FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Fourth Amendment") is dated as of the 21st day of December, 2001 by and among
US XPRESS ENTERPRISES, INC. (the "Borrower"), WACHOVIA BANK, N.A., as
Administrative Agent (the "Administrative Agent"), BANK OF AMERICA, N.A., as
Syndication Agent, FLEET NATIONAL BANK, as Documentation Agent, SUNTRUST BANK,
as Co-Agent, and WACHOVIA BANK, N.A., BANK OF AMERICA, N.A., FLEET NATIONAL
BANK, SUNTRUST BANK, AMSOUTH BANK, JP MORGAN CHASE BANK (formerly, The Chase
Manhattan Bank), LASALLE BANK NATIONAL ASSOCIATION, and FIRST TENNESSEE BANK,
N.A., as Banks (collectively, the "Banks");
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Administrative Agent and the Banks executed
and delivered that certain Amended and Restated Credit Agreement, dated as of
the 31st day of January, 2001, as amended by Waiver Under and First Amendment to
Credit Agreement dated April 27, 2001, but effective as of March 31, 2001,
Second Amendment to and Waiver Under Amended and Restated Credit Agreement,
dated as of July 11, 2001, and Third Amendment to Amended and Restated Credit
Agreement, dated as of August 10, 2001 (as so amended, the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent and
the Banks have agreed to certain amendments to the Credit Agreement, subject to
the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Borrower, the Administrative
Agent and the Banks hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
used herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
hereby is amended by deleting the definitions of "Borrowing Base", "Capital
Expenditures", "Commitment Reduction Date", "Consolidated EBILT", "Consolidated
EBITDA", "Consolidated Fixed Charges", "Interest Period", "Net Cash Proceeds",
"Revenue Equipment", "Revenue Equipment Sale and Replacement Program" and
"Termination Date" and adding the following definitions of "Adjusted
Consolidated EBILTDA", "Borrowing Base", "Capital Expenditure Carryover Amount",
"Capital Expenditures", "Commitment Reduction Dates", "Consolidated
Fixed Charges", "DaimlerChrysler Refinancing Closing Date", "Eligible
Revenue Equipment Tractors", "Eligible Revenue Equipment Trailers", "Fourth
Amendment Effective Date", "Interest Period", "Net Cash Proceeds", "Net Cash
Proceeds of Revenue Equipment Refinancings", "Off-Lease Revenue Equipment",
"Revenue Equipment", "Revenue Equipment Sale and Replacement Program", "Revenue
Equipment Tractors", "Revenue Equipment Trailers" and "Termination Date":
"Adjusted Consolidated EBILTDA" means the sum of the
following, calculated on a consolidated basis in accordance with GAAP
for the Borrower and the Consolidated Subsidiaries: (i) Consolidated
EBILTDA (but excluding balloon payments due on termination of leases of
Revenue Equipment which were in existence on the Fourth Amendment
Effective Date); plus (ii) any non-recurring charges taken in
accordance with GAAP, not to exceed $5,000,000 after the Fourth
Amendment Effective Date; less (iii) Capital Expenditures.
"Borrowing Base" means, as of the last day of any
Fiscal Month, an amount equal to the sum of (i) 85% of all Eligible
Receivables as of such date of determination plus (ii) 55% of Eligible
Revenue Equipment Tractors as of such date of determination plus (iii)
70% of Eligible Revenue Equipment Trailers as of such date of
determination.
"Capital Expenditure Carryover Amount" has the
meaning set forth in Section 6.30.
"Capital Expenditures" means for any period the sum
of all capital expenditures incurred and paid in cash during such
period by the Borrower and its Consolidated Subsidiaries, as determined
in accordance with GAAP; provided, however, that any expenditures
pertaining to Revenue Equipment shall be disregarded in calculating
Capital Expenditures.
"Commitment Reduction Dates" means each of the Fourth
Amendment Effective Date, the "DaimlerChrysler Refinancing Closing
Date", and June 30, 2002.
"Consolidated Fixed Charges" for any period means the
sum (without duplication) of (i) Consolidated Interest Expense for such
period, and (ii) all periodic payment obligations of the Borrower and
its Consolidated Subsidiaries for such period with respect to principal
of Debt and under all operating leases and rental agreements,
specifically including payment obligations of the Borrower under the
Synthetic Lease Documents, but excluding balloon payments on Debt or
due on termination of leases of Revenue Equipment which were in
existence on the Fourth Amendment Effective Date.
"DaimlerChrysler Refinancing Closing Date" means the
effective date of the closing of the refinancing by DaimlerChrysler
Services North America LLC of 886 Freightliner Tractors of the Borrower
in the amount of approximately $53,000,000 (which date may, but need
not be, the same as the Fourth Amendment Effective Date).
"Eligible Revenue Equipment Tractors" means, as at
any date of determination thereof, the recorded book value at such date
of all Revenue Equipment
Tractors owned by the Borrower or any of its Subsidiaries and located
in any jurisdiction in the United States of America excluding in any
event any Revenue Equipment Tractors subject to a Lien to any Person
other than a Lien in favor of the Collateral Agent; provided, however,
that Revenue Equipment Tractors which consist of Off-Lease Revenue
Equipment shall not constitute Eligible Revenue Equipment Tractors.
"Eligible Revenue Equipment Trailers" means, as at
any date of determination thereof, the recorded book value at such date
of all Revenue Equipment Trailers owned by the Borrower or any of its
Subsidiaries and located in any jurisdiction in the United States of
America excluding in any event any Revenue Equipment Trailers subject
to a Lien to any Person other than a Lien in favor of the Collateral
Agent; provided, however, that Revenue Equipment Trailers which
consists of Off-Lease Revenue Equipment shall not constitute Eligible
Revenue Equipment Trailers.
"Fourth Amendment Effective Date" means
December 21, 2001.
"Interest Period" means : (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the first,
second or third month thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to
paragraph (c) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall, subject to
paragraph (c) below, end on the last Euro-Dollar Business Day
of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which
begins before the Termination Date and would otherwise end
after the Termination Date.
(2) with respect to each Base Rate Borrowing, the
period commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (subject to
paragraph (b) below) which would otherwise end on a day which
is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) any Interest Period which would
otherwise end after the Termination Date shall end on the
Termination Date.
"Net Cash Proceeds" means any one, or more, or all,
as the context shall require, of Net Cash Proceeds of Asset
Dispositions, Net Cash Proceeds of Revenue Equipment Refinancings, Net
Insurance Proceeds and Net Proceeds of Capital Stock.
"Net Cash Proceeds of Revenue Equipment Refinancings"
means, in connection with any refinancing of Revenue Equipment
permitted by Section 6.20(e), the proceeds thereof in the form of cash
and cash equivalents after deducting therefrom, as applicable,
attorneys' fees, accountants' fees, lender's fees, investment banking
fees, insurance premiums, and related search and recording charges,
transfer taxes, and other customary fees and expenses actually incurred
in connection therewith.
"Off-Lease Revenue Equipment" means Revenue Equipment
which was subject to an Off-Lease Purchase and Resale Arrangement and
as to which the related lease has terminated, but the Borrower has not
refinanced such Revenue Equipment or purchased and resold such Revenue
Equipment to the OEM, or returned such Revenue Equipment to the lessor.
"Revenue Equipment" means Revenue Equipment Tractors
and Revenue Equipment Trailers used in the ordinary course of business
and tagged and permitted to be used in the ordinary course of business.
"Revenue Equipment Sale and Replacement Program"
means the Borrower's program of selling and replacing Revenue Equipment
(such program excluding and being in addition to the leasing of
tractors pursuant to operating leases, including pursuant to
Sale-Leaseback Transactions).
"Revenue Equipment Tractors" means tractors used in
the ordinary course of business and tagged and permitted to be used in
the ordinary course of business.
"Revenue Equipment Trailers" means trailers used in
the ordinary course of business and tagged and permitted to be used in
the ordinary course of business.
"Termination Date" means the earliest to occur of the
following: (i) July 1, 2003, (ii) the date the Commitments are
terminated pursuant to Section 7.01 following the occurrence of an
Event of Default, and (iii) the date the Borrower terminates the
Commitments entirely pursuant to Section 2.08.
3. Amendment to Section 2.05(a). Section 2.05(a) of the Credit
Agreement hereby is deleted and the following is substituted therefor:
(a) "Applicable Margin" means, for any Interest
Period in effect on or commencing after the Fourth Amendment
Effective Date, a rate equal to (i) 2.00% for Base Rate Loans,
and (ii) 3.50% for Euro-Dollar Loans; provided, however, that
if, at the end of any Fiscal Quarter, the ratio of Adjusted
Consolidated EBILTDA to Consolidated Fixed Charges for the
Fiscal Quarter just ended is less than the ratio set forth
below for such Fiscal Quarter, the Applicable Margin shall be
increased permanently as of the end of the Fiscal Quarter just
ended by 0.25%:
------------------------ ------------------------------
Fiscal Quarter End Date Ratio of Adjusted Consolidated
EBILTDA to Consolidated Fixed
Charges
------------------------ ------------------------------
June 30, 2002 1.21 to 1.00
------------------------ ------------------------------
September 30, 2002 1.21 to 1.00
------------------------ ------------------------------
December 31, 2002 1.26 to 1.00
------------------------ ------------------------------
March 31, 2003 1.09 to 1.00
------------------------ ------------------------------
4. Amendment to Section 2.06(c). Section 2.06(c) of the Credit
Agreement hereby is deleted and the following is substituted therefor:
(c) The Borrower shall pay to the Agent, an
additional fee equal to: (i) on the Fourth Amendment Effective
Date, for the ratable account of the Banks which execute and
deliver this Fourth Amendment by 5:00 P.M. (Atlanta, Georgia
time) on December 21, 2001, an amount equal to $225,000; and
(ii) on each other date set forth below, for the ratable
account of the Banks, unless all Revolver Obligations have
been paid in full and the Commitments have been terminated
entirely as of such date, an additional fee in an amount equal
to the percentage set forth below for such date times the
aggregate Commitments in effect on such date (and the fee
which was
payable on December 31, 2001 pursuant to Section 2.06(c) of
the Credit Agreement as in effect prior to the Fourth
Amendment shall not be payable):
------------------- -------------------------------
Date Additional Fee (expressed as a
percentage of the aggregate
Commitments)
------------------- -------------------------------
March 31, 2002 0.25%
------------------- -------------------------------
June 30, 2002 0.25%
------------------- -------------------------------
September 30, 2002 0.25%
------------------- -------------------------------
December 31, 2002 0.25%
------------------- -------------------------------
March 31, 2003 1.25%
------------------- -------------------------------
5. Amendment to Section 2.08(c). Section 2.08(c) of the Credit
Agreement hereby is deleted and the following is substituted therefor:
(c) The aggregate amount of Commitments shall be
reduced on the Commitment Reduction Dates set forth below,
if they have not previously been reduced to or below such
amount pursuant to Section 2.07 or this Section 2.08:
--------------------------------------- --------------------
Adjusted Aggregate
Commitment Reduction Date Commitment Amounts
--------------------------------------- --------------------
Fourth Amendment Effective Date $120,000,000
--------------------------------------- --------------------
DaimlerChrysler Refinancing $87,000,000
Closing Date
--------------------------------------- --------------------
June 30, 2002 $80,000,000
--------------------------------------- --------------------
6. Amendment to Section 2.10(b)(i). Section 2.10(b)(i) of the Credit
Agreement hereby is deleted and the following is substituted therefor:
(i) with respect to Net Cash Proceeds of Revenue
Equipment Refinancings and Net Cash Proceeds of Asset
Dispositions, 100% of such Net Cash Proceeds of Revenue
Equipment Refinancings and Net Cash Proceeds of Asset
Dispositions (other than Net Cash Proceeds of Asset
Dispositions from any
Asset Disposition which is part of the Revenue Equipment
Sales and Replacement Program unless such Asset
Disposition also is a Sale-Leaseback Transaction); provided
that with respect to any Asset Disposition to an OEM under
any Off-Lease Purchase and Resale Arrangement, the amount
paid by Borrower to purchase the related Revenue Equipment
shall be deducted, and Net Cash Proceeds shall include only
the amount of any Net Cash Proceeds remaining after such
deduction;
7. Amendment to Section 3.02. Section 3.02 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 3.02. Types and Amounts. The Administrative Agent
shall have no obligation to issue any Letter of Credit at any time:
(a) if the aggregate maximum amount then available
for drawing under Letters of Credit, after giving effect to
the issuance of the requested Letter of Credit, shall exceed
any limit imposed by law or regulation upon the Administrative
Agent;
(b) if, after giving effect to the issuance of the
requested Letter of Credit, (i) the aggregate Letter of Credit
Obligations with respect to Letters of Credit issued after
November 15, 2002 would cause the aggregate Letters of Credit
Obligations outstanding at any time to exceed $25,000,000, or
(ii) the sum of the aggregate Letter of Credit Obligations,
plus the aggregate principal amount of the Loans outstanding
at such time, would exceed the Borrowing Base;
(c) which has an expiration date later than the
Termination Date.
8. Amendment to Section 6.01(c). Section 6.01(c) of the Credit
Agreement hereby is amended by deleting said section in its entirety and
inserting in lieu thereof the following:
(c) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (b) above, a
certificate, substantially in the form of Exhibit F (a "Compliance
Certificate"), of the chief financial officer or the chief accounting
officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 6.05, 6.16, 6.18, 6.21
through 6.23, and 6.30 on the date of such financial statements;
provided, that the Compliance Certificate furnished with the delivery
of the monthly financial statements pursuant to Section 6.01(b)(ii)
need only set forth the calculations with respect to Section 6.22, and
(ii) stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take with
respect thereto;
9. Amendment to Section 6.18. Section 6.18 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.18. Liens. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens securing the Secured Obligations;
(b) Liens existing on the date of this Agreement
(other than those relating to the Secured Obligations)
securing Debt outstanding on the date hereof described in
Schedule 6.20 in the aggregate amount of $12,410,000;
(c) Liens securing Debt owing by any Subsidiary to
the Borrower;
(d) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing paragraphs of this
Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured by
any such Lien is not increased;
(e) any Lien securing Debt incurred for the purchase
of Revenue Equipment as permitted by Section 6.20(d), provided
that (i) such Debt is not secured by any additional assets,
and (ii) the amount of such Debt secured by any such Lien does
not exceed the purchase price of such Revenue Equipment;
(f) any Lien securing Debt incurred to refinance
Revenue Equipment as permitted by Section 6.20(e), provided
that (i) such Debt is not secured by any additional assets,
and (ii) such Revenue Equipment secures only such refinancing
Debt; and
(g) Liens incidental to the conduct of its business
or the ownership of its assets which (i) do not secure Debt
and (ii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in
the operation of its business;
provided, that after giving effect to any Lien permitted by
this Section 6.18, no Default shall be in existence or be
created thereby.
10. Amendment to Section 6.20. Section 6.20 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.20. Limitation on Debt. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Debt, except:
(a) Debt hereunder and under the Notes;
(b) Existing Debt secured by Liens described in
Schedule 6.20 in the aggregate amount of $12,410,000 and
existing unsecured Debt described in Schedule 6.20 in the
amount of $800,000;
(c) Debt incurred solely for the purchase of Revenue
Equipment to be resold to the OEM pursuant to an Off-Lease
Purchase and Sale Arrangement;
(d) Debt incurred for the purchase of additional
Revenue Equipment after the Fourth Amendment Effective Date
(but if such Debt is secured by a Lien,
it shall not constitute Eligible Revenue Equipment Tractors
or Eligible Revenue Equipment Trailers, as the case may be);
(e) subject to the provisions of Section 2.10(b)(i),
Debt incurred in connection with the refinancing of any
Revenue Equipment (and upon receipt of the payment required by
Section 2.10(b)(i) in connection therewith, the Collateral
Agent shall release its Lien on any such refinanced Revenue
Equipment); and
(f) Debt owing to the Borrower or another Wholly
Owned Subsidiary;
provided, that after giving effect to any Debt permitted by
this Section 6.20, no Default shall be in existence or be
created thereby.
11. Amendment to Section 6.22. Section 6.22 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.22. Ratio of Adjusted Consolidated EBILTDA
to Consolidated Fixed Charges. The ratio of (a) Adjusted
Consolidated EBILTDA to (b) Consolidated Fixed Charges will,
for any 3 consecutive Fiscal Month Period, as of the end of
any Fiscal Month, exceed the following ratios during the
corresponding periods set forth below:
Period Ratio
------ -----
3 Fiscal Months ending 01/31/02 0.95 to 1.00
3 Fiscal Months ending 02/28/02 0.87 to 1.00
3 Fiscal Months ending 03/31/02 0.92 to 1.00
3 Fiscal Months ending 04/30/02 1.01 to 1.00
3 Fiscal Months ending 05/31/02 1.10 to 1.00
3 Fiscal Months ending 06/30/02 1.11 to 1.00
3 Fiscal Months ending 07/31/02 1.15 to 1.00
3 Fiscal Months ending 08/31/02 1.17 to 1.00
3 Fiscal Months ending 09/30/02 1.15 to 1.00
3 Fiscal Months ending 10/31/02 1.21 to 1.00
3 Fiscal Months ending 11/30/02 1.19 to 1.00
3 Fiscal Months ending 12/31/02 1.19 to 1.00
3 Fiscal Months ending 01/31/03 1.08 to 1.00
3 Fiscal Months ending 02/28/03 1.03 to 1.00
3 Fiscal Months ending 03/31/03 1.03 to 1.00
3 Fiscal Months ending 04/30/03 1.08 to 1.00
3 Fiscal Months ending 05/31/03 1.16 to 1.00
12. Amendment to Section 6.23. Section 6.23 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.23. Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than
$150,000,000, plus the sum of (i) 75% of the cumulative
Reported Net Income of the Borrower and its Consolidated
Subsidiaries during any period after December 31, 2001 (taken
as one accounting period), calculated quarterly at the end of
each Fiscal Quarter but excluding from such calculations of
Reported Net Income for purposes of this clause (i), any
Fiscal Quarter in which the Reported Net Income of the
Borrower and its Consolidated Subsidiaries is negative, and
(ii) 100% of the cumulative Net
Proceeds of Capital Stock received during any period after
the Closing Date, calculated quarterly at the end of
each Fiscal Quarter.
13. Amendment to Section 6.28(a). Section 6.28(a) of the Credit
Agreement hereby is amended by deleting said section in its entirety and
inserting in lieu thereof the following:
(a) It is acknowledged and agreed by all parties
hereto that the Synthetic Lease Documents will be amended as
soon as reasonably practicable, but effective on the Fourth
Amendment Effective Date, to: (1) conform the Synthetic Lease
Documents to and include therein the affirmative, negative and
financial covenants contained in Article VI hereof as amended
and in effect on the Fourth Amendment Effective Date
(collectively, the "Identified Covenants") (but other
covenants peculiar to such transaction, including, without
limitation, those related to the synthetic lease nature
thereof or relating to the operation or maintenance of the
property leased pursuant thereto, need not be modified); (ii)
modify the calculation and determination of the "Yield"
portion of "Rent" payable pursuant thereto to reflect the
Applicable Margin as determined in Section 2.05 (the
"Identified Pricing"); and (iii) to change the Scheduled Lease
Termination Date therein to the Termination Date contained
herein (the "Identified Maturity Date"). No voluntary
prepayment of Synthetic Lease Obligations shall be made
without the express written consent of the Required Banks.
14. Amendment to Section 6.29. Section 6.29 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.29. INTENTIONALLY DELETED.
15. Amendment to Section 6.30. Section 6.30 of the Credit Agreement
hereby is amended by deleting said section in its entirety and inserting in lieu
thereof the following:
SECTION 6.30. Capital Expenditures. At the end of
each Fiscal Quarter, Capital Expenditures shall not exceed
the amount set forth below for such Fiscal Quarter; provided,
however, that, to the extent the amount set forth below for
any Fiscal Quarter within a particular Fiscal Year has not
been used in such Fiscal Quarter or any subsequent Fiscal
Quarter of such Fiscal Year, it may be used in any subsequent
Fiscal Quarter of such Fiscal Year (but not in any Fiscal
Quarter of any subsequent Fiscal Year), and the amount,
determined as of any Fiscal Quarter, not yet used for all
prior Fiscal Quarters in the same Fiscal Year is the
"Carryover Amount" for such Fiscal Quarter:
Period Capital Expenditures
- ------ --------------------
Fiscal Quarter ending 12/31/01 $15,000,000
Fiscal Quarter ending 3/31/2002 $1,750,000
Fiscal Quarter ending 6/30/2002 $1,750,000 plus any Carryover Amount
Fiscal Quarter ending 9/30/2002 $1,750,000 plus any Carryover Amount
Fiscal Quarter ending 12/31/2002 $1,750,000 plus any Carryover Amount
Fiscal Quarter ending 3/31/2003 $1,750,000
Fiscal Quarter ending 6/30/2003 $1,750,000 plus any Carryover Amount
16. Replacement of Exhibit F (Compliance Certificate). Exhibit F to the
Credit Agreement hereby is deleted and Exhibit F hereto is substituted therefor.
17. Replacement of Schedule 6.27 (Schedule of Real Property). Schedule
6.27 to the Credit Agreement hereby is deleted and Schedule 6.27 hereto is
substituted therefor.
18. Restatement of Representations and Warranties. The Borrower hereby
restates and renews each and every representation and warranty heretofore made
by it in the Credit Agreement and the other Loan Documents as fully as if made
on the date hereof and with specific reference to this Fourth Amendment and all
other loan documents executed and/or delivered in connection herewith.
19. Effect of Amendment. Except as set forth expressly hereinabove, all
terms of the Credit Agreement and the other Loan Documents shall be and remain
in full force and effect, and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower.
20. Ratification. The Borrower hereby restates, ratifies and reaffirms
each and every term, covenant and condition set forth in the Credit Agreement
and the other Loan Documents effective as of the date hereof.
21. Counterparts. This Fourth Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one and the same
instrument.
22. Section References. Section titles and references used in this
Fourth Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
23. No Default. To induce the Administrative Agent and the Banks to
enter into this Fourth Amendment and to continue to make advances pursuant to
the Credit Agreement, the Borrower hereby acknowledges and agrees that, as of
the date hereof, and after giving effect to the terms hereof, there exists (i)
no Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Borrower arising out of or with
respect to any of the Loans or other obligations of the Borrower owed to the
Banks under the Credit Agreement.
24. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments herein contained.
25. Governing Law. This Fourth Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
26. Conditions Precedent. This Fourth Amendment shall become effective
only upon (i) execution and delivery of this Fourth Amendment by the Borrower,
the Administrative Agent and the Required Banks, (ii) execution and delivery of
the Consent and Reaffirmation of Guarantors at the end hereof by each of the
Guarantors, and (iii) payment to the Administrative Agent, for the ratable
account of the Banks which execute and deliver this Fourth Amendment by 5:00
P.M. (Atlanta, Georgia time) on December 21, 2001, of the additional fee in the
amount of $225,000 which is payable pursuant to Section 2.06(c).
[SIGNATURES COMMENCE ON NEXT PAGE]
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of
the Banks has caused this Fourth Amendment to be duly executed, under seal, by
its duly authorized officer as of the day and year first above written.
U.S. XPRESS ENTERPRISES, INC.,
as the Borrower (SEAL)
By: /s/ Ray M. Harlin
---------------------------
Title: Assistant Secretary
WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Bank (SEAL)
By: /s/ William W. Teegarden
------------------------------
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and as a
Bank (SEAL)
By: /s/ Mike Carson
-------------------------
Title: Managing Director
FLEET NATIONAL BANK,
as Documentation Agent and as a
Bank (SEAL)
By: /s/ Christopher Sotir
-----------------------------
Title: Vice President
SUNTRUST BANK,
as Co-Agent and a Bank (SEAL)
By: /s/ Ned Spitzer
------------------------------
Title: Assistant Vice President
AMSOUTH BANK, (SEAL)
as a Bank
By: /s/ William T. Carroll
----------------------------
Title: Vice President
JP MORGAN CHASE BANK (formerly,
The Chase Manhattan Bank) (SEAL)
By: /s/ Michael J. Lister
-----------------------------
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank (SEAL)
By: /s/ Michael J. Heenan
---------------------------------
Title: Corporate Banking Officer
FIRST TENNESSEE BANK, N.A.,
as a Bank (SEAL)
By: /s/ Zachary Martin
-----------------------------
Title: Officer
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Fourth Amendment to Amended and Restated Credit Agreement (the "Fourth
Amendment"), (ii) consents to the execution and delivery of the Fourth Amendment
by the parties thereto and (iii) reaffirms all of its obligations and covenants
under the Guaranty Agreement dated as of January 31, 2001 executed by it, and
agrees that none of such obligations and covenants shall be affected by the
execution and delivery of the Fourth Amendment. This Consent and Reaffirmation
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument.
U.S. XPRESS, INC.,
a Nevada corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
CSI/CROWN, INC.,
a Georgia corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
XPRESS HOLDINGS, INC.,
a Nevada corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
XPRESS COMPANY STORE, INC.,
a Tennessee corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
XPRESS AIR, INC.,
a Tennessee corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
U.S. XPRESS LEASING, INC.,
a Tennessee corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
CSI ACQUISITION CORPORATION,
a Georgia corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary
DEDICATED XPRESS SERVICES, INC.,
a Nevada corporation (SEAL)
By: /s/ Ray M. Harlin
--------------------------
Title: Assistant Secretary