Exhibit 10.1
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$300,000,000
CREDIT AGREEMENT
dated as of November [ ], 2003,
among
OVERNITE TRANSPORTATION COMPANY,
OVERNITE CORPORATION,
THE LENDERS AND ISSUING BANKS NAMED HEREIN,
SUNTRUST BANK,
as Administrative Agent and Collateral Agent
and
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
-----------------------------
CREDIT SUISSE FIRST BOSTON
and
SUNTRUST CAPITAL MARKETS, INC.,
as Joint Bookrunners and Joint Lead Arrangers
and
BANK OF AMERICA, N.A. AND WACHOVIA SECURITIES, INC.
as Co-Documentation Agents
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms........................................................................ 1
SECTION 1.02. Terms Generally...................................................................... 25
SECTION 1.03. Classification of Loans and Borrowings............................................... 25
SECTION 1.04. Pro Forma Calculations............................................................... 25
ARTICLE II
The Credits
SECTION 2.01. Commitments.......................................................................... 25
SECTION 2.02. Loans ............................................................................... 26
SECTION 2.03. Borrowing Procedure.................................................................. 28
SECTION 2.04. Evidence of Debt; Repayment of Loans................................................. 28
SECTION 2.05. Fees ................................................................................ 29
SECTION 2.06. Interest on Loans.................................................................... 30
SECTION 2.07. Default Interest..................................................................... 31
SECTION 2.08. Alternate Rate of Interest........................................................... 31
SECTION 2.09. Termination and Reduction of Commitments............................................. 31
SECTION 2.10. Conversion and Continuation of Borrowings............................................ 32
SECTION 2.11. Repayment of Term Borrowings......................................................... 33
SECTION 2.12. Prepayment........................................................................... 34
SECTION 2.13. Mandatory Prepayments................................................................ 35
SECTION 2.14. Reserve Requirements; Change in Circumstances........................................ 36
SECTION 2.15. Change in Legality................................................................... 38
SECTION 2.16. Indemnity ........................................................................... 38
SECTION 2.17. Pro Rata Treatment................................................................... 39
SECTION 2.18. Sharing of Setoffs................................................................... 39
SECTION 2.19. Payments ............................................................................ 40
SECTION 2.20. Taxes ............................................................................... 40
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate.............. 42
SECTION 2.22. Swingline Loans...................................................................... 44
SECTION 2.23. Letters of Credit.................................................................... 45
SECTION 2.24. Increase in Revolving Credit Commitments............................................. 49
SECTION 2.25. Increase in Term Loan Commitments.................................................... 51
ARTICLE III
Representations and Warranties
i
SECTION 3.01. Organization; Powers................................................................. 52
SECTION 3.02. Authorization........................................................................ 52
SECTION 3.03. Enforceability....................................................................... 53
SECTION 3.04. Governmental Approvals............................................................... 53
SECTION 3.05. Financial Statements................................................................. 53
SECTION 3.06. No Material Adverse Change........................................................... 54
SECTION 3.07. Title to Properties; Possession Under Leases......................................... 54
SECTION 3.08. Subsidiaries......................................................................... 54
SECTION 3.09. Litigation; Compliance with Laws..................................................... 54
SECTION 3.10. Agreements........................................................................... 54
SECTION 3.11. Federal Reserve Regulations.......................................................... 55
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act........................... 55
SECTION 3.13. Tax Returns.......................................................................... 55
SECTION 3.14. No Material Misstatements............................................................ 55
SECTION 3.15. Employee Benefit Plans............................................................... 56
SECTION 3.16. Environmental Matters................................................................ 56
SECTION 3.17. Insurance 56
SECTION 3.18. Security Documents................................................................... 56
SECTION 3.19. Labor Matters........................................................................ 56
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.................................................................... 57
SECTION 4.02. First Credit Event................................................................... 57
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties................................................. 60
SECTION 5.02. Insurance 60
SECTION 5.03. Obligations and Taxes................................................................ 60
SECTION 5.04. Financial Statements, Reports, etc................................................... 61
SECTION 5.05. Litigation and Other Notices......................................................... 62
SECTION 5.06. Maintaining Records; Access to Properties and Inspections............................ 62
SECTION 5.07. Use of Proceeds...................................................................... 63
SECTION 5.08. Further Assurances................................................................... 63
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness......................................................................... 63
SECTION 6.02. Liens 64
SECTION 6.03. Sale and Lease-Back Transactions..................................................... 66
ii
SECTION 6.04. Investments, Loans and Advances............................ 66
SECTION 6.05. Mergers, Consolidations and Sales of Assets................ 68
SECTION 6.06. Restricted Payments; Restrictive Agreements................ 68
SECTION 6.07. Transactions with Affiliates............................... 69
SECTION 6.08. Business of Overnite, Borrower and Subsidiaries............ 69
SECTION 6.09. Capital Expenditures....................................... 70
SECTION 6.10. Fixed Charge Coverage Ratio................................ 70
SECTION 6.11. Maximum Leverage Ratio..................................... 70
SECTION 6.12. Minimum Asset Coverage Ratio............................... 71
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................... 76
SECTION 9.02. Survival of Agreement...................................... 77
SECTION 9.03. Binding Effect............................................. 77
SECTION 9.04. Successors and Assigns..................................... 77
SECTION 9.05. Expenses; Indemnity........................................ 81
SECTION 9.06. Right of Setoff............................................ 82
SECTION 9.07. Applicable Law............................................. 83
SECTION 9.08. Waivers; Amendment......................................... 83
SECTION 9.09. Interest Rate Limitation................................... 84
SECTION 9.10. Entire Agreement........................................... 84
SECTION 9.11. WAIVER OF JURY TRIAL....................................... 85
SECTION 9.12. Severability............................................... 85
SECTION 9.13. Counterparts............................................... 85
SECTION 9.14. Headings .................................................. 85
SECTION 9.15. Jurisdiction; Consent to Service of Process................ 85
SECTION 9.16. Confidentiality............................................ 86
Schedules
Schedule 1.01(a) Existing Letters of Credit
Schedule 1.01(b) Subsidiary Guarantors
Schedule 2.01 Lenders and Commitments
Schedule 3.08 Subsidiaries
Schedule 3.17 Environmental Matters
iii
Schedule 3.18 Insurance
Schedule 6.01 Outstanding Indebtedness on Closing Date
Schedule 6.02 Liens Existing on Closing Date
Schedule 6.06(b) Certain Existing Restrictions
Exhibits
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Pledge Agreement
Exhibit E Form of Guarantee Agreement
Exhibit F-1 Form of Opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP
Exhibit F-2 Form of Opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
General Counsel of Overnite and the Borrower
Exhibit F-3 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.,
General Counsel of Motor Cargo
iv
CREDIT AGREEMENT dated as of November [ ],
2003, among OVERNITE TRANSPORTATION COMPANY, a
Virginia corporation (the "Borrower"), OVERNITE
CORPORATION, a Virginia corporation ("Overnite"), the
Lenders (as defined in Article I), SUNTRUST BANK, a
Georgia banking corporation, as administrative agent
(in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent") for the Lenders and Issuing Banks, and CREDIT
SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, as syndication agent (in such
capacity, the "Syndication Agent").
Overnite and the Borrower have requested the Lenders to extend credit in
the form of (a) Term Loans (such term and each other capitalized term used but
not defined in this introductory statement having the meaning given it in
Article I) to the Borrower on the Closing Date, in an aggregate principal amount
not in excess of $125,000,000 (subject, after the Closing Date, to the
provisions of Section 2.25), and (b) Revolving Loans on the Closing Date and at
any time and from time to time prior to the Revolving Credit Maturity Date, in
an aggregate principal amount at any time outstanding not in excess of
$175,000,000 (subject, after the Closing Date, to the provisions of Section
2.24). Overnite and the Borrower have requested the Swingline Lender to extend
credit, at any time and from time to time prior to the Revolving Credit Maturity
Date, to the Borrower in the form of Swingline Loans, in an aggregate principal
amount at any time outstanding not in excess of $15,000,000. Overnite and the
Borrower have requested the Issuing Banks to issue Letters of Credit, in an
aggregate face amount at any time outstanding not in excess of $150,000,000
(subject to the definition of the term "L/C Commitment"), for the account of
Overnite and its Subsidiaries. The proceeds of the Term Loans to be made on the
Closing Date, together with the proceeds of Revolving Loans in an aggregate
principal amount of up to $5,000,000 to be made on the Closing Date, are to be
used solely to pay the Cash Dividend and to pay fees and expenses related to the
Transactions. The proceeds of the Revolving Loans, the Swingline Loans and, if
applicable, the Incremental Term Loans are to be used solely for working capital
and other general corporate purposes of Overnite and its Subsidiaries.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Banks are willing to issue Letters of Credit for the account of Overnite
and its Subsidiaries on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum equal to the product of (a)
the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A, or such other form as may be supplied from time to
time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that, for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns 10%
or more of any voting class of Equity Interests of the person specified or that
is an officer or director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan, or with respect to the Commitment Fees, as the case
may be, the applicable percentage set forth below under the caption "Eurodollar
Spread", "ABR Spread" or "Commitment Fee Percentage", as the case may be, based
upon the ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to
the Facilities:
2
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Commitment
Ratings Eurodollar Fee
(▇▇▇▇▇'▇ and S&P) Spread ABR Spread Percentage
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Category 1 Baa1 or higher and 0.75 -- 0.20
BBB+ or higher
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Category 2 Baa2 and BBB 1.00 -- 0.25
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Category 3 Baa3 and BBB- 1.50 0.25 0.30
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Category 4 Ba1 and BBB- or 1.625 0.375 0.40
Baa3 and BB+
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Category 5 Ba1 and BB+ 1.75 0.50 0.50
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Category 6 Ba2 and BB 2.00 0.75 0.50
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Category 7 Ba3 or lower or BB- 2.50 1.25 0.50
or lower
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For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have
in effect a rating for the Facilities (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 7; (ii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the
Facilities shall fall within different Categories one level apart, the
Applicable Percentage shall be based on the lower of the two ratings (e.g.,
Category 2 would apply if the ratings were BBB+ and Baa2); (iii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the
Facilities shall fall within different Categories more than one level apart, the
Applicable Percentage shall be based on the Category one level above the lower
rating (e.g., Category 2 would apply if the ratings were BBB+ and Baa3) and (iv)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Facilities shall be changed (other than
3
as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P), such change
shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the non-availability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Percentage shall be determined by reference to the
rating most recently in effect prior to such change or cessation.
"Asset Coverage Ratio" shall mean, on any date, the ratio of (a) the sum of
(i) the cash and cash equivalents, (ii) the net accounts receivable, (iii) the
net inventories and (iv) the net properties, plant and equipment of Overnite and
its consolidated Subsidiaries on such date, in each case which are free of any
Liens other than Liens in favor of the Secured Parties and customary set-off
rights and banker's liens of depositary institutions (as determined in
accordance with GAAP and as shown on the consolidated balance sheet of Overnite
on such date) to (b) Total Adjusted Debt on such date.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger, casualty, condemnation or otherwise) by Overnite or any of the
Subsidiaries to any person other than a Loan Party of (a) any Equity Interests
of any of the Subsidiaries (other than directors' qualifying shares) or (b) any
other assets of Overnite or any of the Subsidiaries (other than (i) inventory,
damaged, obsolete or worn out assets, scrap and Permitted Investments, in each
case disposed of in the ordinary course of business, (ii) non-exclusive licenses
of intellectual property, sale or discount of overdue accounts in connection
with collections, leases or subleases (but not sale and leaseback transactions),
in each case made in the ordinary course of business, (iii) assets sold pursuant
to a Securitization Transaction and (iv) dispositions between or among Foreign
Subsidiaries), provided that any asset sale or series of related asset sales
described in clause (b) above having a value not in excess of $1,000,000 shall
be deemed not to be an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean (a) Loans of the same Class and Type made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
4
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C, or such
other form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in Richmond, Virginia or New York City are authorized or required by
law to close; provided, however, that when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of Overnite and its
consolidated Subsidiaries that are or are required to be set forth in a
consolidated statement of cash flows of Overnite and its consolidated
Subsidiaries for such period prepared in accordance with GAAP and (b) Capital
Lease Obligations incurred by Overnite and its consolidated Subsidiaries during
such period, but excluding in each case any such expenditure made to restore,
replace or rebuild property substantially to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such
property, to the extent such expenditure is made with insurance proceeds,
condemnation awards or damage recovery proceeds relating to any such damage,
loss, destruction or condemnation.
"Capital Lease" shall mean any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such person under GAAP.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any Capital Lease, and the amount
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Cash Dividend" shall mean the dividends paid on the Closing Date by the
Borrower to Overnite, Inc., by Overnite, Inc. to Holding, and by Holding to
Union Pacific Corporation, in the aggregate amount of $128,000,000 in cash.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the date hereof) shall own directly or indirectly, beneficially
or of record, shares representing more than 25% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of Overnite; (b) a
majority of the seats (other than vacant seats) on the board of directors of
Overnite shall at any time become occupied by persons who were neither (i)
nominated by the board of directors of Overnite nor (ii) appointed by directors
so nominated; (c) any change in control (or similar event, however denominated)
with respect to Overnite or any Subsidiary shall occur under and as defined in
any indenture or agreement in respect of Material Indebtedness to which Overnite
or any Subsidiary is a party; or (d) Overnite shall cease to own directly or
indirectly, 100% of the issued and outstanding Equity Interests of the Borrower.
5
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Bank (or, for purposes of Section 2.14, by any lending office of
such Lender or by such Lender's or such Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans, Other Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Credit
Commitment, a Term Loan Commitment, an Incremental Term Loan Commitment or a
Swingline Commitment.
"Closing Date" shall mean November [ ], 2003.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated September 2003.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) consolidated federal, state or local
income taxes paid or accrued (without duplication) for such period, (iii) all
amounts attributable to depreciation and amortization for such period and (iv)
any non-cash charges (other than the write-down of current assets) for such
period and minus (b) without duplication, all cash payments made during such
period on account of reserves, restructuring charges and other non-cash charges
added to Consolidated Net Income pursuant to clause (a)(iv) above in a previous
period, all determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDAR" shall mean, for any period, the sum of (a)
Consolidated EBITDA for such period and (b) to the extent deducted in
determining Consolidated Net Income for such period, Rent Expense.
6
"Consolidated Fixed Charges" shall mean, for any period, the sum of (a)
Consolidated Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of long term
Indebtedness of Overnite and the Subsidiaries (other than payments made by
Overnite or any Subsidiary to Overnite or a Subsidiary), (c) the aggregate
amount of principal payments (other than scheduled principal payments) made
during such period in respect of long term Indebtedness of Overnite and the
Subsidiaries, to the extent that such payments reduced any scheduled principal
payments that would have become due within one year after the date of the
applicable payment, (d) Rent Expense for such period, (e) the aggregate amount
of Restricted Payments made by Overnite and the Subsidiaries to a person other
than a Loan Party during such period and (f) the aggregate amount of Taxes paid
in cash by Overnite and the Subsidiaries during such period.
"Consolidated Interest Expense" shall mean, for any period, the sum of
(a) the interest expense (including imputed interest expense in respect of
Capital Lease Obligations) of Overnite and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, plus (b) any
interest accrued during such period in respect of Indebtedness of Overnite or
any Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP. For
purposes of the foregoing, interest expense shall be determined after giving
effect to any net payments made or received by Overnite or any Subsidiary with
respect to interest rate Hedging Agreements.
"Consolidated Net Income" shall mean, for any period, the net income or
loss of Overnite and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the net income, if positive, of any Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by the
Subsidiary of that net income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, statute,
rule or governmental regulation applicable to such Subsidiary, (b) the net
income or loss of any person (other than persons that will become Subsidiaries
on the Closing Date) accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with Overnite or any Subsidiary or the date that
such person's assets are acquired by the Borrower or any Subsidiary, (c) the
income of any person in which any other person (other than the Borrower or a
wholly owned Subsidiary or any director holding qualifying shares in accordance
with applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Overnite or a wholly owned
Subsidiary by such person during such period, (d) any gains or losses
attributable to sales of assets out of the ordinary course of business and (e)
any extraordinary gains or losses (as determined in accordance with GAAP).
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
7
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Current Assets" shall mean, at any time, the current assets (other
than cash and Permitted Investments) of Overnite and the Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Current Liabilities" shall mean, at any time, the current liabilities
of Overnite and the Subsidiaries at such time, as determined on a consolidated
basis in accordance with GAAP, but excluding, without duplication, (a) the
current portion of any long-term Indebtedness and (b) outstanding Revolving
Loans, Swingline Loans and Letters of Credit.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Disqualified Stock" shall mean any Equity Interest which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in whole or in part, or requires the
payment of any cash dividend, in each case at any time on or prior to the first
anniversary of the Term Loan Maturity Date, or (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interest referred to in (a) above, in each case at
any time prior to the first anniversary of the Term Loan Maturity Date.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Environmental Laws" shall mean all applicable Federal, state, local
and foreign laws (including common law), treaties, regulations, rules,
ordinances, codes, decrees, judgments, directives, orders (including consent
orders), and agreements in each case, relating to protection of the environment,
natural resources, human health and safety or the presence, Release of, or
exposure to, Hazardous Materials, or the generation, manufacture, processing,
distribution, use, treatment, storage, transport, recycling or handling of, or
the arrangement for such activities with respect to, Hazardous Materials.
"Environmental Liability" shall mean all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the Release of any Hazardous Materials or (e) any contract,
8
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity interests in any person, or any obligations
convertible into or exchangeable for, or giving any person a right, option or
warrant to acquire such equity interests or such convertible or exchangeable
obligations.
"Equity Issuance" shall mean any issuance or sale by Overnite or any
Subsidiary of any Equity Interests of Overnite or any such Subsidiary, as
applicable, except in each case for (a) any issuance or sale to Overnite or any
Subsidiary, (b) any issuance of directors' qualifying shares, (c) sales or
issuances of common stock of Overnite to management or employees of Overnite or
any Subsidiary under any employee stock option or stock purchase plan or
employee benefit plan in existence from time to time and (d) the Offering.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Overnite or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan or the withdrawal or partial withdrawal of Overnite or
any of its ERISA Affiliates from any Plan or Multiemployer Plan; (e) the receipt
by Overnite or any of its ERISA Affiliates from the PBGC or a plan administrator
of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the adoption of any amendment to a
Plan that would require the provision of security pursuant to Section 401(a)(29)
of the Code or Section 307 of ERISA; (g) the receipt by Overnite or any of its
ERISA Affiliates of any notice, or the receipt from any Multiemployer Plan by
Overnite or any of its ERISA Affiliates of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA; (h) the occurrence of a "prohibited transaction" with respect to which
Overnite or any Subsidiary could be liable; or (i) any other event or condition
with respect to a Plan or Multiemployer Plan that could result in liability of
Overnite or any Subsidiary.
9
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of Overnite, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year and (ii) reductions to noncash working capital of Overnite and the
Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current Assets
minus Current Liabilities from the beginning to the end of such fiscal year)
over (b) the sum, without duplication, of (i) the amount of any Taxes payable in
cash by Overnite and the Subsidiaries with respect to such fiscal year, (ii)
Consolidated Interest Expense for such fiscal year payable in cash, (iii)
Capital Expenditures made in cash in accordance with Section 6.10 during such
fiscal year, except to the extent financed with the proceeds of Indebtedness,
equity issuances, casualty proceeds, condemnation proceeds or other proceeds
that would not be included in Consolidated EBITDA, (iv) permanent repayments of
Indebtedness (other than mandatory prepayments of Loans under Section 2.13) made
by Overnite and the Subsidiaries during such fiscal year, but only to the extent
that such prepayments by their terms cannot be reborrowed or redrawn and do not
occur in connection with a refinancing of all or any portion of such
Indebtedness, and (v) additions to noncash working capital for such fiscal year
(i.e., the increase, if any, in Current Assets minus Current Liabilities from
the beginning to the end of such fiscal year).
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income, franchise
or similar taxes imposed on (or measured by) all or part of its net income by
the United States of America or any State or political subdivision thereof, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender or any
Issuing Bank, in which its applicable lending office is located or by any
political subdivision of any of the foregoing jurisdictions, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above, (c) in the case of a
recipient (other than an assignee pursuant to a request by the Borrower under
Section 2.21(a)), any withholding tax that is imposed on amounts payable to such
recipient at the time such recipient becomes a party to this Agreement (or
designates a new lending office), except to the extent that such recipient (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.20(a), (d) any withholding
tax that is attributable to a recipient's failure to comply with Section
2.20(e), (e) any backup withholding tax and (f) any Tax imposed by any
jurisdiction solely as a result of one or more present or former connections
between the Administrative Agent, the relevant Lender, the relevant Issuing Bank
or any other relevant recipient and such jurisdiction (other than any such
connections arising solely from any such person's
10
having executed, delivered or performed its obligations or received a payment
under, or enforced, any of the Loan Documents).
"Existing Letters of Credit" shall mean each letter of credit
previously issued for the account of the Borrower that is (a) outstanding on the
Closing Date and (b) listed on Schedule 1.01(a).
"Facilities" shall mean the revolving credit and term loan facilities
provided for under this Agreement.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated August 26, 2003, among the
Borrower, Overnite, Credit Suisse First Boston, SunTrust Capital Markets, Inc.
and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such person.
"Fixed Charge Coverage Ratio" shall mean, for any period, the ratio of
(a) Consolidated EBITDAR for such period made during such period to (b)
Consolidated Fixed Charges for such period.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean U.S. generally accepted accounting principles applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body having jurisdiction
11
over the Administrative Agent, the Lenders, the Issuing Banks, Overnite, the
Borrower, any Subsidiaries or any of their respective properties.
"Granting Lender" shall have the meaning assigned to such term in
Section 9.04(i).
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement, substantially
in the form of Exhibit E, made by Overnite and the Subsidiary Guarantors in
favor of the Collateral Agent for the ratable benefit of the Secured Parties.
"Guarantors" shall mean Overnite and the Subsidiary Guarantors.
"Hazardous Materials" shall mean (a) any petroleum products or
byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and
all other ozone-depleting substances and (b) any chemical, material, substance
or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Hedging Agreement" shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holding" shall mean Overnite Holding, Inc., a Delaware corporation.
"Holding Sale" shall mean the sale by Union Pacific Corporation, on or
immediately prior to the Closing Date, of all the issued and outstanding capital
stock of Holding to Overnite in exchange for (a) the issuance to Union Pacific
Corporation of all the issued and outstanding capital stock of Overnite and (b)
a promissory note of Overnite in the aggregate principal amount of $1,000,000.
"Inactive Subsidiary" shall mean, at any time, any Subsidiary that (a)
has consolidated assets of less than $10,000 at such time, (b) has not conducted
any business
12
or other operations during the prior 12-month period and (c) has no outstanding
Indebtedness at such time.
"Incremental Revolving Facility Amount" shall mean, at any time the
excess, if any, of (a) $50,000,000 over (b) the sum of (i) the aggregate amount
of all Incremental Term Loan Commitments established at or prior to such time
pursuant to Section 2.25 and (ii) the aggregate increase in the Revolving Credit
Commitments established prior to such time pursuant to Section 2.24.
"Incremental Term Lender" shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time, the excess, if
any, of (a) $50,000,000 over (b) the sum of (i) the aggregate increase in the
Revolving Credit Commitments established at or prior to such time pursuant to
Section 2.24 and (ii) the aggregate amount of all Incremental Term Loan
Commitments established prior to such time pursuant to Section 2.25.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental
Term Loan Assumption Agreement in form and substance reasonably satisfactory to
the Administrative Agent, among the Borrower, the Administrative Agent and one
or more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.25, to make Incremental Term Loans to
the Borrower.
"Incremental Term Loan Maturity Date" shall mean the final maturity
date of any Incremental Term Loan, as set forth in the applicable Incremental
Term Loan Assumption Agreement.
"Incremental Term Loan Repayment Dates" shall mean the dates scheduled
for the repayment of principal of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Assumption Agreement.
"Incremental Term Loans" shall mean Term Loans made by one or more
Lenders to the Borrower pursuant to clause (c) of Section 2.01. Incremental Term
Loans may be made in the form of additional Term Loans or, to the extent
permitted by Section 2.25 and provided for in the relevant Incremental Term Loan
Assumption Agreement, Other Term Loans.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all
13
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed (but only to the extent of the fair market value of such property),
(g) all Guarantees by such person of Indebtedness of others, (h) all Capital
Lease Obligations and Synthetic Lease Obligations of such person, (i) all
obligations of such person as an account party in respect of letters of credit,
(j) all obligations of such person in respect of bankers' acceptances, (k) all
obligations of such person in respect of Disqualified Stock and (l) all
Securitization Debt of such person. The Indebtedness of any person shall include
the Indebtedness of any partnership in which such person is a general partner,
except to the extent such Indebtedness is by its terms expressly non-recourse to
such person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan
(including a Swingline Loan), the last Business Day of each March, June,
September and December, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of a Eurodollar
Borrowing or conversion of a Eurodollar Borrowing to an ABR Borrowing.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the Borrower may elect; provided, however, that if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Investment Grade Standing" shall exist at any time when the Facilities
are rated (i) BBB- or better by S&P and Ba1 or better by Moody's or (ii) BB+ or
better by S&P and Baa3 or better by Moody's.
"Issuing Bank" shall mean, as the context may require, (a) SunTrust
Bank, in its capacity as the issuer of Letters of Credit hereunder, (b) with
respect to each Existing Letter of Credit, the Lender that issued such Existing
Letter of Credit, and (c) any other
14
Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k),
with respect to Letters of Credit issued by such Lender. Any Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Banks to
issue Letters of Credit pursuant to Section 2.23. The initial aggregate amount
of the L/C Commitment is $150,000,000; provided, however, that the L/C
Commitment may be (a) reduced at any time and from time to time by the Borrower
or (b) increased, at the request of the Borrower and with the written approval
of the Issuing Banks, in connection with (and by all or any portion of the
amount of) any increase in the Total Revolving Credit Commitment pursuant to
Section 2.24.
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit issued (or deemed issued) under
Section 2.23.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn stated amount of all Letters of Credit issued (or deemed issued)
pursuant to Section 2.23 and outstanding at such time and (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
equal its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the persons listed on Schedule 2.01 (other
than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become a party hereto
pursuant to an Assignment and Acceptance. Unless the context clearly indicates
otherwise, the term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 and the Existing Letters of Credit.
"Leverage Ratio" shall mean, on any date, the ratio of Total Debt on
such date to Consolidated EBITDAR for the period of four consecutive fiscal
quarters most recently ended on or prior to such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate of interest per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date that
is two Business Days prior to the commencement of such Interest Period by
reference to the British Bankers'
15
Association Interest Settlement Rates for deposits in dollars (as set forth by
any service selected by the Administrative Agent that has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for a period equal to
such Interest Period to major banks in the London interbank market in London,
England by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the beginning of such Interest
Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, Capital Lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement the Guarantee Agreement, the
Security Documents and any Incremental Term Loan Assumption Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the Swingline
Loans.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, results of operations or condition (financial or otherwise) of
Overnite and the Subsidiaries, taken as a whole, or (b) a materially adverse
effect on the validity or enforceability of any of the Loan Documents or a
material impairment of the rights of or benefits available to the Lenders under
any Loan Document.
"Material Indebtedness" shall mean Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Overnite and the Subsidiaries in an aggregate principal
amount exceeding $10,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of Overnite or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that Overnite or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"Motor Cargo" shall mean Motor Cargo Industries, Inc., a Utah corporation.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
16
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of noncash consideration initially received), net of (i) selling
expenses (including reasonable and customary broker's fees or commissions, legal
fees, transfer and similar taxes and Overnite's good faith estimate of income
taxes paid or payable in connection with such sale), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations or purchase price adjustment associated with such
Asset Sale (provided that, to the extent and at the time any such amounts are
released from such reserve, such amounts shall constitute Net Cash Proceeds) and
(iii) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is required to be repaid with such proceeds
(other than any such Indebtedness assumed by the purchaser of such asset);
provided, however, that, if (x) Overnite shall deliver a certificate of a
Financial Officer to the Administrative Agent at the time of receipt thereof
setting forth Overnite's intent to reinvest such proceeds in productive assets
of a kind then used or usable in the business of Overnite and its Subsidiaries
within 180 days of receipt of such proceeds and (y) no Default or Event of
Default shall have occurred and shall be continuing at the time of such
certificate or at the proposed time of the application of such proceeds, such
proceeds shall not constitute Net Cash Proceeds except to the extent not so used
or contractually committed to be used at the end of such 180-day period, at
which time such proceeds shall be deemed to be Net Cash Proceeds; and (b) with
respect to any issuance of Indebtedness or any Equity Issuance, the cash
proceeds thereof, net of all taxes paid and customary fees, commissions, costs
and other expenses incurred in connection therewith.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee Agreement and the Security Documents.
"Offering" shall mean the underwritten public offering of up to 100% of the
issued and outstanding common stock of Overnite by Union Pacific Corporation
pursuant to a registration statement on Form S-1 in accordance with the
Securities Act of 1933, as amended, as declared effective by the Securities and
Exchange Commission on [ ], 2003.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise similarly with respect to, any Loan Document.
"Other Term Loans" shall have the meaning assigned to such term in Section
2.25(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Acquisition" shall have the meaning assigned to such term in
Section 6.04(g).
17
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, credit ratings
of A1 or better from S&P or P1 or better from Moody's;
(c) investments in certificates of deposit, banker's acceptances, time
deposits and eurodollar time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, the Administrative Agent or any domestic
office of any commercial bank or savings and loan association organized under
the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than $500,000,000
and whose short term debt is rated either A1 or better by S&P or P1 or better by
Moody's;
(d) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria of clause (c) above;
(e) investments in "money market funds" within the meaning of Rule 2a-7 of
the Investment Company Act of 1940, as amended, substantially all of whose
assets are invested in investments of the type described in clauses (a) through
(d) above;
(f) auction rate preferred stock or bonds rated either AA or better by S&P
or Aa2 or better by Moody's;
(g) tax-exempt securities, including municipal notes, auction rate floaters
and floating rate notes, rated at least A1 or better by S&P or P1 or better by
Moody's, and maturing within one year from the date of acquisition thereof; and
(h) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in investments
of a type analogous to the foregoing.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership,
Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA
18
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in the
form of Exhibit D, between Overnite, the Subsidiaries party thereto and the
Collateral Agent for the ratable benefit of the Secured Parties.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by SunTrust Bank as its prime rate in effect at its principal
office in Atlanta, Georgia; each change in the Prime Rate shall be effective on
the date such change is publicly announced as being effective. The parties
hereto acknowledge that the rate announced publicly by Sun Trust Bank as its
Prime Rate is a base rate and shall not necessarily be its lowest or best rate
charged.
"Pro Forma Basis" shall mean, with respect to compliance with any test or
covenant hereunder, in connection with or after the occurrence of any Permitted
Acquisition or the incurrence of any Indebtedness under Section 6.01(j),
compliance with such covenant or test after giving effect to any proposed
Permitted Acquisition or incurrence of such Indebtedness (including pro forma
adjustments arising out of events which are directly attributable to the
proposed Permitted Acquisition, are factually supportable and are reasonably
expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as
amended, and as interpreted by the staff of the Securities and Exchange
Commission) using, for purposes of determining such compliance, the historical
financial statements of all entities or assets so acquired or to be acquired and
the consolidated financial statements of Overnite and its Subsidiaries which
shall be reformulated as if such Permitted Acquisition, and any other Permitted
Acquisitions that have been consummated during or after the end of the relevant
period, and any Indebtedness or other liabilities incurred in connection with
any such Permitted Acquisitions or otherwise after the end of the relevant
period had been consummated or incurred, respectively, at the beginning of such
period and assuming that any such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant acquisition at the
weighted average interest rates applicable to outstanding Loans during such
period).
"Pro Forma Compliance" shall mean, at any date of determination, that
Overnite and its Subsidiaries shall be in pro forma compliance with the
covenants set forth in Sections 6.09, 6.10, 6.11 and 6.12 as of the last day of
the most recent fiscal quarter-end (computed on the basis of (a) balance sheet
amounts as of the most recently completed fiscal quarter and (b) income
statement amounts for the most recently completed period of four consecutive
fiscal quarters, in each case, for which financial statements shall have been
delivered to the Administrative Agent and calculated on a Pro Forma Basis).
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall
19
have expired or been terminated, the Pro Rata Percentages shall be determined on
the basis of the Revolving Credit Commitments and Total Revolving Credit
Commitment most recently in effect.
"Register" shall have the meaning assigned to such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Related Parties" shall mean, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Rent Expense" shall mean, for any period, the aggregate rent expense (both
accrued and paid but without duplication) of Overnite and its Subsidiaries for
such period in accordance with GAAP, but excluding therefrom (a) any rent
expense included in the calculation of Consolidated Interest Expense, (b) any
rent expense included in the calculation of Capital Lease Obligations or
Synthetic Lease Obligations and (c) aggregate rent expense under lease
arrangements of fewer than 365 days' duration (after giving effect to any
renewal options).
"Repayment Date" shall have the meaning given such term in Section
2.11(a)(i), and shall include any Incremental Term Loan Repayment Date.
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments and Term Loan Commitments representing more than 50% of the sum of
all Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline
Exposure and unused Revolving Credit Commitments and Term Loan Commitments at
such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
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"Restricted Payment" shall mean any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Overnite or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Overnite or any Subsidiary or any option,
warrant or other right to acquire any such Equity Interests in Overnite or any
Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09, (b) increased from time to
time pursuant to Section 2.24 and (c) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean November [ ], 2008.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01.
"S&P" shall mean Standard & Poor's Ratings Service, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Secured Parties" shall have the meaning assigned to such term in the
Pledge Agreement.
"Securitization Debt" shall have the meaning assigned to such term in
the definition of the term "Securitization Transaction".
"Securitization Transaction" shall mean, with respect to any person,
(i) any transfer by such person of accounts receivable, rights to future lease
payments or residuals or other financial assets, and related property, or
interests therein (a) to a trust, partnership, limited liability company,
corporation or other entity, which transfer is funded in whole or in part,
directly or indirectly, by the incurrence or issuance by the transferee or any
successor transferee of Indebtedness or securities (collectively,
21
"Securitization Debt") that are to receive payments from, or that represent
interests in, the cash flow derived from such accounts receivable, rights to
future lease payments or residuals or other financial assets, and related
property, or interests therein, or (b) directly to one or more investors or
other purchasers, (ii) the issuance of any Indebtedness of such person secured
substantially entirely by accounts receivable, rights to future lease payments
or residuals or other financial assets, and related property or (iii) any
factoring transaction involving substantially entirely accounts receivable,
rights to future lease payments or residuals or other financial assets, and
related property.
"Security Documents" shall mean the Pledge Agreement and each of the
security agreements and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.08.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch, Affiliate
or other fronting office making or holding a Loan) is subject for Eurocurrency
Liabilities (as defined in Regulation D of the Board). Eurodollar Loans shall be
deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the
Board) and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any direct or indirect subsidiary of Overnite.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(a), and each other Subsidiary that is or becomes a party to the Guarantee
Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09.
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"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean SunTrust Bank, in its capacity as lender
of Swingline Loans hereunder.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Synthetic Lease" shall mean, as to any person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (a) that is accounted for as an operating
lease under GAAP (and not accounted for as a Capital Lease under GAAP) and (b)
in respect of which the lessee retains or obtains ownership of the property so
leased for U.S. federal income tax purposes, other than any such lease under
which such person is the lessor.
"Synthetic Lease Obligations" shall mean, as to any person, an amount
equal to the sum of (a) the obligations of such person to pay rent or other
amounts under any Synthetic Lease which are attributable to principal and,
without duplication, (b) the amount of any purchase price payment under any
Synthetic Lease assuming the lessee exercises the option to purchase the leased
property at the end of the lease term.
"Synthetic Purchase Agreement" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which Overnite or any
Subsidiary is or may become obligated to make (a) any payment in connection with
a purchase by any third party from a person other than Overnite or any
Subsidiary of any Equity Interest or (b) any payment (other than on account of a
permitted purchase by it of any Equity Interest) the amount of which is
determined by reference to the price or value at any time of any Equity
Interest; provided that no phantom stock or similar plan providing for payments
only to current or former directors, officers or employees of Overnite or the
Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans or
Incremental Term Loans.
"Term Loan Commitment" shall mean (a) with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed
its Term Loan Commitment, as applicable, as the same may be (i)reduced from time
to time pursuant to Section 2.09 and (ii) reduced or increased from time to time
23
pursuant to assignments by or to such Lender pursuant to Section 9.04, and (b)
any Incremental Term Loan Commitment.
"Term Loan Maturity Date" shall mean November [ ], 2008.
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to Section 2.01. Unless the context shall otherwise require,
the term "Term Loans" shall include any Incremental Term Loans.
"Total Adjusted Debt" shall mean, at any time, the total Indebtedness
of Overnite and the Subsidiaries at such time determined on a consolidated basis
(excluding Indebtedness of the type described in clauses (f) and (h) of the
definition of such term).
"Total Debt" shall mean, at any time, the sum of (a) the total
Indebtedness of Overnite and the Subsidiaries at such time determined on a
consolidated basis and (b) the product of (i) the Rent Expense of Overnite and
its Subsidiaries on a consolidated basis for the immediately preceding four
fiscal quarters multiplied by (ii) 8.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
The initial Total Revolving Credit Commitment is $175,000,000.
"Transactions" shall mean, collectively, (a) the execution, delivery
and performance by each Loan Party of each of the Loan Documents to which it is
to be a party and, in the case of the Borrower, the making of the initial
Borrowings hereunder, (b) the Holding Sale, (c) the consummation of the
Offering, (d) the payment of the Cash Dividend, (e) the forgiveness by Holding
of a net intercompany receivable from Union Pacific Corporation in the amount of
approximately $196,500,000, and (f) the payment of related fees and expenses.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the Equity Interests are, at the time
any determination is being made, owned, controlled or held by such person or one
or more wholly owned Subsidiaries of such person or by such person and one or
more wholly owned Subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall"; and the words "asset" and "property" shall be construed as having
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.04. Pro Forma Calculations. With respect to any period during
which any Permitted Acquisition occurs as permitted pursuant to the terms
hereof, for purposes of determining compliance or Pro Forma Compliance with the
covenants set forth in Sections 6.10, 6.11 and 6.12 the Fixed Charge Coverage
Ratio, the Leverage Ratio and the Asset Coverage Ratio shall be calculated with
respect to such periods and such Permitted Acquisition on a Pro Forma Basis.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Term Loan to the Borrower on
the Closing Date in a
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principal amount not to exceed its Term Loan Commitment, (b) to make Revolving
Loans to the Borrower, at any time and from time to time on or after the date
hereof, and until the earlier of the Revolving Credit Maturity Date and the
termination of the Revolving Credit Commitment of such Lender in accordance with
the terms hereof, in an aggregate principal amount at any time outstanding that
will not result in such Lender's Revolving Credit Exposure exceeding such
Lender's Revolving Credit Commitment, and (c) if such Lender has any Incremental
Term Loan Commitment, to make Incremental Term Loans to the Borrower, in a
principal amount not to exceed its Incremental Term Loan Commitment. Within the
limits set forth in clause (b) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Borrower may borrow, pay
or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of
Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000 (except with respect to any Incremental Term Loan
Borrowing, to the extent otherwise provided in the related Incremental Term Loan
Assumption Agreement) or (ii) equal to the remaining available balance of the
applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than eight Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account as the
Administrative Agent may designate not later than 11:00 a.m., Eastern time, and
the Administrative Agent shall promptly transfer the amounts so received to the
account designated by the Borrower in the applicable Borrowing Request or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders.
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(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If an Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) within the time specified in such
Section, such Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., Eastern
time, on such date (or, if such Revolving Credit Lender shall have received such
notice later than 12:00 (noon), Eastern time, on any day, not later than 10:00
a.m., Eastern time, on the immediately following Business Day), an amount equal
to such Lender's Pro Rata Percentage of such L/C Disbursement (it being
understood that such amount shall be deemed to constitute an ABR Revolving Loan
of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to such Issuing Bank
amounts so received by it from the Revolving Credit Lenders. The Administrative
Agent will promptly pay to such Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit
Lender makes any payment pursuant to this paragraph (f); any such amounts
received by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such
payments and to such Issuing Bank, as their interests may appear. If any
Revolving Credit Lender shall not have made its Pro Rata Percentage of such L/C
Disbursement available to the Administrative Agent as provided above, such
Lender and the Borrower severally agree to pay interest on such amount, for each
day from and including the date such amount is required to be paid in accordance
with this paragraph to
27
but excluding the date such amount is paid, to the Administrative Agent for the
account of such Issuing Bank at (i) in the case of the Borrower, a rate per
annum equal to the interest rate applicable to Revolving Loans pursuant to
Section 2.06(a), and (ii) in the case of such Lender, for the first such day,
the Federal Funds Effective Rate, and for each day thereafter, the Alternate
Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Borrowing Request (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., Eastern time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 10:00 a.m., Eastern time, on the same Business Day as
the proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing, an Incremental Term Borrowing or a Revolving Credit Borrowing, and
whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii)
the date of such Borrowing (which shall be a Business Day); (iii) the number and
location of the account to which funds are to be disbursed; (iv) the amount of
such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given pursuant to this Section 2.03 (and the contents thereof), and of each
Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to each Lender, through the Administrative
Agent, (i) the principal amount of each Term Loan of such Lender as provided in
Section 2.11 and (ii) the then unpaid principal amount of each Revolving Loan of
such Lender on the Revolving Credit Maturity Date. The Borrower hereby promises
to pay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and, if
applicable, the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and
28
payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrower or any
Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced by
a promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns and
in a form and substance reasonably acceptable to the Administrative Agent and
the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on each date on which any Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a
"Commitment Fee") equal to the Applicable Percentage per annum in effect from
time to time on the daily unused amount of the Commitments of such Lender (other
than the Swingline Commitment) during the preceding quarter (or other period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which the Commitments of such Lender shall expire or be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitment Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the date on which the Commitment of such Lender shall expire or be terminated as
provided herein. For purposes of calculating Commitment Fees only, no portion of
the Revolving Credit Commitments shall be deemed utilized as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administration fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during
29
the preceding quarter (or shorter period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which all Letters
of Credit have been canceled or have expired and the Revolving Credit
Commitments of all Lenders shall have been terminated) at a rate per annum equal
to the Applicable Percentage from time to time used to determine the interest
rate on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to
Section 2.06, and (ii) to each Issuing Bank, with respect to each Letter of
Credit issued by it, a fronting fee, on the last Business Day of March, June,
September and December which shall accrue at the rate of 0.125% per annum on the
daily amount of the L/C Exposure (excluding any portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all the Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all the Lenders shall have been
terminated), as well as such Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder (the "Issuing Bank Fees"). All L/C Participation Fees and
Issuing Bank Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Banks. Except for errors in the calculation thereof, once paid, none
of the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360 days at all
other times and calculated from and including the date of such Borrowing to but
excluding the date of repayment thereof) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable to the applicable Lenders,
through the Administrative Agent, on the Interest Payment Dates applicable to
such Loan except as otherwise provided in this Agreement. The applicable
Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or day within
an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
30
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of any principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
then, until such defaulted amount shall have been paid in full, to the extent
permitted by law, all amounts outstanding under this Agreement and the other
Loan Agreements shall bear interest (after as well as before judgment), payable
on demand, (a) in the case of overdue principal, at the rate otherwise
applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in
all other cases, at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the rate that would be applicable to an ABR Revolving Loan
plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to a majority in interest of the Lenders
of the relevant Class of making or maintaining their Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the
Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent manifest
error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., Eastern time, on
the Closing Date. The Revolving Credit Commitments, the Swingline Commitment and
the L/C Commitment shall automatically terminate on the Revolving Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., Eastern time, on November 30, 2003, if the
initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice (or telephonic notice promptly confirmed by written notice) to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Term Loan
Commitments or the Revolving Credit Commitments; provided, however, that (i)
each partial reduction of the Term Loan Commitments or the Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the Aggregate Revolving
31
Credit Exposure at the time. Any such termination or reduction will be without
premium or penalty, subject to the provisions of Section 2.16.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
termination of the Commitments of any Class, all accrued and unpaid Commitment
Fees relating to such Class so terminated or reduced accrued to but excluding
the date of such termination.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), Eastern time, one Business
Day prior to conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., Eastern time, three Business Days
prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
Eastern time, three Business Days prior to conversion, to convert the Interest
Period with respect to any Eurodollar Borrowing to another permissible Interest
Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing shall
satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding the
principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new Loan of
such Lender resulting from such conversion and reducing the Loan (or portion
thereof) of such Lender being converted by an equivalent principal amount;
accrued interest on any Eurodollar Loan (or portion thereof) being converted
shall be paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause
32
shall be automatically converted at the end of the Interest Period in effect for
such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Repayment Date occurring on or after the
first day of such Interest Period if, after giving effect to such selection, the
aggregate outstanding amount of (A) the Eurodollar Term Borrowings with Interest
Periods ending on or prior to such Repayment Date and (B) the ABR Term
Borrowings would not be at least equal to the principal amount of Term
Borrowings to be paid on such Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and during
the continuance of a Default or Event of Default, no outstanding Loan may be
converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
preceding Business Day (each such date being called a "Repayment Date"), a
principal amount of the Term Loans (as adjusted from time to time pursuant to
Sections 2.11(b), 2.12 and 2.13(f)) equal to the amount set forth below for such
date, together in each case with accrued and unpaid interest on the principal
amount to be paid to but excluding the date of such payment:
Date Amount
---- ------
March 31, 2004 $3,125,000
June 30, 2004 $3,125,000
33
September 30, 2004 $ 3,125,000
December 31, 2004 $ 3,125,000
March 31, 2005 $ 3,125,000
June 30, 2005 $ 3,125,000
September 30, 2005 $ 3,125,000
December 31, 2005 $ 3,125,000
March 31, 2006 $ 4,687,500
June 30, 2006 $ 4,687,500
September 30, 2006 $ 4,687,500
December 31, 2006 $ 4,687,500
March 31, 2007 $ 7,812,500
June 30, 2007 $ 7,812,500
September 30, 2007 $ 7,812,500
December 31, 2007 $ 7,812,500
March 31, 2008 $12,500,000
June 30, 2008 $12,500,000
September 30, 2008 $12,500,000
Term Loan Maturity Date $12,500,000
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on each Incremental Term Loan Repayment Date, a
principal amount of the Other Term Loans (as adjusted from time to time pursuant
to Sections 2.11(b), 2.12 and 2.13(f)) equal to the amount set forth for such
date in the applicable Incremental Term Loan Assumption Agreement, together in
each case with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of such payment.
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable in each year shall be reduced
pro rata by an aggregate amount equal to the amount of such reduction,
expiration or termination.
(c) To the extent not previously paid, all Term Loans and Incremental
Term Loans shall be due and payable on the Term Loan Maturity Date and the
Incremental Term Loan Maturity Date, respectively, together with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of
payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon
written or telecopy notice (or telephonic notice promptly confirmed by written
notice) to the Administrative Agent given prior to 11:00 a.m., Eastern time, at
least three Business Days prior to the proposed prepayment of any Eurodollar
Loan, or written or telecopy notice (or telephonic notice promptly confirmed by
written notice) to the Administrative
34
Agent given prior to 10:00 a.m., Eastern time, on the Business Day of any
proposed prepayment of an ABR Loan; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the Term Loans and the Other Term Loans, if any, and applied pro rata
against the remaining scheduled installments of principal due in respect of the
Term Loans and the Other Term Loans.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but shall otherwise be made without
premium or penalty. All prepayments under this Section 2.12 shall be accompanied
by accrued and unpaid interest on the principal amount to be prepaid to but
excluding the date of payment; provided, however, that in the case of a
prepayment of an ABR Revolving Loan or a Swingline Loan that is not made in
connection with a termination of the Revolving Credit Commitments, the accrued
and unpaid interest on the principal amount prepaid shall be payable on the next
scheduled Interest Payment Date with respect to such ABR Revolving Loan or
Swingline Loan.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall, on the
date of such termination, repay or prepay all its outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace all outstanding
Letters of Credit. If as a result of any partial reduction of the Revolving
Credit Commitments the Aggregate Revolving Credit Exposure would exceed the
Total Revolving Credit Commitment after giving effect thereto, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof).
(b) Subject to the last sentence of Section 2.13(g), not later than the
third Business Day following the completion of any Asset Sale, the Borrower
shall apply an amount equal to 100% of the Net Cash Proceeds thereof received by
Overnite or any Subsidiary with respect thereto to prepay outstanding Loans in
accordance with Section 2.13(g).
(c) Subject to the last sentence of Section 2.13(g), in the event and
on each occasion that an Equity Issuance occurs, the Borrower shall,
substantially simultaneously with (and in any event not later than the third
Business Day next following) the occurrence of such Equity Issuance, apply an
amount equal to 50% of the Net Cash Proceeds thereof received by Overnite or any
Subsidiary with respect thereto to prepay outstanding Loans in accordance with
Section 2.13(g).
(d) Subject to the last sentence of Section 2.13(g), no later than the
earlier of (i) 90 days after the end of each fiscal year of Overnite (commencing
with the fiscal year ending on December 31, 2004), and (ii) the date on which
the financial statements with respect to such fiscal year are delivered pursuant
to Section 5.04(a), the Borrower shall
35
prepay outstanding Loans in accordance with Section 2.13(g) in an aggregate
principal amount equal to 50% of Excess Cash Flow for the fiscal year then
ended.
(e) Subject to the last sentence of Section 2.13(g), in the event that
Overnite or any Subsidiary shall receive Net Cash Proceeds from the consummation
of any Securitization Transaction (or, after the consummation of any
Securitization Transaction, any increase in the size thereof), the Borrower
shall, substantially simultaneously with (and in any event not later than the
third Business Day next following) the receipt of such Net Cash Proceeds by
Overnite or such Subsidiary, apply an amount equal to 100% of such Net Cash
Proceeds to prepay outstanding Loans in accordance with Section 2.13(g).
(f) In the event that Overnite or any Subsidiary shall receive Net Cash
Proceeds from the incurrence of Indebtedness for borrowed money (other than
Indebtedness permitted pursuant to Section 6.01), the Borrower shall,
substantially simultaneously with (and in any event not later than the third
Business Day next following) the receipt of such Net Cash Proceeds by Overnite
or such Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to
prepay outstanding Loans in accordance with Section 2.13(g).
(g) Mandatory prepayments of outstanding Loans under this Agreement shall
be allocated first, pro rata among the then outstanding Term Loans and Other
Term Loans, if any, and applied pro rata against the remaining scheduled
installments of principal due in respect of Term Loans and Other Term Loans
under Sections 2.11(a)(i) and (ii), respectively, and second, after the payment
in full of all Term Loans, to the prepayment of Swingline Loans and Revolving
Loans (with no mandatory reduction on the Revolving Credit Commitments).
Notwithstanding the foregoing, no prepayment of Loans shall be required under
Section 2.13(b), (c), (d) or (e) if, at the time such prepayment otherwise would
be required to be made, the Facilities have an Investment Grade Standing.
(h) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days' prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Class and Type of each Loan
being prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or any Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
such Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or such Issuing Bank of making
36
or maintaining any Eurodollar Loan or increase the cost to any Lender of issuing
or maintaining any Letter of Credit or purchasing or maintaining a participation
therein or to reduce the amount of any sum received or receivable by such Lender
or such Issuing Bank hereunder (whether of principal, interest or otherwise) by
an amount deemed by such Lender or such Issuing Bank to be material, then the
Borrower will pay to such Lender or such Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank shall have determined that any Change
in Law regarding capital adequacy has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the capital
of such Lender's or such Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of Credit issued
by such Issuing Banks pursuant hereto to a level below that which such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of such Lender's or
such Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Lender or such Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or such Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank or such Lender's or such Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or such Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or such Issuing Bank the amount shown as due on
any such certificate delivered by it within 30 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be under any obligation to compensate any Lender or
any Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender or such Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 120-day period. The protection of this Section
shall be available to each Lender and
37
each Issuing Bank regardless of any possible contention of the invalidity or
inapplicability of the Change in Law that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if any Change in Law shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder (or be
continued for additional Interest Periods and ABR Loans will not thereafter (for
such duration) be converted into Eurodollar Loans), whereupon any request for a
Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing
or to continue a Eurodollar Borrowing for an additional Interest Period) shall,
as to such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such or to convert a Eurodollar Loan into an ABR Loan,
as the case may be), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Eurodollar Loans made
by it be converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of such notice
as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (a) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (b) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (c) any Eurodollar Loan to be made by
such Lender (including any Eurodollar Loan to be made pursuant to a conversion
or continuation under Section 2.10) not being made after notice of such Loan
shall have been given by the Borrower hereunder (any of the events referred to
in this sentence being called a "Breakage Event"). In the case of any Breakage
Event, such loss
38
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate delivered by it within 30 days after its receipt of the
same.
SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15,
each Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees or the L/C
Participation Fees, each reduction of the Term Loan Commitments or the Revolving
Credit Commitments and each conversion of any Borrowing to or continuation of
any Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans or participations in L/C
Disbursements, as applicable). Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or L/C Disbursement as a result of which the unpaid portion of its Loans
and participations in L/C Disbursements shall be proportionately less than the
unpaid portion of the Loans and participations in L/C Disbursements of any other
Lender, it shall be deemed simultaneously to have purchased from such other
Lender at face value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Loans and L/C Exposure of such other Lender,
so that the aggregate unpaid amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid amount of all Loans and L/C Exposure
then outstanding as the amount of its Loans and L/C Exposure prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
amount of all Loans and L/C Exposure outstanding prior to such exercise of
banker's lien, setoff or counterclaim or other event; provided, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.18 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrower
39
and Overnite expressly consent to the foregoing arrangements and agree that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have been
so purchased may, subject to the provisions of Section 9.06, exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower or any other Loan Party to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any L/C Disbursement or any Fees or
other amounts) hereunder and under any other Loan Document not later than 12:00
(noon), Eastern time, on the date when due in immediately available dollars,
without setoff, defense or counterclaim. Each such payment (other than (i)
Issuing Bank Fees, which shall be paid directly to the Issuing Banks, and (ii)
principal of and interest on Swingline Loans, which shall be paid directly to
the Swingline Lender except as otherwise provided in Section 2.21(e)) shall be
made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or such
Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
each Issuing Bank within 10 Business Days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or such Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with
40
respect thereto (except to the extent arising from the gross negligence or
willful misconduct of the Administrative Agent, such Lender or such Issuing
Bank), whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, an Issuing Bank or by the Administrative Agent on its
behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent
manifest error; provided, however that any demand by the Administrative Agent,
any Lender or any Issuing Bank hereunder shall be made no later than 120 days
after the earlier of: (1) the date on which the Administrative Agent, such
Lender or such Issuing Bank pays such Indemnified Taxes or Other Taxes or (2)
the date on which the relevant Governmental Authority makes written demand for
payment of such Indemnified Taxes or Other Taxes.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Lender or Issuing Bank that is entitled to an exemption from or
reduction of withholding tax (including backup withholding tax) under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or Governmental Authority, such properly
completed and executed documentation prescribed by applicable law or
Governmental Authority or reasonably requested by the Borrower as will permit
such payments to be made without withholding or at a reduced rate of
withholding.
(f) If the Administrative Agent or a Lender or an Issuing Bank receives a
refund of, or receives an actual economic benefit from the utilization of any
credit against, any Taxes or Other Taxes in respect of any Indemnified Taxes or
Other Taxes for which it has received an indemnity payment from (or an
additional amount has been paid by) the Borrower, the Administrative Agent or
such Lender or such Issuing Bank shall within 60 days from the date of such
receipt pay over, without duplication, the amount of such refund or benefit to
the Borrower (but only to the extent of indemnity payments made or other amounts
paid by the Borrower under this Section 2.20 with respect to such Indemnified
Taxes or Other Taxes giving rise to such refund or credit, net of all reasonable
out-of-pocket expenses of the Administrative Agent or such Lender or such
Issuing Bank and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund)), provided that the Borrower
(upon written request of the Administrative Agent or such Lender or such Issuing
Bank) agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender or Issuing Bank (i) in the event the
Administrative Agent or such Lender or such Issuing
41
Bank is required to repay such refund to such Governmental Authority or (ii) in
the event that an adjustment by such Governmental Authority or any change in the
Administrative Agent's, such Lender's or such Issuing Bank's tax position or tax
circumstances reduces the actual economic benefit from the utilization of such
credit received by such Administrative Agent, Lender or Issuing Bank, as the
case may be. Nothing in this paragraph shall be construed to require the
Administrative Agent or any Lender or any Issuing Bank to make available to the
Borrower any tax return or other information that the Administrative Agent or
such Lender or such Issuing Bank deems to be confidential or proprietary. In
addition, whether the Administrative Agent, a Lender or an Issuing Bank has
received a refund or utilized any credit described above, and the amount of any
actual economic benefit received from any such utilization, shall be determined
by the Administrative Agent, Lender or Issuing Bank, as appropriate. The parties
agree that, for purposes of determining whether the Administrative Agent, any
Lender or Issuing Bank, as the case may be, has utilized any credit against Tax
described in this paragraph, any provision of applicable law regarding the order
or timing of utilization of credits against Tax shall be given effect and that,
if any such provision of applicable law deems credits of any type or class to be
utilized before or after credits of another type or class and any such type or
class includes credits described in this paragraph, then any credits described
in this paragraph will be deemed not to have been utilized until after all other
credits of such type or class are utilized. For the avoidance of doubt, the
parties agree that, to the extent utilization of any credit against Tax gives
rise to both an actual economic benefit and a refund, this paragraph shall
require the Administrative Agent, any Lender or Issuing Bank to pay over to the
Borrower with respect to such utilization only the amount of such economic
benefit, but not any other amount in respect of such refund.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or any Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
any Issuing Bank delivers a notice described in Section 2.15, (iii) pursuant to
Section 2.20 the Borrower is required to pay any additional amount (including
any tax indemnity payment) to any Lender or any Issuing Bank or any Governmental
Authority on account of any Lender or any Issuing Bank or (iv) any Lender
refuses to consent to any amendment, waiver or other modification of any Loan
Document requested by the Borrower that requires the consent of a greater
percentage of the Lenders than the Required Lenders and such amendment, waiver
or other modification is consented to by the Required Lenders, the Borrower may,
at its sole expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender or
such Issuing Bank and the Administrative Agent, require such Lender or such
Issuing Bank to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all of its interests,
rights and obligations under this Agreement to an assignee that shall assume
such assigned obligations and, with respect to clause (iv) above, shall consent
to such requested amendment, waiver or other modification of any Loan Document
(which assignee may be another Lender, if a Lender accepts such assignment);
provided that (x) such assignment shall not conflict with any law, rule or
regulation or order of any court or other Governmental Authority having
jurisdiction, (y) if the assignee is not another Lender, the Borrower shall have
received the prior
42
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, of the Issuing Banks and the Swingline Lender),
which consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or affected Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or such Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or such Issuing Bank
hereunder (including any amounts under Section 2.14, Section 2.16 and Section
2.20); provided further that, if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's or such Issuing Bank's
claim for compensation under Section 2.14 or notice under Section 2.15 or the
amounts paid pursuant to Section 2.20, as the case may be, cease to cause such
Lender or such Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under Section 2.20, as the case may be (including as a result of any
action taken by such Lender or such Issuing Bank pursuant to paragraph (b)
below), or if such Lender or such Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or event
or shall consent to the proposed amendment, waiver or other modification, as the
case may be, then such Lender or such Issuing Bank shall not thereafter be
required to make any such transfer and assignment hereunder. Each Lender hereby
grants to the Administrative Agent an irrevocable power of attorney (which power
is coupled with an interest) to execute and deliver, on behalf of such Lender,
as assignor, any Assignment and Acceptance necessary to effectuate any
assignment of such Lender's interests hereunder in the circumstances
contemplated by this Section 2.21(a).
(b) If (i) any Lender or any Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in
Section 2.15 or (iii) pursuant to Section 2.20, the Borrower is required to pay
any additional amount (including any tax indemnity payment) to any Lender or any
Issuing Bank or any Governmental Authority on account of any Lender or any
Issuing Bank, then such Lender or such Issuing Bank shall use reasonable efforts
(which shall not require such Lender or the Issuing Bank to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or
suffer any disadvantage or burden deemed by it to be significant) (x) to file
any certificate or document reasonably requested in writing by the Borrower or
(y) to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or Affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses actually incurred by any Lender
or any Issuing Bank in connection with any such filing or assignment, delegation
and transfer.
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SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $15,000,000 in the aggregate
or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $250,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Swingline Lender by
telecopy, or by telephone (confirmed by telecopy), not later than 10:00 a.m.,
Eastern time, on the day of a proposed Swingline Loan. Such notice shall be
delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan and the wire transfer instructions for the
account of the Borrower to which proceeds of such Swingline Loan should be
transferred. The Swingline Lender shall promptly make each Swingline Loan by
wire transfer to the account specified by the Borrower in such request.
(c) Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Swingline Loan, in whole or in part, without premium or
penalty, upon giving written or telecopy notice (or telephonic notice promptly
confirmed by written notice) to the Swingline Lender and to the Administrative
Agent before 12:00 (noon), Eastern time on the date of prepayment at the
Swingline Lender's address for notices specified on Schedule 2.01.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., Eastern time, on any Business
Day require the Revolving Credit Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which the Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender acknowledges and agrees that
44
its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis mutandis, to the payment obligations of the Lenders) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request the
issuance of a Letter of Credit for its own account or for the account of
Overnite or any of its wholly owned Subsidiaries (in which case the Borrower and
Overnite or such wholly owned Subsidiary, as the case may be, shall be
co-applicants with respect to such Letter of Credit), in a form reasonably
acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time while the Revolving Credit Commitments remain in
effect. This Section shall not be construed to impose an obligation upon any
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the applicable Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. Such Issuing
Bank shall promptly (i) notify the Administrative Agent in writing of the amount
and expiry date of each Letter of Credit issued by it and (ii) provide a copy of
each such Letter of Credit (and any amendments, renewals or extensions thereof)
to the Administrative Agent. A Letter of Credit shall be issued, amended,
renewed or extended only if, and
45
upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that, after giving effect to
such issuance, amendment, renewal or extension (i) the L/C Exposure shall not
exceed the L/C Commitment and (ii) the Aggregate Revolving Credit Exposure shall
not exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that a Letter of Credit may, upon
the request of the Borrower, include a provision whereby such Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to the
Revolving Credit Maturity Date) unless the applicable Issuing Bank notifies the
beneficiary thereof at least 30 days prior to the then-applicable expiration
date that such Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each
such Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Pro Rata Percentage of the aggregate
amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit (or, in the case of the Existing Letters of
Credit, effective upon the Closing Date). In consideration and in furtherance of
the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Lender's Pro Rata Percentage of each L/C
Disbursement made by such Issuing Bank and not reimbursed by the Borrower (or,
if applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.02(f). Each
Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent (or directly to such Issuing Bank, with concurrent notice to the
Administrative Agent) an amount equal to such L/C Disbursement not later than
2:00 p.m., Eastern time, on the Business Day that the Borrower shall have
received notice from such Issuing Bank that payment of such draft will be made,
or, if the Borrower shall have received such notice later than 10:00 a.m.,
Eastern time, on any Business Day, not later than 10:00 a.m., Eastern time, on
the immediately following Business Day.
46
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with, the
Borrower, any Subsidiary or other Affiliate thereof or any other person may at
any time have against the beneficiary under any Letter of Credit, the Issuing
Banks, the Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Banks, the Lenders, the Administrative Agent or any other person or any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of any Issuing Bank. However, the
foregoing shall not be construed to excuse any Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that such Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) such Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due
47
to the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute wilful misconduct or gross negligence of any Issuing
Bank.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. Each Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether
such Issuing Bank has made or will make an L/C Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Revolving
Credit Lenders with respect to any such L/C Disbursement. The Administrative
Agent shall promptly give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If any Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of such Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may resign
at any time by giving 30 days' prior written notice to the Administrative Agent,
the Lenders and the Borrower, and may be removed at any time by the Borrower by
notice to the applicable Issuing Bank, the Administrative Agent and the Lenders.
Subject to the next succeeding paragraph, upon the acceptance of any appointment
as an Issuing Bank hereunder by a Lender that shall agree to serve as successor
Issuing Bank, such resignation or removal shall become effective and such
successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be
discharged from its obligations to issue additional Letters of Credit hereunder.
At the time such removal or resignation shall become effective, the Borrower
shall pay all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The
acceptance of any appointment as an Issuing Bank hereunder by a successor Lender
shall be evidenced by an agreement entered into by such successor, in a form
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor Lender shall have all
the rights and obligations of the previous Issuing Bank under this Agreement and
the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous Issuing
48
Banks, as the context shall require. After the resignation or removal of an
Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
ratable benefit of the Revolving Credit Lenders, an amount in cash equal to the
L/C Exposure as of such date; provided, however, that the obligation to deposit
such cash shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to Overnite or the Borrower
described in clause (g) or (h) of Article VII. Such deposit shall be held by the
Collateral Agent as collateral for the payment and performance of the
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account and shall invest
such deposits in Permitted Investments as directed by the Borrower. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall (i) automatically be applied by the Administrative Agent to
reimburse each Issuing Bank for L/C Disbursements for which it has not been
reimbursed, (ii) be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Exposure at such time and (iii) if the maturity of
the Loans has been accelerated (but subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, all funds on deposit (including interest and profits) (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of the Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed to
be an "Issuing Bank" (in addition to being a Lender) in respect of Letters of
Credit issued or to be issued by such Lender, and, with respect to such Letters
of Credit, such term shall thereafter apply to the other Issuing Bank and such
Lender.
SECTION 2.24. Increase in Revolving Credit Commitments. (a) The Borrower
may, by written notice to the Administrative Agent, request that the Total
Revolving Credit Commitment be increased by an amount not to exceed the
Incremental Revolving
49
Facility Amount at such time. Upon the receipt of such request by the
Administrative Agent, the Administrative Agent shall deliver a copy thereof to
each Revolving Credit Lender. Such notice shall set forth the amount of the
requested increase in the Total Revolving Credit Commitment (which shall be in
minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to
the remaining Incremental Revolving Facility Amount) and the date on which such
increase is requested to become effective (which shall be not less than 10
Business Days nor more than 60 days after the date of such notice and which, in
any event, must be on or prior to the Revolving Credit Maturity Date), and shall
offer each Revolving Credit Lender the opportunity to increase its Revolving
Credit Commitment by its Pro Rata Percentage of the proposed increased amount.
Each Revolving Credit Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 10 Business Days after the date of the
Administrative Agent's notice, either agree to increase its Revolving Credit
Commitment by all or a portion of the offered amount (each Revolving Credit
Lender so agreeing being an "Increasing Revolving Lender") or decline to
increase its Revolving Credit Commitment (and any Revolving Credit Lender that
does not deliver such a notice within such period of 10 Business Days shall be
deemed to have declined to increase its Revolving Credit Commitment) (each
Revolving Credit Lender so declining or being deemed to have declined being a
"Non-Increasing Revolving Lender"). In the event that, on the 10th Business Day
after the Administrative Agent shall have delivered a notice pursuant to the
second sentence of this paragraph, the Revolving Credit Lenders shall have
agreed pursuant to the preceding sentence to increase their Revolving Credit
Commitments by an aggregate amount less than the increase in the Total Revolving
Credit Commitment requested by the Borrower, the Borrower may arrange for one or
more banks or other entities (any such bank or other entity referred to in this
clause (a) being called an "Augmenting Revolving Lender"), which may include any
Lender, to extend Revolving Credit Commitments or increase their existing
Revolving Credit Commitments in an aggregate amount equal to the unsubscribed
amount; provided that each Augmenting Revolving Lender, if not already a
Revolving Credit Lender hereunder, shall be subject to the approval of the
Administrative Agent, the Swingline Lender and the Issuing Banks (which
approvals shall not be unreasonably withheld) and the Borrower and each
Augmenting Revolving Lender shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence its Revolving Credit
Commitment and/or its status as a Revolving Credit Lender hereunder. Any
increase in the Total Revolving Credit Commitment may be made in an amount which
is less than the increase requested by the Borrower if the Borrower is unable to
arrange for, or chooses not to arrange for, Augmenting Revolving Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all actions as may be reasonably necessary to ensure that,
after giving effect to any increase in the Total Revolving Credit Commitment
pursuant to this Section 2.24, the outstanding Revolving Loans (if any) are held
by the Revolving Credit Lenders in accordance with their new Pro Rata
Percentages. This may be accomplished at the discretion of the Administrative
Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the
proceeds of a new Revolving Credit Borrowing, (ii) by causing Non-Increasing
Revolving Lenders to assign portions of their outstanding Revolving
50
Loans to Increasing Revolving Lenders and Augmenting Revolving Lenders, or (iii)
by any combination of the foregoing. Any prepayment or assignment described in
this paragraph (b) shall be subject to Section 2.16, but otherwise without
premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving
Credit Commitment (or in the Revolving Credit Commitment of any Revolving Credit
Lender) or addition of a new Revolving Credit Lender shall become effective
under this Section 2.24 unless, (i) on the date of such increase, the conditions
set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of Overnite, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Revolving Credit Lenders) legal opinions and board resolutions consistent with
those delivered on the Closing Date under clauses (a), and (c)(ii)(B) of Section
4.02.
SECTION 2.25. Increase in Term Loan Commitments. (a) The Borrower may, by
written notice to the Administrative Agent, request Incremental Term Loan
Commitments in an amount not to exceed the Incremental Term Loan Amount from one
or more Incremental Term Lenders, which may include any existing Lender;
provided that each Incremental Term Lender, if not already a Lender hereunder,
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld). Such notice shall set forth (i) the amount
of the Incremental Term Loan Commitments being requested (which shall be in
minimum increments of $5,000,000 and a minimum amount of $10,000,000 or equal to
the remaining Incremental Term Loan Amount), (ii) the date on which such
Incremental Term Loan Commitments are requested to become effective (which shall
not be less than 10 Business Days nor more than 60 days after the date of such
notice), and (iii) whether such Incremental Term Loan Commitments are
commitments to make additional Term Loans or commitments to make term loans with
terms different from the Term Loans ("Other Term Loans").
(b) The Borrower and each Incremental Term Lender shall execute and deliver
to the Administrative Agent an Incremental Term Loan Assumption Agreement and
such other documentation as the Administrative Agent shall reasonably specify to
evidence the Incremental Term Loan Commitment of such Incremental Term Lender.
Each Incremental Term Loan Assumption Agreement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided that, without the prior
written consent of the Required Lenders, (i) the interest rate spreads in
respect of any Other Term Loans shall not exceed by more than 1/4 of 1% the
Applicable Percentage for the Term Loans, (ii) the final maturity date of any
Other Term Loans shall be no earlier than the Term Loan Maturity Date and (iii)
the average life to maturity of any Other Term Loans shall be no shorter than
the average life to maturity of the Term Loans. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Incremental Term
Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon
the effectiveness of any Incremental Term Loan Assumption Agreement, this
Agreement shall be deemed amended to the extent (but only to the
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extent) necessary to reflect the existence and terms of the Incremental Term
Loan Commitment evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.25 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of Overnite, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Incremental Term Lenders) legal opinions and
board resolutions consistent with those delivered on the Closing Date under
clauses (a) and (c)(ii)(B) of Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all action as may be reasonably necessary to ensure that all
Incremental Term Loans (other than Other Term Loans), when originally made, are
included in each Borrowing of outstanding Term Loans on a pro rata basis. Any
conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding
sentence shall be subject to Section 2.16. In addition, to the extent any
Incremental Term Loans are not Other Term Loans, the scheduled amortization
payments under Section 2.11(a)(i) required to be made after the making of such
Incremental Term Loans shall be ratably increased by the aggregate principal
amount of such Incremental Term Loans.
ARTICLE II
Representations and Warranties
Each of Overnite and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Banks and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Overnite, the Borrower and each of the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business, (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and (d)
has the power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated thereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The Transactions (a) have been duly authorized
by all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Overnite or any Subsidiary, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
evidencing Material Indebtedness to which Overnite or any Subsidiary is a party
or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
52
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by Overnite or any Subsidiary (other than
any Lien created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Overnite and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
required in connection with the Transactions, except such as have been made or
obtained and are in full force and effect, and except registration of the shares
of common stock of Overnite to be issued in connection with the Offering as may
be required by the Blue Sky laws of the various states in connection with the
offer and sale of such shares.
SECTION 3.05. Financial Statements. (a) Holding has heretofore furnished to
the Lenders its consolidated balance sheets and statements of income,
stockholder's equity and cash flows (i) as of and for the two fiscal years ended
December 31, 2002 and December 31, 2001, each audited by and accompanied by the
unqualified opinion of Deloitte & Touche LLP, independent public accountants,
(ii) as of and for each fiscal quarter subsequent to December 31, 2002, ended 30
days before the Closing Date, certified by its chief financial officer and (iii)
as of and for each fiscal month subsequent to the date of the most recent
unaudited quarterly financial statements furnished under clause (ii) ended 30
days before the Closing Date. Such financial statements present fairly in all
material respects the financial condition and results of operations and cash
flows of Holding and its consolidated subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of Holding and its consolidated subsidiaries
as of the dates thereof. Such financial statements were prepared in accordance
with GAAP applied on a consistent basis.
(b) Overnite has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet and statements of income and cash flows as of
[September 30, 2003], prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to
such other financial statements, on the first day of the 12-month period ending
on such date. Such pro forma financial statements have been prepared in good
faith by Overnite, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by Overnite on the date hereof and on the
Closing Date to be reasonable), are based on the best information available to
Overnite as
53
of the date of delivery thereof, accurately reflect all adjustments required to
be made to give effect to the Transactions and present fairly in all material
respects on a pro forma basis the estimated consolidated financial position of
Overnite and its consolidated Subsidiaries as of such date and for such period,
assuming that the Transactions had actually occurred at such date or at the
beginning of such period, as the case may be.
SECTION 3.06. No Material Adverse Change. No event, change or condition has
occurred that has had, or could reasonably be expected to have, a material
adverse effect on the business, assets, results of operations or condition,
financial or otherwise, of Overnite and the Subsidiaries, taken as a whole since
December 31, 2002.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Overnite and the Subsidiaries has good title to, or valid leasehold interests
in, all its material properties and assets, except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes.
All such material properties and assets are free and clear of Liens, other than
Liens expressly permitted by Section 6.02.
(b) Each of Overnite and the Subsidiaries has complied with all obligations
under all material leases to which it is a party and all such material leases
are in full force and effect. Each of Overnite, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date
a list of all Subsidiaries and the percentage ownership interest of Overnite
therein. The shares of capital stock or other ownership interests so indicated
on Schedule 3.08 are fully paid and non-assessable and are owned by Overnite,
directly or indirectly, free and clear of all Liens (other than Liens created
under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) There are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of Overnite or the Borrower,
threatened against or affecting Overnite, the Borrower or any other Subsidiary
or any business, property or rights of any such person (i) that involve any Loan
Document or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) None of Overnite, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority,
where such violation or default could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. Agreements. None of Overnite, the Borrower or any of the
Subsidiaries is in default in any manner under any provision of any indenture or
other
54
agreement or instrument evidencing Material Indebtedness, or any other material
agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Overnite, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
None of Overnite, the Borrower or any Subsidiary is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Tax Returns. Each of Overnite, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal and all material state,
local and foreign tax returns or materials required to have been filed by it and
has paid or caused to be paid all taxes shown as due and payable by it and such
returns and all assessments received by it, except taxes that are being
contested in good faith by appropriate proceedings and for which Overnite, the
Borrower or such Subsidiary, as applicable, shall have set aside on its books
adequate reserves in accordance with GAAP. All such tax returns were complete
and correct in all material respects.
SECTION 3.14. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Overnite or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained or contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were or are made, not
misleading; provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each of Overnite and the Borrower represents only that it acted in
good faith and utilized reasonable assumptions and due care in the preparation
of such information, report, financial statement, exhibit or schedule.
SECTION 3.15. Employee Benefit Plans. Each of the Borrower and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code (with respect, and as its provisions relate, to
the Plans) and the regulations and published interpretations thereunder. Each of
the Borrower and its
55
ERISA Affiliates has made all required contributions under the Multiemployer
Plans and does not have any unsatisfied liability for the termination of or
withdrawal from a Multiemployer Plan. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events, could reasonably be expected to result in a Material Adverse Effect. The
present value of all benefit liabilities under all Plans (based on the
assumptions used to fund such Plans) did not, as of the last annual valuation
dates applicable thereto, exceed the fair market value of the assets of such
Plans by an amount that could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.16. Environmental Matters. (a) Except as set forth in Schedule
3.17 and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of Overnite, the Borrower or any of the Subsidiaries (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
(b) Since the date of this Agreement, there has been no change in the
status of the matters disclosed on Schedule 3.17 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.17. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by Overnite and the Borrower or
by Overnite for its Subsidiaries as of the date hereof and the Closing Date. As
of each such date, such insurance is in full force and effect and all premiums
have been duly paid. Overnite and its Subsidiaries have insurance in such
amounts and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.18. Security Documents. The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when the Collateral is delivered to the
Collateral Agent, the Pledge Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other person.
SECTION 3.19. Labor Matters. As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against Overnite, the Borrower or
any Subsidiary pending or, to the knowledge of Overnite or the Borrower,
threatened. The hours worked by and payments made to employees of Overnite, the
Borrower and the Subsidiaries have not been in material violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from Overnite, the Borrower or any
Subsidiary, or for which any claim may be made against Overnite, the Borrower or
any Subsidiary, on account of wages and employee health and
56
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of Overnite, the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which Overnite, the Borrower or any Subsidiary is bound.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing, including
each Borrowing of a Swingline Loan and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 (or such notice shall have been deemed given in
accordance with Section 2.03) or, in the case of the issuance, amendment,
extension or renewal of a Letter of Credit, the applicable Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof
(other than the representation and warranty set forth in Section 3.06 in the
case of Borrowings made or Letters of Credit issued, amended, renewed or
extended, as applicable, after the Closing Date, at any time during which the
Facilities are rated BBB- or better by S&P and Baa3 or better by ▇▇▇▇▇'▇) and in
each other Loan Document shall be true and correct in all material respects on
and as of the date of such Credit Event with the same effect as though made on
and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date, in which case as of such specified date.
(c) At the time of and immediately after such Credit Event, no Event of
Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Overnite on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Banks, written opinions of each of (i) Hunton & ▇▇▇▇▇▇▇▇
LLP, counsel for
57
Overnite and the other Loan Parties, substantially to the effect set forth in
Exhibit F-1, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel of Overnite and the
Borrower, substantially to the effect set forth in Exhibit F-2, and (iii) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq., General Counsel of Motor Cargo, substantially to the effect set
forth in Exhibit F-3, each (i) dated the Closing Date, (ii) addressed to the
Issuing Banks, the Administrative Agent and the Lenders, and (iii) covering such
other matters relating to the Loan Documents and the Transactions as the
Syndication Agent and the Administrative Agent shall reasonably request, and
Overnite and the Borrower hereby request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Lenders, to the Issuing Banks,
to the Syndication Agent and to the Administrative Agent and, to the extent
requested, the Lenders shall have received all documentation and other
information required by bank regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
Patriot Act.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State (or
equivalent authority) of the state of its organization, and a certificate as to
the good standing of each Loan Party as of a recent date reasonably close to the
Closing Date, from such Secretary of State (or equivalent authority); (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated the
Closing Date and certifying (A) that attached thereto is a true and complete
copy of the by-laws of such Loan Party as in effect on the Closing Date and at
all times since a date prior to the date of the resolutions described in clause
(B) below, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such person
is a party and, in the case of the Borrower, the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation of such
Loan Party have not been amended since the date of the last amendment thereto
shown on the certificate of good standing furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection
herewith on behalf of such Loan Party; (iii) a certificate of another officer as
to the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other documents
as the Administrative Agent or its counsel may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of Overnite, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(e) The Administrative Agent shall have received all Fees and other amounts
due and payable to the Administrative Agent, the Syndication Agent and the
Lenders on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder or under any other Loan Document.
58
(f) The Pledge Agreement shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding Equity Interests of the Borrower and the other
Subsidiaries shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and certificates
representing such Equity Interests, to the extent such Equity Interests are
evidenced by certificated securities, accompanied by instruments of transfer and
stock powers endorsed in blank, shall be in the actual possession of the
Collateral Agent; provided that to the extent to do so would cause adverse tax
consequences to Overnite or the Borrower, (i) neither the Borrower nor any
Domestic Subsidiary shall be required to pledge more than 65% of the voting
stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be required
to pledge the Equity Interests of any of its Subsidiaries.
(g) The Lenders shall be reasonably satisfied as to the amount and nature
of any environmental and employee health and safety exposures to which Overnite,
the Borrower and the Subsidiaries may be subject after giving effect to the
transactions, and with the plans of Overnite, the Borrower and the Subsidiaries
with respect thereto.
(h) The Guarantee Agreement shall have been duly executed by the Loan
Parties and delivered to the Collateral Agent and shall be in full force and
effect.
(i) The Offering and the other Transactions shall have been consummated, or
shall be consummated substantially simultaneously with the first Credit Event.
(j) The Lenders shall have received the audited and unaudited financial
statements referred to in Section 3.05, which financial statements shall not be
materially inconsistent with the financial statements or forecasts previously
provided to the Lenders.
(k) After giving effect to the Transactions and the other transactions
contemplated hereby, Overnite and its Subsidiaries shall have outstanding no
Indebtedness or preferred stock other than (i) the Loans and Letters of Credit
hereunder and (ii) the Indebtedness listed on Schedule 6.01.
(l) All requisite Governmental Authorities shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent
required (except for the registration of the shares of common stock of Overnite
to be issued in connection with the Offering as may be required by the Blue Sky
laws of the various states in connection with the offer and sale of such
shares), all applicable appeal periods shall have expired and there shall not be
any pending or, to the knowledge of Overnite or the Borrower, overtly threatened
litigation, governmental, administrative or judicial action that could
reasonably be expected to prevent or impose materially burdensome conditions on
the Transactions.
(m) Immediately after giving effect to the Transactions and the other
transactions contemplated hereby to occur on the Closing Date, the Leverage
Ratio shall not be greater than 3.25 to 1.0.
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ARTICLE V
Affirmative Covenants
Each of Overnite and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, each of Overnite and the
Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and
decrees and orders of any Governmental Authority, including Environmental Laws,
whether now in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately insured
at all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies in the same
or similar businesses operating in the same or similar locations, and including
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Material Indebtedness and
other material obligations promptly and in accordance with their terms and pay
and discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien (other than a Lien permitted by Section 6.02)
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such
60
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP.
SECTION 5.04. Financial Statements, Reports, etc. In the case of
Overnite, furnish to the Administrative Agent (with sufficient copies for each
Lender):
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet and related consolidated statements of income, stockholders'
equity and cash flows showing the financial condition of Overnite and its
consolidated Subsidiaries as of the close of such fiscal year and the results of
its operations and the operations of such Subsidiaries during such year,
together with comparative figures for the immediately preceding fiscal year, all
audited by Deloitte & Touche LLP or other independent public accountants of
recognized national standing selected by Overnite and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present in all
material respects the financial condition and results of operations of Overnite
and its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
consolidated statements of income, stockholders' equity and cash flows showing
the financial condition of Overnite and its consolidated Subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Subsidiaries during such fiscal quarter and the then elapsed
portion of the fiscal year, and comparative figures for the same periods in the
immediately preceding fiscal year, all certified on behalf of Overnite by one of
its Financial Officers as fairly presenting in all material respects the
financial condition and results of operations of Overnite and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of the Financial Officer of Overnite
(i) certifying that no Event of Default or Default has occurred or, if such an
Event of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto and (ii) setting forth computations in reasonable detail satisfactory to
the Administrative Agent demonstrating compliance with the covenants contained
in Sections 6.09, 6.10, 6.11 and 6.12 and, in the case of a certificate
delivered with the financial statements required by paragraph (a) above, setting
forth Overnite's calculation of Excess Cash Flow (if any payment would be
required under Section 2.13(d));
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Overnite, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental
61
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed to its shareholders, as the
case may be;
(e) promptly, following a request by any Lender, provide all
documentation and other information that such Lender reasonably requests in
order to comply with its ongoing obligations under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
Patriot Act; and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Overnite, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender, through the Administrative Agent, may
reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent (with sufficient copies, as applicable, for each Issuing Bank and each
Lender), promptly after obtaining knowledge of the same, written notice of the
following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any overt threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
Overnite, the Borrower or any Subsidiary that could reasonably be expected to
result in a Material Adverse Effect;
(c) any change in the ratings by S&P or ▇▇▇▇▇'▇ of the Facilities;
(d) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred and for which the Borrower and any ERISA
Affiliate have any liability, could reasonably be expected to result in
liability of the Borrower and the Subsidiaries in an aggregate amount exceeding
$5,000,000; and
(e) any development that has resulted in, or could reasonably be expected
to result in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and Inspections.
(a) Keep proper books of record and account in which full, true and correct
entries in conformity with GAAP and all requirements of any Governmental
Authority having jurisdiction over it or its respective properties are made of
all dealings and transactions in relation to its business and activities.
(b) Permit any representatives designated by the Administrative Agent or
any Lender to visit and inspect the financial records and the properties of
Overnite, the Borrower or any Subsidiary at reasonable times and with reasonable
prior notice and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any representatives designated by
the Administrative Agent or any Lender to discuss the affairs, finances and
condition of Overnite, the Borrower or any
62
Subsidiary with the officers thereof and independent accountants therefor;
provided, however, that unless an Event of Default shall have occurred and be
continuing, the Borrower shall not be required to reimburse the expenses of more
than two such visits per calendar year.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement and use the proceeds of any Incremental Term Loan
only for the purposes set forth in the related Incremental Term Loan Assumption
Agreement.
SECTION 5.08. Further Assurances. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
that may be required under applicable law, or that the Required Lenders, the
Administrative Agent or the Collateral Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to
grant, preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security Documents.
Overnite will cause any subsequently acquired or organized Domestic Subsidiary
other than any Inactive Subsidiary to execute the Guarantee Agreement and each
applicable Security Document in favor of the Collateral Agent (for the ratable
benefit of the Secured Parties).
ARTICLE VI
Negative Covenants
Each of Overnite and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Overnite nor the Borrower
will, nor will they cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and any extensions, renewals or replacements of such Indebtedness to the
extent the principal amount of such Indebtedness is not increased, neither the
final maturity nor the weighted average life to maturity of such Indebtedness is
decreased, such Indebtedness, if subordinated to the Obligations, remains so
subordinated on terms no less favorable to the Lenders, and the original
obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
63
(c) intercompany Indebtedness of Overnite and the Subsidiaries to the
extent permitted by Section 6.04(c), and ordinary course intercompany
liabilities incurred in connection with cash management operations;
(d) Indebtedness of Overnite or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this Section 6.01(d), when
combined with the aggregate principal amount of all Capital Lease Obligations
and Synthetic Lease Obligations incurred pursuant to Section 6.01(e) shall not
exceed $50,000,000 at any time outstanding;
(e) Capital Lease Obligations and Synthetic Lease Obligations in an
aggregate principal amount, when combined with the aggregate principal amount of
all Indebtedness incurred pursuant to Section 6.01(d), not in excess of
$50,000,000 at any time outstanding;
(f) Indebtedness under performance, bid, surety, statutory or appeal
bonds or with respect to workers' compensation claims, in each case incurred in
the ordinary course of business;
(g) Indebtedness of any Subsidiary that exists at the time such person
becomes a Subsidiary and that was not incurred in contemplation of or in
connection with the acquisition by Overnite or a Subsidiary of such person, in
an aggregate principal amount not in excess of $50,000,000 at any time
outstanding;
(h) Securitization Debt in an aggregate amount not greater than
$150,000,000 outstanding at any time;
(i) other Indebtedness of Overnite or the Subsidiaries in an aggregate
principal amount not exceeding $25,000,000 at any time outstanding; and
(j) in addition to Indebtedness permitted by paragraphs (a) through (i)
above (in each case without regard to the limitations set forth therein), other
Indebtedness of any Loan Party incurred at any time that the Facilities have an
Investment Grade Standing so long as at the time thereof and immediately after
giving effect to the incurrence thereof (i) no Event of Default or Default shall
have occurred and be continuing, and (ii) Overnite would be in Pro Forma
Compliance.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
64
(a) Liens on property or assets of Overnite and its Subsidiaries existing
on the date hereof and set forth in Schedule 6.02; provided that such Liens
shall secure only those obligations which they secure on the date hereof and
extensions, renewals and replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by Overnite or any Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii) such
Lien does not apply to any other property or assets of Overnite or any
Subsidiary;
(d) Liens securing Securitization Debt incurred pursuant to Section
6.01(h); provided that such Liens attach only to the assets transferred in
connection with, or forming part of, such Securitization Transactions and/or the
Equity Interests of any special purpose entity to which such assets are
transferred;
(e) Liens imposed by Governmental Authorities for taxes, assessments or
other charges not yet due and payable or subject to penalty or which are being
contested in good faith in compliance with Section 5.03;
(f) carriers', warehousemen's, workmen's, mechanics', materialmen's,
repairmen's suppliers', landlord's or other like Liens arising by operation of
law, imposed by statute or arising pursuant to customary reservations or
retentions of title arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(g) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(h) deposits to secure the performance of tenders, sales, bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, customs, performance or return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of business or
required by law;
(i) zoning restrictions, easements, utility easements, licenses,
covenants, rights-of-way, defects or irregularities in title, reservations
(including severances, leases or reservations of oil, gas, coal, minerals or
water rights), assessment district or similar Liens in connection with municipal
financing, building restrictions or restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and do not materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of Overnite or any of its Subsidiaries;
(j) purchase money liens or security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case of
improvements, constructed) by
65
Overnite or any Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within 90 days after
such acquisition (or construction), (iii) the Indebtedness secured thereby does
not exceed the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (iv) such liens or security interests do not apply to any
other property or assets of Overnite or any Subsidiary;
(k) Liens arising in respect of Capital Lease Obligations and Synthetic
Lease Obligations permitted under Section 6.01(e); provided that such Liens
apply only to the property that is the subject of the related Capital Lease
Obligation or Synthetic Lease Obligation;
(l) Liens arising out of judgments or awards not constituting an Event of
Default under paragraph (i) of Article VII;
(m) bankers' liens and rights of setoff with respect to customary
depositary arrangements entered into in the ordinary course of business;
(n) Liens of sellers of goods under Article 2 of the Uniform Commercial
Code (the "UCC") as in effect in any jurisdiction applicable to Overnite or any
of the Subsidiaries or their respective properties or assets;
(o) Liens of a collection bank under Section 4-210 of the UCC; and
(p) other Liens that do not, individually or in the aggregate, secure
obligations or Indebtedness (or encumber property with a fair market value) in
excess of $25,000,000 at any one time.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred unless (a) the sale of such property is
permitted by Section 6.05 and (ii) any Capital Lease Obligations, Synthetic
Lease Obligations or Liens arising in connection therewith are permitted by
Sections 6.01 and 6.02, respectively.
SECTION 6.04. Investments, Loans and Advances. At any time that the
Facilities do not have an Investment Grade Standing, purchase, hold or acquire
any Equity Interests, evidences of Indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) (i) investments by Overnite and the Subsidiaries existing on the date
hereof in the Equity Interests of the Borrower and the Subsidiaries and (ii)
additional investments by Overnite and the Subsidiaries in the Equity Interests
of the Borrower and the
66
Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party
shall be pledged pursuant to the Pledge Agreement (subject to the limitations
applicable to voting stock of a Foreign Subsidiary referred to in Section
4.02(f)) and (B) the aggregate amount of investments by Loan Parties in, and
loans and advances by Loan Parties to, Subsidiaries that are not Loan Parties
shall not exceed $15,000,000 at any time outstanding;
(b) Permitted Investments;
(c) loans or advances made by Overnite to any Subsidiary and made by any
Subsidiary to Overnite or any other Subsidiary; provided that the amount of such
loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (a) above;
(d) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(e) Overnite and the Subsidiaries may make loans and advances in the
ordinary course of business and consistent with past practice to their
respective employees, so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or write-offs of
such loans and advances) shall not exceed $5,000,000;
(f) Overnite and the Subsidiaries may enter into Hedging Agreements in the
ordinary course of business that are not speculative in nature;
(g) Overnite or any Subsidiary may acquire all or substantially all of the
assets of a person or line of business of such person, or not less than 100% of
the Equity Interests of a person (referred to herein as the "Acquired Entity");
provided, that (i) such acquisition was not preceded by an unsolicited tender
offer for such Equity Interests, or proxy contest initiated, by Overnite or any
Subsidiary; (ii) the Acquired Entity shall be in a similar line of business as
that of Overnite and its Subsidiaries as conducted during the current and most
recent calendar year; and (iii) at the time of such transaction (A) both before
and after giving effect thereto, no Event of Default or Default shall have
occurred and be continuing; (B) Overnite and its Subsidiaries would be in Pro
Forma Compliance, as evidenced by a certificate of a Financial Officer of
Overnite which shall have been prepared in good faith and based on reasonably
detailed written assumptions; (C) after giving effect to such acquisition, there
must be at least $50,000,000 of unused and available Revolving Credit
Commitments; and (D) the aggregate of the consideration paid in connection with
such acquisition and any related acquisitions pursuant to this Section 6.04(h)
(including any deferred purchase price and any Indebtedness of the Acquired
Entity that is assumed by Overnite or any Subsidiary following such acquisition)
shall not in the aggregate exceed $100,000,000 in any fiscal year or
$250,000,000 in the aggregate (any acquisition of an Acquired Entity meeting all
the criteria of this Section 6.04(h) being referred to herein as a "Permitted
Acquisition"); and
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(h) in addition to investments permitted by paragraphs (a) through (g)
above, additional investments, loans and advances by Overnite and the
Subsidiaries (other than investments, loans and advances to Foreign
Subsidiaries) so long as the aggregate amount invested, loaned or advanced
pursuant to this paragraph (h) (determined without regard to any write-downs or
write-offs of such investments, loans and advances) does not exceed $10,000,000
in the aggregate.
SECTION 6.05. Mergers, Consolidations and Sales of Assets. (a) Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all the assets
(whether now owned or hereafter acquired) of Overnite and the Subsidiaries,
except that (i) any Subsidiary may sell inventory in the ordinary course of
business, (ii) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing (x)
any wholly owned Subsidiary may merge into or consolidate with the Borrower in a
transaction in which the Borrower is the surviving corporation, (y) any wholly
owned Subsidiary may merge into or consolidate with any other wholly owned
Subsidiary in a transaction in which the surviving entity is a wholly owned
Subsidiary and no person other than Overnite, the Borrower or a wholly owned
Subsidiary receives any consideration (provided that if any party to such
transaction is a Loan Party, the surviving entity of such transaction shall be a
Loan Party) and (z) Overnite or any Subsidiary may make any investment permitted
by Section 6.04.
(b) At any time that the Facilities do not have an Investment Grade
Standing, engage in any Asset Sale otherwise permitted under paragraph (a) above
unless (i) such Asset Sale is for consideration at least 75% of which is cash,
(ii) such consideration is at least equal to the fair market value of the assets
being sold, transferred, leased or disposed of and (iii) the fair market value
of all assets sold, transferred, leased or disposed of pursuant to this
paragraph (b) shall not exceed (i) $50,000,000 in any fiscal year or (ii)
$100,000,000 in the aggregate.
(c) Engage in any Securitization Transaction except pursuant to Section
6.01(h).
SECTION 6.06. Restricted Payments; Restrictive Agreements. (a) At any time
that the Facilities do not have an Investment Grade Standing, declare or make,
or agree to declare or make, directly or indirectly, any Restricted Payment
(including pursuant to any Synthetic Purchase Agreement) or incur any obligation
(contingent or otherwise) to do so; provided, however, that (i) any Subsidiary
may declare and pay dividends or make other distributions ratably to its equity
holders and (ii) so long as no Event of Default or Default shall have occurred
and be continuing or would result therefrom, (x) Overnite may declare and pay
dividends on its Equity Interests in the form of Equity Interests, (y) Overnite
may repurchase its Equity Interests owned by employees of Overnite or the
Subsidiaries or make payments to employees of Overnite, or the Subsidiaries upon
termination of employment in connection with the exercise of stock options,
stock appreciation rights or similar equity incentives or equity based
incentives pursuant to management incentive plans or in connection with the
death or disability of such
68
employees in an aggregate amount not to exceed $5,000,000 in any fiscal year
and(z) Overnite or any Subsidiary may make other Restricted Payments in an
aggregate amount not to exceed $25,000,000 in any fiscal year.
(b) Enter into, incur or permit to exist any agreement or other arrangement
that prohibits, materially restricts or imposes any burdensome condition upon
(i) the ability of Overnite or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets to secure the Obligations, or
(ii) the ability of any Subsidiary to pay dividends or other distributions with
respect to any of its Equity Interests or to make or repay loans or advances to
Overnite or any other Subsidiary or to Guarantee Indebtedness of Overnite or any
other Subsidiary; provided that (A) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (B) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (C) the foregoing shall not apply to
restrictions and conditions imposed on any Foreign Subsidiary by the terms of
any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder,
(D) clause (i) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness, Capital Lease
Obligations or Synthetic Lease Obligations permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness or subject to such lease, (E) clause (i) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof, (F) the foregoing shall not apply to customary restrictions
and conditions contained in agreements effecting Securitization Transactions, to
the extent such restrictions and conditions relate to the assets transferred in
connection with, or subject to, such Securitization Transactions and/or the
Equity Interests of any special purpose entity to which such assets are
transferred, (G) the foregoing shall not apply to provisions contained in
agreements existing on the date hereof and identified on Schedule 6.06(b) and
(H) clause (i) of the foregoing shall not apply to restrictions or conditions
contained in agreements governing Indebtedness issued at any time that the
Facilities have an Investment Grade Standing if such provisions require only
that such Indebtedness be secured equally and ratably by Liens granted after the
date thereof to secure the Obligations.
SECTION 6.07. Transactions with Affiliates. Except for transactions by or
among Loan Parties and for the consummation of the Transactions, sell or
transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except that Overnite or any Subsidiary may engage in any of the
foregoing transactions at prices and on terms and conditions not materially less
favorable to Overnite or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties.
SECTION 6.08. Business of Overnite, Borrower and Subsidiaries. (a) With
respect to Overnite, engage in any material business activities or have any
material assets or material liabilities other than its direct or indirect
ownership of the Equity Interests of the Subsidiaries and liabilities incidental
thereto, including its
69
liabilities pursuant to this Agreement, the Guarantee Agreement and the Security
Documents.
(b) With respect to the Subsidiaries, engage at any time in any material
business or material business activity other than the business currently
conducted by them and business activities reasonably incidental thereto.
SECTION 6.09. Capital Expenditures. At any time that the Facilities do not
have an Investment Grade Standing, permit the aggregate amount of Capital
Expenditures made by Overnite and the Subsidiaries in any calendar year set
forth below to exceed the amount set forth below for such year:
Year Amount
---- ------
2003 $ 75,000,000
2004 95,000,000
2005 100,000,000
2006 117,500,000
2007 125,000,000
2008 130,000,000
The amount of permitted Capital Expenditures set forth above in respect of any
fiscal year commencing with the fiscal year ending on December 31, 2005, shall
be increased (but not decreased) by (a) the amount of unused permitted Capital
Expenditures for the immediately preceding fiscal year less (b) an amount equal
to unused Capital Expenditures carried forward to such preceding fiscal year.
SECTION 6.10. Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
Ratio for any period of four consecutive fiscal quarters, in each case taken as
one accounting period (commencing with the fiscal quarter ending as of December
31, 2003), to be less than 1.85 to 1.0.
SECTION 6.11. Maximum Leverage Ratio. Permit the Leverage Ratio as of the
last day of any fiscal quarter (commencing with the fiscal quarter ending as of
December 31, 2003) ending during any period set forth below to exceed the ratio
set forth opposite such period below:
Period Ratio
------ -----
Closing Date through
and including
September 30, 2006 3.25 to 1.0
Thereafter 3.00 to 1.0
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SECTION 6.12. Minimum Asset Coverage Ratio. Permit the Asset Coverage Ratio
as of the last day of any fiscal quarter (commencing with the fiscal quarter
ending as of December 31, 2003) to be less than 2.25 to 1.0.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made by any Loan Party in
or in connection with any Loan Document or the Borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or other
instrument furnished by or at the request of any Loan Party in connection with
or pursuant to any Loan Document, shall prove to have been false or misleading
in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or
the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or L/C
Disbursement or of any Fee or any other amount (other than an amount referred to
in (b) above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance by Overnite,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a), 5.05 or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by Overnite,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or any Lender to the Borrower;
(f) Overnite, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Material
Indebtedness, when and as the same shall become due and payable (beyond the
applicable grace period with respect thereto, if any), or (ii) any other event
or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that
this
71
clause (ii) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of Overnite, the Borrower or any Subsidiary (other than an Inactive
Subsidiary), or of a substantial part of the property or assets of Overnite, the
Borrower or a Subsidiary (other than an Inactive Subsidiary), under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Overnite, the Borrower or any Subsidiary
(other than an Inactive Subsidiary) or for a substantial part of the property or
assets of Overnite, the Borrower or a Subsidiary (other than an Inactive
Subsidiary) or (iii) the winding-up or liquidation of Overnite, the Borrower or
any Subsidiary (other than an Inactive Subsidiary); and such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(h) Overnite, the Borrower or any Subsidiary (other than an Inactive
Subsidiary) shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or the filing
of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Overnite, the Borrower or any Subsidiary (other than an
Inactive Subsidiary) or for a substantial part of the property or assets of
Overnite, the Borrower or any Subsidiary (other than an Inactive Subsidiary),
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against Overnite, the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of Overnite, the Borrower or any Subsidiary to
enforce any such judgment and such judgment either (i) is for the payment of
money in an aggregate amount in excess of $10,000,000 or (ii) is for injunctive
relief (other than any temporary restraining order) and could reasonably be
expected to result in a Material Adverse Effect;
(j) an ERISA Event shall have occurred that, when taken together with all
other ERISA Events that have occurred and for which the Borrower and any ERISA
Affiliate have any liability, could reasonably be expected to result in
liability of the Borrower and its ERISA Affiliates in an aggregate amount
exceeding $10,000,000;
72
(k) any Guarantee under the Guarantee Agreement for any reason shall cease
to be in full force and effect (other than in accordance with its terms), or any
Guarantor shall deny in writing that it has any further liability under its
Guarantee Agreement (other than as a result of the discharge of such Guarantor
in accordance with the terms of the Loan Documents);
(l) any security interest purported to be created by any Security Document
shall (other than in accordance with its terms) cease to be, or shall be
asserted by the Borrower or any other Loan Party in writing not to be, a valid,
perfected, first priority (except as otherwise expressly provided in this
Agreement or such Security Document) security interest in the property covered
thereby, except to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Overnite or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to Overnite or the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
Each of the Lenders and each of the Issuing Banks hereby irrevocably
appoints the Administrative Agent and the Collateral Agent (for purposes of this
Article VIII, the Administrative Agent and the Collateral Agent are referred to
collectively as the "Agents") its agent and authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to such Agent
by the terms of the Loan
73
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases) with
respect to the Collateral and the rights of the Secured Parties with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents.
The bank serving as the Administrative Agent and/or the Collateral Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not an Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Overnite, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
Neither Agent shall have any duties or obligations except those expressly
set forth in the Loan Documents. Without limiting the generality of the
foregoing, (a) neither Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b)
neither Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that such Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08), and (c) except
as expressly set forth in the Loan Documents, neither Agent shall have any duty
to disclose, nor shall it be liable for the failure to disclose, any information
relating to Overnite, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.08) or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by Overnite, the Borrower or a
Lender, and neither Agent shall be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have
been made by the proper person, and shall not incur any
74
liability for relying thereon. Each Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by it. Each Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers by or through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders, the Issuing
Banks and the Borrower. Upon any such resignation, the Required Lenders shall
have the right, subject to the consent of the Borrower (which consent shall not
be unreasonably withheld or delayed), to appoint a successor; provided, however,
that the consent of the Borrower shall not be required for any such appointment
during the continuance of any Event of Default. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint
a successor Agent which shall be a bank with an office in New York, New York, or
an Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while acting as
Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 1.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Overnite, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
);
(b) if to the Administrative Agent, to SunTrust Bank, ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(Telephone No. , Telecopy No. ), with a copy to
SunTrust Bank, Agency Services, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇/▇▇/
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
);
(c) if to SunTrust Bank as the Issuing Bank, to SunTrust Bank, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇. mail code 3706, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇ ▇▇▇▇▇▇
(Telecopy No. );
(d) if to the Swingline Lender, to SunTrust Bank, Agency Services, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇
▇▇▇▇▇▇ (Telecopy No. );
(e) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto; and
(f) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Administrative Agent and the
Borrower.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01. As agreed to among Overnite, the Borrower, the Administrative
Agent and the applicable Lenders from time to time, notices and other
communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such
person. Overnite, the Borrower, the Administrative Agent, any Issuing Bank and
any Lender may each change the address or e-mail address for service of notice
and other communications by a notice in writing to the other parties hereto.
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SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Overnite herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Banks and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Banks, regardless of any investigation made by the Lenders or the
Issuing Banks or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16,
2.20 and 9.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, Overnite, the Administrative Agent and
the Syndication Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrower, Overnite, the Administrative Agent,
the Collateral Agent, the Issuing Banks or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of a Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment, each
Issuing Bank and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed);
provided, however, that the consent of the Borrower shall not be required for
any such assignment during the continuance of any Event of Default, and (y) the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $1,000,000 (or, if less, the entire remaining amount of such Lender's
Commitment or Loans), (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Class of Commitments or
Loans assigned, (iii) the parties to each such
77
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $1,000 (unless
such fee is waived by the Administrative Agent) payable by the assignor or the
assignee and (iv) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire and all applicable tax
documentation (whether pursuant to Section 2.20(e) or otherwise reasonably
requested by the Administrative Agent or the Borrower). Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of Overnite or any Subsidiary or the
performance or observance by Overnite or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral
78
Agent, respectively, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive and the Borrower, the Administrative Agent, the
Issuing Banks, the Collateral Agent and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, any
Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire (and all
applicable tax documentation) completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if any, and, if required, the written
consent of the Borrower, the Swingline Lender, the Issuing Banks and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt concurrent notice thereof to the
Syndication Agent. No assignment shall be effective unless it has been recorded
in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Banks or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged (including its Revolving
Credit Commitment, if any), (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same
extent as if they were Lenders (but, with respect to any particular participant,
to no greater extent than the Lender that sold the participation to such
participant) and (iv) the Borrower, the Administrative Agent, the Issuing Banks
and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any
79
scheduled principal payment date or date fixed for the payment of interest on
the Loans, increasing or extending the Commitments or releasing any Guarantor or
all or substantially all of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may (without the consent of the Borrower or the
Administrative Agent) at any time assign all or any portion of its rights under
this Agreement to secure extensions of credit to such Lender or in support of
obligations owed by such Lender (including, if such Lender is a fund that
invests in bank loans, to a trustee for holders of obligations owed, or
securities issued, by such fund); provided that no such assignment shall release
a Lender from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto and any foreclosure or exercise of remedies by
such assignee or trustee shall be subject to the provisions of this Section 9.04
regarding assignments in all respects
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a
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portion of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC.
(j) Neither Overnite nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, each Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Overnite agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Syndication Agent, the Collateral Agent, the Issuing
Banks and the Swingline Lender in connection with the syndication of the credit
facilities provided for herein and the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by
the Administrative Agent, the Syndication Agent, the Collateral Agent or any
Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP,
counsel for the Administrative Agent, the Syndication Agent and the Collateral
Agent, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent, the Syndication Agent, the Collateral Agent or any Lender.
(b) The Borrower and Overnite agree, jointly and severally, to indemnify
the Administrative Agent, the Syndication Agent, the Collateral Agent, each
Lender, each Issuing Bank and each Related Party of any of the foregoing persons
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses (other than lost profits, business
or anticipated savings), claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any
actual or alleged presence or Release of Hazardous Materials on any property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or the Subsidiaries; provided that such indemnity shall not, as to any
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Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted primarily from
the gross negligence or wilful misconduct of such Indemnitee (or its
Affiliates).
(c) To the extent that Overnite and the Borrower fail to pay any amount
required to be paid by them to the Administrative Agent, the Syndication Agent,
the Collateral Agent, an Issuing Bank or the Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Syndication Agent, the Collateral Agent, any such
Issuing Bank or the Swingline Lender, as the case may be, such Lender's pro rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Syndication Agent, the Collateral Agent, such Issuing
Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the Aggregate Revolving Credit Exposure, outstanding Term Loans and unused
Commitments at the time.
(d) To the extent permitted by applicable law, neither Overnite nor the
Borrower shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, the Syndication Agent, any
Lender or any Issuing Bank. All amounts due under this Section 9.05 shall be
payable within 10 days after written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Overnite against any of and all the
obligations of the Borrower or Overnite now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower or Overnite, as the case may be, after any such
setoff and application made by such Lender, but the failure to give
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such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section 9.06 are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Syndication Agent, the Collateral Agent, any Lender or
any Issuing Bank in exercising any power or right hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Syndication Agent, the Collateral Agent, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower or Overnite in any case shall entitle the Borrower or Overnite
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any of the other Loan Documents nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into and executed by the
Borrower, Overnite and the Required Lenders; provided, however, that (x) the
Borrower, Overnite and the Administrative Agent may enter into an amendment to
effect the provisions of Section 2.25(b) upon the effectiveness of any
Incremental Term Loan Assumption Agreement (and any such amendment shall in any
event be deemed to have occurred upon such effectiveness) and (y) no such
agreement under this Section 9.08(b) shall (i) decrease the principal amount of,
or extend the maturity of or any scheduled principal payment date or date for
the payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part
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thereof, or decrease the rate of interest on any Loan or L/C Disbursement,
without the prior written consent of each Lender affected thereby, (ii) increase
or extend the Commitment or decrease or extend the date for payment of any Fees
or any other amounts due and payable hereunder to any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j) or the provisions of this
Section, or release any Guarantor or all or substantially all of the Collateral,
without the prior written consent of each Lender, (iv) change the provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of one Class differently from
the rights of Lenders holding Loans of any other Class without the prior written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each adversely affected Class, (v) modify the protections
afforded to an SPC pursuant to the provisions of Section 9.04(i) without the
written consent of such SPC or (vi) change the percentage contained in the
definition of the term "Required Lenders" without the prior written consent of
each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
Term Loan Commitments and Revolving Credit Commitments on the date hereof);
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Syndication Agent, the
Collateral Agent, any Issuing Bank or the Swingline Lender hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent, the Syndication Agent, the Collateral Agent, such Issuing Bank or the
Swingline Lender, as applicable.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract among the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is
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intended to confer upon any person (other than the parties hereto and thereto,
their respective successors and assigns permitted hereunder (including any
Affiliate of an Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders)
any rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Overnite and the Borrower hereby irrevocably and unconditionally submits, for
itself and
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its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against the Borrower, Overnite or their respective
properties in the courts of any jurisdiction.
(b) Each of Overnite and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each of Overnite and the Borrower irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. (a) Each of the Administrative Agent, the
Collateral Agent, each Issuing Bank and each Lender agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (i) to its and its Affiliates' officers, directors, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (ii) to the extent requested by any regulatory
authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) in connection with
the exercise of any remedies hereunder or under the other Loan Documents or any
suit, action or proceeding relating to the enforcement of its rights hereunder
or thereunder, (v) subject to an agreement containing provisions substantially
the same as those of this Section 9.16, to (A) any actual or prospective
assignee of or participant in any of its rights or obligations under this
Agreement and the other Loan Documents or (B) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower or any Subsidiary or any of their respective obligations, (vi) with
the consent of the Borrower or (vii) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 9.16. For
the purposes of this
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Section, "Information" shall mean all information received from the Borrower or
Overnite and related to the Borrower or Overnite or their business, other than
any such information that was available to the Administrative Agent, the
Collateral Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure by the Borrower or Overnite; provided that, in the case
of Information received from the Borrower or Overnite after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any person required to maintain the confidentiality of Information as provided
in this Section 9.16 shall be considered to have complied with its obligation to
do so if such person has exercised the same degree of care to maintain the
confidentiality of such Information as such person would accord its own
confidential information.
(b) Notwithstanding anything herein to the contrary, any party subject to
confidentiality obligations hereunder or otherwise (and any Affiliate thereof
and any employee, representative or other agent of such party or such Affiliate)
may disclose to any and all persons, without limitation of any kind, the tax
treatment and the tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are or
have been provided to it relating to such tax treatment and tax structure. For
this purpose, the tax treatment of the transactions contemplated hereby is the
purported or claimed U.S. federal tax treatment of such transactions and the tax
structure of such transactions is any fact that may be relevant to understanding
the purported or claimed U.S. federal tax treatment of such transactions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
OVERNITE TRANSPORTATION
COMPANY, a Virginia corporation,
as Borrower,
by: ____________________________
Name:
Title:
OVERNITE CORPORATION, a Virginia
corporation,
by: ____________________________
Name:
Title:
SUNTRUST BANK, individually and
as Administrative Agent,
Collateral Agent, Swingline
Lender and Issuing Bank,
by: ____________________________
Name:
Title:
88
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands
Branch, individually and as
Syndication Agent,
by: _____________________________
Name:
Title:
by: _____________________________
Name:
Title:
[OTHER LENDERS],
by: _____________________________
Name:
Title:
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