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
receive
