AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT
EXHIBIT 10.55
AMENDMENT NO. 1 TO
REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT (this “Amendment”) dated as of August 29, 2002, is by and among U.S. XPRESS ENTERPRISES, INC., a Nevada corporation, US XPRESS, INC., a Nevada corporation, CSI/CROWN, INC., a Georgia corporation, and US 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, Lenders and the Administrative Agent have agreed, on the terms and conditions set forth herein, to amend certain provisions of the Credit Agreement; 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. Amendment to Section 1.1 of the Credit Agreement. Section 1.1 of the Credit Agreement is hereby amended by deleting the definition of “Obligations” in its entirety and substituting the new definition in lieu thereof:
| “Obligations. All indebtedness, obligations and liabilities of any of the Borrowers and their Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively, existing on the date of this Credit Agreement or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Credit Agreement or any of the other Loan Documents or any Interest Rate Agreement or in respect of any of the Revolving Credit Loans made or Reimbursement |
| Obligations incurred or any of the Revolving Credit Notes, Letter of Credit Application, Letter of Credit or other instruments at any time evidencing any thereof and all obligations (including expenses, fees and indemnities) of the Borrowers and their Subsidiaries owing to the Administrative Agent, any Lender or any affiliate thereof in respect of all cash management arrangements provided to the Borrowers and their Subsidiaries, including, without limitation, lock boxes, lock box accounts, agency account arrangements, automated clearing house transfers and wire transfer transactions of the Borrowers or any Subsidiary.” |
§2. Amendment to Section 13.4 of the Credit Agreement. Section 13.4 of the Credit Agreement is hereby amended by deleting Sections 13.4(b) and (c) in their entirety and substituting the following new Sections 13.4(b) and (c) in proper alphabetical order in lieu thereof:
| “(b) Second, to all other Obligations (except Obligations owing to any Lender in respect of Interest Rate Agreements or cash management arrangements with the Borrowers or any Subsidiary or in connection with the provisional honoring of funds transfers, checks or other automated clearing house or wire transfer transactions) in such order or preference as the Required Lenders may determine; provided, however, that (i) distributions shall be made (A) paripassu among Obligations with respect to the Administrative Agent’s Fee and all other Obligations and (B) with respect to each type of Obligation owing to the Lenders, such as interest, principal, fees and expenses, among the Lenders pro rata, and (ii) the Administrative Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable; |
| (c) Third, to any Obligations owing to any Lender in respect of Interest Rate Agreements and cash management arrangements with the Borrowers or any Subsidiary and in connection with the provisional honoring of funds transfers, checks or other automated clearing house or wire transfer transactions in such order or preference as the Required Lenders may determine; provided, however, that (i) with respect to each such Obligation owing to the Lenders, among the Lenders pro rata, and (ii) the Administrative Agent may in its discretion make proper allowance to take into account any such Obligations not then due and payable;” |
§3. Amendment to Section 16.2 of the Credit Agreement. Section 16.2 of the Credit Agreement is hereby amended by deleting the comma at the end of clause (e) thereof and inserting the following new text in lieu thereof:
| “or otherwise incurred by any Lender, the Administrative Agent, the Issuing Bank or any of their affiliates under any cash management arrangements with the Borrowers or any Subsidiary or in connection with the provisional honoring of funds transfers, checks or other automated clearing house or wire transfer transactions,” |
§4. Representations and Warranties. Each of the Borrowers hereby represents and warrants to the Administrative Agent as follows:
| 4.1 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. |
| 4.2 Ratification, Etc. Except as expressly amended hereby, the Credit Agreement is hereby ratified and confirmed in all respects and shall continue in full force and effect. The Credit Agreement shall, together with this Amendment, be read and construed as a single agreement. All references in the Credit Agreement or any related agreement or instrument shall hereafter refer to the Credit Agreement as amended hereby. |
| 4.3 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, 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. |
| 4.4 Enforceability. This Amendment and the Credit Agreement, 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. |
§5. No Other Amendments. Except as expressly provided in this Amendment, all of the terms and conditions of the Credit Agreement remain in full force and effect.
§6. Execution in Counterparts. This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought.
§7. Miscellaneous. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER SEAL UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). The captions in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof.
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set forth above.
| U.S. XPRESS ENTERPRISES, INC. | |||
| By: | /s/ XXX X. XXXXXX | ||
| Name: Xxx X. Xxxxxx | |||
| Title: Executive Vice President of Finance, Chief Financial Officer and Assistant Secretary | |||
| U.S. XPRESS, INC. | |||
| By: | /s/ XXX X. XXXXXX | ||
| Name: Xxx X. Xxxxxx | |||
| Title: Assistant Secretary | |||
| CSI/CROWN, INC. | |||
| By: | /s/ XXX X. XXXXXX | ||
| Name: Xxx X. Xxxxxx | |||
| Title: Assistant Secretary | |||
| U.S. XPRESS LEASING, INC. | |||
| By: | /s/ XXX X. XXXXXX | ||
| Name: Xxx X. Xxxxxx | |||
| Title: Assistant Secretary | |||
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| FLEET CAPITAL CORPORATION, individually and as Administrative Agent | |||
| By: | /s/ Xxxxxxxxxxx Xxxxxxx | ||
| Name: Xxxxxxxxxxx Xxxxxxx | |||
| Title: Senior Vice President | |||
| FLEET NATIONAL BANK, as Issuing Bank | |||
| By: | /s/ Xxxxxxxxxxx Xxxxxxx | ||
| Name: Xxxxxxxxxxx Xxxxxxx | |||
| Title: Senior Vice President | |||
| THE CIT GROUP/BUSINESS CREDIT, INC. | |||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | ||
| Name: Xxxxxx X. Xxxxxxxx, Xx. | |||
| Title: Vice President | |||
| LASALLE BANK NATIONAL ASSOCIATION | |||
| By: | /s/ Xxxxx X. Xxxxx | ||
| Name: Xxxxx X. Xxxxx | |||
| Title: Corporate Banking Officer | |||
