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HUB GROUP, INC.
and
HUB CITY TERMINALS, INC.
-----------------------------------
THIRD AMENDMENT
Dated as of November 8, 2001
to
NOTE PURCHASE AGREEMENTS
Dated as of June 15, 1999
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Re: $50,000,000 8.64% Senior Notes
Due June 25, 2009
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THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS THIRD AMENDMENT dated as of November 8, 2001 (the or this "THIRD
AMENDMENT") to the Note Purchase Agreements each dated as of June 15, 1999, as
amended by the First Amendment to Note Purchase Agreements dated as of February
26, 2001 and the Second Amendment to Note Purchase Agreements dated as of March
30, 2001, is between HUB GROUP, INC., a Delaware corporation ("PUBLIC HUB
COMPANY"), HUB CITY TERMINALS, INC., a Delaware corporation, for itself and as
successor by merger to Hub Holdings, Inc. ("HUB CHICAGO"; Public Hub Company and
Hub Chicago being individually referred to herein as an "OBLIGOR" and
collectively as the "OBLIGORS"), and each of the institutions which is a
signatory to this Third Amendment (collectively, the "NOTEHOLDERS").
RECITALS:
A. The Obligors and each of the Noteholders have heretofore entered
into separate and several Note Purchase Agreements each dated as of June 15,
1999 (as amended by the First Amendment to Note Purchase Agreements dated as of
February 26, 2001 and the Second Amendment to Note Purchase Agreements dated as
of March 30, 2001, collectively, the "NOTE PURCHASE AGREEMENTS"). The Obligors
have heretofore issued the $50,000,000 8.64% Senior Notes Due June 25, 2009 (the
"NOTES") dated June 25, 2000 pursuant to the Note Purchase Agreements.
B. The Obligors and the Noteholders now desire to amend the Note
Purchase Agreements in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this Third Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Third Amendment set forth in
SECTION 3.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Obligors and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
SECTION 1.1. The definition of "CONSOLIDATED EBITDA" appearing in
Schedule B to the Note Purchase Agreements shall be amended and restated in its
entirety to read as follows:
"CONSOLIDATED EBITDA" for any period means the sum of (a)
Consolidated Net Income during such period PLUS (to the extent deducted
in determining Consolidated Net Income), (b) all provisions for any
Federal, state or local income taxes made by the Public Hub Company and
the Restricted Subsidiaries during such period, (c) all provisions for
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depreciation and amortization (other than amortization of debt
discount) made by the Public Hub Company and the Restricted
Subsidiaries during such period, (d) Consolidated Interest Expense
during such period, (e) Minority Interest Expense, (f) if such period
includes the fiscal quarters of the Public Hub Company ending on
December 31, 2000 or March 31, 2001, non-cash charges during such
quarters on the books of the Public Hub Company and its Restricted
Subsidiaries in accordance with GAAP aggregating up to $5,100,000 (for
both such quarters taken together), (g) all other non-cash charges
during such period on the books of the Public Hub Company and its
Restricted Subsidiaries in accordance with GAAP to the extent the
aggregate amount of such other non-cash charges do not exceed
$2,500,000 during any period of four consecutive fiscal quarters of the
Public Hub Company (prorated appropriately downward (or upward) for any
shorter (or longer) period), (h) if such period includes the fiscal
quarters of the Public Hub Company ending on December 31, 2000 March
31, 2001 or June 30, 2001, severance payments made during such quarters
aggregating up to $1,200,000 (for all such quarters taken together),
(i) if such period includes the fiscal quarters of the Public Hub
Company ending on March 31, 2001, June 30, 2001, September 30, 2001 or
December 31, 2001, severance payments (in addition to those accounted
for in clause (h) above) made during such quarters aggregating up to
$600,000 (for all four such quarters taken together) and (j) if such
period includes the fiscal quarter of the Public Hub Company ending on
September 30, 2001, the write-off of the receivable due from Cho Yang
Shipping Co., Ltd. during such quarter on the books of the Public Hub
Company and its Restricted Subsidiaries in an amount not in excess of
$4,740,000. For purposes of calculations under SECTION 10.3,
Consolidated EBITDA shall be adjusted for the period in respect of
which any such calculation is being made to give effect to (i) the
audited "EBITDA" (determined in a manner consistent with the definition
of "Consolidated EBITDA" contained in this Agreement) of any business
entity acquired by the Public Hub Company or any Restricted Subsidiary
(the "ACQUIRED BUSINESS") and (ii) all Debt incurred by the Public Hub
Company or any Restricted Subsidiary in connection with such
acquisition, and shall be computed as if the Acquired Business had been
a Restricted Subsidiary throughout the period and all Debt incurred in
connection with such acquisition had been incurred at the beginning of
such period in respect of which such calculation is being made. Without
limiting the foregoing, Consolidated EBITDA shall also be adjusted for
the period in respect of which any such calculation is being made to
eliminate (1) the audited "EBITDA" of any Subsidiary or other property
or assets disposed of by the Public Hub Company or any Restricted
Subsidiary (the "TRANSFERRED BUSINESS") and (2) Debt relating to such
Subsidiary, property or assets, as the case may be, and shall be
computed as if the Transferred Business had been transferred at the
beginning of such period in respect of which such calculation is being
made. In the case of any business entity acquired during the twelve
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calendar month period immediately preceding the date of any
determination hereunder whose financial records are not, and are not
required to be in accordance with applicable laws, rules and
regulations, audited by the Public Hub Company's independent public
accountants at the time of the acquisition thereof, the Public Hub
Company shall base such determination upon the Public Hub Company's
internally audited net earnings of such business entity for the
immediately preceding fiscal year or the net earnings of such business
entity as audited by such business entity's independent auditors for
the immediately preceding fiscal year.
SECTION 1.2. The definition of "CONSOLIDATED EBITDAR" appearing in
Schedule B to the Note Purchase Agreements shall be amended and restated in its
entirety to read as follows:
"CONSOLIDATED EBITDAR" for any period means the sum of (a)
Consolidated Net Income during such period, PLUS (to the extent
deducted in determining Consolidated Net Income) (b) all provisions for
any Federal, state or local income taxes made by the Public Hub Company
and the Restricted Subsidiaries during such period, (c) all provisions
for depreciation and amortization (other than amortization of debt
discount) made by the Public Hub Company and the Restricted
Subsidiaries during such period, (d) Consolidated Interest Expense
during such period, (e) all Rentals (other than Rentals on Capital
Leases) payable during such period by the Public Hub Company and the
Restricted Subsidiaries, (f) Minority Interest Expense, (g) if such
period includes the fiscal quarters of the Public Hub Company ending on
December 31, 2000 or March 31, 2001, non-cash charges during such
quarters on the books of the Public Hub Company and its Restricted
Subsidiaries in accordance with GAAP aggregating up to $5,100,000 (for
both such quarters taken together), (h) all other non-cash charges
during such period on the books of the Public Hub Company and its
Restricted Subsidiaries in accordance with GAAP to the extent the
aggregate amount of such other non-cash charges do not exceed
$2,500,000 during any period of four consecutive fiscal quarters of the
Public Hub Company (prorated appropriately downward (or upward) for any
shorter (or longer) period), (i) if such period includes the fiscal
quarters of the Public Hub Company ending on December 31, 2000 or March
31, 2001 or June 30, 2001, severance payments made during such quarters
aggregating up to $1,200,000 (for all such quarters taken together),
(j) if such period includes the fiscal quarters of the Public Hub
Company ending on March 31, 2001, June 30, 2001, September 30, 2001 or
December 31, 2001, severance payments (in addition to those accounted
for in clause (i) above) made during such quarters aggregating up to
$600,000 (for all four such quarters taken together) and (k) if such
period includes the fiscal quarter of the Public Hub Company ending on
September 30, 2001, the write-off of the receivable due from Cho Yang
Shipping Co., Ltd. during such quarter on the books of the Public Hub
Company and its Restricted Subsidiaries in an amount not in excess of
$4,740,000. Consolidated EBITDAR shall not be adjusted to take into
account earnings or interest of an Acquired Business that were earned
or accrued prior to its becoming an Acquired Business.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
SECTION 2.1. To induce the Noteholders to execute and deliver this
Third Amendment (which representations shall survive the execution and delivery
of this Third Amendment), the Obligors, jointly and severally, represent and
warrant to the Noteholders that:
(a) this Third Amendment has been duly authorized, executed
and delivered by each Obligor and this Third Amendment constitutes the
legal, valid and binding obligation, contract and agreement of each
Obligor enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Note Purchase Agreements, as amended by this Third
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Obligors enforceable against them in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(c) the execution, delivery and performance by the Obligors
of this Third Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which any
Obligor is a party or by which any Obligor's properties or assets are
or may be bound, including, without limitation, the Credit Agreement
dated as of April 30, 1999, among the Obligors, the Lenders party
thereto and ▇▇▇▇▇▇ Trust and Savings Bank, individually and as Agent,
and all amendments, supplements and modifications thereto, or (B)
result in a breach or constitute (alone or with due notice or lapse of
time or both) a default under any indenture, agreement or other
instrument referred to in CLAUSE (III)(A)(3) of this SECTION 2.1(C);
(d) as of the date hereof and after giving effect to
this Third Amendment, no Default or Event of Default has occurred which
is continuing;
(e) all the representations and warranties contained in
Section 5 of the Note Purchase Agreements (other than those contained
in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all
material respects with the same force and effect as if made by the
Obligors on and as of the date hereof (other than any representation
and warranty that expressly relates to a specified earlier date, which
was true and correct in all material respects as of such date);
PROVIDED, THAT, notwithstanding any reference in Sections 5.4(c) and
5.4(d) of the Note Purchase Agreements to the Restricted Subsidiaries
listed on Schedule 5.4 to the Note Purchase Agreements, the
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representations and warranties hereby made by the Obligors with
reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements
shall relate to the Restricted Subsidiaries existing on the date
hereof;
(f) the statements and information furnished to the
Noteholders in connection with the negotiation of this Amendment do
not, taken as a whole, and other than financial projections or
forecasts, contain any untrue statements of a material fact or omit a
material fact necessary to make the material statements contained
herein or therein not misleading, the Noteholders acknowledging that as
to any projections furnished to the Noteholders, the Obligors and the
Constituent Company Guarantors only represent that the same were
prepared on the basis of information and estimates the Obligors
believed to be reasonable; and
(g) all tax returns with respect to any income tax or other
material tax required to be filed by the Obligors and the Restricted
Subsidiaries in any jurisdiction have, in fact, been filed, and all
taxes, assessments, fees and other governmental charges upon the
Obligors or the Restricted Subsidiaries or upon any of their respective
properties, income or franchises, which are shown to be due and payable
in such returns, have been paid. The Obligors do not know of any
proposed additional tax assessment against the Obligors or any
Restricted Subsidiary for which adequate provision in accordance with
GAAP has not been made. Adequate provisions in accordance with GAAP for
taxes on the books of the Obligors and each Restricted Subsidiary have
been made for all open years, and for its current fiscal period.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT.
SECTION 3.1. This Third Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) executed counterparts of this Third Amendment, duly
executed by the Obligors and the holders of at least 51% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
(b) the Noteholders shall have received a copy of the
resolutions of the Board of Directors of each Obligor authorizing the
execution, delivery and performance by such Obligor of this Third
Amendment, certified by such Obligor's Secretary or an Assistant
Secretary;
(c) the representations and warranties of the Obligors set
forth in SECTION 2 hereof are true and correct on and with respect to
the date hereof;
(d) the Noteholders party to this Third Amendment shall have
received an amendment fee in an amount equal to 0.20% times the
aggregate outstanding principal amount of the Notes held by such
Noteholder; and
(e) the Noteholders shall have received a true, correct and
complete copy of the Amendment to the Bank Credit Agreement dated the
date hereof.
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Upon receipt of all of the foregoing, this Third Amendment shall become
effective as of September 30, 2001.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
SECTION 4.1. The Obligors agrees to pay upon demand, the reasonable
fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel to the Noteholders, in
connection with the negotiation, preparation, approval, execution and delivery
of this Third Amendment.
SECTION 5. MISCELLANEOUS.
SECTION 5.1. This Third Amendment shall be construed in connection with
and as part of each of the Note Purchase Agreements, and except as modified and
expressly amended by this Third Amendment, all terms, conditions and covenants
contained in the Note Purchase Agreements and the Notes are hereby ratified and
shall be and remain in full force and effect.
SECTION 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Third Amendment may refer to the Note Purchase Agreements without making
specific reference to this Third Amendment but nevertheless all such references
shall include this Third Amendment unless the context otherwise requires.
SECTION 5.3. The descriptive headings of the various Sections or parts
of this Third Amendment are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
SECTION 5.4. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH ILLINOIS LAW.
SECTION 5.5. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Third
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
[Signature Pages Begin on Next Page]
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IN WITNESS WHEREOF, the Obligors and the Noteholders have caused this
instrument to be executed as of November 8, 2001.
HUB GROUP, INC.
HUB CITY TERMINALS, INC.
By ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer for each of the
above Companies
Consented, Accepted and Agreed
as of November 8, 2001
HUB CHICAGO HOLDINGS, INC., a Constituent
Company Guarantor
By ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer for each of the
above Companies
HLX COMPANY, L.L.C., a Constituent
Company Guarantor
By ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice Chairman and Chief Executive
Officer
QSSC, INC.
QUALITY SERVICES, L.L.C.,
QUALITY SERVICES OF KANSAS, L.L.C.
QUALITY SERVICES OF NEW JERSEY, L.L.C.
Q.S. OF ILLINOIS, L.L.C.
Q.S. OF GEORGIA, L.L.C.
By ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer for each of the
above Constituent Company Guarantors
HUB GROUP ALABAMA, LLC (formerly known as
Hub City Alabama, L.P.)
HUB GROUP ATLANTA, LLC (formerly known as
Hub City Atlanta, L.P.)
HUB GROUP BOSTON, LLC (formerly known as
Hub City Boston, L.P.)
HUB GROUP CANADA, L.P.
HUB GROUP CLEVELAND, LLC (formerly known
as Hub City Cleveland, L.P.)
HUB GROUP DETROIT, LLC (formerly known as
Hub City Detroit, L.P.)
HUB GROUP FLORIDA, LLC (formerly known as
Hub City Florida, L.P.)
HUB GROUP GOLDEN GATE, LLC (formerly
known as Hub City Golden Gate, L.P.)
HUB GROUP INDIANAPOLIS, LLC (formerly
known as Hub City Indianapolis, L.P.)
HUB GROUP KANSAS CITY, LLC (formerly
known as Hub City Kansas City, L.P.)
HUB GROUP LOS ANGELES, LLC (formerly
known as Hub City Los Angeles, L.P.)
HUB GROUP MID ATLANTIC, LLC (formerly
known as Hub City Mid Atlantic, L.P.)
HUB GROUP NEW ORLEANS, LLC (formerly
known as Hub City New Orleans, L.P.)
HUB GROUP NEW YORK STATE, LLC (formerly
known as Hub City New York State, L.P.)
HUB GROUP NEW YORK-NEW JERSEY, LLC
(formerly known as Hub City New
York-New Jersey, L.P.)
HUB GROUP NORTH CENTRAL, LLC (formerly
known as Hub City North Central, L.P.)
HUB GROUP OHIO, LLC (formerly known as
Hub City Ohio, L.P.)
HUB GROUP PHILADELPHIA, LLC (formerly
known as Hub City Philadelphia, L.P.)
HUB GROUP PITTSBURGH, LLC (formerly known
as Hub City Pittsburgh, L.P.)
HUB GROUP PORTLAND, LLC (formerly known
as Hub City Portland, L.P.)
HUB GROUP ST. LOUIS, LLC (formerly known
as Hub City St. Louis, L.P.)
HUB GROUP TENNESSEE, LLC (formerly known
as Hub City Tennessee, L.P.)
HUB CITY TEXAS, L.P.
HUB GROUP TRANSPORT, LLC
By ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer for each of the
above Constituent Company Guarantors
Consented, Accepted and Agreed as of November 8, 2001:
BAYSTATE HEALTH SYSTEM, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc. as
Investment Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
C.M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc. as
Investment Sub-Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Investment Adviser
By________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
INVESTORS PARTNER LIFE INSURANCE COMPANY
By______________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE
COMPANY
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
MELLON BANK, N.A., solely in its
capacity as Trustee for the ▇▇▇▇
Atlantic Master Trust (as directed by
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company),
and not in its individual capacity
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
RELIASTAR LIFE INSURANCE COMPANY
By: ING INVESTMENT MANAGEMENT LLC,
as agent
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
RELIASTAR LIFE INSURANCE COMPANY OF NEW
YORK
By: ING INVESTMENT MANAGEMENT LLC,
as agent
By_____________________________________
Name:
Title:
Consented, Accepted and Agreed as of November 8, 2001:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By_____________________________________
Name:
Title: