LIBOR TRANSITION AMENDMENT
Exhibit 10.29
THIS LIBOR TRANSITION AMENDMENT (this "Amendment") is dated as of December 28, 2022 ("Amendment Effective Date"), is entered into among U.S. XPRESS ENTERPRISES, INC., a Nevada corporation (the “Company”), U.S. XPRESS, INC., a Nevada corporation (“Xpress”), XPRESS SHELL, INC., a Nevada corporation (“Xpress Shell”), U.S. XPRESS LEASING, INC., a Tennessee corporation (“Xpress Leasing”), ASSOCIATED DEVELOPMENTS, LLC, a Tennessee limited liability company (“Associated Developments”), TOTAL LOGISTICS INC., a Mississippi corporation (“Total Logistics”), TOTAL TRANSPORTATION OF MISSISSIPPI LLC, a Mississippi limited liability company (“Total Mississippi”, and together with the Company, Xpress, Xpress Shell, Xpress Leasing, Associated Developments, and Total Logistics, collectively, the “Borrowers” and each individually a “Borrower”), the guarantors party hereto (collectively, the "Guarantors"), and Bank of America, N.A., as administrative agent ("Administrative Agent").
RECITALS
WHEREAS, Borrowers, Guarantors, certain ▇▇▇▇▇▇▇ and Administrative Agent are party to a Credit Agreement dated as of January 28, 2020 (as amended, modified, renewed or extended from time to time, "Credit Agreement");
WHEREAS, certain Loans and/or extensions of credit incur or are permitted under the Credit Agreement to incur interest, fees or other amounts based on the London Interbank Offered Rate ("LIBOR") as administered by the ICE Benchmark Administration; and
WHEREAS, the parties hereto have determined that LIBOR should be replaced with a successor rate in accordance with the Credit Agreement and, in connection therewith, Administrative Agent has determined that certain conforming changes are necessary or advisable;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
1. Defined Terms. Except as otherwise expressly defined herein, terms are used herein as defined in the Credit Agreement.
2.Agreement. Notwithstanding any provision of any Loan Document to the contrary, the parties agree that the terms set forth on Appendix A shall apply to the credit facility contemplated by the Credit Agreement. For the avoidance of doubt, to the extent provisions in the Credit Agreement apply to Loans and other extensions of credit under the credit facility, and such provisions are not specifically addressed by Appendix A, the Credit Agreement provisions shall continue to apply.
3.Conflict with Loan Documents. In the event of any conflict between the terms of this Amendment and the terms of any Loan Document, the terms hereof shall control.
4.Conditions Precedent. This Amendment shall become effective upon receipt by Administrative Agent of counterparts of this Amendment, properly executed by ▇▇▇▇▇▇▇▇▇, Guarantors and Administrative Agent, unless by 5:00 p.m. on the fifth Business Day after Administrative Agent posts
this amendment to Lenders and Borrowers, Required Lenders deliver to Administrative Agent notice that Required Lenders object to this Amendment.
5.Payment of Expenses. Borrowers agree to reimburse Administrative Agent for all reasonable fees, charges and disbursements of Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including all reasonable fees, charges and disbursements of counsel to Administrative Agent.
6.Miscellaneous.
(i)Its execution, delivery and performance of this Amendment is within its organizational powers and has been duly authorized by all necessary organizational, partnership, member or other action, as applicable, as may be necessary or required.
(ii)This Amendment has been duly executed and delivered by such Loan Party, and constitutes its valid and binding obligation, enforceable in accordance with the terms hereof, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity.
(iii)Its execution, delivery and performance of this Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of its certificate or articles of incorporation or organization or other applicable constitutive documents, (ii) conflict with or result in any breach or contravention of, or the creation of any lien under, or require any payment to be made under (x) any contractual obligation to which such Loan Party is a party or affecting it, or the properties of such Loan Party or any subsidiary thereof, or (y) any order, injunction, writ or decree of any governmental authority or any arbitral award to
which such Loan Party or any subsidiary thereof or its property is subject, or (iii) violate any law.
(iv)Before and upon giving effect to this Amendment, (A) the representations and warranties of such Loan Party in the Loan Documents are true and correct in all material respects (and in all respects if such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date hereof (except for representations and warranties that expressly apply only on an earlier date, in which case they were true and correct in all material respects (and in all respects if such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date), and (B) no Default or Event of Default exists.
[Signature Pages Follow]
IN WITNESS WHEREOF, this LIBOR Transition Amendment has been executed and delivered as of the date set forth above.
ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A., |
as Administrative Agent
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
BORROWERS:U.S. XPRESS ENTERPRISES, INC.,
a Nevada corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer and Chief Financial Officer
U.S. XPRESS, INC.,
a Nevada corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
XPRESS SHELL, INC.,
a Nevada corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and Treasurer
U.S. XPRESS LEASING, INC.,
a Tennessee corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
TOTAL LOGISTICS INC.,
a Mississippi corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
ASSOCIATED DEVELOPMENTS, LLC,
a Tennessee limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice Manager and Secretary
TOTAL TRANSPORTATION OF MISSISSIPPI LLC,
a Mississippi limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
GUARANTORS:XPRESS HOLDINGS, INC.,
a Nevada corporation
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
XPRESS AIR, INC.,
a Tennessee corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
TRANSPORTATION INVESTMENTS INC.,
a Mississippi corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
TRANSPORTATION ASSETS LEASING INC.,
a Mississippi corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
TAL POWER EQUIPMENT #1 LLC,
a Mississippi limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
TAL POWER EQUIPMENT #2 LLC,
a Mississippi limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
TAL REAL ESTATE LLC,
a Mississippi limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
TAL VAN #1 LLC,
a Mississippi limited liability company
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
Appendix A
Terms Applicable to Term SOFR Loans
1.Defined Terms. The following definitions are added to the Credit Agreement and, to the extent the terms are already defined in the Credit Agreement, the following supersede such existing terms:
Base Rate: for any day, a per annum rate equal to the greater of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month interest period as of such day; provided, that in no event shall the Base Rate be less than 0.0%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
CME: CME Group Benchmark Administration Limited.
Conforming Changes: with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day or U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Administrative Agent's discretion, to reflect the adoption and implementation of such applicable rate(s), and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of any Loan Document).
Daily Simple SOFR: with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Administrative Agent).
FRBNY: the Federal Reserve Bank of New York.
Notice of Borrowing: notice by Borrower Agent of a Borrowing, in form satisfactory to Administrative Agent.
Notice of Conversion/Continuation: notice by Borrower Agent for conversion or continuation of a Loan as a Term SOFR Loan, in form satisfactory to Administrative Agent.
Relevant Governmental Body: the Federal Reserve Board and/or FRBNY, or a committee officially endorsed or convened by the Federal Reserve Board and/or FRBNY.
Scheduled Unavailability Date: as defined in Section (g) below.
SOFR: the secured overnight financing rate as administered by FRBNY (or a successor administrator).
SOFR Adjustment: (a) with respect to Daily Simple SOFR, 0.10%; and (b) with respect to Term SOFR, 0.10% for a one-month Interest Period, 0.15% for a three-month Interest Period and 0.25% for a six-month Interest Period.
Successor Rate: as defined in Section (g) below.
Term SOFR: (a) for any Interest Period relating to a Loan (other than a Base Rate Loan), a per annum rate equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately prior thereto), plus the SOFR Adjustment for such Interest Period; and (b) for any interest calculation relating to a Base Rate Loan on any day, a fluctuating rate of interest equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided, that in no event shall Term SOFR be less than 0.00%.
Term SOFR Loan: a Loan that bears interest based on clause (a) of the definition of Term SOFR.
Term SOFR Screen Rate: the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time).
U.S. Government Securities Business Day: any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law.
2.Terms Applicable to Term SOFR Loans. Commencing on the Amendment Effective Date, the following provisions shall apply to the Credit Agreement and other Loan Documents:
(a)Unavailability of Eurodollar Rate Loans. Any request for a new Eurodollar Rate Loan shall be deemed to be a request for a new Loan bearing interest at Term SOFR; provided, that any Eurodollar Rate Loan outstanding on the Amendment Effective Date shall continue to bear interest at LIBOR until the end of its current Interest Period.
(b) References to Eurodollar Rate Loans, Etc. in the Loan Documents.
(i) References to Eurodollar Rate Loans, Eurodollar Rate, LIBOR, any eurocurrency loans or rate, or the administration or terms thereof, or other matters relating thereto in the Loan Documents that are not specifically addressed herein shall be deemed to be references to Term SOFR Loans and Term SOFR, as applicable. In addition, general references to Loans and interest rates, their administration or terms, and related matters shall be deemed to include Term SOFR Loans and Term SOFR, as applicable.
(ii) Any requirement for Borrowers to compensate Lenders for losses in the Credit Agreement resulting from any continuation, conversion, payment or prepayment of any Loan on a day other than the last day of any Interest Period shall be deemed to include Term SOFR Loans.
(c) Interest Rates. Administrative Agent does not warrant or accept responsibility, nor shall it have any liability with respect to, administration, submission or any other matter related to any reference rate referred to herein or in the Credit Agreement, nor with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative, replacement or successor to such rate (including any Successor Rate), or any component thereof, or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Loan Parties. Administrative Agent may select information source(s) in its discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Successor Rate), or any component thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, any Loan Party or other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and whether at law or in equity) for any error or other act or omission related to or affecting the selection, determination or calculation of any rate (or component thereof) provided by such information source or service.
(d)Borrowings, Conversions, Continuations and Prepayments of Term SOFR Loans. In addition to any other borrowing or prepayment requirements set forth in the Credit Agreement:
(i)Notice of Borrowing of Term SOFR Loans. For any Borrowing, conversion or continuation of a Term SOFR Loan, Borrower Agent shall deliver a Notice of Borrowing or Notice of Conversion/Continuation, as applicable, to Administrative Agent by 11:00 a.m. at least two Business Days prior to the requested funding date. Notices received by Administrative Agent after such time shall be deemed received on the next Business Day. Each such notice shall be irrevocable and must specify (A) the amount, (B) the requested funding date (which must be a Business Day), (C) whether such Borrowing, conversion or continuation is to be made as a Term SOFR Loan, and (D) the applicable Interest Period (which shall be deemed to be one month if not specified). Each Borrowing of Term SOFR
Loans when made shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. No more than six (6) Borrowings of Term SOFR Loans may be outstanding at any time, and all Term SOFR Loans having the same length and beginning date of their Interest Periods shall be aggregated and considered one Borrowing.
(ii)Interest Periods. Borrowers shall select an interest period ("Interest Period") of one, three or six months (in each case, subject to availability) to apply to each Term SOFR Loan; provided, that (a) the Interest Period shall begin on the date the Loan is made or continued as, or converted into, a Term SOFR Loan and shall expire one, three or six months thereafter, as applicable; (b) if any Interest Period begins on the last day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at its end, or if such corresponding day falls after the last Business Day of the end month, then the Interest Period shall expire on the end month's last Business Day; and if any Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the maturity date of the credit facility.
(iii)Voluntary Prepayment of Term SOFR Loans. Term SOFR Loans may be prepaid from time to time, without penalty or premium, pursuant to a notice of prepayment to Administrative Agent, delivered at least three Business Days prior to prepayment of the Loan; provided, that no such notice shall be required for payments effected through sweeps from the Dominion Account.
(iv)Conforming Changes. Administrative Agent may make Conforming Changes from time to time with respect to SOFR, Term SOFR or any Successor Rate. Notwithstanding anything to the contrary in any Loan Document, any amendment implementing such changes shall be effective without further action or consent of any other party to any Loan Document. Administrative Agent shall post each amendment to Borrower Agent and Lenders promptly after it becomes effective.
(e)Interest. Subject to the provisions of the Credit Agreement with respect to default interest, each Term SOFR Loan shall bear interest at Term SOFR for the applicable Interest Period, plus the Applicable Rate. Interest on each Term SOFR Loan shall be due and payable in arrears on each Interest Payment Date and at such other times and in such manner as specified in the Credit Agreement.
(f) Computations. Computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to Term SOFR) shall be computed for actual days elapsed, based on a year of 365 or 366 days, as applicable. All other interest, as well as fees and other charges calculated on a per annum basis, shall be computed for actual days elapsed, based on a year of 360 days. Each determination by Administrative Agent of an interest rate or fee shall be conclusive and binding for all purposes, absent manifest error.
(g)Inability to Determine Rates; Successor Rates.
(i)Inability to Determine Rate. If in connection with any request for a Term SOFR Loan or a conversion to or continuation thereof, as applicable, (A) Administrative Agent determines (which determination shall be conclusive absent manifest error) that (I) no Successor Rate has been determined in accordance with Section 2(g)(ii), and the circumstances under Section 2(g)(ii)(A) or the Scheduled Unavailability Date has occurred (as applicable), or (II) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (B) Administrative Agent or Required Lenders determine that for any reason Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Administrative Agent will promptly so notify Borrowers and Lenders. Thereafter, (1) the obligation of Lenders to make, maintain or convert Base Rate Loans to Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (2) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of Base Rate, the utilization of such component in determining Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of a determination by Required Lenders described above, until Administrative Agent upon instruction of Required Lenders) revokes such notice. Upon receipt of such notice, (x) Borrowers may revoke any pending request for a Borrowing, conversion or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for Base Rate Loans, and (y) any outstanding Term SOFR Loans shall convert to Base Rate Loans at the end of their respective Interest Periods.
(ii)Successor Rates. Notwithstanding anything to the contrary in any Loan Document, if Administrative Agent determines (which determination shall be conclusive absent manifest error), or Borrower Agent or Required Lenders notify Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower Agent) that Borrowers or Required Lenders (as applicable) have determined, that:
(A)adequate and reasonable means do not exist for ascertaining one, three and six month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or
(B)CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor administrator satisfactory to Administrative Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, "Scheduled Unavailability Date");
then, on a date and time determined by Administrative Agent (any such date, "Term SOFR Replacement Date"), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to any Loan Document ("Successor Rate"). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest will be payable on a monthly basis.
Notwithstanding anything to the contrary herein, (1) if Administrative Agent determines that neither of the alternatives in clauses (I) and (II) above is available on or prior to the Term SOFR Replacement Date or (2) if the events or circumstances of the type described in Section (g)(ii)(A) or (B) above have occurred with respect to the Successor Rate then in effect, then in each case, Administrative Agent and Borrower Agent may amend the Credit Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Administrative Agent posts such proposed amendment to all Lenders and Borrowers unless, prior to such time, Required Lenders deliver to Administrative Agent written notice that Required Lenders object to the amendment.
Administrative Agent will promptly (in one or more notices) notify Borrowers and Lenders of implementation of any Successor Rate. A Successor Rate shall be applied in a manner consistent with market practice; provided, that to the extent market practice is not administratively feasible for Administrative Agent, the Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than 0.00%, the Successor Rate will be deemed to be 0.00% for all purposes of the Loan Doc