Exhibit 10.49
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT ("Agreement") is entered into as of the ________ day of
December, 2001 between U.S. XPRESS LEASING, INC., a Tennessee corporation
("Borrower") and DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC ("Lender").
WITNESSETH:
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WHEREAS, Borrower has applied to Lender for a loan (the "Loan") in the amount of
Fifty-Three Million Three Hundred Ten Thousand Nine Hundred One and 58/100
Dollars ($53,310,901.58) for the purposes set forth in Section 1.3 of this
Agreement; and Lender and Borrower desire to enter into this Agreement for the
purposes of establishing the terms, conditions and agreements under which Lender
is willing to make the Loan; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows:
ARTICLE 1.
AMOUNT OF LOAN
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1.1 Commitment to Lend. Subject to and upon the terms, covenants and
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conditions hereinafter set forth, Lender will hereafter lend and advance to
Borrower the sum of $53,310,901.58, which shall be evidenced by a promissory
note (the "Note") in form and substance acceptable to Lender. The Note shall be
secured by, among other collateral: (a) 886 tractors of Borrower described on
Exhibit A attached to the Security Agreement (the "Equipment"), and (b) the
"Collateral" as defined in that certain Blanket Assignment dated August 29, 2001
and executed by Borrower in favor of Lender (as the same may from time to time
be amended, modified, extended, renewed or restated, the "Blanket Assignment"),
and all proceeds thereof and is guaranteed by a Continuing Cross-Guaranty
executed by U.S. Xpress Leasing, Inc., U.S. Xpress Enterprises, Inc. and U.S.
Xpress, Inc. dated August 29, 2001 (as the same may from time to time be
amended, modified, extended, renewed or restated, the "Guaranty"; U.S. Xpress
Enterprises and U.S. Xpress, Inc. are together referred to as the "Guarantors").
The Equipment (and the proceeds thereof) is more completely defined and
described as the "Collateral" in, and Lender's security interest in the
Equipment (and the proceeds thereof) are created and perfected by, a security
agreement (as the same may from time to time be amended, modified, extended,
renewed or restated, the "Security Agreement") and a UCC Financing Statement
(the "Financing Statement") in form and substance acceptable to Lender. The
Security Agreement, the Blanket Assignment and the Financing Statement, together
with any other assignments, security agreements or other collateral documents
executed in connection with the Loan are herein collectively called the
"Security Instruments."
1.2 Loan. As used herein, the term "Loan" includes: (a) the
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indebtedness evidenced by the Note; (b) any and all indebtedness, obligations
and liabilities arising under or pursuant to any and all of the Security
Instruments; (c) all loans and advances Lender may hereafter make to
Borrower under this Agreement, the Note and/or the Security Instruments; and (d)
any and all renewals, modifications and/or extensions of all or any part of the
indebtedness, obligations, debts, loans, advances and liabilities described in
(a) through (c) preceding.
1.3 Proceeds of the Loan. The proceeds of the Loan shall be disbursed
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solely for the purpose of refinancing existing indebtedness of the Borrower
secured by the Equipment.
1.4 Payments of Interest and Principal. Accrued but unpaid interest on
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the Note at the rate set forth in the Note shall be due and payable monthly
during the term of the Loan as set forth in the Note. All principal and any
accrued but unpaid interest on the Note shall be payable as set forth in the
Note and elsewhere in this Agreement.
1.5 Obligations. The term "Obligations" means the Loan and any and all
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other indebtedness, liabilities and obligations, present or future, of every
kind or nature, owed by Borrower to Lender, whether direct or indirect, absolute
or contingent, now existing, due or owing or in the future existing, due or
owing, including, without limitation, (a) all indebtedness evidenced by any and
all promissory note(s) now or in the future executed and delivered by Borrower
to Lender and all renewals, replacements, increases and modifications thereof,
(b) all leases and financings of the inventory, fixtures and equipment of
Borrower by Lender, (c) all loans and advances of money from Lender to Borrower,
for any use or purpose, (d) all obligations of Borrower to Lender in connection
with the purchase, acceptance or discounting by Lender of notes, retail
installment contracts, leases and other chattel paper or instruments originated
by Borrower in the conduct of its business, (e) all guaranties by Borrower of
the debt of other entities and (f) all other financial or credit accommodations
extended by Lender to or for the benefit of Borrower.
ARTICLE 2.
CONDITIONS PRECEDENT TO THE LOAN
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2.1 Lender shall not be obligated to make the Loan unless, prior to the
advancement of any funds by Lender, Borrower has delivered to Lender the duly
executed documents, certificates and other instruments required herein,
including, without limitation the following:
(a) this Agreement;
(b) the Note;
(c) the Security Agreement (which must be in form and substance
satisfactory to Lender) and such Uniform Commercial Code financing statements
and other documents as Lender may require in connection therewith;
(d) the Confirmation of Blanket Assignment (which must be in form and
substance satisfactory to Lender) and such Uniform Commercial Code financing
statements and other documents as Lender may require in connection therewith;
(e) A Notice of Assignment and a Blanket Lessee Acknowledgment (which
must be in form and substance satisfactory to Lender), evidencing the
acknowledgement of the interests
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of Lender in every lease of any item of Equipment and such other documents as
Lender may require in connection therewith;
(f) the Consent of Guarantors (which must be in form and substance
satisfactory to Lender), duly executed by each of the Guarantors;
(g) Certified copies of the Articles of Incorporation and ByLaws or
other organizational documents forming or creating Borrower and each Guarantor;
(h) Certifications from the Tennessee Secretary(ies) of State that
Borrower and each Guarantor is in existence and is in good standing in the State
of Tennessee;
(i) Certified copies of resolutions, certificates of authority or
similar authorization documents from Borrower's board of directors approving the
Loan;
(j) Original incumbency certificates certifying as to the officers of
Borrower and each Guarantor authorized to sign the Loan Documents on behalf of
Borrower and each Guarantor, respectively;
(k) an opinion of counsel of the Xxxxxxx Law Firm, outside counsel to
Borrower and the Guarantors, in form and substance satisfactory to Lender and
Lender's counsel;
(l) A list of all Equipment, including year, make, model, state of
titling/registration and all leases involving the Equipment certified as true,
correct and complete by Borrower;
(m) the Borrowing Notice (which must be in form and substance
satisfactory to Lender); and
(n) evidence of the proper filing of UCC-1 Financing Statements
evidencing first priority security interests in favor of Lender in all of the
Collateral and all of the Third Party Collateral;
(o) a Termination of Security Interest (which must be in form and
substance satisfactory to Lender) and UCC-3 Termination Statements for all UCC-1
Financing Statements filed of record against Borrower relating to the
Collateral;
(p) Evidence satisfactory to Lender of the insurance required by this
Agreement and the other Loan Documents together with loss payable endorsements
in form and substance satisfactory to Lender, duly executed by the insurance
company;
(q) Copies of all financial statements and other Exhibits and Schedules
required by this Agreement and the other Loan Documents;
(r) A letter of direction from Borrower with respect to the
disbursement of the proceeds of the Loan;
(s) A pay-off letter from Wachovia Bank N.A. in form and substance
satisfactory to Lender;
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(t) A UCC search from the Tennessee Secretary(ies) of State or other
evidence satisfactory to Lender to demonstrate that Lender will have a first
lien on the Collateral; and
(u) Such other agreements, documents, instruments and certificates as
Lender may reasonably request.
Any one or more of the conditions set forth above which have not been
satisfied by Borrower on or prior to the date of disbursement of the Loan
hereunder shall not be deemed permanently waived by Lender unless Lender shall
waive the same in a writing which expressly states that the waiver is permanent,
and in all cases in which the waiver is not stated to be permanent Lender may at
any time subsequent to the date specified in the waiver, if any, insist upon
compliance and satisfaction of any such condition and failure to Borrower to
comply with any such condition on or before shall constitute a Default under
this Agreement.
ARTICLE 3.
CERTAIN REPRESENTATIONS
AND WARRANTIES OF BORROWER
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3.1 Borrower represents and warrants that:
(a) Borrower is a corporation that is duly organized in the State of
Tennessee and possesses all necessary and lawful authority and power to carry on
its business and to comply with the terms, covenants and conditions of this
Agreement, any and all documents, instruments and agreements evidencing,
securing or pertaining to all or any part of the Loan, including, without
limitation, the Note and the Security Instruments, and any extensions, renewals
or modifications thereof (this Agreement and all such documents, instruments and
agreements, including, without limitation, all those instruments described in
Sections 1.1 and 1.2 hereof (other than the Guaranty), being sometimes herein
and in any of such other documents and instruments collectively called the "Loan
Documents");
(b) Borrower is duly authorized to execute and deliver the Loan
Documents, and is and will continue to be duly authorized to perform all
obligations of Borrower under the Loan Documents;
(c) Neither the execution and delivery of the Loan Documents nor any
Guaranty, nor consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions thereof, will
contravene any provision of law, statute, rule or regulation to which Borrower
or any Guarantor is subject or any judgment, decree, license, order or permit
applicable to Borrower or any Guarantor, or will conflict or will be
inconsistent with, or will result in any breach of any of the terms of the
covenants, conditions or provisions of, or constitute a delay under, or result
in the creation or imposition of a lien (except liens in favor of Lender) upon
any of the Equipment or assets of Borrower or any Guarantor pursuant to the
terms of any indenture, mortgage, deed of trust, agreement or other instrument
to which Borrower or any Guarantor are parties or by which Borrower or any
Guarantor may be bound, or to which Borrower or any Guarantor may be subject, or
violate any provision of the organizational documents forming or creating
Borrower or any Guarantor;
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(d) No consent, approval, authorization or order of any court or
governmental authority or third party (other than those which have been obtained
prior to the date hereof and of which Borrower has notified Lender in writing on
the date hereof) is required in connection with the execution and delivery by
Borrower of the Loan Documents or the Guarantors of any Guaranty;
(e) The Loan Documents and Guaranty, when duly executed and delivered,
will be the legal and binding obligations of Borrower and the Guarantors,
respectively, as the case may be, enforceable in accordance with their
respective terms, except as the same may be limited by applicable bankruptcy,
insolvency, rearrangement, moratorium, reorganization, liquidation,
conservatorship or similar debtor relief laws of general application and the
power of courts to grant equitable remedies;
(f) All federal, state, local, and other taxes, assessments, fees and
other governmental charges imposed upon Borrower or Borrower's assets or on the
Equipment or any portion thereof (all such taxes, assessments, fees and charges
being herein collectively called "Taxes") which are due and payable, have been
paid or will be paid before they are delinquent;
(g) Borrower's principal place of business is located in the State of
Tennessee;
(h) Borrower's exact legal name is the name indicated in the signature
block for Borrower at the end of this Agreement;
(i) The Loan is being incurred for commercial purposes and is not a
"consumer transaction" or a "consumer-goods transaction" (both as described and
defined in the Uniform Commercial Code, as amended and replaced from time to
time - the "UCC") and the proceeds of the Loan will be used only for commercial
purposes and not consumer purposes;
(j) All of the Equipment is, has been or will be used, acquired or held
for commercial purposes and does not constitute "consumer goods" (as described
and defined in the UCC); and
(k) All financial statements delivered or to be delivered in the future
by Borrower or any Guarantor to Lender do and shall fairly represent the
financial condition of the entities covered by such financial statements as of
the date that such financial statements are delivered to Lender.
ARTICLE 4.
AFFIRMATIVE COVENANTS OF BORROWER
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4.1 Until payment and performance in full of the Loan and the other
Obligations, Borrower covenants to:
(a) Promptly pay, or cause to be paid, when due, any and all federal,
state and local taxes before delinquency;
(b) Promptly pay and discharge, when due, all of its debts, claims,
liabilities and obligations with respect to the Equipment;
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(c) Promptly pay, or cause to be paid, when due, any and all other
costs and expenses required by this Agreement or the Loan Documents or otherwise
or arising in connection with the Loan, this Agreement or the Loan Documents,
including, without limitation, all fees for filing or recording the Security
Instruments and for having the lien in favor of Lender noted on the certificate
of title for each item of Equipment;
(d) Keep or cause to be kept, at its principal place of business or the
principal place of business of its parent located in ________________________,
proper and complete books of record and account concerning the transactions and
financial records and affairs of Borrower and, at Lender's request, make such
records available for Lender's inspection during normal business hours and
permit Lender to make and keep copies thereof;
(e) Furnish, or cause to be furnished, to Lender such other
information, not otherwise required herein, respecting the business affairs,
assets and liabilities of Borrower and any Guarantor as Lender shall from time
to time require;
(f) Upon request, Borrower will, within thirty (30) days after the date
on which they are filed, deliver to Lender all Forms 10-K and 10-Q filed with
the Securities and Exchange Commission by its parent with respect to its
consolidated group. Any and all financial statements submitted and to be
submitted to Lender have and will have been prepared on a basis of generally
accepted accounting principles, and are and will be complete and correct and
fairly present Borrower's parent's financial condition as at the date thereof.
(g) Permit Lender and its agents and representatives, to enter at all
reasonable times upon any premises where any of the Equipment is located for the
purpose of inspecting the Equipment;
(h) Protect the Equipment from removal, destruction or damage, and
maintain, with financially sound and reputable insurance companies or
associations, insurance of the kinds, in such amounts and covering such risks as
Lender shall reasonably require, and, at Lender's request, deliver to Lender
evidence of the maintenance of such insurance;
(i) Promptly notify Lender in writing of any change in any fact or
circumstance represented or warranted herein, in any of the Loan Documents, or
in any other document furnished to Lender in connection with this Agreement;
(j) Execute and deliver to Lender, from time to time as requested by
Lender, such other documents as shall reasonably be necessary to provide the
rights and remedies to Lender granted or provided for herein, by the Security
Instruments or by the other Loan Documents; and
(k) Promptly pay or cause to be paid when due all costs and expenses
incurred in connection with the Collateral and keep the Collateral free and
clear of any liens, charges or claims other than the liens of the Security
Instruments. Notwithstanding anything to the contrary contained in this
Agreement, Borrower may (i) contest the validity or amount of any claim of any
contractor, consultant, architect or other person providing labor, materials or
services with respect to the Equipment, (ii) contest any tax or special
assessment levied by any governmental authority, and (iii) contest the
enforcement of or compliance with any governmental requirements, and such
contest on the part of Borrower shall not be a default hereunder;
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provided, however, that Borrower shall pay any contested sum before a judgment
resulting from any such contest is subject to foreclosure or execution upon the
Equipment.
ARTICLE 5.
NEGATIVE COVENANTS OF BORROWER
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5.1 Until payment and performance in full of the Loan and the other
Obligations, Borrower shall not, without the prior written consent of Lender:
(a) Merge into, be acquired by or consolidate with any other person or
entity unless Lender shall have received thirty (30) days advance notice of such
Event, and upon the occurrence of such Event (x) such person shall be organized
and existing under the laws of the United States or any state and execute and
deliver to Lender an agreement containing an effective assumption by such person
or entity of the due and punctual performance of this Agreement, and (y) the
financial condition of the combined companies shall be no less favorable than
that of the Borrower; or
(b) Change (i) the state in which Borrower is organized, (ii) the type
of entity of which Borrower is comprised (i.e. change Borrower from a limited
liability company to a corporation or partnership or from a corporation to a
limited liability company or partnership, etc.) or (iii) the legal name of
Borrower.
ARTICLE 6.
DEFAULT
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6.1 The term "Default," as used herein, shall mean the occurrence of
any one or more of the following events:
(a) The failure or refusal of Borrower to make any payment of principal
or interest on the Note or under the Loan, or any part thereof, as it becomes
due in accordance with the terms of the Note or any of the other Loan Documents
(whether at stated maturity, by acceleration or otherwise), which failure or
refusal shall remain insured for a period of ten (10) days;
(b) The failure or refusal of Borrower to pay any of the Obligations as
and when the same shall become due and payable, (whether at slated maturity, by
acceleration or otherwise), which failure or refusal shall remain insured for a
period of ten (10) days;
(c) Any event that results in the acceleration of the maturity of
Borrower's indebtedness, liabilities and obligations to others in an aggregate
amount in excess of $5 million, whether under any indenture, agreement or
undertaking or otherwise;
(d) The failure or refusal of Borrower punctually and properly to
perform any covenant, agreement, obligation or condition contained in this
Agreement, the Note, the Security Instruments or in any of the other Loan
Documents, or in any of the instruments executed in connection herewith or
therewith, and the continuation of such default for a period of fifteen (15)
days after Lender sends to Borrower written notice specifying such default;
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(e) The levy against the Equipment, or any part thereof, or any
execution, attachment, sequestration or other writ in connection with the
Equipment;
(f) This Agreement or any of the other Loan Documents shall at any time
for any reason (other than the termination of this Agreement or such other Loan
Document, as the case may be, in accordance with its terms) cease to be in full
force and effect or shall be declared to be null and void by a court, or if the
validity or enforceability thereof shall be contested or denied by Borrower
and/or any Guarantor, or if the transactions completed hereunder or thereunder
shall be contested by Borrower and/or any Guarantor or if Borrower and/or any
Guarantor shall deny that it has any further liability or obligation hereunder
or thereunder;
(g) The Guaranty shall at any time for any reason cease to be in full
force and effect or shall be declared to be null and void by a court, or if the
validity or enforceability thereof shall be contested or denied by any of the
Guarantors, or if any of the Guarantors shall deny that it has any further
liability or obligation thereunder or if any of the Guarantors shall fail to
comply with or observe any of the terms, provisions or conditions contained in
the Guaranty;
(h) The insolvency, liquidation or dissolution of Borrower or any
Guarantor;
(i) The appointment of a trustee or receiver for the assets, or any
part thereof, of Borrower or any Guarantor or for any material portion of the
Equipment or assets of Borrower or any Guarantor;
(j) The making by Borrower or any Guarantor of a transfer in fraud of
creditors or a general assignment for the benefit of creditors;
(k) The entry into bankruptcy of an order for relief for or against
Borrower or any Guarantor;
(l) The filing, by way of petition (if not dismissed within sixty (60)
days of such filing) or answer admitting the material allegations of any
petition, or other pleading seeking adjudication of Borrower or any Guarantor,
whether in bankruptcy, or an adjustment of said parties' debts, or any other
relief under any bankruptcy, reorganization, debtor's relief or insolvency laws
now or hereafter existing, including without limitation, a petition or answer
seeking reorganization or admitting the material allegations of a petition filed
against any of said parties in any bankruptcy or reorganization proceeding, or
the act of said parties in instituting or voluntarily being or becoming a party
to any other judicial proceedings intended to effect a discharge of the debts of
any of said parties, in whole or in part, or a postponement of the maturity of
the collection thereof, or a suspension of any of the rights or powers of a
trustee or of any of the rights or powers granted to the holder hereof herein,
or in any other documents executed in connection therewith;
(m) The receipt by Lender of information establishing that any
representation or warranty made by Borrower or any Guarantor herein, in any
Guaranty, in any of the other Loan Documents or in any other document or
instrument modifying, renewing, extending, evidencing, securing or pertaining to
this Agreement or the Loan, is materially deceptive, misleading, false or
erroneous;
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(n) Borrower or any Guarantor shall have a judgment in excess of $5
million entered against it by a court and such judgment shall not be appealed in
good faith or satisfied by Borrower or such Guarantor within thirty (30) days
after the entry of such judgment; or (o) The admission of Borrower or any
Guarantor in writing, of its inability to pay its debts as they become due.
ARTICLE 7.
RIGHTS AND REMEDIES
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7.1 Remedies upon Default. Should a Default occur and be continuing,
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Lender may, at its election, do any one or more of the following:
(a) Lender may, without notice (except as provided above), demand or
presentment, which are hereby expressly waived, declare the entire unpaid
balance of the Loan and all of the other Obligations, immediately due and
payable and in the case of any event described in Sections 6.1(k) or 6.1(l), the
entire unpaid balance of the Loan and all of the other Obligations shall
automatically become immediately due and payable, notwithstanding any other
terms hereof or thereof.
(b) Lender may require Borrower to assemble the Equipment and make it
available to Lender at any place or places to be designated by Lender within the
continental United States.
(c) Lender may, without notice to Borrower, which notice is hereby
expressly waived by Borrower, peaceably enter upon any premises where any of the
Equipment may be located and take possession of the Equipment, and, at the
option of Lender, (i) reduce any claim to judgment and (ii) sell and foreclose
or otherwise enforce Lender's liens on all or any part of the Equipment, by any
available judicial or nonjudicial procedure to the fullest extent permitted by
the UCC.
(d) Lender may retain some or all of the Equipment in either full or
partial satisfaction of the Loan and the other Obligations and, in connection
with such retention, Borrower acknowledges and agrees that (i) Borrower will
remain liable to Lender for any deficiency amoun remaining after crediting
against the Loan and the other Obligations the value received by Lender as a
result of the Equipment that was so retained and (ii) Lender's mere
re-possession of some or all of the Equipment shall not constitute a retention
of such Equipment in either full or partial satisfaction of the Loan and the
other Obligations unless Lender notifies Borrower in writing that Lender is
retaining some or all of the Equipment in partial or full satisfaction of the
Loan and the other Obligations.
(e) Lender may collect and enforce, directly against the account
debtors under, lessees under, obligors under, makers of or other counterparties
to any Equipment, all Equipment that is comprised of accounts, chattel paper,
electronic chattel paper, contract rights, leases, instruments, promissory
notes, supporting obligations, documents, general intangibles, payment
intangibles, factory credits or insurance proceeds and, in connection therewith,
(i) Lender may, in its sole discretion, (A) notify all account debtors, lessees,
obligors, makers and other counterparties to all of such Equipment of the
assignment of such Equipment, (B) direct such
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account debtors, lessees, obligors, makers and other counterparties to pay all
rentals, payments and other proceeds under such Equipment directly to Lender for
application to the Loan and the other Obligations and (C) instruct such account
debtors, lessees, obligors, makers and other counterparties to respond to direct
inquiries and requests for information from Lender with respect to any and all
matters and transactions involving Borrower or its affiliates and (ii) Borrower
waives all rights of confidentiality and privacy and instructs such account
debtors, lessees, obligors, makers and other counterparties to provide Lender
with whatever information and schedules Lender may require.
(f) Lender may pursue any and all other rights and remedies available
to it at law, under the UCC, in equity or under the Note, any Security
Instruments, any of the other Loan Documents or any other document, agreement or
instrument from Borrower to Lender or between Borrower and Lender.
(g) Lender may apply for and obtain, by appropriate judicial action,
appointment of a receiver or receivers for all or any part of the Equipment,
without regard to the sufficiency of the security, without any showing of
insolvency, fraud or mismanagement on the part of Borrower, to protect or
enforce the rights of Lender. Borrower hereby consents to any such appointment.
(h) Lender shall have the right, but not the obligation, to advance
funds to satisfy any of Borrower's obligations hereunder or for such other
purposes or in such other proportions as Lender may, in its sole discretion,
deem necessary or advisable. Any advance by Lender for such purposes shall be
part of the Loan and shall be secured by the Loan Documents. Lender will notify
Borrower in writing of any disbursements made directly by Lender. Borrower
hereby authorizes Lender to hold, use, disburse and apply proceeds for payment
of expenses incident to the Loan and the Equipment, and the payment or
performance of the obligations incident thereto. Lender may advance and incur
such expenses as Lender deems necessary to preserve the Equipment, and any other
security for the Loan, and all such expenses, even though in excess of the
amount of the Loan, shall be secured by the Loan Documents, and payable to
Lender upon demand. Lender may disburse funds at any time, and from time to
time, to persons other than Borrower for the purposes specified herein
irrespective of the other provisions of this Agreement.
7.2 Use or Operation by Lender. Should all or any part of the
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Equipment come into the possession of Lender prior to foreclosure or sale,
Lender may use or operate the same for the purpose of preserving it or its
value, or pursuant to the order of a court of appropriate jurisdiction, or in
accordance with any other rights held by Lender in respect thereof. In such
event, the risk of accidental loss or damage to the Equipment shall be on
Borrower, and Lender shall have no liability whatsoever for failure to obtain or
maintain insurance, or to determine whether any insurance ever in force is
adequate as to amounts or as to the risks insured, or for decline in the value
of the Equipment.
7.3 Disposition; Application of Proceeds. Lender will give Borrower
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reasonable notice of the time and place of any public sale or of the time after
which any private sale or any other intended disposition of the Equipment is to
be made. The requirements of reasonable notice shall be met if the notice is
mailed, postage prepaid, to Borrower at least ten (10) days before the time of
sale or disposition. Expenses of retaking, holding, preparing for sale, selling
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or the like shall include Lender's reasonable attorney's fees and legal expenses
of both in-house and outside counsel. Lender shall be entitled to apply the
proceeds of any public, private or other sale or disposition of all or any part
of the Equipment toward payment of the Loan and the other Obligations in such
order and manner as Lender, in its discretion, may deem advisable. Lender shall
account to Borrower for any surplus remaining after payment in full of the Loan
and the other Obligations and all reasonable costs and expenses, including,
without limitation, all reasonable attorneys' fees of both in-house and outside
counsel incurred in connection with any such sale or disposition and Borrower
shall remain liable to Lender for the deficiency amount of the Loan and other
Obligations that remains unpaid after the proceeds of any such sale or
disposition are credited against the loan and other Obligations.
7.4 Sale of Equipment. With respect to any sale or disposition of the
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Equipment by Lender under this Agreement, the UCC, any Security Instrument or
any other Loan Documents: (a) Lender has no obligation to clean-up or otherwise
prepare any of the Equipment for sale or disposition; (b) Lender may, in any
such sale or disposition, specifically disclaim any warranties of title or
fitness or any other warranties that are legally waivable; (c) Lender may comply
with any applicable state or federal law requirements in connection with the
Equipment, and the sale or disposition thereof, and such compliance will not be
considered to adversely affect the commercial reasonableness of any sale or
disposition of the Equipment; (d) if Lender sells any of the Equipment upon
credit (i) the Loan and the other Obligations will be credited only with
payments actually made by the purchaser of the Equipment that are received by
Lender and applied to the indebtedness of the purchaser to Lender in connection
with the sale of the Equipment and (ii) in the event the purchaser fails to pay
for the Equipment, Lender may resell the Equipment and no portion of the unpaid
sales price to the purchaser will be credited against the Loan and the other
Obligations.
7.5 Performance of Borrower's Obligations. Should any covenant, duty
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or agreement of Borrower fail to be performed in accordance with the terms of
this Agreement or the other Loan Documents, Lender may at its election perform
or attempt to perform such covenant, duty or agreement on behalf of Borrower.
Borrower shall, at the request of Lender promptly pay any amount expended by
Lender at its address stated herein, together with interest thereon the lesser
of 18% per annum or at the highest lawful rate from date of such expenditure by
Lender until paid; provided that Lender does not assume and shall never, except
by express written consent of Lender, have any liability for the performance of
any duties or obligations of Borrower under or in connection with all or any
part of the Equipment or any of the Loan Documents.
7.6 No Liability of Lender. Lender shall have no liability, obligation
----------------------
or responsibility whatsoever with respect to the management, conduct or
operation of the business affairs of Borrower or any Guarantor. Nothing,
including without limitation any advance of funds or acceptance of any document
or instrument, shall be construed as a representation or warranty, express or
implied, to any party by Lender, and no condition hereof, or of any of the Loan
Documents, shall be construed so as to deem the relationship between Borrower,
any Guarantor and Lender to be other than that of borrower, guarantor or lender,
and Borrower shall at all times represent that the relationship between
Borrower, any Guarantor and Lender is solely of borrower, guarantor and lender.
Borrower hereby indemnifies and agrees to hold Lender safe and harmless from and
against any cost, expense or liability incurred or suffered by Lender as a
result of any assertion or claim of any obligation or responsibility of Lender
for the management,
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operation and conduct of the business and affairs of Borrower or any Guarantor,
or as a result of any assertion or claim of any liability or responsibility of
Lender for the payment or performance of any indebtedness or obligation of
Borrower or any Guarantor.
7.7 Right of Offset. Borrower hereby grants to Lender a right of
---------------
offset, to secure the repayment of the Loan and the other Obligations, upon any
and all monies, securities or other Equipment of Borrower, and the proceeds
therefrom, now or hereafter held or received by or in transit to Lender, from or
for the account of Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise, and also upon any and all deposits
(general or special) and credits of Borrower with Lender, and upon any and all
claims of Borrower against Lender at any time existing. Upon the occurrence of
any Default, Lender is hereby authorized at any time and from time to time,
without notice to Borrower, to offset, appropriate, apply and enforce said liens
against any and all items hereinabove referred to against the Loan and the other
Obligations.
7.8 Waivers. The acceptance by Lender at any time and from time to
-------
time of partial payment on the Loan or any other Obligations shall not be deemed
to be a waiver of any Default then existing. No waiver by Lender of any Default
shall be deemed to be a waiver of any other Default nor shall any such waiver by
Lender be deemed to be a continuing waiver. No delay or omission by Lender in
exercising any right, power, privilege or remedy under the Loan Documents
("Right") shall impair any such Right or be construed as a waiver thereof or any
acquiescence therein, nor shall any single or partial exercise of any Right
preclude other or further exercise thereof, or the exercise of any other Right.
Borrower waives and agrees not to assert: (a) any right Borrower may have to
require Lender to pursue (i) any third parties that may be liable for the Loan
or the other Obligations or (ii) any other collateral for the Loan and the other
Obligations, in each case, before Lender pursues its rights and remedies under
this Agreement, the Note, the Security Instruments or any of the other Loan
Documents; and (b) any and all other claims and defenses that are legally
waivable.
7.9 Cumulative Rights. All rights of Lender hereunder shall be
-----------------
cumulative and in addition to all other rights, powers, privileges and remedies
granted to Lender at law or in equity, or otherwise, and may be exercised from
time to time, and as often as may be deemed expedient by Lender, whether or not
the Loan or any of the other Obligations are due and payable and whether or not
Lender shall have taken other action in connection with this Agreement or any
other of the Loan Documents.
ARTICLE 8.
MISCELLANEOUS
-------------
8.1 Governing Law. Except where preempted by the laws of the United
-------------
States, the laws of the State of Tennessee shall govern the validity,
construction, enforcement and interpretation of this Agreement and all of the
other Loan Documents.
8.2 Notice. Whenever this Agreement requires or permits any notice,
------
demand or request by one party to another, it shall be in writing, enclosed in
an envelope, addressed to the party to be notified at the address set forth
below (or at such other address as may have been designated by a party by
written notice to the other party), properly stamped, sealed and deposited in
the United States mail or sent by overnight courier. Notice shall be deemed to
have
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been given or the demand or request made on the date on which it shall have been
deposited in the mails or with such overnight courier, as stated above.
Lender: DaimlerChrysler Services North America LLC
Attention: Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxx, XX 00000
Borrower: U.S. Xpress Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
8.3 Assignment. This Agreement shall be binding on the parties'
----------
respective successors and assigns. Notwithstanding the foregoing, Borrower may
not assign its rights or obligations hereunder without Lender's prior written
consent. Lender may assign its rights hereunder with or without notice to
Borrower.
8.4 Invalid Provisions. If any provision of this Agreement is held to
------------------
be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, the legality, validity and enforceability of
the remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
8.5 Time of Essence. Time is of the essence in this Agreement.
---------------
8.6 Changes in Writing. This Agreement may not be changed, waived,
------------------
discharged or terminated without an instrument in writing signed by the party
against whom the change, waiver, discharge or termination is sought.
8.7 Cost and Expenses. Borrower agrees, whether or not any Loan is
-----------------
made under this Agreement, to pay Lender upon demand for (a) all out-of-pocket
costs and expenses and all in-house and outside attorneys' fees incurred by
Lender in connection with the preparation, documentation, negotiation, execution
and/or administration of this Agreement, the Note and/or any of the other Loan
Documents, (b) all recording, filing and search fees and expenses incurred by
Lender in connection with this Agreement and the other Loan Documents, (c) all
out-of-pocket costs and expenses and all in-house and outside attorneys' fees
incurred by Lender in connection with the (i) the preparation, documentation,
negotiation and execution of any amendment, modification, extension, renewal or
restatement of this Agreement, the Note and/or any of the other Loan Documents,
(ii) the preparation of any waiver or consent under this Agreement and/or under
any other Loan Document or (iii) any Default or alleged Default hereunder, (d)
if a Default occurs, all out-of-pocket costs and expenses and all in-house and
outside attorneys' fees incurred by Lender in connection with such Default and
collection and other enforcement proceedings resulting therefrom and (e) all
other in-house and outside attorneys' fees incurred by Lender relating to or
arising out of or in connection with this Agreement and/or any other Loan
Document. Borrower further agrees to pay or reimburse
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Lender for any stamp or other taxes which may be payable with respect to the
execution, delivery, recording and/or filing of this Agreement, the Note or any
of the other Loan Documents. All of the obligations of Borrower under this
Section 8.7 shall survive the satisfaction and payment of the Obligations and
the termination of this Agreement.
8.8 General Indemnity. In addition to the payment of expenses pursuant
-----------------
to Section 8.7, whether or not the transactions contemplated hereby shall be
consummated, Borrower hereby agrees to defend, indemnify, pay and hold Lender
and any holder(s) of the Note, and the officers, directors, employees, agents
and affiliates of Lender and such holder(s) (collectively, the "Indemnitees")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be designated a
party thereto), that may be imposed on, incurred by or asserted against the
Indemnitees, in any manner relating to or arising out of this Agreement, any of
the other Loan Documents or any other agreement, document or instrument executed
and delivered by Borrower or any Guarantor in connection herewith or therewith,
the statements contained in any commitment letters delivered by Lender, Lender's
agreement to make the Loan under this Agreement or the use or intended use of
the proceeds of any Loan under this Agreement (collectively, the "indemnified
liabilities"); provided that Borrower shall have no obligation to an Indemnitee
--------
hereunder with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of that Indemnitee as determined by a court of
competent jurisdiction in a final nonappealable order. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, Borrower shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all
indemnified liabilities incurred by the Indemnitees or any of them. The
provisions of the undertakings and indemnification set out in this Section 8.8
shall survive satisfaction and payment of the Obligations and the termination of
this Agreement.
8.9 Consent to Jurisdiction; Waiver of Jury Trial. BORROWER HEREBY
---------------------------------------------
IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE COURT
SITTING IN ILLINOIS OR ANY UNITED STATES OF AMERICA COURT SITTING IN ILLINOIS,
AS LENDER MAY ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, (B) AGREES THAT ALL
CLAIMS IN RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED
IN ANY OF SUCH COURTS, (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, (D) WAIVES ANY CLAIM
THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM AND (E) WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION
WHICH BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT
DOMICILES. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY
REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS REFERENCED IN SECTION 8.2.
BORROWER AND LENDER HEREBY
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IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH
BORROWER AND LENDER ARE PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
-15-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
DEBTOR:
U.S. XPRESS LEASING, INC.
By:_______________________________________
Title:____________________________________
SECURED PARTY:
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
By:_______________________________________
Title:____________________________________
-16-
PROMISSORY NOTE
$53,310,901.58 Date: December 20, 2001
U.S. XPRESS LEASING, INC., a Tennessee corporation, ("Borrower") promises to pay
to the order of DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC ("Lender") at its
office at 0000 Xxxxxxxxxxx Xxxx, Xxxxx, XX 00000, or at such other place as
Lender may designate in writing, in lawful money of the United States of
America, the principal sum of Fifty-Three Million Three Hundred Ten Thousand
Nine Hundred One and 58/100 Dollars ($53,310,901.58) together with interest from
the date hereof equal to seven and one quarter percent (7.25%) per annum as
follows: Attached hereto are Schedules numbered 1 through 23 (the "Payment
Schedules") which are incorporated herein and made a part hereof. Borrower
agrees to make payments of principal and interest on the 6th day of each month
for payments described on Payment Schedules 1-8 commencing January 6, 2002, and
on the 25th day of each month for payments described on Payment Schedules 9-23
commencing January 25, 2002 (each a "Payment Date"). Each payment of principal
and interest shall equal the aggregate total amount shown in the "Amount" column
on each of the Payment Schedules for each Payment Date. All payments shall be
made in accordance with the payment instructions set forth below.
Notwithstanding the foregoing, if any payment is not made within ten (10) days
of its due date and from and after the declaration of a Default by Lender and so
long as such Default has not been waived in writing by Lender, Borrower shall
pay to Lender the greater of (a) interest on the entire unpaid principal balance
of this Note at a rate equal to ten percent (10%) per annum, and (b) a late
charge equal to five percent (5%) of the total amount not paid when due. At the
Maturity Date, all accrued interest and principal remaining unpaid shall be due
and payable in full. Interest on the unpaid balance shall be calculated daily.
Interest shall be calculated on the basis of a 360-day year. For purposes
hereof, each month (regardless of the actual number of days elapsed) shall be
presumed to have thirty (30) days. In no event shall Borrower be obligated to
pay interest at a rate in excess of the highest rate permitted by applicable law
from time to time in effect.
Subject to the terms of the Loan Agreement referred to below, Borrower shall
have the right to prepay all at any time or any portion from time to time of the
unpaid principal of this Note prior to maturity, without penalty or premium,
provided that: (i) partial prepayments shall be applied to the payment of the
installments of principal of this Note in the inverse order of their stated
maturities; and (ii) on each prepayment date, Borrower shall pay to the order of
Lender all accrued and unpaid interest on the principal portion of this Note
being prepaid to and including the date of such prepayment.
This Note is the Note described in that certain Loan Agreement between Borrower
and Lender dated the date hereof (as the same may from time to time be amended,
modified, extended, renewed or restated, the "Loan Agreement"). The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the occurrence of certain stated events and also for
prepayments on account of the principal of this Note and interest on this Note
prior to the maturity of this Note upon the terms and conditions specified
therein. Each capitalized term not otherwise defined in this Note shall have the
meaning set forth in the Loan Agreement.
This Note is secured by, among other things, that certain Security Agreement
dated the date hereof and executed by Borrower in favor of Lender (as the same
may from time to time be amended, modified, extended or renewed, the "Security
Agreement"), and that certain Blanket Assignment dated August 29, 2001, and
executed by Borrower in favor of Lender (as the same may from time to time be
amended, modified, extended or renewed, the "Blanket Assignment"), to which
Security Agreement and Blanket Assignment reference is hereby made for a
description of the security and a statement of the terms and conditions upon
which this Note is secured.
If Borrower shall fail to make any payment of any principal or interest due
under this Note as and when the same shall become due and payable, or if any
Default shall occur under or within the meaning of the Loan Agreement, then the
entire outstanding principal balance of this Note and all accrued and unpaid
interest thereon may be declared to be immediately due and payable in the manner
and with the effect as provided in the Loan Agreement.
This Note is guaranteed by a Continuing Cross-Guaranty executed by U.S. Xpress
Leasing, Inc., U.S. Xpress Enterprises, Inc., and U.S. Xpress, Inc. dated August
29, 2001.
In the event that any payment of any principal or interest due under this Note
is not paid when due, whether by reason of maturity, acceleration or otherwise,
and this Note is placed in the hands of an attorney or attorneys for collection
or for foreclosure of the Security Agreement or the Blanket Assignment, or if
this Note is placed in the hands of an attorney or attorneys for representation
of Lender in connection with bankruptcy or insolvency proceedings relating
hereto, Borrower promises to pay to the order of Lender, in addition to all
other amounts otherwise due hereon, the costs and expenses of such collection,
foreclosure and representation, including, without limitation, attorneys' fees
and expenses of both in-house and outside counsel (whether or not litigation
shall be commenced in aid thereof). All parties hereto severally waive
presentment for payment, demand for payment, notice of dishonor, protest and
notice of protest.
-2-
This Note shall be governed by, and construed in accordance with, the laws of
the State of Tennessee.
BORROWER:
U.S. XPRESS LEASING, INC.
By:________________________________
Title: _____________________________
Payment Instructions
--------------------
Regular Mail
DaimlerChrysler Services
Payment Processing
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Overnight/Priority Mail
M&I Data Services-Lockbox BDX2
Freightliner 2916
0000 X. Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
-3-
