lapse of time or notice and lapse
of time is required, then, prior to such notice and/or lapse of time,
"Defaults") shall occur:
(a) if the Borrower or the Canadian Borrower shall default in the
payment of any (i) principal hereunder or under any Note when the same shall
become due and payable, whether at maturity or at any date fixed for payment or
prepayment or by declaration as a result of a Default or Event of Default or
otherwise or (ii) interest or other amounts due hereunder or any Note within
two (2) Business Days of when the same shall become due and payable, whether at
maturity or at any date fixed for payment or prepayment or by declaration as a
result of a Default or Event of Default or otherwise; or
(b) if the Borrower shall default in the performance of or
compliance with the covenants set forth in ss.12 hereof; or
(c) if the Borrower shall default in the payment or performance
of or compliance with any other liability, obligation or covenant hereunder
other than those specifically referenced in this ss.13.1 and such default shall
not have been remedied within 20 days after written notice thereof shall have
been given to the Borrower by the Administrative Agent (which notice the
Administrative Agent shall give to the Borrower upon the written instruction of
the Majority Banks); or
(d) if any representation or warranty made by the Borrower or any
of its Subsidiaries herein or in any of the other Loan Documents or in any
certificate or other writing at any time delivered to the Banks pursuant hereto
or any of the other Loan Documents shall prove to have been false or incorrect
in any material respect on the date as of which made; or
(e) if the Borrower or any of its Subsidiaries shall default (as
principal or guarantor or other surety) in the payment of any principal of or
premium, if any, or interest on any Indebtedness for borrowed money or in
respect of capitalized leases equal to or in excess of $2,500,000 in the
aggregate, or with respect to the performance of any of the terms of any
evidence of such Indebtedness or any agreement relating thereto, such default
shall continue for longer than the applicable period of grace, if any,
specified therein and no waiver shall be in effect with respect thereto; or
(f) if the Borrower or any of its Subsidiaries shall admit in
writing its inability to pay its debts or make an assignment for the benefit of
creditors, or if any order for relief is entered in respect of the Borrower or
any of its
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Subsidiaries under any bankruptcy, reorganization, arrangements, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect; or
(g) if any order is entered in any proceeding by or against the
Borrower or any of its Subsidiaries decreeing or permitting the dissolution or
split-up of such Person or the winding up of such Person's affairs; or
(h) (i) if any petition or application for the appointment of a
liquidator or receiver or custodian (or similar official) of the Borrower or
any of its Subsidiaries or of any substantial part of such Person's assets is
filed by such Person; or any such petition or application is filed against the
Borrower or any of its Subsidiaries and such Person approves thereof, consents
thereto or acquiesces therein or such petition or application remains
undismissed for a period of sixty (60) days, or (ii) if any proceeding or case
relating to the Borrower or any of its Subsidiaries under any bankruptcy,
reorganization, arrangements, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction is commenced by such Person; or
if any such proceeding or case is commenced against the Borrower or any of its
Subsidiaries and such Person approves thereof, consents thereto or acquiesces
therein or such proceeding or case remains undismissed for a period of sixty
(60) days; or
(i) if there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, any final judgment against the
Borrower or any of its Subsidiaries which, together with such other outstanding
final judgments against the Borrower and its Subsidiaries, exceeds in the
aggregate $500,000; or
(j) if any judicial lien or attachment on the property of the
Borrower or any of its Subsidiaries in an amount of $500,000 or greater shall
not be released, discharged, bonded or provided for to the satisfaction of the
Banks within sixty (60) days after such lien or attachment shall have come into
existence; or
(k) if there shall occur and be continuing beyond any applicable
grace period any default under any other Loan Document, or if any of such
documents shall cease to be in full force and effect; or
(l) if the Borrower shall at any time own less than 100% of the
capital stock of any of its Subsidiaries which are listed on Schedule 8.16(a)
attached hereto; or
(m) if the Management Group shall at any time, legally or
beneficially own less than fifteen percent (15%) of the shares of the common
stock of the
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Borrower, as adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of the Borrower; or
(n) if any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of either (i)
thirty-five percent (35%) or more of the outstanding shares of common stock of
the Borrower or (ii) a greater percentage of the outstanding shares of common
stock of the Borrower than is then owned by the Management Group; or, during
any period of twelve consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period shall cease to
constitute a majority of the board of directors of the Borrower; or
(o) if at any time AH ceases to be treated as a non-resident
owned investment corporation for Canadian income tax purposes unless AH becomes
a Guarantor hereunder within thirty (30) days of such cessation and no other
Default or Event of Default shall have occurred and be continuing; or
(p) if any default or event of default under the Subordinated
Debt Documents or the Senior Notes shall have occurred and be continuing, or if
the Subordinated Debt or the Senior Notes shall be prepaid, redeemed,
repurchased or defeased in whole or in part, or a notice of redemption,
repurchase or defeasance is required to be sent thereunder; or
(q) if a "Change in Control" under and as defined in the
Subordinated Debt Documents shall have occurred, or if a "Control Change
Notice" or "Declaration Notice" under and as defined in the Subordinated Debt
Documents shall have been given; or
(r) if a "Change of Control" under and as defined in the Senior
Notes shall have occurred or if a notice of a "Change of Control Offer" under,
and as defined in the Senior Notes shall have been given; or
(s) if the Borrower or any Related Entity incurs any unsatisfied
liability, as finally determined, to the Pension Benefit Guaranty Corporation
or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate
amount exceeding $2,500,000, or the Borrower or any such Person is finally
assessed (beyond any appeal or cure period) withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $2,500,000, or if either of the following occurs with respect to a
Guaranteed Pension Plan: (i) a reportable event within the meaning of ss.4043
of ERISA or (ii) a failure to make a required installment or other payment
(within the meaning of ss.302(f)(1) of ERISA), in each case, which has (A)
resulted in final, non-appealable liability of the Borrower or any of its
Subsidiaries to the Pension Benefit Guaranty Corporation or such Guaranteed
Pension Plan in an
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amount exceeding $2,500,000 or (B) has caused the termination of such
Guaranteed Pension Plan by the Pension Benefit Guaranty Corporation, the
appointment by the appropriate United States District Court of a trustee to
administer such Guaranteed Pension Plan or the imposition of a lien in favor of
such Guaranteed Pension Plan;
then, in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon request of the Majority Banks, the
Administrative Agent shall, by written notice to the Borrower and the Canadian
Borrower, declare all amounts owing with respect to this Agreement, the Notes
and the other Loan Documents to be, and they shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that in the event of any Event of Default specified in paragraphs (f),
(g) or (h) of this ss.13.1, all such amounts shall become immediately due and
payable automatically and without any requirement of notice from the
Administrative Agent.
SS.13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events
of Default specified in paragraphs (f), (g) or (h) of ss.13.1 shall occur, any
unused portion of the credit hereunder shall immediately and automatically
terminate and each of the Banks shall be relieved of all further obligations to
make Loans to the Borrower or the Canadian Borrower, the Letter of Credit Bank
shall be relieved of all further obligations to issue, extend or renew Letters
of Credit and the Canadian Banks shall be relieved of all further obligations
to issue, purchase and discount Bankers' Acceptances. If any other Event of
Default shall have occurred and be continuing, the Administrative Agent may,
and at the instruction of the Majority Banks, the Administrative Agent shall,
terminate the Total Commitment by written notice to the Borrower and the
Canadian Borrower and upon such notice being given such unused portion of the
Total Commitment hereunder shall terminate immediately and each of the Banks
shall be relieved of all further obligations to make Loans to the Borrower or
the Canadian Borrower, the Letter of Credit Bank shall be relieved of all
further obligations to issue, extend or renew Letters of Credit and the
Canadian Banks shall be relieved of all further obligations to issue, purchase
and discount Bankers' Acceptances. No termination of all or any portion of the
Total Commitment shall relieve (i) the Borrower or the Canadian Borrower or any
Guarantor of any of their Obligations to the Banks or the Agents hereunder or
elsewhere or (ii) any Bank from its obligations to the other Banks and the
Agents hereunder, including, without limitation, under ss.31 hereof.
SS.14. NOTICE AND WAIVERS OF DEFAULT.
SS.14.1. NOTICE OF DEFAULT. If any Person shall give any notice or
take any other action in respect of a claimed default (whether or not
constituting an
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Event of Default) under this Agreement, the Notes or under any other note,
evidence of indebtedness, indenture or other obligation for borrowed money as
to which the Borrower or any of its Subsidiaries is a party or obligor, whether
as principal or surety, the Borrower shall forthwith give written notice
thereof to the Banks, describing the notice or action and the nature of the
claimed default.
SS.14.2. WAIVERS OF DEFAULT. Any Default or Event of Default specified
in ss.13.1 hereof may be waived as provided in ss.24 hereof. Any Default or
Event of Default so waived shall be deemed to have been cured and not to be
continuing during the period for which such waiver is applicable; but no such
waiver shall extend to or affect any subsequent like default or impair any
rights arising therefrom.
SS.15. REMEDIES ON DEFAULT, ETC.
SS.15.1. RIGHTS OF BANKS. In case any one or more of the Events of
Default specified in ss.13.1 hereof shall have occurred and be continuing, and
whether or not all amounts owing with respect to the Notes have been declared
due and payable pursuant to ss.13.1 hereof, each Bank, if owed any amount with
respect to the Notes, may proceed to protect and enforce its rights by suit in
equity, action at law and/or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
or the Notes including the obtaining of the ex parte appointment of a receiver,
and, if such amount shall have become due, by declaration or otherwise, proceed
to enforce the payment thereof or any other legal or equitable right of such
Bank.
SS.15.2. SETOFF. Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or other sums credited by
or due from any of the Banks to the Borrower or the Canadian Borrower and any
securities or other property of the Borrower or the Canadian Borrower in the
possession of such Bank may be applied to or set off by such Bank against the
payment of Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower and the Canadian Borrower to such Bank. Each of the
Banks agrees with each other Bank that (a) if an amount to be set off is to be
applied to Indebtedness of the Borrower or the Canadian Borrower to such Bank,
other than Indebtedness evidenced by the Note held by such Bank or by this
Agreement, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by such Note held by such Bank or by this
Agreement, and (b) if such Bank shall receive from the Borrower or the Canadian
Borrower, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim evidenced by the Note held
by or other Obligations hereunder owed to such Bank by proceedings against the
Borrower or the Canadian Borrower at law or in equity or by proof
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thereof in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the
Note held by, and Obligations hereunder owed to, such Bank any amount in excess
of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by, and other amounts owed hereunder to, all of the
Banks, such Bank will make such disposition and arrangements with the other
Banks with respect to such excess, either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Note held by it and other Obligations owed it, its
proportionate payment as contemplated by this Agreement; provided that if all
or any part of such excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
15.3. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Administrative Agent, the Canadian Agent or any Bank, as the case
may be, receives any monies in connection with the enforcement of any the
Security Documents, or otherwise with respect to the realization upon any of
the Collateral, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be)
the reimbursement of the Administrative Agent and the Canadian Agent
for or in respect of all reasonable costs, expenses, disbursements and
losses which shall have been incurred or sustained by such Agent in
connection with the collection of such monies by such Agent, for the
exercise, protection or enforcement by such Agent of all or any of the
rights, remedies, powers and privileges of such Agent under this
Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to
such Agent against any taxes or liens which by law shall have, or may
have, priority over the rights of such Agent to such monies;
(b) Second, to all other Obligations in respect of the
Loans, the Letters of Credit, the Bankers' Acceptances, the Notes and
other Obligations arising under this Agreement or the other Loan
Documents, in such order or preference as the Majority Banks may
determine; provided, however, that (i) distributions shall be made (A)
pari passu among Obligations with respect to the Administrative
Agent's Fee and all other Obligations and (B) with respect to each
type of Obligation owing to the Banks, such as interest, principal,
fees and expenses, among the Banks pro rata, and (ii) the
Administrative Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
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(c) Third, to the payment and satisfaction of all other
Obligations;
(d) Fourth, upon payment and satisfaction in full or
other provisions for payment in full satisfactory to the Banks and the
Agent of all of the Obligations, to the payment of any obligations
required to be paid pursuant to ss.9-504(1)(c) of the Uniform
Commercial Code; and
(e) Fifth, the excess, if any, shall be returned to the
Borrower, the Canadian Borrower or to such other Persons as are
entitled thereto.
SS.16. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SS.16.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The
Borrower acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Borrower or one or
more of its Subsidiaries, in connection with this Credit Agreement or
otherwise, by a Section 20 Subsidiary. The Borrower, for itself and each of its
Subsidiaries, hereby authorizes (a) such Section 20 Subsidiary to share with
each Agent and each Bank any information delivered to such Section 20
Subsidiary by the Borrower or any of its Subsidiaries, and (b) each Agent and
each Bank to share with such Section 20 Subsidiary any information delivered to
such Agent or such Bank by the Borrower or any of its Subsidiaries pursuant to
this Credit Agreement, or in connection with the decision of such Bank to enter
into this Credit Agreement; it being understood, in each case, that any such
Section 20 Subsidiary receiving such information shall be bound by the
confidentiality provisions of this Credit Agreement. Such authorization shall
survive the payment and satisfaction in full of all of Obligations.
SS.16.2. CONFIDENTIALITY. Each of the Banks and each Agent agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential
information of the same nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by the Borrower or any of
its Subsidiaries pursuant to this Credit Agreement that is identified by such
Person as being confidential at the time the same is delivered to the Banks or
such Agent, provided that nothing herein shall limit the disclosure of any such
information (a) after such information shall have become public other than
through a violation of this ss.16, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of the Banks or either
Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Bank or an Agent, or to auditors or accountants, (e) to
the Administrative Agent, any Bank or any Section 20 Subsidiary, (f) in
connection with any litigation to which any one or more of the Banks, an Agent
or any Section 20 Subsidiary is a party, or in connection with the enforcement
of
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rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank as provided in ss.16.1 or (h) to any
assignee or participant (or prospective assignee or participant) so long as
such assignee or participant agrees to be bound by the provisions of ss.18.6.
SS.16.3. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Banks and the Agents shall, prior to
disclosure thereof, notify the Borrower of any request for disclosure of any
such non-public information by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Bank by such governmental agency) or pursuant to
legal process.
SS.16.4. OTHER. In no event shall any Bank or Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary
by the Borrower or any of its Subsidiaries. The obligations of each Bank under
this ss.16 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by
such Bank to the Borrower prior to the date hereof and shall be binding upon
any assignee of, or purchaser of any participation in, any interest in any of
the Loans or Reimbursement Obligations from any Bank.
SS.17. THE AGENTS.
SS.17.1. AUTHORIZATION.
(a) Each Agent is authorized to take such action on behalf of
each of the Banks and to exercise all such powers as are hereunder and under
any of the other Loan Documents and any related documents delegated to the
Agents, together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed herein or therein
shall be implied to have been assumed by the Agents.
(b) The relationship between the Agents and the Banks is and
shall be that of an independent contractor. The use of the term "Administrative
Agent" or "Canadian Agent" or "Agents" herein is for convenience only and is
used to describe, as a form of convention, the independent contractual
relationship between the Agents and each of the Banks. Nothing contained in
this Agreement or any of the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between either Agent and any
of the Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Agents are nevertheless a
"representative" of the Banks, as that term is defined in Article 1 of the
Uniform
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Commercial Code, for purposes of actions for the benefit of the Banks and the
Agents with respect to all collateral security and guaranties contemplated by
the Loan Documents. Such actions include the designation of either Agent as
"secured party", "mortgagee", "lienholder" or the like on all financing
statements, motor vehicle titles and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages, liens or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agents.
SS.17.2. EMPLOYEES AND AGENTS. The Agents may exercise their powers
and execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Agents may utilize the services of such Persons as the Agents in their sole
discretion may reasonably determine, and all reasonable fees and expenses of
any such Persons shall be paid by the Borrower.
SS.17.3. NO LIABILITY. Neither of the Agents nor any of their
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Agents or
such other Person, as the case may be, may be liable for losses due to its
willful misconduct or gross negligence.
SS.17.4. NO REPRESENTATIONS.
(a) Neither Agent shall be responsible for the execution or
validity or enforceability of this Agreement, the Notes, the Letters of Credit,
the Bankers' Acceptances, any of the other Loan Documents or any instrument at
any time constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower or any of
its Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any instrument at any time constituting, or intended to constitute,
collateral security for the Notes or to inspect any of the properties, books or
records of the Borrower or any of its Subsidiaries. Neither Agent shall be
bound to ascertain whether any notice, consent, waiver or request delivered to
it by the Borrower, the Canadian Borrower or any holder of any of the Notes
shall have been duly authorized or
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is true, accurate and complete. Neither Agent has made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of the Borrower or any of its Subsidiaries. Each Bank acknowledges
that it has, independently and without reliance upon either Agent, the
Documentation Agent or any other Bank, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
(b) For purposes of determining compliance with the conditions
set forth in ss.9, each Bank that has executed this Credit Agreement shall be
deemed to have consented to, approved or accepted, or to be satisfied with,
each document and matter either sent, or made available, by the Administrative
Agent to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of the Administrative Agent active
upon the Borrower's account shall have received notice from such Bank prior to
the Effective Date specifying such Bank's objection thereto and such objection
shall not have been withdrawn by notice to the Administrative Agent to such
effect on or prior to the Effective Date.
SS.17.5. PAYMENTS.
(a) A payment by the Borrower or the Canadian Borrower
to the appropriate Agent hereunder or any of the other Loan Documents for the
account of any Bank shall constitute a payment to such Bank. Each Agent agrees
promptly to distribute to each Bank such Bank's pro rata share of payments
received by such Agent for the account of the Banks except as otherwise
expressly provided herein or in any of the other Loan Documents.
(b) If in the reasonable opinion of either Agent the
distribution of any amount received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might involve it in liability,
it may refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed
by such Agent is to be repaid, each Person to whom any such distribution shall
have been made shall either repay to such Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained
in this Agreement or any of the other Loan Documents, (i) any Bank that (A)
fails to make available to the appropriate Agent its pro rata share of any
Revolving Credit Loan, or fails to make available to a Swing Line Bank its pro
rata share of any Swing Line Loan, or fails to make available to the Letter of
Credit Bank
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its pro rata share of each drawing under any Letter of Credit or (B) fails to
comply with the provisions of ss.15 hereof with respect to making dispositions
and arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, and (ii) Canadian Bank which
fails to purchase and accept Banker's Acceptances in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed
to have assigned any and all payments due to it from the Borrower and the
Canadian Borrower, whether on account of outstanding Loans, Letters of Credit,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans. The Delinquent Bank hereby authorizes each Agent to
distribute such payments to the nondelinquent Banks in proportion to their
respective pro rata shares of all outstanding Loans. A Delinquent Bank shall be
deemed to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans of the
nondelinquent Banks, the Banks' respective pro rata shares of all outstanding
Loans have returned to those in effect immediately prior to such delinquency
and without giving effect to the nonpayment causing such delinquency.
SS.17.6. HOLDERS OF NOTES. The Agents may deem and treat the payee of
any Note as the absolute owner or purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder, assignee or transferee.
SS.17.7. INDEMNITY. The Banks ratably agree hereby to indemnify and
hold harmless the Agents from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agents have not been reimbursed by the Borrower as
required by ss.19 hereof), and liabilities of every nature and character
arising out of or related to this Agreement, the Notes, or any of the other
Loan Documents or the transactions contemplated or evidenced hereby or thereby,
or the Agents' actions taken hereunder or thereunder, except to the extent that
any of the same shall be directly caused by such Agent's willful misconduct or
gross negligence.
SS.17.8. AGENTS AS BANKS; DOCUMENTATION AGENT; CO-AGENTS. In their
individual capacity, BKB and The Bank of Nova Scotia shall have the same
obligations and the same rights, powers and privileges in respect to their
Commitments, the Loans made by them, and, if applicable, Bankers' Acceptances
purchased and accepted by them, and as the holder of any of the Notes, as they
would have were they not also Agents. None of the Documentation Agent or either
Co-Agent shall have any obligation, liability,
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responsibility or duty under this Agreement other than as applicable to all
Banks as such.
SS.17.9. RESIGNATION; REMOVAL. Each Agent may resign at any time by
giving sixty (60) days' prior written notice thereof to the Banks and the
Borrower and each Agent may be removed at any time by the Majority Banks as a
result of such Agent's willful misconduct or gross negligence upon thirty (30)
days' prior written notice thereof to the Banks, such Agent and the Borrower.
Upon any such resignation or removal, the Majority Banks shall have the right
to appoint a successor Administrative Agent or Canadian Agent. Unless a Default
or Event of Default shall have occurred and be continuing, such successor
Administrative Agent or Canadian Agent shall be reasonably acceptable to the
Borrower. If, in the case of the resignation of the Administrative Agent or
Canadian Agent, no successor Administrative Agent or Canadian Agent shall have
been so appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
or Canadian Agent's giving of notice of resignation, then the retiring
Administrative Agent or Canadian Agent may, on behalf of the Banks, appoint a
successor Administrative Agent or Canadian Agent, which shall be a financial
institution having a senior debt rating of not less than A or its equivalent by
Standard & Poor's Ratings Group. Upon the acceptance of any appointment as
Administrative Agent or Canadian Agent hereunder by a successor Administrative
Agent or Canadian Agent, such successor Administrative Agent or Canadian Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent or
Canadian Agent, and the retiring or removed Administrative Agent or Canadian
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's or Canadian Agent's resignation or the
Administrative Agent's or Canadian Agent's removal, the provisions of this
Agreement and the other Loan Documents shall continue in effect for such
Agent's benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent or Canadian Agent.
SS.17.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
ss.17.10 it shall promptly notify the other Banks of the existence of such
Default or Event of Default.
SS.18. ASSIGNMENT AND PARTICIPATION.
SS.18.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein,
each Bank may assign to one or more Eligible Assignees a portion of its
interests, rights and obligations under this Agreement (including a portion of
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its Domestic Commitment Percentage or Canadian Commitment Percentage); provided
that (a) each such assignment shall be of a constant, and not a varying,
percentage of all of the assigning Bank's rights and obligations under this
Agreement, (b) the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as hereinafter defined),
an Assignment and Acceptance, substantially in the form of Exhibit I attached
hereto (an "Assignment and Acceptance"), together with the Note subject to such
assignment, (c) the Administrative Agent and, unless a Default or a Event of
Default shall have occurred and be continuing or the assignment is to an
Affiliate of the assigning Bank, the Borrower shall have given their prior
written consent to each such assignment, which consent shall not be
unreasonably withheld, (d) each assignment shall be in a minimum amount of not
less than $5,000,000 (or, if less, such Bank's entire Commitment), and (e) BKB
(and its Affiliates) shall at all times prior to the occurrence of an Event of
Default maintain a Commitment of at least $15,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder, and (ii) the
assigning Bank shall, to the extent provided in such assignment be released
from its obligations under this Agreement.
SS.18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other and
the other parties hereto as follows: (a) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Bank makes
no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or the attachment, perfection or priority of any security interest or
mortgage; (b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance
by the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations of any of their
obligations under this Agreement or any of the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (c) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in ss.8.5 and
ss.11.4 and such other documents and information as it has deemed appropriate
to make its own
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credit analysis and decision to enter into such Assignment and Acceptance; (d)
such assignee will, independently and without reliance upon the assigning Bank,
the Agents or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (e) such assignee
represents and warrants that it is an Eligible Assignee; (f) such assignee
appoints and authorizes the Agents to take such action as Agents on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Agents by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto; (g) such assignee agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as a Bank; (h)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; and (i) such assignee acknowledges that it
has made arrangements with the assigning Bank satisfactory to the assigning
Bank with respect to its pro rata share of Letter of Credit Fees in respect of
outstanding Letters of Credit.
SS.18.3. REGISTER. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of the Banks
and the Commitment Percentages of, and principal amount of the Loans owing, the
Banks from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Canadian Borrower, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower and the Banks at any
reasonable time and from time to time upon reasonable prior notice. Upon each
such recordation, the assigning Bank agrees to pay to the Administrative Agent
a registration fee in the sum of $3,500. The Borrower shall have no liability
hereunder for payment of the registration fee.
SS.18.4. RESTATED NOTES. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with the Note
subject to such assignment, the Administrative Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrower and the Banks (other than the assigning Bank). Within
five (5) Business Days after receipt of such notice, the Borrower and the
Canadian Borrower, if applicable, at their own expense, shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Note, a
restated Note to the order of such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and a restated Note to the order of the assigning Bank in an amount
equal to the amount retained by it hereunder, if any. Such restated Notes shall
provide that they are replacements for the surrendered Note, shall be in an
aggregate principal amount equal to the aggregate principal amount of
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the surrendered Note, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Note. Within five (5) days of issuance of any restated Note pursuant to this
ss.18.4, the Borrower and the Canadian Borrower, if applicable, shall deliver
an opinion of counsel, addressed to the Banks and the Agents, relating to the
due authorization, execution and delivery of such restated Notes and the
legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Note shall be cancelled and returned
to the Borrower.
SS.18.5. PARTICIPATIONS. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that
(a) each such participation shall be in an amount of not less than $5,000,000,
(b) any such sale or participation shall not affect the rights and duties of
the selling Bank hereunder to the Borrower or the Canadian Borrower, and (c)
the only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of the Loan
Documents shall be the rights to approve waivers, amendments or modifications
that would reduce the principal of or the interest rate on any Loans, extend
the term or increase the amount of the Commitment of such Bank as it relates to
such participant, reduce the amount of any Commitment Fees or Letter of Credit
Fees to which such participant is entitled or extend any regularly scheduled
payment date for principal or interest. The Borrower and the Canadian Borrower
hereby agree that each such participant shall have, subject to the terms of
ss.15.2, the right of setoff that is granted to each Bank pursuant to ss.15.2.
SS.18.6. DISCLOSURE. The Borrower for itself and on behalf of its
Subsidiaries agrees that in addition to disclosures made in accordance with
standard and customary banking practices any Bank may disclose information
obtained by such Bank pursuant to this Agreement to assignees or participants
and potential assignees or participants hereunder; provided that such assignees
or participants or potential assignees or participants shall agree (a) to treat
in confidence such information unless such information otherwise becomes public
knowledge, (b) not to disclose such information to a third party, except as
required by law or legal process and (c) not to make use of such information
for purposes unrelated to such contemplated assignment or participation.
SS.18.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank
shall have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to ss.13.1
and the determination of the Majority Banks shall for all purposes of this
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Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Loans. If any Bank sells a participating interest
in any of the Loans to a participant, and such participant is the Borrower or
an Affiliate of the Borrower, then such transferor Bank shall promptly notify
the Administrative Agent of the sale of such participation. A transferor Bank
shall have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Administrative Agent pursuant to ss.13.1 to
the extent that such participation is beneficially owned by the Borrower or any
Affiliate of the Borrower, and the determination of the Majority Banks shall
for all purposes of this Agreement and the other Loan Documents be made without
regard to the interest of such transferor Bank in the Loans to the extent of
such participation.
SS.18.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to ss.19 with respect to any
claims or actions arising prior to the date of such assignment. If any assignee
Bank is not incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. Anything contained in this ss.18 to the contrary notwithstanding, any
Bank may at any time pledge all or any portion of its interest and rights under
this Agreement (including all or any portion of its Note) to any of the twelve
Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12
U.S.C. ss.341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
SS.18.9. ASSIGNMENT BY BORROWER. Neither the Borrower nor the Canadian
Borrower shall assign or transfer any of their rights or delegate any of their
obligations under any of the Loan Documents without the prior written consent
of each of the Banks.
SS.19. EXPENSES. Whether or not the transaction contemplated hereby
shall be consummated, the Borrower will pay (a) the cost of (i) preparing this
Agreement, the other Loan Documents and Security Documents and the instruments
used in connection with the issuance thereof, (ii) any taxes (including any
interest and penalties in respect thereof), other than the Banks' federal and
state income taxes, payable on or with respect to the transactions contemplated
by this Agreement (the Borrower hereby agreeing to indemnify the Banks with
respect thereto), and (iii) the Borrower's performance of and compliance with
the terms hereof; (b) the reasonable fees, expenses and disbursements of the
Administrative Agent's Special Counsel and any local
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counsel to the Administrative Agent incurred in connection with the preparation
of this Agreement, the other Loan Documents and Security Documents and the
instruments used in connection with the issuance thereof and the syndication
thereof, with amendments, modifications, approvals, consents or waivers hereto
and any termination hereof; (c) the fees, expenses and disbursements of the
Administrative Agent and the Arranger incurred by the Administrative Agent and
the Arranger in connection with the preparation, administration, syndication
and interpretation of the Loan Documents and other instruments mentioned
herein, (d) all reasonable out-of-pocket expenses (including, without
limitation, reasonable attorney's fees and costs, which attorneys may be
employees of a Bank and reasonable consulting, accounting, appraisal,
investment banking and similar professional fees and charges) incurred by the
Administrative Agent and the Banks in connection with (i) the enforcement or
preservation of rights under any of the Loan Documents against the Borrower or
any of its Subsidiaries or the administration thereof after the occurrence of a
Default or Event of Default (including engineering, appraisal and investment
banking charges) and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to the Banks' relationship with the
Borrower or any of its Subsidiaries, (e) all reasonable fees, expenses and
disbursements of the Administrative Agent incurred in connection with UCC
searches or UCC filings and applicable Canadian lien searches and filings,
motor vehicle lien notations and other collateral security searches and
filings, and (f) all reasonable costs of conducting appraisals and Commercial
Finance Examinations of the Borrower's properties, including the applicable
daily time charges of the Administrative Agent's commercial finance examiners,
agents, consultants and representatives engaged in such examinations and
appraisals as in effect from time to time, and reasonable out-of-pocket travel
and other related expenses. The covenants of this ss.19 shall survive payment
or satisfaction of payment of amounts owing with respect to this Agreement or
the Notes.
SS.20. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein and in any certificates or other
papers delivered by or on behalf of the Borrower or the Canadian Borrower
pursuant hereto are material and shall be deemed to have been relied upon by
the Banks, notwithstanding any investigation heretofore or hereafter made by
them and shall survive the making by the Banks of the Loans, the making by the
Swing Line Banks of the Swing Line Loans, and the issuance by the Letter of
Credit Bank of the Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any Letter of Credit or any Loans
or other amount due under this Agreement or the Notes remains outstanding and
unpaid or any Bank has any obligation to make any Loans or the Letter of Credit
Bank has any obligation to issue, extend or renew any Letter of Credit. All
statements contained in any certificate or other paper delivered to the Banks
at any time by or on behalf of the Borrower or the Canadian Borrower pursuant
hereto or in connection with the transaction contemplated hereby
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shall constitute representations and warranties by the Borrower or, as the case
may be, the Canadian Borrower hereunder.
SS.21. NOTICES. Except as otherwise specified herein, all notices
and other communications made or required to be given pursuant to this
Agreement shall be in writing and shall be either delivered by hand or mailed
by United States first-class mail, postage prepaid, or sent by telecopy,
telegraph or telex and confirmed by letter, addressed as follows:
(a) if to the Borrower or the Canadian Borrower, at 160
Clairemont Avenue, Suite 200, Decatur, Georgia 30030, Attention: A.
Mitchell Poole, Jr., Vice Chairman and Chief Executive Officer;
(b) if to the Administrative Agent, at 100 Federal
Street, Boston, Massachusetts 02110, Attention: Transportation
Division, Robert L. Wallace, Jr., Director, 01-08-01, or such other
address for notice as the Administrative Agent shall last have
furnished in writing to the Person giving the notice;
(c) if to the Canadian Agent, at such address as such
Person shall furnish to the parties hereto upon such Person becoming
Canadian Agent hereunder; and
(d) if to any Bank, at the address for notice as such
Bank shall last have furnished in writing to the Person giving the
notice.
Except for Loan Requests and Conversion Requests, any notice so
addressed shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand to an officer of the party to which it is
directed, at the time of the receipt thereof by such officer, or (ii) if sent
by first-class mail, postage prepaid, on the earlier of (A) the fifth Business
Day following the mailing thereof, or (B) the date of its receipt, if a
Business Day, or if not a Business Day, the next succeeding Business Day or
(iii) if sent by telecopy, telex or cable, at the time of dispatch thereof
(upon telephonic confirmation from any one of A. Mitchell Poole, Jr., Daniel H.
Popky or David S. Forbes of receipt thereof) if in normal business hours in the
state where received or otherwise at the opening of business on the following
Business Day.
SS.22. MISCELLANEOUS. This Agreement is a contract under seal under
the laws of the Commonwealth of Massachusetts and shall for all purposes be
construed in accordance with and governed by such laws. The rights and remedies
herein expressed are cumulative and not exclusive of any other rights which any
Bank or the Agents would otherwise have. Any instruments required by any of the
provisions hereof to be in the form annexed hereto as an exhibit shall be
substantially in such form with such changes therefrom, if any, as may be
approved by the Banks and the Borrower. The captions in this
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Agreement are for convenience of reference only and shall not define or limit
the provisions hereof. This Agreement or any amendment may be executed in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument. In proving
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
SS.23. ENTIRE AGREEMENT, ETC. This Agreement and any other documents
executed in connection herewith or therewith express the entire understanding
of the parties with respect to the transactions contemplated hereby. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally or in writing, except as provided in ss.24 hereof.
SS.24. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this ss.24, any action to be taken or any consent or
approval required or permitted by this Agreement or any other Loan Document to
be given by the Banks may be given, and any term of this Agreement, any other
Loan Document or any other instrument, document or agreement related to this
Agreement or the other Loan Documents or mentioned therein may be amended and
the performance or observance by the Borrower or any other Person of any of the
terms thereof and any Default or Event of Default (as defined in any of the
above-referenced documents or instruments) may be waived (either generally or
in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Majority Banks. Notwithstanding the
foregoing, (a)(i) the rate of interest on the Notes may not be reduced, (ii)
the term of the Notes may not be extended, (iii) the amount of the Commitments
of the Banks may not be increased, (iv) the amount of Commitment Fees or Letter
of Credit Fees hereunder may not be reduced, (v) the due date of any payment of
principal of or interest on the Notes or any fees payable hereunder may not be
extended, and (vi) the amount of principal owing to the Banks may not be
changed, in each case, without the written consent of the Borrower and the
written consent of each Bank affected thereby; (b) the definition of Majority
Banks and the definition of Borrowing Base Amount may not be amended, any
substantial portion of the Collateral may not be released and this ss.24 may
not be amended without the written consent of all of the Banks; (c) the amount
of any Letter of Credit Fees payable for the Letter of Credit Bank's account
and ss.17 may not be amended without the written consent of the Administrative
Agent or the Letter of Credit Bank, as applicable; and (d) no amendment, waiver
or consent shall, unless in writing and signed by the Swing Line Banks in
addition to the Banks required above to take such action, affect the rights and
obligations of the Swing Line Banks under this Credit Agreement. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of any Bank in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrower or
the Canadian Borrower shall entitle the
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Borrower or the Canadian Borrower to other or further notice or demand in
similar or other circumstances.
SS.25. WAIVER AND RELEASE. EACH OF THE BORROWER AND THE CANADIAN
BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR ANY OF
THE LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. Except as prohibited by law, each
of the Borrower and the Canadian Borrower hereby waives any right it may have
to claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages arising out of the credit relationship
among the Borrower, the Canadian Borrower and the Banks up to and including the
date of this Agreement. Each of the Borrower and the Canadian Borrower (a)
certifies that no representative, agent or attorney of the Banks has
represented, expressly or otherwise, that the Banks would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges that it
has been induced to enter into this Agreement, by among other things, the
mutual waivers herein. By its execution hereof and in consideration for the
mutual covenants contained herein and the accommodations granted to the
Borrower and the Canadian Borrower by the Banks herein and in the documents,
instruments and agreements executed in connection herewith, the Borrower
expressly waives and releases any and all claims and causes of actions it may
have, or alleges to have (and any defenses which may arise out of any of the
foregoing), against the Banks and any of their affiliates, employees,
directors, officers and Administrative Agents, arising out of the credit
relationship between the Borrower and the Banks up to and including the date of
this Agreement. Each of the Borrower and the Canadian Borrower agrees that any
suit for the enforcement of this Agreement or any of the Loan Documents may be
brought in the courts of the Commonwealth of Massachusetts or any federal court
sitting therein and consents to the nonexclusive jurisdiction of such court and
service of process in any such suit being made upon the Borrower and the
Canadian Borrower by mail at the address specified in ss.21. Each of the
Borrower and the Canadian Borrower hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court or that such
suit is brought in an inconvenient court.
SS.26. TERMINATION. Upon the indefeasible payment in full of all of
the Obligations (or, with respect to Letters of Credit, satisfaction of the
Letter of Credit reimbursement obligations by the provision of cash collateral
or back-up letters of credit as provided in ss.2.1(c) hereof) and the
expiration or termination in full of the Commitments and all other commitments
of the Banks, the Swing Line Banks, the Letter of Credit Bank, the
Administrative Agent and the Canadian Agent under this Agreement, the Borrower
shall be entitled to the
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return, at the Borrower's expense, of all collateral for the Obligations in the
possession or control of the Administrative Agent, and the Administrative Agent
shall execute and deliver such termination statements as the Borrower
reasonably shall request in order to give effect to the foregoing.
SS.27. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Administrative Agent, the Canadian Agent, the Arranger, their
affiliates, the Banks, and their respective directors, officers, employees and
agents from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby, except to the extent resulting from the gross negligence or willful
misconduct of such indemnified party, including, without limitation, (i) any
actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of the Borrower or any of its Subsidiaries comprised in the Collateral, (iii)
the Borrower or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (iv) with respect to the
Borrower and its Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substances or any action, suit, proceeding or investigation brought
or threatened with respect to any Hazardous Substances (including, but not
limited to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks, the Administrative Agent,
the Canadian Agent and the Arranger and their affiliates shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the Borrower under this
ss.27 are unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations which
is permissible under applicable law. The covenants contained in this ss.27
shall survive payment or satisfaction in full of all other Obligations.
SS.28. CANADIAN GUARANTY.
(a) Guaranty of Payment. The Borrower hereby irrevocably
guarantees to the Agents and the Banks, the full and punctual payment when due
(whether at stated maturity, by required pre-payment, by acceleration or
otherwise) of all of the Obligations of the Canadian Borrower, including,
without limitation, the principal and interest accruing on the Canadian Swing
<PAGE> 125
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Line Loans, Canadian Revolving Credit Loans, Bankers' Acceptances and all such
Obligations which would become due but for the operation of the automatic stay
pursuant to ss.362(a) of the Federal Bankruptcy Code or any similar provision
of any other bankruptcy or insolvency law and the operation of ss.ss.502(b) and
506(b) of the Federal Bankruptcy Code or any similar provision of any other
bankruptcy or insolvency law (such obligations of the Canadian Borrower being
referred to herein as the "Guaranteed Obligations"). This Canadian Guaranty is
an absolute, unconditional and continuing guaranty of the full and punctual
payment of all of the Guaranteed Obligations and not of their collectability
only and is in no way conditioned upon any requirement that the Agents or any
Bank first attempt to collect any of the Guaranteed Obligations from the
Canadian Borrower or resort to any collateral security or other means of
obtaining payment. Should an Event of Default occur as a result of a default by
the Canadian Borrower in the payment of any of the Guaranteed Obligations, the
Obligations of the Borrower hereunder with respect to such Guaranteed
Obligations in default shall, upon demand by the Administrative Agent or the
Canadian Agent, become immediately due and payable to the Administrative Agent
or the Canadian Agent, for the benefit of the Banks and the Agents, without
demand or notice of any nature, all of which are expressly waived by the
Borrower. Payments by the Borrower hereunder may be required by the Agents on
any number of occasions. All payments by the Borrower hereunder shall be made
to the Agents, in the manner and at the place of payment specified therefor in
ss.6.1 hereof, for the account of the Banks and the Agents.
(b) The Borrower's Agreement to Pay Enforcement Costs, etc. The
Borrower further agrees, as the principal obligor and not as a guarantor only,
to pay to the applicable Agent, on demand, all reasonable costs and expenses
(including court costs and legal expenses) incurred or expended by such Agent
or any Bank in connection with the Guaranteed Obligations, this Canadian
Guaranty and the enforcement thereof, together with interest on amounts
recoverable under this ss.28(b) from the time when such amounts become due
until payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in ss.6.3 hereof, provided that if such interest
exceeds the maximum amount permitted to be paid under applicable law, then such
interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Borrower; Banks' Freedom to Act. The Borrower
agrees that the Guaranteed Obligations will be paid strictly in accordance with
their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agents or any Bank with respect thereto. The Borrower waives
promptness, diligence, presentment, demand, protest, notice of acceptance,
notice of any Guaranteed Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
<PAGE> 126
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require the marshalling of assets of the Canadian Borrower or any other entity
or other Person primarily or secondarily liable with respect to any of the
Guaranteed Obligations, and all suretyship defenses generally. Without limiting
the generality of the foregoing, the Borrower agrees to the provisions of any
instrument evidencing, securing or otherwise executed in connection with any
Guaranteed Obligation and agrees that the Guaranteed Obligations of the
Borrower hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of the Agents or any Bank to assert any
claim or demand or to enforce any right or remedy against the Canadian Borrower
or any other entity or other person primarily or secondarily liable with
respect to any of the Guaranteed Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Guaranteed Obligation; (iii) any
change in the time, place or manner of payment of any of the Guaranteed
Obligations or any rescissions, waivers, compromise, refinancing, consolidation
or other amendments or modifications of any of the terms or provisions of this
Agreement, the other Loan Documents or any other agreement evidencing, securing
or otherwise executed in connection with any of the Guaranteed Obligations;
(iv) the addition, substitution or release of any entity or other person
primarily or secondarily liable for any Guaranteed Obligation; (v) the adequacy
of any rights which the Agents or any Bank may have against any collateral
security or other means of obtaining repayment of any of the Guaranteed
Obligations; (vi) the impairment of any collateral securing any of the
Guaranteed Obligations, including without limitation the failure to perfect or
preserve any rights which the Agents or any Bank might have in such collateral
security or the substitution, exchange, surrender, release, loss or destruction
of any such collateral security; or (vii) any other act or omission which might
in any manner or to any extent vary the risk of the Borrower or otherwise
operate as a release or discharge of the Borrower (other than the indefeasible
payment in full, in cash, of all of the Guaranteed Obligations and the
irrevocable termination of the Commitments), all of which may be done without
notice to the Borrower. To the fullest extent permitted by law, the Borrower
hereby expressly waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law which would otherwise prevent either
Agent or any Bank from bringing any action, including any claim for a
deficiency, or exercising any other right or remedy (including any right of
set-off), against the Borrower before or after such Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by either Agent or any
Bank.
(d) Unenforceability of Guaranteed Obligations. If for any reason
the Canadian Borrower has no legal existence or is under no legal obligation to
discharge any of the Guaranteed Obligations, or if any of the Guaranteed
Obligations have become irrecoverable from the Canadian Borrower by reason of
such Person's insolvency, bankruptcy or reorganization or by other operation
<PAGE> 127
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of law or for any other reason (other than the indefeasible payment in full, in
cash, of all of the Guaranteed Obligations and the irrevocable termination of
the Total Canadian Commitment), to the extent permitted by law, this Canadian
Guaranty shall nevertheless be binding on the Borrower to the same extent as if
the Borrower at all times had been the principal obligor on all such Guaranteed
Obligations. In the event that acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower, or for any other reason, all such
amounts otherwise subject to acceleration under the terms of this Agreement,
the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any Obligation shall be immediately due
and payable by the Borrower.
(e) Subrogation; Subordination.
(i) Postponement of Rights. Until the final indefeasible
payment in full in cash of all of the Guaranteed Obligations: the Borrower
shall not exercise any rights against the Canadian Borrower arising as a result
of payment by the Borrower hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and will not prove any claim in
competition with either Agent or any Bank in respect of any payment hereunder
in any bankruptcy, insolvency or reorganization case or proceedings of any
nature; the Borrower will not claim any setoff, recoupment or counterclaim
against the Canadian Borrower in respect of any liability of the Borrower to
the Canadian Borrower; and the Borrower waives any benefit of and any right to
participate in any collateral security which may be held by the Agents or any
Bank.
(ii) Subordination. The payment of any amounts due with
respect to any indebtedness of the Canadian Borrower for money borrowed or
credit received now or hereafter owed to the Borrower is hereby subordinated to
the prior payment in full in cash of all of the Guaranteed Obligations;
provided that, so long as no Event of Default has occurred and is continuing,
the Canadian Borrower may pay, and the Borrower may receive, such payment. The
Borrower agrees that, after the occurrence of any Event of Default, the
Borrower will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Canadian Borrower to the Borrower until all of the
Guaranteed Obligations shall have been irrevocably paid in full in cash. If,
notwithstanding the foregoing sentence, the Borrower shall collect, enforce or
receive any amounts in respect of such indebtedness while any Guaranteed
Obligations are still outstanding, such amounts shall be collected, enforced
and received by the Borrower as trustee for the Banks and the Agents and be
paid over to the Agents, for the benefit of the Banks and the Agents, on
account of the Guaranteed Obligations without affecting in any manner the
liability of the Borrower under the other provisions of this Canadian Guaranty.
<PAGE> 128
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(f) Provisions Supplemental. The provisions of this ss.28 shall
be supplemental to and not in derogation of any rights and remedies of the
Banks and the Agents under any separate subordination agreement which the
Agents or any Bank may at any time and from time to time enter into with the
Borrower for the benefit of the Banks and the Agents.
(g) Further Assurances. The Borrower agrees that it will from
time to time, at the request of the Agents, do all such things and execute all
such documents as the Agents may reasonably consider necessary or desirable to
give full effect to this Canadian Guaranty and to perfect and preserve the
rights and powers of the Banks and the Agents hereunder. The Borrower
acknowledges and confirms that it has established its own adequate means of
obtaining from the Canadian Borrower on a continuing basis all information
desired by it concerning the financial condition of such Persons and that it
will look to such Persons and not to the Agents or any Bank in order for it to
keep adequately informed of changes in any of such Person's financial
condition.
(h) Reinstatement. Notwithstanding any termination of this
Canadian Guaranty upon the final and indefeasible payment in full, in cash, of
the Guaranteed Obligations, this Canadian Guaranty shall continue to be
effective or be reinstated, if at any time any payment made or value received
with respect to any Obligation is rescinded or must otherwise be returned by
either Agent or any Bank upon the insolvency, bankruptcy or reorganization of
the Canadian Borrower, or otherwise, all as though such payment had not been
made or value received.
(i) Successors and Assigns. This Canadian Guaranty shall be
binding upon the Borrower, its successors and assigns, and shall inure to the
benefit of the Agents and the Banks and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, each Bank may, in accordance with the provisions of ss.18 and subject
to the limitations set forth therein, assign or otherwise transfer this
Agreement, the other Loan Documents or any other agreement or note held by it
evidencing, securing or otherwise executed in connection with the Guaranteed
Obligations, or sell participations in any interest therein, to any other
entity or other person, and such other entity or other person shall thereupon
become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all the rights in respect thereof
granted to such Bank herein. The Borrower may not assign any of its Guaranteed
Obligations hereunder.
(j) Currency of Payment. Except with respect to Revolving Credit
Loans deemed made to the Borrower pursuant to ss.2.13(d) the Borrower shall pay
the Guaranteed Obligations in the currency in which such Obligations were
incurred by the Canadian Borrower.
<PAGE> 129
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SS.29. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH
OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
EACH OF THE BORROWER AND THE CANADIAN BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN SS.21. EACH OF THE BORROWER AND THE CANADIAN BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
SS.30. WITHHOLDING TAXES. The Borrower and Canadian Borrower hereby
agree that (a) any and all payments made by the Borrower and/or the Canadian
Borrower hereunder and under the other Loan Documents shall be made free and
clear of, and without deduction for, any and all taxes, levies, fees, duties,
imposts, deductions, charges or withholdings of any nature whatsoever,
excluding, in the case of the Agents or the Banks or any holder of the Notes,
(i) taxes imposed on, or measured by, its net income or profits, (ii) franchise
taxes imposed on it, (iii) taxes imposed by any jurisdiction as a direct
consequence of it, or any of its affiliates, having a present or former
connection with such jurisdiction, including, without limitation, being
organized, existing or qualified to do business, doing business or maintaining
a permanent establishment or office in such jurisdiction, (iv) taxes imposed by
reason of its failure to comply with any applicable certification,
identification, information, documentation or other reporting requirement, or
(v) any backup withholding (all such non-excluded taxes being hereinafter
referred to as "Indemnifiable Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower or the Canadian Borrower
hereunder is required in respect of any Indemnifiable Taxes pursuant to any
applicable law, or governmental rule or regulation, then the Borrower or the
Canadian Borrower will (i) direct to the relevant taxing authority the full
amount required to be so withheld or deducted, (ii) forward to the applicable
Agent for delivery to the applicable Bank an official receipt or other
documentation satisfactory to the applicable Agent and the applicable Bank
evidencing such payment to such taxing authority, and (iii) direct to the
applicable Agent for the account of the applicable Banks such additional amount
or amounts as is necessary to ensure that the net amount actually received by
each relevant Bank will equal
<PAGE> 130
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the full amount such Bank would have received had no such withholding or
deduction (including any Indemnifiable Taxes on such additional amounts) been
required. Moreover, if any Indemnifiable Taxes are directly asserted against
the applicable Agent or any Bank with respect to any payment received by the
Agents or such Bank by reason of the Borrower's or the Canadian Borrower's
failure to properly deduct and withhold such Indemnifiable Taxes from such
payment, the applicable Agent or such Bank may pay such Indemnifiable Taxes and
the Borrower or the Canadian Borrower will promptly pay all such additional
amounts (including any penalties, interest or reasonable expenses) as are
necessary in order that the net amount received by such Person after the
payment of such Indemnifiable Taxes (including any Indemnifiable Taxes on such
additional amount) shall equal the amount such Person would have received had
not such Indemnifiable Taxes been asserted. Any such payment shall be made
promptly after the receipt by the Borrower or the Canadian Borrower from the
applicable Administrative Agent or such Bank, as the case may be, of a written
statement setting forth in reasonable detail the amount of the Indemnifiable
Taxes and the basis of the claim. If the Borrower or the Canadian Borrower
shall pay any taxes or make any payments with respect to any taxes which are
not Indemnifiable Taxes, then the applicable Agent or the Bank which has
received any such payment or with respect to which any such payment was made
shall reimburse the Borrower or the Canadian Borrower, within five (5) Business
Days of request by such Person, the amount so paid by such Person, together
with interest at the rate then applicable to Base Rate Loans from the date such
amounts were paid by such Person.
(b) The Borrower and the Canadian Borrower shall pay any present
or future stamp or documentary taxes or any other excise or any other similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any other Loan Document ("Other Taxes"), it being expressly understood that the
term "Other Taxes" does not include (without limitation) any taxes imposed on
or measured by any Bank's or Agent's assets, property, net or gross income,
franchise, receipts, gains or profits.
(c) The Borrower and the Canadian Borrower hereby indemnify and
hold harmless the Agents and each Bank for the full amount of Indemnifiable
Taxes or Other Taxes (including, without limitation, any Indemnifiable Taxes or
Other Taxes imposed on amounts payable under this ss.30) paid by the Agents or
such Bank, as the case may be, and any liability (including penalties, interest
and reasonable expenses) arising therefrom or with respect thereto, by reason
of the Borrower's or the Canadian Borrower's failure to properly deduct and
withhold Indemnifiable Taxes pursuant to paragraph (a) above or to properly pay
Other Taxes pursuant to paragraph (b) above. Any indemnification payment from
the Borrower and the Canadian Borrower under the preceding sentence shall be
made promptly after receipt by the Borrower
<PAGE> 131
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and the Canadian Borrower from the applicable Agent or Bank of a written
statement setting forth in reasonable detail the amount of such Indemnifiable
Taxes or such Other Taxes, as the case may be, and the basis of the claim.
(d) If the Borrower or the Canadian Borrower pays any amount
under this ss.30 to the Agents or any Bank and such payee knowingly receives a
refund of any taxes with respect to which such amount was paid, the Agents or
such Bank, as the case may be, shall pay to the Borrower or the Canadian
Borrower the amount of such refund promptly following the receipt thereof by
such payee.
(e) In the event any taxing authority notifies the Borrower or
the Canadian Borrower that either of them has improperly failed to deduct or
withhold any taxes (other than Indemnifiable Taxes) from a payment made
hereunder to the Agents or any Bank, the Borrower or the Canadian Borrower
shall timely and fully pay such taxes to such taxing authority.
(f) The Agents or the Banks shall, upon the request of the
Borrower or the Canadian Borrower, take reasonable measures to avoid or
mitigate the amount of Indemnifiable Taxes required to be deducted or withheld
from any payment made hereunder (including, without limitation, the completion
and delivery of appropriate forms evidencing such Agent's or such Bank's
exemption from withholding taxes) if such measures can be taken without the
imposition on such Person of any costs or expenses unless the Borrower or the
Canadian Borrower has agreed to reimburse such Person therefor or result in
such Person in its reasonable judgment suffering any material legal or
regulatory disadvantage; provided that if after the date hereof, any change in
applicable law, regulation or treaty results in the imposition on the Borrower
or the Canadian Borrower of a deduction or withholding obligation with respect
to amounts payable to banks or bank holding companies, to the extent that any
such change in applicable law, regulation or treaty relates to amounts payable
hereunder and to the extent that such change results in banks or bank holding
companies receiving an undue benefit arising as a result of the payment of such
additional amount by the Borrower or the Canadian Borrower, the Borrower, the
Canadian Borrower and the Agents shall make a reasonable, good faith effort to
negotiate a change in the terms of this Agreement that would allocate the
benefits and costs (if any) of such deductions and withholdings among the
affected parties in a manner equitable to the Borrower, the Canadian Borrower
and the Banks.
(g) Without prejudice to the survival of any other agreement of
the parties hereunder, the agreements and obligations of the Borrower and the
Canadian Borrower contained in this ss.30 shall survive the payment in full of
the Obligations.
<PAGE> 132
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SS.31. PARI PASSU TREATMENT. (a) Notwithstanding anything to the
contrary set forth herein, each payment or prepayment of principal and interest
received after the occurrence of an Event of Default hereunder shall be
distributed pari passu among the Banks, in accordance with the aggregate
outstanding principal amount of the Obligations owing to each Bank divided by
the aggregate outstanding principal amount of all Obligations.
(b) Following the occurrence and during the continuance of any
Event of Default, each Bank agrees that if it shall, through the exercise of a
right of banker's lien, setoff or counterclaim against the Borrower or the
Canadian Borrower (pursuant to ss.15 or otherwise), including a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise, obtain
payment (voluntary or involuntary) in respect of the Notes, Loans, Bankers'
Acceptances, and other Obligations held by it as a result of which the unpaid
principal portion of the Notes and the Obligations held by it shall be
proportionately less than the unpaid principal portion of the Notes and
Obligations held by any other Bank, it shall be deemed to have simultaneously
purchased from such other Bank a participation in the Notes and Obligations
held by such other Bank, so that the aggregate unpaid principal amount of the
Notes, Obligations and participations in Notes and Obligations held by each
Bank shall be in the same proportion to the aggregate unpaid principal amount
of the Notes and Obligations then outstanding as the principal amount of the
Notes and other Obligations held by it prior to such exercise of banker's lien,
setoff or counterclaim was to the principal amount of all Notes and other
Obligations outstanding prior to such exercise of banker's lien, setoff or
counterclaim; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this ss.31 and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustments restored without interest.
(c) Following the occurrence and during the continuance of any
Event of Default and unless and until the effectiveness of a transfer of
Commitments pursuant to ss.31(d), each Bank agrees that it shall be deemed to
have, automatically upon the occurrence of such Event of Default, purchased
from each other Bank a participation in the risk associated with the Notes and
Obligations held by such other Bank, so that the aggregate principal amount of
the Notes and Obligations held by each Bank shall be equivalent to such Bank's
Total Commitment Percentage. Upon demand by the Administrative Agent, made at
the request of the Majority Banks, each Bank that has purchased such
participation shall pay the amount of such participation to one or more Bank(s)
whose outstanding Loans and participations in Letters of Credit and Bankers'
Acceptances exceed their Total Commitment Percentages.
<PAGE> 133
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(d) Upon the written instruction of the Majority Banks, the Total
Canadian Commitment shall be immediately transferred by the Canadian Borrower
and the Borrower to the Total Domestic Commitment; provided that prior to
requesting any such transfer of Commitments, the Agents and the Banks shall
utilize their reasonable best efforts to avoid the imposition of withholding
tax liability on the Borrower and the Canadian Borrower which would arise as a
result of any such transfer of Commitments (including, without limitation, to
the extent useful, the use of participations pursuant to ss.31(c) and the use
of fronting banks in Canada). Upon the effectiveness of any such transfer, the
outstanding Canadian Revolving Credit Loans and Bankers' Acceptances shall be
repaid with advances made to the Borrower under the Domestic Commitments,
advanced by the Banks in such manner that after giving effect thereto, the
percentage of the outstanding Loans and Obligations of each Bank will equal
such Bank's Total Commitment Percentage of all outstanding Loans and
Obligations.
(e) Each of the Borrower and the Canadian Borrower expressly
consents to the foregoing arrangements and agrees that any Person holding such
a participation in the Notes and the Obligations deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower and the
Canadian Borrower to such Person as fully as if such Person had made a Loan
directly to the Borrower and the Canadian Borrower in the amount of such
participation.
SS.32. TRANSITIONAL ARRANGEMENTS.
(a) Existing Credit Agreement Superseded. Upon the effectiveness
of this Agreement, this Agreement shall supersede the Existing Credit Agreement
in its entirety, except as provided in this Section 32. As of the Effective
Date, the rights and obligations of the parties under the Existing Credit
Agreement shall be subsumed within and be governed by this Agreement, provided,
however, that each of the "Loans" (as defined in the Existing Credit Agreement)
advanced by the Banks and outstanding under the Existing Credit Agreement on
the Effective Date shall, for purposes of this Agreement, be Loans, and shall
continue to bear interest at (x) if such Loans are Eurodollar Rate Loans, at
the then applicable Eurodollar Rate plus, in each case, the Applicable Margin
for the remainder of the then current Interest Period or (y) if such Loans are
Base Rate Loans (other than Domestic Swing Line Loans), at the Base Rate plus
the Applicable Margin; and provided, further, that each "Letter of Credit" (as
defined in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement on the Effective Date shall, for purposes of this Agreement, be a
Letter of Credit. Interest with respect to Loans outstanding under the Existing
Credit Agreement on the Effective Date, commitment fees, and other fees and
expenses owing or accruing under or in respect of the Existing Credit Agreement
shall be paid at the times provided herein for Base Rate Loans and
<PAGE> 134
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Eurodollar Rate Loans. The "Notes" issued under the Existing Credit Agreement
shall hereafter evidence the respective Loans under this Agreement.
(b) The parties agree that (i) nothing herein shall constitute a
novation of the Existing Credit Agreement, the "Notes" issued thereunder, the
Indebtedness evidenced thereby, or the liens or security interests granted
pursuant thereto and (ii) notwithstanding the amendment and restatement of the
Existing Credit Agreement as set forth herein, the liens and security interests
granted pursuant to the "Security Documents" (as defined in the Existing Credit
Agreement) shall remain in full force and effect, and shall continue to
constitute first priority perfected liens and security interests in favor of
the Administrative Agent, for the benefit of the Banks and the Agents, all as
of the Original Closing Date.
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Signed, sealed and delivered, as of the date set forth at the
beginning of this Agreement by the Borrower, the Canadian Borrower, the
Administrative Agent and the Banks.
ALLIED HOLDINGS, INC.
By:
Title:
ALLIED SYSTEMS (CANADA)
COMPANY
By:
Title:
BANKBOSTON, N.A.,
individually and as Administrative Agent
By:
Title:
ABN AMRO BANK, N.V.,
individually and as Documentation Agent
By:
Title:
By:
Title:
THE BANK OF NOVA SCOTIA,
individually and as Canadian Agent
By:
----------------------------------------
Title:
<PAGE> 136
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BANK ONE, NA, individually and as Co-
Agent
By:
----------------------------------------
Title:
BANK OF AMERICA, N.A., individually
and as Co-Agent
By:
----------------------------------------
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------------
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH
By:
----------------------------------------
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
----------------------------------------
Title:
<PAGE> 137
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UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------------
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
----------------------------------------
Title:
By:
----------------------------------------
Title:
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 23rd day
of February, 2000, by and between _____________________________ ("Employee")
and ALLIED HOLDINGS, INC., a Georgia corporation ("Employer").
W I T N E S S E T H
WHEREAS, Employer, through the Affiliates (as hereinafter defined), is
engaged in the transportation of automobiles and light trucks from the
manufacturer to retailers and related activities (the "Business");
WHEREAS, Employee has a number of years of experience in said industry
and in addition to having management skills of which Employer desires to avail
itself, Employee has established numerous contacts and relationships with
customers, potential customers and suppliers of Employer and the Affiliates,
which contacts and relationships are of great value to Employer;
WHEREAS, Employer and Employee have made and entered into a previous
employment agreement, as well as clarifications and amendments thereto; and
WHEREAS, Employer and Employee deem it to their respective best
interest to clarify the duties and obligations, each to the other, by executing
this new Employment Agreement,
NOW, THEREFORE, for and in consideration of the covenants and
conditions hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Employer and
Employee hereby mutually agree that all previous employment agreements, and all
clarifications and amendments thereto, are superseded, null, void, and of no
further force and effect, and Employer and Employee further mutually agree as
follows:
1. DEFINITIONS.
(a) "Affiliate" means any corporation, partnership or other
entity of which at least eighty percent (80%) of the
outstanding equity and voting rights are owned, directly or
indirectly through any other corporation, partnership or
other entity, by Employer.
(b) "Base Salary" means the annual salary payable pursuant to
Paragraph 4(a) hereof as adjusted, from time to time,
pursuant to Paragraph 4(b) hereof.
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(c) "Cause" means (i) the commission by Employee of an act
constituting a felony and Employee's conviction thereof;
(ii) Employee's prolonged absence, without the consent of
Employer, other than as a result of Employee's Disability
or permitted absence or vacation; (iii) conduct of Employee
which amounts to fraud, dishonesty, gross or willful
neglect of duties; or (iv) engaging in activities
prohibited by Paragraphs 12, 13 or 14 hereof.
(d) "Disability", with respect to Employee, shall conclusively
be deemed to have occurred (i) if Employee shall be
receiving payments pursuant to a policy of disability
income insurance; or (ii) if Employee shall have no
disability income coverage then in force, then if any
insurance company insuring Employee's life shall agree to
waive the premiums due on such policy pursuant to a
disability waiver of premium provision in the contract of
life insurance; or (iii) if Employee shall have no
disability waiver of premium provision in any contract of
life insurance, then if Employee shall be receiving
disability benefits from or through the Social Security
Administration; provided, however, that in the event
Employee's disability shall, otherwise and in good faith,
come into question (and, for purposes of this proviso,
"disability" shall mean the permanent and continuous
inability of Employee to perform substantially all of the
duties being performed immediately prior to his disability
coming into question), and a dispute shall arise with
respect thereto, then Employee (or his personal
representatives) shall appoint a medical doctor, Employer
shall appoint a medical doctor, and said two (2) doctors
shall, in turn, appoint a third party medical doctor who
shall examine Employee to determine the question of
disability and whose determination shall be binding upon
all parties to this Agreement.
(e) "Restricted Period" means the period commencing as of the
date hereof and ending on that date three (3) years after
the termination of Employee's employment with Employer for
any reason, whether voluntary or involuntary.
(f) "Term" means the Initial Term and any Renewal Term (each as
defined in Paragraph 2 hereof); provided, however, that, in
the event Employee's employment shall terminate by reason
of the applicability of Paragraph 8 hereof then, in such
event, the "Term" shall end upon the termination of
Employee's employment.
2. TERM. Subject to the provisions hereinafter set forth, the Term
of this Agreement shall commence as of the date hereof and shall end on that
date five (5) years after such date (the "Initial Term"). Upon the expiration
of the Initial Term, and on
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the expiration of each successive Renewal Term (as hereinafter defined),
Employee's employment shall be automatically renewed for an additional term of
two (2) years (the "Renewal Term(s)"), unless written notification of
termination is given by either party to the other party not less than one (1)
year prior to the expiration of the Initial Term or, as the case may be, the
then-current Renewal Term.
3. DUTIES.
(a) Employee shall, during the Term, serve as _________________
of Employer, at the direction of the Board of Directors of
Employer. Employee's principal duties shall be such
executive, managerial and administrative duties as the
Board of Directors of Employer may, from time to time,
reasonably request.
(b) During the Term, Employee shall devote substantially all of
his time, energy and skill to performing the duties of his
employment (vacations as provided hereunder and reasonable
absences because of illness excepted), shall faithfully and
industriously perform such duties, and shall use his best
efforts to follow and implement all management policies and
decisions of Employer. Employee shall not become personally
involved in the management or operations of any other
company, partnership, proprietorship or other entity, other
than any Affiliate, without the prior written consent of
Employer; provided, however, that so long as it does not
interfere with Employee's employment hereunder, Employee
may (i) serve as a director, officer or partner in a
company that does not compete with the Business of Employer
and the Affiliates so long as the aggregate amount of time
spent by Employee in all such capacities shall not exceed
twenty (20) hours per month, and (ii) serve as an officer
or director of, or otherwise participate in, educational,
welfare, social, religious, civic, trade and
industry-related organizations.
(c) Employee shall not be required to relocate outside of the
metropolitan Atlanta, Georgia, area.
4. BASE SALARY.
(a) For and in consideration of the services to be rendered by
Employee pursuant to this Agreement, Employer shall pay to
Employee, for each year during the Term, an annual salary
of ___________________($______________), adjusted as
provided in subparagraph (b) below, in equal semi-monthly
installments in accordance with Employer's payroll
practices. Employee's salary shall be reviewed by the Board
of Directors of Employer annually
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(on each anniversary of the date hereof) and, in the sole
discretion of the Board of Directors, may be increased, but
not decreased.
(b) Commencing as of January 1, 2001, and as of each January
1st thereafter during the Term, the annual salary shall be
increased, but not decreased, by an amount equal to the
greater of (i) such amount as shall be determined by the
Compensation Committee of the Board of Directors of
Employer; or (ii) the amount equal to the percentage, if
any, by which the Consumer Price Index (All Items Less
Shelter), Urban Wage Earners and Clerical Workers, for the
Southeast Region/Population Size Class B, published by the
United States Government Bureau of Labor Statistics for the
December 1 preceding such January exceeds such Index for
the December 1 of the preceding year. (As an example, as of
January 1, 2001, the difference will be between said Index
as of December 1, 2000 compared to said Index as of
December 1, 1999.)
5. BONUS COMPENSATION. Employee shall, with respect to each calendar
year of Employer ending during the Term, be entitled to participate in the
Allied Holdings, Inc. EVA Based Incentive Plan (as from time to time amended
and in effect), to the extent and on such terms and conditions as shall from
time to time be determined by the Board of Directors of Allied Holdings, Inc.;
and to receive an annual bonus, if any, calculated pursuant thereto.
6. OTHER BENEFITS. During the Term, Employer shall provide the
following benefits to Employee:
(a) Employee shall be elected to a seat on the Board of
Directors of Employer, but shall not, however, be entitled
to any additional compensation for such service;
(b) Employee shall be entitled to participate in all group
medical and hospitalization benefit programs, dental care,
sick leave, life insurance or other benefit plans for
highly compensated employees of Employer as are now or
hereafter provided by Employer or any Affiliate, in each
case in accordance with the terms and conditions of each
such plan and benefit package;
(c) Employee shall be provided with the use of automobiles at
least comparable to any automobile currently provided to
Employee, and Employer shall pay for the cost of all
insurance, ad valorem taxes and tag charges for such
automobile and all operating and maintenance charges for
such automobile;
(d) Employee shall be provided with the use of a car or mobile
telephone, at no cost to Employee;
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(e) Employer shall reimburse Employee for dues paid by Employee
for membership in such professional organizations and
eating clubs as shall, from time to time, be deemed
appropriate and necessary by Employee; and
(f) Employee shall, at all times, have available to him an
expense account to defray ordinary and necessary business
expenses incurred in the performance of his duties
hereunder. Employee shall be reimbursed for such expenses
upon presentation and approval of expense statements or
written vouchers or other supporting documents as may be
reasonably requested in advance by Employer, which approval
shall not be unreasonably withheld or delayed.
The benefits described in subparagraph (b) of this Paragraph shall not
be construed to require Employer to establish any such plans or programs or to
prevent Employer from modifying or terminating any such plans or programs, and
no such action or failure thereof shall affect this Agreement; provided,
however, that in the event of any reduction in the group medical and
hospitalization benefits in place as of the date hereof, the salary payable to
Employee shall be increased, as of the effective date of such reduction, by
that amount necessary to enable Employee to supplement the benefits provided by
Employer to maintain the level of benefits currently provided to him by it.
7. VACATION. Employee shall receive five (5) weeks of paid vacation
for each year during the Term. Scheduling of vacation shall be subject to the
prior approval of Employer (which approval shall not be unreasonably withheld).
Vacation time shall not accrue, and in the event any vacation time for any year
shall not be used by Employee prior to the end of such year, it shall be
forfeited.
8. TERMINATION. Anything herein to the contrary notwithstanding,
Employee's employment hereunder shall terminate upon the first to occur of any
of the following events:
(a) Employee's Disability; or
(b) Employee's death; or
(c) Employee's materially breaching this Agreement by the
non-performance or non-observance of any material term or
condition of this Agreement, which breach shall not be
corrected within forty-five (45) days after receipt of
written notice of same from Employer; or
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(d) Employer's sending Employee written notice terminating his
employment hereunder prior to expiration of the Term in
accordance with Paragraph 2 hereof; or
(e) Employee's voluntarily terminating his employment with
Employer prior to the expiration of the Term; or
(f) Employee's being terminated for Cause.
9. TERMINATION PAYMENT. In the event
(a) Employee's employment shall terminate pursuant to Paragraph
8(a) (Disability) or Paragraph 8(b) (death) hereof; or
(b) Employee shall terminate his employment as a result of
(i) any failure to elect or reelect or to appoint or
reappoint Employee to the position of Vice-Chairman
or Chief Executive Officer unless agreed to by
Employee;
(ii) any material change by Employer in Employee's
function, duties, responsibility, importance, or
scope from the position and attributes thereof
described in Paragraph 3 hereof unless agreed to by
Employee, or any change in location of the
principal offices of Employer outside the
metropolitan Atlanta, Georgia, area, or any
requirement that Employee perform substantially all
of his duties outside the metropolitan Atlanta,
Georgia, area (and any such material change or
relocation of Employer or Employee shall be deemed
a continuing breach of this Agreement);
(iii) the liquidation, dissolution, consolidation or
merger of Employer (other than a merger or other
combination of Employer and an Affiliate); however,
if a termination of employment results from events
described in this subsection (iii) and subsection
(d) below, then such termination shall be deemed to
be pursuant to subsection (d) below;
(iv) any other material breach of this Agreement by
Employer which shall not be cured within thirty
(30) days after receipt of written notice of same
from Employee; or
(v) Employer filing a petition for protection or relief
from creditors under the federal bankruptcy law, or
any petition shall be filed against Employer under
the federal bankruptcy law, or Employer shall admit
in writing its inability to pay its
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debts or shall make an assignment for the benefit
of creditors, or a petition or application for the
appointment of a receiver or liquidator or
custodian of Employer is filed, or Employer shall
seek a composition with creditors; or
(c) Employee's employment shall be terminated by Employer for
any reason other than for Cause or because Employer elects
not to extend this Agreement beyond the Initial or any
Renewal Term; or
(d) If (i) Employer undergoes any change in control or
ownership whereby Employer is reorganized, merged, or
consolidated with one or more corporations as a result of
which the owners of all of the outstanding shares of common
stock immediately prior to such reorganization, merger or
consolidation own in the aggregate less than seventy
percent (70%) of the outstanding shares of common stock of
the Employer or any other entity into which Employer shall
be merged or consolidated immediately following the
consummation thereof (hereinafter, "Employer's
successor-in-interest"), or (ii) the sale, transfer or
other disposition of all or substantially all of the assets
or more than thirty percent (30%) of the then outstanding
shares of common stock of Employer is effectuated, other
than as a result of a merger or other combination of
Employer and an Affiliate, or (iii) the acquisition by any
"person" as used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934 of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the
combined voting power of Employer's then outstanding voting
securities is effectuated; or (iv) the individuals who, as
of the date of execution of this Agreement, are members of
the Board of Directors (the "incumbent Board") cease for
any reason to constitute at least two-thirds (2/3) of the
Board; provided, however, that if the election, or
nomination for election by the shareholders of any new
director was approved by a vote of at least two-thirds
(2/3) of the incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of
the incumbent Board, and (a) Employee's employment with
Employer or Employer's successor-in-interest is terminated
by Employer or Employer's successor-in-interest (as the
case may be) or Employee for any reason, or (b) Employee's
employment under this Agreement is not extended by Employer
or Employer's successor-in-interest for any Renewal Term,
and such termination or non-renewal occurs within two (2)
years after the closing of the transaction which resulted
in the change in control,
then Employer shall, depending upon the reason for the termination of
Employee's employment, immediately pay in cash to Employee an amount determined
as follows:
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(x) If the termination shall be pursuant to subparagraph (d)
above, the amount shall be equal to the sum of
(1) three hundred percent (300%) of Employee's
then-effective annual Base Salary; and
(2) three hundred percent (300%) of the Bonus, as
hereinafter defined.
In addition, Employer shall continue to provide to Employee
(except in the case of Employee's death), for a period
equal to the greater of (i) the remainder of the Term had
not said termination occurred, and (ii) three (3) years
from said termination, the benefits enumerated in
Paragraphs 6(b) and 6(c) hereof.
(y) If the termination shall be other than pursuant to
subparagraph (d) above, the amount shall be equal to the
sum of
(1) that percentage of Employee's then-effective annual
Base Salary equal to the product of the number of
whole or partial years remaining in the Term and
one hundred (100); and
(2) that percentage of Employee's then-effective Bonus,
as hereinafter defined, equal to the product of the
number of whole or partial years remaining in the
Term and one hundred (100);
provided, however, in no event shall the percentage in
subparagraphs (1) and (2) hereof be less than three hundred
percent (300%)
In addition, Employer shall continue to provide to Employee
(except in the case of Employee's death), for a period of
years equal to the number of whole or partial years
remaining in the Term, but in no event fewer than three (3)
years, the benefits enumerated in Paragraphs 6(b) and 6(c)
hereof.
10. OPERATIVE PROVISIONS.
(a) As used in this Agreement, the term "Bonus" shall mean:
(i) with respect to the most recent grant or award of
restricted stock, pursuant to Employer's "Long Term
Incentive Plan", made prior to the date of
termination of Employee's employment, the Dollar
value, as of the date of such grant or award, of
the Long Term Incentive Plan restricted stock plan
target for Employee as approved by the Compensation
Committee of Employer's Board of Directors, which
Dollar value is established by the Compensation
Committee
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notwithstanding the number of shares actually
received pursuant to such grant or award and
notwithstanding the value of such shares actually
received; plus
(ii) the highest of (1) the average of the EVA bonuses
actually paid to Employee for the two (2) years
immediately preceding the year in which termination
of employment occurs; (2) the average of the EVA
bonuses which would have been paid to Employee for
the two (2) years immediately preceding the year in
which termination of employment occurs, assuming
his EVA target bonus had been achieved for each
such year; or (3) the amount of the EVA target
bonus for Employee for the year in which
termination of employment occurs.
(b) In the event of a termination of employment pursuant to
Paragraph 9 hereof, all restricted stock awards of Employee
shall become wholly unrestricted and all unvested stock
options of Employee shall become fully vested in Employee,
and all such agreements pertaining thereto shall be read
accordingly; provided, however, that Employee shall not
have any such rights with respect to any stock issued under
any employee stock plan of Employer qualifying under
Section 402(a) et seq. of the Code if, and to the extent,
such rights would jeopardize the qualification of
such plan under said Section. As used in the preceding
sentence, "Code" means the Internal Revenue Code of 1986 as
amended from time to time or any provisions from time to
time enacted and corresponding in substance thereto.
(c) Paragraph 9 and this Paragraph 10 shall survive the
termination of this Agreement, and this Agreement shall be
read accordingly.
11. INTENTION OF PARTIES. It is the express understanding and
intention of Employer and Employee that the provisions of Paragraph 5 and
Paragraph 9 hereof shall be read together and be non-exclusive so that, in the
event of a termination of Employee's employment pursuant to Paragraph 9 of this
Employment Agreement, Employee shall receive both (i) all of the compensation
specified in Paragraph 9 hereof (including, but not limited to, the applicable
percentage of Employee's then-effective Base Salary and the applicable
percentage of the cash portion of Employee's Bonus) and (ii) one hundred
percent (100%) of the pro rata portion of both the cash and equity parts of
Employee's Bonus based on the number of days in the fiscal year falling within
the Term (which shall include the amount of any EVA bonus paid to Employee
during that year, if any), but in no event shall such pro rata portion be less
than the pro rata share of the highest of (i) the average of the EVA bonuses
actually paid to Employee for the two (2) years immediately preceding the year
in which termination of employment occurs; (ii) the average of the EVA bonuses
which would have been paid to Employee
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for the two (2) years immediately preceding the year in which termination of
employment occurs, assuming his EVA target bonus had been achieved for each
such year; or (iii) the amount of the EVA target bonus for Employee for the
year in which termination of employment occurs. The amounts referred to in this
Paragraph are in addition to the benefits enumerated in Paragraphs 6(b) and
6(c) hereof.
12. COVENANT NOT-TO-SOLICIT. Employer and Employee acknowledge that,
during Employee's employment, Employer will spend considerable amounts of time,
effort and resources in providing Employee with knowledge relating to the
business affairs of Employer and the Affiliates, including Employer's and the
Affiliates' trade secrets, proprietary information and other information
concerning Employer's and the Affiliates' financing sources, finances, customer
lists, customer records, prospective customers, staff, contemplated
acquisitions (whether of business or assets), ideas, methods, marketing
investigations, surveys, research, customers' records and any other information
relating to Employer's and the Affiliates' Business.
Employer and Employee recognize that, during the course of Employee's
term of employment with Employer pursuant to this Agreement, Employee shall
contact, solicit or approach Employer's and the Affiliates' customers and
prospective customers on behalf of Employer. Employer and Employee further
acknowledge that Employee has and shall, during his term of employment with
Employer, solicit business for Employer and the Affiliates from the customers
listed on EXHIBIT A attached hereto and made a part hereof (collectively, the
"Restricted Customers").
To protect Employer from Employee's solicitation of business from such
customers during the Restricted Period, Employee agrees that, subject to
Paragraph 15 hereof, he shall not, directly or indirectly, for any person
(including Employee himself), corporation, firm, partnership, proprietorship or
other entity, other than Employer or an Affiliate, engaged in the
transportation of automobiles and light trucks from manufacturers to retailers,
solicit business from any Restricted Customer. This Paragraph 12 shall, except
as otherwise provided in this Agreement, survive the termination of this
Agreement.
13. COVENANT NOT-TO-DISCLOSE. Employer and Employee recognize that,
during the course of Employee's term of employment with Employer pursuant to
this Agreement, Employer will disclose to Employee information concerning
Employer and the Affiliates, their products, their customers, their services,
their trade secrets, their proprietary information and other information
concerning their business all of which constitute valuable assets of Employer
and the Affiliates. Employer and Employee further acknowledge that Employer
has, and will, invest considerable amounts of time, effort and corporate
resources in developing such valuable assets and that disclosure by Employee of
such assets to the public shall cause irreparable harm, damage and loss to
Employer and the Affiliates.
(a) To protect these assets, Employee agrees that he shall not,
during the Restricted Period, advise or disclose to any
person,
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corporation, firm, partnership or other entity whatsoever
(except Employer or an Affiliate), or any officer,
director, stockholder, partner or associate of any such
corporation, firm, partnership or entity any information
received from Employer by Employee during the course of
Employee's association with Employer relating to the
business affairs of Employer and the Affiliates including
information concerning Employer's and the Affiliates'
finances, services, customers, customer lists, prospective
customers, staff, contemplated acquisitions (whether of
business or assets), ideas, proprietary information,
methods, marketing investigations, surveys, research and
any other information relating to the business and
objectives of Employer and the Affiliates, except as
permitted by this Paragraph 13.
(b) Employee further agrees that he shall not, during the term
of his employment or any time thereafter, advise or
disclose to any person or entity any trade secret which
Employer or any Affiliate has disclosed to Employee during
the course of his employment with Employer.
(c) In the event Employee's employment is terminated, Employee
agrees that, if requested by Employer, he will acknowledge
in writing that he received the disclosures referred to
herein and is under the obligations referred to in this
Agreement.
(d) This Paragraph 13 shall, except as otherwise provided in
this Agreement, survive the termination of this Agreement.
Any implication in this Paragraph 13 to the contrary notwithstanding,
this Paragraph 13 shall not, and shall not be deemed to, prohibit Employee from
disclosing information regarding Employer that (i) is already public
information other than because of any breach of this Paragraph 13 by Employee;
(ii) shall be required by applicable Federal or state laws; (iii) shall not be
confidential or proprietary and shall be required in the ordinary course of
business; and (iv) shall be required pursuant to the order of any court or
administrative agency having jurisdiction; provided, however, that the
foregoing shall not permit the disclosure of any trade secret of Employer.
14. COVENANT NOT-TO-INDUCE. Employee covenants and agrees that during
the Restricted Period, he will not, directly or indirectly, on his own behalf
or in the service or on behalf of others, hire, solicit, take away or attempt
to hire, solicit or take away an employee or other personnel of Employer and
the Affiliates. This Paragraph 14 shall, except as otherwise provided in this
Agreement, survive the termination of this Agreement.
15. PARAMOUNT PROVISION. Anything in this Agreement to the contrary
notwithstanding, the provisions of Paragraph 12 and Paragraphs 13(a) and 13(c)
hereof
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shall not apply to Employee, and shall be absolutely null and void, in the
event Employee shall terminate his employment hereunder for any one of the
reasons set forth in Paragraph 9(b) hereof.
16. SPECIFIC ENFORCEMENT. Employer and Employee expressly agree that
a violation of the covenants not-to-solicit, not-to-disclose and not-to-induce
contained in Paragraphs 12, 13 and 14 hereof, or any provision thereof, shall
cause irreparable injury to Employer and that, accordingly, Employer shall be
entitled, in addition to any other rights and remedies it may have at law or in
equity, to an injunction enjoining and restraining Employee from doing or
continuing to do any such act and any other violation or threatened violation
of said Paragraphs 12, 13 and 14 hereof.
17. SEVERABILITY. In the event any provision of this Agreement shall
be found to be void, the remaining provisions of this Agreement shall
nevertheless be binding with the same effect as though the void part were
deleted; provided, however, if Paragraphs 12, 13 and 14 shall be declared
invalid, in whole or in part, Employee shall execute, as soon as possible, a
supplemental agreement with Employer, granting Employer, to the extent legally
possible, the protection afforded by said Paragraphs. It is expressly
understood and agreed by the parties hereto that Employer shall not be barred
from enforcing the restrictive covenants contained in each of Paragraphs 12, 13
and 14 as each are separate and distinct, so that the invalidity of any one or
more of said covenants shall not affect the enforceability and validity of the
other covenants.
18. INCOME TAX WITHHOLDING. Employer or any other payor may withhold
from any compensation or benefits payable under this Agreement such Federal,
State, City or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
19. OTHER TAX CONSIDERATIONS. Notwithstanding any other provision of
this Agreement to the contrary, in the event that any payment or benefit
received or to be received by Employee is triggered by an event described in
subparagraph (d) of Paragraph 9 of this Agreement, whether such payment or
benefit is pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with Employer or any Affiliate of Employer
(hereinafter, all such payments and benefits being sometimes referred to as
"Total Payments"), and would not be deductible, either in whole or in part, by
Employer or an Affiliate making such payment or providing such benefit as a
result of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), then, to the extent necessary to make such portion of the Total
Payments deductible (and after taking into account any reduction in the Total
Payments provided by reason of Section 280G of the Code in any such other plan,
arrangement or agreement), (A) the cash portion of the Total Payments provided
in this Paragraph 19 shall first be reduced (if necessary, to zero (0)), and
(B) all other non-cash Total Payments under this Paragraph 19 shall next be
reduced (if necessary, to zero (0)); provided, however, that the Employee's
payment shall only be reduced by this Paragraph 19 if Employer determines that
reducing the Total Payments would result in greater after-tax proceeds to the
Employee than if no such reduction in Total Payments had occurred. Any
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determination required by the preceding sentence shall be made by independent
certified public accountants or tax counsel (hereinafter, such party shall
sometimes be hereinafter referred to as the "Independent Adviser") selected by
Employer, the selection of which shall be reasonably acceptable to Employee. In
making Employer's determination as to the application and effect of this
Paragraph 19 on any payments or benefits received or to be received by
Employee, (i) no portion of the Total Payments shall be taken into account
which in the opinion of the Independent Adviser does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code,
including by reason of Section 280G(b)(4)(A) of the Code; (ii) those Total
Payments provided under this Paragraph 19 shall be reduced only to the extent
necessary so that the Total Payments (other than those referred to in clause
(i)) in their entirety constitute reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4)(B) of the Code or are
otherwise not subject to disallowance as deductions, in the opinion of the
Independent Adviser; and (iii) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by the Company's independent certified public accountants in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code.
20. WAIVER. The waiver of a breach of any term of this Agreement by
any of the parties hereto shall not operate or be construed as a waiver by such
party of the breach of any other term of this Agreement or as a waiver of a
subsequent breach of the same term of this Agreement.
21. RIGHTS AND LIABILITIES UPON NOTICE OF TERMINATION. As soon as
notice of termination of this Agreement is given, Employee shall immediately
cease contact with all customers of Employer and shall forthwith surrender to
Employer all customer lists, documents and other property of Employer then in
his possession, compliance with which shall not be deemed to be a breach of
this Agreement by Employee. Pending the surrender of all such customer lists,
documents and other property to Employer, Employer may hold in abeyance any
payments due Employee pursuant to this Agreement.
22. ASSIGNMENT.
(a) Employee shall not assign, transfer or convey this
Agreement, or in any way encumber the compensation or other
benefits payable to him hereunder, except with the prior
written consent of Employer or upon Employee's death.
(b) The covenants, terms and provisions set forth herein shall
be binding upon and shall inure to the benefit of, and be
enforceable by, Employer and its successors and assigns.
23. NOTICES. All notices required herein shall be in writing and
shall be deemed to have been given when delivered personally or when deposited
in the U.S.
13
<PAGE> 14
Mail, certified or registered, postage prepaid, return receipt requested,
addressed as follows, to wit:
If to Employer at:
160 Clairemont Avenue, Suite 200
Decatur, Georgia 30030
With a copy to:
----------------------------
----------------------------
----------------------------
If to Employee at:
----------------------------
----------------------------
or at such other addresses as may, from time to time, be furnished to Employer
by Employee, or by Employer to Employee on the terms of this Paragraph.
24. BINDING EFFECT. This Agreement shall be binding on the parties
hereto and on their respective heirs, administrators, executors, successors and
permitted assigns.
25. ENFORCEABILITY. This Agreement contains the entire understanding
of the parties and may be altered, amended or modified only by a writing
executed by both of the parties hereto. This Agreement supersedes all prior
agreements and understandings by and between Employer and Employee relating to
Employee's employment.
26. APPLICABLE LAW. This Agreement and the rights and liabilities of
the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Georgia.
27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute but a single document.
[SIGNATURE PAGE TO FOLLOW]
14
<PAGE> 15
IN WITNESS WHEREOF, Employee has hereunder set his hand and seal, and
Employer has caused this Agreement to be executed and delivered by its duly
authorized officers, all as of the day and year first above written.
(SEAL)
- ------------------------------- ------------------------------
WITNESS
------------------------------
ATTEST: ALLIED HOLDINGS, INC.
By: By:
---------------------------- ----------------------------
Its Secretary Its President
---------------- ----------------
[CORPORATE SEAL]
15
<PAGE> 1
EXHIBIT 21.1
The subsidiaries of Allied Holdings, Inc. and the place of incorporation or
organization are as follows:
Allied Automotive Group, Inc. - Georgia
Allied Industries Incorporated - Georgia
Haul Risk Management Services, Inc. - Georgia
Link Information Systems, Inc. - Georgia
Allied Southwoods, Inc. - Georgia
Axis Group, Inc. - Georgia
Allied Systems, Ltd., LLP - Georgia
Inter Mobile, Inc. - Georgia
Legion Transportation, Inc. - Georgia
Automotive Transport Services, Inc. - Georgia
Allied Systems (Canada) Company - Nova Scotia
Axis International, Inc. - Georgia
Axis Truck Leasing, Inc. - Georgia
Axis North America, Inc. - Georgia
Kar-Tainer International, Inc. - Florida
Canadian Acquisition Corp. - Georgia
RC Management Corp. - Delaware
GACS Incorporated - Florida
Allied Freight Broker, Inc. - Virginia
QAT, Inc. - Florida
OSCHO, Inc. - Florida
Terminal Service Co. - Washington
F.J. Boutell Driveaway Co., Inc. - Michigan
RMX, Inc. - Delaware
Transport Support, Inc. - Delaware
Commercial Carriers, Inc. - Michigan
B&C Inc. - Michigan
Haul Insurance Limited - Cayman Islands
AH Industries, Inc. - Alberta
Kar-Tainer International Limited - Bermuda
Axis Netherlands, LLC - Georgia
Axis Netherlands C.V. - Netherlands
Axis Holdings Ltda. - Brazil
Axis Areta, LLC - Georgia
Arrendadora de Equipo para el Transporte de Automoviles,
s. de R.L. de C.V.- Mexico
Axis Logistica, S. de R.L. de C.V. - Mexico
Logistic Technology, LLC - Georgia
Kar-Tainer International (Pty) Ltd. - South Africa
Axis Canada Company - Nova Scotia
Allied ASL Holdings, Inc.
CT Group, Inc. - Michigan
CT Services, Inc. - Michigan
Cordin Transport, Inc. - Michigan
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our reports dated February 11, 2000, appearing on pages F-1 and
S-1 of this Form 10-K, into the Company's previously filed Registration
Statement File Nos. 33-76108, 33-90892, 333-3020, 33-37113, and 333-72053.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 27, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF ALLIED HOLDINGS, INC. AND SUBSIDIARIES FOR THE TWELVE
MONTHS ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 13,984
<SECURITIES> 44,325
<RECEIVABLES> 121,058
<ALLOWANCES> 0
<INVENTORY> 7,949
<CURRENT-ASSETS> 225,617
<PP&E> 287,838
<DEPRECIATION> 0
<TOTAL-ASSETS> 649,920
<CURRENT-LIABILITIES> 128,771
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 66,914
<TOTAL-LIABILITY-AND-EQUITY> 649,920
<SALES> 1,081,309
<TOTAL-REVENUES> 1,081,309
<CGS> 1,051,426
<TOTAL-COSTS> 1,051,426
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 28,156
<INCOME-PRETAX> 1,727
<INCOME-TAX> 178
<INCOME-CONTINUING> 1,549
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,549
<EPS-BASIC> .20
<EPS-DILUTED> .20
</TABLE>
