<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1998
Commission File No. 000-22490
LANDAIR SERVICES, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-1120025
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
430 AIRPORT ROAD
GREENEVILLE, TENNESSEE 37745
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (423) 636-7000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
------- -------
The number of shares outstanding of the registrant's common stock, $.01 par
value, as of April 27, 1998 was 6,146,891.
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TABLE OF CONTENTS
LANDAIR SERVICES, INC.
PART I. FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C>
ITEM 1. Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets -
March 31, 1998 and December 31, 1997 3
Condensed Consolidated Statements of Income -
Three months ended March 31, 1998 and 1997 4
Condensed Consolidated Statements of Cash Flows -
Three months ended March 31, 1998 and 1997 5
Notes to Condensed Consolidated Financial Statements -
March 31, 1998 6
ITEM 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 10
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings 13
ITEM 2. Changes in Securities 13
ITEM 3. Defaults Upon Senior Securities 13
ITEM 4. Submission of Matters to a Vote of Security Holders 13
ITEM 5. Other Information 13
ITEM 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
EXHIBIT INDEX 15
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
Landair Services, Inc.
Condensed Consolidated Balance Sheets
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
---------------------
(Unaudited) (Note)
(In thousands, except share data)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 1,164 $ 686
Accounts receivable, less allowance of $1,111 in 1998 and $928 in 1997 28,998 28,771
Other current assets 8,560 6,372
---------------------
Total current assets 38,722 35,829
Property and equipment 120,446 115,130
Less accumulated depreciation and amortization 38,272 35,933
---------------------
82,174 79,197
Other assets 3,367 3,305
---------------------
Total assets $124,263 $118,331
=====================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 4,040 $ 5,126
Accrued expenses 14,528 13,730
Current portion of long-term debt 10,475 11,120
Current portion of capital lease obligations 4,030 3,924
---------------------
Total current liabilities 33,073 33,900
Long-term debt, less current portion 19,816 16,347
Capital lease obligations, less current portion 5,327 6,058
Deferred income taxes 12,305 11,566
Shareholders' equity:
Preferred stock -- --
Common stock, $.01 par value:
Authorized shares - 20,000,000
Issued and outstanding shares - 6,146,578 in 1998 and
6,024,388 in 1997 61 60
Additional paid-in capital 27,844 26,804
Retained earnings 25,837 23,596
---------------------
Total shareholders' equity 53,742 50,460
---------------------
Total liabilities and shareholders' equity $124,263 $118,331
=====================
</TABLE>
Note: The balance sheet at December 31, 1997 has been derived from the audited
financial statements at that date, but does not include all of the financial
information and footnotes required by generally accepted accounting principles
for complete financial statements.
See notes to condensed consolidated financial statements.
3
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Landair Services, Inc.
Condensed Consolidated Statements of Income
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
--------------------------
March 31, March 31,
1998 1997
--------------------------
(In thousands, except per share data)
<S> <C> <C>
Operating revenue $ 52,855 $ 41,005
Operating expenses:
Purchased transportation 17,211 13,899
Salaries, wages, and employee benefits 15,390 11,669
Depreciation and amortization 3,206 2,559
Fuel and fuel taxes 3,270 2,583
Insurance and claims 2,246 2,512
Operating leases 1,778 1,481
Other operating expenses 5,391 4,380
--------------------------
48,492 39,083
Income from operations 4,363 1,922
Other income (expense):
Interest expense (677) (681)
Other, net 16 30
--------------------------
(661) (651)
Income before income taxes 3,702 1,271
Income taxes 1,461 500
--------------------------
Net income $ 2,241 $ 771
==========================
Net income per share:
Primary $ .37 $ .13
==========================
Diluted $ .35 $ .13
==========================
Dividends declared per share -- --
==========================
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE> 5
Landair Services, Inc.
Condensed Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
------------------------
March 31, March 31,
1998 1997
------------------------
(In thousands)
<S> <C> <C>
Cash from operations $ 3,458 $ 3,091
Investing activities:
Proceeds from disposal of property and equipment 521 106
Purchases of property and equipment (6,635) (4,967)
Other (106) (23)
------------------------
(6,220) (4,884)
Financing activities:
Proceeds from long-term debt 5,733 4,990
Payments of long-term debt (2,909) (1,842)
Payments of capital lease obligations (625) (845)
Proceeds from exercise of stock options 1,041 --
------------------------
3,240 2,303
------------------------
Increase in cash and cash equivalents $ 478 $ 510
========================
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE> 6
Landair Services, Inc.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
March 31, 1998
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended March 31, 1998
are not necessarily indicative of the results that may be expected for the year
ending December 31, 1998. For further information, refer to the consolidated
financial statements and footnotes thereto included in the Landair Services,
Inc. annual report on Form 10-K for the year ended December 31, 1997.
NOTE 2 - INCOME TAXES
For the three months ended March 31, 1998 and 1997, the effective income tax
rate varied from the statutory federal income tax rate of 34% primarily as a
result of the effect of state income taxes, net of the federal benefit, and
permanent differences.
NOTE 3 - EARNINGS PER SHARE
In 1997, the Financial Accounting Standards Board issued Statement No. 128,
Earnings Per Share. Statement 128 replaced the calculation of primary and fully
diluted earnings per share with basic and diluted earnings per share. Unlike
primary earnings per share, basic earnings per share excludes any dilutive
effects of options, warrants and convertible securities. Diluted earnings per
share is very similar to the previously reported fully diluted earnings per
share and uses the treasury stock method in calculating dilution. All earnings
per share amounts for all periods have been presented and restated to conform to
Statement 128 requirements.
6
<PAGE> 7
Landair Services, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)
NOTE 3 - EARNINGS PER SHARE (CONTINUED)
The following table sets forth the computation of basic and diluted earnings per
share (in thousands, except per share data):
<TABLE>
<CAPTION>
Three months ended
---------------------
March 31, March 31,
1998 1997
---------------------
<S> <C> <C>
Numerator:
Numerator for basic and diluted
earnings per share - net income $2,241 $ 771
=====================
Denominator:
Denominator for basic earnings per share-
weighted-average shares 6,076 5,953
Effect of dilutive stock options 306 101
---------------------
Denominator for diluted earnings per share-
adjusted weighted-average shares 6,382 6,054
=====================
Basic net income per share $ .37 $ .13
=====================
Diluted net income per share $ .35 $ .13
=====================
Securities that could potentially dilute basic net income per share in the
future that were not included in the computation of diluted net income per
share because to do so would have been antidilutive for the
periods presented -- 448
=====================
</TABLE>
7
<PAGE> 8
Landair Services, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)
NOTE 4 - BUSINESS SEGMENTS
A summary of information about the Company's operations by segment for the three
months ended March 31, 1998 and 1997 is as follows (in thousands):
<TABLE>
<CAPTION>
Truckload Forward Air
--------- -----------
<S> <C> <C>
Three months ended March 31, 1998
Operating revenue from external customers $24,005 $28,850
Intersegment revenue 1,318 --
Segment income from operations 1,581 2,782
Three months ended March 31, 1997
Operating revenue from external customers $19,393 $21,612
Intersegment revenue 1,152 --
Segment income from operations 156 1,766
</TABLE>
A reconciliation of reportable segment income from operations to the Company's
consolidated totals is as follows (in thousands):
<TABLE>
<CAPTION>
Three months ended
----------------------
March 31, March 31,
1998 1997
-----------------------
<S> <C> <C>
Total income from operations for reportable
segments $4,363 $1,922
Other profit or loss -- --
-----------------------
Total consolidated income from operations $4,363 $1,922
=======================
</TABLE>
There was no material change in total assets by segment, as of March 31, 1998,
from the amounts disclosed in the Company's annual report on Form 10-K for the
year ended December 31, 1997.
8
<PAGE> 9
Landair Services, Inc.
Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)
NOTE 5 - COMMITMENTS AND CONTINGENCIES
The Company is, from time to time, a party to litigation arising in the normal
course of its business, most of which involve claims for personal injury and
property damage incurred in connection with the transportation of freight.
Management believes none of these actions, individually or in the aggregate,
will have a material adverse effect on the financial condition or results of
operations of the Company.
In connection with the Company's anticipated fuel requirements, the Company
periodically enters into forward contracts for the purchase of fuel as deemed
appropriate to reduce the risk of future fuel price increases. At March 31,
1998, the Company had commitments to purchase approximately 500,000 gallons of
fuel per month through February 1999. The price required to be paid under the
forward contracts is not materially different from the current market price at
March 31, 1998. The Company is exposed to loss in the event of nonperformance by
the other parties to the forward contracts; however, the Company does not
anticipate nonperformance by the counterparties.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following table sets forth the percentage relationship of expense items to
operating revenue for the periods indicated.
<TABLE>
<CAPTION>
Three months ended
----------------------
March 31, March 31,
1998 1997
-----------------------
<S> <C> <C>
Operating revenue 100.0% 100.0%
Operating expenses:
Purchased transportation 32.6 33.9
Salaries, wages, and employee
benefits 29.1 28.5
Depreciation and amortization 6.0 6.2
Fuel and fuel taxes 6.2 6.3
Insurance and claims 4.2 6.1
Operating leases 3.4 3.6
Other operating expenses 10.2 10.7
---------------------
91.7 95.3
Income from operations 8.3 4.7
Other income (expense):
Interest expense (1.3) (1.7)
Other, net -- 0.1
---------------------
(1.3) (1.6)
---------------------
Income before income taxes 7.0 3.1
Income taxes 2.8 1.2
---------------------
Net income 4.2% 1.9%
=====================
</TABLE>
Results of Operations
Operating revenue increased by $11.9 million, or 29%, to $52.9 million in the
first quarter of 1998 from $41.0 million in 1997.
Purchased transportation was 32.6% of operating revenue in the first three
months of 1998 compared to 33.9% in 1997. The decrease in purchased
transportation as a percentage of operating revenue between periods was
primarily attributable to a reduction in the ratio of owner- operator to
Company-operated equipment in 1998. During the first three months of 1998 and
1997, approximately 40.1% and 41.9% of the Company's total average tractors in
service were contracted through owner-operators.
Salaries, wages and benefits were 29.1% of operating revenue in the first three
months of 1998 compared to 28.5% in 1997. The increase as a percentage of
operating revenue in 1998 was due
10
<PAGE> 11
primarily to higher cargo handling wages and terminal managers' salaries
required to operate additional terminals and greater operating volumes in the
Company's Forward Air operations combined with an increase in the ratio of
Company-operated to owner-operator equipment. These factors were partially
offset by increased utilization of Company-operated equipment during the first
three months of 1998 compared to 1997.
Depreciation and amortization expense as a percentage of operating revenue was
6.0% in the first quarter of 1998, compared to 6.2% in 1997. The improvement in
depreciation and amortization expense as a percentage of operating revenue is
primarily attributed to increased utilization of operating assets partially
offset by additional depreciation and amortization as a result of a higher ratio
of Company-operated to owner-operator equipment during the first three months of
1998 compared to the prior year.
Fuel and fuel taxes were 6.2% of operating revenue in the first quarter of 1998,
compared to 6.3% in 1997. The decrease in fuel and fuel taxes as a percentage of
operating revenue during 1998 resulted from a lower average fuel price per
gallon coupled with improvements in the average miles per gallon and average
revenue per loaded mile of the Company-operated tractor fleet. The increase in
fuel and fuel taxes as a percentage of operating revenue during 1998 was also
attributed to an increase in the ratio of Company-operated to owner-operator
equipment.
Insurance and claims were 4.2% of operating revenue for the three months ended
March 31, 1998, compared with 6.1% in 1997. The decrease in insurance and claims
expense as a percentage of operating revenue is due primarily to a decrease in
the severity of accidents and lower premium costs during the first quarter of
1998 compared with 1997.
Operating leases were 3.4% of operating revenue in the first quarter of 1998,
compared to 3.6% in 1997. The decrease in operating lease expense as a
percentage of operating revenue is attributed to increased utilization of leased
operating equipment and facilities.
Other operating expenses were 10.2% of operating revenue in the first quarter of
1998 compared to 10.7% in 1997. The decrease in 1998 as a percentage of
operating revenue is attributed to both a reduced operating cost structure and
improvements in utilization levels in the Company's operations.
The effective tax rate for the first quarter of 1998 was 39.5% compared to 39.0%
for 1997.
Forward Air Segment - Operating revenue in the Company's Forward Air operations
increased by $7.2 million, or 33%, during the first three months of 1998 over
the prior-year quarter and represented approximately 54.6% and 52.7% of the
Company's total operating revenue for these periods, respectively. Operating
revenue increases in the Forward Air operations resulted from increasing the
number of operating terminals, enhancements to the Forward Air network and
greater volume from domestic and international air cargo customers. The
operating revenue increase in 1998 is also partially attributed to the
acquisition on October 27, 1997 of the air cargo operating assets of Adams Air
Cargo, Inc.
11
<PAGE> 12
Forward Air income from operations increased by $1.0 million during the first
three months of 1998 over the prior-year quarter. The increase in income from
operations resulted from higher operating revenue, which was reduced in part by
the incremental costs associated with such revenue.
Truckload Segment - Operating revenue in the Company's Truckload operations
increased by $4.8 million, or 23%, during the first three months of 1998 over
the prior-year quarter. The operating revenue increase in the Truckload
operations resulted primarily from increases in equipment utilization, yield and
additional tractors in service. During the first three months of 1998 and 1997,
the average tractors in service utilized by the Truckload operations, including
owner-operators, were 780 and 695, respectively.
Truckload income from operations increased by $1.4 million during the first
three months of 1998 over the prior-year quarter. The increase in income from
operations in 1998 was due mainly to a lower operating cost ratio resulting from
an increase in equipment utilization and yield during the year.
Liquidity and Sources of Capital
Cash flows from operations were $3.5 million for the first three months of 1998
compared with $3.1 million in the same period of 1997. The $400,000 increase in
cash flows from operations was principally attributable to increased business
volumes and collection of the related accounts receivable.
Management believes available borrowing under existing lines of credit, future
borrowing under installment notes for revenue equipment, and cash generated by
operations will be sufficient to fund the Company's cash needs and anticipated
capital expenditures over the near term.
Recent Developments
On February 10, 1998, the Company's Board announced it had authorized the
creation of a special committee of independent directors to consider a plan to
separate the Company into two publicly-traded companies, one comprised of the
Truckload operations, and the other the Forward Air operations. There can be no
assurance as to whether any such transaction will occur or as to the timing or
terms of any such transaction. Under the plan currently being considered, the
transaction would be structured as a tax-free spin-off, subject, among other
things, to the receipt of a ruling as to tax-free status from the Internal
Revenue Service.
12
<PAGE> 13
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is, from time to time, a party to litigation arising in the normal
course of its business, most of which involve claims for personal injury and
property damage incurred in connection with the transportation of freight.
Management believes that none of these actions, individually or in the
aggregate, will have a material adverse effect on the financial condition or
results of operations of the Company.
ITEM 2. CHANGES IN SECURITIES
Not Applicable
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not Applicable
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not Applicable
ITEM 5. OTHER INFORMATION
Not Applicable
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
The following exhibits are included herein:
(a) Exhibits - The response to this portion of Item 6 is submitted as a
separate section of this report.
(b) Reports on Form 8-K - The Company did not file any reports on Form 8-K
during the three months ended March 31, 1998.
13
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Landair Services, Inc.
Date: May 8, 1998 By: /s/ Edward W. Cook
------------------------------
Edward W. Cook
Chief Financial Officer
and Senior Vice President
14
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
10.1 $15,000,000 Restated, Amended and Replacement Promissory Note (Line
of Credit), dated as of January 30, 1998, among First Tennessee Bank
National Association, the registrant, Landair Transport, Inc., Landair
International Airlines, Inc., Transportation Properties, Inc. and Forward
Air, Inc.
10.2 Third Amendment to Line of Credit Loan Agreement and to Amended and Restated
Security Agreement, dated as of January 30, 1998, among First Tennessee Bank
National Association, the registrant, Landair Transport, Inc., Landair
International Airlines, Inc., Transportation Properties, Inc., and Forward Air,
Inc.
10.3 $15,000,000 Restated, Amended and Replacement Promissory Note
(Equipment Loan), dated as of January 30, 1998, among First Tennessee
Bank National Association, the registrant, Landair Transport, Inc., Landair
International Airlines, Inc., Transportation Properties, Inc. and Forward
Air, Inc.
10.4 Sixth Amendment to Loan and Security Agreements, dated as of January
30, 1998, among First Tennessee Bank National Association, the registrant,
Landair Transport, Inc., Landair International Airlines, Inc.,
Transportation Properties, Inc. and Forward Air, Inc.
10.5 Seventh Amendment to Loan and Security Agreements, dated as of January
30, 1998, among First Tennessee Bank National Association, the registrant,
Landair Transport, Inc., Landair International Airlines, Inc.,
Transportation Properties, Inc. and Forward Air, Inc.
10.6 Eighth Amendment to Loan and Security Agreements, dated as of February
24, 1998, among First Tennessee Bank National Association, the registrant,
Landair Transport, Inc., Landair International Airlines, Inc.,
Transportation Properties, Inc. and Forward Air, Inc.
10.7 Ninth Amendment to Loan and Security Agreements, dated as of March 24,
1998, among First Tennessee Bank National Association, the registrant,
Landair Transport, Inc., Landair International Airlines, Inc.,
Transportation Properties, Inc. and Forward Air, Inc.
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
27.1 Financial Data Schedule - Period Ended March 31, 1998 (Electronic Filing
Only)
27.2 Financial Data Schedule (Restated) - Year Ended December 31, 1996
(Electronic Filing Only)
27.3 Financial Data Schedule (Restated) - Period Ended June 30, 1997
(Electronic Filing Only)
27.4 Financial Data Schedule (Restated) - Period Ended September 30, 1997
(Electronic Filing Only)
</TABLE>
16
<PAGE> 1
Exhibit 10.1
RESTATED, AMENDED AND REPLACEMENT
PROMISSORY NOTE
(LINE OF CREDIT)
$15,000,000.00 Greeneville, Tennessee
As of January 30, 1998
FOR VALUE RECEIVED, the undersigned, each a Tennessee corporation, jointly and
severally promise to pay to the order of FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association having offices for the conduct of
business in Greene County, Tennessee (the "Bank") at its place of business in
Greeneville, Tennessee, with the mailing address of "206 North Main Street,
Greeneville, TN 37745, ATTN: Larry Estepp," or at such other place as the holder
hereof may designate in writing, in current local funds, the sum of Fifteen
Million Dollars ($15,000,000.00), or so much thereof as may be advanced by the
Bank in accordance with the terms and provisions of the Credit Agreement, plus
interest thereon or on so much as shall remain outstanding from time to time, as
set out below. This Note is referred to as the "Line Note" in the Credit
Agreement.
This Note is made in replacement of a Fifteen Million Dollar ($15,000,000.00)
restated, amended and replacement promissory note made as of January 28, 1997,
by the undersigned and payable to the order of the Bank, which was made in
replacement of a Fifteen Million Dollar ($15,000,00.00) restated, amended and
replacement promissory note made as of May 31, 1995, by the undersigned Landair
Services, Inc. and guarantied by the other undersigned makers, payable to the
order of the Bank, the outstanding principal amount of which is Ten Million Nine
Hundred Sixty Thousand Three Hundred Seventy-Three and 09/100 Dollars
($10,960,373.09) as of this day (the "Original Principal"). Accordingly, the
amount of principal available to be drawn or further reserved under this Note in
accordance with the provisions of the Credit Agreement is Four Million
Thirty-Nine Thousand Six Hundred Twenty-Six and 91/100 Dollars ($4,039,626.91)
as of this day. The Original Principal includes the face amount of irrevocable
letters of credit issued by the Bank for the account and benefit of the
undersigned in the aggregate amount of Eight Million One Hundred Four Thousand
One Hundred Ninety Dollars ($8,104,190.00).
INTEREST ACCRUAL: Except during any period during which a default
interest rate shall be applicable as described below, interest shall accrue at
the variable rate per annum, rounded upward, if necessary, to the nearest Basis
Point (the "Variable Rate"), equal to the LIBOR Rate plus one hundred
thirty-five (135) Basis Points expressed on a per annum basis with respect to
the Original Principal and with respect to all other principal indebtedness
advanced by the Bank hereunder. Each change in the Variable Rate that results
from a change in the LIBOR Rate shall become effective on each adjustment date
which shall occur on the first day of each month commencing February 1, 1998.
Interest shall be calculated based upon and computed on a three hundred sixty
(360) day year.
1
<PAGE> 2
INTEREST AND PRINCIPAL PAYMENTS: The undersigned shall make payments of
principal and interest as follows: one single principal payment of the balance
due on or before May 31, 1999, plus interest payable beginning February 10,
1998, and continuing on the same day of each successive monthly calendar period,
except that the final interest installment shall be payable on the date the
principal is due. All unpaid principal and interest evidenced hereby shall be
due and payable on the maturity date hereof, which shall be May 31, 1999.
LIBOR RATE DEFINITIONS: As used in this Note, the following terms shall
have the following meanings:
(a) Basis Point: One-hundredth (1/100) of one percent (1.0%)
per annum.
(b) Business Day: Any day other than a Saturday, Sunday,
holiday or other day on which state-chartered commercial
banking institutions in Greeneville, Tennessee are authorized
by law to be closed.
(c) LIBOR Business Day: A Business 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 Bank in its sole
discretion acting in good faith.
(d) LIBOR Interest Period: With respect to the Original
Principal and with respect to all other principal indebtedness
advanced by the Bank hereunder, one (1) month periods, each
period commencing on the date of Bank's funding or on the last
day of the preceding applicable period, as the case may be;
provided that the foregoing provisions relating to LIBOR
Interest Period are subject to the following:
(i) if any LIBOR Interest period would otherwise end
on a day that is not a LIBOR Business Day, that LIBOR
Interest Period shall be extended to the next
succeeding LIBOR Business Day unless the results of
such extension would be to carry such LIBOR Interest
Period into another calendar month, in which event
such LIBOR Interest Period shall end on the
immediately preceding LIBOR Business Day;
(ii) any LIBOR Interest Period that begins on the
last LIBOR 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 LIBOR
Interest Period) shall end on the last LIBOR Business
Day of a calendar month; and
2
<PAGE> 3
(iii) any LIBOR Interest Period that would otherwise
extend beyond the maturity of this Note shall end on
the maturity date of this Note.
(e) LIBOR Rate: During any LIBOR Interest Period, an interest
rate per annum equal to the quotient (converted to a
percentage) of (i) the rate per annum as determined and
calculated by the Bank at or about 9:00 o'clock A.M. (Eastern
Time) (or as soon thereafter as practicable) on the second
Business Day prior to the first day of each LIBOR Interest
Period, to be the average of interbank offered rates for
dollar deposits in the London market based on quotations at
five (5) major banks, for thirty (30) days or one (1) month
deposits, as most recently published in the Wall Street
Journal, "Money Rates Section" under the category "London
Interbank Offered Rates (LIBOR)," divided by (ii) 1.00 minus
the LIBOR Reserve Requirement (as defined below), expressed as
a decimal, for such LIBOR Interest Period. If such rate ceases
to be published in the Wall Street Journal, the LIBOR Rate
shall be the London Rate Eurodollar 30-day or One Month Index
as published in the Wall Street Journal. "LIBOR Reserve
Requirement" shall mean for any day during a LIBOR Interest
Period, that percentage which is specified by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but
not limited to, any marginal reserve requirement) for the Bank
with respect to liabilities consisting of or including
"Eurocurrency liabilities" (as defined in Regulation D of the
Board of Governors of the Federal Reserve System) with a
maturity equal to such LIBOR Interest Period. In determining
the percentage, the Bank may use any reasonable averaging and
attribution methods. Each determination by Bank of a LIBOR
Rate or of the LIBOR Reserve Requirement used in determining
same shall be conclusive and binding, absent manifest error.
SECURITY: This Note is secured by a lien on accounts receivable and
certain other property described in an Amended and Restated
Security Agreement dated October 17, 1994, as amended by
instruments dated May 31, 1995, January 28, 1997, and of even
date herewith (collectively, the "Security Agreement") among
the Bank and the undersigned, corresponding UCC Financing
Statements, and guaranty agreements of certain of the
undersigned.
OTHER TERMS AND CONDITIONS: Unless otherwise provided herein, all payments shall
be applied first to pay the accrued interest to date on the unpaid balance and
next to the unpaid principal of the indebtedness.
All capitalized terms not otherwise defined herein shall have the same meanings
as set forth in the Credit Agreement.
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<PAGE> 4
Any payment not made when due hereunder (whether by acceleration or otherwise)
shall bear interest at the "default rate" which is herein calculated as the
lesser of the Bank's Base Rate plus four percent (4.0%) per annum or the maximum
effective contract rate of interest which the Bank may lawfully charge on the
date such payment became due. As used herein, the Bank's "Base Rate" is the base
commercial rate of interest established from time to time by the Bank and which
need not be the lowest rate of interest then available to its best commercial
customers.
If this Note is placed in the hands of an attorney for collection, by suit or
otherwise, or to protect any security given for its payment, or to enforce its
collection, the undersigned will pay all the costs of collection and litigation,
together with a reasonable attorney's fee, all of which shall be secured by any
collateral pledged as security hereof.
The makers and any endorsers or guarantors hereof waive protest, demand,
presentment, and notice of dishonor, and agree that this Note may be extended,
in whole or in part, without limit as to the number of such extensions, or the
period or periods thereof, and without notice to or further assent from them or
any other party liable hereon, all of whom will remain bound upon this Note
notwithstanding any such extension(s); and further agree that all or any
collateral given, now or hereafter, as security herefor may be released (with or
without substitution) without notice and without affecting their liability
hereon; and that additional makers, endorsers, guarantors, or sureties may
become parties hereto and that any present or future party may be released from
liability hereunder, without notice, and without affecting the liability of any
other maker, endorser, or guarantor.
This Note is issued and executed pursuant to and in connection with a Line of
Credit Loan Agreement dated October 17, 1994, as amended by instruments dated
May 31, 1995, January 28, 1997, and of even date herewith among the Bank and the
undersigned (collectively, the "Credit Agreement"), and the holder hereof is
entitled to the benefits of such Credit Agreement and may disburse loan proceeds
and may exercise the remedies and rights provided therein, all in accordance
with the terms of the Credit Agreement. In connection with the immediately
preceding sentence, this Note evidences a revolving credit loan and, provided
that no event of default hereunder as described in the next paragraph hereof
exists, the undersigned may borrow, repay and reborrow at any time, and from
time to time, as provided in the Credit Agreement.
In the event of any default in the prompt and punctual payment, when due, of
this Note (or any installment hereof, whether of principal, interest, or
principal and interest), which default continues for ten (10) days after the due
date of such payment (provided that no more than two [2] payments in any twelve
(12) month period shall be thus in default for ten [10] days), or if any of the
makers or any guarantor hereof should become insolvent (as defined in the
Uniform Commercial Code), or if a petition in bankruptcy be filed by or against
any of the makers or any guarantor, or if a receiver be appointed for any part
of the property or assets of any of the makers or any guarantor, or if any
assignment for the benefit of creditors be made by any of the makers or any
guarantor, or if a judgment be entered against any of the makers or any
guarantor, or upon the issuance of any writ, levy, or process, valid or invalid,
which purports to restrict any of the makers or any guarantor with respect to
any of its or their funds or property on deposit with or in the possession or
custody or under the control of the Bank, or upon the dissolution, either
4
<PAGE> 5
voluntary or involuntary, of any of the makers or any guarantor, or in the event
of any default in the prompt and punctual payment when due, of any other
indebtedness or obligation to the Bank owed, now or hereafter, by any of the
makers or any guarantor (including, but not limited to, the Master Draw Note),
or upon any default in any security agreement, assignment or other security
document given, now or hereafter, to secure the indebtedness evidenced hereby,
or if any representation or warranty made by any of the undersigned, by any
guarantor or any of their officers or shareholders pertaining to this credit
shall prove to be false, untrue, or materially misleading, or upon any other
default under or described in the Security Agreement, the Credit Agreement or
any other document executed in connection herewith or therewith, then and in any
of such events, the entire principal and interest of this Note shall, without
notice or demand for payment (the same being expressly waived), be and become
immediately due and payable for all purposes, at the option of the Bank. Any
conflict between the provisions of this paragraph and the provisions of the
Credit Agreement concerning notice and cure periods shall be resolved in favor
of the provisions of the Credit Agreement.
Upon the occurrence of a default hereunder (as described in the immediately
preceding paragraph or otherwise) for which the holder hereof does not
accelerate the indebtedness evidenced hereby pursuant to the provisions of the
immediately preceding paragraph and for which the applicable default rate(s) of
interest set forth above is not being charged, including the failure of the
undersigned or any guarantor to provide the financial statements as required
under the Credit Agreement, the applicable interest rate set forth herein, for a
period beginning three (3) days after written notice of such event of default is
provided by the holder hereof to the undersigned and ending upon the curing of
said noticed event of default, shall increase one percent (1.0%) for the first
thirty (30) days of said event of default and increase an additional one percent
(1.0%) during each thirty (30) day period thereafter during which the noticed
event of default continues. Such default interest rates (in the immediately
preceding sentence) shall apply to the outstanding principal balance of this
Note; provided, however, that such interest rate shall not exceed the "default
rate" as such phrase is defined on page 3 of this Note. Upon the curing of the
noticed event of default, the interest rate hereunder shall revert to the
initially agreed upon interest rate, effective on the date on which the event of
default is cured.
Any money or other property at any time in the possession of the Bank belonging
to any of the makers or any guarantor and any deposits or other sums at any time
credited by or due from the Bank to any party liable hereon, may at all times,
at the option of the Bank, be held and treated as collateral security for the
payment of this Note or any other liability of any of the makers or any
guarantor, whether due or not due. The Bank may, at any time upon the occurrence
of an event of default hereunder and/or under the Security Agreement, the Credit
Agreement or any other document executed in connection herewith or therewith
(which continues beyond applicable grace, notice and cure periods), at its
option, and without further notice, set off the amount due or to become due
hereon against the claim of any of the makers against the Bank.
Regardless of any provisions contained herein, or in any other document executed
in connection herewith, the holder hereof shall never be entitled to receive,
collect, or apply as interest hereon, any amount in excess of the maximum
contract rate which may be lawfully charged by the holder hereof under
applicable law, and in the event the holder hereof ever receives, collects, or
applies
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<PAGE> 6
as interest, any such excess, such amount which would be excessive interest
shall be deemed a partial prepayment of principal and treated hereunder as such;
and, if the principal hereof is paid in full, any remaining excess shall
forthwith be paid to the undersigned. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the maximum lawful
contract rate, the undersigned and the holder hereof shall, to the maximum
extent permitted by applicable law, (a) characterize any non-principal payment
as a reasonable loan charge, rather than as interest; (b) exclude voluntary
prepayments and the effects thereof; and (c) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire
contemplated term hereof, so that the interest accrued or to accrue throughout
the entire term contemplated hereby shall at no time exceed the maximum lawful
contract rate.
This Note may be prepaid, in whole or in part, without premium or penalty. Any
such prepayment shall be applied first to interest accrued on the outstanding
principal balance and currently due and payable, and the remainder, if any,
shall be applied to reduce the outstanding principal balance of this Note. Any
such partial prepayment shall not have the effect of suspending or deferring the
payments herein provided for, but the same shall continue to be due and payable
on each due date subsequent to such prepayment.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING HEREUNDER OR UNDER THE CREDIT
AGREEMENT, THE SECURITY AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS NOTE, THE CREDIT AGREEMENT, THE SECURITY AGREEMENT, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING; AND THE UNDERSIGNED HEREBY AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THE CREDIT AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
This Note is to be governed by and interpreted in accordance with the laws of
the State of Tennessee, except to the extent that greater rights and/or
privileges are granted to the holder hereof under federal law, in which case
federal laws shall control.
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<PAGE> 7
LANDAIR SERVICES, INC.
By: __________________________
Scott M. Niswonger,
President
ATTEST:
______________________________
LANDAIR TRANSPORT, INC.
By: __________________________
Eddie R. Brown,
President
ATTEST:
______________________________
LANDAIR INTERNATIONAL AIRLINES,
INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
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<PAGE> 8
TRANSPORTATION PROPERTIES, INC.
previously known as "Landair
Properties, Inc.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
FORWARD AIR, INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
8
<PAGE> 1
Exhibit 10.2
THIRD AMENDMENT TO LINE OF CREDIT LOAN AGREEMENT AND
TO AMENDED AND RESTATED SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LINE OF CREDIT LOAN AGREEMENT AND TO AMENDED
AND RESTATED SECURITY AGREEMENT is made and entered into as of the 30th day of
January, 1998, by and between FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a
national banking association ("Bank"), LANDAIR SERVICES, INC., a Tennessee
corporation ("Borrower"), LANDAIR TRANSPORT, INC., a Tennessee corporation which
is a wholly owned subsidiary of Borrower ("LTI"), LANDAIR INTERNATIONAL
AIRLINES, INC., a Tennessee corporation which is a wholly owned subsidiary of
Borrower ("LIA"), TRANSPORTATION PROPERTIES, INC., previously known as "Landair
Properties, Inc.," a Tennessee corporation which is a wholly owned subsidiary of
Borrower ("LPI"), and FORWARD AIR, INC., a Tennessee corporation which is a
wholly owned subsidiary of Borrower ("FAI").
RECITALS
A. Bank and Borrower, LTI, LIA, LPI AND FAI (Borrower, LTI, LIA, LPI
and FAI sometimes referred to herein collectively as the "Borrowing Entities")
have entered into that certain Line of Credit Loan Agreement dated as of October
17, 1994, providing for a loan in the amount of Five Million Five Hundred
Thousand Dollars ($5,500,000.00) (the "Original Loan"), to fund operating
expenses and to cover any advances under letters of credit issued for the
benefit of creditors of the Borrowing Entities, and relating to Inventory and
other property of the Borrowing Entities (the "Original Loan Agreement").
B. Bank made the Original Loan to Borrower pursuant to various loan
documents, among them a promissory note dated as of October 17, 1994, in the
original principal amount of Five Million Five Hundred Thousand Dollars
($5,500,000.00) (the "Master Draw Note"), an amended and restated security
agreement securing the obligations of the Borrowing Entities with respect to the
Original Loan dated as of October 17, 1994, under which a security interest was
and is granted in the Collateral (the "Original Security Agreement"), and the
Original Loan Agreement.
C. Bank and the Borrowing Entities extended the maturity date set
forth in the Master Draw Note, increased the principal indebtedness which was
able to be drawn with respect to the aforesaid line of credit facility, and
modified other terms and provisions set forth in the Master Draw Note, in the
Original Loan Agreement and in the Original Security Agreement, by instruments
dated as of May 31, 1995. Such modifications to the Master Draw Note and the
outstanding indebtedness evidenced thereby were, as of May 31, 1995, set forth
in and evidenced by that certain Restated, Amended and Replacement Promissory
Note (the "Initial Replacement Note") dated as of May 31, 1995, executed by
Borrower, payable to the order of Bank, and in the
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<PAGE> 2
original principal amount of Fifteen Million Dollars ($15,000,000.00) (the
"Amended Loan"). Such modifications to the Original Loan Agreement and to the
Original Security Agreement were set forth in that certain First Amendment to
Line of Credit Loan Agreement and to Amended and Restated Security Agreement
(the "First Amendment") dated as of May 31, 1995, executed by the Borrowing
Entities and Bank.
D. Bank and the Borrowing Entities extended the maturity date set
forth in the Initial Replacement Note and modified other terms and provisions
set forth in the Initial Replacement Note and in the Original Loan Agreement and
the Original Security Agreement, as amended by the First Amendment, by
instruments dated as of January 28, 1997. Such modifications to the Initial
Replacement Note and the outstanding indebtedness evidenced thereby were, as of
January 28, 1997, set forth in and evidenced by that certain Restated, Amended
and Replacement Promissory Note (the "Second Replacement Note") dated as of
January 28, 1997, executed by the Borrowing Entities, payable to the order of
Bank, and in the original principal amount of Fifteen Million Dollars
($15,000,000.00) (the "New Loan"). Such modifications to the Original Loan
Agreement and to the Original Security Agreement, as amended by the First
Amendment, were set forth in that certain Second Amendment to Line of Credit
Loan Agreement and to Amended and Restated Security Agreement (the "Second
Amendment") dated as of January 28, 1997, executed by the Borrowing Entities and
Bank.
E. Bank and the Borrowing Entities have agreed to change the interest
rate in the Second Replacement Note and to modify other terms and provisions set
forth in the Second Replacement Note and in the Original Loan Agreement and the
Original Security Agreement, as amended by the First Amendment and the Second
Amendment. Such modifications to the Second Replacement Note are set forth in
and evidenced by that certain Restated, Amended and Replacement Promissory Note
(the "Third Replacement Note") of even date herewith executed by the Borrowing
Entities, payable to the order of Bank, and in the original principal amount of
Fifteen Million Dollars ($15,000,000.00) (the "Modified New Loan").
F. Bank and the Borrowing Entities desire (i) that the prompt and
punctual payment of the Second Replacement Note, as amended, restated and
replaced by the Third Replacement Note, be secured by the Original Loan
Agreement and the Original Security Agreement, as amended by the First Amendment
and the Second Amendment , in accordance with the terms thereof and hereof, and
(ii) to modify certain other provisions of the Original Loan Agreement and of
the Original Security Agreement, as amended by the First Amendment and the
Second Amendment, as set forth herein.
G. The Second Replacement Note, as amended, restated and replaced by
the Third Replacement Note, the Original Loan Agreement and the Original
Security Agreement, as amended by the First Amendment and the Second Amendment,
the First Amendment, the Second Amendment, this instrument, the Guaranties and
all other instruments executed in connection with the Original Loan, the Amended
Loan, the New Loan and the Modified New Loan are herein sometimes referred to
collectively as the "Loan Documents."
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<PAGE> 3
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and of the
agreements set out in this instrument, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. The foregoing RECITALS are agreed to by the parties and
incorporated by reference herein.
2. The Borrowing Entities have made and delivered the Third
Replacement Note to Bank, and Bank has accepted the same in accordance with the
provisions hereof and of the other Loan Documents.
3. The Loan Documents are hereby amended to include the following:
(a) The "Commitment Fee" as described and defined in the
first sentence in the third full paragraph on page 1 of the Original Loan
Agreement, as amended by the First Amendment and the Second Amendment, shall
continue to refer to the commitment fee outlined in the commitment letter for
the Amended Loan dated May 25, 1995, with respect to future advances under the
Third Replacement Note.
(b) The "Draw Certificates" form attached as Exhibit D to
the Original Loan Agreement, as amended by the First Amendment and the Second
Amendment, is replaced with the form attached hereto as Exhibit A.
(c) The "Equipment Note" and the "Master Draw Note" as
described and defined in Sections 1.15 and 1.26 of the Original Loan Agreement,
as amended by the First Amendment and the Second Amendment, shall now refer to
the promissory note of the Borrowing Entities of even date herewith, a copy of
which is attached hereto as Exhibit B. Similarly, the term "Committed Equipment
Loan Amount" in Section 1.26 of the Original Loan Agreement, as amended by the
First Amendment and the Second Amendment, shall continue to refer to the
principal amount of Fifteen Million Dollars ($15,000,000.00).
(d) The "Guaranties" as described and defined in Section
1.18 of the Original Loan Agreement and in Recital V of the Original Security
Agreement, as amended by the First Amendment, shall continue to refer to those
guaranty agreements dated May 31, 1995, copies of which were attached as
collective Exhibit C to the First Amendment, which shall remain in full force
and effect, it being understood and agreed, however, that the primary
obligations of the guarantors under said Exhibit C agreements with respect to
the Modified New Loan are as makers of the Third Replacement Note. All
obligations of each Borrowing Entity as a "guarantor" under any Guaranty shall
include all obligations of each and every Borrowing Entity under the Equipment
Note, the Line Note and all documents relating thereto (including this
instrument).
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<PAGE> 4
(e) The "Line Note" as described and defined in Section 1.23
of the Original Loan Agreement and which is described and defined as the "Note
in Recital II of the Original Security Agreement, as amended by the First
Amendment and the Second Amendment, shall now refer to the promissory note of
the Borrowing Entities of even date herewith attached hereto as Exhibit C, which
evidences the Modified New Loan.
(f) The "Loan Agreement" as described and defined in Section
1.25 of the Original Loan Agreement and in Recital I of the Original Security
Agreement, as amended by the First Amendment and the Second Amendment, shall now
refer to the Original Loan Agreement, as amended by the First Amendment and the
Second Amendment and as further amended by this instrument.
(g) The "Loan" as described and defined in Recital I of the
Original Security Agreement, as amended by the First Amendment and the Second
Amendment, shall now refer to the Modified New Loan.
(h) The "Security Agreement" as described and defined in
Section 1.35 of the Original Loan Agreement, as amended by the First Amendment
and the Second Amendment, shall now refer to the Original Security Agreement, as
amended by the First Amendment and the Second Amendment and as further amended
by this instrument.
(i) The "Stated Interest Rate" as described and defined in
Section 2.3(a) of the Original Loan Agreement, as amended by the First Amendment
and the Second Amendment, shall now refer to the lesser of the (1) Maximum Rate,
or (2) a rate equal to the LIBOR Rate plus one hundred thirty-five (135) Basis
Points expressed on a per annum basis, to be applicable to interest charges for
the period of time commencing on February 1, 1998, until the Termination Date.
The terms "LIBOR Rate" and "Basis Points" shall have the same meanings as given
and afforded to them in the Third Replacement Note.
(j) The "Termination Date" as described and defined in
Section 1.36 of the Original Loan Agreement, as amended by the First Amendment
and the Second Amendment, shall now refer to May 31, 1999, unless such date is
extended pursuant to the provisions of Section 9.12 of the Original Loan
Agreement, as amended by the First Amendment and the Second Amendment, in which
event such extended date shall be the Termination Date.
(k) The date "December 25, 1993" found in Sections 5.3(a)
and 5.3(b) of the Original Loan Agreement, as amended by the First Amendment and
the Second Amendment, shall continue as changed in the Second Amendment as
"December 31, 1996," and Borrower, LTI, LIA, LPI and FAI hereby confirm and
ratify the truth and accuracy of the representations and warranties made by them
in said Sections 5.3(a) and 5.3(b), as amended by the First Amendment and the
Second Amendment, with such change.
(l) The list of actions, suits and proceedings described in
Section 5.5 of the Original Loan Agreement and listed on Exhibit J to the
Original Loan Agreement, as amended by
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<PAGE> 5
the First Amendment and the Second Amendment, is hereby supplemented and
replaced by Exhibit D attached hereto, and Borrower, LTI, LIA, LPI and FAI
hereby confirm and ratify the representations and warranties made by them in
said Section 5.5, as amended by the First Amendment and the Second Amendment,
with such change.
(m) The amount "Twenty-Nine Million Dollars
($29,000,000.00)" found in Section 6.8 of the Original Loan Agreement, as
amended to "Thirty-One Million Dollars ($31,000,000.00)" in the First Amendment,
shall continue as changed in the Second Amendment as "Forty Million Dollars
($40,000,000.00) until fiscal year end 1997 for the Borrower," and to a
potentially higher (but not lower) number equal to "Forty Million Dollars
($40,000,000.00) plus seventy-five percent (75%) of after-tax profit in each
fiscal year of Borrower thereafter until payment in full of the principal of and
interest on the Borrower Loans," and Borrower, LTI, LIA, LPI and FAI hereby
confirm and ratify the truth and accuracy of the representations and warranties
made by them in said Section 6.8 with such changes.
(n) The amount "Five Hundred Thousand Dollars ($500,000.00)"
found in Section 6.9 of the Original Loan Agreement shall continue as changed in
the Second Amendment as "Two Million Five Hundred Thousand Dollars
($2,500,000.00)," and Borrower, LTI, LIA, LPI and FAI hereby confirm and ratify
the truth and accuracy of the representations and warranties made by them in
said Section 6.9 with such change.
(o) Section 6.10 of the Original Loan Agreement, as amended
by the First Amendment, remains as is, and Borrower, LTI, LIA, LPI and FAI
hereby covenant and agree that each of them will, from the date hereof until
payment in full of the principal of and interest on the Borrower Loans, maintain
the debt-to-equity ratio set forth in the First Amendment and otherwise satisfy
their covenants as set forth on Exhibit F to the First Amendment.
(p) Section 6.11 of the Original Loan Agreement remains as
is, and Borrower, LTI, LIA, LPI and FAI hereby covenant and agree that each of
them will, from the date hereof until payment in full of the principal of and
interest on the Borrower Loans, maintain the cash flow coverage ratio set forth
in said Section 6.11 of the Original Loan Agreement.
4. The Borrowing Entities each represent and warrant to Bank that the
RECITALS set forth above are true and correct in all material respects and all
representations and warranties to Bank given by any of them in any one or more
of the Loan Documents are true and correct as of the date hereof. Similarly,
Borrower, LTI, LIA, LPI and FAI hereby covenant and agree to fulfill all of
their obligations and agreements made in the Loan Documents. Each Borrowing
Entity agrees to pay directly, or reimburse Bank for, all reasonable expenses,
including the reasonable fees and expenses of legal counsel, incurred in
connection with the enforcement of any one or more of the Loan Documents and the
collection of any amounts owing by any of the Borrowing Entities with respect
thereto.
5. Notwithstanding any provisions of the Loan Documents or any prior
understanding or agreement of or by any one or more of the Borrowing Entities
with Bank, as of
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<PAGE> 6
the date of execution hereof, (a) the obligations of any one or more of the
Borrowing Entities under any one or more of the Loan Documents, including the
Guaranties, are intended to be secured by all the assets of each of the
Borrowing Entities now or hereafter owned by any one or more of the Borrowing
Entities and which assets are subject to the granting of a security interest
under the laws of the State of Tennessee or any other state where any of the
assets of any one or more of the Borrowing Entities may from time to time be
located and the federal laws of the United States of America (the "Pledged
Assets"), and in furtherance of the foregoing, each of the Borrowing Entities
hereby pledges and grants a security interest in all right, title and interest
of each of the Borrowing Entities in the Pledged Assets to and in favor of Bank,
and (b) each of the Borrowing Entities hereby jointly and severally, agrees to
pay and perform each and every obligation of payment and/or performance of any
other Borrowing Entity under any one or more of the Loan Documents.
6. Except as specifically modified hereby, the Loan Documents shall
remain in full force and effect, and the same are hereby ratified and confirmed
by the Borrowing Entities in all respects. In the events of any conflict between
any provisions of any one or more of the Loan Documents, the provisions most
favorable to Bank shall apply. This instrument is not intended to, and will not,
effect a novation of the indebtedness evidenced by the Second Replacement Note
outstanding as of the date the Second Replacement Note was amended, restated and
replaced by the Third Replacement Note, nor are the liens of the security
interests granted under the Original Security Agreement, as amended by the First
Amendment and the Second Amendment, intended to be released, altered, or changed
in any manner except as specifically stated herein. All capitalized terms not
otherwise defined herein shall have the same meanings as set forth in the
Original Loan Agreement, as amended by the First Amendment and the Second
Amendment.
7. As an inducement to Bank to make the Modified New Loan, (a) the
Borrowing Entities shall deliver, or cause to be delivered, to Bank the
following: (i) certified resolutions of the board of directors of each of the
Borrowing Entities authorizing this instrument and the other Modified New Loan
documents; (ii) an opinion of counsel and/or "certificate of general counsel"
and such other documentation, if any, as may be reasonably requested by Bank to
satisfy Bank that this instrument and the other Modified New Loan documents have
been duly authorized, executed and delivered on behalf of each Borrowing Entity,
and constitutes the valid and binding obligation of each of the Borrowing
Entities; (iii) appropriate UCC-1 or UCC-3 Financing Statements as necessary to
accomplish the purposes of this instrument; and (iv) UCC-11 lien searches as may
be required by Bank evidencing no liens or encumbrances on any of the Pledged
Assets of any of the Borrowing Entities except liens granted pursuant to the
Borrower Loans, and liens or encumbrances, if any, approved by Bank; (b) the
Borrowing Entities shall pay directly or reimburse Bank for all fees and
expenses, including, but not limited to, any and all filing fees, recording
fees, and reasonable expenses and fees of legal counsel, incurred in connection
with the preparation and enforcement of this instrument and other Modified New
Loan documents; and (c) each Borrowing Entity shall execute and deliver to Bank
all further documents and perform all other acts which Bank reasonably shall
deem necessary or appropriate to perfect or protect the lien and security
interests granted pursuant to the Borrower Loans.
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<PAGE> 7
IN WITNESS WHEREOF, this Third Amendment to Line of Credit Loan
Agreement and to Amended and Restated Security Agreement has been entered into
by the parties hereto as of the day and year first above written.
"BANK" "BORROWER"
FIRST TENNESSEE BANK NATIONAL LANDAIR SERVICES, INC.
ASSOCIATION
By: __________________________ By: ______________________
Name: _______________________ Scott M. Niswonger,
Title: ______________________ President
"LTI"
LANDAIR TRANSPORT, INC.
By: ______________________
Eddie R. Brown,
President
"LIA"
LANDAIR INTERNATIONAL
AIRLINES, INC.
By: ________________________
Bruce A. Campbell,
President
"LPI"
TRANSPORTATION PROPERTIES,
INC. previously known as
Landair Properties, Inc.
By: ________________________
Bruce A. Campbell,
President
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<PAGE> 8
"FAI"
FORWARD AIR, INC.
By: ________________________
Bruce A. Campbell,
President
8
<PAGE> 9
EXHIBIT A
THIRD AMENDED LINE OF CREDIT LOAN DRAW REQUEST
Number: ____________________
Date: _____________, 19___
Bank: First Tennessee Bank National Association
Borrower: Landair Services, Inc., Landair Transport, Inc., Landair
International Airlines, Inc., Transportation Properties, Inc.
previously known as "Landair Properties, Inc.," and Forward
Air, Inc.
Loan Amount: $15,000,000.00 Date of Loan: January 30, 1998
Amount Previously
Advanced or
Reserved for
Future Advance $__________________
Amount Remaining
for Disbursement $__________________
The Borrower requests (a) an advance of $_____________ to be made on
________________, 19__ for the payment and purposes shown on the attached
schedule, or (b) a letter of credit in the face amount of $______________, to be
issued on ________________, 19__, for the purposes and to the party shown on the
attached schedule. To induce the Bank to make the advance or to issue the letter
of credit, the undersigned does hereby certify as follows:
1. No Default exists or is imminent.
2. All previous advances and letters of credit have been used
strictly in conformity with the loan documents and the
representations contained in all prior draw requests.
3. No lien claims are asserted against the property which has
been pledged as collateral for the line of credit.
4. All representations and warranties made by the entities
constituting the Borrower in the loan documents are true, in
all material respects, as if made on this date.
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<PAGE> 10
5. By accepting the advance and/or the issuance of the letter
of credit, the Borrower certifies that all statements made
in this draw request are true as of the moment of the
advance and/or the issuance of the letter of credit.
6. Advance or Letter of Credit amount to be credited to Account
No. _____________.
Loan Amount $15,000,000.00
Previous Advances or Reserves
for Future Advances $_______________
This Advance or Letter of Credit
Amount $________________
Total Advances and Letters of
Credit Amounts Evidenced by
Line of Credit Note $________________
Amount Remaining for
Disbursement $________________
DATED: This ___ day of _______________, 19__.
"BORROWER":
LANDAIR SERVICES, INC.
By: __________________________________
Its: ________________________________
LANDAIR TRANSPORT, INC.
By: __________________________________
Its: ________________________________
10
<PAGE> 11
LANDAIR INTERNATIONAL AIRLINES, INC.
By: __________________________________
Its: _________________________________
TRANSPORTATION PROPERTIES, INC.
previously known as "Landair
Properties, Inc."
By: ___________________________________
Its: __________________________________
FORWARD AIR, INC.
By: ___________________________________
Its: __________________________________
Approved:
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:_______________________________________
Its: _____________________________________
DATE: ____________________________________
11
<PAGE> 1
Exhibit 10.3
RESTATED, AMENDED AND REPLACEMENT
PROMISSORY NOTE
(EQUIPMENT LOAN)
$15,000,000.00 Greeneville, Tennessee
As of January 30, 1998
FOR VALUE RECEIVED, the undersigned, each a Tennessee corporation, jointly and
severally promise to pay to the order of FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association having offices for the conduct of
business in Greene County, Tennessee (the "Bank") at its place of business in
Greeneville, Tennessee, with the mailing address of "206 North Main Street,
Greeneville, TN 37745, ATTN: Larry Estepp," or at such other place as the holder
hereof may designate in writing, in current local funds, the sum of Fifteen
Million Dollars ($15,000,000.00), or so much thereof as may be advanced by the
Bank in accordance with the terms and provisions of the Credit Agreement, plus
interest thereon or on so much as shall remain outstanding from time to time, as
set out below. This Note is referred to as the "Master Draw Note" in the Credit
Agreement.
This Note is made in replacement of a Fifteen Million Dollar ($15,000,000.00)
restated, amended and replacement promissory note made as of May 31, 1995, by
the undersigned Landair Services, Inc. and payable to the order of the Bank, the
outstanding principal balances of the Draw Notes existing as of this date
thereunder of which are Three Million Eight Hundred Forty-Six Thousand Five
Hundred Fifty-Four and 74/100 Dollars ($3,846,554.74) in the aggregate (the
"Original Principal"). Accordingly, the amount of principal available to be
drawn under this Note in accordance with the provisions of the Credit Agreement
is Eleven Million One Hundred Fifty- Three Thousand Four Hundred Forty-Five and
26/100 Dollars ($11,153,445.26) as of this day.
INTEREST ACCRUAL: Except during any period during which a default
interest rate shall be applicable as described below,
interest shall accrue at the variable rate per annum,
rounded upward, if necessary, to the nearest Basis
Point (the "Variable Rate"), equal to (a) the base
commercial rate of interest established from time to
time by the Bank ("Base Rate") minus three-quarters
of one percent (0.75%) per annum with respect to the
Original Principal, and (b) the LIBOR Rate plus one
hundred (100) Basis Points expressed on a per annum
basis with respect to all other principal
indebtedness advanced by the Bank hereunder. Each
change in the Variable Rate that results from a
change in the Base Rate shall become effective
without notice to the undersigned on the same date
that the Base Rate changes. Each change in the
Variable Rate that results from a change in the LIBOR
Rate shall become effective on each adjustment date
which shall occur on the first day of each month
commencing February 1, 1998.
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<PAGE> 2
Interest shall be calculated based upon and computed
on a three hundred sixty (360) day year.
INTEREST AND PRINCIPAL PAYMENTS: The undersigned shall make
payments of principal and interest (the "Amortized
Payments") on the 10th day of each month, and the
amount of each Amortized Payment shall be calculated
and based upon the amortization schedules described
in the Credit Agreement and equal to the aggregate of
the monthly payments under the Draw Notes which
evidence or will evidence each disbursement hereunder
(and, correspondingly, each disbursement under the
Credit Agreement). All unpaid principal and interest
evidenced hereby shall be due and payable on the
maturity date hereof, which shall be May 31, 2002.
LIBOR RATE DEFINITIONS: As used in this Note, the following terms
shall have the following meanings:
(a) Basis Point: One-hundredth (1/100) of one percent
(1.0%) per annum.
(b) Business Day: Any day other than a Saturday,
Sunday, holiday or other day on which state-chartered
commercial banking institutions in Greeneville,
Tennessee are authorized by law to be closed.
(c) LIBOR Business Day: A Business 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 Bank in its sole discretion acting in
good faith.
(d) LIBOR Interest Period: With respect to all
principal indebtedness advanced by the Bank hereunder
other than the Original Principal, one (1) month
periods, each period commencing on the date of Bank's
funding or on the last day of the preceding
applicable period, as the case may be; provided that
the foregoing provisions relating to LIBOR Interest
Period are subject to the following:
(i) if any LIBOR Interest period would
otherwise end on a day that is not a LIBOR
Business Day, that LIBOR Interest Period
shall be extended to the next succeeding
LIBOR Business Day unless the results of
such extension would be to carry such LIBOR
Interest Period into another calendar month,
in which event such LIBOR Interest Period
shall end on the immediately preceding LIBOR
Business Day;
2
<PAGE> 3
(ii) any LIBOR Interest Period that begins
on the last LIBOR 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 LIBOR
Interest Period) shall end on the last LIBOR
Business Day of a calendar month; and
(iii) any LIBOR Interest Period that would
otherwise extend beyond the maturity of this
Note shall end on the maturity date of this
Note.
(e) LIBOR Rate: During any LIBOR Interest Period, an
interest rate per annum equal to the quotient
(converted to a percentage) of (i) the rate per annum
as determined and calculated by the Bank at or about
9:00 o'clock A.M. (Eastern Time) (or as soon
thereafter as practicable) on the second Business Day
prior to the first day of each LIBOR Interest Period,
to be the average of interbank offered rates for
dollar deposits in the London market based on
quotations at five (5) major banks, for thirty (30)
days or one (1) month deposits, as most recently
published in the Wall Street Journal, "Money Rates
Section" under the category "London Interbank Offered
Rates (LIBOR)," divided by (ii) 1.00 minus the LIBOR
Reserve Requirement (as defined below), expressed as
a decimal, for such LIBOR Interest Period. If such
rate ceases to be published in the Wall Street
Journal, the LIBOR Rate shall be the London Rate
Eurodollar 30-day or One Month Index as published in
the Wall Street Journal. "LIBOR Reserve Requirement"
shall mean for any day during a LIBOR Interest
Period, that percentage which is specified by the
Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve
requirement (including, but not limited to, any
marginal reserve requirement) for the Bank with
respect to liabilities consisting of or including
"Eurocurrency liabilities" (as defined in Regulation
D of the Board of Governors of the Federal Reserve
System) with a maturity equal to such LIBOR Interest
Period. In determining the percentage, the Bank may
use any reasonable averaging and attribution methods.
Each determination by Bank of a LIBOR Rate or of the
LIBOR Reserve Requirement used in determining same
shall be conclusive and binding, absent manifest
error.
SECURITY: This Note is secured by a lien on certain property and
equipment described in a Security Agreement dated
October 17, 1994, as amended by instruments dated
October 20, 1994, December 23, 1994, May 24, 1995,
May 31, 1995, December 22, 1995, and of even date
herewith (collectively, the "Security Agreement")
among the Bank and the undersigned, corresponding UCC
Financing Statements, and guaranty agreements of
certain of the undersigned.
3
<PAGE> 4
OTHER TERMS AND CONDITIONS: Unless otherwise provided herein, all payments shall
be applied to pay the accrued interest and to the unpaid principal of the
indebtedness in accordance with the terms and provisions of the Draw Notes.
All capitalized terms not otherwise defined herein shall have the same meanings
as set forth in the Credit Agreement.
Any payment not made when due hereunder (whether by acceleration or otherwise)
shall bear interest at the "default rate" which is herein calculated as the
lesser of the Bank's Base Rate plus four percent (4.0%) per annum or the maximum
effective contract rate of interest which the Bank may lawfully charge on the
date such payment became due. As used herein, the Bank's "Base Rate" is the base
commercial rate of interest established from time to time by the Bank and which
need not be the lowest rate of interest then available to its best commercial
customers.
If this Note is placed in the hands of an attorney for collection, by suit or
otherwise, or to protect any security given for its payment, or to enforce its
collection, the undersigned will pay all the costs of collection and litigation,
together with a reasonable attorney's fee, all of which shall be secured by any
collateral pledged as security hereof.
The makers and any endorsers or guarantors hereof waive protest, demand,
presentment, and notice of dishonor, and agree that this Note may be extended,
in whole or in part, without limit as to the number of such extensions, or the
period or periods thereof, and without notice to or further assent from them or
any other party liable hereon, all of whom will remain bound upon this Note
notwithstanding any such extension(s); and further agree that all or any
collateral given, now or hereafter, as security herefor may be released (with or
without substitution) without notice and without affecting their liability
hereon; and that additional makers, endorsers, guarantors, or sureties may
become parties hereto and that any present or future party may be released from
liability hereunder, without notice, and without affecting the liability of any
other maker, endorser, or guarantor.
This Note is issued and executed pursuant to and in connection with a Loan
Agreement dated October 17, 1994, as amended by instruments dated October 20,
1994, December 23, 1994, May 24, 1995, May 31, 1995, January 28, 1997, and of
even date herewith among the Bank and the undersigned (collectively, the "Credit
Agreement"), and the holder hereof is entitled to the benefits of such Credit
Agreement and may disburse loan proceeds and may exercise the remedies and
rights provided therein, all in accordance with the terms of the Credit
Agreement. In connection with the immediately preceding sentence, this Note
evidences a revolving credit loan and, provided that no event of default
hereunder as described in the next paragraph hereof exists, the undersigned may
borrow, repay and reborrow at any time, and from time to time during the period
of time commencing on the date hereof and ending on May 31, 1999, as provided in
the Credit Agreement. After May 31, 1999, the revolving credit aspect of this
Note shall be of no effect and the indebtedness evidenced hereby shall be repaid
in accordance with the other provisions hereof and the amortization schedules
described in the Credit Agreement.
4
<PAGE> 5
In the event of any default in the prompt and punctual payment, when due, of
this Note (or any installment hereof, whether of principal, interest, or
principal and interest, including installments due under the Draw Notes), which
default continues for ten (10) days after the due date of such payment (provided
that no more than two [2] payments in any twelve (12) month period shall be thus
in default for ten [10] days), or if any of the makers or any guarantor hereof
should become insolvent (as defined in the Uniform Commercial Code), or if a
petition in bankruptcy be filed by or against any of the makers or any
guarantor, or if a receiver be appointed for any part of the property or assets
of any of the makers or any guarantor, or if any assignment for the benefit of
creditors be made by any of the makers or any guarantor, or if a judgment be
entered against any of the makers or any guarantor, or upon the issuance of any
writ, levy, or process, valid or invalid, which purports to restrict any of the
makers or any guarantor with respect to any of its or their funds or property on
deposit with or in the possession or custody or under the control of the Bank,
or upon the dissolution, either voluntary or involuntary, of any of the makers
or any guarantor, or in the event of any default in the prompt and punctual
payment when due, of any other indebtedness or obligation to the Bank owed, now
or hereafter, by any of the makers or any guarantor (including, but not limited
to, the Draw Notes and the Line Note), or upon any default in any security
agreement, assignment or other security document given, now or hereafter, to
secure the indebtedness evidenced hereby, or if any representation or warranty
made by any of the undersigned, by any guarantor or any of their officers or
shareholders pertaining to this credit shall prove to be false, untrue, or
materially misleading, or upon any other default under or described in the
Security Agreement, the Credit Agreement or any other document executed in
connection herewith or therewith, then and in any of such events, the entire
principal and interest of this Note (and, therefor, of all of the Draw Notes)
shall, without notice or demand for payment (the same being expressly waived),
be and become immediately due and payable for all purposes, at the option of the
Bank. Any conflict between the provisions of this paragraph and the provisions
of the Credit Agreement or the Draw Notes concerning notice and cure periods
shall be resolved in favor of the provisions of the Credit Agreement.
Upon the occurrence of a default hereunder (as described in the immediately
preceding paragraph or otherwise) for which the holder hereof does not
accelerate the indebtedness evidenced hereby pursuant to the provisions of the
immediately preceding paragraph and for which the applicable default rate(s) of
interest set forth above is not being charged, including the failure of any of
the undersigned or any guarantor to provide the financial statements as required
under the Credit Agreement, the applicable interest rate set forth herein, for a
period beginning three (3) days after written notice of such event of default is
provided by the holder hereof to the undersigned and ending upon the curing of
said noticed event of default, shall increase one percent (1.0%) for the first
thirty (30) days of said event of default and increase an additional one percent
(1.0%) during each thirty (30) day period thereafter during which the noticed
event of default continues. Such default interest rates (in the immediately
preceding sentence) shall apply to the outstanding principal balance of this
Note; provided, however, that such interest rate shall not exceed the "default
rate" as such phrase is defined on page 3 of this Note. Upon the curing of the
noticed event of default, the interest rate hereunder shall revert to the
initially agreed upon interest rate, effective on the date on which the event of
default is cured.
5
<PAGE> 6
Any money or other property at any time in the possession of the Bank belonging
to any of the makers or any guarantor and any deposits or other sums at any time
credited by or due from the Bank to any party liable hereon, may at all times,
at the option of the Bank, be held and treated as collateral security for the
payment of this Note or any other liability of any of the makers or any
guarantor, whether due or not due. The Bank may, at any time upon the occurrence
of an event of default hereunder and/or under the Security Agreement, the Credit
Agreement or any other document executed in connection herewith or therewith
(which continues beyond applicable grace, notice and cure periods), at its
option, and without further notice, set off the amount due or to become due
hereon against the claim of any of the makers against the Bank.
Regardless of any provisions contained herein, or in any other document executed
in connection herewith, the holder hereof shall never be entitled to receive,
collect, or apply as interest hereon, any amount in excess of the maximum
contract rate which may be lawfully charged by the holder hereof under
applicable law, and in the event the holder hereof ever receives, collects, or
applies as interest, any such excess, such amount which would be excessive
interest shall be deemed a partial prepayment of principal and treated hereunder
as such; and, if the principal hereof is paid in full, any remaining excess
shall forthwith be paid to the undersigned. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the maximum
lawful contract rate, the undersigned and the holder hereof shall, to the
maximum extent permitted by applicable law, (a) characterize any non-principal
payment as a reasonable loan charge, rather than as interest; (b) exclude
voluntary prepayments and the effects thereof; and (c) amortize, prorate,
allocate, and spread, in equal parts, the total amount of interest throughout
the entire contemplated term hereof, so that the interest accrued or to accrue
throughout the entire term contemplated hereby shall at no time exceed the
maximum lawful contract rate.
This Note may be prepaid, in whole or in part, without premium or penalty. Any
such prepayment shall be applied first to interest accrued on the outstanding
principal balance and currently due and payable, and the remainder, if any,
shall be applied to reduce the outstanding principal balance of this Note. Any
such partial prepayment shall not have the effect of suspending or deferring the
payments herein provided for, but the same shall continue to be due and payable
on each due date subsequent to such prepayment.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING HEREUNDER OR UNDER THE CREDIT
AGREEMENT, THE SECURITY AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS NOTE, THE CREDIT AGREEMENT, THE SECURITY AGREEMENT, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING; AND THE UNDERSIGNED HEREBY AGREE AND CONSENT
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
6
<PAGE> 7
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THE CREDIT AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
This Note is to be governed by and interpreted in accordance with the laws of
the State of Tennessee, except to the extent that greater rights and/or
privileges are granted to the holder hereof under federal law, in which case
federal laws shall control.
LANDAIR SERVICES, INC.
By: __________________________
Scott M. Niswonger,
President
ATTEST:
______________________________
LANDAIR TRANSPORT, INC.
By: __________________________
Eddie R. Brown,
President
ATTEST:
______________________________
LANDAIR INTERNATIONAL AIRLINES,
INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
7
<PAGE> 8
TRANSPORTATION PROPERTIES, INC.
previously known as "Landair
Properties, Inc.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
FORWARD AIR, INC.
By: __________________________
Bruce A. Campbell,
President
ATTEST:
______________________________
8
<PAGE> 1
Exhibit 10.4
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENTS
THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENTS is made and
entered into as of the 30th day of January, 1998, by and between FIRST TENNESSEE
BANK NATIONAL ASSOCIATION, a national banking association ("Bank"), LANDAIR
SERVICES, INC., a Tennessee corporation ("Borrower"), LANDAIR TRANSPORT, INC., a
Tennessee corporation which is a wholly owned subsidiary of Borrower ("LTI"),
LANDAIR INTERNATIONAL AIRLINES, INC., a Tennessee corporation which is a wholly
owned subsidiary of Borrower ("LIA"), TRANSPORTATION PROPERTIES, INC.,
previously known as "Landair Properties, Inc.," a Tennessee corporation which is
a wholly owned subsidiary of Borrower ("LPI"), and FORWARD AIR, INC., a
Tennessee corporation which is a wholly owned subsidiary of Borrower ("FAI").
RECITALS
A. Bank, Borrower, LTI and LIA have entered into that
certain Loan Agreement dated as of October 17, 1994, providing for a loan in the
amount of Eleven Million One Hundred Fifty-Two Thousand Dollars ($11,152,000.00)
(the "Loan"), to finance the acquisition of equipment for use in the Borrower's
operations and in the operations of LTI and LIA (the "Loan Agreement").
B. Bank has made the Loan to Borrower pursuant to various
loan documents, among them a promissory note dated as of October 17, 1994, in
the original principal amount of Eleven Million One Hundred Fifty-Two Thousand
Dollars ($11,152,000.00) (the "Master Draw Note"), a security agreement securing
the obligations of Borrower, LTI and LIA with respect to the Loan dated as of
October 17, 1994, under which a security interest was and is granted in the
aforesaid equipment (the "Security Agreement"), and the Loan Agreement. The
Master Draw Note, the Security Agreement, the Loan Agreement and all other
instruments executed in connection with the Loan, as now amended or as may be
amended hereafter, are herein referred to collectively as the "Loan Documents."
The equipment and other personal property in which a security interest was, is
and may be hereafter, granted under the Security Agreement, as amended, are
herein collectively referred to as the "Property."
C. LTI acquired and purchased additional equipment which was
paid for by Loan proceeds as of October 20, 1994, as evidenced by a draw note
and a first amendment to the Loan Agreement and to the Security Agreement, all
dated as of October 20, 1994.
D. LTI acquired and purchased other additional equipment
which was paid for by Loan proceeds as of December 23, 1994, as evidenced by a
draw note and a second amendment to the Loan Agreement and to the Security
Agreement, all dated as of December 23, 1994.
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<PAGE> 2
E. LTI acquired and purchased other additional equipment
which was paid for by Loan proceeds as of May 24, 1995, as evidenced by a draw
note and a third amendment to the Loan Agreement and to the Security Agreement,
all dated as of May 24, 1995.
F. Bank, Borrower, LTI and LIA have previously and further
amended certain other provisions of the Loan, the Master Draw Note, the Loan
Agreement and the Security Agreement as evidenced by an amended, restated and
replacement promissory note dated as of May 31, 1995, in the original principal
amount of Fifteen Million Dollars ($15,000,000.00) which amended, restated and
replaced the Master Draw Note (the "Replacement Note"), and as also evidenced by
a fourth amendment to the Loan Agreement and to the Security Agreement and
related loan modification documents, all dated as of May 31, 1995.
G. LTI acquired and purchased additional equipment which was
paid for by loan proceeds evidenced by the Replacement Note as of December 22,
1995, as evidenced by a draw note and a fifth amendment to the Loan Agreement
and to the Security Agreement, all dated as of December 22, 1995.
H. Bank and Borrower, LTI, LIA, LPI and FAI (the "Borrowing
Entities") have agreed to extend the revolving credit period set forth in the
Replacement Note and to modify other terms and provisions set forth in the
Replacement Note and in the Loan Agreement and the Security Agreement, as
previously amended by those amendment instruments described above. Such
modifications to the Replacement Note are set forth in and evidenced by that
certain restated, amended and replacement promissory note (the "Second
Replacement Note") of even date herewith executed by the Borrowing Entities,
payable to the order of Bank, and in the original principal amount of Fifteen
Million Dollars ($15,000,000.00) (the "New Loan").
I. Bank and the Borrowing Entities desire (i) that the
prompt and punctual payment of the Replacement Note, as amended, restated and
replaced by the Second Replacement Note, be secured by the Loan Agreement and
the Security Agreement, as amended by those amendment instruments described
above, in accordance with the terms thereof and hereof, and (ii) to modify
certain other provisions of the Loan Agreement and of the Security Agreement, as
amended by those amendment instruments described above, as set forth herein.
J. The Replacement Note, as amended, restated and replaced
by the Second Replacement Note, the Loan Agreement and the Security Agreement,
as amended by those amendment instruments described above, this instrument, the
Guaranties and all other instruments executed in connection with the Loan, as
previously amended, and the New Loan are herein sometimes referred to
collectively as the "Loan Documents."
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and of the
agreements set out in this instrument, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
2
<PAGE> 3
1. The foregoing RECITALS are agreed to by the parties and
incorporated by reference herein.
2. The Borrowing Entities have made and delivered the Second
Replacement Note to Bank, and Bank has accepted the same in accordance with the
provisions hereof and of the other Loan Documents.
3. The Loan Documents are hereby amended to include the following:
(a) The "Aircraft Security Agreement" as described and
defined in Section 1(a) of the Security Agreement shall now refer to the
Aircraft Security Agreement as so defined as amended by second amendment
instrument thereto dated May 31, 1995, and by third amendment instrument thereto
of even date herewith.
(b) The "Committed Amount" as described and defined on page
1 of the Loan Agreement, as amended by those amendment instruments described
above, shall refer to the New Loan amount.
(c) The "Guaranties" as described and defined in Section
1.13 of the Loan Agreement and in Recital III of the Security Agreement shall
continue to refer to those guaranty agreements dated May 31, 1995, copies of
which were attached as collective Exhibit B to the fourth amendment dated May
31, 1995, which shall remain in full force and effect, it being understood and
agreed, however, that the primary obligations of the guarantors under said
Exhibit B agreements with respect to the New Loan are as makers of the Second
Replacement Note. All obligations of each Borrowing Entity as a "guarantor"
under any Guaranty shall include all obligations of each and every Borrowing
Entity under the Master Draw Note, the Line Note and all documents relating
thereto (including this instrument).
(d) The "Line Note" as described and defined in Section 1.19
of the Loan Agreement shall now refer to the promissory note of the Borrowing
Entities of even date herewith attached hereto as Exhibit A.
(e) The "Loan Agreement" as described and defined in Section
1.20 of the Loan Agreement and in Recital V of the Security Agreement shall now
refer to the Loan Agreement, as amended by the amendment documents dated October
20, 1994, December 23, 1994, May 24, 1995, May 31, 1995, December 22, 1995, and
as further amended by this instrument.
(f) The "Loan" as described and defined in Recital I of the
Security Agreement, as amended by those amendment instruments described above,
shall now refer to the New Loan.
(g) The "Master Draw Note" as described and defined in
Section 1.22 of the Loan Agreement and in Recital II of the Security Agreement
shall now refer to the promissory note of the Borrowing Entities of even date
herewith attached hereto as Exhibit B, which evidences the New Loan.
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<PAGE> 4
(h) The "Security Agreement" as described and defined in
Section 1.31 of the Loan Agreement shall now refer to the Security Agreement, as
amended by the amendment documents dated October 20, 1994, December 23, 1994,
May 24, 1995, May 31, 1995, December 22, 1995, and as further amended by this
instrument.
(i) The "Stated Interest Rate" as described and defined in
Section 2.3(a) of the Loan Agreement, as amended by those amendment instruments
described above, shall now, with respect to all Draw Notes executed on this day
and hereafter and the indebtedness evidenced thereby, refer to the lesser of the
(1) Maximum Rate, or (2) a per annum rate equal to (i) one hundred (100) "Basis
Points" greater than (ii) the "LIBOR Rate" as such terms are defined in the
Second Replacement Note. The "Stated Interest Rate" as described and defined in
Section 2.3(a) of the Loan Agreement shall, with respect to existing Draw Notes
and the indebtedness evidenced thereby other than the Aircraft Draw Note which
shall continue to bear interest at the fixed rate set forth therein, continue to
have the meaning and definition set forth in Section 2.3(a) of the Loan
Agreement, as previously amended with respect thereto.
(j) The date "December 25, 1993" found in Sections 5.3(a)
and 5.3(b) of the Loan Agreement, as amended by those amendment instruments
described above, is hereby changed to "December 31, 1996," and Borrower, LTI,
LIA, LPI and FAI hereby confirm and ratify the truth and accuracy of the
representations and warranties made by them in said Sections 5.3(a) and 5.3(b),
as amended by those amendment instruments described above, with such change.
(k) The list of actions, suits and proceedings described in
Section 5.5 of the Loan Agreement and listed on Exhibit I to the Loan Agreement,
as amended by those amendment instruments described above, is hereby
supplemented and replaced by Exhibit C attached hereto, and Borrower, LTI, LIA,
LPI and FAI hereby confirm and ratify the representations and warranties made by
them in said Section 5.5, as amended by those amendment instruments described
above, with such change.
(l) The amount "Twenty-Nine Million Dollars
($29,000,000.00)" found in Section 6.8 of the Loan Agreement, as previously
amended to "Thirty-One Million Dollars ($31,000,000.00)" in the those amendment
instruments described above, is hereby changed to "Forty Million Dollars
($40,000,000.00) until fiscal year end 1997 for the Borrower," and to a
potentially higher (but not lower) number equal to "Forty Million Dollars
($40,000,000.00) plus seventy-five percent (75%) of after-tax profit in each
fiscal year of Borrower thereafter until payment in full of the principal of and
interest on the Borrower Loans," and Borrower, LTI, LIA, LPI and FAI hereby
confirm and ratify the truth and accuracy of the representations and warranties
made by them in said Section 6.8 with such changes.
(m) Section 6.10 of the Loan Agreement, as amended by the
those amendment instruments described above, remains as amended by the fourth
amendment instrument dated May 31, 1995, and Borrower, LTI, LIA, LPI and FAI
hereby covenant and agree that each of them will, from the date hereof until
payment in full of the principal of and interest on the Borrower
4
<PAGE> 5
Loans, maintain the debt-to-equity ratio set forth in said fourth amendment and
otherwise satisfy their covenants as set forth on Exhibit F to said fourth
amendment.
4. The Borrowing Entities each represent and warrant to Bank that the
RECITALS set forth above are true and correct in all material respects and all
representations and warranties to Bank given by any of them in any one or more
of the Loan Documents are true and correct as of the date hereof. Similarly,
Borrower, LTI, LIA, LPI and FAI hereby covenant and agree to fulfill all of
their obligations and agreements made in the Loan Documents. Each Borrowing
Entity agrees to pay directly, or reimburse Bank for, all reasonable expenses,
including the reasonable fees and expenses of legal counsel, incurred in
connection with the enforcement of any one or more of the Loan Documents and the
collection of any amounts owing by any of the Borrowing Entities with respect
thereto.
5. Notwithstanding any provisions of the Loan Documents or any prior
understanding or agreement of or by any one or more of the Borrowing Entities
with Bank, as of the date of execution hereof, (a) the obligations of any one or
more of the Borrowing Entities under any one or more of the Loan Documents,
including the Guaranties, are intended to be secured by all the assets of each
of the Borrowing Entities now or hereafter owned by any one or more of the
Borrowing Entities and which assets are subject to the granting of a security
interest under the laws of the State of Tennessee or any other state where any
of the assets of any one or more of the Borrowing Entities may from time to time
be located and the federal laws of the United States of America (the "Pledged
Assets"), and in furtherance of the foregoing, each of the Borrowing Entities
hereby pledges and grants a security interest in all right, title and interest
of each of the Borrowing Entities in the Pledged Assets to and in favor of Bank,
and (b) each of the Borrowing Entities hereby jointly and severally, agrees to
pay and perform each and every obligation of payment and/or performance of any
other Borrowing Entity under any one or more of the Loan Documents.
6. Except as specifically modified hereby, the Loan Documents shall
remain in full force and effect, and the same are hereby ratified and confirmed
by the Borrowing Entities in all respects. In the event of any conflict between
any provisions of any one or more of the Loan Documents, the provisions most
favorable to Bank shall apply. This instrument is not intended to, and will not,
effect a novation of the indebtedness evidenced by the Replacement Note
outstanding as of the date the Replacement Note was amended, restated and
replaced by the Second Replacement Note, nor are the liens of the security
interests granted under the Security Agreement, as amended by the amendment
instruments described above, intended to be released, altered, or changed in any
manner except as specifically stated herein. All capitalized terms not otherwise
defined herein shall have the same meanings as set forth in the Loan Agreement,
as previously amended by the amendment instruments described above.
7. As an inducement to Bank to make the New Loan, (a) the Borrowing
Entities shall deliver, or cause to be delivered, to Bank the following: (i)
certified resolutions of the board of directors of each of the Borrowing
Entities authorizing this instrument and the other New Loan documents; (ii) an
opinion of counsel and/or "certification of general counsel" and such other
5
<PAGE> 6
documentation, if any, as may be reasonably requested by Bank to satisfy Bank
that this instrument and the other New Loan documents have been duly authorized,
executed and delivered on behalf of each Borrowing Entity, and constitutes the
valid and binding obligation of each of the Borrowing Entities; (iii)
appropriate UCC-1 or UCC-3 Financing Statements as necessary to accomplish the
purposes of this instrument; and (iv) UCC-11 lien searches as may be required by
Bank evidencing no liens or encumbrances on any of the Pledged Assets of any of
the Borrowing Entities except liens granted pursuant to the Borrower Loans, and
liens or encumbrances, if any, approved by Bank; (b) the Borrowing Entities
shall pay directly or reimburse Bank for all fees and expenses, including, but
not limited to, any and all filing fees, recording fees, and reasonable expenses
and fees of legal counsel, incurred in connection with the preparation and
enforcement of this instrument and other New Loan documents; and (c) each
Borrowing Entity shall execute and deliver to Bank all further documents and
perform all other acts which Bank reasonably shall deem necessary or appropriate
to perfect or protect the lien and security interests granted pursuant to the
Borrower Loans.
IN WITNESS WHEREOF, this Sixth Amendment to Loan and Security
Agreements has been entered into by the parties hereto as of the day and year
first above written.
"BANK" "BORROWER"
FIRST TENNESSEE BANK NATIONAL LANDAIR SERVICES, INC.
ASSOCIATION
By: __________________________ By: ______________________
Name: ____________________ Scott M. Niswonger,
Title: ___________________ President
"LTI"
LANDAIR TRANSPORT, INC.
By: ______________________
Eddie R. Brown,
President
6
<PAGE> 7
"LIA"
LANDAIR INTERNATIONAL
AIRLINES, INC.
By: ______________________
Bruce A. Campbell,
President
"LPI"
TRANSPORTATION PROPERTIES,
INC. previously known as
Landair Properties, Inc.
By: ______________________
Bruce A. Campbell,
President
"FAI"
FORWARD AIR, INC.
By: ______________________
Bruce A. Campbell,
President
7
<PAGE> 1
Exhibit 10.5
SEVENTH AMENDMENT TO LOAN AND
SECURITY AGREEMENTS
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENTS is
made and entered into as of the 30th day of January, 1998, by and between FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association ("Bank"),
LANDAIR SERVICES, INC., a Tennessee corporation ("Borrower"), LANDAIR TRANSPORT,
INC., a Tennessee corporation which is a wholly owned subsidiary of Borrower
("LTI"), LANDAIR INTERNATIONAL AIRLINES, INC., a Tennessee corporation which is
a wholly owned subsidiary of Borrower ("LIA"), TRANSPORTATION PROPERTIES, INC.,
a Tennessee corporation which is a wholly owned subsidiary of Borrower ("TPI"),
and FORWARD AIR, INC., a Tennessee corporation which is a wholly owned
subsidiary of Borrower ("FAI").
RECITALS
A. Bank, Borrower, LTI and LIA have entered into that certain Loan
Agreement dated as of October 17, 1994, providing for a loan in the amount of
Eleven Million One Hundred Fifty-Two Thousand Dollars ($11,152,000.00) (the
"Loan"), to finance the acquisition of equipment for use in the Borrower's
operations and in the operations of LTI and LIA (the "Loan Agreement").
B. Bank has made the Loan to Borrower pursuant to various loan
documents, among them a promissory note dated as of October 17, 1994, in the
original principal amount of Eleven Million One Hundred Fifty-Two Thousand
Dollars ($11,152,000.00) (the "Master Draw Note"), a security agreement securing
the obligations of Borrower, LTI and LIA with respect to the Loan dated as of
October 17, 1994, under which a security interest was and is granted in the
aforesaid equipment (the "Security Agreement"), and the Loan Agreement. The
Master Draw Note, the Security Agreement, the Loan Agreement and all other
instruments executed in connection with the Loan are herein referred to as the
"Loan Documents." The equipment and other personal property in which a security
interest was and is granted under the Security Agreement are herein referred to
as the "Property."
C. LTI acquired and purchased additional equipment which was paid for
by Loan proceeds as of October 20, 1994, as evidenced by a draw note and a first
amendment to the Loan Agreement and to the Security Agreement, all dated as of
October 20, 1994.
D. LTI acquired and purchased other additional equipment which was
paid for by Loan proceeds as of December 23, 1994, as evidenced by a draw note
and a second amendment to the Loan Agreement and to the Security Agreement, all
dated as of December 23, 1994.
1
<PAGE> 2
E. LTI acquired and purchased other additional equipment which was
paid for by Loan proceeds as of May 24, 1995, as evidenced by a draw note and a
third amendment to the Loan Agreement and to the Security Agreement, all dated
as of May 24, 1995.
F. Bank, Borrower, LTI and LIA have previously and further amended
certain other provisions of the Loan, the Master Draw Note, the Loan Agreement
and the Security Agreement as evidenced by an amended, restated and replacement
promissory note dated as of May 31, 1995, in the original principal amount of
Fifteen Million Dollars ($15,000,000.00) which amended, restated and replaced
the Master Draw Note (the "Replacement Note"), and as also evidenced by a fourth
amendment to the Loan Agreement and to the Security Agreement and related loan
modification documents, all dated as of May 31, 1995.
G. LTI has acquired and purchased additional equipment which was paid
for by loan proceeds evidenced by the Replacement Note as of December 22, 1995,
as evidenced by a draw note and a fifth amendment to the Loan Agreement and to
the Security Agreement, all dated as of December 22, 1995.
H. Bank, Borrower, LTI, LIA, TPI and FAI have previously and further
amended certain other provisions of the Loan, the Replacement Note, the Loan
Agreement and the Security Agreement as evidenced by an amended, restated and
replacement promissory note dated as of January 30, 1998, in the original
principal amount of Fifteen Million Dollars ($15,000,000.00) which amended,
restated and replaced the Replacement Note (the "Current Replacement Note"), and
as also evidenced by a sixth amendment to the Loan Agreement and to the Security
Agreement and related loan modification documents, all dated as of January 30,
1998.
I. LTI has acquired and purchased additional equipment (the
"Additional Property"), to be paid for by loan proceeds evidenced by the Current
Replacement Note as of this date and the parties hereto desire to further amend
and supplement the definition of "Collateral" as set forth in the Security
Agreement, as amended previously, to include the Additional Property.
J. In conjunction with the preceding Recital I, the Borrower and LTI,
in connection with the Additional Property, have made and executed a draw note
of even date herewith in the original principal amount of One Million Seven
Hundred Eighty-Seven Thousand Four Hundred Thirty-Two Dollars ($1,787,432.00)
(the "New Draw Note"), the proceeds of which shall be also evidenced by the
Current Replacement Note, which as aforesaid amended, restated and replaced the
Replacement Note, and shall be used to purchase the Additional Property.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and of the
agreements set out in this instrument, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
2
<PAGE> 3
1. Borrower and LTI have made and delivered the New Draw Note to
Bank, and Bank has accepted the same in accordance with the provisions hereof
and of the other Loan Documents. The New Draw Note is one of the "Additional
Draw Notes" as referred to in the Loan Agreement and in the Security Agreement,
as amended.
2. The Loan Documents are hereby further amended to include the
following:
(a) The "Collateral" as described and defined in Article One
of the Loan Agreement and in Paragraph 1(b) of the Security Agreement is hereby
further amended and supplemented by adding thereto the property described in
Exhibit A hereto, which exhibit sets forth a description of the Additional
Property.
(b) Any and all references in the Loan Agreement and in the
Security Agreement to the "Draw Notes" is hereby deemed further amended and
supplemented to include, as a part thereof, the New Draw Note.
3. Except as specifically modified hereby, the Current Replacement
Note and all other Loan Documents, as previously amended, supplemented, restated
and replaced by those aforesaid documents dated as of October 20, 1994, as of
December 23, 1994, as of May 24, 1995, as of May 31, 1995, as of December 22,
1995, and as of January 30, 1998, shall remain in full force and effect. This
instrument is not intended to, and will not, effect a novation of the
indebtedness evidenced by the Current Replacement Note, which as aforesaid
amended, restated and replaced the Replacement Note, nor are the liens of the
security interests granted under the Security Agreement, as previously amended
as aforesaid, intended to be released, altered, or changed in any manner except
as specifically stated herein.
IN WITNESS WHEREOF, this Seventh Amendment to Loan and Security
Agreements has been entered into by the parties hereto as of the day and year
first above written.
"BANK" "BORROWER"
FIRST TENNESSEE BANK NATIONAL LANDAIR SERVICES, INC.
ASSOCIATION
By: __________________________ By: ______________________
Larry Estepp, Scott M. Niswonger,
Regional President President
3
<PAGE> 4
"LTI"
LANDAIR TRANSPORT, INC.
By: _______________________
Eddie R. Brown,
President
"LIA"
LANDAIR INTERNATIONAL
AIRLINES, INC.
By: _______________________
Bruce A. Campbell,
President
"TPI"
TRANSPORTATION PROPERTIES, INC.
By: _______________________
Bruce A. Campbell,
President
"FAI"
FORWARD AIR, INC.
By: _______________________
Bruce A. Campbell,
President
4
<PAGE> 5
EXHIBIT A
RELATING TO SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
One Hundred (100), new 1998, 53-foot Hyundai Van Trailers, identified with the
following serial numbers:
3H3V532C2WTO1100198601 3H3V532C_WTO1403998889
3H3V532C4WT01100298602 3H3V532C_WTO1404098890
3H3V532C6WT01100398603 3H3V532C_WTO1404198891
3H3V532C8WT01100498604 3H3V532C_WTO1404298892
3H3V532CXWT01100598605 3H3V532C_WTO1404398893
3H3V532C1WT01100698606 3H3V532C_WTO1404498894
3H3V532C3WT01100798607 3H3V532C_WTO1404598895
3H3V532C5WT01100898608 3H3V532C_WTO1404698896
3H3V532C7WT01100998609 3H3V532C_WTO1404798897
3H3V532C3WT01101098610 3H3V532C_WTO1404898898
3H3V532C5WT01101198611 3H3V532C_WTO1404998899
3H3V532C7WT01101298612 3H3V532C8WTO1405098900
3H3V532C6WT01400198851 3H3V532C8WTO1000198801
3H3V532C_WT01400298852 3H3V532CXWTO1000298802
3H3V532C_WT01400398853 3H3V532C1WTO1000398803
3H3V532C_WT01400498854 3H3V532C3WTO1000498804
3H3V532C_WT01400598855 3H3V532C5WTO1000598805
3H3V532C_WT01400698856 3H3V532C7WTO1000698806
3H3V532C_WT01400798857 3H3V532C9WTO1000798807
3H3V532C_WT01400898858 3H3V532C0WTO1000898808
3H3V532C_WT01400998859 3H3V532C2WTO1000998809
3H3V532C_WT01401098860 3H3V532C9WTO1001098810
3H3V532C_WT01401198861 3H3V532C0WTO1001198811
3H3V532C_WT01401298862 3H3V532C2WTO1001298812
3H3V532C_WT01401398863 3H3V532C4WTO1001398813
3H3V532C_WT01401498864 3H3V532C6WTO1001498814
3H3V532C_WT01401598865 3H3V532C8WTO1001598815
3H3V532C_WT01401698866 3H3V532CXWTO1001698816
3H3V532C_WT01401798867 3H3V532C1WTO1001798817
3H3V532C_WT01401898868 3H3V532C3WTO1001898818
3H3V532C_WT01401998869 3H3V532C5WTO1001998819
3H3V532C_WT01402098870 3H3V532C1WTO1002098820
3H3V532C_WT01402198871 3H3V532C3WTO1002198821
3H3V532C_WT01402298872 3H3V532C5WTO1002298822
3H3V532C_WT01402398873 3H3V532C7WTO1002398823
3H3V532C_WT01402498874 3H3V532C9WTO1002498824
5
<PAGE> 6
3H3V532C_WT01402598875 3H3V532C0WTO1002598825
3H3V532C_WT01402698876 3H3V532C2WTO1002698826
3H3V532C_WT01402798877 3H3V532C4WTO1002798827
3H3V532C_WT01402898878 3H3V532C6WTO1002898828
3H3V532C_WT01402998879 3H3V532C8WTO1002998829
3H3V532C_WT01403098880 3H3V532C4WTO1003098830
3H3V532C_WT01403198881 3H3V532C6WTO1003198831
3H3V532C_WT01403298882 3H3V532C8WT01003298832
3H3V532C_WT01403398883 3H3V532CXWT01003398833
3H3V532C_WT01403498884 3H3V532C1WT01003498834
3H3V532C_WT01403598885 3H3V532C3WT01003598835
3H3V532C_WT01403698886 3H3V532C5WT01003698836
3H3V532C_WT01403798887 3H3V532C7WT01003798837
3H3V532C_WT01403898888 3H3V532C9WT01003898838
6
<PAGE> 1
Exhibit 10.6
EIGHTH AMENDMENT TO LOAN AND
SECURITY AGREEMENTS
THIS EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENTS is made and entered
into as of the 24th day of February, 1998, by and between FIRST TENNESSEE BANK
NATIONAL ASSOCIATION, a national banking association ("Bank"), LANDAIR SERVICES,
INC., a Tennessee corporation ("Borrower"), LANDAIR TRANSPORT, INC., a Tennessee
corporation which is a wholly owned subsidiary of Borrower ("LTI"), LANDAIR
INTERNATIONAL AIRLINES, INC., a Tennessee corporation which is a wholly owned
subsidiary of Borrower ("LIA"), TRANSPORTATION PROPERTIES, INC., a Tennessee
corporation which is a wholly owned subsidiary of Borrower ("TPI"), and FORWARD
AIR, INC., a Tennessee corporation which is a wholly owned subsidiary of
Borrower ("FAI").
RECITALS
A. Bank, Borrower, LTI and LIA have entered into that certain Loan
Agreement dated as of October 17, 1994, providing for a loan in the amount of
Eleven Million One Hundred Fifty-Two Thousand Dollars ($11,152,000.00) (the
"Loan"), to finance the acquisition of equipment for use in the Borrower's
operations and in the operations of LTI and LIA (the "Loan Agreement").
B. Bank has made the Loan to Borrower pursuant to various loan
documents, among them a promissory note dated as of October 17, 1994, in the
original principal amount of Eleven Million One Hundred Fifty-Two Thousand
Dollars ($11,152,000.00) (the "Master Draw Note"), a security agreement securing
the obligations of Borrower, LTI and LIA with respect to the Loan dated as of
October 17, 1994, under which a security interest was and is granted in the
aforesaid equipment (the "Security Agreement"), and the Loan Agreement. The
Master Draw Note, the Security Agreement, the Loan Agreement and all other
instruments executed in connection with the Loan are herein referred to as the
"Loan Documents." The equipment and other personal property in which a security
interest was and is granted under the Security Agreement are herein referred to
as the "Property."
C. LTI acquired and purchased additional equipment which was paid for
by Loan proceeds as of October 20, 1994, as evidenced by a draw note and a first
amendment to the Loan Agreement and to the Security Agreement, all dated as of
October 20, 1994.
D. LTI acquired and purchased other additional equipment which was
paid for by Loan proceeds as of December 23, 1994, as evidenced by a draw note
and a second amendment to the Loan Agreement and to the Security Agreement, all
dated as of December 23, 1994.
1
<PAGE> 2
E. LTI acquired and purchased other additional equipment which was
paid for by Loan proceeds as of May 24, 1995, as evidenced by a draw note and a
third amendment to the Loan Agreement and to the Security Agreement, all dated
as of May 24, 1995.
F. Bank, Borrower, LTI and LIA have previously and further amended
certain other provisions of the Loan, the Master Draw Note, the Loan Agreement
and the Security Agreement as evidenced by an amended, restated and replacement
promissory note dated as of May 31, 1995, in the original principal amount of
Fifteen Million Dollars ($15,000,000.00) which amended, restated and replaced
the Master Draw Note (the "Replacement Note"), and as also evidenced by a fourth
amendment to the Loan Agreement and to the Security Agreement and related loan
modification documents, all dated as of May 31, 1995.
G. LTI has acquired and purchased additional equipment which was paid
for by loan proceeds evidenced by the Replacement Note as of December 22, 1995,
as evidenced by a draw note and a fifth amendment to the Loan Agreement and to
the Security Agreement, all dated as of December 22, 1995.
H. Bank, Borrower, LTI, LIA, TPI and FAI have previously and further
amended certain other provisions of the Loan, the Replacement Note, the Loan
Agreement and the Security Agreement as evidenced by an amended, restated and
replacement promissory note dated as of January 30, 1998, in the original
principal amount of Fifteen Million Dollars ($15,000,000.00) which amended,
restated and replaced the Replacement Note (the "Current Replacement Note"), and
as also evidenced by a sixth amendment to the Loan Agreement and to the Security
Agreement and related loan modification documents, all dated as of January 30,
1998.
I. LTI has acquired and purchased additional equipment which was paid
for by loan proceeds evidenced by the Current Replacement Note as of January 30,
1998, as evidenced by a draw note and a seventh amendment to the Loan Agreement
and to the Security Agreement, all dated as of January 30, 1998.
J. LTI has acquired and purchased additional equipment (the
"Additional Property"), to be paid for by loan proceeds evidenced by the Current
Replacement Note as of this date and the parties hereto desire to further amend
and supplement the definition of "Collateral" as set forth in the Security
Agreement, as amended previously, to include the Additional Property.
K. In conjunction with the preceding Recital J, the Borrower and LTI,
in connection with the Additional Property, have made and executed a draw note
of even date herewith in the original principal amount of One Million Nine
Hundred Nine Thousand Six Hundred Fifty-Seven Dollars ($1,909,657.00) (the "New
Draw Note"), the proceeds of which shall be also evidenced by the Current
Replacement Note, which as aforesaid amended, restated and replaced the
Replacement Note, and shall be used to purchase the Additional Property.
2
<PAGE> 3
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and of the
agreements set out in this instrument, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. Borrower and LTI have made and delivered the New Draw Note to
Bank, and Bank has accepted the same in accordance with the provisions hereof
and of the other Loan Documents. The New Draw Note is one of the "Additional
Draw Notes" as referred to in the Loan Agreement and in the Security Agreement,
as amended.
2. The Loan Documents are hereby further amended to include the
following:
(a) The "Collateral" as described and defined in Article One
of the Loan Agreement and in Paragraph 1(b) of the Security Agreement is hereby
further amended and supplemented by adding thereto the property described in
Exhibit A hereto, which exhibit sets forth a description of the Additional
Property.
(b) Any and all references in the Loan Agreement and in the
Security Agreement to the "Draw Notes" is hereby deemed further amended and
supplemented to include, as a part thereof, the New Draw Note.
3. Except as specifically modified hereby, the Current Replacement
Note and all other Loan Documents, as previously amended, supplemented, restated
and replaced by those aforesaid documents dated as of October 20, 1994, as of
December 23, 1994, as of May 24, 1995, as of May 31, 1995, as of December 22,
1995, and as of January 30, 1998, shall remain in full force and effect. This
instrument is not intended to, and will not, effect a novation of the
indebtedness evidenced by the Current Replacement Note, which as aforesaid
amended, restated and replaced the Replacement Note, nor are the liens of the
security interests granted under the Security Agreement, as previously amended
as aforesaid, intended to be released, altered, or changed in any manner except
as specifically stated herein.
IN WITNESS WHEREOF, this Eighth Amendment to Loan and Security
Agreements has been entered into by the parties hereto as of the day and year
first above written.
"BANK" "BORROWER"
FIRST TENNESSEE BANK NATIONAL LANDAIR SERVICES, INC.
ASSOCIATION
By: __________________________ By: ______________________
Larry Estepp, Scott M. Niswonger,
Regional President President
3
<PAGE> 4
"LTI"
LANDAIR TRANSPORT, INC.
By: _______________________
Eddie R. Brown,
President
"LIA"
LANDAIR INTERNATIONAL
AIRLINES, INC.
By: _______________________
Bruce A. Campbell,
President
"TPI"
TRANSPORTATION PROPERTIES, INC.
By: _______________________
Bruce A. Campbell,
President
"FAI"
FORWARD AIR, INC.
By: _______________________
Bruce A. Campbell,
President
4
<PAGE> 5
EXHIBIT A
RELATING TO EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
- Attached -
5
<PAGE> 1
Exhibit 10.7
NINTH AMENDMENT TO LOAN AND
SECURITY AGREEMENTS
THIS NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENTS is made and entered
into as of the 24th day of March, 1998, by and between FIRST TENNESSEE BANK
NATIONAL ASSOCIATION, a national banking association ("Bank"), LANDAIR SERVICES,
INC., a Tennessee corporation ("Borrower"), LANDAIR TRANSPORT, INC., a Tennessee
corporation which is a wholly owned subsidiary of borrower ("LTI"), LANDAIR
INTERNATIONAL AIRLINES, INC., a Tennessee corporation which is a wholly owned
subsidiary of Borrower ("LIA"), TRANSPORTATION PROPERTIES, INC., a Tennessee
corporation which is a wholly owned subsidiary of Borrower ("TPI"), and FORWARD
AIR, INC., a Tennessee corporation which is a wholly owned subsidiary of
Borrower ("FAI").
RECITALS
A. Bank, Borrower, LTI and LIA have entered into that certain Loan
Agreement dated as of October 17, 1994, providing for a loan in the amount of
Eleven Million One Hundred Fifty-Two Thousand Dollars ($11,152,000.00) (the
"Loan"), to finance the acquisition of equipment for use in the Borrower's
operations and in the operations of LTI and LIA (the "Loan Agreement").
B. Bank has made the Loan to Borrower pursuant to various loan documents,
among them a promissory note dated as of October 17, 1994, in the original
principal amount of Eleven Million One Hundred Fifty-Two Thousand Dollars
($11,152,000.00) (the "Master Draw Note"), a security agreement securing the
obligations of Borrower, LTI and LIA with respect to the Loan dated as of
October 17, 1994, under which a security interest was and is granted in the
aforesaid equipment (the "Security Agreement"), and the Loan Agreement. The
Master Draw Note, the Security Agreement, the Loan Agreement and all other
instruments executed in connection with the Loan are herein referred to as the
"Loan Documents." The equipment and other personal property in which a security
interest was and is granted under the Security Agreement are herein referred to
as the "Property."
C. LTI acquired and purchased additional equipment which was paid for by
Loan proceeds as of October 20, 1994, as evidenced by a draw note and a first
amendment to the Loan Agreement and to the Security Agreement, all dated as of
October 20, 1994.
D. LTI acquired and purchased other additional equipment which was paid
for by Loan proceeds as of December 23, 1994, as evidenced by a draw note and a
second amendment to the Loan Agreement and to the Security Agreement, all dated
as of December 23, 1994.
E. LTI acquired and purchased other additional equipment which was paid
for by Loan proceeds as of May 24, 1995, as evidenced by a draw note and a third
amendment to the Loan Agreement and to the Security Agreement, all dated as of
May 24, 1995.
1
<PAGE> 2
F. Bank, Borrower, LTI and LIA have previously and further amended certain
other provisions of the Loan, the Master Draw Note, the Loan Agreement and the
Security Agreement as evidenced by an amended, restated and replacement
promissory note dated as of May 31, 1995, in the original principal amount of
Fifteen Million Dollars ($15,000,000.00) which amended, restated and replaced
the Master Draw Note (the "Replacement Note"), and as also evidenced by a fourth
amendment to the Loan Agreement and to the Security Agreement and related loan
modification documents, all dated as of May 31, 1995.
G. LTI has acquired and purchased additional equipment which was paid for
by loan proceeds evidenced by the Replacement Note as of December 22, 1995, as
evidenced by a draw note and a fifth amendment to the Loan Agreement and to the
Security Agreement, all dated as of December 22, 1995.
H. Bank, Borrower, LTI, LIA, TPI and FAI have previously and further
amended certain other provisions of the Loan, the Replacement Note, the Loan
Agreement and the Security Agreement as evidenced by an amended, restated and
replacement promissory note dated as of January 30, 1998, in the original
principal amount of Fifteen Million Dollars ($15,000,000.00) which amended,
restated and replaced the Replacement Note (the "Current Replacement Note"), and
as also evidenced by a sixth amendment to the Loan Agreement and to the Security
Agreement and related loan modification documents, all dated as of January 30,
1998.
I. LTI has acquired and purchased additional equipment which was paid for
by loan proceeds evidenced by the Current Replacement Note as of January 30,
1998, as evidenced by a draw note and a seventh amendment to the Loan Agreement
and to the Security Agreement, all dated as of January 30, 1998.
J. LTI has acquired and purchased additional equipment which was paid for
by loan proceeds evidenced by the Current Replacement Note as of February 28,
1998, as evidenced by a draw note and a eighth amendment to the Loan Agreement
and to the Security Agreement, all dated as of February 28, 1998.
K. LTI has acquired and purchased additional equipment (the "Additional
Property"), to be paid for by loan proceeds evidenced by the Current Replacement
Note as of this date and the parties hereto desire to further amend and
supplement the definition of "Collateral" as set forth in the Security
Agreement, as amended previously, to include the Additional Property.
L. In conjunction with the preceding Recital J. the Borrower and LTI, in
connection with the Additional Property, have made and executed a draw note of
even date herewith in the original principal amount of Two Million Six Hundred
Fifty-Six Thousand Nine Hundred Twenty-Eight Dollars ($2,656,928.00) (the "New
Draw Note"), the proceeds of which shall be also evidenced by the Current
Replacement Note, which as aforesaid amended, restated and replaced the
Replacement Note, and shall be used to purchase the Additional Property.
2
<PAGE> 3
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and of the agreements
set out in this instrument, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows.
1. Borrower and LTI have made and delivered the New Draw Note to Bank, and
Bank has accepted the same in accordance with the provisions hereof and of the
other Loan Documents. The New Draw Note is one of the "Additional Draw Notes" as
referred to in the Loan Agreement and in the Security Agreement, as amended.
2. The Loan Documents are hereby further amended to include the following:
(a) The "Collateral" as described and defined in Article One of the Loan
Agreement and in Paragraph l(b) of the Security Agreement is hereby further
amended and supplemented by adding thereto the property described in Exhibit A
hereto, which exhibit sets forth a description of the Additional Property.
(b) Any and all references in the Loan Agreement and in the Security
Agreement to the "Draw Notes" is hereby deemed further amended and supplemented
to include, as a part thereof, the New Draw Note.
3. Except as specifically modified hereby, the Current Replacement Note
and all other Loan Documents, as previously amended, supplemented, restated and
replaced by those aforesaid documents dated as of October 20, 1994, as of
December 23, 1994, as of May 24, 1995, as of May 31, 1995, as of December 22,
1995, as of January 30, 1998, and as of February 28, 1998, shall remain in full
force and effect. This instrument is not intended to, and will not, effect a
novation of the indebtedness evidenced by the Current Replacement Note which as
aforesaid amended, restated and replaced the Replacement Note, nor are the liens
of the security interests granted under the Security Agreement, as previously
amended as aforesaid, intended to be released, altered, or changed in any manner
except as specifically stated herein.
IN WITNESS WHEREOF, this Ninth Amendment to Loan and Security Agreements
has been entered into by the parties hereto as of the day and year first above
written.
3
<PAGE> 4
"BANK" "BORROWER"
FIRST TENNESSEE BANK NATIONAL LANDAIR SERVICES, INC.
ASSOCIATION
by:__________________________ by: _________________________
Larry Estepp, Scott M. Niswonger,
Regional President President
"LTI"
LANDAIR TRANSPORT, INC.
by:__________________________
Eddie R. Brown,
President
"LIA"
LANDAIR INTERNATIONAL
AIRLINES, INC.
by: _________________________
Bruce A. Campbell,
President
"TPI"
TRANSPORTATION
PROPERTIES, INC.
by:__________________________
Bruce A. Campbell,
President
"FAI"
FORWARD AIR, INC.
by: _________________________
Bruce A. Campbell,
President
4
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LANDAIR SERVICES INC. FOR THE THREE MONTHS ENDED MARCH
31, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<EXCHANGE-RATE> 1
<CASH> 1,164
<SECURITIES> 0
<RECEIVABLES> 30,109
<ALLOWANCES> 1,111
<INVENTORY> 0
<CURRENT-ASSETS> 38,722
<PP&E> 120,446
<DEPRECIATION> 38,272
<TOTAL-ASSETS> 124,263
<CURRENT-LIABILITIES> 33,073
<BONDS> 0
0
0
<COMMON> 61
<OTHER-SE> 53,681
<TOTAL-LIABILITY-AND-EQUITY> 124,263
<SALES> 0
<TOTAL-REVENUES> 52,855
<CGS> 0
<TOTAL-COSTS> 48,492
<OTHER-EXPENSES> (16)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 677
<INCOME-PRETAX> 3,702
<INCOME-TAX> 1,461
<INCOME-CONTINUING> 2,241
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,241
<EPS-PRIMARY> .37
<EPS-DILUTED> .35
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LANDAIR SERVICES INC. FOR THE YEAR ENDED DECEMBER 31,
1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 28
<SECURITIES> 0
<RECEIVABLES> 24,086
<ALLOWANCES> 415
<INVENTORY> 552
<CURRENT-ASSETS> 28,204
<PP&E> 97,445
<DEPRECIATION> 27,166
<TOTAL-ASSETS> 99,074
<CURRENT-LIABILITIES> 22,414
<BONDS> 0
0
0
<COMMON> 60
<OTHER-SE> 41,204
<TOTAL-LIABILITY-AND-EQUITY> 99,074
<SALES> 0
<TOTAL-REVENUES> 157,098
<CGS> 0
<TOTAL-COSTS> 147,757
<OTHER-EXPENSES> (61)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,964
<INCOME-PRETAX> 6,438
<INCOME-TAX> 2,459
<INCOME-CONTINUING> 3,979
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,979
<EPS-PRIMARY> .67
<EPS-DILUTED> .66
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LANDAIR SERVICES INC. FOR THE SIX MONTHS ENDED JUNE 30,
1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<EXCHANGE-RATE> 1
<CASH> 99
<SECURITIES> 0
<RECEIVABLES> 25,146
<ALLOWANCES> 688
<INVENTORY> 0
<CURRENT-ASSETS> 29,306
<PP&E> 102,226
<DEPRECIATION> 31,266
<TOTAL-ASSETS> 100,883
<CURRENT-LIABILITIES> 26,017
<BONDS> 0
0
0
<COMMON> 60
<OTHER-SE> 43,974
<TOTAL-LIABILITY-AND-EQUITY> 100,883
<SALES> 0
<TOTAL-REVENUES> 86,507
<CGS> 0
<TOTAL-COSTS> 80,581
<OTHER-EXPENSES> 129
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,339
<INCOME-PRETAX> 4,458
<INCOME-TAX> 1,743
<INCOME-CONTINUING> 2,715
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,715
<EPS-PRIMARY> .46
<EPS-DILUTED> .45
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LANDAIR SERVICES INC. FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 148
<SECURITIES> 0
<RECEIVABLES> 28,372
<ALLOWANCES> 726
<INVENTORY> 0
<CURRENT-ASSETS> 33,142
<PP&E> 105,010
<DEPRECIATION> 33,552
<TOTAL-ASSETS> 105,187
<CURRENT-LIABILITIES> 28,468
<BONDS> 0
0
0
<COMMON> 60
<OTHER-SE> 47,228
<TOTAL-LIABILITY-AND-EQUITY> 105,187
<SALES> 0
<TOTAL-REVENUES> 136,963
<CGS> 0
<TOTAL-COSTS> 125,230
<OTHER-EXPENSES> 97
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,990
<INCOME-PRETAX> 9,646
<INCOME-TAX> 3,755
<INCOME-CONTINUING> 5,891
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,891
<EPS-PRIMARY> .99
<EPS-DILUTED> .96
</TABLE>
