Exhibit 10.65
REVOLVING CREDIT AND Letter of Credit LOAN AGREEMENT
dated as of October 14, 2004
among
U.S. XPRESS ENTERPRISES, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
FLEET NATIONAL BANK
as Syndication Agent
LASALLE BANK, NATIONAL ASSOCIATION
as Documentation Agent
SUNTRUST capital markets, inc.
as Lead Arranger and Book Manager
ARTICLE I DEFINITIONS; CONSTRUCTION..................................................................1
Section 1.1 Definitions. .....................................................................1
Section 1.2 Classifications of Loans and Borrowings..........................................18
Section 1.3 Accounting Terms and Determination...............................................18
Section 1.4 Terms Generally..................................................................19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS.......................................................19
Section 2.1 General Description of Facilities................................................19
Section 2.2 Revolving Loans..................................................................19
Section 2.3 Procedure for Revolving Borrowings...............................................20
Section 2.4 Swingline Commitment.............................................................20
Section 2.5 Procedure for Swingline Borrowing; Etc...........................................20
Section 2.6 Collateral.......................................................................22
Section 2.7 Replacement of Lender............................................................22
Section 2.8 Funding of Borrowings............................................................22
Section 2.9 Interest Elections...............................................................23
Section 2.10 Optional Reduction and Termination of Commitments................................24
Section 2.11 Repayment of Loans...............................................................25
Section 2.12 Evidence of Indebtedness.........................................................25
Section 2.13 Optional Prepayments.............................................................25
Section 2.14 Interest on Loans................................................................26
Section 2.15 Fees.............................................................................27
Section 2.16 Computation of Interest and Fees.................................................28
Section 2.17 Inability to Determine Interest Rates............................................28
Section 2.18 Illegality.......................................................................28
Section 2.19 Increased Costs..................................................................29
Section 2.20 Funding Indemnity................................................................30
Section 2.21 Taxes............................................................................30
Section 2.22 Payments Generally; Pro Rata Treatment; Sharing of Set-offs......................32
Section 2.23 Mitigation of Obligations; Replacement of Lenders................................33
Section 2.24 Letters of Credit................................................................33
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.......................................38
Section 3.1 Conditions To Effectiveness......................................................38
Section 3.2 Each Credit Event................................................................39
Section 3.3 Delivery of Documents............................................................40
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................40
Section 4.1 Existence; Power.................................................................40
Section 4.2 Organizational Power; Authorization..............................................40
Section 4.3 Governmental Approvals; No Conflicts.............................................41
Section 4.4 Financial Statements.............................................................41
Section 4.5 Litigation and Environmental Matters.............................................41
Section 4.6 Compliance with Laws and Agreements..............................................42
Section 4.7 Investment Company Act, Etc......................................................42
Section 4.8 Taxes............................................................................42
Section 4.9 Margin Regulations...............................................................42
Section 4.10 ERISA............................................................................42
Section 4.11 Ownership of Property............................................................42
Section 4.12 Disclosure.......................................................................43
Section 4.13 Labor Relations..................................................................43
Section 4.14 Subsidiaries.....................................................................43
ARTICLE V AFFIRMATIVE COVENANTS.....................................................................43
Section 5.1 Financial Statements and Other Information.......................................43
Section 5.2 Notices of Material Events.......................................................45
Section 5.3 Existence; Conduct of Business...................................................46
Section 5.4 Compliance with Laws, Etc........................................................46
Section 5.5 Payment of Obligations...........................................................46
Section 5.6 Books and Records................................................................46
Section 5.7 Visitation, Inspection, Etc......................................................46
Section 5.8 Maintenance of Properties; Insurance.............................................46
Section 5.9 Use of Proceeds and Letters of Credit............................................47
Section 5.10 Additional Subsidiaries..........................................................47
ARTICLE VI FINANCIAL COVENANTS.......................................................................47
Section 6.1 Lease Adjusted Leverage Ratio....................................................47
Section 6.2 Asset Coverage Ratio.............................................................48
Section 6.3 Fixed Charge Coverage Ratio......................................................48
Section 6.4 Consolidated Tangible Net Worth..................................................48
ARTICLE VII NEGATIVE COVENANTS........................................................................48
Section 7.1 Indebtedness.....................................................................49
Section 7.2 Negative Pledge..................................................................50
Section 7.3 Fundamental Changes..............................................................51
Section 7.4 Investments, Loans, Etc..........................................................51
Section 7.5 Restricted Payments..............................................................52
Section 7.6 Sale of Assets...................................................................53
Section 7.7 Transactions with Affiliates.....................................................54
Section 7.8 Restrictive Agreements...........................................................54
Section 7.9 Sale and Leaseback Transactions..................................................54
Section 7.10 Hedging Agreements...............................................................54
Section 7.11 Amendment to Material Documents..................................................55
Section 7.12 Accounting Changes...............................................................55
Section 7.13 Government Regulation............................................................55
ARTICLE VIII EVENTS OF DEFAULT.........................................................................55
Section 8.1 Events of Default................................................................55
ARTICLE IX THE ADMINISTRATIVE AGENT..................................................................58
Section 9.1 Appointment of Administrative Agent..............................................58
Section 9.2 Nature of Duties of Administrative Agent.........................................58
Section 9.3 Lack of Reliance on the Administrative Agent.....................................59
Section 9.4 Certain Rights of the Administrative Agent.......................................59
Section 9.5 Reliance by Administrative Agent.................................................59
Section 9.6 The Administrative Agent in its Individual Capacity..............................59
Section 9.7 Successor Administrative Agent...................................................60
ARTICLE X MISCELLANEOUS.............................................................................60
Section 10.1 Notices..........................................................................60
Section 10.2 Waiver; Amendments...............................................................62
Section 10.3 Expenses; Indemnification........................................................63
Section 10.4 Successors and Assigns...........................................................65
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.......................67
Section 10.6 WAIVER OF JURY TRIAL.............................................................68
Section 10.7 Right of Setoff..................................................................68
Section 10.8 Counterparts; Integration........................................................68
Section 10.9 Survival.........................................................................69
Section 10.10 Severability.....................................................................69
Section 10.11 Confidentiality..................................................................69
Section 10.12 Interest Rate Limitation.........................................................69
Section 10.13 U.S. Patriot Act Notification....................................................70
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 2.24 Existing Letters of Credit
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule I-F - To the Subsidiary Guarantee Agreement
Schedule I-G - To the Indemnity, Subrogation and Contribution Agreement
Schedule I-G- - To Supplement No.___ to the Indemnity, Subrogation and
Contribution Agreement
Annex I-F - To the Subsidiary Guarantee Agreement
Annex I-G - To the Indemnity, Subrogation and Contribution Agreement
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Assistant Secretary’s Certificate of Borrower
Exhibit 3.1(b)(vii) - Form of Officer’s Certificate
Exhibit 5.1(c) - Financial Covenant Compliance Certificate
Exhibit 5.1(d) - Asset Coverage Ratio Compliance Certificate
REVOLVING CREDIT AND Letter of Credit LOAN AGREEMENT
THIS REVOLVING CREDIT AND LETTER OF CREDIT LOAN AGREEMENT (this “Agreement”) is made and entered into as of
October 14, 2004, by and among U.S. XPRESS ENTERPRISES, INC., a Nevada corporation (the “Borrower”), SUNTRUST BANK,
FLEET NATIONAL BANK, LASALLE BANK, NATIONAL ASSOCIATION, BRANCH BANKING AND TRUST COMPANY, NATIONAL CITY BANK, REGIONS
FINANCIAL CORPORATION and the several banks and other financial institutions from time to time party hereto (the
“Lenders”), and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders (a) establish a $100,000,000 revolving credit facility and
(b) establish a letter of credit sub-facility for an aggregate stated amount equal to the unused revolving credit
facility, for the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the Lenders severally, to the extent of their
respective Commitments, are willing to establish the requested revolving credit facility and letter of credit
sub-facility for the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Borrower, the
Lenders and the Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to the other terms defined herein, the following terms used herein shall have
the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):
“Acquisition" shall mean (a) any Investment by the Borrower or any of its Subsidiaries in any other Person
pursuant to which such Person shall become a Subsidiary of the Borrower or any of its Subsidiaries or shall be merged
with the Borrower or any of its Subsidiaries or (b) any acquisition by the Borrower or any of its Subsidiaries of the
assets of any Person (other than a Subsidiary of the Borrower)and such acquired assets constitute all or substantially
all of the assets of such Person or comprise a business unit of such Person.
“Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar Borrowing, the rate per
annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
“Administrative Agent” shall have the meaning assigned to such term in the opening paragraph hereof.
“Administrative Questionnaire” shall mean, with respect to each Lender, an administrative questionnaire in the
form prepared by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
“Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with, such Person. As of the Closing Date, the
term “Affiliate” shall mean only ▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ with respect to Borrower.
“Aggregate Revolving Commitments” shall mean the sum of the Revolving Commitments of all Lenders at any time
outstanding. On the Closing Date, the Aggregate Revolving Commitments equal $100,000,000.
“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such
Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted
by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made
and maintained.
“Applicable Margin” shall mean with respect to all Revolving Loans outstanding on any date, a percentage per
annum determined by reference to the applicable Lease Adjusted Leverage Ratio in effect on such date as set forth on
Schedule I attached hereto; provided, that a change in the Applicable Margin resulting from a change in the Lease
Adjusted Leverage Ratio shall be effective on the second Business Day after which the Borrower is required to deliver
the financial statements required by Section 5.1(a) or (b) and the compliance certificate required by Section 5.1(c);
provided further, that if at any time the Borrower shall have failed to deliver such financial statements and such
certificate, the Applicable Margin shall be at Level I until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined as provided above. Notwithstanding the foregoing,
the Applicable Margin from the Closing Date until the first financial statement and compliance certificate are required
to be delivered shall be at Level III.
“Applicable Percentage” shall mean, with respect to the Commitment Fee or the Letter of Credit fee, as the case
may be, as of any date, the percentage per annum determined by reference to the applicable Lease Adjusted Leverage
Ratio in effect on such date as set forth on Schedule I attached hereto; provided, that a change in the Applicable
Percentage resulting from a change in the Lease Adjusted Leverage Ratio shall be effective on the second Business Day
after which the Borrower is required to deliver the financial statements required by Section 5.1(a) or (b) and the
compliance certificate required by Section 5.1 (c); provided, further, that if at any time the Borrower shall have
failed to deliver such financial statements and such certificate, the Applicable Percentage shall be at Level I until
such time as such financial statements and certificate are delivered, at which time the Applicable Percentage shall be
determined as provided above. Notwithstanding the foregoing, the Applicable Percentage for both the commitment fee and
the Letter of Credit fee from the Closing Date until the first financial statement and compliance certificate are
required to be delivered shall be at Level III.
“Asset Coverage Ratio” shall mean the ratio of assets constituting Rolling Stock, cash deposits with the
Administrative Agent (which has a first priority Lien in favor of the Lenders),cash deposits or cash equivalents
deposited with a financial institution (which is subject to a control agreement in form and substance reasonably
satisfactory to the Administrative Agent and which permits a first priority lien in favor of Lenders) and/or Vendor
Receivables of the Borrower or a Subsidiary Loan Party which is subject to the Lien of the Security Agreements, to the
Revolving Credit Exposure. In calculating this ratio, the value of Rolling Stock and Vendor Receivables shall be
determined at net book value.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee
(with the consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent,
in the form of Exhibit C attached hereto or any other form approved by the Administrative Agent.
“Availability Period” shall mean the period from the Closing Date to the Commitment Termination Date.
“Base Rate” shall mean the higher of (i) the per annum rate which the Administrative Agent publicly announces
from time to time to be its prime lending rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in
effect from time to time, plus one-half of one percent (0.50%). The Administrative Agent’s prime lending rate is a
reference rate and does not necessarily represent the lowest or best rate charged to customers. The Administrative
Agent may make commercial loans or other loans at rates of interest at, above or below the Administrative Agent’s prime
lending rate. Each change in the Administrative Agent’s prime lending rate shall be effective from and including the
date such change is publicly announced as being effective.
“Borrower” shall have the meaning in the introductory paragraph hereof.
“Borrower Security Agreement” shall mean that certain Security Agreement dated as of the date hereof, executed
by the Borrower and the Administrative Agent, and any amendments thereto or restatements thereof.
“Borrowing” shall mean a borrowing consisting of (i) Loans of the same Class and Type, made, converted or
continued on the same date and in case of Eurodollar Loans, as to which a single Interest Period is in effect, or (ii)
a Swingline Loan.
“Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on which commercial banks in
Atlanta, Georgia and New York, New York are authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion of or into, or an Interest Period for,
a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which dealings in Dollars are carried on
in the London interbank market.
“Capital Lease Obligations” of any Person shall mean all obligations of such Person to pay rent or other
amounts under any lease (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, and the amount of such obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
“Change in Control” shall mean the occurrence of one or more of the following events: (a) any sale, lease,
exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Unrelated Person; (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Unrelated Person of 25% or more of the outstanding shares of the voting stock of the
Borrower; or (c) occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated or appointed by the current board of directors; (ii) nominated or
appointed by directors so nominated or appointed; or (iii) otherwise in succession of such directors. For purposes of
this definition, “Unrelated Person” means any Person or “group” (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof) other than: (1)
▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇, their spouses, their lineal descendents and spouses of their lineal descendents;
(2) the estates of Persons described in clause (1); (3) trusts established for the benefit of any Person or Persons
described in clause (1); and (4) corporations, limited liability companies, partnerships or similar entities 75% or
more owned by any Person or Persons described in clauses (1) through (3). Notwithstanding the foregoing, a Change in
Control will not exist if ▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Person described in clauses (1) through (4) of this
paragraph, continue to retain in the aggregate more shares than those acquired by an Unrelated Person. For purposes of
calculating the number of outstanding shares of the voting stock of the Borrower beneficially owned by any “group”
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder in effect on the date hereof), shares beneficially owned by Persons described in clauses (1) through (4) of
the immediately preceding sentence shall be excluded from such calculation.
“Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this Agreement, or (iii) compliance by any Lender
(or its Applicable Lending Office) or the Issuing Bank (or for purposes of Section 2.19(b), by such Lender’s or the
Issuing Bank’s holding company, if applicable) 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 or Swingline Loans and when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or a Swingline Commitment .
“Closing Date” shall mean the date on which the conditions precedent set forth in Section 3.1 and Section 3.2
have been satisfied or waived in accordance with Section 10.2.
“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
“Commitment” shall mean a Revolving Commitment or a Swingline Commitment or any combination thereof (as the
context shall permit or require).
“Commitment Termination Date” shall mean the earliest of (i) October 13, 2009, (ii) the date on which the
Revolving Commitments are terminated pursuant to Section 2.10 or (iii) the date on which all amounts outstanding under
this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries for any period, an amount equal to the
sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net
Income for such period, (i) Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation and amortization
and (iv) all other non-cash charges, determined on a consolidated basis in accordance with GAAP in each case for such
period.
“Consolidated EBITR” shall mean, for the Borrower and its Subsidiaries for any period, an amount equal to the
sum of (a) Consolidated EBITDA (less depreciation and amortization) and (b) Consolidated Lease Expense.
“Consolidated EBITDAR” shall mean, for the Borrower and its Subsidiaries for any period, an amount equal to the
sum of (a) Consolidated EBITDA and (b) Consolidated Lease Expense. The trailing four quarters EBITDAR of an acquired
business will be added to the extent reflected in the Borrower’s consolidated financial statements for less than four
quarters.
“Consolidated Fixed Charges” shall mean, for the Borrower and its Subsidiaries for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period and (b) Consolidated Lease Expense for such period.
“Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for any period determined on
a consolidated basis in accordance with GAAP, the sum of (i) total interest expense, including without limitation the
interest component of any payments in respect of Capital Leases Obligations capitalized or expensed during such period
(whether or not actually paid during such period) plus (ii) the net amount payable (or minus the net amount receivable)
under Hedging Agreements during such period (whether or not actually paid or received during such period).
“Consolidated Lease Expense” shall mean, for any period, the aggregate amount of fixed and contingent rentals
payable by the Borrower and its Subsidiaries with respect to leases of real and personal property (excluding Capital
Lease Obligations) determined on a consolidated basis in accordance with GAAP for such period, but excluding
termination payments on TRAC Leases.
“Consolidated Net Income” shall mean, for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, but excluding therefrom (to
the extent otherwise included therein) (i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets and (iii) any income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or is merged
into or consolidated with the Borrower or any Subsidiary on the date that such Person’s assets are acquired by the
Borrower or any Subsidiary.
“Consolidated Net Worth” shall mean, as of any date, (i) the total assets of the Borrower and its Subsidiaries
that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP,
after eliminating all amounts properly attributable to minority interests, if any, in the stock and surplus of
Subsidiaries, the financial positions of which are reflected in the consolidated balance sheet of the Borrower, minus
the sum of (i) the total liabilities of the Borrower and its Subsidiaries that would be reflected on the Borrower’s
consolidated balance sheet as of such date prepared in accordance with GAAP and (ii) the amount of any write-up in the
book value of any assets resulting from a revaluation thereof or any write-up in excess of the cost of such assets
acquired reflected on the consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP.
“Consolidated Tangible Net Worth” shall mean, as of any date, (i) the total assets of the Borrower and its
Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared in
accordance with GAAP, after eliminating all amounts properly attributable to minority interests, if any, in the stock
and surplus of Subsidiaries, minus the sum of (i) the total liabilities of the Borrower and its Subsidiaries that would
be reflected on the Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP, (ii) the
amount of any write-up in the book value of any assets resulting from a revaluation thereof or any write-up in excess
of the cost of such assets acquired reflected on the consolidated balance sheet of the Borrower as of such date
prepared in accordance with GAAP and (iii) the net book amount of all assets of the Borrower and its Subsidiaries that
would be classified as intangible assets on a consolidated balance sheet of the Borrower as of such date prepared in
accordance with GAAP.
“Consolidated Total Debt” shall mean, as of any date of determination, all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance sheet of the Borrower prepared in accordance with GAAP
as of such date.
“Control” shall mean the power, directly or indirectly, either to (i) vote 25% or more of securities having
ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. The terms “Controlling”, “Controlled by”, and “under common Control with” have
meanings correlative thereto.
“Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
“Default Interest” shall have the meaning set forth in Section 2.14(c).
“Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.
“Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for
damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or
based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any
successor statute.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which, together with the
Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the 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
the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed by the
PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate 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.
“Eurodollar” when used in reference to any Loan or Borrowing refers to whether such Loan, or the Loans
comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
“Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages (including, without
limitation, any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent is subject with respect to the Adjusted
LIBO Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to eurocurrency funding (currently referred to as
“eurocurrency liabilities” under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding 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 Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.
“Event of Default” shall have the meaning provided in Article VIII.
“Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the 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 or
franchise taxes imposed on (or measured by) its net income by the United States of America, 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, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.7, any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with
Section 2.21(e), except to the extent that such Foreign Lender (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 2.21(a).
"Existing Letters of Credit" means the Letters of Credit previously issued and outstanding under the Fleet
Credit Agreement as set forth in Schedule 2.24, which shall be deemed issued and outstanding under this Agreement as of
the Closing Date.
“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next
1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of
the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on
the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day
on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
“Fixed Charge Coverage Ratio” shall mean, for any period of four consecutive fiscal quarters of the Borrower,
the ratio of (a) Consolidated EBITR for such period to (b) Consolidated Fixed Charges for such period.
"Fleet Credit Agreement" shall mean that certain Revolving Credit Agreement dated March 29, 2002 by and among
the Borrower (and certain Subsidiaries named therein), Fleet Capital Corporation as administrative agent and the
Lenders (as defined therein) named therein, as amended to date.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that of
the Borrower. For purposes of this definition, the United States of America or any State thereof or the District of
Columbia shall constitute one jurisdiction.
“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis
and subject to the terms of Section 1.3.
“Governmental Authority” shall mean the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the
guarantor 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, direct or
indirect, of the guarantor (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 thereof, (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 thereof, (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 or (d) as an account party in respect of any Letter of Credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term “Guarantee” shall not include
endorsements for collection or deposits in the ordinary course of business. The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the primary obligation in respect of which Guarantee is
made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming
such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as
a verb has a corresponding meaning.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
“Hedging Agreements” shall mean interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest rates, currency values or commodity
values.
“Indebtedness” of any Person shall mean, without duplication (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of business on terms customary in the trade), (iv) all obligations of such
Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person,
(v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the
type of Indebtedness described in clauses (i) through (vi) above, (viii) all Indebtedness of a third party secured by
any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (ix) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any
common stock of such Person, (x) Off-Balance Sheet Liabilities, and (xi) obligations under any Hedging Agreements or
foreign exchange agreements. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefore.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
“Indemnity and Contribution Agreement” shall mean the Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit E, among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
“Information Memorandum” shall mean the Confidential Information Memorandum dated September of 2004 relating to
the Borrower and the transactions contemplated by this Agreement and the other Loan Documents.
“Interest Period” shall mean (i) with respect to any Eurodollar Borrowing, a period of one, two, three or six
months, and (ii) with respect to a Swingline Loan, a period as the Borrower may request and the Swingline Lender may
agree in accordance with Section 2.5; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of another Type) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such Interest Period would end on the next
preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing which begins on the last Business
Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period shall end on the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment Termination Date or the Swingline
Termination Date, as the case may be.
“Investments” shall have the meaning set forth in Section 7.4.
“Issuing Bank” shall mean SunTrust Bank in its capacity as an issuer of Letters of Credit pursuant to Section
2.24 which are not Existing Letters of Credit, and Fleet National Bank in its capacity as issuer of the Existing
Letters of Credit.
“LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be used by the Borrower
for the issuance of Letters of Credit in an aggregate face amount not to exceed $100,000,000.
“LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC Documents” shall mean the Letters of Credit and all applications, agreements and instruments relating to
the Letters of Credit.
“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters
of Credit at such time, plus (ii) the aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure
at such time.
“Lease Adjusted Leverage Ratio” shall mean for any period of four consecutive fiscal quarters of the Borrower,
the ratio of (a) Total Lease Adjusted Debt at the end of such period to (b) Consolidated EBITDAR for such period.
“Lenders” shall have the meaning assigned to such term in the opening paragraph of this Agreement and shall
include, where appropriate, the Swingline Lender.
“Letter of Credit” shall mean any Letter of Credit issued pursuant to Section 2.24 by SunTrust Bank as an
Issuing Bank for the account of the Borrower pursuant to the LC Commitment and any Existing Letters of Credit.
“LIBOR” shall mean, for any applicable Interest Period with respect to any Eurodollar Loan, the rate per annum
for deposits in Dollars for a period equal to such Interest Period appearing on the display designated as Page 3750 on
the Dow ▇▇▇▇▇ Markets Service (or such other page on that service or such other service designated by the British
Banker’s Association for the display of such Association’s Interest Settlement Rates for Dollar deposits) as of
11:00 a.m. (London, England time) on the day that is two Business Days prior to the first day of the Interest Period or
if such Page 3750 is unavailable for any reason at such time, the rate which appears on the Reuters Screen ISDA Page as
of such date and such time; provided, that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per
annum at which deposits in Dollars are offered to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank market as of 10:00 a. m. for delivery on the first
day of such Interest Period, for the number of days comprised therein and in an amount comparable to the amount of the
Eurodollar Loan of the Administrative Agent.
“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or
any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).
“Loan Documents” shall mean, collectively, this Agreement, the Notes, the LC Documents, all Notices of
Borrowing, the Subsidiary Guarantee Agreement, the Indemnity and Contribution Agreement, the Security Agreements and
any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.
“Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of them, as the context
shall require.
“Material Adverse Effect” shall mean, with respect to any event, act, condition or occurrence of whatever
nature (including any adverse determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions,
occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on,
(i) the business, results of operations, financial condition, assets or liabilities of the Borrower and of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the Administrative Agent, the Issuing Bank and
the Lenders under any of the Loan Documents or (iv) the legality, validity or enforceability of any of the Loan
Documents.
“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 the Borrower 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 the Borrower or any Subsidiary in respect to any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.
“Notes” shall mean, collectively, the Revolving Credit Notes and the Swingline Note .
“Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing and the Notices of
Swingline Borrowing.
“Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the Administrative Agent in
respect of the conversion or continuation of an outstanding Borrowing as provided in Section 2.9(b) hereof.
“Notice of Revolving Borrowing” shall have the meaning as set forth in Section 2.3.
“Notice of Swingline Borrowing” shall have the meaning as set forth in Section 2.5.
“Obligations” shall mean all amounts owing by the Borrower to the Administrative Agent, the Issuing Bank or any
Lender (including the Swingline Lender) pursuant to or in connection with this Agreement or any other Loan Document,
including without limitation, all principal, interest (including any interest accruing after the filing of any petition
in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all reasonable
fees and expenses of counsel to the Administrative Agent and any Lender (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated
or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions,
modifications or refinancings thereof.
“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such
Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any
sale and leaseback transactions which do not create a liability on the balance sheet of such Person, (iii) any
liability of such Person under any so-called “synthetic” lease transaction or (iv) any obligation arising with respect
to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such Person. Notwithstanding the foregoing, Off-Balance Sheet
Liabilities shall not include operating leases entered into in the ordinary course of business.
“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 hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
“Participant” shall have the meaning set forth in Section 10.4(c).
“Payment Office” shall mean the office of the Administrative Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as to which the Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor
entity performing similar functions.
“Permitted Encumbrances” shall mean
(i) Liens imposed by law for taxes not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with
GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law created in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(v) judgment and attachment liens not giving rise to an Event of Default or Liens created by or
existing from any litigation or legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with
GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or materially interfere with the ordinary
conduct of business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Investments” shall mean:
(i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each case maturing within one year from the date
of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of acquisition thereof, of S&P or
Moody’s and in either case maturing within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days of
the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized under the laws of the United States
or any state thereof which has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (i) above and entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of the Permitted Investments described in
clauses (i) through (iv) above.
“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited
liability company, trust or other entity, or any Governmental Authority.
“Plan” means 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 302 of ERISA, and in respect of which the Borrower or any ERISA
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.
“Pro Rata Share” shall mean, with respect to any Lender at any time, a percentage, the numerator of which shall
be the sum of such Lender’s Revolving Commitment and the denominator of which shall be the sum of all Lenders’
Revolving Commitments; or if the Revolving Commitments have been terminated or expired or if the Loans have been
declared to be due and payable, a percentage, the numerator of which shall be the sum of such Lender’s Revolving Credit
Exposure and the denominator of which shall be the sum of the aggregate Revolving Credit Exposure of all Lenders.
“Receivables” shall mean accounts receivable (including, without limitation, all rights to payment created or
arising from the sales of goods, leases of goods or the rendition of services, no matter how evidenced and whether or
not earned by performance) or any “accounts” as such term is defined under the applicable Uniform Commercial Code,
excluding however, any Vendor Receivables.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may
be in effect from time to time, and any successor regulations.
“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” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata) or within any building, structure, facility or fixture.
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding
Revolving Credit Exposures at such time or if the Lenders have no Revolving Credit Exposure outstanding, then Lenders
holding more than 50% of the Aggregate Revolving Commitments.
“Responsible Officer” shall mean any of the president, the chief executive officer, the chief operating
officer, the chief financial officer, the treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent;
and, with respect to the financial covenants only, the chief financial officer or the treasurer of the Borrower.
“Restricted Payment” shall have the meaning set forth in Section 7.5.
“Revolving Commitment” shall mean, with respect to each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in Letters of Credit and Swingline Loans in an aggregate principal amount not
exceeding the amount set forth with respect to such Lender on the signature pages to this Agreement, or in the case of
a Person becoming a Lender after the Closing Date, the amount of the assigned “Revolving Commitment” as provided in the
Assignment and Acceptance Agreement executed by such Person as an assignee, as the same may be changed pursuant to
terms hereof.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the outstanding
principal amount of such Lender’s Revolving Loans, such Lender’s LC Exposure and such Lender’s Swingline Exposure.
“Revolving Credit Note(s)” shall mean a promissory note of the Borrower payable to the order of each Lender in
the principal amount of such Lender’s Revolving Commitment, in substantially the form of Exhibit A.
“Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender) to the Borrower under its
Revolving Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.
“Rolling Stock” shall mean all trucks, tractors and trailers owned by Borrower and its Subsidiaries.
“S&P” shall mean Standard & Poor’s.
“Securitization Transaction” shall mean any transfer by the Borrower or any Subsidiary of Receivables or
interests therein and all collateral securing such Receivables, all contracts and contract rights and all guarantees or
other obligations in respect of such Receivables, all other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with asset securitization transactions involving such
Receivables and all proceeds of any of the foregoing (i) to a trust, partnership, corporation or other entity (other
than the Borrower or a Subsidiary other than a SPE Subsidiary), 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 other
securities that are to receive payments from, or that represent interests in, the cash flow derived from such
Receivables or interests in Receivables, or (ii) directly to one or more investors or other purchasers (other than the
Borrower or any Subsidiary). The “amount” or “principal amount” of any Securitization Transaction shall be deemed at
any time to be (x) in the case of a transaction described in clause (i) of the preceding sentence, the aggregate
principal or stated amount of the Indebtedness or other securities referred to in such clause or, if there shall be no
such principal or stated amount, the uncollected amount of the Receivables transferred pursuant to such Securitization
Transaction net of any such Receivables that have been written off as uncollectible, and (y) in the case of a
transaction described in clause (ii) of the preceding sentence, the aggregate outstanding principal amount of the
Indebtedness secured by Liens on the subject Receivables.
“Security Agreements” shall mean collectively the Borrower Security Agreement and the Subsidiary Security
Agreements.
"SPE Subsidiary" shall mean any Subsidiary formed solely for the purpose of, and that engages only in, one or
more Securitization Transactions.
“Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation, partnership, joint
venture, limited liability company, association or other entity the accounts of which would be consolidated with those
of the parent in the parent’s consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, Controlled or held, or (ii) that is, as of such date, 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. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the
Borrower. As used in this definition, the term “Controlled” shall have the meaning as set forth earlier in this section
but with the substitution of "more than 50%" in lieu of 25% in subsection (i) of the definition of Control.
“Subsidiary Guarantee Agreement” shall mean the Subsidiary Guarantee Agreement, substantially in the form of
Exhibit D, made by the Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of the Lenders.
“Subsidiary Loan Party” shall mean any Subsidiary that is not an SPE Subsidiary whose organizational documents
prohibit such entity from guaranteeing the Obligations.
“Subsidiary Security Agreements” shall mean: (i) that certain Security Agreement dated as of the date hereof,
executed by U.S. Xpress, Inc. and Administrative Agent, (ii) that certain Security Agreement dated as of the date
hereof executed by U.S. Xpress Leasing, Inc. and Administrative Agent, (iii) that certain Security Agreement dated as
of the date hereof executed by Xpress Air, Inc. and the Administrative Agent; (iv) that certain Security Agreement
dated as of the date hereof executed by Xpress Company Store, Inc. and the Administrative Agent, (v) that certain
Security Agreement dated as of the date hereof executed by Xpress Holdings, Inc. and the Administrative Agent, (vi)
that certain Security Agreement dated as of the date hereof executed by Xpress Global Systems, Inc. and the
Administrative Agent, (vii) that certain Security Agreement dated as of the date hereof executed by Xpress Colorado,
Inc. and the Administrative Agent, (viii) that certain Security Agreement dated as of the date hereof executed by Cargo
Movement Corp. and the Administrative Agent, (ix) that certain Security Agreement dated as of hereof executed by Xpress
Nebraska, Inc. and the Administrative Agent, (x) that certain Security Agreement dated as of hereof executed by Xpress
Waiting, Inc. and the Administrative Agent, that certain Security Agreement dated as of hereof executed by Colton
Xpress, LLC and the Administrative Agent, and any additional security agreements delivered by a Subsidiary after the
Closing Date in accordance with Section 5.10, together with any amendments thereto or restatements thereof.
“Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an
aggregate principal amount at any time outstanding not to exceed $10,000,000.
“Swingline Exposure” shall mean, with respect to each Lender, the principal amount of the Swingline Loans in
which such Lender is legally obligated either to make a Base Rate Loan or to purchase a participation in accordance
with Section 2.5, which shall equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.
“Swingline Lender” shall mean SunTrust Bank.
“Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under the Swingline Commitment.
“Swingline Note” shall mean the promissory note of the Borrower payable to the order of the Swingline Lender in
the principal amount of the Swingline Commitment, substantially in the form of Exhibit B.
“Swingline Termination Date” shall mean the date that is three (3) Business Days prior to the Commitment
Termination Date.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“Total Lease Adjusted Debt” shall mean, as of the date of determination, the sum of (i) Consolidated Total Debt
and (ii) the present value of all future Consolidated Lease Expense, calculated utilizing a discount rate equal to ten
percent (10%).
“TRAC Leases” shall mean leases of the Borrower or its Subsidiaries for Rolling Stock, motorized equipment and
aircraft, which contain a terminal rental adjustment clause for the adjustment of lease payments upon its termination.
“Trucking Company A” means that certain trucking company identified by the Borrower to the Administrative
Agent, pursuant to that certain disclosure letter dated September 15, 2004.
“Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or
on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base Rate.
“Vendor Receivables” shall mean accounts or accounts receivable due and owing to the Borrower or a Subsidiary
arising from the disposition, return or trade-in of Rolling Stock to a dealer, vendor or other Person under the terms
of trade-in agreements, TRAC Leases, Capital Lease Obligations or other arrangements with dealers, vendors or other
Persons dealing with the disposition of Rolling Stock.
“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.
Section 1.2 Classifications 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 “Eurodollar Loan” or “Base Rate Loan”) or by Class
and Type (e.g. “Revolving Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g.
“Revolving Borrowing”) or by Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “ Revolving Eurodollar
Borrowing”).
Section 1.3 Accounting Terms and Determination. Unless otherwise defined or specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied
on a basis consistent (except for such changes approved by the Borrower’s independent public accountants) with the most
recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a); provided, that if
the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Article VI 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 1.4 Terms Generally. The definitions of terms herein shall apply equally to 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”. In the
computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the word “to” means “to but excluding”. Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as it was originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns,
(iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and
(v) all references to a specific time shall be construed to refer to the time in Atlanta, Georgia, unless otherwise
indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description of Facilities. Subject to and upon the terms and conditions herein set forth,
(i) the Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender’s Pro Rata Share up to such Lender’s Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of Credit
in accordance with Section 2.24, (iii) the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, (iv) each Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans
pursuant to the terms and conditions hereof; provided, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate Revolving
Commitments from time to time in effect.
Section 2.2 Revolving Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to
make Revolving Loans to the Borrower, from time to time during the Availability Period, in an aggregate principal
amount outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Commitment or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders exceeding the
Aggregate Revolving Commitments. During the Availability Period, the Borrower shall be entitled to borrow, prepay and
reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default.
Section 2.3 Procedure for Revolving Borrowings
The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Revolving Borrowing substantially in the form of Exhibit 2.3 attached hereto (a “Notice of Revolving
Borrowing”) (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate Borrowing and
(y) prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice
of Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate principal amount of such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such
Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist
entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate principal amount of each
Eurodollar Borrowing shall be not less than $1,000,000 or a larger multiple of $100,000, and the aggregate principal
amount of each Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000; provided, that
Base Rate Loans made pursuant to Section 2.5 may be made in lesser amounts as provided therein. At no time shall the
total number of Eurodollar Borrowings outstanding at any time exceed six (6). Promptly following the receipt of a
Notice of Revolving Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.
Section 2.4 Swingline Commitment. Subject to the terms and conditions set forth herein, the Swingline Lender
agrees to make Swingline Loans to the Borrower, from time to time from the Closing Date to the Swingline Termination
Date, in an aggregate principal amount outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving Commitments and the aggregate Revolving Credit
Exposures of all Lenders; provided, that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans
in accordance with the terms and conditions of this Agreement.
Section 2.5 Procedure for Swingline Borrowing; Etc
(a) The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Swingline Borrowing (“Notice of Swingline Borrowing”) prior to 11:00 a.m. on the requested
date of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall specify:
(i) the principal amount of such Swingline Loan, (ii) the date of such Swingline Loan (which shall be a
Business Day) and (iii) the account of the Borrower to which the proceeds of such Swingline Loan should be
credited. The Administrative Agent will promptly advise the Swingline Lender of each Notice of Swingline
Borrowing. Each Swingline Loan shall accrue interest at the Base Rate or any other interest rate as agreed
between the Borrower and the Swingline Lender and shall have an Interest Period (subject to the definition
thereof) as agreed between the Borrower and the Swingline Lender. The aggregate principal amount of each
Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such other minimum amounts
agreed to by the Swingline Lender and the Borrower. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrower in Dollars in immediately available funds at the account specified by
the Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the requested date of
such Swingline Loan. The Administrative Agent will notify the Lenders on a quarterly basis if any Swingline
Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in its sole discretion, may, on behalf of the Borrower
(which hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice of
Revolving Borrowing to the Administrative Agent requesting the Lenders (including the Swingline Lender) to make
Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan. Each Lender will make
the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the
account of the Swingline Lender in accordance with Section 2.8, which will be used solely for the repayment of
such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative
Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Swingline
Lender) shall purchase an undivided participating interest in such Swingline Loan in an amount equal to its Pro
Rata Share thereof on the date that such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its participating
interest to the Administrative Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall automatically become a Base Rate Loan on
the effective date of any such participation and interest shall become payable on demand.
(d) Each Lender’s obligation to make a Base Rate Loan pursuant to Section 2.5(b) or to purchase the participating
interests pursuant to Section 2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or other right
that such Lender or any other Person may have or claim against the Swingline Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of
any Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of any event or condition which
has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of this Agreement or
any other Loan Document by the Borrower, the Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact
made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for each day from the date of demand
thereof at the Federal Funds Rate. Until such time as such Lender makes its required payment, the Swingline
Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans and any other amounts due to it hereunder, to
the Swingline Lender to fund the amount of such Lender’s participation interest in such Swingline Loans that
such Lender failed to fund pursuant to this Section, until such amount has been purchased in full.
Section 2.6 Collateral. The Obligations shall be secured by a first priority security interest in the Collateral
as such term is defined and described in the respective Security Agreements.
Section 2.7 Replacement of Lender. If (i) Borrower is required pursuant to Section 2.19 or 2.21 to make any
additional payment to any Lender or (ii) any Lender refuses to consent to certain proposed amendments, modifications,
waivers, discharges or terminations with respect to this Agreement that require the consent of all Lenders (or all
affected Lenders) pursuant to Section 10.2 and the same have been approved by the Required Lenders (any Lender
described in clause (i) or clause (ii) being an “Affected Lender”), the Borrower may elect to replace the Revolving
Commitment of such Affected Lender, provided that no Event of Default shall have occurred and be continuing at the time
of such termination or replacement, and provided further that, concurrently with such replacement, (i) another bank or
other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such
date, to purchase for cash the Revolving Credit Exposure of the Affected Lender pursuant to an Assignment and
Acceptance and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of Section 10.4 applicable to assignments,
and (ii) the Borrower shall pay to such Affected Lender in immediately available funds on the day of such replacement
(A) all interest, fees and other amounts then accrued and unpaid that are owing to such Affected Lender by such
Borrower hereunder to and including the date of termination, including without limitation, payments due to such
Affected Lender under Sections 2.19 and 2.21, and (B) an amount, if any, equal to the payment which would have been due
to such Lender on the day of such replacement under Section 2.19 had the Loans of such Affected Lender been prepaid on
such date rather than sold to the replacement Lender, in each case to the extent not paid by the purchasing lender.
Section 2.8 Funding of Borrowings
(a) Each Lender will make available each Loan to be made by it hereunder on the proposed date thereof by wire
transfer in immediately available funds by 11:00 a.m. to the Administrative Agent at the Payment Office;
provided, that the Swingline Loans will be made as set forth in Section 2.5. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the
close of business on such proposed date, to an account maintained by the Borrower with the Administrative Agent
or at the Borrower’s option, by effecting a wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender prior to 5 p.m. one (1) Business Day
prior to the date of a Borrowing in which such Lender is participating that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such date, and the Administrative
Agent, in reliance on such assumption, may make available to the Borrower on such date a corresponding amount.
If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate for up to two (2) days and thereafter
at the rate specified for such Borrowing. If such Lender does not pay such corresponding amount forthwith upon
the Administrative Agent’s demand therefore, the Administrative Agent shall promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest
at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares. No
Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make its Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to make its Loans hereunder.
Section 2.9 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing, and in the case
of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different Type or to continue such
Borrowing, and in the case of a Eurodollar Borrowing, may elect Interest Periods therefore, all as provided in
this Section. The Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall NOT apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall give the Administrative Agent prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing (a “Notice of
Conversion/Continuation”) that is to be converted or continued, as the case may be, (x) prior to 11:00 a.m. one
(1) Business Day prior to the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to a continuation of or conversion into a Eurodollar Borrowing. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such Notice
of Continuation/Conversion applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting
Borrowing); (ii) the effective date of the election made pursuant to such Notice of Continuation/Conversion,
which shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall be a period contemplated by the definition
of “Interest Period”. If any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month.
The principal amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Borrower shall have
failed to deliver a Notice of Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing to a Base Rate Borrowing. No
Borrowing may be converted into, or continued as, a Eurodollar Borrowing if a Default or an Event of Default
exists, unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No
conversion of any Eurodollar Loans shall be permitted except on the last day of the Interest Period in respect
thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify each
Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
Section 2.10 Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments shall terminate on the Commitment Termination Date,
except that the Swingline Commitment shall terminate on the Swingline Termination Date.
(b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments in whole; provided, that (i) any
partial reduction shall apply to reduce proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.10 shall be in an amount of at least $5,000,000
and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitments to an amount less than the outstanding Revolving Credit Exposures of all
Lenders. Any such reduction in the Aggregate Revolving Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the Swingline Commitment and the LC Commitment.
Section 2.11 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be due and payable (together with accrued and
unpaid interest thereon) on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and payable (together with accrued interest
thereon) on the earlier of (i) the last day of the Interest Period applicable to such Borrowing and (ii) the
Swingline Termination Date.
Section 2.12 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice appropriate records 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 thereon and paid to such Lender from time to time under
this Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded (i) the
Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and
Type thereof and the Interest Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.9, (iv) the date of each conversion of all or a portion thereof to another Type pursuant to
Section 2.9, (v) the date and amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder in respect of such Loans and (vi) both the date and amount of any
sum received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s
Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, that the failure or delay of any Lender
or the Administrative Agent in maintaining or making entries into any such record or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) As of the Closing Date, Borrower will execute and deliver to each such Lender a Revolving Credit Note, and, in
the case of the Swingline Lender only, a Swingline Note, payable to the order of such Swingline Lender.
Section 2.13 Optional Prepayments. The Borrower shall have the right at any time and from time to time to prepay
any Borrowing, in whole or in part, without premium or penalty, by giving irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any such prepayment, (ii) in the case
of any prepayment of any Base Rate Borrowing, 11:00 a.m. not less than one Business Day prior to the date of such
prepayment, and (iii) in the case of Swingline Borrowings, prior to 11:00 a. m. on the date of such prepayment. Each
such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of
each Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such
prepayment. If such notice is given, the aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the amount so prepaid in accordance with
Section 2.14(e); provided, that if a Eurodollar Borrowing is prepaid on a date other than the last day of an Interest
Period applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2.20. Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or in the case of a Swingline Loan pursuant
to Section 2.5. Each prepayment of a Borrowing shall be applied ratably to the Loans comprising such Borrowing.
Section 2.14 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate in effect from time to time and on each
Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the Base Rate in effect from time to time, plus the
Applicable Margin in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the option of the Required Lenders, the Borrower
shall pay interest (“Default Interest”) with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the last day of such Interest
Period, and thereafter, and with respect to all Base Rate Loans (including all Swingline Loans) and all other
Obligations hereunder (other than Loans), at an all-in rate in effect for Base Rate Loans, plus an additional
2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from and including the date such Loans are made to
but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December and on the Commitment
Termination Date. Interest on all outstanding Eurodollar Loans shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in
excess of three months or 90 days, respectively, on each day which occurs every three months or 90 days, as the
case may be, after the initial date of such Interest Period, and on the Commitment Termination Date. Interest
on each Swingline Loan shall be payable quarterly in arrears on the last day of each March, June, September and
December, and on the Swingline Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be payable on
demand.
(e) The Administrative Agent shall determine each interest rate applicable to the Loans hereunder and shall
promptly notify the Borrower and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all purposes, absent manifest error.
Section 2.15 Fees.
(a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon by the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee (the “Commitment Fee”), which shall accrue at the Applicable Percentage (determined daily in
accordance with Schedule I) on the daily amount of the unused Revolving Commitment of such Lender during the
Availability Period; provided, that if such Lender continues to have any Revolving Credit Exposure after the
Commitment Termination Date, then the commitment fee shall continue to accrue on the amount of such Lender’s
unused Revolving Commitment from and after the Commitment Termination Date to the date that all of such
Lender’s Revolving Credit Exposure has been paid in full. Accrued commitment fees shall be payable in arrears
on the last day of each March, June, September and December of each year and on the Commitment Termination
Date, commencing on the first such date after the Closing Date; provided further, that any commitment fees
accruing after the Commitment Termination Date shall be payable on demand. For purposes of computing commitment
fees with respect to the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed used to
the extent of the outstanding Revolving Loans and LC Exposure of such Lender, but Swingline Loans shall not be
deemed usage.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee (the “Letter of Credit Fee”) with respect to its participation in each Letter of
Credit, which shall accrue at the Applicable Percentage then in effect on the average daily amount of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to
but excluding the date on which such Letter expires or is drawn in full (including without limitation any LC
Exposure that remains outstanding after the Commitment Termination Date) and (ii) to the Issuing Bank for its
own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to Unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is irrevocably canceled, whichever is later),
as well as the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder.
(d) Payments. Accrued fees shall be payable quarterly in arrears on the last day of each March, June, September and
December, commencing on the first such date after the Closing Date and on the Commitment Termination Date (and
if later, the date the Loans and LC Exposure shall be repaid in their entirety).
Section 2.16 Computation of Interest and Fees. All computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the extent computed on the basis of days
elapsed). Each determination by the Administrative Agent of an interest amount or fee hereunder shall be made in good
faith and, except for manifest error, shall be final, conclusive and binding for all purposes.
Section 2.17 Inability to Determine Interest Rates. If prior to the commencement of any Interest Period for any
Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant interbank market, adequate means do
not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBO Rate does
not adequately and fairly reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in writing) to the
Borrower and to the Lenders as soon as practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans shall be converted
into Base Rate Loans on the last day of the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one
Business Day before the date of any Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a Base
Rate Borrowing.
Section 2.18 Illegality. If any Change in Law shall make it unlawful or impossible for any Lender to make, maintain
or fund any Eurodollar Loan and such Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar Revolving Borrowing, such Lender’s
Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving Borrowing for the same Interest Period
and if the affected Eurodollar Loan is then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on
the last day of the then current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully
continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the affected Lender shall, prior
to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation
would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such
Lender in the good faith exercise of its discretion.
Section 2.19 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise
included in the determination of the Adjusted LIBO Rate hereunder against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any such reserve requirement reflected
in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any other condition affecting
this Agreement or any Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of the foregoing is to increase the cost to such Lender of making, converting into, continuing or
maintaining a Eurodollar Loan or to increase the cost to such Lender or the Issuing Bank of participating in or issuing
any Letter of Credit or to reduce the amount received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or any other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand to the Administrative Agent), to the
Administrative Agent for the account of such Lender, within five Business Days after the date of such notice and
demand, additional amount or amounts sufficient to compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or after the date of this Agreement any Change
in Law regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s or the Issuing Bank’s capital (or on the capital of such Lender’s or the Issuing Bank’s parent
corporation) as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a
level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent
corporation could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies or the policies of such Lender’s or the Issuing Bank’s parent corporation with respect
to capital adequacy) then, from time to time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower (with a copy to the
Administrative Agent) and shall be conclusive, absent manifest error. The Borrower shall pay any such Lender or
the Issuing Bank, as the case may be, such amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation.
Section 2.20 Funding Indemnity. In the event of (a) the payment of any principal of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto,
or (c) the failure by the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrower shall compensate each Lender, within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense shall be
deemed to include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO
Rate applicable to such Eurodollar Loan for the period from the date of such event to the last day of the then current
Interest Period therefore (or in the case of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal
amount of such Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the date such Eurodollar Loan
was prepaid or converted or the date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan.
A certificate as to any additional amount payable under this Section 2.20 submitted to the Borrower by any Lender shall
be conclusive, absent manifest error.
Section 2.21 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, any Lender or the Issuing Bank (as the
case may be) shall receive 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 the Issuing Bank, within five (5)
Business Days after written demand therefore, for the full amount of any Indemnified Taxes or Other Taxes paid
by the Administrative Agent, such Lender or the 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 respect thereto, 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 or the Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(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 Foreign Lender that is entitled to an exemption from or reduction of 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, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the generality of the foregoing, each Foreign Lender
agrees that it will deliver to the Administrative Agent and the Borrower (or in the case of a Participant, to
the Lender from which the related participation shall have been purchased) two (2) duly completed copies of
Internal Revenue Service Form 1001 or 4224, or any successor form thereto, as the case may be, certifying in
each case that such Foreign Lender is entitled to receive payments made by the Borrower hereunder and under the
Notes payable to it, without deduction or withholding of any United States federal income taxes and (ii) a duly
completed Internal Revenue Service Form W-8 or W-9, or any successor form thereto, as the case may be, to
establish an exemption from United State backup withholding tax. Each such Foreign Lender shall deliver to the
Borrower and the Administrative Agent such forms on or before the date that it becomes a party to this
Agreement (or in the case of a Participant, on or before the date such Participant purchases the related
participation). In addition, each such Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Lender. Each such Lender shall promptly notify the Borrower
and the Administrative Agent at any time that it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).
Section 2.22 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.19, 2.20 or 2.21, or otherwise)
prior to 12:00 noon, on the date when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.19, 2.20 and 2.21 and 10.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-of or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate
amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided, that (i) if any such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or
any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that
the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.5(b), 2.24(c) or
(d), 2.7(b), 2.22(d) or 10.3(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account
of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid.
Section 2.23 Mitigation of Obligations; Replacement of Lenders. If any Lender requests compensation under Section
2.19, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.21, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable under Section 2.19 or Section 2.21, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment.
Section 2.24 Letters of Credit.
(a) As of the Closing Date, Fleet National Bank shall be the Issuing Bank for all Existing Letters of Credit listed
in Schedule 2.24. All other Letters of Credit issued pursuant to this Section shall be issued by SunTrust Bank
as Issuing Bank, including any Letters of Credit issued as a replacement of, or as an extension to an Existing
Letter of Credit. As of the Closing Date, the Existing Letters of Credit shall be deemed issued and
outstanding under this Agreement, without any further action by the parties hereto. During the Availability
Period, the Issuing Bank, in reliance upon the agreements of the other Lenders pursuant to Section 2.24(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the account of the Borrower on the terms
and conditions hereinafter set forth; provided, that (i) each Letter of Credit shall expire on the earlier of
(A) the date one year after the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B) the date that is five (5) Business Days
prior to the Commitment Termination Date; (ii) each Letter of Credit shall be in a stated amount of at least
$50,000; and (iii) the Borrower may not request any Letter of Credit, if, after giving effect to such issuance
(A) the aggregate LC Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure, plus the
aggregate outstanding Revolving Loans of all Lenders would exceed the Aggregate Revolving Commitments. Upon the
issuance of each Letter of Credit each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a participation in such Letter of Credit equal to
such Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit. Each
issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each Lender by an amount
equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance specifying the date (which shall be
a Business Day) such Letter of Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, 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, amend, renew or extend such
Letter of Credit. In addition to the satisfaction of the conditions in Article III, the issuance of such Letter
of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further
conditions that such Letter of Credit shall be in such form and contain such terms as the Issuing Bank shall
approve and that the Borrower shall have executed and delivered any additional applications, agreements and
instruments relating to such Letter of Credit as the Issuing Bank shall reasonably require; provided, that in
the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of
this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of any Letter of Credit, the Issuing Bank will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with a copy thereof. Unless the
Issuing Bank has received notice from the Administrative Agent on or before the Business Day immediately
preceding the date the Issuing Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted hereunder because of the
limitations set forth in Section 2.24(a) or that one or more conditions specified in Article III are not then
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to represent a demand for payment under a Letter of
Credit promptly following its receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has made or will make a LC
Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve
the Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for
any LC Disbursements paid by the Issuing Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the Issuing Bank and the Administrative Agent
prior to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored that the
Borrower intends to reimburse the Issuing Bank for the amount of such drawing in funds other than from the
proceeds of Revolving Loans, the Borrower shall be deemed to have timely given a Notice of Revolving Borrowing
to the Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided, that for purposes solely of such
Borrowing, the conditions precedents set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3, and each Lender
shall make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Issuing Bank in accordance with Section 2.8. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative
Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Issuing
Bank) shall be obligated to fund the participation that such Lender purchased pursuant to subsection (a) in an
amount equal to its Pro Rata Share of such LC Disbursement on and as of the date which such Base Rate Borrowing
should have occurred. Each Lender’s obligation to fund its participation shall be absolute and unconditional
and shall not be affected by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have against the Issuing Bank or
any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of the Aggregate Revolving Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in immediately available funds,
the amount of its participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at
any time after the Issuing Bank has received from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account
thereof, the Administrative Agent or the Issuing Bank, as the case may be, will distribute to such Lender its
Pro Rata Share of such payment; provided, that if such payment is required to be returned for any reason to the
Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding,
such Lender will return to the Administrative Agent or the Issuing Bank any portion thereof previously
distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to paragraph (d) of
this Section 2.24 on the due date therefore, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment is made at a rate per annum
equal to the Federal Funds Rate; provided, that if such Lender shall fail to make such payment to the Issuing
Bank within three (3) Business Days of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided, that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and payable,
without demand or notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Section 8.1. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such deposits, which investments shall
be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense,
such deposits shall not bear interest. Interest and profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it had not been reimbursed and to the extent so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not
so applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter, the Issuing Bank shall deliver (through the Administrative
Agent) to each Lender and the Borrower a report describing the aggregate Letters of Credit outstanding at the
end of such fiscal quarter. Upon the request of any Lender from time to time, the Issuing Bank shall deliver to
such Lender any other information reasonably requested by such Lender with respect to each Letter of Credit
then outstanding.
(i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute, unconditional and
irrevocable and shall be performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other right which the Borrower or any Subsidiary or Affiliate
of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit
(or any Persons or entities for whom any such beneficiary or transferee may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document to the
Issuing Bank that does not comply with the terms of such Letter of Credit;
(v) 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, or provide a right of
setoff against, the Borrower’s obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the foregoing
shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided, that the foregoing shall not
be construed to excuse the 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 the Issuing Bank’s failure to exercise
care when determining whether drafts or other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree, that in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with the terms of such Letter of
Credit.
(j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued and
subject to applicable laws, performance under Letters of Credit by the Issuing Bank, its correspondents, and
the beneficiaries thereof will be governed by the rules of the “International Standby Practices 1998” (ISP98)
(or such later revision as may be published by the Institute of International Banking Law & Practice on any
date any Letter of Credit may be issued) and to the extent not inconsistent therewith, the governing law of
this Agreement set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions To Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make
Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until
the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the
Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees,
charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the
Borrower hereunder, under any other Loan Document and under any agreement with the Administrative Agent or
SunTrust Capital Markets, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party thereto or written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to each Lender;
(iii) a duly executed Subsidiary Guarantee Agreement and Indemnity and Contribution Agreement;
(iv) the duly executed Security Agreements;
(v) a certificate of the Secretary or Assistant Secretary of each Loan Party, attaching and certifying copies of
its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the name, title and true
signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(vi) certified copies of the articles of incorporation or other charter documents of each Loan Party, together with
certificates of good standing or existence, as may be available from the Secretary of State of the
jurisdiction of incorporation of such Loan Party and each other jurisdiction where failure to qualify
to do business as a foreign corporation could reasonably be expected to have a Material Adverse Effect;
(vii) a favorable written opinion of ▇▇▇▇▇▇▇ Law Firm, P.C., L.L.O., counsel to the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, and covering such matters relating to the Loan Parties,
the Loan Documents and the transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a Responsible Officer, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;
(ix) a payoff letter, in form and substance satisfactory to the Administrative Agent, executed by the administrative
agent on behalf of the lenders under the Fleet Credit Agreement, setting forth the amount required to
pay in full all outstanding obligations under the Fleet Credit Agreement and undertaking to release
all Rolling Stock securing the Fleet Credit Agreement upon receipt of payment in full;
(x) a payoff letter, in form and substance satisfactory to the Administrative Agent, executed by Daimler ▇▇▇▇▇▇▇
Services North America LLC, setting forth the amount required to pay in full all obligations of the
Borrower and its Subsidiaries to such entity and undertaking to release its lien upon the Rolling
Stock scheduled in the Security Agreement executed by U.S. Express Leasing, Inc. and the
Administrative Agent, dated as of the date hereof.
(xi) duly executed Notices of Borrowing, if applicable;
(xii) a duly executed funds disbursement agreement.
Section 3.2 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing and
of the Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct
in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension
or renewal of such Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the most recent financial statements of the Borrower described in Section 5.1(a), there shall
have been no change which has had or could reasonably be expected to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other documents, or information as the Administrative Agent
or the Required Lenders may reasonably request, which are necessary or which are required by the Loan
Documents, all in form and substance reasonably satisfactory to the Administrative Agent or the Required
Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents. All of the Loan Documents, certificates, legal opinions and other documents and
papers referred to in this Article III, unless otherwise specified, shall be delivered to the Administrative Agent for
the account of each of the Lenders and, except for the Notes, in sufficient counterparts or copies for each of the
Lenders and shall be in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each Lender as follows:
Section 4.1 Existence; Power. The Borrower and each of its Subsidiaries (i) is duly organized, validly existing
and in good standing as a corporation or limited liability company under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
Section 4.2 Organizational Power; Authorization. The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party are within such Loan Party’s organizational powers and have been duly authorized
by all necessary organizational action. This Agreement has been duly executed and delivered by the Borrower, and
constitutes, and each other Loan Document to which any Loan Party is a party, when executed and delivered by such Loan
Party, will constitute, valid and binding obligations of the Borrower or such Loan Party (as the case may be),
enforceable against it in accordance with their respective terms, 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.
Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery and performance by the Borrower of this
Agreement, and by each Loan Party of the other Loan Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been
obtained or made and are in full force and effect or where the failure to do so, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on the Borrower or any of its Subsidiaries or any of its assets or give
rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries where such
violation could reasonably be expected to have a Material Adverse Effect, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, except Permitted Liens and Liens (if
any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished to each Lender (i) the audited consolidated balance
sheet of the Borrower and its Subsidiaries as of December 31, 2003 and the related consolidated statements of income,
shareholders’ equity and cash flows for the fiscal year then ended prepared by Ernst and Young, LLP and (ii) the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of June 30, 2004, and the
related unaudited consolidated statements of income and cash flows for the fiscal quarter and year-to-date period then
ending, certified by a Responsible Officer. Such financial statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the consolidated results of operations for such
periods in conformity with GAAP consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since December 31, 2003, there have been no changes
with respect to the Borrower and its Subsidiaries which have had or could reasonably be expected to have, singly or in
the aggregate, a Material Adverse Effect.
Section 4.5 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending
against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or (ii)
which in any manner draws into question the validity or enforceability of this Agreement or any other Loan
Document.
(b) Neither the Borrower nor any of its 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, which either singly or
in the aggregate could reasonably be expected to result in a Material Adverse Effect.
Section 4.6 Compliance with Laws and Agreements. The Borrower and each Subsidiary is in compliance with (a) all
applicable laws, rules, regulations and orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where non-compliance, either singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
Section 4.7 Investment Company Act, Etc. Neither the Borrower nor any of its Subsidiaries is (a) an “investment
company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, (b) a “holding
company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended or
(c) otherwise subject to any other regulatory scheme limiting its ability to incur debt.
Section 4.8 Taxes. The Borrower and its Subsidiaries have timely filed or caused to be filed all Federal income
tax returns and all other material tax returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority, except (i) to the extent the failure
to do so would not have a Material Adverse Effect or (ii) where the same are currently being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves.
Section 4.9 Margin Regulations. None of the proceeds of any of the Loans or Letters of Credit will be used for
“purchasing” or “carrying” any “margin stock” with the respective meanings of each of such terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates the provisions of the applicable Margin
Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result
in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $500,000, the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $500,000 the fair market value of the assets of all such
underfunded Plans.
Section 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all of its real
and personal property material to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the right, to use, all
patents, trademarks, service marks, tradenames, copyrights and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not infringe on the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 4.12 Disclosure. As of the Closing Date, the Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower or any of its Subsidiaries is subject, and all
other matters known to any of them, that, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the reports (including without limitation all
reports that the Borrower is required to file with the Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender
in connection with the negotiation or syndication of this Agreement or any other Loan Document delivered hereunder or
thereunder (as modified or supplemented by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in light of the
circumstances under which they were made, not misleading.
Section 4.13 Labor Relations. There are no strikes, lockouts or other material labor disputes or grievances against
the Borrower or any of its Subsidiaries, or, to the Borrower’s knowledge, threatened against or affecting the Borrower
or any of its Subsidiaries, and no significant unfair labor practice, charges or grievances are pending against the
Borrower or any of its Subsidiaries, or to the Borrower’s knowledge, threatened against any of them before any
Governmental Authority, which individually or in the aggregate could reasonably be expected to result in a Material
Adverse Effect. All payments due from the Borrower or any of its Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a liability on the books of the Borrower or any such
Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 4.14 Subsidiaries. Schedule 4.14 sets forth the name of, the ownership interest of the Borrower in, the
jurisdiction of organization of, and the type of, each Subsidiary and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the principal of and
interest on any Loan or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
Section 5.1 Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and
each Lender:
(a) as soon as available and in any event within 90 days after the end of each fiscal year of Borrower, a copy of
the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of
the Borrower and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and reported on by Ernst and Young, LLP or other
independent public accountants of nationally recognized standing (without a “going concern” or like
qualification, exception or explanation and without any qualification or exception as to scope of such audit)
to the effect that such financial statements present fairly in all material respects the financial condition
and the results of operations of the Borrower and its Subsidiaries for such fiscal year on a consolidated basis
in accordance with GAAP and that the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted auditing standards (provided that to
the extent the Borrower's Form 10-K filed with the Securities Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, within such 90 day period contains all of the
foregoing information, and is made available to the public, Borrower's obligations under this clause (a) shall
be deemed satisfied);
(b) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of
such fiscal year, setting forth in each case in comparative form the figures for the corresponding quarter and
the corresponding portion of Borrower’s previous fiscal year, all certified by the chief financial officer or
treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes (provided that to the extent the Borrower's Form
10-Q filed with the Securities Exchange Commission, or any Governmental Authority succeeding to any or all
functions of said Commission, within such 45 day period contains all of the foregoing information, and is made
available to the public, Borrower's obligations under this clause (b) shall be deemed satisfied);
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a
certificate of a Responsible Officer, (i) certifying as to whether there exists a Default or Event of Default
on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting
forth (substantially in the form of Exhibit 5.1(c)) in reasonable detail calculations demonstrating compliance
with Article VI;
(d) as soon as available, and in any event within 15 days after the end of each calendar month, a certificate
(substantially in the form of Exhibit 5.1(d)) of a Responsible Officer setting forth compliance with the Asset
Coverage Ratio as set forth in Section 6.2;
(e) concurrently with the delivery of the financial statements referred to in clause (a) above, a certificate of
the accounting firm that reported on such financial statements stating whether they obtained any knowledge
during the course of their examination of such financial statements of any Default or Event of Default (which
certificate may be limited to the extent required by accounting rules or guidelines);
(f) upon the request of Administrative Agent or a Lender, promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements filed with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(g) concurrently with the delivery of the financial statements referred to in subsection (a) above, a pro forma
budget for such fiscal year of Borrower and its Subsidiaries, containing an income statement, balance sheet and
statement of cash flows; and
(h) promptly following any request therefore, such other information regarding the results of operations, business
affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or, to the knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the Borrower or any of its Subsidiaries (i) fails
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) becomes subject to any Environmental Liability, (iii)
receives notice of any claim with respect to any Environmental Liability, or (iv) becomes aware of any basis
for any Environmental Liability and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $1,000,000; and
(e) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written statement of a Responsible Officer
setting forth the details of the event or development requiring such notice and any action taken or proposed to be
taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business and will continue to engage in the same business as presently conducted or such
other businesses that are reasonably related thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4 Compliance with Laws, Etc. The Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and requirements of any Governmental Authority applicable to its properties, except where
the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.5 Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay and
discharge at or before maturity, all of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP
and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6 Books and Records. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries shall be made of all dealings and transactions in relation
to its business and activities to the extent necessary to prepare the consolidated financial statements of Borrower in
conformity with GAAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will, and will cause each of its Subsidiaries to, permit any
representative of the Administrative Agent or any Lender, to visit and inspect its properties, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of
its officers and with its independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the Borrower; provided,
however, that the Administrative Agent and each Lender shall be bound by the provisions of Section 10.11 with respect
to any information obtained pursuant to this Section.
Section 5.8 Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Subsidiaries to,
(a) keep and maintain all property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted where the failure to do so, either individually or it the aggregate, could reasonably
be expected to result in a Material Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
Section 5.9 Use of Proceeds and Letters of Credit. The Borrower will use the proceeds of all Loans to finance
working capital needs, refinance existing Indebtedness and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that
would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulations T,
U or X. All Letters of Credit will be used for general corporate purposes.
Section 5.10 Additional Subsidiaries. If any additional Subsidiary is acquired or formed after the Closing Date
(other than an SPE Subsidiary), the Borrower will, within thirty (30) business days after such Subsidiary is acquired
or formed, notify the Administrative Agent and the Lenders thereof and will cause such Subsidiary to become a
Subsidiary Loan Party by executing agreements in the form of Annex I to Exhibit D and Annex I to Exhibit E in form and
substance satisfactory to the Administrative Agent and the Required Lenders, and the Borrower will cause such
Subsidiary to deliver simultaneously therewith similar documents applicable to such Subsidiary required under Section
3.1 as reasonably requested by the Administrative Agent. In addition, the Subsidiary (other than a SPE Subsidiary)
acquired or formed after the Closing Date (or an Affiliate that becomes a Subsidiary after the Closing Date) shall also
execute and deliver to the Administrative Agent a Security Agreement (substantially in form and substance to the
existing Security Agreements delivered on the Closing Date) granting (to the extent practicable, taking into account an
acquired Subsidiary with Liens existing on such Subsidiary’s assets prior to such acquisition) a first priority
security interest in Collateral of such Subsidiary (whether then existing or thereafter acquired by the Subsidiary) as
such term is defined and described in the existing Security Agreements, together with all other documents, reasonably
required to grant and perfect such security interest, subject to any Liens permitted under Section 7.2.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the principal of or
interest on any Loan or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
Section 6.1 Lease Adjusted Leverage Ratio. The Borrower will have a Lease Adjusted Leverage Ratio, calculated on a
trailing four quarter basis, of not greater than the following during such indicated measurement periods:
Measurement Period Ratio
------------------------------------------------------------ ---------------------------------------------------------
From the Closing Date through March 31, 2005 3.25 to 1.00
------------------------------------------------------------ ---------------------------------------------------------
From April 1, 2005 and thereafter 3.00 to 1.00
------------------------------------------------------------ ---------------------------------------------------------
Section 6.2 Asset Coverage Ratio. The Borrower will maintain at all times an Asset Coverage Ratio of not less than
1.11 to 1.00.
Section 6.3 Fixed Charge Coverage Ratio. The Borrower will have a Fixed Charge Coverage Ratio of not less than the
following during such indicated measurement periods:
------------------------------------------------------------ ---------------------------------------------------------
Measurement Period Ratio
------------------------------------------------------------ ---------------------------------------------------------
From the Closing Date through September 30, 2005 1.10 to 1.00
------------------------------------------------------------ ---------------------------------------------------------
From October 1, 2005 through September 30, 2006 1.15 to 1.00
------------------------------------------------------------ ---------------------------------------------------------
From October 1, 2006 and thereafter 1.25 to 1.00
------------------------------------------------------------ ---------------------------------------------------------
Section 6.4 Consolidated Tangible Net Worth. The Borrower will not permit its Consolidated Tangible Net Worth at
any time to be less than $88,000,000, plus 50% of Consolidated Net Income on a cumulative basis for all preceding
fiscal quarters of the Borrower, commencing with the fiscal quarter ending September 30, 2004; provided, that if
Consolidated Net Income is negative in any fiscal quarter the amount added for such fiscal quarter shall be zero and
such negative Consolidated Net Income shall not reduce the amount of Consolidated Net Income added from any previous
fiscal quarter. The amount of Consolidated Tangible Net Worth set forth above shall be increased by 100% of the amount
by which the Borrower’s “total stockholders’ equity” is increased as a result of any public or private offering of
common stock of the Borrower after the Closing Date. Promptly upon the consummation of such offering, the Borrower
shall notify the Administrative Agent in writing of the amount of such increase in “total stockholders’ equity”.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the principal of or
interest on any Loan remains unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
Section 7.1 Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Indebtedness, except (provided that the incurrence of such Indebtedness does not violate
the financial covenants of Article VI):
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on Schedule 7.1;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement
of any fixed or capital assets (including real property), including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets, if secured by a Lien on any such
assets prior to the acquisition thereof; provided, that such Indebtedness is incurred prior to or within 90
days after such acquisition or the completion of such construction or improvements;
(d) Indebtedness of the Borrower owing to any Subsidiary and of any Subsidiary owing to the Borrower or any other
Subsidiary; provided, that any such Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan
Party shall be subject to Section 7.4;
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary; provided, that Guarantees by any Loan Party of Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the date of this Agreement; provided, that (i) such
Indebtedness exists at the time that such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of such
Indebtedness permitted hereunder shall not exceed $5,000,000 outstanding at any time;
(g) Indebtedness in respect of a mortgage financing or sale-leaseback transaction with respect to real property and
fixtures owned by the Borrower or any of its Subsidiaries as of the Closing Date;
(h) Indebtedness in respect of guarantees provided by the Borrower or any of its Subsidiaries relating to
Borrower’s or any Subsidiary’s owner-operator tractor financing program; provided that the aggregate principal
amount of Indebtedness permitted under this subsection (h) shall not exceed $10,000,000 at any one time;
(i) Indebtedness with respect to (i) sale-leaseback transactions of Rolling Stock or (ii) Indebtedness consisting
of loans for borrowed money which are secured by Rolling Stock, and which are not subject to a purchase money
security interest, provided that the principal amount of Indebtedness incurred under this subsection (i) shall
not exceed $20,000,000 in any fiscal year of the Borrower. If the Rolling Stock described under this
subsection was previously subject to a Lien securing the Obligations, the net proceeds from such sale or loan
shall be used to repay outstanding Revolving Loans at the end of the earliest applicable Interest Period;
(j) Indebtedness evidenced by a Securitization Transaction, pursuant to a Loan Agreement dated as of the date
hereof, among Xpress Receivables, LLC, as Borrower, U.S. Xpress, Inc. and Xpress Global Systems, Inc. as
Initial Servicers, Three Pillars Funding, LLC, as Lender and SunTrust Capital Markets, Inc. as Administrator
and any amendments thereto or restatements thereof.
(k) Indebtedness in respect of obligations under Hedging Agreements permitted by Section 7.10;
(l) other unsecured Indebtedness in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
and
(m) Indebtedness extending the maturity of, or renewing, refunding or refinancing, in whole or in part,
Indebtedness incurred under clauses (a) through (l), inclusive, of this Section 7.1, provided that the terms of
any such extension renewal, refunding or refinancing of Indebtedness do not increase the outstanding principal
amount thereof (immediately prior to such extension, renewal or replacement) or shorten the weighted average
life thereof. For purposes of the interpretation of this subsection (m), a refinancing of Indebtedness will
include, but shall not be limited to the prepayment of existing Indebtedness with Borrowings under this
Agreement, if a subsequent permanent refinancing is thereafter closed within 90 days of the original prepayment.
Section 7.2 Negative Pledge. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired or, except:
(a) Liens created in favor of the Administrative Agent for the benefit of the Lenders pursuant to the Loan
Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any Subsidiary existing on the Closing Date (except for
Liens securing the Fleet Credit Agreement which shall be released pursuant to the payoff letter referred in
Section 3.1(b)(ix) following the Closing Date) set forth on Schedule 7.2; provided, that such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets (including real property_ to secure the purchase
price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness
incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or
capital assets (including Liens securing any Capital Lease Obligations); provided, that (i) such Lien secures
Indebtedness permitted by Section 7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days
after the acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend
to any other asset; and (iv) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower,
(ii) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the acquisition thereof by the Borrower or
any Subsidiary of the Borrower; provided, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on the date that such Person
becomes a Subsidiary or the date of such merger or the date of such acquisition;
(f) Liens arising in connection with Capital Lease Obligations permitted under this Agreement;
(g) Liens on Receivables and proceeds thereof arising in connection with the transfer thereof pursuant to a
Securitization Transaction;
(h) Liens in connection with Indebtedness allowable under Sections 7.1 (c), (g), (i) and (m); and
(i) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through (h) of this Section;
provided, that the principal amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered thereby.
Section 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate into any other Person,
or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time
thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or such Subsidiary if
the Borrower is not a party to such merger) is the surviving Person, (ii) any Subsidiary may merge into another
Subsidiary; provided, that if any party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party
shall be the surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Subsidiary Loan Party and (iv) any Subsidiary (other
than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to
the Lenders; provided, that any such merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date hereof
and businesses reasonably related thereto.
Section 7.4 Investments, Loans, Etc. The Borrower will not, and will not permit any of its Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other securities (including any option, warrant,
or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest in, any other Person (all of the
foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a business unit, except:
(a) Investments (other than Permitted Investments) existing on the date hereof and set forth on Schedule 7.4
(including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) loans or advances to employees, officers or directors of the Borrower or any Subsidiary in the ordinary course
of business for travel, relocation, entertainment and related expenses and to owner-operators in the ordinary
course of business, which in the aggregate do not exceed $2,000,000 at any time;
(e) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to
another Subsidiary; provided, that the aggregate amount of Investments by Loan Parties in or to, and Guarantees
by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such
Investments and Guarantees existing on the Closing Date) shall not exceed $5,000,000 at any time outstanding;
(f) Hedging Agreements permitted by Section 7.10;
(g) Commencing January 1, 2006, Investments in or an Acquisition of any Person not to exceed $5,000,000 during any
fiscal year of Borrower. The Borrower shall provide the Administrative Agent with all relevant documentation
concerning an Investment or Acquisition permitted by this subsection at least 15 days prior to such Investment
or Acquisition;
(h) An Investment in Trucking Company A consisting of an initial purchase of common stock with a purchase price not
to exceed $7,000,000, with the subsequent conveyance, lease or transfer of operating assets (including Rolling
Stock) to Trucking Company A (subject to the limitations of Section 7.6), pursuant to one or more purchase,
trade, lease, or independent contractor arrangements;
(i) Investments consisting of the Subsidiary Guarantee Agreement and the Indemnity and Contribution Agreement;
(j) Investments consisting of promissory notes received as proceeds of any asset sales permitted by Section 7.6 of
this Agreement;
(k) Investments consisting of any Guarantee provided by the Borrower or any of its Subsidiaries relating to the
Borrower's or any such Subsidiary's owner-operator tractor financing program;
(l) Investments by Borrower in the form of any redemption or repurchase of common stock of the Borrower which is
permitted under Section 7.5; and
(m) Other Investments which in the aggregate do not exceed $4,000,000 in any fiscal year of the Borrower.
Section 7.5 Restricted Payments. The Borrower will not, and will not permit its Subsidiaries to, declare or make,
or agree to pay or make, directly or indirectly, any dividend on any class of its stock, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or
other acquisition of, any shares of common stock or Indebtedness subordinated to the Obligations of the Borrower or any
options, warrants, or other rights to purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a “Restricted Payment”), except for (i) dividends payable by the Borrower solely in shares of any
class of its common stock and (ii) Restricted Payments made by any Subsidiary to the Borrower or to another Subsidiary
Loan Party; provided, that (a) no Default or Event of Default has occurred and is continuing at the time such dividend
is paid or redemption is made; and (b) from the Closing Date, the Borrower may make stock redemptions not to exceed:
(1) $5,000,000; plus (2) 25% of Consolidated Net Income for each fiscal quarter commencing with the fourth fiscal
quarter of 2004 and with any loss during a fiscal quarter reducing the amount set forth in clause (2) during the term
hereof. Commencing with the first fiscal quarter of 2006, the amount of allowable stock redemptions shall increase to
$10,000,000, however in no event shall the aggregate amount of all stock redemptions allowable under this Section
exceed $10,000,000 during the term hereof.
Section 7.6 Sale of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, convey, sell,
lease, assign, transfer or otherwise dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s common stock to
any Person other than the Borrower or any wholly-owned Subsidiary of the Borrower, except:
(a) the sale or other disposition for fair market value of obsolete or worn out property or other property not
necessary for operations disposed of in the ordinary course of business;
(b) sales, leases and dispositions of Rolling Stock in the ordinary course of business, so long as the proceeds
from such sale or disposition, net of commissions and other reasonable and customary transaction costs, fees
and expenses properly attributable to such transaction and payable in connection therewith to non-Affiliates,
are applied either (i) to prepay the Loans (with a corresponding permanent reduction in the Revolving
Commitments if an Event of Default has occurred and in continuing at a time of such prepayment) or (ii) to the
purchase or lease of replacement trucks, tractors and trailers for use in the ordinary course of business or
Borrower and its Subsidiaries;
(c) the sale of inventory and Permitted Investments in the ordinary course of business;
(d) the sale or lease to Trucking Company A of Rolling Stock not to exceed $12,000,000 in book value;
(e) the sale or lease to Trucking Company A of Rolling Stock in excess of subsection (d) of this Section, not to
exceed $4,000,000 in book value. Sales or leases of Rolling Stock made pursuant to this subsection shall be
deemed an Investment under Section 7.4(m).
(f) the licensing of intellectual property, the effect of which does not have a Material Adverse Effect;
(g) the sale and leaseback of the Borrower’s or Subsidiary's real property owned as of the Closing Date;
(h) the sale or disposition of any aircraft presently owned by the Borrower or any Subsidiary;
(i) the sale of shares in Transplace, Inc.; and
(j) the sale or other disposition of assets which do not constitute Rolling Stock, in an aggregate amount not to
exceed $5,000,000 in any fiscal year of the Borrower.
Section 7.7 Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower
and its Subsidiaries not involving any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
Section 7.8 Restrictive Agreements. The Borrower will not, and will not permit any Subsidiary (other than a SPE
Subsidiary) to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit any Lien upon
any of its assets or properties, whether now owned or hereafter acquired, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to its common stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to transfer any of its
property or assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the foregoing shall not apply
to restrictions or conditions imposed by law or by this Agreement or any other Loan Document, (ii) 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 sold and such sale is
permitted hereunder, (iii) clause (a) shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to customary provisions in leases restricting the
assignment thereof.
Section 7.9 Sale and Leaseback Transactions. The Borrower will not, and will not permit any of the Subsidiaries
to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same purpose or purposes as the property sold
or transferred, except for sale and leaseback transactions permitted under Sections 7.1(g) or (i) and Section 7.6(f).
Section 7.10 Hedging Agreements. The Borrower will not, and will not permit any of the Subsidiaries to, enter into
any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of
its liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered into for
speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Agreement under which the
Borrower or any of the Subsidiaries is or may become obliged to make any payment (i) in connection with the purchase by
any third party of any common stock or any Indebtedness or (ii) as a result of changes in the market value of any
common stock or any Indebtedness) is not a Hedging Agreement entered into in the ordinary course of business to hedge
or mitigate risks.
Section 7.11 Amendment to Material Documents. The Borrower will not permit any Subsidiary to, amend, modify or
waive any of its rights in a manner materially adverse to the Lenders under its certificate of incorporation, bylaws or
other organizational documents.
Section 7.12 Accounting Changes. The Borrower will not, and will not permit any Subsidiary to, make any significant
change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year of the
Borrower or of any Subsidiary, except to change the fiscal year of a Subsidiary to conform its fiscal year to that of
the Borrower.
Section 7.13 Government Regulation. Borrower shall not (a) be or become subject at any time to any law,
regulation, or list of any Government Authority of the United States (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits Lenders or the Administrative Agent from making any advance or
extension of credit to Borrower or from otherwise conducting business with Borrower, or (b) fail to provide documentary
and other evidence of Borrower's identity as may be requested by Lenders or the Administrative Agent at any time to
enable Lenders or the Administrative Agent to verify Borrower's identity or to comply with any applicable law or
regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 Events of Default. If any of the following events (each an “Event of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of any reimbursement obligation in respect of any
LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise, and such failure shall continue unremedied for a period of three (3)
Business Days; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount
payable under clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue unremedied for a period of three (3)
Business Days; or
(c) any representation or warranty made by or on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document (including the Schedules attached thereto) and any amendments or
modifications hereof or waivers hereunder, or in any certificate, report, financial statement or other document
submitted to the Administrative Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document shall prove to be incorrect in any
material respect when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement contained in Sections 5.2, 5.3 (with
respect to the Borrower’s existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other
than those referred to in clauses (a), (b) and (d) above), and such failure shall remain unremedied for 30 days
after the earlier of (i) any officer of the Borrower becomes aware of such failure, or (ii) notice thereof
shall have been given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other surety) shall fail to pay
any principal of or premium or interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument evidencing such Indebtedness; or any other event shall occur or condition shall exist
under any agreement or instrument relating to such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or condition is to
accelerate the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case or other proceeding or file any petition
seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in
clause (i) of this Section, (iii) apply for or consent to the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower or any such Subsidiary or for a substantial part of its
assets, (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, or (vi) take any action for the purpose
of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Subsidiary or for a substantial part of its assets, and in any such case, such
proceeding or petition shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall admit in writing its inability to pay, or
shall fail to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with other
ERISA Events that have occurred, could reasonably be expected to result in liability to the Borrower and the
Subsidiaries in an aggregate amount exceeding $1,000,000; or
(k) any judgment or order for the payment of money shall be rendered against the Borrower or any Subsidiary in
excess of $6,000,000 in the aggregate, after taking into account the application of available insurance
proceeds, and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be a period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the Borrower or any Subsidiary that could
reasonably be expected to have a Material Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guarantee Agreement shall for any reason cease to be valid and binding on, or
enforceable against, any Subsidiary Loan Party, or any Subsidiary Loan Party shall so state in writing, or any
Subsidiary Loan Party shall seek to terminate its Subsidiary Guarantee Agreement; or
(o) a default exists under any of the Security Agreements, subject to any cure periods or grace periods set forth
therein;
then, and in every such event (other than an event with respect to the Borrower described in clause (g) or (h) of this
Section) and at any time thereafter during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate the Commitments, whereupon the Commitment of each Lender shall terminate
immediately; (ii) declare the principal of and any accrued interest on the Loans, and all other Obligations owing
hereunder, to be, whereupon the same shall become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower and (iii) exercise all remedies contained in
any other Loan Document; and that, if an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it to take such
actions on its behalf and to exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its duties hereunder by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions set forth in this Article shall apply to any such sub-agent and the Related Parties
of the Administrative 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 Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect thereto; provided, that the
Issuing Bank shall have all the benefits and immunities (i) provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters
of Credit issued by it or proposed to be issued by it and the application and agreements for Letters of Credit
pertaining to the Letters of Credit as fully as the term “Administrative Agent” as used in this Article IX
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuing Bank.
Section 9.2 Nature of Duties of Administrative Agent. The Administrative Agent shall not have any duties or
obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative 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 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not 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 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed to have knowledge of
any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower or any Lender, and the Administrative Agent shall not 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 hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants, agreements, or other terms and 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 III or elsewhere
in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.
Section 9.3 Lack of Reliance on the Administrative Agent. Each of the Lenders, the Swingline Lender and the
Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent 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 of the Lenders, the Swingline Lender and the Issuing Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own decisions in taking or not taking of
any action under or based on this Agreement, any related agreement or any document furnished hereunder or thereunder.
Section 9.4 Certain Rights of the Administrative Agent. If the Administrative Agent shall request instructions
from the Required Lenders with respect to any action or actions (including the failure to act) in connection with this
Agreement, the Administrative Agent shall be entitled to refrain from such act or taking such act, unless and until it
shall have received instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever
against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent. The Administrative 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, sent or made by the proper Person. The
Administrative Agent may also rely upon any statement made to it orally or by telephone and believed by it to be made
by the proper Person and shall not incur any liability for relying thereon. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public 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 such counsel, accountants
or experts.
Section 9.6 The Administrative Agent in its Individual Capacity. The bank serving as the Administrative Agent
shall have the same rights and powers under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent;
and the terms “Lenders”, “Required Lenders”, “holders of Notes”, or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity. The bank acting as the Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the Administrative Agent hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of Default shall exist at such time.
If no successor Administrative Agent shall have been so appointed, and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United States of America or any state
thereof or a bank which maintains an office in the United States, having a combined capital and surplus of at
least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Administrative Agent’s resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on such 45th day
(i) the retiring Administrative Agent’s resignation shall become effective, (ii) the retiring Administrative
Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (iii) the
Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan
Documents until such time as the Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent’s resignation hereunder, the provisions of this Article IX shall
continue in effect for the benefit of such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving as the Administrative Agent.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone, all
notices and other communications to any party herein to be effective 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:
To the Borrower: U.S. Xpress Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Chief Financial
Officer
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Swingline Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto. All such notices and other communications shall, when transmitted by
overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the mails or if delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until actually received by such Person at
its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and Lenders shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by the Administrative Agent or the Lenders
in reliance upon such telephonic or facsimile notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written confirmation of any telephonic or facsimile notice or
the receipt by the Administrative Agent and the Lenders of a confirmation which is at variance with the terms
understood by the Administrative Agent and the Lenders to be contained in any such telephonic or facsimile
notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or any other Loan Document, and no course of dealing between the Borrower and the
Administrative Agent or any Lender, 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 right or power,
preclude any other or further exercise thereof or the exercise of any other right or power hereunder or
thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law.
No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and
signed by the Borrower and the Required Lenders or the Borrower and the Administrative Agent with the consent
of the Required Lenders and then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any
Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section
2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby , without the
written consent of each Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to
waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without
the consent of each Lender; (vi) release any guarantor or limit the liability of any such guarantor under any
guaranty agreement, without the written consent of each Lender; (vii) release all or substantially all
collateral (if any) securing any of the Obligations, without the written consent of each Lender; provided
further, that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of
the Administrative Agent, the Swingline Bank or the Issuing Bank without the prior written consent of such
Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent
and its Affiliates, in connection with the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any amendments, modifications or waivers thereof
(whether or not the transactions contemplated in this Agreement or any other Loan Document shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket costs and expenses (including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside counsel) incurred by the Administrative
Agent, the Issuing Bank or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in connection with the Loans made
or any Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any
of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party
or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.
(c) The Borrower shall pay, and hold the Administrative Agent and each of the Lenders harmless from and against,
any and all present and future stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due thereunder, and save the
Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be paid to the Administrative Agent, the
Issuing Bank or the Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally agrees to pay
to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Pro
Rata Share (determined as of the time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing
Bank or the Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to actual or direct damages) arising out of, in connection with or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the transactions contemplated therein, any Loan or any Letter
of Credit or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after written demand therefore.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or transfer any of its rights
hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans and LC
Exposure at the time owing to it); provided, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender , each of the Borrower and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Commitment or any Lender’s obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Bank and the Swingline Lender) must give their prior written consent (which consent shall
not be unreasonably withheld or delayed), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire amount of the assigning Lender’s Commitment hereunder or an
assignment while an Event of Default has occurred and is continuing, the amount of the Commitment 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 (unless
the Borrower and the Administrative Agent shall otherwise consent), (iii) 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 and the other Loan Documents, (iv) the assigning Lender and the assignee shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee payable
by the assigning Lender or the assignee (as determined between such Persons) in an amount equal to $1,000 and
(v) such assignee, if it is not a Lender, shall deliver a duly completed Administrative Questionnaire to the
Administrative Agent; provided, that any consent of the Borrower otherwise required hereunder shall not be
required if an Event of Default has occurred and is continuing. Upon the execution and delivery of the
Assignment and Acceptance and payment by such assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Persons, such assignee shall become a party to this Agreement and any other
Loan Documents to which such assigning Lender is a party and, to the extent of such interest assigned by such
Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement, and the
assigning Lender shall be released from its obligations hereunder to a corresponding extent (and, in the case
of an Assignment and Acceptance covering all of the 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 2.18, 2.19 and 2.20 and 10.3. Upon the consummation of any such assignment hereunder, the assigning
Lender, the Administrative Agent and the Borrower shall make appropriate arrangements to have new Notes issued
if so requested by either or both the assigning Lender or the assignee. Any assignment or other transfer by a
Lender that does not fully comply with the terms of this clause (b) shall be treated for purposes of this
Agreement as a sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the Borrower, the Administrative Agent, the Issuing Bank or
the Swingline Lender, sell participations to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it and its LC Exposure); provided, that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of its obligations hereunder, and (iii) the Borrower, the Administrative Agent, the
Swingline Bank, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan
Documents. Any agreement between such Lender and the Participant with respect to such participation shall
provide that such Lender shall retain the sole right and responsibility to enforce this Agreement and the other
Loan Documents and the right to approve any amendment, modification or waiver of this Agreement and the other
Loan Documents; provided, that such participation agreement may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver of this Agreement described in the
first proviso of Section 10.2(b) that affects the Participant. The Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it were a Lender hereunder
and had acquired its interest by assignment pursuant to paragraph (b); provided, that no Participant shall be
entitled to receive any greater payment under Section 2.18 or 2.20 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant unless the sale of such
participation is made with the Borrower’s prior written consent. To the extent permitted by law, the Borrower
agrees that each Participant shall be entitled to the benefits of Section 2.21 as though it were a Lender,
provided, that such Participant agrees to share with the Lenders the proceeds thereof in accordance with
Section 2.21 as fully as if it were a Lender hereunder. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.20 unless the Borrower is notified of such
participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply
with Section 2.20(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this
Agreement and its Notes (if any) to secure its obligations to a Federal Reserve Bank without complying with
this Section; provided, that no such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle (an “SPV”), 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 SPV to make any Loan and (ii)
if an SPV elects not to exercise such option or otherwise fails to provide all or any part of any Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an
SPV 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 SPV 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 SPV, it will not institute against, or
join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any State contrary in this Section 10.4, any
SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefore, assign all or a portion of its interests in any Loans to the
Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPV 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 SPV. As this Section 10.4(g) applies to any particular SPV, this Section may not be amended
without the written consent of such SPV.
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed in accordance with and be governed by the law
(without giving effect to the conflict of law principles thereof) of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of the United States District Court of the Southern District of New York, and of the Supreme Court
of the State of New York sitting in New York County and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, 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 court or , to the extent permitted by applicable
law, 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 or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of
any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding described in paragraph (b) of this Section and brought
in any court referred to in paragraph (b) of this Section. Each of the parties hereto irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices
in Section 10.1. Nothing in this Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 10.7 Right of Setoff. In addition to any rights now or hereafter granted under applicable law and not by
way of limitation of any such rights, each Lender (and Bank of America, N.A. as an Affiliate of Fleet National Bank)
and the Issuing Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set off and apply against all deposits (general or special, time
or demand, provisional or final) of the Borrower at any time held or other obligations at any time owing by such Lender
and the Issuing Bank to or for the credit or the account of the Borrower against any and all Obligations held by such
Lender or the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall have made
demand hereunder and although such Obligations may be unmatured. Each Lender and the Issuing Bank agree promptly to
notify the Administrative Agent and the Borrower after any such set-off and any application made by such Lender and the
Issuing Bank, as the case may be; provided, that the failure to give such notice shall not affect the validity of such
set-off and application.
Section 10.8 Counterparts; Integration. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. This Agreement, the other Loan Documents, and any separate
letter agreement(s) relating to any fees payable to the Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to
have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and
the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended
hereunder, 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 is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.19, 2.20, 2.21,
and 10.3 and Article IX shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision hereof. All representations and warranties
made herein, in the certificates, reports, notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan Documents, and the making of the Loans and the
issuance of the Letters of Credit.
Section 10.10 Severability. Any provision of this Agreement or any other Loan Document held to be illegal, invalid
or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions
hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.11 Confidentiality. Each of the Administrative Agent, the Issuing Bank and each Lender agrees to take
normal and reasonable precautions to maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that such information may be disclosed (i) to
any Related Party of the Administrative Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result of a breach of this Section, or which
becomes available to the Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the
foregoing on a nonconfidential basis from a source other than the Borrower, (v) in connection with the exercise of any
remedy hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder,
(vi) subject to provisions substantially similar to this Section 10.11, to any actual or prospective assignee or
Participant, or (vii) with the consent of the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section 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.
Section 10.12 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts which may be treated as interest on such
Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan 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 but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefore) until such cumulated amount, together with interest thereon at the Federal
Funds Rate to the date of repayment, shall have been received by such Lender.
Section 10.13 U.S. Patriot Act Notification. The following notification is provided to the Borrower pursuant to
Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318: IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING
A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information that identifies each person or entity
that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or
other financial services product. When the Borrower opens an account, Administrative Agent, or Issuing Bank will ask
for Borrower's name, taxpayer identification number, address, and other information that will allow the identification
of the Borrower. The Administrative Agent, a Lender or the Issuing Bank may also require Borrower's legal
organizational documents or other identifying documents.
(remainder of page left intentionally blank)
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.
U.S. XPRESS ENTERPRISES, INC.
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Exec VP, CFO & Asst. Secretary
SUNTRUST BANK
as Administrative Agent, as an Issuing Bank, as Swingline Lender
and as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Revolving Commitment: $23,500,000
LC Commitment: $23,500,000
Swingline Commitment: $10,000,000
FLEET NATIONAL BANK, as Issuing Bank for
Existing Letters of Credit and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Revolving Commitment: $23,250,000
LC Commitment: $23,250,000
LASALLE BANK, NATIONAL ASSOCIATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Revolving Commitment: $23,250,000
LC Commitment: $23,250,000
BRANCH BANKING AND TRUST COMPANY
By:/s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, SVP
-------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Revolving Commitment: $15,000,000
LC Commitment: $15,000,000
NATIONAL CITY BANK
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Revolving Commitment: $10,000,000
LC Commitment: $10,000,000
REGIONS FINANCIAL CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Revolving Commitment: $5,000,000
LC Commitment: $5,000,000
Schedule I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
------------- ------------------- -------------------- -------------------- ------------------- ------------------
Applicable Applicable
Pricing Lease Adjusted Applicable Margin Applicable Margin Percentage for Percentage for
Level Leverage Ratio for Eurodollar for Base Rate Loans Commitment Fee Letter of Credit
Loans Fee
------------- ------------------- -------------------- -------------------- ------------------- ------------------
I Greater than or
equal to 3.25:1.00 2.00% p.a. 0.25% p.a. 0.35% p.a. 2.00% p.a.
------------- ------------------- -------------------- -------------------- ------------------- ------------------
II Less than
3.25:1.00 but 1.50% p.a. 0% p.a. 0.25% p.a. 1.50% p.a.
greater than or
equal to 2.75:1.00
------------- ------------------- -------------------- -------------------- ------------------- ------------------
III Less than
2.75:1.00 but 1.25% p.a. 0% p.a. 0.25% p.a. 1.25% p.a.
greater than or
equal to 2.25:1.00
------------- ------------------- -------------------- -------------------- ------------------- ------------------
IV Less than
2.25:1.00 but 1.00% p.a. 0% p.a. 0.20% p.a. 1.00% p.a.
greater than or
equal to 1.75:1.0
------------- ------------------- -------------------- -------------------- ------------------- ------------------
V Less than 1.75:1:0
0.875% p.a. 0% p.a. 0.20% p.a. 0.875% p.a.
------------- ------------------- -------------------- -------------------- ------------------- ------------------