THIRD AMENDMENT TO
CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is
dated as of the 22nd day of February, 2000 and entered into by and among U.S.
XPRESS ENTERPRISES, INC., a Nevada corporation (the "Borrower"), the BANKS
listed on the signature pages hereof (the "Lenders"), WACHOVIA BANK, N.A., as
Administrative Agent, BANK OF AMERICA, N.A., f/k/a NationsBank, N.A. as
Syndication Agent, BANKBOSTON, N.A., as documentation Agent, and SUNTRUST BANK,
successor in interest to SunTrust Bank, Chattanooga, as Co-Agent (collectively,
the "Agents").
W I T N E S S E T H:
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WHEREAS, the parties hereto are parties to that certain Credit
Agreement, dated as of January 15, 1998, as amended by that certain First
Amendment to Credit Agreement dated as of August 11, 1998, and as further
amended by that certain Second Amendment to Credit Agreement dated as of August
28, 1998 (as such Credit Agreement may be amended from time to time, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement to permit certain Restricted Payments by the Borrower and to modify
certain other covenants contained in the Credit Agreement;
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 Agents and the Lenders
hereby agree as follows:
1. Amendments.
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(a) Section 2.05(a) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
SECTION 2.05. Interest Rates. (a) "Applicable Margin" means:
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(i) for the period commencing on February 22, 2000, to and
including the next Performance Pricing Determination Date, (x) for any
Base Rate Loan, 0.00%, and (y) for any Euro-Dollar Loan, 1.75%; and
(ii) from and after such next Performance Pricing Determination
Date, (x) for any Base Rate Loan, 0.00%, (y) for each Euro-Dollar Loan,
the percentage determined on each Performance Pricing Determination Date
by reference to the table set forth below as to the ratio of
Consolidated Total Adjusted Debt to Consolidated EBILTDA for the
quarterly or annual period ending immediately prior to such Performance
Pricing Determination Date.
Ratio Applicable Margin
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Less than or equal to 1.50 to 1.00 0.75%
Greater than 1.50 to 1.00 but
Ratio Applicable Margin
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Less than or equal to 2.00 to 1.00 1.00%
Greater than 2.00 to 1.00 but
Less than or equal to 2.50 to 1.00 1.375%
Greater than 2.50 to 1.00 but
Less than or equal to 3.00 to 1.00 1.75%
Greater than 3.00 2.25%
In determining interest for purposes of this Section 2.05 and fees
for purposes of Section 2.06, the Borrower and the Banks shall refer to
the Borrower's most recent consolidated quarterly and annual (as the
case may be) financial statements delivered pursuant to Section 6.01(a)
or (b), as the case may be. If such financial statements require a
change in interest pursuant to this Section 2.05 or fees pursuant to
Section 2.06, the Borrower shall deliver to the Administrative Agent,
along with such financial statements, a notice to that effect, which
notice shall set forth in reasonable detail the calculations supporting
the required change. The "Performance Pricing Determination Date" is the
date which is the last date on which such financial statements are
permitted to be delivered pursuant to Section 6.01(a) or (b), as
applicable. Any such required change in interest and fees shall become
effective on such Performance Pricing Determination Date, and shall be
in effect until the next performance Pricing Determination Date,
provided that: (i) changes in interest shall only be effective for
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Interest Periods commencing on or after the Performance Pricing
Determination Date; and (ii) no fees or interest shall be decreased
pursuant to this Section 2.05 or Section 2.06 if a Default is in
existence on the Performance Pricing Determination Date.
(b) Section 2.06(a) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
SECTION 2.06. Fees. (a) The Borrower shall pay to the Administrative
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Agent, for the ratable account of each Bank, a commitment fee,
calculated in the manner provided in the last paragraph of Section
2.05(a)(ii), on the average daily amount of such Bank's Unused
Commitment, at a rate per annum equal to: (i) for the period commencing
on February 22, 2000, to and including the next Performance Pricing
Determination Date, 0.375%; and (ii) from and after such next
Performance Pricing Determination Date, the percentage determined on
each Performance Pricing Determination Date by reference to the table
set forth below as to the ratio of Consolidated Total Adjusted Debt to
Consolidated EBILTDA for the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date:
Ratio Commitment Fee
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Less than or equal to 1.50 to 1.00 0.20%
Greater than 1.50 to 1.00 but
Less than or equal to 2.00 to 1.00 0.25%
Greater than 2.00 to 1.00 but
Less than or equal to 2.50 to 1.00 0.30%
Greater than 2.50 to 1.00 but
Less than or equal to 3.00 to 1.00 0.375%
Less than 3.00 0.50%
Such commitment fees shall accrue from and including the Closing Date to
but excluding the Termination Date and shall be payable on each March 31,
June 30, September 30 and December 31 and on the Termination Date.
(c) Section 6.15 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
SECTION 6.15. Restricted Payments. Beginning on January 1, 2000
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and thereafter, the Borrower shall not declare or make any Restricted
Payments, provided that, so long as after giving effect thereto no Default
shall be in existence or be created thereby, the Borrower may:
(a) during the period beginning on January 1, 2000 and ending
on December 31, 2000, inclusive ("Fiscal Year 2000"), purchase, redeem or
retire up to Ten Million and No/100 Dollars ($10,000,000) of the
Borrower's Class A Capital Stock at a weighted average price per share not
to exceed Thirteen and No/100 Dollars ($13.00) (the "Repurchase");
(b) during Fiscal Year 2000, make Restricted Payments in
addition to any made pursuant to the Repurchase so long as the aggregate
of all such Restricted Payments made during Fiscal Year 2000 do not exceed
the greater of (i) five percent (5%) of cumulative Consolidated Net Income
earned during Fiscal Year 2000, or (ii) twenty-five percent (25%) of
cumulative Consolidated Net Income earned during Fiscal Year 2000 less the
amount of aggregate Restricted Payments made during Fiscal Year 2000
(including those made pursuant to the Repurchase); and
(c) during the period beginning on January 1, 2001 and ending
on the Termination Date, make Restricted Payments so long as the
Restricted Payments made during any Fiscal Year do not exceed the sum of
(x) twenty-five percent (25%) of cumulative Consolidated Net Income for
that Fiscal Year, plus (y) solely with respect to Fiscal Year 2001,
Restricted Payments permitted but not paid during Fiscal Year 2000 under
Section 6.15(b).
(d) Section 6.21 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
SECTION 6.21. Ratio of Consolidated Total Adjusted Debt to
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Consolidated EBILTDA. The ratio of consolidated Total Adjusted Debt to
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Consolidated EBILTDA will not at any time exceed (i) 3.25 to 1.00 during the
Fiscal Quarters ending on March 31, 2000 and June 30, 2000, and (ii) thereafter,
3.00 to 1.00.
(e) Section 6.22 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
SECTION 6.22. Ratio of Consolidated EBILT to Consolidated Fixed
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Charges. The ratio of (a) Consolidated EBILT to (b) Consolidated Fixed
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Charges will at all times exceed the following amounts during the corresponding
periods set forth below:
Period Amount
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Fiscal Quarters ending 3/31/00 through 6/30/00 1.10 to 1.00
Fiscal Quarter ending 9/30/00 1.15 to 1.00
Fiscal Quarter ending 12/31/00 1.20 to 1.00
Each Fiscal Quarter ending thereafter 1.25 to 1.00
2. Conditions Precedent. This Third Amendment and the obligations of
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the Lenders evidenced hereunder shall not be effective until (i) the execution
and delivery of this Third Amendment by each of the parties hereto and until the
Administrative Agent shall have received a Reaffirmation of Guaranty from each
Subsidiary in substantially the form of Exhibit A-1 hereto, and (ii) payment in
immediately available funds by the Borrower to the Administrative Agent, for the
benefit of each Bank, a fully-earned and non-refundable amendment fee to each
Bank equal to 0.15% times the amount of such Bank's Commitment.
3. Reference to and Effect on the Credit Agreement and the Other Loan
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Documents.
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(a) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended by this Third Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Third Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Administrative Agent or any Lender under the Credit Agreement or any of the
other Loan Documents.
4. Counterparts. This Third Amendment may be executed in any number of
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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.
5. Section References. Section titles and references used in this Third
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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.
6. No Default; Reaffirmation of Representations and Warranties. To
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induce the Agents and the Lenders to enter into this Third 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 thereunder, (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
Agents and the Lenders under the Credit Agreement and other Loan Documents, and
(iii) all of the representations and warranties made or deemed to be made under
the Credit Agreement are materially true and correct as of the date of this
Third Amendment.
7. Governing Law. This Third Amendment shall be governed by and
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construed and interpreted in accordance with, the laws of the State of Georgia
without giving effect to any conflict or choice of laws principles.
8. Defined Terms. Terms not otherwise defined herein are used herein as
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defined in the Credit Agreement.
[Signatures begin on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed, under seal, by their respective duly authorized officer as
of the day and year first above written.
U.S. XPRESS ENTERPRISES, INC.
By:
Title:
WACHOVIA BANK, N.A.,
as Lender and Administrative Agent
By:
Title:
BANK OF AMERICA, N.A.,
f/k/a NationsBank, N.A.,
as Lender and Syndication Agent
By:
Title:
BANKBOSTON, N.A.,
as Lender and Documentation Agent
By:
Title:
SUNTRUST BANK, successor in interest to
SunTrust Bank, Chattanooga, as Lender
and Co-Agent
By:
Title:
AMSOUTH BANK
By:
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Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
f/k/a Texas Commerce Bank National Association
By:
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Title:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By:
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Title:
ABN-AMRO BANK, N.A.
By:
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Title:
FIRST TENNESSEE BANK, N.A.
By:
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Title:
EXHIBIT A-1
REAFFIRMATION OF GUARANTY
THIS REAFFIRMATION OF GUARANTY dated as of February 22, 2000 executed
and delivered by U.S. Xpress, Inc., a Nevada corporation, CSI/Crown, Inc., a
Georgia corporation, JTI, Inc., a Tennessee corporation, Xpress Air, Inc., a
Tennessee corporation, U.S. Xpress Leasing, Inc., a Tennessee corporation, PST
Acquisition Corp., a Nevada corporation, and Victory Express, Inc., a Ohio
corporation, (each a "Guarantor", and collectively, the "Guarantors"), in favor
of the Administrative Agent, for the ratable benefit of the Banks, under the
Credit Agreement referred to below;
WHEREAS, pursuant to that certain Credit Agreement dated as of January
15, 1998 (as the same may be amended, modified, supplemented or extended from
time to time, the "Credit Agreement") by and among U.S. XPRESS ENTERPRISES,
INC., a Nevada corporation (the "Borrower") and WACHOVIA BANK, N.A., as
Administrative Agent (the "Administrative Agent"), BANK OF AMERICA, N.A. f/k/a/
NATIONSBANK, N.A., as Syndication Agent, BANKBOSTON, N.A., as Documentation
Agent, and SUNTRUST BANK, successor in interest to SunTrust Bank, Chattanooga,
as Co-Agent and certain other Banks from time to time party thereto, the Banks
have made available to the Borrower certain financial accommodations on the
terms and conditions set forth in the Credit Agreement;
WHEREAS, in connection with the Credit Agreement, each Guarantor
executed and delivered a Guaranty dated as of January 15, 1998 (the "Guaranty")
in favor of the Administrative Agent, providing for each such Guarantor's joint
and several guaranty of repayment of an amount of the indebtedness and
obligations of the Borrowers owing to the Administrative Agent and the Banks
equal to the "Guaranteed Obligations" as that term is defined in the Guaranty;
WHEREAS, the Borrower, the Banks, and the Administrative Agent have
entered into that certain Third Amendment to Credit Agreement dated as of the
date hereof (the "Amendment"), to permit certain Restricted Payments by the
Borrower and to modify certain other covenants contained in the Credit
Agreement;
WHEREAS, each Guarantor has reviewed the Amendment;
WHEREAS, it is a condition precedent to the effectiveness of the
Amendment that each Guarantor execute and deliver this Reaffirmation of
Guaranty;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which each Guarantor hereby acknowledges, each Guarantor hereby
agrees as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing
obligations to the Administrative Agent and the Banks under the Guaranty and
agrees that neither the transactions contemplated by the Amendment, nor any
future agreements of arrangements whatsoever by the Administrative Agent and the
Banks with the Borrower relating to the Credit Agreement, any of the other Loan
Documents, or any collateral thereunder, shall in any way affect the validity
and enforceability of the Guaranty or reduce, impair or discharge the
obligations of the Guarantor thereunder.
Section 2. References. Each Guarantor agrees that each reference to the
Credit Agreement or any of the other Loan Documents shall be deemed to be a
reference to the Credit Agreement or such other Loan Document as amended by the
Amendment, and as each may from time to time be further amended, supplemented,
restated or otherwise modified in the future by one or more other written
amendments or supplemental or modification agreements entered into pursuant to
the applicable provisions of the respective Loan Document.
Section 3. Defined Terms. Terms not otherwise defined herein are used
herein as defined in the Credit Agreement.
IN WITNESS WHEREOF, this Reaffirmation of Guaranty is signed, sealed and
delivered as of the date first written above.
U.S. XPRESS, INC.
By:
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Title:
CSI/CROWN, INC.
By:
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Title:
JTI, INC.
By:
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Title:
XPRESS AIR, INC.
By:
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Title:
U.S. XPRESS LEASING, INC.
By:
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Title:
PST ACQUISITION CORP.
By:
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Title:
VICTORY EXPRESS, INC.
By:
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Title:
