AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT, LIMITED WAIVER AND CONSENT This AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT, LIMITED WAIVER AND CONSENT (this "Amendment") dated as of February 25, 2004, is by and among U.S. XPRESS ENTERPRISES, INC., a Nevada corporation, U.S. XPRESS, INC., a Nevada corporation, XPRESS GLOBAL SYSTEMS, INC. (f/k/a CSI/Crown, Inc.), a Georgia corporation, and U.S. XPRESS LEASING, INC., a Tennessee corporation (each a "Borrower" and collectively, the "Borrowers"), and FLEET CAPITAL CORPORATION, a Rhode Island corporation and the other lending institutions listed on Schedule 1 to the Credit Agreement (collectively, the "Lenders"), and FLEET CAPITAL CORPORATION, as administrative agent for itself and such other lending institutions (in such capacity, the "Administrative Agent"), with FLEET SECURITIES, INC., as arranger, and LASALLE BANK NATIONAL ASSOCIATION, as syndication agent. WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to a Revolving Credit Agreement, dated as of March 29, 2002 (as amended and in effect from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed, upon certain terms and conditions, to make loans and otherwise extend credit to the Borrowers; WHEREAS, the Borrowers and their Subsidiaries desire to effectuate a series of transactions whereby the organizational structure of the Borrowers and their Subsidiaries will be restructured (the "Restructuring"); WHEREAS, the Borrowers, the Lenders and the Administrative Agent have agreed, on the terms and conditions set forth herein, to amend and/or waive certain provisions of the Credit Agreement and certain other Loan Documents in order to, among other things, permit the Restructuring; and WHEREAS, capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Lenders and the Administrative Agent hereby agree as follows: 1. Specific Waivers. In connection with the Restructuring, the Lenders hereby agree to waive the following provisions of the Credit Agreement: (a) the application of Section 9.3 of the Credit Agreement solely in connection with the capital contribution of certain assets (the CMC Assets) acquired by Xpress Global Systems, Inc. (Xpress Global) in connection with the acquisition of Cargo Movement Corporation to Cargo Movement Corp. (CMC), a newly formed subsidiary of Xpress Global; and (b) the application of Section 9.5.2 of the Credit Agreement solely in connection with the disposition of the CMC Assets by Xpress Global to CMC. 2. Amendment to Schedules to the Credit Agreement. The Schedules to the Credit Agreement are hereby amended by deleting Schedule 7.19 and Schedule 9.3 in their entirety and substituting the new Schedule 7.19 and Schedule 9.3 attached hereto in lieu thereof. 3. Consent to Name Change and Waiver. Each of the Lenders and the Administrative Agent hereby consent to Dedicated Xpress Services, Inc.s change of name to Xpress Waiting, Inc. (Xpress Waiting). All references in the Loan Documents to Dedicated Xpress Services, Inc. shall hereafter refer to Xpress Waiting. In addition, each of the Lenders and the Administrative Agent hereby waive the requirement that the Borrowers provide thirty (30) days prior written notice of such change of name. 4. Amendment to Annex to the Stock Pledge Agreement. Annex A to the Stock Pledge Agreement is hereby amended by deleting Annex A in its entirety and substituting the new Annex A attached hereto in lieu thereof. 5. Representations and Warranties.Each Borrower hereby represents and warrants to the Administrative Agent as follows: 5.1 Representation and Warranties in the Credit Agreement.The representations and warranties of each Borrower contained in the Credit Agreement were true and correct in all material respects as of the date when made and continue to be true and correct in all material respects on the date hereof. 5.2 Ratification, Etc.Except as expressly amended hereby, each of the Credit Agreement and the Stock Pledge Agreement is hereby ratified and confirmed in all respects and shall continue in full force and effect. Each of the Credit Agreement and the Stock Pledge Agreement shall, together with this Amendment, be read and construed as single agreements. All references in the Credit Agreement and the Stock Pledge Agreement or any related agreement or instrument shall hereafter refer to the Credit Agreement and the Stock Pledge Agreement, in each case as amended hereby. 5.3 Authority, Etc.The execution and delivery by each Borrower of this Amendment and the performance by each Borrower of all of its respective agreements and obligations under the Credit Agreement and the Stock Pledge Agreement, in each case as amended hereby, are within such Borrower's corporate authority and have been duly authorized by all necessary corporate action on the part of such Borrower. 5.4 Enforceability. This Amendment and each of the Credit Agreement and the Stock Pledge Agreement, in each case as amended hereby, constitute the legal, valid and binding obligations of each Borrower and are enforceable against each Borrower in accordance with their terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of, creditors' rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought. 6. Effectiveness of Amendment.This Amendment shall become effective (the "Effective Date") upon the satisfaction of each of the following conditions, in each case in a manner and in form and substance satisfactory to the Administrative Agent: (a) This Amendment shall have been duly executed and delivered by each of the Borrowers, the Guarantors, the Administrative Agent and the Required Lenders and shall be in full force and effect; (b) The Administrative Agent shall have received evidence that CMC has entered into a security agreement (the "New Subsidiary Security Agreement") with the Administrative Agent for the benefit of the Administrative Agent and the Lenders, in form and substance satisfactory to the Administrative Agent; (c) The Administrative Agent shall have received from CMC a duly completed Perfection Certificate in the form prescribed by the New Subsidiary Security Agreement; (d) The Administrative Agent shall have received evidence that CMC has executed a guaranty (the "New Subsidiary Security Guaranty" and, together with the New Subsidiary Security Agreement, the "New Security Documents") in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders, in form and substance satisfactory to the Administrative Agent; (e) The Administrative Agent shall have received the original stock certificates representing 100% of the capital stock of CMC, together with instruments of assignment duly executed in blank, in each case in form and substance satisfactory to the Administrative Agent; (f) The Administrative Agent shall have received from the Secretary of CMC a copy, certified by such Secretary to be true and complete as of such date, of (i) the Governing Documents of such Person, (ii) the resolutions of such Persons Board of Directors or other management authorizing, to the extent it is a party thereto, the execution, delivery and performance of this Amendment and such other documents contemplated hereby, and (iii) the names, titles, incumbency and signatures of the officers of such Person who are authorized to execute and deliver this Amendment and the other Loan Documents; (g) The Administrative Agent shall have received from the Secretary of Xpress Waiting a copy, certified by such Secretary to be true and complete as of such date, of (i) the Governing Documents of such Person and (ii) the names, titles, incumbency and signatures of the officers of such Person who are authorized to execute and deliver this Amendment and the other Loan Documents; (h) The Administrative Agent shall have received a favorable legal opinion addressed to the Administrative Agent and the Lenders, dated as of the date hereof, in form and substance satisfactory to the Administrative Agent, from counsel to CMC, concerning corporate or other applicable entity authority matters and the enforceability of each of this Amendment and each of the New Security Documents, and concerning such other matters as the Administrative Agent may request; and (i) The Administrative Agent shall have received such other items, documents, agreements or actions as the Administrative Agent may reasonably request in order to effectuate the transactions contemplated hereby. 7. No Other Amendments.Except as expressly provided in this Amendment, all of the terms and conditions of each of the Credit Agreement and the Stock Pledge Agreement shall remain in full force and effect. 8. Execution in Counterparts.This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought. 9. Miscellaneous.THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER SEAL UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). The captions in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof. [Remainder of page intentionally left blank] -7- IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set forth above. BORROWERS: U.S. XPRESS ENTERPRISES, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Executive Vice President of Finance, Chief Financial Officer and Assistant Secretary U.S. XPRESS, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary XPRESS GLOBAL SYSTEMS, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary U.S. XPRESS LEASING, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary LENDERS: FLEET CAPITAL CORPORATION, individually and as Administrative Agent By: /s/ Christopher Godfrey Name:Christopher Godfrey Title:Senior Vice President FLEET NATIONAL BANK, as Issuing Bank By: /s/ Christopher Godfrey Name:Christopher Godfrey Title:Senior Vice President THE CIT GROUP/BUSINESS CREDIT, INC. By: /s/Arthur R. Cordwell, Jr. Name: Arthur R. Cordwell, Jr. Title:Vice President LASALLE BANK NATIONAL ASSOCIATION By: /s/ Stefan R. Loeb Name:Stefan R. Loeb Title:Corporate Banking Officer RATIFICATION OF GUARANTY Each of the undersigned Guarantors hereby acknowledges and consents to the foregoing Amendment, and agrees that the Guaranty from such Guarantor in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders and all other Loan Documents to which such Guarantor is a party remain in full force and effect, and each of the Guarantors confirms and ratifies all of its obligations thereunder. XPRESS AIR, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary XPRESS COMPANY STORE, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary XPRESS HOLDINGS, INC. By: /s/ Rebecca Howell Name: Rebecca Howell Title: Secretary and Treasurer XPRESS COLORADO, INC. (f/k/a CSI Acquisition Corporation) By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary DEDICATED XPRESS SERVICES, INC. By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Assistant Secretary XPRESS NEBRASKA, INC. By: /s/ Al Hingst Name: Al Hingst Title: COLTON XPRESS, LLC By: U.S. Xpress Enterprises, Inc., its sole Managing Member By: /s/ Ray M. Harlin Name: Ray M. Harlin Title: Executive Vice President of Finance, Chief Financial Officer and Assistant Secretary Schedule 7.19 Subsidiaries, Etc. Chief Executive Office/ Subsidiary State of Formation Principal Place of Business U.S. Xpress, Inc. Nevada 4080 Jenkins Road, Chattanooga, TN 37421 U.S. Xpress Leasing, Inc. Tennessee 4080 Jenkins Road, Chattanooga, TN 37421 Xpress Air, Inc. Tennessee 4080 Jenkins Road, Chattanooga, TN 37421 Xpress Company Store, Inc. Tennessee 4080 Jenkins Road, Chattanooga, TN 37421 Xpress Holdings, Inc.* Nevada 3993 Howard Hughes Parkway, Suite 250, Las Vegas, NV 89109 Xpress Global Systems, Inc. Georgia 1537 New Hope Church Road, Tunnel Hill, GA 30755 Xpress Colorado, Inc. Georgia 1537 New Hope Church Road, Tunnel Hill, GA 30755 Xpress Nebraska, Inc. Nebraska 201 Capital Beach Blvd., Lincoln, NE 68528 Xpress Waiting, Inc. Nevada 1537 New Hope Church Road, Tunnel Hill, GA 30755 Colton Xpress, LLC California 4080 Jenkins Road, Chattanooga, TN 37421 Cargo Movement Corp. Nevada 1537 New Hope Church Rd., Tunnel Hill, GA 30755 *Xpress Holdings, Inc. currently holds 4,966,000 shares of the Common Stock (par value $0.01) of Transplace, Inc., which represents a 12.415% ownership interest in that company. Schedule 9.3 Existing Investments No. of Shares No. of Shares Issued/ Company Types of Stock Authorized Outstanding Beneficial/Record Ownership - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- U.S. Xpress, Inc. Common Stock 22,000 22,000 U.S. Xpress Enterprises, Inc. (par value $10.00) 22,000 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- U.S. Xpress Leasing, Inc. Common Stock 500 500 U.S. Xpress Enterprises, Inc. (par value $1.00) 500 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Air, Inc. Common Stock 1,000 100 U.S. Xpress Enterprises, Inc. (no par value) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Company Store, Inc. Common Stock 1,000 100 U.S. Xpress Enterprises, Inc. (no par value) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Holdings, Inc. Common Stock 1,000 100 U.S. Xpress Enterprises, Inc. (par value $0.01) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Global Systems, Inc. Common Stock 500 500 U.S. Xpress Enterprises, Inc. (no par value) 500 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Colorado, Inc. Common Stock 1,000 100 U.S. Xpress Enterprises, Inc. (par value $0.01) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Nebraska, Inc. Common Stock 1,000 100 Xpress Colorado, Inc. (par value $0.01) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Xpress Waiting, Inc. Common Stock 1,000 100 Xpress Global Systems, Inc. (par value $0.01) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Transplace, Inc. Common Stock 200,000,000 40,000,000 Xpress Holdings, Inc. (par value $0.01) 4,966,000 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Preferred Stock 50,000,000 0 N/A (par value $0.01) - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- Cargo Movement Corp. Common Stock 1,000 100 Xpress Global Systems, Inc. (par value $0.01) 100 shares - ------------------------------------- -------------------- ----------------- ----------------- ------------------------------- In addition to the foregoing investments, (i) U.S. Xpress, Inc. owns a 49% membership interest in Johnson-Houston Xpress, LLC, (ii) U.S. Xpress Enterprises owns a 30% membership interest in Xtra Benefit Plans, LLC and a 100% membership interest in Colton Xpress, LLC, and (iii) U.S. Xpress Enterprises made a capital contribution of unsecured promissory notes owing from U.S. Xpress, Inc., U.S. Xpress Leasing, Inc., and Xpress Global Systems, Inc. having an aggregate principal amount of not more than $133,450,000 to Xpress Colorado, Inc., which company made a capital contribution of those same unsecured promissory notes to Xpress Nebraska, Inc. The Administrative Agent will not be granted a security interest in any ownership interests in Transplace, Inc., Johnson-Houston Xpress, LLC or Xtra Benefit Plans, LLC. Annex A to Stock Pledge Agreement None of the issuers has any authorized, issued or outstanding shares of its capital stock of any class or any commitments to issue any shares of its capital stock of any class or any securities convertible into or exchangeable for any shares of its capital stock of any class except as otherwise stated in this Annex A. Number of Number of Number of Par or Record Class of Authorized Issued Outstanding Liquidation Issuer Owner Shares Shares Shares Shares Value - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- U.S. Xpress, U.S. Xpress Common Stock 22,000 22,000 22,000 Par Value Inc. Enterprises, $10.00 Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- U.S. Xpress U.S. Xpress Common Stock 500 500 500 Par Value Leasing, Inc. Enterprises, $1.00 Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress Air, Inc. U.S. Xpress Common Stock 1,000 100 100 No Par Value Enterprises, Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress Company U.S. Xpress Common Stock 1,000 100 100 No Par Value Store, Inc. Enterprises, Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress U.S. Xpress Common Stock 1,000 100 100 Par Value Holdings, Inc. Enterprises, $0.01 Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress Global U.S. Xpress Common Stock 500 500 500 No Par Value Systems, Inc. Enterprises, Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress U.S. Xpress Common Stock 1,000 100 100 Par Value Colorado, Inc. Enterprises, $0.01 Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress Xpress Common Stock 1,000 100 100 Par Value Nebraska, Inc. Colorado, $0.01 Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Xpress Waiting, Xpress Common Stock 1,000 100 100 Par Value Inc. Global $0.01 Systems, Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- -------------- Cargo Movement Xpress Common Stock 1,000 100 100 Par Value Corp. Global $0.01 Systems, Inc. - ----------------- -------------- -------------- -------------- -------------- -------------- --------------
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10-Q Filing
U.S. Xpress Enterprises (USX) 10-Q2004 Q1 Quarterly report
Filed: 10 May 04, 12:00am