Exhibit 10.15 Amended and Restated Credit Agreement (BOA)











Exhibit 10.15








EXECUTION
COPY



























AMENDED
AND RESTATED

CREDIT
AGREEMENT




by
and among




COVENANT
ASSET MANAGEMENT, INC.,

as
Borrower,




COVENANT
TRANSPORT, INC.




BANK
OF AMERICA, N.A.,

as
Agent and as Lender




and




THE
LENDERS PARTY HERETO FROM TIME TO TIME




December
16, 2004




BANC
OF AMERICA SECURITIES LLC,

as
Sole Lead Arranger and Sole Book Manager,










































AMENDED
AND RESTATED

CREDIT
AGREEMENT




THIS
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 16, 2004 (the “Agreement”), is made by and among
COVENANT
ASSET MANAGEMENT, INC.,
a Nevada corporation (the “Borrower”), COVENANT
TRANSPORT, INC.,
a Nevada corporation and the owner of 100% of the issued and outstanding common
stock of the Borrower (the “Parent”), BANK
OF AMERICA, N.A.,
a national banking association organized and existing under the laws of the
United States, in its capacity as a Lender (“Bank of America”), and each other
financial institution executing and delivering a signature page hereto and each
other financial institution which may hereafter execute and deliver an
instrument of assignment with respect to this Agreement pursuant to Section
13.1
(hereinafter such financial institutions may be referred to individually as a
“Lender” or collectively as the “Lenders”), and BANK
OF AMERICA, N.A.,
a national banking association organized and existing under the laws of the
United States, in its capacity as agent for the Lenders (in such capacity, and
together with any successor agent appointed in accordance with the terms of
Section
12.7,
the “Administrative Agent”);




W
I T N E S S E T H:




WHEREAS,
the Borrower, the Parent, the lenders party thereto, and Bank of America, as
agent, are parties to that certain Credit Agreement dated as of December 13,
2000, as amended by (i) that certain Amendment No. 1 to Credit Agreement dated
as of August 28, 2001, (ii) that certain Amendment No. 2 to Credit Agreement
dated as of February 26, 2003, (iii) that certain Amendment No. 3 to Credit
Agreement dated as of June 11, 2003, and (iv) that certain Amendment No. 4 to
Credit Agreement dated as of December 1, 2003 (as further amended or modified
from time to time prior to the date hereof, the “Existing Credit Agreement”)
pursuant to which such lenders originally agreed to provide the Borrower with a
revolving credit facility of up to $100,000,000, including a letter of credit
subfacility of up to $70,000,000 and a swingline facility of up to
$5,000,000;




WHEREAS,
the Borrower and the Parent have requested that the Existing Credit Agreement be
amended and restated in order to, among other things, extend the maturity date
of the revolving credit facility, increase the potential maximum amount of the
revolving credit facility from the amount in effect as of the date hereof under
the Existing Credit Agreement to $150,000,000, provide for increases to such
revolving credit agreement from time to time, subject to the conditions set
forth herein, in an amount not to exceed $50,000,000 in the aggregate for all
such increases, to increase the maximum amount of the letter of credit
subfacility, to increase the maximum amount of the swingline subfacility, to
modify the commitments of the Lenders, and make certain other amendments to the
Existing Credit Agreement (the “Amendment and Restatement”); and




WHEREAS,
the Borrower, the Lenders and the Agent have agreed to and desire to amend and
restate the Existing Credit Agreement upon the terms and conditions set forth
herein;




NOW,
THEREFORE,
the Borrower, the Lenders and the Agent hereby agree as
follows:






















ARTICLE
I




Assignment
and Restatement; Definitions and Terms




1.1   Assignment
and Allocations.
In order to facilitate the Amendment and Restatement and otherwise to effectuate
the desires of the Borrower, the Agent and the Lenders:




(a)   The
parties hereto agree that (i) each of the Revolving Credit Commitments (as
defined in the Existing Credit Agreement) shall, subject to the terms hereof,
constitute a Revolving Credit Commitment hereunder. As of the close of business
on the date immediately preceding the Closing Date, the Revolving Credit
Commitments, the Applicable Commitment Percentage (as defined in the Existing
Credit Agreement) of the Lenders and the Revolving Credit Outstandings (as
defined in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement were as follows:






	
      Lender
	
      Revolving
      Credit Commitment
	
      Lender’s
      Applicable 

      Commitment
      Percentage
	
      Revolving
      Loans

	 	 	 	 
	
      Bank
      of America, N.A.
	
                           
      $35,000,000
	
      35.0%
	
                                 
      $4,200,000

	 	 	 	 
	
      SunTrust
      Bank
	
                            $25,000,000
	
      25.0%
	
                                  $3,000,000

	 	 	 	 
	
      Fleet
      National Bank
	
                           
      $25,000,000
	
      25.0%
	
                                 
      $3,000,000

	 	 	 	 
	
      Branch
      Banking and Trust
      Company
	
                           
      $15,000,000
	
      15.0%
	
                                  $1,800,000

	 	 	 	 
	
      TOTAL
	
                         
      $100,000,000
	
      100%
	
                               
      $12,000,000




 


(ii)
each of the Existing Letters of Credit shall constitute a Letter of Credit
hereunder, and (iii) each outstanding Swing Line Loan (as defined in the
Existing Credit Agreement) shall constitute an outstanding Swing Line Loan
hereunder. 




(b)   Simultaneously
with the Closing Date, the parties hereby agree that the Revolving Credit
Commitments shall be as set forth in Exhibit
A
and the Revolving Credit Outstandings and participations in Existing Letters of
Credit under the Existing Credit Facility shall be reallocated in accordance
with such Revolving Credit Commitments and the requisite assignments shall be
deemed to be made in such amounts by and between the Lenders and from each
Lender to each other Lender, with the same force and effect as if such
assignments were evidenced by applicable Assignments and Acceptances (as defined
in the Existing Credit Agreement) under the Existing Credit Agreement.
Notwithstanding anything to the contrary in Section
12.6
of the Existing Credit Agreement or Section
13.6
of this Agreement, no other documents or instruments, including any Assignment
and Assumption, shall be executed, and no fees otherwise provided for in such
section as payable to the Agent in connection with assignments will be payable,
in connection with these assignments (all of which requirements are hereby
waived), and such assignments shall be deemed to be made with all applicable
representations, warranties and covenants as if evidenced by an Assignment and
Acceptance. On the Closing Date, the Lenders shall make full cash settlement
with the Agent, as the Agent may direct or approve, with respect to all
assignments, reallocations and other changes in Revolving Credit Commitments and
Revolving Credit Outstandings such that after giving effect to such settlements
each Lender’s Applicable Commitment Percentage shall be as set forth on
Exhibit
A.











1













(c)   The
Borrower, the Agent and the Lenders hereby agree that upon the effectiveness of
this Agreement, the terms and provisions of the Existing Credit Agreement shall
be and hereby are amended and restated in their entirety by the terms,
conditions and provisions of this Agreement, and the terms and provisions of the
Existing Credit Agreement, except as otherwise expressly provided herein, shall
be superseded by this Agreement.




Notwithstanding
this amendment and restatement of the Existing Credit Agreement, including
anything in this Section
1.1,
and in any related Loan Documents (as defined in the Existing Credit Agreement
and referred to herein, individually or collectively, as the “Existing Loan
Documents”), (i) all of the indebtedness, liabilities and obligations owing by
any Person under the Existing Credit Agreement shall continue as Obligations
hereunder, (ii) all of the indebtedness, liabilities and obligations owing by
any Person under the Existing Loan Documents other than the Existing Credit
Agreement shall continue under the corresponding such amended and restated Loan
Document and (iii) each of this Agreement and the Notes and any other Loan
Document (as defined herein) that is amended and restated in connection with
this Agreement is given as a substitution of, and not as a payment of, the
indebtedness, liabilities and obligations of the Borrower and the Guarantors
under the Existing Credit Agreement or any Existing Loan Document, and neither
the execution and delivery of such documents nor the consummation of any other
transaction contemplated hereunder is, or is intended to constitute, a novation
of the Existing Credit Agreement or of any of the other Existing Loan Documents
or any obligations thereunder. Upon the effectiveness of this Agreement, all
Loans owing by the Borrower and outstanding under the Existing Credit Agreement
shall continue as Loans hereunder and shall constitute advances hereunder, and
all Letters of Credit outstanding under the Existing Credit Agreement and any of
the Existing Loan Documents shall continue as Letters of Credit hereunder. On
and after the Closing Date, all outstanding Base Rate Loans (as defined in the
Existing Credit Agreement) shall continue as Base Rate Loans hereunder, all
outstanding Eurodollar Rate Loans (as
defined in the Existing Credit Agreement) shall continue as Eurodollar Rate
Loans hereunder and the Interest Periods for all Eurodollar Rate Loans
outstanding under the Existing Credit Agreement on the Effective Date shall
remain in effect without renewal, interruption or extension as Eurodollar Rate
Loans under this Agreement; provided
that if any Revolving Loans outstanding under the Existing Credit Agreement are
assigned or terminated pursuant to this Section
1.1
on a day other than the last day of an Interest Period, the Borrower shall
compensate the Lenders pursuant to Section 6.5
as if such assignment constituted a prepayment of such Loans; provided,
further
that on and after the Closing Date, the Applicable Margin and fees applicable to
Loans and Letters of Credit hereunder shall apply without regard to any margins
or fees otherwise applicable thereto under the Existing Credit Agreement prior
to the Closing Date.  




1.2.   Definitions.
For the purposes of this Agreement, in addition to the definitions set forth
above, the following terms shall have the respective meanings set forth
below:








2
















“Acquisition”
means the acquisition of (i) a controlling equity interest in another Person
(including the purchase of an option, warrant or convertible or similar type
security to acquire such a controlling interest at the time it becomes
exercisable by the holder thereof), whether by purchase of such equity interest
or upon exercise of an option or warrant for, or conversion of securities into,
such equity interest, or (ii) assets of another Person which constitute all or
substantially all of the assets of such Person or of a line or lines of business
conducted by such Person.




“Acquisition
Adjustments” means the adjustments to certain financial terms and computations
more particularly described in Section
1.4.




“Added
Lender” has the meaning set forth in Section
2.1(f).




“Advance”
means a borrowing under the Revolving Credit Facility consisting of a Base Rate
Loan or a Eurodollar Rate Loan.




“Administrative
Agent” has the meaning set forth in the -Preamble
hereto.




“Affiliate”
means any Person (i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with
the Borrower or the Parent; or (ii) which beneficially owns or holds 5% or more
of any class of the outstanding voting stock (or in the case of a Person which
is not a corporation, 5% or more of the equity interest) of the Borrower or the
Parent; or 5% or more of any class of the outstanding voting stock (or in the
case of a Person which is not a corporation, 5% or more of the equity interest)
of which is beneficially owned or held by the Borrower or the Parent. The term
“control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.




“Agent”
shall mean the Administrative Agent or the Collateral Agent, or both, as the
context shall require.




“Amendment
and Restatement” has the meaning set forth in the Recitals
hereto.




“Applicable
Commitment Percentage” means, for each Lender at any time, a fraction, with
respect to the Revolving Credit Facility and the Letter of Credit Facility, the
numerator of which shall be such Lender’s Revolving Credit Commitment and the
denominator of which shall be the Total Revolving Credit Commitment, which
Applicable Commitment Percentage for each Lender as of the Closing Date is as
set forth in Exhibit
A;
provided
that the Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in accordance
with Section
13.1
or in connection with any increase in the Total Revolving Credit Commitment
pursuant to Section
2.1(f).











3













“Applicable
Lending Office” means, for each Lender and for each Type of Loan, the “Lending
Office” of such Lender (or of an affiliate of such Lender) designated for such
Type of Loan on the signature pages hereof or such other office of such Lender
(or an affiliate of such Lender) as such Lender may from time to time specify to
the Agent and the Borrower by written notice in accordance with the terms hereof
as the office by which its Loans of such Type are to be made and
maintained.




“Applicable
Margin” means that percent per annum which shall be based upon the Consolidated
Leverage Ratio for the Four-Quarter Period most recently ended, set forth as the
Applicable Margin in the Pricing Grid and subject to further adjustment as
therein provided.




“Applications
and Agreements for Letters of Credit” means, collectively, the Applications and
Agreements for Letters of Credit, or similar documentation, executed by the
Borrower from time to time and delivered to the Issuing Bank to support the
issuance of Letters of Credit.




“Applicable
Unused Fee” means that percent per annum, based upon the Consolidated Leverage
Ratio for the Four-Quarter Period most recently ended, set forth as the
Applicable Unused Fee in the Pricing Grid and subject to further adjustment as
therein provided.




“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
affiliate of a Lender or (c) an entity or an affiliate of an entity that
administers or manages a Lender




“Assignment
and Acceptance” shall mean an Assignment and Acceptance in the form of
Exhibit
B
(with blanks appropriately filled in) delivered to the Agent in connection with
an assignment of a Lender’s interest under this Agreement pursuant to
Section
13.1.




“Authorized
Representative” means (i) with respect to matters regarding the Borrower, any of
the President, the Treasurer or any Vice President of the Borrower or, with
respect to financial matters, the chief financial officer or controller of the
Borrower, or any other Person expressly designated by the Board of Directors of
the Borrower (or the appropriate committee thereof) as an Authorized
Representative of the Borrower, as set forth from time to time in a certificate
in the form of Exhibit
C
and (ii) with respect to matters regarding the Parent or any Subsidiary of the
Parent (other than the Borrower), any of the President, the Treasurer, the
Assistant Treasurer or any Vice President of the Parent, or any of the
President, the Treasurer, the Secretary, the Assistant Treasurer, the Assistant
Secretary or any Vice President of such Subsidiary or, with respect to financial
matters, the chief financial officer or controller of the Parent or such
Subsidiary, or any other Person expressly designated by the Board of Directors
of the Parent or such Subsidiary (or the appropriate committee thereof) as an
Authorized Representative of the Parent or such Subsidiary, as set forth from
time to time in a certificate in the form of Exhibit
C.








4
















“Bank
of America” means Bank of America, N.A. and its successors.




“BAS”
means Banc of America Securities LLC and its successors.




“Base
Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
“prime rate.” The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of such
change.




“Base
Rate Loan” means a Loan for which the rate of interest is determined by
reference to the Base Rate, as elected by the Borrower.




“Base
Rate Refunding Loan” means a Base Rate Loan or Swing Line Loan made either to
(i) satisfy Reimbursement Obligations arising from a drawing under a Letter of
Credit or (ii) pay Bank of America in respect of Swing Line
Outstandings.




“Board”
means the Board of Governors of the Federal Reserve System (or any successor
body).




“Borrower’s
Account” means a demand deposit account maintained with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.




“Borrowing
Base” means 90% of the total net book value of Eligible Revenue Equipment
determined at the end of each fiscal quarter and certified by the Borrower and
the Parent in a Borrowing Base Certificate. 




“Borrowing
Base Certificate” means a certificate in the form attached hereto as
Exhibit
K
and incorporated herein by reference.




“Borrowing
Notice” means the notice delivered by an Authorized Representative in connection
with an Advance under the Revolving Credit Facility or a Swing Line Loan, in the
forms of Exhibits
D-1 and D-2,
respectively.




“Business
Day” means, (i) except as expressly provided in clause (ii), any day which is
not a Saturday, Sunday or a day on which banks in the States of New York and
North Carolina are authorized or obligated by law, executive order or
governmental decree to be closed and, (ii) with respect to the selection,
funding, interest rate, payment, and Interest Period of any Eurodollar Rate
Loan, any day which is a Business Day, as described above, and on which the
relevant international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York, New York
and Charlotte, North Carolina.








5













“Capital
Leases” means all leases which have been or should be capitalized in accordance
with GAAP as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof.




“Change
of Control” means, at any time:




(i)   any
“person” or “group” (each as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) other than David Parker, Jacqueline Parker, or Elizabeth Fuller,
or any of their lineal descendants, or any such “group” including any of them
(the “Exempt Group”) either (A) becomes the “beneficial owner” (as defined in
Rule 13d-3 of the Exchange Act ), directly or indirectly, of Voting Securities
of the Parent (or securities convertible into or exchangeable for such Voting
Securities) representing 30% or
more of the combined voting power of all Voting Securities of the Parent (on a
fully diluted basis) or (B) otherwise has the ability, directly or indirectly,
to elect a majority of the board of directors of the Parent;




(ii)   during
any period of up to 24 consecutive months, commencing on the Closing Date,
individuals who at the beginning of such 24-month period were directors of the
Parent shall cease for any reason (other than the death, disability, removal or
retirement of a director of the Parent so long as an officer of the Parent
replaces such Person as a director or such Person is replaced as a director by a
Person whose election or appointment is approved by a majority of the board of
directors at the time of such replacement) to constitute a majority of the board
of directors of the Parent;




(iii)   any
Person or two or more Persons acting in concert, other than the Exempt Group,
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the Borrower or the
Parent; or




(iv)   the
Parent shall cease to own, beneficially and of record 100% of the issued and
outstanding shares of capital stock or other equity interest of the Borrower and
each other Subsidiary of the Parent existing on the Closing Date or thereafter
acquired or organized.




“CIP”
means CIP, Inc., a Nevada corporation.




“Closing
Date” means the date as of which this Agreement is executed by the Borrower, the
Parent, the Lenders and the Agent and on which the conditions set forth in
Section
7.1
have been satisfied.




“Code”
means the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.








6













“Collateral”
means, collectively, all property of the Parent, the Borrower or any Subsidiary
of either the Parent or the Borrower, or any other Person in which the Agent or
any Lender is granted a Lien under any Security Instrument as security for all
or any portion of the Obligations or any other obligation arising under any Loan
Document.




“Collateral
Agent” means Bank of America in its capacity as Collateral Agent under each of
the Security Instruments for the benefit of the Credit Secured Parties and any
successor thereto acting in such capacity.




“Consistent
Basis” in reference to the application of GAAP means the accounting principles
observed in the period referred to are comparable in all material respects to
those applied in the preparation of the audited financial statements of the
Parent referred to as of the Closing Date in Section
8.6(a),
provided
that, on and after the approval of the Required Lenders of any change in GAAP in
accordance with Section
1.6,
“Consistent Basis” shall be deemed to include any such change.




“Consolidated
EBITDAR” means, with respect to the Parent and its Subsidiaries for any
Four-Quarter Period ending on the date of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) taxes on income, (iv) depreciation, (v) amortization, and (vi)
Consolidated Lease Payments, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis, subject to Acquisition
Adjustments.




“Consolidated
Fixed Charge Coverage Ratio” means, with respect to the Parent and its
Subsidiaries for any Four-Quarter Period ending on the date of computation
thereof, the ratio of (i) Consolidated EBITDAR for such period less
(without duplication) taxes on income paid
in cash during such period, subject to Acquisition Adjustments, to (ii) the sum
of Consolidated Fixed Charges for such period plus twenty-five percent (25%) of
Revolving Credit Outstandings as of the date of computation.




“Consolidated
Fixed Charges” means, with respect to the Parent and its Subsidiaries for any
Four-Quarter Period ending on the date of computation thereof, the sum of,
without duplication, (i) Consolidated Interest Expense for such period, (ii)
current maturities of Consolidated Indebtedness during such period, provided,
that in connection with the Permitted Receivables Securization, current
maturities thereof shall be excluded from the calculation of Consolidated Fixed
Charges unless any notice of termination has been received by the Borrower or a
mandatory amortization payment thereunder has been required, in which case, the
amount subject to such termination or amortization, as applicable, shall be
included in such calculation, and (iii) Consolidated Lease Payments for such
period, all determined on a consolidated basis in accordance with GAAP applied
on a Consistent Basis, subject to Acquisition Adjustments.




“Consolidated
Indebtedness” means all Indebtedness for Money Borrowed of the Parent and its
Subsidiaries, all determined on a consolidated basis.








7
















“Consolidated
Interest Expense” means, with respect to any period of computation thereof, the
gross interest expense of the Parent and its Subsidiaries, including without
limitation (i) the current amortized portion of debt discounts to the extent
included in gross interest expense, (ii) the current amortized portion of all
fees (including fees payable in respect of any Rate Hedging Obligation) payable
in connection with the incurrence of Indebtedness to the extent included in
gross interest expense and (iii) the portion of any payments made in connection
with Capital Leases allocable to interest expense, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent Basis,
subject to Acquisition Adjustments; provided,
however,
that Consolidated Interest Expense shall include the amount of payments in
respect of Synthetic Lease Obligations and the Permitted Receivables
Securitization that are in the nature of interest.




“Consolidated
Lease Payments” means the gross amount of all lease or rental payments, whether
or not characterized as rent, of the Parent and its Subsidiaries, excluding
payments in respect of Capital Leases constituting Indebtedness or in respect of
Synthetic Lease Obligations, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis, subject to Acquisition
Adjustments.




“Consolidated
Leverage Ratio” means, as of the date of computation thereof, the ratio of (i)
Consolidated Total Adjusted Indebtedness (determined as at such date) to (ii)
Consolidated EBITDAR (for the Four-Quarter Period ending on, (or most recently
ended prior to), such date), subject to Acquisition Adjustments. 




“Consolidated
Net Income” means, for any period of computation thereof, the gross revenues
from operations of the Parent and its Subsidiaries (including payments received
by the Parent and its Subsidiaries of (i) interest income, and (ii) dividends
and distributions made in the ordinary course of their businesses by Persons in
which investment is permitted pursuant to this Agreement and not related to an
extraordinary event), less all operating and non-operating expenses of the
Parent and its Subsidiaries including taxes on income, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent Basis; but
excluding (for all purposes other than compliance with Section
10.1(a))
as income: (i) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Parent or its
Subsidiaries, (ii) net gains on the collection of proceeds of life insurance
policies, (iii) any write-up of any asset, and (iv) any other net gain or credit
of an extraordinary nature as determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis, subject to Acquisition Adjustments.









8













“Consolidated
Shareholders’ Equity” means, as of any date on which the amount thereof is to be
determined, (i) the sum of the following in respect of the Parent and its
Subsidiaries (determined on a consolidated basis and excluding any upward
adjustment after the Closing Date due to revaluation of assets): (a) the amount
of issued and outstanding share capital, (b) the amount of additional paid-in
capital and retained earnings (or, in the case of a deficit, minus the amount of
such deficit), and (c) the amount of any foreign currency translation adjustment
(if positive, or, if negative, minus the amount of such translation adjustment),
(ii) minus the amount of any treasury stock, all as determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.




“Consolidated
Tangible Net Worth” means, as of any date on which the amount thereof is to be
determined, Consolidated Shareholders’ Equity minus the net book value of all
assets of the Parent and its Subsidiaries which would be treated as intangible
assets, such as (without limitation) goodwill (whether representing the excess
of cost over book value of assets acquired or otherwise), capitalized expenses,
unamortized debt discount and expense, consignment inventory rights, patents,
trademarks, trade names, copyrights, franchises and licenses, all as determined
on a consolidated basis in accordance with GAAP applied on a Consistent
Basis.




“Consolidated
Total Adjusted Indebtedness” means the sum of, without duplication, (i)
Consolidated Indebtedness, (ii) the amount of the present value of all future
Consolidated Lease Payments (calculated using a reasonable discount rate
acceptable to the Agent) for which the Parent or any Subsidiary of the Parent is
obligated, and (iii) all Contingent Obligations consisting of a guaranty of
Indebtedness for Money Borrowed of the Parent and its Subsidiaries, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments.




“Consolidated
Total Assets” means, as of any date on which the amount thereof is to be
determined, the net book value of all assets of the Parent and its Subsidiaries
as determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.




“Contingent
Obligation” means, as to any Person, any direct or indirect liability of that
Person with respect to any Indebtedness, lease, dividend, guaranty, letter of
credit or other obligation (each a “primary
obligation”)
of another Person (the “primary
obligor”),
whether or not contingent, (a) to purchase, repurchase or otherwise acquire any
such primary obligation or any property constituting direct or indirect security
therefor, or (b) to advance or provide funds (i) for the payment or discharge of
any such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor in respect of any such primary obligation or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of such primary obligor, or (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor thereof to
make payment of such primary obligation, or (d) otherwise to assure or hold
harmless the owner of any such primary obligation against loss or failure or
inability to perform in respect thereof. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof.








9
















“Continue”,
“Continuation”, and “Continued” shall refer to the continuation pursuant to
Section
4.2
hereof of a Eurodollar Rate Loan as a Eurodollar Rate Loan from one Interest
Period to the next Interest Period.




“Convert”,
“Conversion”, and “Converted” shall refer to a conversion pursuant to
Section
4.2
of one Type of Loan into another Type of Loan.




“Cost
of Acquisition” means, with respect to any Acquisition, as at the date of
entering into any agreement therefor, the sum
of the following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Parent or any Subsidiary of the
Parent to be transferred in connection therewith, (ii) the amount of any cash
and fair market value of other property (excluding property described in clause
(i) and the unpaid principal amount of any debt instrument) given as
consideration, (iii) the amount (determined by using the face amount or the
amount payable at maturity, whichever is greater) of any Indebtedness incurred,
assumed or acquired by the Parent or any Subsidiary of the Parent in connection
with such Acquisition, (iv) all additional purchase price amounts in the form of
earnouts and other contingent obligations that should be recorded on the
financial statements, or the footnotes thereto, of the Parent and its
Subsidiaries in accordance with GAAP, (v) all amounts paid in respect of
covenants not to compete, consulting agreements, and other affiliated contracts
in connection with such Acquisition that should be recorded on financial
statements of the Parent and its Subsidiaries in accordance with GAAP, (vi) the
aggregate fair market value of all other consideration given by the Parent or
any Subsidiary of the Parent in connection with such Acquisition, and (vii) out
of pocket transaction costs for the services and expenses of attorneys,
accountants and other consultants incurred in effecting such transaction, and
other similar transaction costs so incurred. For purposes of determining the
Cost of Acquisition for any transaction, (A) the capital stock of the Parent
shall be valued (I) in the case of capital stock that is then designated as a
national market system security by the National Association of Securities
Dealers, Inc. (“NASDAQ”) or is listed on a national securities exchange, the
average of the last reported bid and ask quotations or the last prices reported
thereon, and (II) with respect to any other shares of capital stock, as
determined by the Board of Directors of the Parent and, if requested by the
Agent, determined to be a reasonable valuation by an independent appraisal firm
reasonably acceptable to the Agent and the Parent, (B) the capital stock of any
Subsidiary of the Parent shall be valued as determined by the Board of Directors
of such Subsidiary and, if requested by the Agent, determined to be a reasonable
valuation by an independent appraisal firm reasonably acceptable to the Agent
and the Parent, and (C) with respect to any Acquisition accomplished pursuant to
the exercise of options or warrants or the conversion of securities, the Cost of
Acquisition shall include both the cost of acquiring such option, warrant or
convertible security as well as the cost of exercise or conversion.




“Credit
Parties” means, collectively, the Borrower, the Parent, each Guarantor and each
other Person granting a Lien on, or collaterally assigning, Collateral pursuant
to any Security Instrument.








10













“Credit
Secured Parties” means, collectively, the Agent, each Lender, and each affiliate
of a Lender that is party to any Swap Agreement.




“CTI”
means Covenant Transport, Inc., a Tennessee corporation, a Subsidiary of the
Parent and an Affiliate of the Borrower.




“CVTI”
means CVTI Receivables Corp., a Nevada corporation.




“Default”
means any event or condition which, with the giving or receipt of notice or
lapse of time or both, would constitute an Event of Default
hereunder.




“Default
Rate” means (i) with respect to each Eurodollar Rate Loan, until the end of the
Interest Period applicable thereto, a rate of two percent (2%) above the
Eurodollar Rate applicable to such Loan, and thereafter at a rate of interest
per annum which shall be two percent (2%) above the Base Rate, (ii) with respect
to Base Rate Loans, Swing Line Loans, Reimbursement Obligations, fees (other
than Letter of Credit facility fees set forth in Section
4.6(b)),
and other amounts payable in respect of (x) Obligations or (y) (except
as otherwise expressly provided therein) the obligations of any Credit Party
other than the Borrower under any of the other Loan Documents, a rate of
interest per annum which shall be two percent (2%) above the Base Rate, (iii)
with respect to Letter of Credit facility fees set forth in Section
4.6(b),
a rate of two percent (2%) above the Applicable Margin, and (iv) in any case,
the maximum rate permitted by applicable law, if lower.




“Defaulting
Lender” has the meaning assigned to such term in the definition of “Required
Lenders” herein.




“Direct
Foreign Subsidiary” of any Person means a Subsidiary other than a Domestic
Subsidiary of such Person a majority of whose Voting Securities, or a majority
of whose Subsidiary Securities, are owned by such Person or a Domestic
Subsidiary of such Person.




“Dollars”
and the symbol “$” means dollars constituting legal tender for the payment of
public and private debts in the United States of America.




“Domestic
Subsidiary” of any Person means any Subsidiary of such Person organized under
the laws of the United States of America, any state or territory thereof or the
District of Columbia.




“Eligible
Assignee” means (i) a Lender, (ii) an affiliate of a Lender, (iii) an Approved
Fund and (iv) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section
13.1,
the Borrower, such approval not to be unreasonably withheld (provided that the
incurrence by the Borrower of additional costs pursuant to Section
6.6
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Borrower or the Agent, and such
approval to be deemed given by the Borrower (in the absence of notice to the
contrary, effective upon receipt) within two Business Days after notice of such
proposed assignment has been provided by the assigning Lender to the Borrower;
provided,
however,
that neither the Borrower, the Parent nor an Affiliate of the Borrower or the
Parent shall qualify as an Eligible Assignee.








11













“Eligible
Revenue Equipment” means any equipment, including all tractors, trucks, trailers
and similar equipment used in the conduct of the trucking business of the Parent
and its Subsidiaries and not constituting inventory, owned by the Parent or any
Subsidiary of the Parent which (i) is subject to no Lien other than Liens
permitted by Section
10.3 (a), (b) or (c),
(ii) is in salable and good working condition, and (iii) is not stored, garaged
or permanently located at a location other than a place of business of the
Parent or any Subsidiary of the Parent.




“Eligible
Securities” means the following obligations and any other obligations previously
approved in writing by the Agent:




(a)   Government
Securities;




(b)   obligations
of any corporation organized under the laws of any state of the United States of
America or under the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following the date of
issuance thereof and rated in an investment grade rating category by S&P and
Moody’s; and




(c)   interest
bearing demand or time deposits issued by any Lender or certificates of deposit
maturing within one year from the date of issuance thereof and issued by a bank
or trust company organized under the laws of the United States or of any state
thereof having capital surplus and undivided profits aggregating at least
$400,000,000 and being rated “A” or better by S&P or “A” or better by
Moody’s. 




“Employee
Benefit Plan” means (i) any employee benefit plan, including any Pension Plan,
within the meaning of Section 3(3) of ERISA which (A) is maintained for
employees of the Parent or any of its ERISA Affiliates, or any Subsidiary of the
Parent or is assumed by the Parent or any of its ERISA Affiliates, or any
Subsidiary of the Parent in connection with any Acquisition or (B) has at any
time been maintained for the employees of the Parent, any current or former
ERISA Affiliate, or any Subsidiary of the Parent and (ii) any plan, arrangement,
understanding or scheme maintained by the Parent or any Subsidiary of the Parent
that provides retirement, deferred compensation, employee or retiree medical or
life insurance, severance benefits or any other benefit covering any employee or
former employee and which is administered under any Foreign Benefit Law or
regulated by any Governmental Authority other than the United States of
America.




“Environmental
Laws” means any federal, state or local statute, law, ordinance, code, rule,
regulation, order, decree, permit or license regulating, relating to, or
imposing liability or standards of conduct concerning, any environmental matters
or conditions, environmental protection or conservation, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization Act of
1986, as amended; the Resource Conservation and Recovery Act, as amended; the
Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the
Clean Water Act, as amended; together with all regulations promulgated
thereunder, and any other “Superfund” or “Superlien” law.








12













“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor statute and all rules and regulations promulgated
thereunder. 




“ERISA
Affiliate”, as applied to the Parent or the Borrower, respectively, means any
Person or trade or business which is a member of a group which is under common
control with the Parent or the Borrower, respectively, who together with the
Parent or the Borrower, respectively, is treated as a single employer within the
meaning of Section 414(b) and (c) of the Code.




“Eurodollar
Base Rate” means, with respect to any Eurodollar Rate Loan for the Interest
Period applicable thereto: 




(a)   the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Agent from time to time)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period; or




(b)   if
such rate referenced in the preceding clause (a) is not available at such time
for any reason, then the “Eurodollar Base Rate” for such Interest Period shall
be the rate per annum determined by the Agent to be the rate at which deposits
in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.




“Eurodollar
Rate” means the interest rate per annum calculated according to the following
formula:






	
      Eurodollar
      

      Rate
	
      =
	
      Eurodollar
      Base Rate

      1 -
      Reserve Requiremen
	
      +
	
      Applicable

      Margin




 


“Eurodollar
Rate Loan” means a Loan for which the rate of interest is determined by
reference to the Eurodollar Rate.




“Event
of Default” means any of the occurrences set forth as such in Section
11.1.




“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the regulations
promulgated thereunder.








13
















“Existing
Credit Agreement” has the meaning set forth in the Recitals
hereto.




“Existing
Letters of Credit” means those Letters of Credit described or Schedule 1.2(a)
hereto.




“Existing
Loan Documents” has the meaning set forth in the Recitals
hereto.




“Facility
Guaranties” means, collectively, the following Guaranty Agreements, as each of
the same may be amended, supplemented, amended and restated, or otherwise
modified from time to time:




(i)
that certain Amended and Restated Parent Guaranty Agreement dated as of the
Closing Date by the Parent in favor of the Agent and the Lenders, amending and
restating that certain Parent Guaranty Agreement dated as of December 13, 2000,
by the Parent in favor of the Agent and the Lenders, substantially in the form
of Exhibit
I-1
attached hereto;




(ii)
that certain Amended and Restated Subsidiary Guaranty Agreement dated as of the
Closing Date by the Guarantors other than the Parent (“Subsidiary Guarantors”)
in favor of the Agent and the Lenders, amending and restating that certain
Subsidiary Guaranty Agreement dated as of December 13, 2000, by the Subsidiary
Guarantors in favor of the Agent and the Lenders, substantially in the form of
Exhibit
I-2
attached hereto; and




(iii)
any Subsidiary Guaranty Joinder Agreement delivered to the Agent pursuant to
Section
9.19
hereof. 




“Facility
Termination Date” means such date as all of the following shall have occurred:
(a) the Borrower shall have permanently terminated the Revolving Credit Facility
and the Swing Line by payment in full of all Revolving Credit Outstandings and
Letter of Credit Outstandings and Swing Line Outstandings, together with all
accrued and unpaid interest thereon, except for the undrawn portion of Letters
of Credit as have been fully cash collateralized in a manner consistent with the
terms of Section
11.1(B),
or as to which other arrangements satisfactory to the Issuing Bank shall have
been made, (b) all Swap Agreements shall have been terminated, expired or cash
collateralized on terms acceptable to the Agent and the applicable
counterparties, (c) all Revolving Credit Commitments and Letter of Credit
Commitments shall have terminated or expired and (d) the Borrower shall have
fully, finally and irrevocably paid and satisfied in full all Obligations (other
than Obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Guarantor that may be owing to the Lenders
pursuant to the Loan Documents and expressly survive termination of this
Agreement);








14
















“FASB
133” means Statement of Financial Accounting Standards No. 133.




“Federal
Funds Rate” means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upwards, if necessary, to the nearest
1/100 of 1%) charged to the Agent (in its individual capacity) on such day on
such transactions as determined by the Agent.




“Fee
Letter” means the letter agreement, dated November 1, 2004, among the Parent,
the Borrower, the Agent and BAS.




“Fiscal
Year” means the twelve month fiscal period of the Parent and its Subsidiaries
commencing on January 1 of each calendar year and ending on December 31 of each
calendar year.




“Foreign
Benefit Law” means any applicable statute, law, ordinance, code, rule,
regulation, order or decree of any foreign nation or any province, state,
territory, protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning, any
Employee Benefit Plan.




“Four-Quarter
Period” means a period of four full consecutive fiscal quarters of the Parent
and its Subsidiaries, taken together as one accounting period.




“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.




“GAAP”
or “Generally Accepted Accounting Principles” means generally accepted
accounting principles, being those principles of accounting set forth in
pronouncements of the Financial Accounting Standards Board, the American
Institute of Certified Public Accountants, or which have other substantial
authoritative support and are applicable in the circumstances as of the date of
a report.




“Government
Securities” means direct obligations of, or obligations the timely payment of
principal and interest on which are fully and unconditionally guaranteed by, the
United States of America.








15
















“Governmental
Authority” shall mean any Federal, state, municipal, national or other
governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.




“Guarantors”
means, at any date, the Parent, CTI, and all other Subsidiaries of
the Parent at such date who have executed and delivered a Facility Guaranty and
related documents at such date as required hereunder.




“Hazardous
Material” means and includes any pollutant, contaminant, or hazardous, toxic or
dangerous waste, substance or material (including without limitation petroleum
products, asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or emission of
which is subject to any Environmental Law.




“Increased
Commitment Date” has the meaning set forth in Section
2.1(f).




“Increasing
Lender” has the meaning set forth in Section
2.1(f).




“Indebtedness”
means as to any Person, without duplication, (a) all Indebtedness for Money
Borrowed of such Person, (b) all Rate Hedging Obligations of such Person, (c)
all indebtedness secured by any Lien on any property or asset owned or held by
such Person regardless or whether the indebtedness secured thereby shall have
been assumed by such Person or is non-recourse to the credit of such Person, and
(d) all Contingent Obligations of such Person, including all such items incurred
by any partnership or joint venture as to which such Person is liable as a
general partner or joint venturer.




“Indebtedness
for Money Borrowed” means with respect to any Person, without duplication, all
indebtedness in respect of money borrowed, including without limitation, all
obligations under Capital Leases, all
amounts outstanding under Permitted Receivables Securitizations,
all Synthetic Lease Obligations, all Subordinated Indebtedness, the deferred
purchase price of any property or services, the aggregate face amount of all
surety bonds, letters of credit, and bankers’ acceptances, and (without
duplication) all payment and reimbursement obligations in respect thereof
whether or not matured, evidenced by a promissory note, bond, debenture or
similar written obligation for the payment of money (including reimbursement
agreements and conditional sales or similar title retention agreements),
including all such items incurred by any partnership or joint venture as to
which such Person is liable as a general partner or joint venturer, other than
trade payables and accrued expenses incurred in the ordinary course of
business.











16













“Interest
Period” means, for each Eurodollar Rate Loan, a period commencing on the date
such Eurodollar Rate Loan is made or Converted or Continued and ending, at the
Borrower’s option, on the date one, two, three or six months thereafter as
notified to the Agent by the Authorized Representative in accordance with the
terms hereof; provided
that,




(a)   if
an Interest Period for a Eurodollar Rate Loan would end on a day which is not a
Business Day, such Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest Period to end in the
succeeding calendar month, in which case such Interest Period shall end on the
next preceding Business Day); and




(b)   any
Interest Period which begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month.




“Interest
Rate Selection Notice” means the written notice delivered by an Authorized
Representative in connection with the election of a subsequent Interest Period
for any Eurodollar Rate Loan or the Conversion of any Eurodollar Rate Loan into
a Base Rate Loan or the Conversion of any Base Rate Loan into a Eurodollar Rate
Loan, in the form of Exhibit
E.




“Issuing
Bank” means initially Bank of America and thereafter any Lender which succeeds
Bank of America as issuer of Letters of Credit under Article
III.




“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).




“Letter
of Credit” means a standby letter of credit issued by the Issuing Bank pursuant
to Article
III
hereof for the account of the Borrower (or the Borrower and any Subsidiary of
the Parent) in favor of a Person advancing credit or securing an obligation on
behalf of the Borrower or any Subsidiary of the Parent and shall include the
Existing Letters of Credit.




“Letter
of Credit Commitment” means, with respect to each Lender, the obligation of such
Lender to acquire Participations in respect of Letters of Credit and
Reimbursement Obligations up to an aggregate amount at any one time outstanding
equal to such Lender’s Applicable Commitment Percentage of the Total Letter of
Credit Commitment, as the same may be increased or decreased from time to time
pursuant to this Agreement.











17













“Letter
of Credit Facility” means the facility described in Article
III
hereof providing for the issuance by the Issuing Bank for the account of the
Borrower of Letters of Credit in an aggregate stated amount at any time
outstanding not exceeding the Total Letter of Credit Commitment minus
outstanding Reimbursement Obligations.




“Letter
of Credit Outstandings” means, as of any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Reimbursement Obligations then outstanding. For purposes of
computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with
Section
1.5.
For all purposes of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be
drawn.




“Licensing
Agreements” means, collectively, each written license agreement, in form and
substance satisfactory to the Agent, by and among the Borrower or any other
Credit Party, as licensee, and CIP, as licensor, pursuant to which the Borrower
or such Credit Party or Parties will have the right to use all trademarks, trade
names, goodwill, rights under certain license agreements regarding source code,
internally developed software, and certain know-how conducive to the operation
of a trucking company, and shall pay royalties to CIP, in connection with such
use in amounts established by such license agreement, including but not limited
to that certain Intellectual Property License and Services Agreement dated
October 1, 1999 by and between CIP, as licensor, and CTI, as licensee, and that
certain Intellectual Property License and Services Agreement dated October 1,
1999 by and between CIP, as licensor, and Southern Refrigerated Transport, Inc.,
as licensee.




“Lien”
means any interest in property securing any obligation owed to, or a claim by, a
Person other than the owner of the property, whether such interest is based on
the common law, statute or contract, and including but not limited to the lien
or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. For the purposes of this Agreement, the Parent and any
Subsidiary of the Parent shall be deemed to be the owner of any property which
it has acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has been
retained by or vested in some other Person for security purposes.

“Loan”
or Loans” means any of the Revolving Loans or the Swing Line Loans.




“Loan
Documents” means this Agreement, the Notes, the Security Instruments, the
Facility Guaranties, the Applications and Agreements for Letters of Credit and
all Subordination Agreements, and all other instruments and documents heretofore
or hereafter executed or delivered to or in favor of any Lender (including the
Issuing Bank) or the Agent or the Collateral Agent in connection with the Loans
made and transactions contemplated under this Agreement, but excluding documents
or instruments evidencing Swap Agreements, as the same may be amended,
supplemented or replaced from the time to time.








18
















“Material
Adverse Effect” means a material adverse effect on (i) the business, properties,
operations, prospects or condition, financial or otherwise, of the Parent and
its Subsidiaries taken as a whole, (ii) the ability of any Credit Party to pay
or perform its respective obligations, liabilities and indebtedness under the
Loan Documents as such payment or performance becomes due in accordance with the
terms thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or enforceability
thereof.




“Moody’s”
means Moody’s Investors Service, Inc.




“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to
which the Borrower or any ERISA Affiliate is making, or is accruing an
obligation to make, contributions or has made, or been obligated to make,
contributions within the preceding six (6) Fiscal Years.




“Notes”
means, collectively, the Swing Line Note and the Revolving Notes.




“Obligations”
means the obligations, liabilities and Indebtedness of the Borrower with respect
to (i) the principal and interest on the Loans as evidenced by the Notes, (ii)
the Reimbursement Obligations and otherwise in respect of the Letters of Credit,
(iii) all liabilities of the Borrower or the Parent to any Lender (or any
affiliate of any Lender) which arise under a Swap Agreement, and (iv) the
payment and performance of all other obligations, liabilities and Indebtedness
of the Borrower to the Lenders (including the Issuing Bank), the Agent, the
Collateral Agent or BAS hereunder, under any one or more of the other Loan
Documents or with respect to the Loans.




“Operating
Documents” means with respect to any corporation, limited liability company,
partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, the bylaws, operating
agreement, partnership agreement, limited partnership agreement or other
applicable documents relating to the operation, governance or management of such
entity.




“Organizational
Action” means with respect to any corporation, limited liability company,
partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, any corporate, organizational
or partnership action (including any required shareholder, member or partner
action), or other similar official action, as applicable, taken by such
entity.




“Organizational
Documents” means with respect to any corporation, limited liability company,
partnership, limited partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of limited
partnership or other applicable organizational or charter documents relating to
the creation of such entity.








19













“Outstandings”
means, collectively, at any date, the Letter of Credit Outstandings, Swing Line
Outstandings and Revolving Credit Outstandings on such date.




“Participant”
has the meaning set forth in Section
13.1(d).




“Participation”
means, (i) with respect to any Lender (other than the Issuing Bank) and a Letter
of Credit, the extension of credit represented by the participation of such
Lender hereunder in the liability of the Issuing Bank in respect of a Letter of
Credit issued by the Issuing Bank in accordance with the terms hereof and (ii)
with respect to any Lender (other than Bank of America) and a Swing Line Loan,
the extension of credit represented by the participation of such Lender
hereunder in the liability of Bank of America in respect of a Swing Line Loan
made by Bank of America in accordance with the terms hereof.




“PBGC”
means the Pension Benefit Guaranty Corporation and any successor
thereto.




“Pension
Plan” means any employee pension benefit plan within the meaning of Section 3(2)
of ERISA, other than a Multiemployer Plan, which is subject to the provisions of
Title IV of ERISA or Section 412 of the Code and which (i) is maintained for
employees of the Parent or the Borrower or any of their respective ERISA
Affiliates or is assumed by the Parent or the Borrower or any of their
respective ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Parent or the Borrower or any
current or former ERISA Affiliate.




“Permitted
Receivables Securitization” means limited recourse or nonrecourse sales and
assignments of accounts receivable of the Borrower or any Subsidiary of the
Parent to one or more special purpose entities, in connection with the issuance
of obligations by such special purpose entities secured by such accounts, the
proceeds of the issuance of which obligations shall be made available to the
Borrower or such Subsidiary of the Parent, as applicable, all pursuant to the
terms and conditions of the Receivables Purchase Agreement.




“Permitted
Share Repurchases” means purchases by the Parent of the common stock of the
Parent made on the open market, on terms acceptable to the Agent and in
compliance with applicable regulations, which purchases in the aggregate shall
be subject to the limitations set forth in Section 10.8.




“Person”
means an individual, partnership, corporation, limited liability company,
limited liability partnership, trust, unincorporated organization, association,
joint venture or a government or agency or political subdivision
thereof.




“Pledge
Agreements” means, collectively, the following Pledge Agreements, as each of the
same may be amended, supplemented (including by Pledge Agreement Supplement),
amended and restated, or otherwise modified from time to time:








20
















(i)
that certain Third Amended and Restated Parent Stock Pledge and Security
Agreement dated as of the Closing Date by the Parent in favor of the Collateral
Agent, for
the ratable benefit of the Credit Secured Parties, amending and restating that
certain Second Amended and Restated Parent Stock Pledge and Security Agreement
dated as of December 13, 2000 by the Parent in favor of the Collateral Agent,
substantially in the form of Exhibit
J-1
attached hereto;




(ii)
that certain Third Amended and Restated Guarantor Stock Pledge and Security
Agreement dated as of the Closing Date by CTI in favor of the Collateral
Agent, for
the ratable benefit of the Credit Secured Parties, amending and restating that
certain Second Amended and Restated Guarantor Stock Pledge and Security
Agreement dated as of December 13, 2000 by CTI in favor of the Collateral Agent,
substantially in the form of Exhibit
J-2
attached hereto;




(iii)
any additional Pledge Agreement delivered to the Collateral Agent pursuant to
Article
V
or Section
9.19
hereof, substantially in the form attached hereto as Exhibit
J-1
(with appropriate conforming changes); 




(iv)
any Pledge Joinder Agreement delivered to the Collateral Agent by any Subsidiary
of the Parent pursuant to the provisions of Article V
or Section
9.19
hereof (with appropriate conforming changes); and




(v)
with respect to any Subsidiary Securities issued by a Direct Foreign Subsidiary
of the Parent or the Borrower, any additional or substitute charge, agreement,
document, instrument or conveyance, in form and substance acceptable to the
Agent and the Collateral Agent, conferring under applicable foreign law upon the
Collateral Agent for the ratable benefit of the Credit Secured Parties a Lien
upon such Subsidiary Securities as are owned by the Parent, the Borrower or any
Domestic Subsidiary of the Parent or the Borrower.




“Pledge
Agreement Supplement” means, with respect to each Pledge Agreement, each Pledge
Agreement Supplement substantially in the form affixed as an Exhibit to such
Pledge Agreement.




“Pledge
Joinder Agreement” means, with respect to each Pledge Agreement, the Pledge
Joinder Agreement, substantially in the form affixed as an Exhibit to such
Pledge Agreement.











21













“Pledged
Interests” means the Subsidiary Securities required to be pledged as Collateral
pursuant to Article
V
or Section
9.19
or the terms of any Pledge Agreement.




“Pricing
Grid” means:







	
      Tier
	
      Consolidated
      Leverage

      Ratio
	
      Applicable

      Margin
	
      Applicable

      Unused

      Fee

	 	 	 	 
	
      I
	
      Greater
      than or equal to

      2.50
      to 1.00
	
      1.25%
	
      0.25%

	 	 	 	 
	
      II
	
      Less
      than 2.50 to 1.00 and 

      Greater
      than or equal to

      2.00
      to 1.00
	
      1.00%
	
      0.20%

	 	 	 	 
	
      III
	
      Less
      than 2.00 to 1.00
	
      0.75%
	
      0.15%




 

The
Applicable Margin and Applicable Unused Fee shall be established at the end of
each fiscal quarter of the Parent (each, a “Determination Date”). Any change in
the Applicable Margin or Applicable Unused Fee following each Determination Date
shall be determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 9.1(a)(ii)
and Section 9.1(b)(ii),
subject to review and approval of such computations by the Agent, and shall be
effective commencing on the fifth Business Day following the date such
certificate is received until the fifth Business Day following the date on which
a new certificate is delivered or is required to be delivered, whichever shall
first occur. From the Closing Date to the fifth Business Day following the date
the certificate referred to in the preceding sentence for the fiscal period
ended as at the first Determination Date to occur after the Closing Date is
delivered or is required to be delivered (whichever shall first occur), the
Applicable Margin and Applicable Unused Fee shall be Tier II. Notwithstanding
the provisions of the two preceding sentences, if the Borrower shall fail to
deliver any such certificate within the time period required by Section 9.1,
then the Applicable Margin and Applicable Unused Fee shall be Tier I from the
date such certificate was due until the fifth Business Day following the date
the appropriate certificate is so delivered.





“Principal
Office” means the principal office of Bank of America, presently located at 101
North Tryon Street, 15th
Floor, NC1-001-15-04, Charlotte, North Carolina 28255, Attention: Agency
Services, or such other office and address as the Agent may from time to time
designate.








22
















“Rate
Hedge Value” means, with respect to each contract, instrument or other
arrangement creating a Rate Hedging Obligation, the net obligations of the
Borrower, the Parent, or any Subsidiary of the Parent thereunder equal to the
termination value thereof as determined in accordance with its provisions (if
such Rate Hedging Obligation has been terminated) or the mark to market value
thereof as determined on the basis of available quotations from any recognized
dealer in, or from Bloomberg or other similar service providing market
quotations for, the applicable Rate Hedging Obligation (if such Rate Hedging
Obligation has not been terminated).




“Rate
Hedging Obligations” means, without duplication, any and all obligations of the
Borrower, the Parent or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all agreements, devices or arrangements designed to protect at
least one of the parties thereto from the fluctuations of interest rates,
exchange rates or forward rates,
including
fuel prices, applicable
to such party’s assets, liabilities or exchange transactions, including, but not
limited to, Dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate “swap” agreements and forward
fuel purchase contracts, commitments, or options; (ii) all other “derivative
instruments” as defined in FASB 133 and which are subject to the reporting
requirements of FASB 133; and (iii) any and all cancellations, buybacks,
reversals, terminations or assignments of any of the foregoing. For purposes of
any computation hereunder, each Rate Hedging Obligation shall be valued at the
Rate Hedge Value thereof.




“Receivables
Purchase Agreement” means, collectively, (i) that certain Receivables Purchase
Agreement dated as of December 12, 2000 by and among CTI, as an Originator,
Southern Refrigerated Transport, Inc., as an Originator, and CVTI, as Purchaser,
and (ii) that certain Loan Agreement dated as of December 12, 2000 by and among
CVTI, as Borrower, the Parent, as Master Servicer, Three Pillars Funding
Corporation, as Lender, and SunTrust Equitable Securities Corporation, as
Administrator, each as amended to date.




“Regulation
D” means Regulation D of the Board as the same may be amended or supplemented
from time to time.




“Reimbursement
Obligation” shall mean at any time, the obligation of the Borrower with respect
to any Letter of Credit to reimburse the Issuing Bank and the Lenders to the
extent of their respective Participations (including by the receipt by the
Issuing Bank of proceeds of Loans pursuant to Section
2.1(c)(iii))
for amounts theretofore paid by the Issuing Bank pursuant to a drawing under
such Letter of Credit.











23













“Required
Lenders” means, as of any date, Lenders on such date having Credit Exposures (as
defined below) aggregating (i) if there shall be fewer than three (3) Lenders,
100% of the aggregate Credit Exposures of all Lenders on such date, and (ii) if
there shall be three (3) or more Lenders,
more
than 50% of the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the “Credit
Exposure”
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its Revolving
Credit Commitment, and (b) following the occurrence and during the continuance
of an Event of Default, to the sum of (i) the aggregate principal amount of such
Lender’s Applicable Commitment Percentage of Revolving Credit Outstandings plus
(ii) the amount of such Lender’s Applicable Commitment Percentage of Letter of
Credit Outstandings and Swing Line Outstandings; provided
that, for the purpose of this definition only, (A) if any Lender shall have
failed to fund its Applicable Commitment Percentage of any Advance (each such
Lender, and each Lender set forth in clauses (B) and (C) below a “Defaulting
Lender”), then the Revolving Credit Commitment of such Lender shall be deemed
reduced by the amount it so failed to fund for so long as such failure shall
continue and such Lender’s Credit Exposure attributable to such failure shall be
deemed held by any Lender making more than its Applicable Commitment Percentage
of such Advance to the extent it covers such failure, (B) if any Lender shall
have failed to pay to the Issuing Bank upon demand its Applicable Commitment
Percentage of any drawing under any Letter of Credit resulting in an outstanding
Reimbursement Obligation (whether by funding its Participation therein or
otherwise), such Lender’s Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such Lender
shall pay such deficiency amount to the Issuing Bank together with interest
thereon as provided in Section
4.9
and (C) if any Lender shall have failed to pay to Bank of America on demand its
Applicable Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender’s Credit Exposure attributable
to all Swing Line Outstandings shall be deemed to be held by Bank of America
until such Lender shall pay such deficiency amount to Bank of America together
with interest thereon as provided in Section
4.9.




“Reserve
Requirement” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar
Rate Loan shall be adjusted automatically as of the effective date of any change
in the Reserve Requirement.











24













“Restricted
Payment” means (a) any dividend or other distribution, direct or indirect, on
account of any shares of any class of stock of the Parent or any Subsidiary
Securities (other than those payable or distributable solely to the Parent, or
those payable or distributable to a Subsidiary of the Parent which are
subsequently paid or distributed by such Subsidiary to the Parent, provided that
any amount received by the Parent and not used to finance a Permitted Share
Repurchase within thirty (30) days of its receipt shall be contributed as
capital to the Borrower, other than amounts used by the Parent to make cash
dividend payments as permitted by Section
10.8)
now or hereafter outstanding, except a dividend payable solely in shares of a
class of stock or equity interest to the holders of that class; (b) any
redemption, conversion, exchange, retirement or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of
stock of the Parent or any Subsidiary Securities (other than those payable or
distributable solely to the Parent) now or hereafter outstanding; (c) any
payment made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock of Parent or any
Subsidiary Securities of its Subsidiaries now or hereafter outstanding; and (d)
any issuance and sale of Subsidiary Securities of any Subsidiary of the Parent
or of the Borrower, (or any option, warrant or right to acquire such stock)
other than in the case of Subsidiaries of the Borrower, to the Borrower or
another of its Subsidiaries and in the case of any other Subsidiaries of the
Parent, to the Parent or one of its Subsidiaries.




“Revolving
Credit Commitment” means, with respect to each Lender, the obligation of such
Lender to make Revolving Loans to the Borrower up to an aggregate principal
amount at any one time outstanding equal to such Lender’s Applicable Commitment
Percentage of the Total Revolving Credit Commitment.




“Revolving
Credit Facility” means the facility described in Section
2.1
hereof providing for Loans to the Borrower by the Lenders in the aggregate
principal amount of the Total Revolving Credit Commitment.




“Revolving
Credit Outstandings” means, as of any date of determination, the aggregate
principal amount of all Revolving Loans then outstanding.




“Revolving
Credit Termination Date” means (i) the Stated Termination Date or (ii) such
earlier date of termination of Lenders’ obligations pursuant to Section
11.1
upon the occurrence of an Event of Default, or (iii) such date as the Borrower
may voluntarily and permanently terminate the Revolving Credit Facility by
payment in full of all Revolving Credit Outstandings, Swing Line Outstandings
and Letter of Credit Outstandings and cancellation of all Letters of Credit,
together with all accrued and unpaid interest thereon.




“Revolving
Loan” means any borrowing pursuant to an Advance under the Revolving Credit
Facility in accordance with Section
2.1.











25













“Revolving
Notes” means, collectively, the promissory notes of the Borrower evidencing
Revolving Loans executed and delivered to the Lenders as provided in
Section
2.3
substantially in the form of Exhibit
F-1,
with appropriate insertions as to amounts, dates and names of
Lenders.




“S&P”
means Standard & Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc.




“Security
Instruments” means, collectively, the Pledge Agreements, and all other
agreements (including control agreements), instruments and other documents,
whether now existing or hereafter in effect, pursuant to which the Borrower, the
Parent or any Subsidiary of the Parent or of the Borrower or other Person shall
grant or convey to the Collateral Agent for the benefit of the Credit Secured
Parties a Lien in, or any other Person shall acknowledge any such Lien in,
property as security for all or any portion of the Obligations or any other
obligation under any Loan Document, as any of them may be amended, modified or
supplemented from time to time.




“Servicing
Agreements” means, collectively, each written servicing agreement, in form and
substance acceptable to the Agent, by and between Covenant.com, Inc. and the
Borrower and certain other Credit Parties pursuant to which Covenant.com, Inc.
provides management information system services to such entities in return for a
fee determined by such servicing agreement.




“Solvent”
means, when used with respect to any Person, that at the time of
determination:





(a)      the
fair value of its assets (both at fair valuation and at present fair saleable
value on an orderly basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and




(b)      it is
then able and expects to be able to pay its debts as they mature;
and




(c)      it has
capital sufficient to carry on its business as conducted and as proposed to be
conducted.



“Stated
Termination Date” means December 16, 2009.




“Subordinated
Indebtedness” means, (i) as at the Closing Date, Indebtedness for Money Borrowed
then outstanding of the Borrower or any Guarantor which is subject to a
Subordination Agreement or otherwise is fully subordinated in writing on terms
acceptable to the Agent and the Required Lenders to the Obligations and, as
applicable, other obligations of the Credit Parties under the Loan Documents,
and (ii) from and after the Closing Date, in addition, such other Indebtedness
for Money Borrowed of the Borrower or any Guarantor permitted to be incurred
hereunder and which is subject to a Subordination Agreement or otherwise is
fully subordinated in writing on terms acceptable to the Agent and the Required
Lenders to the Obligations and, as applicable, other obligations of the Credit
Parties under the Loan Documents.








26













“Subordination
Agreement” means a Subordination Agreement in form and substance satisfactory to
the Agent and the Required Lenders, executed and delivered by the Borrower or
any Guarantor which has issued Subordinated Indebtedness and by the holder or
holders of such Subordinated Indebtedness. 




“Subsidiary”
of any Person means any corporation or other entity in which more than 50% of
its outstanding Voting Securities or more than 50% of all equity interests is
owned directly or indirectly by such Person, and/or by one or more of such
Person’s Subsidiaries, and when used in this Agreement without reference to such
Person shall include both a Subsidiary of the Parent and a Subsidiary of the
Borrower; provided,
however,
that each of CVTI and Volunteer Insurance Limited shall only be included as a
Subsidiary of the Parent in the references to “Subsidiary” or “Subsidiaries”
included in Sections
8.1(a) and (b), 8.4
(except for the last sentence thereof), 8.8,
8.9, 8.10, 9.1(f) and (g), 9.3, 9.4, 9.6, 9.7, 9.8, 9.9, 9.11, 9.12 and
10.14.




“Subsidiary
Guaranty Joinder Agreement” means, with respect to the Facilities Guaranty set
forth in clause (iii) of the definition thereof each Subsidiary Guaranty Joinder
Agreement substantially in the form of Exhibit I-2 attached hereto (with
appropriate conforming changes) thereof attached to such Facilities
Guaranty.




“Subsidiary
Securities” means the shares of capital stock or the other equity interests
issued by or equity participations in any Subsidiary of the Borrower or of the
Parent (excluding CVTI and Volunteer Insurance Limited, and specifically
including the capital stock of the Borrower, all of which is owned by the
Parent), whether or not constituting a “security” under Article 8 of the Uniform
Commercial Code as in effect in any jurisdiction.




“Swap
Agreement” means one or more agreements between the Borrower, the Parent and any
Person, on terms mutually acceptable to the Borrower, the Parent and such Person
and approved by the Required Lenders, which agreements create Rate Hedging
Obligations; provided,
however,
that no such approval of the Lenders shall be required to the extent such
agreements are entered into between the Borrower, the Parent and any Lender or
any affiliate of any Lender.




“Swing
Line” means the revolving line of credit established by Bank of America in favor
of the Borrower pursuant to Section
2.4.




“Swing
Line Loans” means loans made by Bank of America to the Borrower pursuant to
Section
2.4.




“Swing
Line Note” means the promissory note of the Borrower evidencing the Swing Line
executed and delivered to Bank of America as provided in Section
2.3
substantially in the form of Exhibit
F-2.




“Swing
Line Outstandings” means, as of any date of determination, the aggregate
principal amount of all Swing Line Loans then outstanding.








27
















“Synthetic
Lease Obligations” means generally all monetary obligations of a lessee under
any tax retention or other synthetic leases which is treated as an operating
lease under GAAP but the liabilities under which are or would be characterized
as indebtedness of such Person for tax purposes or upon the insolvency of such
Person. The amount of Synthetic Lease Obligations in respect of any synthetic
lease at any date of determination thereof shall be equal to the aggregate
purchase price of any property subject to such lease less the aggregate amount
of payments of rent theretofore made which reduce the lessee’s obligations under
such synthetic lease and which are not the financial equivalent of
interest.




“Termination
Event” means: (i) a “Reportable Event” described in Section 4043 of ERISA and
the regulations issued thereunder (unless the notice requirement has been waived
by applicable regulation); or (ii) the withdrawal of the Parent or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4062(e) of ERISA; or (iii) the termination of a Pension Plan, the filing
of a notice of intent to terminate a Pension Plan or the treatment of a Pension
Plan amendment as a termination under Section 4041 of ERISA; or (iv) the
institution of proceedings to terminate a Pension Plan by the PBGC; or (v) any
other event or condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan; or (vi) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan; or (vii) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA; or (viii) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA, respectively; or
(ix) any event or condition which results in the termination of a Multiemployer
Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings
to terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any event
or condition with respect to any Employee Benefit Plan which is regulated by any
Foreign Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan’s authority to operate
under the applicable Foreign Benefit Law.




“Total
Letter of Credit Commitment” means an amount not to exceed
$75,000,000.




“Total
Revolving Credit Commitment” means a principal amount equal to $150,000,000, as
reduced from time to time in accordance with Section
2.1(e)
and as increased from time to time in accordance with Section
2.1(f)




“Transplace.com”
means Transplace.com, LLC, an Affiliate of the Parent.




“Type”
shall mean any type of Loan (i.e., a Base Rate Loan or a Eurodollar Rate Loan).




“Uniform
Commercial Code” means the Uniform Commercial Code as in effect in any
applicable jurisdiction.




“Volunteer
Insurance Limited” means Volunteer Insurance Limited, a Cayman Islands
corporation.




“Voting
Securities” means shares of capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.












28














1.3.   Rules
of Interpretation.


 

    (a)     All
accounting terms not specifically defined herein shall have the meanings
assigned to such terms and shall be interpreted in accordance with GAAP applied
on a Consistent Basis.




(b)     Each term
defined in Articles 1, 8 or 9 of the Tennessee Uniform Commercial Code shall
have the meaning given therein unless otherwise defined herein, except to the
extent that the Uniform Commercial Code of another jurisdiction is controlling,
in which case such terms shall have the meaning given in the Uniform Commercial
Code of the applicable jurisdiction.




(c)     The headings,
subheadings and table of contents used herein or in any other Loan Document are
solely for convenience of reference and shall not constitute a part of any such
document or affect the meaning, construction or effect of any provision
thereof.




(d)     Except as
otherwise expressly provided, references in any Loan Document to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and schedules are
references to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules in or to such Loan Document.




(e)     All
definitions set forth herein or in any other Loan Document shall apply to the
singular as well as the plural form of such defined term, and all references to
the masculine gender shall include reference to the feminine or neuter gender,
and vice versa, as the context may require.




(f)     When used
herein or in any other Loan Document, words such as “hereunder”, “hereto”,
“hereof” and “herein” and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of the applicable document
and not to any particular article, section, subsection, paragraph or clause
thereof.




(g)     References to
“including” means including without limiting the generality of any description
preceding such term, and such term shall not limit a general statement to
matters similar to those specifically mentioned.




(h)     Except as
otherwise expressly provided, all dates and times of day specified herein shall
refer to such dates and times at Charlotte, North Carolina.




(i)     Whenever
interest rates or fees are established in whole or in part by reference to a
numerical percentage expressed as “___%”, such arithmetic expression shall be
interpreted in accordance with the convention that 1% = 100 basis points.











29













(j)     Each of the parties
to the Loan Documents and their counsel have reviewed and revised, or requested
(or had the opportunity to request) revisions to, the Loan Documents, and any
rule of construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the Loan
Documents and all exhibits, schedules and appendices thereto.




(k)     Any reference to an
officer of the Borrower or the Parent or any other Person by reference to the
title of such officer shall be deemed to refer to each other officer of such
Person, however titled, exercising the same or substantially similar
functions.




(l)     All references to any
agreement or document as amended, modified or supplemented, or words of similar
effect, shall mean such document or agreement, as the case may be, as amended,
modified or supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.






1.4.   Accounting
for Acquisitions.




    With respect
to any Acquisition consummated on or after the Closing Date and prior to the
Facility Termination Date, the following shall apply:




(a)    For
each of the four Four-Quarter Periods ending next following the date of such
Acquisition, (i) Consolidated EBITDAR shall include the results of operations of
the Person or assets so acquired on a historical pro forma basis and which
amounts may include such adjustments as are permitted under Regulation S-X of
the Securities and Exchange Commission and reasonably satisfactory to the Agent
but (ii) for purposes of determining compliance with the provisions of
Section
10.1(a),
any increase in Consolidated Net Income resulting solely from such pro forma
treatment of such Acquisition shall be disregarded; and




(b)    For
each of the four Four-Quarter Periods ending next following the date of each
Acquisition, Consolidated Fixed Charges shall include the results of operations
of the Person or assets so acquired, which amounts shall be determined on a
historical pro forma basis, provided, however, Consolidated Interest Expense
shall be adjusted on a historical pro forma basis to (i) eliminate interest
expense accrued during such period on any Indebtedness repaid in connection with
such Acquisition and (ii) include interest expense on any Indebtedness
(including Indebtedness hereunder) incurred, acquired or assumed in connection
with such Acquisition (“Incremental Debt”) calculated (x) as if all such
Incremental Debt had been incurred as of the first day of such Four-Quarter
Period and (y) at the following interest rates: (I) for all periods subsequent
to the date of the Acquisition and for Incremental Debt assumed or acquired in
the Acquisition and in effect prior to the date of Acquisition, at the actual
rates of interest applicable thereto, and (II) for all periods prior to the
actual incurrence of such Incremental Debt, equal to the average daily rate of
interest actually applicable to such Incremental Debt hereunder or under other
financing documents applicable thereto as at the end of each affected
Four-Quarter Period, as the case may be.








30
















1.5.   Letter
of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time
shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided,
however,
that with respect to any Letter of Credit that, by its terms or the terms of any
Application and Agreement for Letter of Credit related thereto, provides for one
or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.




1.6.   Changes
in GAAP.
If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Agent, the Lenders and the Borrower
shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.








31













ARTICLE
II




The
Credit Facilities




2.1.   Revolving
Loans.




(a)   Commitment.
Subject to the terms and conditions of this Agreement, each Lender severally
agrees to make Advances to the Borrower under the Revolving Credit Facility from
time to time from the Closing Date until the Revolving Credit Termination Date
on a pro rata basis as to the total borrowing requested by the Borrower on any
day determined by such Lender’s Applicable Commitment Percentage up to but not
exceeding the Revolving Credit Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no obligation to
make any such Advance (i) so long as a Default or an Event of Default has
occurred and is continuing or (ii) if the Agent has accelerated the maturity of
any of the Notes as a result of an Event of Default; provided
further, however, that immediately after giving effect to each such Advance, the
amount of Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings shall not exceed the lesser of (A) the Total Revolving
Credit Commitment or (B) the Borrowing Base. Within such limits and subject to
the other terms and conditions of this Agreement, the Borrower may borrow, repay
and reborrow under the Revolving Credit Facility on a Business Day from the
Closing Date until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date.




(b)   Amounts.
Except as otherwise permitted by the Lenders from time to time, the amount of
Revolving Credit Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings shall not exceed at any time the lesser of (i) the Total Revolving
Credit Commitment or (ii) the Borrowing Base, and, in the event there shall be
outstanding any such excess, the Borrower shall immediately make such payments
and prepayments as shall be necessary to comply with this restriction. Each
Advance under the Revolving Credit Facility, other than Base Rate Refunding
Loans, shall be in an amount of at least $1,000,000, and, if greater than
$1,000,000, an integral multiple of $1,000,000.

 

          
(c)            
Advances.

 

(i)   An
Authorized Representative shall give the Agent (1) irrevocable telephonic notice
of each Eurodollar Rate Loan (whether representing an additional borrowing or
the Continuation of a borrowing hereunder or the Conversion of a borrowing
hereunder from a Base Rate Loan to a Eurodollar Rate Loan) prior to 10:30 A.M.
on the date three Business Days prior to the day of such proposed Loan and (2)
irrevocable telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans and automatic Conversions to the extent the same are effected
without notice pursuant to Section
2.1(c)(iii)
and Article
VI
respectively, and whether representing an additional borrowing hereunder or the
Conversion of borrowing hereunder from Eurodollar Rate Loans to Base Rate Loans)
prior to 10:30 A.M. on the day of such proposed Revolving Loan. Each such notice
shall be effective upon receipt by the Agent, shall specify the amount of the
borrowing, the type of Revolving Loan (Base Rate or Eurodollar Rate), the date
of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used in
the computation of interest. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions; provided,
that failure to provide such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice or Interest Rate
Selection Notice, as the case may be, together with the amount of each Lender’s
portion of an Advance requested thereunder, shall be provided by the Agent to
each Lender by telefacsimile transmission with reasonable promptness, but
(provided the Agent shall have received such notice by 10:30 A.M.) not later
than 1:00 P.M. on the same day as the Agent’s receipt of such
notice.








32
















(ii)   Not
later than 2:00 P.M. on the date specified for each borrowing under this
Section
2.1,
each Lender shall, pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be made by it on such
day available by wire transfer to the Agent in the amount of its pro rata share,
determined according to such Lender’s Applicable Commitment Percentage of the
Revolving Loan or Revolving Loans to be made on such day. Such wire transfer
shall be directed to the Agent at the Principal Office and shall be in the form
of Dollars constituting immediately available funds. The amount so received by
the Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to the Borrower’s
Account or otherwise as shall be directed in the applicable Borrowing Notice by
the Authorized Representative and reasonably acceptable to the
Agent.




(iii)   Notwithstanding
the foregoing, if a drawing is made under any Letter of Credit, such drawing is
honored by the Issuing Bank, and the Borrower shall not immediately fully
reimburse the Issuing Bank in respect of such drawing from other funds available
to the Borrower, (A) provided that the conditions to making a Revolving Loan as
herein provided shall then be satisfied, the Reimbursement Obligation arising
from such drawing shall be paid to the Issuing Bank by the Agent without the
requirement of notice to or from the Borrower from immediately available funds
which shall be advanced as a Base Rate Refunding Loan to the Agent at its
Principal Office by each Lender under the Revolving Credit Facility in an amount
equal to such Lender’s Applicable Commitment Percentage of such Reimbursement
Obligation, and (B) if the conditions to making a Revolving Loan as herein
provided shall not then be satisfied, each of the Lenders shall fund by payment
to the Agent (for the benefit of the Issuing Bank) at its Principal Office in
immediately available funds the purchase from the Issuing Bank of their
respective Participations in the related Reimbursement Obligation based on their
respective Applicable Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of Credit in accordance
with the terms thereof and the Borrower shall not immediately reimburse the
Issuing Bank in respect thereof, then notice of such drawing or payment shall be
provided promptly by the Issuing Bank to the Agent and the Agent shall provide
notice to each Lender by telephone or telefacsimile transmission. If notice to
the Lenders of a drawing under any Letter of Credit is given by the Agent at or
before 12:00 noon on any Business Day, each Lender shall either make a Base Rate
Refunding Loan or fund the purchase of its Participation as specified above in
the amount of such Lender’s Applicable Commitment Percentage of such drawing or
payment and shall pay such amount to the Agent for the account of the Issuing
Bank at the Principal Office in Dollars and in immediately available funds
before 2:30 P.M. on the same Business Day. If such notice to the Lenders is
given by the Agent after 12:00 noon on any Business Day, each Lender shall
either make such Base Rate Refunding Loan or fund such purchase before 12:00
noon on the next following Business Day.











33













(d)   Repayment
of Revolving Loans.
The principal amount of each Revolving Loan shall be due and payable to the
Agent for the benefit of each Lender in full on the Revolving Credit Termination
Date, or earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any Business Day, upon (A)
at least three (3) Business Days’ irrevocable telephonic notice in the case of
each Revolving Loan that is a Eurodollar Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 10:30 A.M. and (B)
irrevocable telephonic notice in the case of each Revolving Loan that is a Base
Rate Loan from an Authorized Representative (effective upon receipt) to the
Agent prior to 10:30 A.M. on the day of such proposed repayment. The Authorized
Representative shall provide the Agent written confirmation of each such
telephonic notice but failure to provide such confirmation shall not effect the
validity of such telephonic notice. All prepayments of Revolving Loans made by
the Borrower shall be in the amount of $1,000,000 or such greater amount which
is an integral multiple of $1,000,000, or the amount equal to all Revolving
Credit Outstandings, or such other amount as necessary to comply with
Section
2.1(b).




(e)   Reductions.
The Borrower shall, by notice from an Authorized Representative, have the right
from time to time but not more frequently than once each calendar month, upon
not less than three (3) Business Days’ written notice to the Agent, effective
upon receipt, to reduce the Total Revolving Credit Commitment. The Agent shall
give each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice, or telephonic notice (confirmed in writing), of such
reduction. Each such reduction shall be in the aggregate amount of $2,000,000 or
such greater amount which is in an integral multiple of $1,000,000, or the
entire remaining Total Revolving Credit Commitment, and shall permanently reduce
the Total Revolving Credit Commitment. Each reduction of the Total Revolving
Credit Commitment shall be accompanied by payment of the Loans or Swing Line
Loans to the extent that the principal amount of Revolving Credit Outstandings
plus Letter of Credit Outstandings plus Swing Line Outstandings exceeds the
Total Revolving Credit Commitment after giving effect to such reduction,
together with accrued and unpaid interest on the amounts prepaid provided that,
after the foregoing payments, if Letter of Credit Outstandings then still exceed
the Total Revolving Credit Commitment as reduced, the Borrower shall deposit
cash with the Agent in an amount equal to the amount of any such excess Letter
of Credit Outstandings, as collateral security for the repayment of any future
drawing or payments under such Letters of Credit.




(f)   Increases.




(i)   The
Borrower shall have the right, without the consent of the Lenders, subject to
the terms of this Section
2.1(f),
to effectuate from time to time, at any time prior to the then effective
Revolving Credit Termination Date, an increase in the Total Revolving Credit
Commitment under this Agreement by adding to this Agreement one or more banks or
other financial institutions acceptable to the Agent and who otherwise qualify
as Eligible Assignees, who shall, upon completion of the requirements of this
Section
2.1(f)
constitute a “Lender” or “Lenders” hereunder (each an “Added Lender”), or by
allowing one or more Lenders in their sole discretion to increase their
respective Revolving Credit Commitment hereunder (each an “Increasing Lender”),
so that such increased Revolving Credit Commitments shall equal the increase in
the Total Revolving Credit Commitment effectuated pursuant to this Section
2.1(f);
provided
that (i) the aggregate increased Revolving Credit Commitment or added Revolving
Credit Commitment to be effected shall be in an amount not less than
$10,000,000, and, if greater than $10,000,000, an integral multiple of
$5,000,000, (ii) no increase in or added Revolving Credit Commitments pursuant
to this Section
2.1(f)
shall result in the Total Revolving Credit Commitment exceeding $200,000,000,
(iii) the Borrower shall first offer to the then existing Lenders the right to
commit to any such increase in Revolving Credit Commitments, but no Lender’s
Revolving Credit Commitment shall be increased under this Section
2.1(f)
without the consent of such Lender, (iv) there shall not exist any Default or
Event of Default immediately prior to and immediately after giving effect to
such increased or added Commitment, (v) there shall not at any prior time have
been any reduction of the Total Revolving Credit Commitment pursuant to
Section
2.1(e)
and (vi) no increase in or added Revolving Credit Commitment shall increase the
Total Letter of Credit Commitments or the amount of Swing Line Loan Outstandings
permitted by Section
2.4(a)(ii).
The Borrower shall deliver or pay, as applicable, to the Agent not later than
ten (10) Business Days prior to any such increase in the Total Revolving Credit
Commitment each of the following items with respect to each Added Lender and
Increasing Lender:








34
















(A)   a
written notice of Borrower’s intention to increase the Total Revolving Credit
Commitment pursuant to this Section
2.1(f),
which shall specify each Added Lender and Increasing Lender, if any, the changes
in amounts of Revolving Credit Commitments that will result, and such other
information as is reasonably requested by the Agent;




(B)   documents
in the form of Exhibit
L
or Exhibit
M,
as may be required by the Agent, executed and delivered by each Added Lender and
each Increasing Lender, pursuant to which it becomes a party hereto or increases
its Revolving Credit Commitment, as the case may be;




(C)   if
requested by the applicable Lender, Notes or replacement Notes, as the case may
be, executed and delivered by Borrower; and




(D)   a
non-refundable processing fee of $3,500 with respect to each Added Lender or
Increasing Lender for the sole account of the Agent.




(ii)   Upon
receipt of any notice referred to in clause (i)(A) above, the Agent shall
promptly notify each Lender thereof. Upon execution and delivery of such
documents and the payment of such fee (the “Increased Commitment Date”), each
such Added Lender shall constitute a “Lender” for all purposes under this
Agreement and related documents without any acknowledgment by or the consent of
the other Lenders, with a Revolving Credit Commitment as specified in such
documents, or such Lender’s Revolving Credit Commitment shall increase as
specified in such documents, as the case may be. Immediately upon the
effectiveness of the addition of such Added Lender or the increase in the
Revolving Credit Commitment of such Increasing Lender under this Section
2.1(f),
(i) the respective Applicable Commitment Percentages of the Lenders shall be
deemed modified as appropriate to correspond to such changed Total Revolving
Credit Commitment, and (ii) if there are at such time outstanding any Revolving
Credit Outstandings, each Lender whose Applicable Commitment Percentage has been
decreased as a result of the increase in the Total Revolving Credit Commitment
shall be deemed to have assigned, without recourse, to each Added Lender and
Increasing Lender such portion of such Lender’s Revolving Credit Outstandings as
shall be necessary to effectuate such adjustment in Applicable Commitment
Percentages. Each
Increasing Lender and Added Lender (i) shall be deemed to have assumed such
portion of such Revolving Credit Outstandings and (ii) shall fund to each other
Lender on the Increased Commitment Date the amount of Revolving Credit
Outstandings assigned to it by such Lender. The Borrower agrees to pay to the
Lenders on demand any and all amounts resulting from break funding charges to
the extent payable pursuant to this Agreement as a result of any such prepayment
of Revolving Credit Outstandings occasioned by the foregoing increase in
Revolving Credit Commitments and the reallocation of the Applicable Commitment
Percentages.




(iii)   This
section shall supercede any provisions in Section
13.1
and 13.6
to the contrary.








35
















2.2.   Use
of Proceeds.
The proceeds of the Loans made pursuant to the Revolving Credit Facility
hereunder shall be used by the Borrower for: (i) general working capital needs,
capital expenditures, and other corporate purposes, including the making of
Acquisitions permitted hereunder, (ii) to refinance all Indebtedness outstanding
under the Existing Credit Agreement, (iii) to make loans, dividends or other
distributions to the Parent, which will use such proceeds as permitted herein,
including without limitation Permitted Share Repurchases, and (iv) to make loans
and advances to any Guarantor.




2.3.   Notes.




(a)   Revolving
Notes.
Revolving Loans made by each Lender shall be evidenced by the Revolving Note
payable to the order of such Lender in the respective amount of its Applicable
Commitment Percentage of the Total Revolving Credit Commitment, which Revolving
Note shall be dated the Closing Date or a later date pursuant to an Assignment
and Acceptance and shall be duly completed, executed and delivered by the
Borrower.




(b)   Swing
Line Note.
The Swing Line Outstandings shall be evidenced by a separate Swing Line Note
payable to the order of the Bank of America in the amount of the Swing Line,
which Note shall be dated the Closing Date and shall be duly completed, executed
and delivered by the Borrower.




2.4.   Swing
Line.
(a) Notwithstanding any other provision of this Agreement to the contrary, in
order to administer the Revolving Credit Facility in an efficient manner and to
minimize the transfer of funds between the Agent and the Lenders, Bank of
America shall make available Swing Line Loans to the Borrower prior to the
Revolving Credit Termination Date. Bank of America shall not be obligated to
make any Swing Line Loan pursuant hereto (i) if to the actual knowledge of Bank
of America the Borrower is not in compliance with all the conditions to the
making of Revolving Loans set forth in this Agreement, (ii) if after giving
effect to such Swing Line Loan, the Swing Line Outstandings exceed $10,000,000,
or (iii) if after giving effect to such Swing Line Loan, the sum of the Swing
Line Outstandings, Revolving Credit Outstandings and Letter of Credit
Outstandings exceeds the lesser of (i) the Borrowing Base or (ii) the Total
Revolving Credit Commitment. Each Swing Line Loan shall mature, and the
principal amount thereof, together with any accrued interest thereon, shall be
payable (if not previously prepaid) in full to Bank of America on the tenth
Business Day after such Swing Line Loan is made. The Borrower may, subject to
the conditions set forth in the preceding sentence, borrow, repay and reborrow
under this Section
2.4.
Unless notified to the contrary by Bank of America, borrowings under the Swing
Line shall be made in the minimum amount of $500,000 or, if greater, in amounts
which are integral multiples of $100,000, or in the amount necessary to effect a
Base Rate Refunding Loan, upon written request by telefacsimile transmission,
effective upon receipt, by an Authorized Representative of the Borrower made to
Bank of America not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the borrowing
and the date of borrowing, and shall be in the form of Exhibit
D-2,
with appropriate insertions. Unless notified to the contrary by Bank of America,
each repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $100,000 or the aggregate amount of all Swing Line Outstandings.
Notwithstanding the foregoing, the dollar amounts set forth in this Section
2.4
in regards to minimum and integral amounts to borrow, and the maturity of
principal payments are otherwise subject to autoborrow arrangements mutually
agreed to by the Agent and the Borrower.








36
















(b)   The
interest payable on Swing Line Loans is solely for the account of Bank of
America. Swing Line Loans shall bear interest solely at the Base Rate. All
accrued and unpaid interest on Swing Line Loans shall be payable on the dates
and in the manner provided in Section
4.3
with respect to interest on Base Rate Loans, and the Swing Line Loans shall
accrue interest at the Default Rate in such circumstances as set forth in
Section
4.3.




(c)   Upon
the making of a Swing Line Loan in accordance with the terms hereof, each Lender
shall be deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender’s Applicable Commitment Percentage of such
Swing Line Loan. Upon demand made by Bank of America, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to Bank of America its purchase price therefor in an amount
equal to its Participation therein. Any Advance made by a Lender pursuant to
demand of Bank of America of the purchase price of its Participation shall when
made be deemed to be (i) provided that the conditions to making Revolving Loans
shall be satisfied, a Base Rate Refunding Loan under Section
2.1,
and (ii) in all other cases, the funding by each Lender of the purchase price of
its Participation in such Swing Line Loan. The obligation of each Lender to so
provide its purchase price to Bank of America shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event.




(d)   The
Borrower, at its option and subject to the terms hereof, may request an Advance
pursuant to Section
2.1
in an amount sufficient to repay Swing Line Outstandings on any date and the
Agent shall provide from the proceeds of such Advance to Bank of America the
amount necessary to repay such Swing Line Outstandings (which Bank of America
shall then apply to such repayment) and credit any balance of the Advance in
immediately available funds in the manner directed by the Borrower pursuant to
Section
2.1(c)(ii).
The proceeds of such Advances shall be paid to Bank of America for application
to the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in
full.








37













ARTICLE
III




Letters
of Credit




3.1.   Letters
of Credit.
The Issuing Bank agrees, subject to the terms and conditions of this Agreement,
upon request of the Borrower to issue from time to time for the account of the
Borrower (or the Borrower and any Subsidiary of the Parent) Letters of Credit
upon delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided,
that (i) the Issuing Bank shall not be obligated to issue (or renew) any Letter
of Credit if it has been notified by the Agent or has actual knowledge that a
Default or Event of Default has occurred and is continuing, (ii) the Letter of
Credit Outstandings shall not exceed the Total Letter of Credit Commitment and
(iii) no Letter of Credit shall be issued (or renewed) if, after giving effect
thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall exceed the lesser of (i) the Borrowing Base or
(ii) the Total Revolving Credit Commitment. No Letter of Credit shall have an
expiry date (including all rights of the Borrower or any beneficiary named in
such Letter of Credit to require renewal) or payment date occurring later than
the earlier to occur of one year after the date of its issuance or the seventh
Business Day prior to the Stated Termination Date.




3.2.   Reimbursement
and Participations.




(a)   The
Borrower hereby unconditionally agrees to pay to the Issuing Bank immediately on
demand at the Principal Office all amounts required to pay all drafts drawn or
purporting to be drawn under the Letters of Credit and all reasonable expenses
incurred by the Issuing Bank in connection with the Letters of Credit, and in
any event and without demand to place in possession of the Issuing Bank (which
shall include Advances under the Revolving Credit Facility if permitted by
Section
2.1
and Swing Line Loans if permitted by Section
2.4)
sufficient funds to pay all debts and liabilities arising under any Letter of
Credit. The Issuing Bank agrees to give the Borrower prompt notice of any
request for a draw under a Letter of Credit. The Issuing Bank may charge any
account the Borrower may have with it for any and all amounts the Issuing Bank
pays under a Letter of Credit, plus charges and reasonable expenses as from time
to time agreed to by the Issuing Bank and the Borrower; provided that to the
extent permitted by Section
2.1(c)(iii)
and Section
2.4,
amounts shall be paid pursuant to Advances under the Revolving Credit Facility
or, if the Borrower shall elect, by Swing Line Loans. The Borrower agrees to pay
the Issuing Bank interest on any Reimbursement Obligations not paid when due
hereunder at the Default Rate.




(b)   In
accordance with the provisions of Section
2.1(c),
the Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such
drawing.




(c)   Each
Lender (other than the Issuing Bank) shall automatically acquire on the date of
issuance thereof in accordance with the terms hereof, a Participation in the
liability of the Issuing Bank in respect of each Letter of Credit in an amount
equal to such Lender’s Applicable Commitment Percentage of such liability, and
to the extent that the Borrower is obligated to pay the Issuing Bank under
Section
3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank, its Applicable Commitment Percentage of the
liability of the Issuing Bank under such Letter of Credit in the manner and with
the effect provided in Section
2.1(c)(iii).








38













(d)   Simultaneously
with the making of each payment by a Lender to the Issuing Bank pursuant to
Section
2.1(c)(iii)(B),
such Lender shall, automatically and without any further action on the part of
the Issuing Bank or such Lender, acquire a Participation in an amount equal to
such payment (excluding the portion thereof constituting interest accrued prior
to the date the Lender made its payment) in the related Reimbursement Obligation
of the Borrower. Each Lender’s obligation to make payment to the Agent for the
account of the Issuing Bank pursuant to Section
2.1(c)(iii)
and Section
3.2(c),
and the right of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall be
made without any offset, abatement, withholding or reduction whatsoever. In the
event the Lenders have purchased Participations in any Reimbursement Obligation
as set forth above, then at any time payment (in fully collected, immediately
available funds) of such Reimbursement Obligation, in whole or in part, is
received by the Issuing Bank from the Borrower, the Issuing Bank shall promptly
pay to each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.




(e)   Promptly
following the end of each calendar quarter, the Issuing Bank shall deliver to
the Agent a notice describing the aggregate undrawn amount of all Letters of
Credit at the end of such quarter. Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to the Agent, and the Agent shall deliver
to such Lender, any other information reasonably requested by such Lender with
respect to each Letter of Credit outstanding.




(f)   The
issuance by the Issuing Bank of each Letter of Credit shall, in addition to the
conditions precedent set forth in Article
VII,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of the Issuing Bank
with respect to similar letters of credit, and the Borrower shall have executed
and delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with such
practices and procedures and shall not be in conflict with any of the express
terms herein contained. All Letters of Credit shall be issued pursuant to and
subject to the ISP.




(g)   The
Borrower agrees that the Issuing Bank may, in its sole discretion, accept or
pay, as complying with the terms of any Letter of Credit, any drafts or other
documents otherwise in order which may be signed or issued by an administrator,
executor, trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, liquidator, receiver, attorney in fact or other legal
representative of a party who is authorized under such Letter of Credit to draw
or issue any drafts or other documents.




(h)   Without
limiting the generality of the provisions of Section
13.9,
the Borrower hereby agrees to indemnify and hold harmless the Issuing Bank, each
other Lender, the Agent and the Collateral Agent from and against any and all
claims and damages, losses, liabilities, reasonable costs and expenses which the
Issuing Bank, such other Lender, the Agent or the Collateral Agent may incur (or
which may be claimed against the Issuing Bank, such other Lender, the Agent or
the Collateral Agent) by any Person by reason of or in connection with the
issuance or transfer of or payment or failure to pay under any Letter of Credit;
provided that the Borrower shall not be required to indemnify the Issuing Bank,
any other Lender, the Agent or the Collateral Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
(i) of any direct as opposed to consequential or exemplary, damages suffered by
the Borrower which the Borrower proves were caused by the Issuing Bank’s willful
misconduct or gross negligence or (ii) caused by the failure of the Issuing Bank
to pay under any Letter of Credit after the presentation to it of a request for
payment strictly complying with the terms and conditions of such Letter of
Credit, unless such payment is prohibited by any law, regulation, court order or
decree. The indemnification and hold harmless provisions of this Section
3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date, the Facility Termination Date and expiration or termination of
this Agreement.








39













(i)   Without
limiting Borrower’s rights as set forth in Section
3.2(h),
the obligation of the Borrower to immediately reimburse the Issuing Bank for
drawings made under Letters of Credit and the Issuing Bank’s right to receive
such payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrower shall be performed strictly in accordance with the
terms of this Agreement and such Letters of Credit and the related Application
and Agreement for any Letter of Credit, under all circumstances whatsoever,
including the following circumstances:




(i)   any
lack of validity or enforceability of the Letter of Credit, the obligation
supported by the Letter of Credit or any other agreement or instrument relating
thereto (collectively, the “Related LC Documents”); 




(ii)   any
amendment or waiver of or any consent to or departure from all or any of the
Related LC Documents; 




(iii)   the
existence of any claim, setoff, defense (other than the defense of payment in
accordance with the terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee of a Letter of
Credit (or any persons or entities for whom any such beneficiary or any such
transferee may be acting), the Agent, the Collateral Agent, the Lenders or any
other Person, whether in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction; 




(iv)   any
breach of contract or other dispute between the Borrower and any beneficiary or
any transferee of a Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent, the Lenders or any
other Person;




(v)   any
draft, statement or any other document presented under the Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever so long
as any such document appeared to comply with the terms of the Letter of
Credit;




(vi)   any
payment by the Issuing Bank under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the Issuing Bank under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any federal bankruptcy law; 




(vii)   the
existence, character, quality, quantity, condition, value, or delivery
(including the time, place, manner or order thereof) of property described or
purportedly described in documents presented in connection with any Letter of
Credit or the existence, nature or extent of any insurance relating thereto;












40













(viii)   any
delay, extension of time, renewal, compromise or other indulgence or
modification granted or agreed to by the Agent, with or without notice to or
approval by the Borrower in respect of any of Borrower’s Obligations;
or




(ix)   any
other circumstance or happening whatsoever where the Issuing Bank has acted in
good faith, whether or not similar to any of the foregoing.











41













ARTICLE
IV




Eurodollar
Funding, Fees, and Payment Conventions




4.1.   Interest
Rate Options.
Eurodollar Rate Loans and Base Rate Loans may be outstanding at the same time
and, so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the option to elect the Type of Loan and the
duration of the initial and any subsequent Interest Periods and to Convert
Revolving Loans in accordance with Sections
2.1(c)(i)
and 4.2,
as applicable; provided,
however,
(a) there shall not be outstanding at any one time Eurodollar Rate Loans having
more than eight (8) different Interest Periods, (b) each Eurodollar Rate Loan
(including each Conversion into and each Continuation as a Eurodollar Rate Loan)
shall be in an amount of $1,000,000 or, if greater than $1,000,000, an integral
multiple of $1,000,000, and (c) no Eurodollar Rate Loan shall have an Interest
Period that extends beyond the Stated Termination Date. If the Agent does not
receive a Borrowing Notice or an Interest Rate Selection Notice giving notice of
election of the duration of an Interest Period or of Conversion of any Loan to
or Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
Sections
2.1(c)(i)
and 4.2,
as applicable, the Borrower shall be deemed to have elected to obtain or Convert
such Loan to (or Continue such Loan as) a Base Rate Loan until the Borrower
notifies the Agent in accordance with Section
4.2.
The Borrower shall not be entitled to elect to Continue any Loan as or Convert
any Loan into a Eurodollar Rate Loan if a Default or Event of Default shall have
occurred and be continuing.




4.2.   Conversions
and Elections of Subsequent Interest Periods.
Subject to the limitations set forth in the definition of “Interest Period” and
in Section
4.1
and Article
VI,
the Borrower may:




(a)   upon
delivery of telephonic notice to the Agent (which shall be irrevocable) on or
before 10:30 A.M. on any Business Day, Convert any Eurodollar Rate Loan to a
Base Rate Loan, having a Base Rate as elected by the Borrower, on the last day
of the Interest Period for such Eurodollar Rate Loan; and




(b)   provided
that no Default or Event of Default shall have occurred and be continuing, upon
delivery of telephonic notice to the Agent (which shall be irrevocable on or
before 10:30 A.M. three (3) Business Days’ prior to the date of such Conversion
or Continuation:




(i)   elect
a subsequent Interest Period for any Eurodollar Rate Loan to begin on the last
day of the then current Interest Period for such Eurodollar Rate Loan;
or




(ii)   Convert
any Base Rate Loan to a Eurodollar Rate Loan on any Business Day.











42













Each
such notice shall be effective upon receipt by the Agent, shall specify the
amount of the Eurodollar Rate Loan affected, and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, shall be provided by the
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Agent shall have received such notice by 10:30 A.M.) not later
than 1:00 P.M. on the same day as the Agent’s receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.




4.3.   Payment
of Interest.
The Borrower shall pay interest on the outstanding and unpaid principal amount
of each Revolving Loan, commencing on the first date of such Revolving Loan
until such Revolving Loan shall be repaid, at the applicable Base Rate or
Eurodollar Rate as designated by the Borrower in the related Borrowing Notice or
Interest Rate Selection Notice or as otherwise provided hereunder. Interest on
each Revolving Loan shall be paid on the earlier of (a) in the case of any Base
Rate Loan, quarterly in arrears of the last Business Day of each December,
March, June and September, commencing on December 31, 2004, until the Revolving
Credit Termination Date, at which date the entire principal amount of and all
accrued interest on the Revolving Loans shall be paid in full, (b) in the case
of any Eurodollar Rate Loan, on last day of the applicable Interest Period for
such Eurodollar Rate Loan and if such Interest Period extends for more than
three (3) months, at intervals of three (3) months after the first day of such
Interest Period, and (c) upon payment in full of the related Revolving Loan;
provided,
however,
that if any Event of Default shall occur and be continuing, all amounts
outstanding hereunder shall bear interest thereafter until paid in full at the
Default Rate.




4.4.   Prepayments
of Eurodollar Rate Loans.
Whenever any payment of principal shall be made in respect of any Revolving Loan
hereunder, whether at maturity, on acceleration, by optional or mandatory
prepayment or as otherwise required or permitted hereunder, with the effect that
any Eurodollar Rate Loan shall be prepaid in whole or in part prior to the last
day of the Interest Period applicable to such Eurodollar Rate Loan, such payment
of principal shall be accompanied by the additional payment, if any, of accrued
and unpaid interest thereon, and as required by Section
6.5.




4.5.   Manner
of Payment.
(a) Each payment of principal (including any prepayment) and payment of interest
and fees, and any other amount required to be paid by or on behalf of the
Borrower to the Lenders, the Issuing Bank, the Agent, the Collateral Agent, or
Bank of America with respect to any Revolving Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the Agent at the
Principal Office (or, as applicable, to the Collateral Agent) in Dollars in
immediately available funds without condition or deduction for any setoff,
recoupment, deduction or counterclaim on or before 12:30 P.M. on the date such
payment is due. The Agent may, but shall not be obligated to, debit the amount
of such payment from any one or more ordinary deposit accounts of the Borrower
with the Agent.








43
















(b)   Any
payment made by or on behalf of the Borrower that is not made both in Dollars in
immediately available funds and prior to 12:30 P.M. on the date such payment is
to be made shall constitute a non-conforming payment. Any such non-conforming
payment shall not be deemed to be received until the later of (i) the time such
funds become available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as otherwise
provided herein. Interest shall continue to accrue at the Default Rate on any
principal or fees as to which no payment or a non-conforming payment is made
from the date such amount was due and payable until the later of (i) the date
such funds become available funds or (ii) the next Business Day.




(c)   In
the event that any payment hereunder or under any of the Notes or any other Loan
Document becomes due and payable on a day other than a Business Day, then such
due date shall be extended to the next succeeding Business Day unless provided
otherwise under the definition of “Interest Period”; provided,
however, that interest and applicable fees shall continue to accrue during the
period of any such extension; and provided
further, however, that in no event shall any such due date be extended beyond
the Revolving Credit Termination Date.




4.6.   Fees. 
  




(a)   Unused
Fee.
For the period beginning on the Closing Date and ending on the Revolving Credit
Termination Date, the Borrower agrees to pay to the Agent, for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, an
unused fee equal to the Applicable Unused Fee multiplied by the average daily
amount by which the Total Revolving Credit Commitment exceeds the sum of (i)
Revolving Credit Outstandings without giving effect to Swing Line Outstandings
plus (ii) Letter of Credit Outstandings. Such fees shall be due in arrears on
the last Business Day of each December, March, June, and September, commencing
on December 31, 2004, to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion.




(b)   Letter
of Credit Facility Fees.
The Borrower shall pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a fee on the aggregate amount
available to be drawn (without taking into account any automatic increase in
stated amount as set forth in Section
1.5)
on each outstanding Letter of Credit at a rate equal to the Applicable Margin.
Such fees shall be due and payable with respect to each Letter of Credit
quarterly in arrears on the last day of each December, March, June and September
and on the Revolving Credit Termination Date, the first such payment to be made
on the first such date occurring after the Closing Date; provided,
however,
that if any Event of Default shall occur and be continuing, all fees due
hereunder shall accrue thereafter until paid in full at the Default
Rate.




(c)   Letter
of Credit Fronting and Administrative Fees.
The Borrower shall pay to the Issuing Bank a fronting fee of one-eighth of one
percent (1/8 %) per annum on the initial
aggregate amount available to be drawn on each outstanding Letter of Credit,
such fee to be due and payable in full with respect to each Letter of Credit on
the quarterly date established in Section
4.6(b)
for the payment of Letter of Credit facility fees next following the date of
issuance (or renewal) of such Letter of Credit. The Borrower shall also pay to
the Issuing Bank such administrative fee and other fees, if any, in connection
with the Letters of Credit in such amounts and at such times as the Issuing Bank
and the Borrower shall agree from time to time.








44













(d)   Agent
Fees.
The Borrower agrees to pay to the Agent, for the Agent’s individual account, an
annual Agent’s fee, such fee to be payable in such amounts and at such dates as
agreed to in the Fee Letter.




4.7.      Pro
Rata Payments.
Except as otherwise specified herein, (a) each payment on account of the
principal of and interest on Loans, the fees described in Sections
4.6(a)
and 4.6(b),
and Swing Line Loans and Reimbursement Obligations as to which the Lenders have
funded their respective Participations which remain outstanding, shall be made
to the Agent for the account of the Lenders pro rata based on their Applicable
Commitment Percentages, and (b) the Agent will promptly distribute to the
Lenders in immediately available funds payments received in fully collected,
immediately available funds from the Borrower.




4.8.   Computation
of Rates and Fees.
Interest on all Base Rate Loans computed by reference to the prime rate shall be
computed on the basis of a year of 365/366 days and calculated for actual days
elapsed. Except as provided above, all interest rates (including each Eurodollar
Rate and the Default Rate) and fees shall be computed on the basis of a year of
360 days and calculated for actual days elapsed.




4.9.   Deficiency
Advances; Failure to Purchase Participations.
No Lender shall be responsible for any default of any other Lender in respect to
such other Lender’s obligation to make any Loan or Advance hereunder or to fund
its purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of Section
4.10,
in the event any Lender shall fail to advance funds to the Borrower as herein
provided, the Agent may in its discretion, but shall not be obligated to,
advance under the applicable Note in its favor as a Lender all or any portion of
such amount or amounts (each, a “deficiency advance”) and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such Advance under its Note;
provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance (together with interest thereon as provided in
clause (ii)) shall be paid by such Lender and (ii) upon payment to the Agent
from such other Lender of the entire outstanding amount of each such deficiency
advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to the Agent by a Borrower on each Loan
comprising the deficiency advance at the Federal Funds Rate, then such payment
shall be credited against the applicable Note of the Agent in full payment of
such deficiency advance and such Borrower shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by such Borrower thereon, provided further, in no event shall any deficiency
advance by the Agent in any particular instance constitute an obligation on the
Agent to advance any subsequent deficiency advances. In the event any Lender
shall fail to fund its purchase of a Participation after notice from the Issuing
Bank or Bank of America as the Swing Line lender, as applicable, such Lender
shall pay to the Issuing Bank or Bank of America as the Swing Line lender, as
applicable, such amount on demand, together with interest at the Federal Funds
Rate on the amount so due from the date of such notice to the date such purchase
price is received by the Issuing Bank or Bank of America as the Swing Line
lender, as applicable.








45
















4.10.   Intraday
Funding.
Without limiting the provisions of Section
4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that the Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:




(i)   if
the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Agent the amount of such assumed payment made available to such
Lender, together with interest thereon in respect of each day from and including
the date such amount was made available by the Agent to such Lender to the date
such amount is repaid to the Agent at the Federal Funds Rate; and




(ii)   if
any Lender failed to make such payment, the Agent shall be entitled to recover
such corresponding amount forthwith upon the Agent’s demand therefor, the Agent
promptly shall notify the Borrower, and the Borrower shall promptly pay such
corresponding amount to the Agent in immediately available funds upon receipt of
such demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Borrower to the date such
corresponding amount is recovered by the Agent, (A) from such Lender at a rate
per annum equal to the daily Federal Funds Rate or (B) from the Borrower, at a
rate per annum equal to the interest rate applicable to the Loan which includes
such corresponding amount. Until the Agent shall recover such corresponding
amount together with interest thereon, such corresponding amount shall
constitute a deficiency advance within the meaning of Section
4.9.
Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by such
Lender hereunder. 








46













ARTICLE
V




Security




5.1.   Security.
As security for the full and timely payment and performance of all Obligations,
the Borrower shall, and shall cause all other Credit Parties to, on or before
the Closing Date, do or cause to be done all things necessary in the opinion of
the Agent and its counsel to grant to the Collateral Agent for the benefit of
the Credit Secured Parties a duly perfected first priority security interest in
all Collateral subject to no prior Lien or other encumbrance or restriction on
transfer (other than restrictions on transfer imposed by applicable securities
laws). 




5.2.   Pledged
Stock.
Without limiting the generality of Section
5.1,
the Parent and each other Guarantor having rights in any Subsidiary Securities
shall on the Closing Date deliver to the Collateral Agent, in form and substance
satisfactory to the Agent and the Collateral Agent, (A) a Pledge Agreement which
shall pledge to the Collateral Agent for the benefit of the Credit Secured
Parties (i) 65% of the Voting Securities of each Direct Foreign Subsidiary (or
if the Parent or any of its Subsidiaries shall own less than 65%, then all of
the Voting Securities owned by them) and 100% of the other Subsidiary Securities
of such Direct Foreign Subsidiary, and (ii) all of the Subsidiary Securities of
all Domestic Subsidiaries of the Parent, (B) if such Subsidiary Securities are
in the form of certificated securities, such certificated securities, together
with undated stock powers or other appropriate transfer documents endorsed in
blank pertaining thereto, (C) if such Subsidiary Securities do not constitute
securities and the Subsidiary has not elected to have such interests treated as
securities under Article 8 of the Uniform Commercial Code, a control agreement
sufficient to confer control (within the meaning of Section 9-106 of the Uniform
Commercial Code), and (D) Uniform Commercial Code financing statements
reflecting the Lien in favor of the Collateral Agent on such Subsidiary
Securities, each in form and substance acceptable to the Agent and the
Collateral Agent, and shall take such further action and deliver or cause to be
delivered such further documents as required by the Security Instruments or
otherwise as the Collateral Agent or the Agent may request to effect the
transactions contemplated by this Article
V.
The Borrower and the Parent shall, and shall cause each of their Subsidiaries
to, pledge to the Collateral Agent for the benefit of the Credit Secured Parties
(and as appropriate to reaffirm its prior pledge of) all of the Subsidiary
Securities which may be issued or acquired after the Closing Date, and to
deliver to the Collateral Agent all of the documents and instruments in
connection therewith as are required pursuant to the terms of Section
9.19
and of the Security Instruments.




5.3.   Further
Assurances.
At the request of the Agent or the Collateral Agent, the Borrower will or will
cause all other Credit Parties, as the case may be, to execute, by its duly
authorized officers, alone or with the Agent or the Collateral Agent, any
certificate, instrument, financing statement, control agreement, statement or
document, or to procure any such certificate, instrument, statement or document,
or to take such other action (and pay all connected costs) which the Agent or
the Collateral Agent reasonably deems necessary from time to time to create,
continue or preserve the Liens in Collateral (and the perfection and priority
thereof) of the Collateral Agent contemplated hereby and by the other Loan
Documents and specifically including all Subsidiary Securities and all other
Collateral acquired by the Borrower or other Credit Party after the Closing
Date. The Collateral Agent is hereby irrevocably authorized to execute and file
or cause to be filed, with or if permitted by applicable law without the
signature of the Borrower or any Credit Party appearing thereon, all Uniform
Commercial Code financing statements reflecting the Borrower or any other Credit
Party as “debtor” and the Collateral Agent as “secured party”, and continuations
thereof and amendments thereto, as the Agent or the Collateral Agent reasonably
deems necessary or advisable to give effect to the transactions contemplated
hereby and by the other Loan Documents.








47













5.4.   Information
Regarding Collateral.
The Borrower represents, warrants and covenants that (i) the chief executive
office of the Borrower and each other Credit Party (each, a “Grantor”) at the
Closing Date is located at the address or addresses specified on Schedule
5.4,
and (ii) Schedule
5.4
contains a true and complete list of (a) the exact legal name, jurisdiction of
formation, and address of each Grantor, (b) the exact legal name, jurisdiction
of formation, and each location of the chief executive office of each Grantor at
any time since December 1, 1999, and (c) each trade name, trademark or other
trade style used by any Grantor since January 1, 2004 and the purposes for which
it was used. Borrower shall not change, and shall not permit any other Grantor
to change, its name, jurisdiction of formation (whether by reincorporation,
merger or otherwise), the location of its chief executive office, or use or
permit any other Grantor to use, any additional trade name, trademark or other
trade style, except upon giving not less than thirty (30) days’ prior written
notice to the Agent and the Collateral Agent and taking or causing to be taken
all such action at Borrower’s or such other Grantor’s expense as may be
reasonably requested by the Agent or the Collateral Agent to perfect or maintain
the perfection of the Lien of the Collateral Agent in Collateral.




5.5.   Collateral
Agent.
Each Lender from time to time party hereto, the Agent and the Borrower hereby
irrevocably consents to the service by Bank of America in the capacity of
Collateral Agent.











48













ARTICLE
VI




Change
in Circumstances




6.1.   Increased
Cost and Reduced Return.




(a)   If,
after the date hereof, the adoption of any applicable law, rule, or regulation,
or any change in any applicable law, rule, or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency:




(i)   shall
subject such Lender (or its Applicable Lending Office) to any tax, duty, or
other charge with respect to any Eurodollar Rate Loans, its Note, or its
obligation to make Eurodollar Rate Loans, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending Office) under this
Agreement or its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or such Applicable Lending
Office);




(ii)   shall
impose, modify, or deem applicable any reserve, special deposit, assessment, or
similar requirement (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments of,
such Lender (or its Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or




(iii)   shall
impose on such Lender (or its Applicable Lending Office) or on the London
interbank market any other condition affecting this Agreement or its Note or any
of such extensions of credit or liabilities or commitments;




and
the result of any of the foregoing is to increase the cost to such Lender (or
its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this Section
6.1(a),
the Borrower may, by notice to such Lender (with a copy to the Agent), suspend
the obligation of such Lender to make or Continue Loans of the Type with respect
to which such compensation is requested, or to Convert Loans of any other Type
into Loans of such Type, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section
6.4
shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.








49













(b)   If,
after the date hereof, any Lender shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank, or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender’s obligations hereunder to a level below
that which such Lender or such corporation could have achieved but for such
adoption, change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.




(c)   Each
Lender shall promptly notify the Borrower and the Agent of any event of which it
has knowledge, occurring after the date hereof, which will entitle such Lender
to compensation pursuant to this Section
6.1
and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section
6.1
shall furnish to the Borrower and the Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.




(d)   The
provisions of this Section
6.1
shall continue in effect notwithstanding the Facility Termination
Date.




6.2.   Limitation
on Types of Loans.
If on or prior to the first day of any Interest Period for any Eurodollar Rate
Loan:




(a)   the
Agent determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period;
or




(b)   the
Required Lenders determine (which determination shall be conclusive) and notify
the Agent that the Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding Eurodollar Rate Loans for such Interest
Period;




then
the Agent shall give the Borrower prompt notice thereof specifying the relevant
Type of Loans and the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make additional
Loans of such Type, Continue Loans of such Type, or to Convert Loans of any
other Type into Loans of such Type and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Loans of the affected
Type, either prepay such Loans or Convert such Loans into another Type of Loan
in accordance with the terms of this Agreement.








50
















6.3.   Illegality.
Notwithstanding any other provision of this Agreement, in the event that it
becomes unlawful for any Lender or its Applicable Lending Office to make,
maintain, or fund Eurodollar Rate Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender’s obligation to make or
Continue Eurodollar Rate Loans and to Convert other Types of Loans into
Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section
6.4
shall be applicable). 




6.4.   Treatment
of Affected Loans.
If the obligation of any Lender to make a Eurodollar Rate Loan or to Continue,
or to Convert Loans of any other Type into, Loans of a particular Type shall be
suspended pursuant to Section
6.1 or 6.3
hereof (Loans of such Type being herein called “Affected Loans” and such Type
being herein called the “Affected Type”), such Lender’s Affected Loans shall be
automatically Converted into Base Rate Loans, having a Base Rate as elected by
the Borrower, on the last day(s) of the then current Interest Period(s) for
Affected Loans (or, in the case of a Conversion required by Section
6.3
hereof, on such earlier date as such Lender may specify to the Borrower with a
copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section
6.1 or 6.3
hereof that gave rise to such Conversion no longer exist:




(a)   to
the extent that such Lender’s Affected Loans have been so Converted, all
payments and prepayments of principal that would otherwise be applied to such
Lender’s Affected Loans shall be applied instead to its Base Rate Loans;
and




(b)   all
Loans that would otherwise be made or Continued by such Lender as Loans of the
Affected Type shall be made or Continued instead as Base Rate Loans, having a
Base Rate as elected by the Borrower, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be Converted
instead into (or shall remain as) Base Rate Loans, having a Base Rate as elected
by the Borrower.




If
such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section
6.1 or 6.3
hereof that gave rise to the Conversion of such Lender’s Affected Loans pursuant
to this Section
6.4
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.




6.5.   Compensation.
Upon the request of any Lender, the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:








51
















(i)   any
payment, prepayment, or Conversion of a Eurodollar Rate Loan for any reason
(including, without limitation, the acceleration of the Loans pursuant to
Section
11.1)
on a date other than the last day of the Interest Period for such Loan;
or




(ii)   any
failure by the Borrower (for any reason, including the failure of any condition
precedent specified in Article
VII
to be satisfied, other than the failure of such Lender to make a Loan
notwithstanding satisfaction of all conditions precedent thereto) to borrow,
Convert, Continue, or prepay a Eurodollar Rate Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the relevant
notice of borrowing, prepayment, Continuation, or Conversion under this
Agreement.




The
provisions of this Section
6.5
shall continue in effect notwithstanding the Facility Termination
Date.




6.6.   Taxes.


 

(a)     Any and all
payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under any other Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender (or its Applicable Lending Office) or the Agent (as the case may be) is
organized or any political subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as “Taxes”). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable under this
Agreement or any other Loan Document to any Lender or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section
6.6)
such Lender or the Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law, and (iv) the Borrower shall furnish to the Agent, at its address referred
to in Section
13.2,
the original or a certified copy of a receipt evidencing payment
thereof.




(b)   In
addition, the Borrower agrees to pay any and all present or future stamp or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under this Agreement or any other Loan
Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as “Other
Taxes”).




(c)   The
Borrower agrees to indemnify each Lender, the Agent and the Collateral Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section
6.6)
paid by such Lender, the Agent or the Collateral Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.








52
















(d)   Each
Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the case
of each Lender listed on the signature pages hereof and on or prior to the date
on which it becomes a Lender in the case of each other Lender, and from time to
time thereafter if requested in writing by the Borrower or the Agent (but only
so long as such Lender remains lawfully able to do so), shall provide the
Borrower and the Agent whichever of the following is applicable: (i) duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party, (ii)
duly completed copies of Internal Revenue Service Form W-8ECI, and (iii) in the
case of any such Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the effect that
such Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
described in section 881(c)(3)(C) of the Code and (y) duly completed copies of
Internal Revenue Service Form W-8BEN, certifying that such Lender is entitled to
an exemption from or a reduced rate of tax on payments pursuant to this
Agreement or any of the other Loan Documents.




(e)   For
any period with respect to which a Lender has failed to provide the Borrower and
the Agent with the appropriate form pursuant to Section
6.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section
6.6(a) or 6.6(b)
with respect to Taxes imposed by the United States; provided,
however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such
Taxes.




(f)   If
the Borrower is required to pay additional amounts to or for the account of any
Lender pursuant to this Section
6.6,
then such Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the judgment
of such Lender, is not otherwise disadvantageous to such Lender.




(g)   Within
thirty (30) days after the date of any payment of Taxes, the Borrower shall
furnish to the Agent the original or a certified copy of a receipt evidencing
such payment.




(h)   The
provisions of this Section
6.6
shall continue in effect notwithstanding the Facility Termination
Date.








53













ARTICLE
VII




Conditions
to Making Loans and Issuing Letters of Credit




7.1.   Conditions
of Initial Advance.
The obligation of the Lenders to make the initial Advance under the Revolving
Credit Facility, and of the Issuing Bank to issue any Letter of Credit, and of
Bank of America to make any Swing Line Loan, is subject to the conditions
precedent that: 




(a)   the
Agent shall have received on the Closing Date, in form and substance
satisfactory to the Agent and Lenders, the following:




(i)   executed
originals of each of this Agreement, the Notes, the initial Facility Guaranties
of the Parent and each direct and indirect Domestic Subsidiary of the Parent or
the Borrower, the Security Instruments, and the other Loan Documents, together
with all schedules and exhibits thereto;




(ii)   the
favorable written opinion or opinions with respect to the Loan Documents and the
transactions contemplated thereby of counsel to the Credit Parties dated the
Closing Date, addressed to the Agent and the Lenders and satisfactory to Helms
Mulliss & Wicker, PLLC, special counsel to the Agent, substantially in the
form of Exhibit
G;




(iii)   resolutions
of the boards of directors or other appropriate governing body (or of the
appropriate committee thereof) of each Credit Party certified by its secretary
or assistant secretary as of the Closing Date, approving and adopting the Loan
Documents to be executed by such Person, and authorizing the execution and
delivery thereof; 




(iv)   specimen
signatures of officers or other appropriate representatives executing the Loan
Documents on behalf of each of the Credit Parties, certified by the secretary or
assistant secretary of such Credit Party;




(v)   the
Organizational Documents of each of the Credit Parties certified as of a recent
date by the Secretary of State of its state of organization;




(vi)   Operating
Documents of each of the Credit Parties certified as of the Closing Date as true
and correct by its secretary or assistant secretary;




(vii)   certificates
issued as of a recent date by the Secretaries of State of the respective
jurisdictions of formation of each of the Credit Parties as to the due existence
and good standing of such Person;








54
















(viii)   appropriate
certificates of qualification to do business, good standing and, where
appropriate, authority to conduct business under assumed name, issued in respect
of each of the Credit Parties as of a recent date by the Secretary of State or
comparable official of each jurisdiction in which the failure to be qualified to
do business or authorized so to conduct business could have a Material Adverse
Effect;




(ix)   notice
of appointment of the initial Authorized Representative(s);




(x)   a
copy of the executed certificate of an Authorized Representative dated as of
September 30, 2004 demonstrating compliance with the financial covenants
contained in Sections
10.1(a)
through 10.1(c)
and 10.8
of the Existing Credit Agreement as of September 30, 2004;




(xi)   evidence
of all insurance required by the Loan Documents;




(xii)   an
initial Borrowing Base Certificate for the most recently ended fiscal quarter,
an initial Borrowing Notice and, if elected by the Borrower, Interest Rate
Selection Notice; 




(xiii)   evidence
of the filing of Uniform Commercial Code financing statements and, as
appropriate, amendments to previously filed financing statements, reflecting the
filing in all places required by applicable law to perfect the Liens of the
Collateral Agent under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be perfected by the filing
of financing statements and such other documents and/or evidence of other
actions as may be necessary under applicable law to perfect the Liens of the
Collateral Agent under the Security Instruments as a first priority Lien in and
to such other Collateral as the Agent may require, including without limitation,
the delivery by the Parent, the Borrower, and other applicable Credit Parties of
all stock certificates evidencing Pledged Interests, accompanied in each case by
duly executed stock powers (or other appropriate transfer documents) in blank
affixed thereto;




(xiv)   evidence
that all fees payable by the Borrower on the Closing Date to the Agent, BAS and
the Lenders have been paid in full, including the due diligence expenses of the
Agent and the fees and expenses of counsel for the Agent to the extent invoiced
prior to or on the Closing Date (which may include amounts constituting
reasonable estimates of such fees and expenses incurred or to be incurred in
connection with the transaction; provided that no such estimate shall thereafter
preclude the final settling of accounts as to such fees and expenses);





(xv)   Uniform
Commercial Code search results showing only those Liens as are acceptable to the
Lenders;








55













(xvi)   a
certificate of the President or chief financial officer of the Borrower as to
the matters described in Section
7.1(b);




(xvii)   evidence
satisfactory to the Agent of the repayment of all accrued interest and fees
owing by the Borrower under the Existing Credit Agreement (including, without
limitation, all accrued interest and fees with respect to any Loans and Letters
of Credit (each as defined in the Existing Credit Agreement) whether or not such
Loans or Letters of Credit are continued as Loans or Letters of Credit
hereunder), and the continuation of all Liens granted in respect thereof
pursuant to the terms of the Security Instruments; 




(xviii)   copies
of all documents governing or evidencing the Permitted Receivables
Securitization, all as in effect as of the Closing Date, certified by the
Secretary or an Assistant Secretary of the Borrower to be true, correct and
complete copies thereof;




(xix)   such
other documents, instruments, certificates and opinions as the Agent or any
Lender may reasonably request on or prior to the Closing Date in connection with
the consummation of the transactions contemplated hereby; and




(b)   In
the good faith judgment of the Agent and the Lenders:




(i)   there
shall not have occurred or become known to the Agent or the Lenders any event,
condition, situation or status since December 31, 2003, that has had or could
reasonably be expected to result in a Material Adverse Effect; 




(ii)   no
litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or, to the knowledge of the Borrower,
threatened which could reasonably be likely to result in a Material Adverse
Effect; and




(iii)   the
Credit Parties shall have received all approvals, consents and waivers, and
shall have made or given all necessary filings and notices as shall be required
to consummate the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral authority
or (B) any agreement, document or instrument to which any of the Credit Parties
is a party or by which any of them or their properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making or giving
of which will not have a Material Adverse Effect.




Without
limiting the generality of the provisions of Section
12.2,
for purposes of determining compliance with the conditions specified in this
Section
7.1,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.









56
















7.2.   Conditions
of Revolving Loans and Letters of Credit.
The obligations of the Lenders to make any Revolving Loans, and the Issuing Bank
to issue (or renew) Letters of Credit and Bank of America to make Swing Line
Loans, hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:




(a)   the
Agent or, in the case of Swing Line Loans, Bank of America shall have received a
Borrowing Notice if required by Article
II;




(b)   the
representations and warranties of the Credit Parties set forth in Article
VIII
and in each of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Advance, Swing Line Loan or
Letter of Credit issuance or renewal, with the same effect as though such
representations and warranties had been made on and as of such date, except to
the extent that such representations and warranties expressly relate to an
earlier date and except that the financial statements referred to in
Section
8.6(a)
shall be deemed (solely for the purpose of the representation and warranty
contained in such Section
8.6(a)
but not for the purpose of any cross reference to such Section
8.6(a)
or to the financial statements described therein contained in any other
provision of Section
8.6
or elsewhere in Article
VIII)
to be those financial statements most recently delivered to the Agent and the
Lenders pursuant to Section
9.1
from the date financial statements are delivered to the Agent and the Lenders in
accordance with such Section;




(c)   in
the case of the issuance of a Letter of Credit, the Borrower shall have executed
and delivered to the Issuing Bank an Application and Agreement for Letters of
Credit in form and content acceptable to the Issuing Bank together with such
other instruments and documents as it shall request;




(d)   at
the time of (and after giving effect to) each Advance, Swing Line Loan or the
issuance of a Letter of Credit, no Default or Event of Default specified in
Article
XI
shall have occurred and be continuing; and




(e)   immediately
after giving effect to: 




(i)   a
Revolving Loan, the aggregate principal balance of all outstanding Revolving
Loans for each Lender shall not exceed such Lender’s Revolving Credit
Commitment; 




(ii)   a
Letter of Credit or renewal thereof, the aggregate principal balance of all
outstanding Participations in Letters of Credit and Reimbursement Obligations
(or in the case of the Issuing Bank, its remaining interest after deduction of
all Participations in Letters of Credit and Reimbursement Obligations of other
Lenders) for each Lender and in the aggregate shall not exceed, respectively,
(X) such Lender’s Letter of Credit Commitment or (Y) the Total Letter of Credit
Commitment;








57
















(iii)   a
Swing Line Loan, the Swing Line Outstandings shall not exceed $10,000,000;
and




(iv)   a
Revolving Loan, Swing Line Loan or a Letter of Credit or renewal thereof, the
sum of Letter of Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall not exceed the lesser of (i) the Total Revolving
Credit Commitment or (ii) the Borrowing Base.








58













ARTICLE
VIII




Representations
and Warranties




The
Borrower represents and warrants with respect to itself and to its Subsidiaries
and each other Credit Party, and the Parent represents and warrants with respect
to itself and to its Subsidiaries (which representations and warranties shall
survive the delivery of the documents mentioned herein and the making of Loans
and issuing of Letters of Credit), that:




8.1.      Organization
and Authority.




(a)   The
Borrower, the Parent and each of their Subsidiaries and each other Credit Party
is a corporation, limited liability company or partnership, as the case may
be,
duly organized and validly existing under the laws of the jurisdiction of its
formation;




(b)   The
Borrower, the Parent and each of their Subsidiaries and each other Credit Party
(x) has the requisite power and authority to own its properties and assets and
to carry on its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in which
failure so to qualify could have a Material Adverse Effect,




(c)   The
Borrower has the power and authority to execute, deliver and perform this
Agreement and the Notes, and to borrow hereunder, and to execute, deliver and
perform each of the other Loan Documents to which it is a party;




(d)   Each
Credit Party (other than the Borrower) has the power and authority to execute,
deliver and perform the Facility Guaranties and each of the other Loan Documents
to which it is a party; and




(e)   When
executed and delivered, each of the Loan Documents to which any Credit Party is
a party will be the legal, valid and binding obligation or agreement, as the
case may be, of such Credit Party, enforceable against such Credit Party in
accordance with its terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting the
enforceability of creditors’ rights generally and to the effect of general
principles of equity (whether considered in a proceeding at law or in
equity).




8.2.   Loan
Documents.
The execution, delivery and performance by each Credit Party of each of the Loan
Documents to which it is a party:




(a)   have
been duly authorized by all requisite Organizational Action of such Credit Party
required for the lawful execution, delivery and performance
thereof;








59
















(b)   do
not violate any provisions of (i) any applicable law, rule or regulation, (ii)
any judgment, writ, order, determination, decree or arbitral award of any
Governmental Authority or arbitral authority binding on such Credit Party or its
properties, or (iii) the Organizational Documents or Operating Documents of such
Credit Party;




(c)   does
not and will not be in conflict with, result in a breach of or constitute an
event of default, or an event which, with notice or lapse of time or both, would
constitute an event of default, under any contract, indenture, agreement or
other instrument or document to which such Credit Party is a party, or by which
the properties or assets of such Credit Party are bound; and




(d)   does
not and will not result in the creation or imposition of any Lien upon any of
the properties or assets of such Credit Party or any Subsidiary of the Borrower
or the Parent except any Liens in favor of the Credit Secured Parties created by
the Security Instruments.




8.3.   Solvency.
Each Credit Party is Solvent after giving effect to the transactions
contemplated by the Loan Documents.




8.4.   Subsidiaries
and Stockholders.
The Borrower and the Parent have no Subsidiaries other than those Persons listed
as Subsidiaries thereof in Schedule
8.4
and additional Subsidiaries created or acquired after the Closing Date in
compliance with Section
9.19;
Schedule
8.4
states as of the date hereof the organizational form of each entity, the
authorized and issued capitalization of each Subsidiary listed thereon, the
number of shares or other equity interests of each class of capital stock or
interest issued and outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class of capital
stock or other equity interest owned by the Parent, the Borrower or by any such
Subsidiary thereof; the outstanding shares or other equity interests of each
such Subsidiary have been duly authorized and validly issued and are fully paid
and nonassessable; and the Borrower, the Parent and each such Subsidiary owns
beneficially and of record all the shares and other interests it is listed as
owning in Schedule
8.4,
free and clear of any Lien except for Liens in favor of the Collateral Agent,
for the benefit of the Credit Secured Parties. Each Subsidiary of the Parent
(other than the Borrower) existing as of the Closing Date has entered into a
Facility Guaranty delivered at Closing.




8.5.   Ownership
Interests.
Neither the Borrower nor the Parent owns an interest in any Person other than
the Persons listed in Schedule
8.4,
equity investments in Persons not constituting Subsidiaries permitted under
Section
10.6
and additional Subsidiaries created or acquired after the Closing Date in
compliance with Section
9.19.








60
















8.6.   Financial
Condition.




(a)   The
Parent has heretofore furnished to each Lender an audited consolidated and
related consolidating balance sheet of the Parent and its Subsidiaries as at
December 31, 2003 and the notes thereto and the related consolidated statements
of income, stockholders’ equity and cash flows for the Fiscal Year then ended as
examined and certified by KPMG LLP, and unaudited consolidated and consolidating
interim financial statements of the Parent and its Subsidiaries consisting of a
consolidated and consolidating balance sheets and related consolidated
statements of income, stockholders’ equity and cash flows, in each case without
notes, for and as of the end of the  nine
(9) month period ending September 30, 2004. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the financial
condition of the Parent and its Subsidiaries as of the end of such Fiscal Year
and nine (9) month period and results of their operations and the changes in its
stockholders’ equity for the Fiscal Year and interim period then ended, all in
conformity with GAAP applied on a Consistent Basis, subject however, in the case
of unaudited interim statements to year end audit adjustments;




(b)   since
the later of (i) the date of the audited financial statements delivered pursuant
to Section
8.6(a)
hereof or (ii) the date of the audited financial statements most recently
delivered pursuant to Section
9.1(a)
hereof, there has not occurred any event, condition or circumstance including
but limited to any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God which has had or could
reasonably be expected to have a Material Adverse Effect; and




(c)   except
as set forth in the financial statements referred to in Section
8.6(a)
or in Schedule
8.6
or permitted by Section
10.4,
neither the Parent nor any Subsidiary of the Parent has incurred, other than in
the ordinary course of business, (i) any material Indebtedness or Contingent
Obligation which remains outstanding or unsatisfied, or (ii) any other
commitment or liability which remains outstanding or unsatisfied which has had
or could reasonably be expected to have a Material Adverse Effect.




8.7.   Title
to Properties.
The Borrower, the Parent and each of their Subsidiaries and each other Credit
Party has good and marketable title to all its real and personal properties,
subject to no transfer restrictions or Liens of any kind, except for the
transfer restrictions and Liens described in Schedule
8.7
and Liens permitted by Section
10.3.




8.8.   Taxes.
Except as set forth in Schedule
8.8,
the Borrower, the Parent and each of their Subsidiaries has filed or caused to
be filed all federal, state and local tax returns which are required to be filed
by it and, except for taxes and assessments being contested in good faith by
appropriate proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section
8.6(a)
or Sections
9.1(a)
or (b)
and satisfactory to the Borrower’s independent certified public accountants have
been established, have paid or caused to be paid all taxes as shown on said
returns or on any assessment received by it, to the extent that such taxes have
become due.








61
















8.9.   Other
Agreements.
No Credit Party nor any Subsidiary thereof is




(a)   a
party to or subject to any judgment, order, decree, agreement, lease or
instrument, or subject to other restrictions, which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect;
or




(b)   in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument to which such
Credit Party or any Subsidiary thereof is a party, which default has, or if not
remedied within any applicable grace period could reasonably be likely to have,
a Material Adverse Effect.




8.10.   Litigation.
Except as set forth in Schedule
8.10,
there is no action, suit, investigation or proceeding at law or in equity or by
or before any governmental instrumentality or agency or arbitral body pending,
or, to the knowledge of the Borrower or the Parent, threatened by or against the
Borrower or the Parent or any of their Subsidiaries or any other Credit Party or
affecting the Borrower or the Parent or any of their Subsidiaries or any other
Credit Party or any properties or rights of the Borrower or the Parent or any of
their Subsidiaries or any other Credit Party, which could reasonably be likely
to have a Material Adverse Effect.




8.11.   Margin
Stock.
The proceeds of the borrowings made hereunder will be used by the Borrower only
for the purposes expressly authorized herein. None of such proceeds will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring any Indebtedness which
was originally incurred to purchase or carry margin stock (other than shares of
common stock of the Parent to be purchased by the Parent in connection with a
Permitted Share Repurchase, provided that all such Permitted Share Repurchases
have been (to the extent consummated prior to the date hereof) and will be
consummated, and the shares of stock so purchased have been (to the extent
acquired prior to the date hereof) and will be retired, or limited in amount, as
shall be necessary for compliance with Regulation U (12 CFR Part 221) as the
same may be applicable to Permitted Share Repurchases from time to time), or for
any other purpose which violates or which would be inconsistent with Regulation
U (12 CFR Part 221) or Regulation X (12 CFR Part 224) of the Board. Neither the
Borrower, the Parent, nor any agent acting in their behalf has taken or will
take any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto or any use of proceeds of Loans to violate
any regulation of the Board or to violate the Securities Exchange Act of 1934,
as amended, or the Securities Act of 1933, as amended, or any state securities
laws, in each case as in effect on the date hereof.




8.12.   Regulated
Company.
No Credit Party is (i) an “investment company,” or an “affiliated person” of, or
“promoter” or “principal underwriter” for, an “investment company”, as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C. §
80a-1, et seq.) or (ii) a “holding company” or a “subsidiary company” or
“affiliate” of a “holding company” as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended. The application of the proceeds
of the Loans and repayment thereof by the Borrower and the performance by the
Borrower and the other Credit Parties of the transactions contemplated by the
Loan Documents will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission thereunder,
in each case as in effect on the date hereof.








62
















8.13.   Patents,
Etc.
The Borrower and each other Credit Party owns or has the right to use, under
valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name rights, trade
secrets, copyrights and know-how necessary to or used in the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, other proprietary right of any other Person; all the
foregoing which is not owned by the Borrower or such Credit Party is licensed
thereto by CIP pursuant to a Licensing Agreement.




8.14.   No
Untrue Statement.
Neither this Agreement nor any other Loan Document or certificate or document
executed and delivered by or on behalf of the Borrower or any other Credit Party
in accordance with or pursuant to any Loan Document contains any
misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstance under which it was made,
in order to make any such warranty, representation or statement contained
therein not misleading.




8.15.   No
Consents, Etc.
Neither the respective businesses or properties of the Credit Parties or any
Subsidiary thereof, nor any relationship among the Credit Parties or any
Subsidiary thereof and any other Person, nor any circumstance in connection with
the execution, delivery and performance of the Loan Documents and the
transactions contemplated thereby, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Credit Party as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.




8.16.   Employee
Benefit Plans.




(a)   The
Borrower, the Parent and each ERISA Affiliate are in compliance with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder and in compliance with all Foreign Benefit Laws with respect to all
Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired.
Each Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined or the Borrower or the Parent or their
Subsidiaries is in the process of obtaining a determination by the Internal
Revenue Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each Employee
Benefit Plan subject to any Foreign Benefit Law has received the required
approvals by any Governmental Authority regulating such Employee Benefit Plan.
No material liability has been incurred by the Borrower or the Parent or any
ERISA Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;








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(b)   Neither
the Borrower, the Parent nor any ERISA Affiliate has (i) engaged in a nonexempt
prohibited transaction described in Section 4975 of the Code or Section 406 of
ERISA affecting any of the Employee Benefit Plans or the trusts created
thereunder which could subject any such Employee Benefit Plan or trust to a
material tax or penalty on prohibited transactions imposed under Internal
Revenue Code Section 4975 or ERISA, (ii) incurred any accumulated funding
deficiency with respect to any Employee Benefit Plan, whether or not waived, or
any other liability to the PBGC which remains outstanding other than the payment
of premiums and there are no premium payments which are due and unpaid, (iii)
failed to make a required contribution or payment to a Multiemployer Plan, (iv)
failed to make a required installment or other required payment under Section
412 of the Code, Section 302 of ERISA or the terms of such Employee Benefit
Plan, or (v) failed to make a required contribution or payment, or otherwise
failed to operate in compliance with any Foreign Benefit Law regulating any
Employee Benefit Plan;




(c)   No
Termination Event has occurred or is reasonably expected to occur with respect
to any Pension Plan or Multiemployer Plan, and neither the Borrower, the Parent,
nor any ERISA Affiliate has incurred any unpaid withdrawal liability with
respect to any Multiemployer Plan;




(d)   The
present value of all vested accrued benefits under each Employee Benefit Plan
which is subject to Title IV of ERISA, or the funding of which is regulated by
any Foreign Benefit Law did not, as of the most recent valuation date for each
such plan, exceed the then current value of the assets of such Employee Benefit
Plan allocable to such benefits;




(e)   To
the best of the Borrower’s and the Parent’s knowledge, each Employee Benefit
Plan which is subject to Title IV of ERISA or the funding of which is regulated
by any Foreign Benefit Law, maintained by the Borrower or the Parent or any
ERISA Affiliate, has been administered in accordance with its terms in all
material respects and is in compliance in all material respects with all
applicable requirements of ERISA, applicable Foreign Benefit Law and other
applicable laws, regulations and rules;




(f)   The
consummation of the Loans provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or administrative
exemption; and




(g)   No
material proceeding, claim, lawsuit and/or investigation exists or, to the best
knowledge of the Borrower after due inquiry, is threatened concerning or
involving any Employee Benefit Plan;




8.17.   No
Default.
As of the date hereof, there does not exist any Default or Event of Default
hereunder.








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8.18.   Environmental
Laws.
The Borrower, the Parent, and each of their Subsidiaries is in compliance with
all applicable Environmental Laws and has been issued and currently maintains
all required federal, state and local permits, licenses, certificates and
approvals except for any non-compliance that could not reasonably be expected to
cause any Material Adverse Effect. Except as would not reasonably be expected to
cause any Material Adverse Effect, neither the Borrower, the Parent, nor any of
their Subsidiaries has been notified of any pending or threatened action, suit,
proceeding or investigation, and neither the Borrower, the Parent, nor any of
their Subsidiaries is aware of any fact or facts, which (a) call into question,
or could reasonably be expected to call into question, compliance by the
Borrower, the Parent, or any of their Subsidiaries with any Environmental Laws,
(b) could reasonably be expected to form the basis of a meritorious proceeding,
to suspend, revoke or terminate any license, permit or approval necessary for
the operation of the Borrower’s, the Parent’s, or any of their Subsidiaries’
business or facilities or for the generation, handling, storage, treatment or
disposal of any Hazardous Materials, or (c) could reasonably be expected to form
the basis of a meritorious proceeding to cause any property of the Borrower, the
Parent, or any of their Subsidiaries or other Credit Party to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law.




8.19.   Employment
Matters.
(a) None of the employees of the Borrower, the Parent, or any of their
Subsidiaries is subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or proceedings,
unfair labor charges, equal opportunity proceedings, or other material
labor/employee related controversies or proceedings pending or, to the best
knowledge of the Borrower or the Parent, threatened against the Borrower, the
Parent, or any of their Subsidiaries or between the Borrower, the Parent, or any
of their Subsidiaries and any of its employees, other than such matters, but
excluding any matters concerning collective bargaining agreements, which could
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.




(b)   Except
to the extent a failure to maintain compliance would not have a Material Adverse
Effect, the Borrower, the Parent and each of their Subsidiaries is in compliance
in all respects with all applicable laws, rules and regulations pertaining to
labor or employment matters, including without limitation those pertaining to
wages, hours, occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the knowledge of
the Borrower and the Parent, any investigation, in respect of such matters
which, if decided adversely, could reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect.











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ARTICLE
IX




Affirmative
Covenants




Until
the Facility Termination Date, unless the Required Lenders shall otherwise
consent in writing, each of the Borrower and the Parent, as applicable, will,
and where applicable will cause each of their Subsidiaries to:




9.1.   Financial
Reports, Etc.
(a) As soon as practical and in any event within 90 days after the end of each
Fiscal Year of the Parent, deliver or cause to be delivered to the Agent and
each Lender (i) consolidated and consolidating balance sheets of the Parent and
its Subsidiaries as at the end of such Fiscal Year, and the notes thereto, and
the related consolidated and consolidating statements of income, stockholders’
equity and cash flows, and the respective notes thereto, for such Fiscal Year,
setting forth (other than for consolidating statements) comparative financial
statements for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a Consistent Basis and containing, with respect to the consolidated
financial statements, opinions of KPMG LLP, or other such independent certified
public accountants selected by the Parent and meeting the requirements set forth
in Section
10.18,
as to whether such financial statements are free of material misstatement and
which are unqualified as to the scope of the audit performed, the absence of
material misstatement, and as to the “going concern” status of the Parent and
without any exception not acceptable to the Required Lenders, and (ii) a
certificate of an Authorized Representative demonstrating compliance with
Sections
10.1(a)
through 10.1(c)
and 10.8,
which certificate shall be in the form of Exhibit
H;




(b)   as
soon as practical and in any event within 45 days after the end of each fiscal
quarter (except the last fiscal quarter of the Fiscal Year), deliver to the
Agent and each Lender (i) consolidated and consolidating balance sheets of the
Parent and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated and consolidating statements of income, stockholders’
equity and cash flows for such fiscal quarter and for the period from the
beginning of the then current Fiscal Year through the end of such reporting
period, and accompanied by a certificate of an Authorized Representative to the
effect that such financial statements present fairly the financial position of
the Parent and its Subsidiaries as of the end of such fiscal period and the
results of their operations and the changes in their financial position for such
fiscal period, in conformity with the standards set forth in Section
8.6(a)
with respect to interim financial statements, and (ii) a certificate of an
Authorized Representative containing computations for such quarter comparable to
that required pursuant to Section
9.1(a)(ii);




(c)   together
with each delivery of the financial statements required by Section
9.1(a)(i),
deliver to the Agent and each Lender a letter from the Parent’s accountants
specified in Section
9.1(a)(i)
stating that in performing the audit necessary to render an opinion on the
financial statements delivered under Section
9.1(a)(i),
they obtained no knowledge of any Default or Event of Default by the Borrower or
the Parent in the fulfillment of the terms and provisions of this Agreement
insofar as they relate to financial matters (which at the date of such statement
remains uncured); or if the accountants have obtained knowledge of such Default
or Event of Default, a statement specifying the nature and period of existence
thereof;








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(d)   promptly
upon their becoming available to the Parent, the Parent shall deliver to the
Agent and each Lender a copy of (i) all regular or special reports or effective
registration statements which the Parent or any of its Subsidiaries shall file
with the Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) any proxy statement distributed by the Parent or any
of its Subsidiaries to its shareholders, bondholders or the financial community
in general, and (iii) any management letter or other report submitted to the
Parent, the Borrower or any of their Subsidiaries by independent accountants in
connection with any annual, interim or special audit of the Borrower or any of
its Subsidiaries; 




(e)   as
soon as practical and in any event within forty-five (45) days after the end of
each fiscal quarter, the Borrower shall deliver to the Agent and each Lender a
Borrowing Base Certificate in the form of Exhibit
K;




(f)   together
with each delivery of the financial statements required by Section
9.1(a)
and (b),
an unaudited balance sheet for each of CVTI and Volunteer Insurance Limited as
of the end of the fiscal period included in such financial statements and the
related unaudited statements of income, stockholders’ equity and cash flows for
each of CVTI and Volunteer Insurance Limited for such period, together with
consolidating statements or other reconciliations reflecting all eliminations or
adjustments necessary to reconcile such financial statements to the consolidated
financial statements of the Parent and its Subsidiaries; and




(g)   promptly,
from time to time, deliver or cause to be delivered to the Agent and each Lender
such other information regarding the Parent’s, the Borrower’s, or any
Subsidiary’s operations, business affairs and financial condition as the Agent
or such Lender may reasonably request.




The
Agent and the Lenders are hereby authorized to deliver a copy of any such
financial or other information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent, to any Governmental Authority having
jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this
Agreement.




Documents
required to be delivered pursuant to Section
9.1(a),
(b)
or (d)
(to the extent any such documents are included in materials otherwise filed with
the Securities and Exchange Commission (or any successor thereto)) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the website
address listed in Section
13.2;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Agent have
access (whether a commercial, third-party website or whether sponsored by the
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Agent or such Lender and (ii) the Borrower shall notify the Agent and
each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Borrowing Base Certificates required by Section
9.1(e)
to the Agent. Except for such Borrowing Base Certificates, the Agent shall have
no obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.








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The
Borrower hereby acknowledges that (a) the Agent and/or BAS will make available
to the Lenders and the Issuing Bank materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a “Public
Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC”, the Borrower shall be deemed to have authorized the Agent, the Issuing
Bank and the Lenders to treat such Borrower Materials as either publicly
available information or not material information (although it may be sensitive
and proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor”; and (z) the Agent shall be entitled to
treat any Borrower Materials that are not marked “PUBLIC” as being suitable only
for posting on a portion of the Platform not designated “Public
Investor”




9.2.   Maintain
Properties.
Maintain all properties necessary to its operations in good working order and
condition, make all needed repairs, replacements and renewals to such
properties, and maintain free from Liens, all trademarks, trade names, patents,
copyrights, trade secrets, know-how, and other intellectual property and
proprietary information (or adequate licenses thereto), in each case as are
reasonably necessary to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices.




9.3.   Existence,
Qualification, Etc.
Except as otherwise expressly permitted under Section
10.7,
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence and all material rights and franchises, and maintain
its license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which its ownership or lease of property or the
nature of its business makes such license or qualification necessary except
where the failure to so qualify would not have a Material Adverse
Effect.




9.4.   Taxes.
Pay all taxes, assessments, governmental charges, claims for labor, supplies,
rent and any other obligation which, if unpaid, would become a Lien against any
of its properties, except liabilities being contested in good faith by
appropriate proceedings diligently conducted provided that (i) adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP and (ii) any Lien arising in connection with any such
contest shall be permitted to exist to the extent provided in Section
10.3.




9.5.   Insurance.
(a) Keep all of its insurable properties adequately insured at all times with
responsible insurance carriers against loss or damage by fire and other hazards
to the extent and in the manner as are customarily insured against by similar
businesses owning such properties similarly situated, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers’ compensation laws (or in the
alternative, maintain required reserves if self-insured for workers’
compensation purposes) and
against loss by reason of business interruption, such policies of insurance to
have such limits, deductibles, exclusions, co-insurance and other provisions
reasonably deemed adequate by the Parent and to be in form reasonably
satisfactory to the Agent. Each of the policies of insurance described in this
Section
9.5
shall provide that the insurer shall give the Agent not less than thirty (30)
days’ prior written notice before any such policy shall terminate or be
terminated, lapse or be altered in any manner.








68
















9.6.   True
Books.
Keep true books of record and account in which full, true and correct entries
will be made of all of its dealings and transactions, and set up on its books
such reserves as may be required by GAAP with respect to doubtful accounts and
all taxes, assessments, charges, levies and claims and with respect to its
business in general, and include such reserves in interim as well as year-end
financial statements.




9.7.   Right
of Inspection.
Permit any Person designated by any Lender or the Agent to visit and inspect at
any time any of the properties, corporate books and financial reports of the
Borrower, the Parent, or any of their Subsidiaries (provided that any such visit
or inspection shall be at the Borrower’s expense (i) during the continuance of
an Event of Default and (ii) otherwise up to once during any Fiscal Year), and
to discuss its affairs, finances and accounts with its principal officers and,
if applicable, independent certified public accountants, all at reasonable
times, at reasonable intervals and with reasonable prior notice.




9.8.   Observe
all Laws.
Conform to and duly observe in all material respects all laws, rules and
regulations and all other valid requirements of any Governmental Authority with
respect to the conduct of its business, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.




9.9.   Governmental
Licenses.
Obtain and maintain all licenses, permits, certifications and approvals of all
applicable Governmental Authorities as are required for the conduct of its
business as currently conducted and as contemplated by the Loan Documents,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.




9.10.   Covenants
Extending to Other Persons.
Cause each of its Subsidiaries to do with respect to itself, its business and
its assets, each of the things required of the Borrower and the Parent in
Sections
9.2
through 9.9,
and 9.18
inclusive.




9.11.   Officer’s
Knowledge of Default.
Upon any officer of the Borrower or the Parent obtaining knowledge of any
Default or Event of Default hereunder or under any other obligation of the
Borrower, the Parent or any of their Subsidiaries or any other Credit Party to
any Lender, or any event, development or occurrence which could reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Agent of the nature thereof, the period of
existence thereof, and what action the Borrower, the Parent, such Subsidiary or
other Credit Party proposes to take with respect thereto.




9.12.   Suits
or Other Proceedings.
Upon any officer of the Borrower or the Parent obtaining knowledge of any
litigation or other proceedings being instituted against the Borrower or the
Parent or any of their Subsidiaries or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or the Parent or any of their Subsidiaries or any other Credit Party,
making a claim or claims in an aggregate amount greater than $10,000,000 not
covered by insurance, promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, dispute, proceeding, levy,
execution or other process.








69
















9.13.   Notice
of Environmental Complaint or Condition.
Promptly provide to the Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or the Parent or any of their Subsidiaries relating to any (a)
violation or alleged violation by the Borrower or the Parent or any of their
Subsidiaries of any applicable Environmental Law; (b) release or threatened
release by the Borrower or the Parent or any of their Subsidiaries, or by any
Person handling, transporting or disposing of any Hazardous Material on behalf
of Borrower or the Parent or any of their Subsidiaries, or at any facility or
property owned or leased or operated by Borrower or the Parent or any of their
Subsidiaries, of any Hazardous Material, except where occurring legally pursuant
to a permit or license; or (c) liability or alleged liability of Borrower or the
Parent or any of their Subsidiaries for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials, in each case as
reasonably would be expected to have a Material Adverse Effect.




9.14.   Environmental
Compliance.
If Borrower or the Parent or any of their Subsidiaries shall receive any letter,
notice, complaint, order, directive, claim or citation alleging that Borrower or
the Parent or any of their Subsidiaries has violated any Environmental Law, has
released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower, the Parent and any such Subsidiary shall, within the time period
permitted and to the extent required by the applicable Environmental Law or the
Governmental Authority responsible for enforcing such Environmental Law, remove
or remedy, or cause the applicable Subsidiary to remove or remedy, such
violation or release or satisfy such liability.




9.15.   Indemnification.
Without limiting the generality of Section
13.9,
each of the Parent, the Borrower and any respective Subsidiary of either of them
hereby agrees to indemnify and hold the Agent, the Collateral Agent and the
Lenders and any affiliate of any Lender party to a Swap Agreement, and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys’, consultants’
or other expert fees, expenses and disbursements) arising directly or indirectly
from, out of or by reason of (a) the violation of any Environmental Law by the
Borrower or the Parent or any of their Subsidiaries or with respect to any
property owned, operated or leased by the Borrower or the Parent or any of their
Subsidiaries or (b) the handling, storage, transportation, treatment, emission,
release, discharge or disposal of any Hazardous Materials by or on behalf of the
Borrower or the Parent or any of their Subsidiaries, or on or with respect to
property owned or leased or operated by the Borrower or the Parent or any of
their Subsidiaries. The provisions of this Section
9.15
shall continue in effect notwithstanding the Facility Termination
Date.




9.16.      Further
Assurances.
At the Borrower’s cost and expense, upon request of the Agent, duly execute and
deliver or cause to be duly executed and delivered, to the Agent and the
Collateral Agent such further instruments, documents, certificates, financing
and continuation statements, and do and cause to be done such further acts that
may be reasonably necessary or advisable in the reasonable opinion of the Agent
to carry out more effectively the provisions and purposes of this Agreement, the
Security Instruments and the other Loan Documents.








70
















9.17.   Employee
Benefit Plans.




(a)   With
reasonable promptness, and in any event within thirty (30) days thereof, give
notice to the Agent of (a) the establishment of any new Pension Plan (which
notice shall include a copy of such plan), (b) the commencement of contributions
to any Employee Benefit Plan to which the Borrower, the Parent, or any of their
ERISA Affiliates was not previously contributing, (c) any material increase in
the benefits of any existing Employee Benefit Plan, (d) each funding waiver
request filed with respect to any Pension Plan and all communications received
or sent by the Borrower, the Parent or any ERISA Affiliate with respect to such
request and (e) the failure of the Borrower, the Parent or any ERISA Affiliate
to make a required installment or payment under Section 302 of ERISA or Section
412 of the Code (in the case of Employee Benefit Plans regulated by the Code or
ERISA) or under any Foreign Benefit Law (in the case of Employee Benefit Plans
regulated by any Foreign Benefit Law) by the due date;




(b)   Promptly
and in any event within fifteen (15) days of becoming aware of the occurrence or
forthcoming occurrence of any (a) Termination Event or (b) nonexempt “prohibited
transaction,” as such term is defined in Section 406 of ERISA or Section 4975 of
the Code, in connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature thereof, what
action the Borrower, the Parent or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and




(c)   With
reasonable promptness but in any event within fifteen (15) days for purposes of
clauses (a), (b) and (c), deliver to the Agent copies of (a) any unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code, (b)
all notices received by the Parent, Borrower or any ERISA Affiliate of the
PBGC’s or any Governmental Authority’s intent to terminate any Pension Plan or
to have a trustee appointed to administer any Pension Plan, (c) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by the
Borrower, the Parent or any ERISA Affiliate with the Internal Revenue Service
with respect to each Employee Benefit Plan and (d) all notices received by the
Borrower, the Parent or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to Section
4202 of ERISA. The Borrower and the Parent will notify the Agent in writing
within five (5) Business Days of the Borrower, the Parent or any ERISA Affiliate
obtaining knowledge or reason to know that the Borrower, the Parent or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA.




9.18.   Continued
Operations.
Continue at all times to conduct its business of transporting freight and engage
principally in the same line or lines of business of transporting freight
substantially as heretofore conducted.








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9.19.   New
Subsidiaries.
Simultaneously with the acquisition or creation of any Subsidiary of the
Borrower or the Parent, the Borrower and the Parent shall cause to be delivered
to the Agent and the Collateral Agent (or to either of them as may be specified)
each of the following:




(a)   to
the Agent, if such Subsidiary is a Domestic Subsidiary, a Subsidiary Guaranty
Joinder Agreement executed by such Subsidiary; 




(b)   if
the Subsidiary Securities issued by such Subsidiary that are, or are required to
become, Pledged Interests, shall be owned by the Borrower or by a Subsidiary of
the Parent or the Borrower who has not then executed and delivered to the
Collateral Agent a Pledge Agreement granting a Lien to the Collateral Agent, for
the ratable benefit of the Credit Secured Parties, in such equity interests, a
Pledge Joinder Agreement executed by the Borrower or by the Subsidiary that
directly owns such Subsidiary Securities, with appropriate conforming changes
(or, as to the Pledged Interests issued by any Direct Foreign Subsidiary of the
Borrower or the Parent, in a form acceptable to the Agent and the Collateral
Agent), and if such Subsidiary Securities shall be owned by the Parent or a
Subsidiary of the Parent who has previously executed a Pledge Agreement or
Pledge Joinder Agreement, a Pledge Agreement Supplement in the form required by
such Pledge Agreement pertaining to such Subsidiary Securities;




(c)   to
the Collateral Agent, if the Pledged Interests issued by such Subsidiary
constitute securities under Article 8 of the Uniform Commercial Code (i) the
certificates representing 100% of such Subsidiary Securities and (ii) duly
executed, undated stock powers or other appropriate powers of assignment in
blank affixed thereto;




(d)      (i)
Uniform Commercial Code financing statements on form UCC-1 or otherwise duly
executed by the pledgor as “Debtor” and naming the Collateral Agent, for the
benefit of the Credit Secured Parties, as “Secured Party,” in form, substance
and number sufficient in the reasonable opinion of the Collateral Agent and the
Agent and its special counsel to be filed in all Uniform Commercial Code filing
offices and in all jurisdictions in which filing is necessary or advisable to
perfect in favor of the Collateral Agent, for the benefit of the Credit Secured
Parties, the Lien on such Subsidiary Securities and (ii) if the Pledged
Interests issued by such Subsidiary do not constitute securities and such
Subsidiary has not elected to have such interests treated as securities under
Article 8 of the applicable Uniform Commercial Code, a control agreement
sufficient to confer control (within the meaning of Section 9-106 of the Uniform
Commercial Code), and otherwise in form and substance acceptable to the Agent
and the Collateral Agent;




(e)   an
opinion of counsel to such Subsidiary dated as of the date of delivery of the
Facility Guaranty and other Loan Documents provided for in this Section
9.19
and addressed to the Collateral Agent, the Agent, and the Lenders, in form and
substance reasonably acceptable to the Agent and the Collateral Agent (which
opinion may include assumptions and qualifications of similar effect to those
contained in the opinions of counsel delivered pursuant to Section
7.1(a));
and




(f)   current
copies of the Organizational Documents and Operating Documents of such
Subsidiary, minutes of duly called and conducted meetings (or duly effected
consent actions) of the Board of Directors, partners, or appropriate committees
thereof (and, if required by such Organizational Documents, Operating Documents
or applicable law, of the shareholders, members or partners) of such Subsidiary
authorizing the actions and the execution and delivery of documents described in
this Section
9.19.











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ARTICLE
X




Negative
Covenants




Until
the Facility Termination Date, unless the Required Lenders shall otherwise
consent in writing, neither the Borrower nor the Parent will, nor will either
permit any Subsidiary to:




10.1.   Financial
Covenants.




(a)   Consolidated
Tangible Net Worth.
Permit Consolidated Tangible Net Worth to be less than (i) $160,000,000 from the
Closing Date until (but excluding) the last day of the fiscal quarter that
includes the Closing Date (the “Closing Date Quarter”), and (ii) as at the last
day of each fiscal quarter of the Parent ending after the Closing Date and until
(but excluding) the last day of the next following fiscal quarter of the Parent,
the sum of (A) the amount of Consolidated Tangible Net Worth required to be
maintained pursuant to this Section
10.1(a)
as at the end of the immediately preceding fiscal quarter (or, in the case of
the Closing Date Quarter, required to be maintained as of the Closing Date),
plus (B) 50% of Consolidated Net Income (with no reduction for net losses during
any period) for the fiscal quarter of the Parent ending on such day (including
within “Consolidated Net Income” certain items otherwise excluded, as provided
for in the definition of “Consolidated Net Income”), plus (C) 100% of the
aggregate amount of all increases in the stated capital and additional paid-in
capital accounts of the Parent resulting from the issuance, sale or exchange of
equity securities or other capital investments.




(b)   Consolidated
Leverage Ratio.
Permit the Consolidated Leverage Ratio as of the end of any Four-Quarter Period
to be greater than 3.00 to 1.00.




(c)   Consolidated
Fixed Charge Coverage Ratio.
Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any
Four-Quarter Period to be less than 1.20 to 1.00.




10.2.   Acquisitions.
Enter into any agreement, contract, binding commitment or other arrangement
providing for any Acquisition, or take any action to solicit the tender of
securities or proxies in respect thereof in order to effect any Acquisition,
unless (i) the Person to be (or whose assets are to be) acquired does not oppose
such Acquisition and the line or lines of business of the Person to be acquired
are closely related to one or more line or lines of business conducted by the
Borrower, the Parent, or its Subsidiaries, (ii) no Default or Event of Default
shall have occurred and be continuing either immediately prior to or immediately
after giving effect to such Acquisition, (iii) the Person acquired shall be a
wholly-owned Subsidiary, or be merged into the Parent or a wholly-owned
Subsidiary of the Parent, immediately upon consummation of the Acquisition (or
if assets are being acquired, the acquiror shall be the Parent or a wholly-owned
Subsidiary of the Parent), and (iv) after giving effect to such Acquisition, the
aggregate Costs of Acquisition incurred in any Fiscal Year (on a noncumulative
basis, with the effect that amounts not incurred in any Fiscal Year may not be
carried forward to a subsequent period) shall not exceed twenty percent (20%) of
Consolidated Total Assets as of the end of the immediately preceding Fiscal
Year.








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10.3.   Liens.
Incur, create or permit to exist any Lien, charge or other encumbrance of any
nature whatsoever with respect to any property or assets now owned or hereafter
acquired by the Borrower, the Parent, or any of their Subsidiaries (except for
Transplace.com), other than:




(a)   Liens
created under the Security Instruments in favor of the Collateral Agent for the
benefit of the Credit Secured Parties, and otherwise existing as of the date
hereof and as set forth in Schedule
8.7;




(b)   Liens
imposed by law for taxes, assessments or charges of any Governmental Authority
for claims not yet due or which are being contested in good faith by appropriate
proceedings diligently conducted, and with respect to which adequate reserves
are being maintained in accordance with GAAP, which Liens are not yet
exercisable to effect the sale or seizure of property subject thereto;





(c)   statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and other Liens arising in the ordinary course of business and in existence less
than 90 days from the date of creation thereof for amounts not yet due or which
are being contested in good faith by appropriate proceedings diligently
conducted, and with respect to which adequate reserves are being maintained in
accordance with GAAP, which Liens are not yet exercisable to effect the sale or
seizure of property subject thereto;




(d)   Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security
benefits or to secure the performance of tenders, bids, leases, surety and
appeal bonds (not in excess of $5,000,000), contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar obligations
or arising as a result of progress payments under government
contracts;




(e)   easements
(including reciprocal easement agreements and utility agreements),
rights-of-way, covenants, consents, reservations, encroachments, variations and
zoning and other restrictions, charges or encumbrances (whether or not
recorded), which do not interfere materially with the ordinary conduct of the
business of the Borrower, the Parent or any of their Subsidiaries and which do
not materially detract from the value of the property to which they attach or
materially impair the use thereof to the Borrower, the Parent or any of their
Subsidiaries; 




(f)   purchase
money Liens to secure Indebtedness permitted under Section
10.4(d);
provided that no such Lien shall extend to any property other than the assets
purchased with the proceeds of such Indebtedness; 




(g)   Liens
arising in connection with Capital Leases permitted under Section
10.4;
provided that no such Lien shall extend to any property other than the assets
subject to such Capital Leases;








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(h)   Liens
securing financing permitted by Section
10.4(j);
and




(i)   Liens
on accounts receivable and proceeds thereof arising in connection with the
transfer thereof pursuant to a Permitted Receivables
Securitization.




10.4.   Indebtedness.
Incur, create, assume or permit to exist any Indebtedness, howsoever evidenced,
except:




(a)   Indebtedness
existing as of the Closing Date as set forth in Schedule
8.6,
provided,
none of the instruments and agreements evidencing or governing such Indebtedness
shall be amended, modified or supplemented after the Closing Date to change any
terms of subordination, repayment or rights of enforcement, conversion, put,
exchange or other rights from such terms and rights as in effect on the Closing
Date;




(b)   Indebtedness
owing to the Agent or any Lender in connection with this Agreement, any Note or
other Loan Document;




(c)   the
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; 




(d)   purchase
money Indebtedness not to exceed an aggregate outstanding principal amount at
any time of $40,000,000;




(e)   Indebtedness
arising from Rate Hedging Obligations permitted under Section
10.15;




(f)   Subordinated
Indebtedness;




(g)   unsecured
intercompany Indebtedness for loans and advances made by the Borrower or any
Subsidiary to the Parent or any other Guarantor which collectively do not exceed
at any time in aggregate principal amount the sum of Revolving Credit
Outstandings at such time plus amounts available at such time under the
Revolving Credit Facility for borrowing by the Borrower as Revolving
Loans;




(h)   additional
unsecured Indebtedness consisting of loans and advances made by Volunteer
Insurance Limited, a direct or indirect Subsidiary of the Parent, to the
Borrower or the Parent, provided
that the aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (h) shall in no event exceed $10,000,000 at any time
for each of the Borrower, the Parent and each Subsidiary in the
aggregate.




(i)   additional
unsecured Indebtedness for Money Borrowed not otherwise covered by clauses (a)
through (h) above, provided
that the aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (i) shall in no event exceed $5,000,000 at any time
for each of the Borrower, the Parent and each Subsidiary in the
aggregate;








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(j)   Indebtedness
secured by real property, Synthetic Lease Obligations and sale and leaseback
obligations relating to real property, provided that the aggregate of (i) the
outstanding principal amount of all Indebtedness secured by real property, (ii)
the outstanding principal amount of all Indebtedness arising under Synthetic
Lease Obligations, and (iii) the present value (calculated at a reasonable
discount rate acceptable to the Agent) of the aggregate amount of all future
lease payments incurred, acquired or assumed by the Borrower, the Parent or any
of their Subsidiaries relating to the sale and leaseback of real property shall
in no event exceed $60,000,000 at any time;




(k)   Indebtedness
arising in connection with any Permitted Receivables Securitization;
and




(l)   Indebtedness
extending the maturity of, or renewing, refunding or refinancing, in whole or in
part, Indebtedness incurred under clauses (a), (d), (f), (h) and (i) of this
Section
10.4,
provided that (A) the terms of any such extension, renewal, refunding or
refinancing Indebtedness (and of any agreement or instrument entered into in
connection therewith) are no less favorable to the Agent and the Lenders than
the terms of the Indebtedness as in effect prior to such action, and provided
further that immediately before and immediately after giving effect to any such
extension, renewal, refunding or refinancing, no Default or Event of Default
shall have occurred and be continuing, and (B) notwithstanding anything in the
foregoing to the contrary, any renewal (other than annual renewals, which are
specifically permitted), refunding or refinancing of the Permitted Receivables
Securitization or any Synthetic Lease Obligations that may arise shall require
the consent of the Agent and the Required Lenders.




10.5.   Transfer
of Assets.
Sell, lease, transfer or otherwise dispose of any assets of the Borrower, the
Parent or any Subsidiary of either, other than (a) dispositions of inventory in
the ordinary course of business, (b) dispositions of equipment or other property
that is substantially worn, damaged, obsolete or, in the judgment of the
Borrower or the Parent, no longer best used or useful in its business or that of
any Subsidiary, (c) dispositions of accounts receivable in connection with a
Permitted Receivables Securitization, (d) transfers of assets necessary to give
effect to merger or consolidation transactions permitted by Section
10.7
or to sale and leaseback transactions permitted by Section 10.13,
and (e) the disposition of Eligible Securities in the ordinary course of
management of the investment portfolios of the Borrower, the Parent, and their
Subsidiaries.




10.6.   Investments.
Purchase, own, invest in (by capital contribution, purchase of equity interest
or otherwise) or otherwise acquire, directly or indirectly, any stock or other
securities, or make or permit to exist any interest whatsoever in any other
Person or permit to exist any loans or advances to any Person,
except:




(a)   securities
of any Person acquired in an Acquisition permitted hereunder, or securities
acquired in connection with a Permitted Share Repurchase;








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(b)   Eligible
Securities;




(c)   investments
existing as of the date hereof and as set forth in Schedule
8.4;




(d)   accounts
receivable arising and trade credit granted in the ordinary course of business
and any securities received in satisfaction or partial satisfaction thereof in
connection with accounts of financially troubled Persons to the extent
reasonably necessary in order to prevent or limit loss; and




(e)   investments
in Subsidiaries which
are Guarantors (and including Transplace.com) and investments by the Parent in
the Borrower;




(f)      loans
by the Borrower or any Subsidiary to the Parent or to any other Guarantor as
described in Section
10.4(g);




(g)   additional
loans, advances and investments not otherwise covered by clauses (a) through (f)
above in an aggregate principal amount at any time outstanding not to exceed
$5,000,000.




10.7.   Merger
or Consolidation.
(a) Consolidate with or merge into any other Person, or (b) permit any other
Person to merge into it; provided,
however,
(i) any Subsidiary of the Borrower may merge or transfer all or substantially
all of its assets into or consolidate with the Borrower or any wholly-owned
Subsidiary of the Borrower, (ii) any other Subsidiary of the Parent (other than
the Borrower) may merge with the Parent or any other Subsidiary of the Parent,
(iii) any other Person may merge into or consolidate with the Borrower or the
Parent or any wholly-owned Subsidiary (the Borrower, the Parent or such
Subsidiary being the surviving corporation) and (iv) any Subsidiary (other than
the Borrower) may merge into or consolidate with any other Person in order to
consummate an Acquisition permitted by Section
10.2,
provided further,
that any resulting or surviving entity shall execute and deliver such agreements
and other documents, including a Facility Guaranty, and take such other action
as the Agent may require to evidence or confirm its express assumption of the
obligations and liabilities of its predecessor entities under the Loan
Documents.




10.8.   Restricted
Payments.
Make any Restricted Payment or apply or set apart any of their assets therefor
or agree to do any of the foregoing, other than (i) Permitted Share Repurchases
and (ii) cash dividends declared by the board of directors of the Parent
and paid thereby to its stockholders; provided
that the sum of (i) and (ii) from the Closing Date until the Stated Termination
Date, shall not exceed the sum of $32,762,512 plus 50% of the Consolidated Net
Income for each fiscal quarter commencing September 30, 2004 (such amount
reduced by 100% of the amount of any negative Consolidated Net Income during any
such period).








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10.9.   Transactions
with Affiliates.
Other than transactions permitted under Sections
10.6
and 10.7,
enter into any transaction after the Closing Date, including, without
limitation, the purchase, sale, lease or exchange of property, real or personal,
or the rendering of any service, with any Affiliate of the Parent, except (a)
that such Persons may render services to the Parent or its Subsidiaries for
compensation at substantially the same or more favorable rates generally paid by
Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Parent or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Parent or
such Subsidiary, (c) in either case (a) or (b) such transactions are in the
ordinary course of business and pursuant to the reasonable requirements of the
Parent’s (or any Subsidiary’s) business consistent with past practice of the
Parent and its Subsidiaries and upon fair and reasonable terms no less favorable
to the Parent (or any Subsidiary) than would be obtained in a comparable
arm’s-length transaction with a Person not an Affiliate, and (d) any other
transactions that amount to less than $1,000,000 in the aggregate annually
..




10.10.   Compliance
with ERISA, the Code and Foreign Benefit Laws.
With respect to any Pension Plan, Employee Benefit Plan or Multiemployer
Plan:




(a)   permit
the occurrence of any Termination Event which would result in a liability on the
part of the Borrower, the Parent or any ERISA Affiliate to the PBGC or to any
Governmental Authority; or




(b)   permit
the present value of all benefit liabilities under all Pension Plans to exceed
the current value of the assets of such Pension Plans allocable to such benefit
liabilities; or




(c)   permit
any accumulated funding deficiency (as defined in Section 302 of ERISA and
Section 412 of the Code) with respect to any Pension Plan, whether or not
waived; or




(d)   fail
to make any contribution or payment to any Multiemployer Plan which the
Borrower, the Parent or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto;
or




(e)   engage,
or permit any Subsidiary or any ERISA Affiliate to engage, in any prohibited
transaction under Section 406 of ERISA or Sections 4975 of the Code for which a
civil penalty pursuant to Section 502(I) of ERISA or a tax pursuant to Section
4975 of the Code may be imposed; or




(f)   permit
the establishment of any Employee Benefit Plan providing post-retirement welfare
benefits or establish or amend any Employee Benefit Plan which establishment or
amendment could result in liability to the Borrower or the Parent or any ERISA
Affiliate or increase the obligation of the Borrower or the Parent or any ERISA
Affiliate to a Multiemployer Plan; or








78
















(g)   fail,
or permit the Borrower or the Parent or any ERISA Affiliate to fail, to
establish, maintain and operate each Employee Benefit Plan in compliance in all
material respects with the provisions of ERISA, the Code, all applicable Foreign
Benefit Laws and all other applicable laws and the regulations and
interpretations thereof.




10.11.   Fiscal
Year.
Change its Fiscal Year.




10.12.   Dissolution,
Etc.
Wind up, liquidate or dissolve (voluntarily or involuntarily) or commence or
suffer any proceedings seeking any such winding up, liquidation or dissolution,
except in connection with a merger or consolidation permitted pursuant to
Section
10.7.




10.13.   Limitations
on Sales and Leasebacks.
Enter into any arrangement or arrangements with any Person providing for the
leasing by the Borrower, the Parent or any Subsidiary of either of real or
personal property, whether now owned or hereafter acquired in a single
transaction or series of related transactions, which has been or is to be sold
or transferred by the Borrower, the Parent or any of their Subsidiaries to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower, the Parent or any of their Subsidiaries, except for any such
arrangements entered into in connection with (i) the Synthetic Lease
Obligations, (ii) any sale and leaseback arrangement relating to the real
property where the present value (calculated at a reasonable discount rate
acceptable to the Agent) of the aggregate amount of all future lease payments
incurred, acquired or assumed by the Borrower, the Parent or any of their
Subsidiaries does not at any time exceed $60,000,000 less the sum of (A) the
outstanding principal amount of all Indebtedness secured by real property and
(B) the outstanding principal amount of all Indebtedness arising under Synthetic
Lease Obligations, and (iii) the truck and trailer leasing program in an
aggregate amount not to exceed in any Fiscal Year the sum of (A) $25,000,000
plus (B) 50% of the aggregate amount of Consolidated Net Income for each fiscal
quarter commencing with the fiscal quarter ended September 30, 2004 (such amount
reduced by 100% of the amount of any negative Consolidated Net Income during any
such fiscal quarter), as presently conducted and disclosed to the Agent and
Lenders and hereafter conducted in accordance with such past practices;
provided
that not later than ten (10) Business Days prior to any additional truck or
trailer sale and leaseback occurring after the Closing Date, the Parent and the
Borrower shall deliver (i) an adjusted Borrowing Base Certificate giving pro
forma effect to such sale and leaseback and (ii) a certificate of an Authorized
Representative demonstrating pro forma compliance with the financial covenants
contained in Article
X,
substantially in the form of Exhibit
H,
the covenant calculations in which shall be determined on a historical pro forma
basis as of the Four-Quarter Period most recently ended and shall give pro forma
effect to all lease payments incurred, acquired or assumed in connection with
such transaction calculated as if all such lease payments had been incurred as
of the first day of such Four-Quarter Period.




10.14.   Change
of Control.
Cause, suffer or permit to exist or occur any Change of
Control.








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10.15.   Rate
Hedging Obligations.
Incur any Rate Hedging Obligations or enter into any agreements, arrangements,
devices or instruments relating to Rate Hedging Obligations, except
(i) pursuant
to Swap Agreements in an aggregate notional amount not to exceed at any time 50%
of the Total Revolving Credit Commitment or as otherwise agreed by the Borrower
and the Agent and (ii) diesel fuel forward purchase contracts, commitments and
options entered into in the ordinary course of business, consistent with past
practices, and not for speculative purposes.




10.16.   Negative
Pledge Clauses.
Enter into or cause, suffer or permit to exist any agreement with any Person
other than the Agent and the Lenders pursuant to this Agreement or any other
Loan Documents which prohibits or limits the ability of any of the Borrower, the
Parent or any of their Subsidiaries (other than Transplace.com) to create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for Liens on shares
acquired in connection with a Permitted Share Repurchase, Liens on any other
shares of “margin stock” as such term is defined in Regulation U (12 CFR Part
221) of the Board, and Liens
on accounts receivable transferred in a Permitted Receivables
Securitization;
provided
that the Borrower, the Parent and any of their Subsidiaries may enter into such
an agreement in connection with, and that applies only to, real property which
is collateral for Indebtedness permitted hereunder and property acquired with
the proceeds of purchase money Indebtedness permitted hereunder subject
to any Lien permitted by this Agreement and not released after the date hereof,
when such prohibition or limitation is by its terms effective only against the
assets subject to such Lien.




10.17.   [Intentionally
Omitted]




10.18.   Change
in Accountants.
Change its independent public accountants without the Agent’s consent, such
consent not to be unreasonably withheld; provided, the Parent may change its
public accountants without the consent of the Agent to an independent certified
public accounting firm registered with the Public Company Accounting Oversight
Board and of nationally recognized standing at the time of such
change.




10.19.   Modification
or Prepayment of Indebtedness and Certain Documentation.




(a)    Amend,
modify or change in any manner any term or condition of any Indebtedness
described in Section
10.4(a), (d), (f), (g), (h), (i), (j), (k) or (l),
other than as permitted by Section
10.4(l),
or any Subordination Agreement, the Receivables Purchase Agreement or any other
document governing or evidencing a Permitted Receivables Securitization, or any
document governing or evidencing Synthetic Lease Obligations, so that the terms
and conditions thereof are any less favorable to the Agent and the Lenders than
the terms thereof as of the Closing Date or as thereafter initially entered into
in compliance with the terms of this Agreement, or deprive the Borrower or any
Guarantor or other Subsidiary of the Parent as a party to any Licensing
Agreement or Servicing Agreement of any license or right granted thereunder
necessary or conducive to the operation of its trucking
business;








80
















(b)      Terminate,
or cause, offer or permit to occur the termination of, any of the provisions of
any of the Licensing Agreements or any of the Servicing Agreements;




10.20.   Partnerships.
Become or be a general partner in any general or limited partnership except any
partnership holding, solely, all or a portion of the equity interest in
Transplace.com. 




10.21.   Restrictive
Agreements.
Enter into or cause, suffer or permit to exist any other agreement or
arrangement with any other Person which prohibits, limits or restricts the
ability of (i) any Subsidiary of the Parent or of the Borrower to make any
payments, directly or indirectly, to the Parent or the Borrower, respectively,
by way of dividends, advances, repayments of loans or advances, or other returns
on investments, or (ii) the Parent to make any equity investment in, capital
contribution to or loan or advance to the Borrower or to any other Subsidiary of
the Parent.








81













ARTICLE
XI




Events
of Default and Acceleration




11.1.   Events
of Default.
If any one or more of the following events (herein called “Events of Default”)
shall occur for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any Governmental Authority), that is to
say:




(a)   if
default shall be made in the due and punctual payment of the principal of any
Loan, Reimbursement Obligation or other Obligation, when and as the same shall
be due and payable whether pursuant to any provision of Article
II
or Article
III
or Article
IV,
at maturity, by acceleration or otherwise; or




(b)   if
default shall be made in the due and punctual payment of any amount of interest
on any Loan, Reimbursement Obligation or other Obligation or of any fees or
other amounts payable to any of the Lenders or the Agent on the date on which
the same shall be due and payable; or




(c)   if
default shall be made in the performance or observance of any covenant set forth
in Section
9.7,
9.11,
9.12,
9.19
or Article
X;
or




(d)   if
a default shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in this Agreement or the
Notes (other than as described in clauses (a), (b) or (c) above) and such
default shall continue for thirty (30) or more days after the earlier of receipt
of notice of such default by the Authorized Representative from the Agent or an
officer of the Borrower or of the Parent becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall occur under,
any covenant, agreement or provision contained in any of the other Loan
Documents (beyond any applicable grace period, if any, contained therein) or in
any instrument or document evidencing or creating any obligation, guaranty, or
Lien in favor of the Agent or any of the Lenders or delivered to the Agent or
any of the Lenders in connection with or pursuant to this Agreement or any of
the Obligations, or if any Loan Document ceases to be in full force and effect
(other than as expressly provided for hereunder or thereunder or with the
express written consent of the Agent), or if without the written consent of the
Lenders, this Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or unenforceable for
any reason whatsoever (other than as expressly provided for hereunder or
thereunder or with the express written consent of the Agent);
or








82
















(e)   if
there shall occur (i) a default, which is not waived, in the payment of any
principal, interest, premium or other amount with respect to (A) the Permitted
Receivables Securitization, (B) the Synthetic Lease Obligations, or (C) any
other Indebtedness (other than the Loans and other Obligations) of the Borrower,
the Parent or any Subsidiary of either in an amount or Rate Hedge Value, as
applicable, not less than $2,500,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or fulfillment of
any term or covenant contained in (A) the Receivables Purchase Agreement, (B)
any document governing or evidencing the Synthetic Lease Obligations, or (C) any
agreement or instrument under or pursuant to which any such Indebtedness or Rate
Hedging Obligation may have been issued, created, assumed, guaranteed or secured
by the Borrower, the Parent or any Subsidiary of the Parent, or (iii) with
respect to any such Rate Hedging Obligation, any termination event shall occur
as to which the Borrower, the Parent or any Subsidiary of the Parent is the
“affected party” under the agreement or instrument governing such Rate Hedging
Obligation, or (iv) any other event of default as specified in any agreement or
instrument under or pursuant to which any such Indebtedness may have been
issued, created, assumed, guaranteed or secured by the Borrower, the Parent or
any Subsidiary of either, and such default or event of default or termination
shall continue for more than the period of grace, if any, therein specified, or
such default or event of default or termination event shall permit the holder of
or counterparty to any such Indebtedness (or any agent or trustee acting on
behalf of one or more holders or counterparties) to accelerate the maturity of
any such Indebtedness or terminate any agreement or instrument governing any
such Rate Hedging Obligation; or




(f)   if
any representation, warranty or other statement of fact contained in any Loan
Document or in any writing, certificate, report or statement at any time
furnished to the Agent or any Lender by or on behalf of the Borrower, the Parent
or any other Credit Party pursuant to or in connection with any Loan Document,
or otherwise, shall be false or misleading in any material respect when given;
or




(g)   if
the Borrower, the Parent or any Subsidiary of either or other Credit Party shall
be unable to pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any substantial part of
its property; file a petition or answer seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or








83
















(h)   if
a court of competent jurisdiction shall enter an order, judgment or decree
appointing a custodian, receiver, trustee, liquidator or conservator of the
Borrower or the Parent or any Subsidiary of either or other Credit Party or of
the whole or any substantial part of its properties and such order, judgment or
decree continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower or the Parent or any Subsidiary of
either or other Credit Party seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other applicable law
or statute of the United States of America or any state, which petition is not
dismissed within sixty (60) days; or if, under the provisions of any other law
for the relief or aid of debtors, a court of competent jurisdiction shall assume
custody or control of the Borrower or the Parent or any Subsidiary of either or
other Credit Party or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there is
commenced against the Borrower or the Parent or any Subsidiary of either or
other Credit Party any proceeding or petition seeking reorganization,
arrangement or similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state which
proceeding or petition remains undismissed for a period of sixty (60) days; or
if the Borrower or the Parent or any Subsidiary of either or other Credit Party
takes any action to indicate its consent to or approval of any such proceeding
or petition; or




(i)      if
(i) one or more judgments or orders where the amount not covered by insurance
(or the amount as to which the insurer denies liability) is in excess of
$2,000,000 is rendered against the Borrower or the Parent or any Subsidiary of
either, or (ii) there is any attachment, injunction or execution against any of
the Borrower’s or Parent’s or either of their Subsidiaries’ properties for any
amount in excess of $2,000,000 in the aggregate; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged, unbonded or
undismissed for a period of thirty (30) days; or




(j)   if
the Borrower, the Parent or any Subsidiary of either shall, other than in the
ordinary course of business (as determined by past practices), suspend all or
any part of its operations material to the conduct of the business of the
Borrower, the Parent or such Subsidiary for a period of more than 60 days;
or




(k)   if
there shall occur and not be waived an Event of Default as defined in any of the
other Loan Documents;




then,
and in any such event and at any time thereafter, if such Event of Default or
any other Event of Default shall have not been waived,








84
















(A)   either
or both of the following actions may be taken: (i) the Agent may, and at the
direction of the Required Lenders shall, declare any obligation of the Lenders
and the Issuing Bank to make further Revolving Loans and Swing Line Loans or to
issue additional Letters of Credit terminated, whereupon the obligation of each
Lender to make further Revolving Loans, of Bank of America to make further Swing
Line Loans, and of the Issuing Bank to issue additional Letters of Credit,
hereunder shall terminate immediately, and (ii) the Agent shall at the direction
of the Required Lenders, at their option, declare by notice to the Borrower any
or all of the Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other obligations of the Borrower
to the Agent and the Lenders, shall forthwith become immediately due and payable
without presentment, demand, protest, notice or other formality of any kind, all
of which are hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwithstanding;
provided,
however, that notwithstanding the above, if there shall occur an Event of
Default under clause (g) or (h) above, then the obligation of the Lenders to
make Revolving Loans, of Bank of America to make Swing Line Loans, and of the
Issuing Bank to issue Letters of Credit hereunder shall automatically terminate
and any and all of the Obligations shall be immediately due and payable without
the necessity of any action by the Agent or the Required Lenders or notice to
the Agent or the Lenders; and




(B)   The
Borrower shall, upon demand of the Agent or the Required Lenders, deposit cash
with the Agent in an amount equal to the amount of any Letter of Credit
Outstandings, as collateral security for the repayment of any future drawings or
payments under such Letters of Credit, and such amounts shall be held by the
Agent pursuant to documentation in form and substance satisfactory to the Agent
and the Issuing Bank (which documents are hereby consented to by the Lenders);
and




(C)   the
Agent and each of the Lenders shall have all of the rights and remedies
available under the Loan Documents or under any applicable law.




11.2.   Agent
to Act.
In case any one or more Events of Default shall occur and not have been waived,
subject to the provisions of Article XII,
the Agent may, and at the direction of the Required Lenders shall, proceed to
protect and enforce their rights and remedies contained herein or in any other
Loan Document, or as may be otherwise available at law or in
equity.




11.3.   Cumulative
Rights.
No right or remedy herein conferred upon the Lenders or the Agent is intended to
be exclusive of any other rights or remedies contained herein or in any other
Loan Document, and every such right or remedy shall be cumulative and shall be
in addition to every other such right or remedy contained herein and therein or
now or hereafter existing at law or in equity or by statute, or
otherwise.








85
















11.4.   No
Waiver.
No course of dealing between the Borrower or the Parent and any Lender or the
Agent or any failure or delay on the part of any Lender or the Agent in
exercising any rights or remedies under any Loan Document or otherwise available
to it shall operate as a waiver of any rights or remedies and no single or
partial exercise of any rights or remedies shall operate as a waiver or preclude
the exercise of any other rights or remedies hereunder or of the same right or
remedy on a future occasion.




11.5.   Allocation
of Proceeds.
If an Event of Default has occurred and not been waived, and the maturity of the
Notes has been accelerated pursuant to Article
XI
hereof, all payments received by the Agent hereunder, including amounts
allocated and made available by the Collateral Agent to the Agent in respect of
the obligations and liabilities of the Credit Parties under the Loan Documents,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder, shall be applied by the Agent in the
following order:




(a)   the
reasonable expenses incurred in connection with retaking, holding, preserving,
processing, maintaining or preparing for sale, lease or other disposition of,
any Collateral, including reasonable attorney’s fees and legal expenses
pertaining thereto;




(b)   amounts
due to the Lenders and the Issuing Bank pursuant to Sections
4.6(a), 4.6(b), 4.6(c), and 13.5;




(c)   amounts
due to the Agent pursuant to Section
4.6(d);




(d)   payments
of interest on Loans, Swing Line Loans and Reimbursement Obligations, to be
applied for the ratable benefit of the Lenders (with amounts payable in respect
of Swing Line Outstandings being included in such calculation and paid to Bank
of America);




(e)   (i)
payments of principal of Loans, Swing Line Loans and Reimbursement Obligations
and (ii) Obligations consisting of liabilities under any Swap Agreement with any
of the Lenders or their affiliates, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings being
included in such calculation and paid to Bank of America) or affiliates of
Lenders (in connection with Swap Agreements);




(f)      amounts
due to the Issuing Bank, the Agent, the Lenders and others pursuant to
Sections
3.2(h),
9.15
and 13.9;




(g)   payments
of all other amounts due under any of the Loan Documents, if any, to be applied
for the ratable benefit of the recipients; and




(h)   any
surplus remaining after application as provided for herein, to the Borrower or
otherwise as may be required by applicable law.








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ARTICLE
XII




The
Agent




12.1.   Appointment,
Powers, and Immunities.
Each Lender hereby irrevocably appoints and authorizes the Agent to act as its
agent under this Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent (which term as used in this sentence
and in Section
12.5
and the first sentence of Section
12.6
hereof shall include its affiliates and its own and its affiliates’ officers,
directors, employees, and agents): 




(a)   shall
not have any duties or responsibilities except those expressly set forth in this
Agreement and the Loan Documents and shall not be a trustee or fiduciary for any
Lender; 




(b)   shall
not be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
or any other document referred to or provided for therein or for any failure by
any Credit Party or any other Person to perform any of its obligations
thereunder; 




(c)   shall
not be responsible for or have any duty to ascertain, inquire into, or verify
the performance or observance of any covenants or agreements by any Credit Party
or the satisfaction of any condition or to inspect the property (including the
books and records) of any Credit Party or any of its Subsidiaries or affiliates;
and




(d)   shall
not be responsible for any action taken or omitted to be taken by it under or in
connection with any Loan Document, except for its own gross negligence or
willful misconduct.




The
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. The term “Agent” as used in the Loan Documents shall
not connote any fiduciary or other implied obligation under applicable law, and
is used solely as a matter of market custom to connote an administrative
relationship between independent contracting parties.








87
















12.2.   Reliance
by Agent.
The Agent shall be entitled to rely, and shall be fully protected in relying,
upon any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone, telefacsimile,
Internet or intranet website posting or other distribution) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section
13.1
hereof. As to any action not expressly mandated by this Agreement, the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Agent shall believe in good faith shall be necessary, under this Agreement),
and such instructions shall be binding on all of the Lenders; provided,
however,
that the Agent shall not be required to take any action unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such
action.




12.3.   Defaults.
The Agent shall not be deemed to have knowledge or notice of the occurrence of a
Default or Event of Default unless the Agent has received written notice from a
Lender or the Borrower specifying such Default or Event of Default and stating
that such notice is a “Notice of Default”. In the event that the Agent receives
such a notice of the occurrence of a Default or Event of Default, the Agent
shall give prompt notice thereof to the Lenders. The Agent shall (subject to
Section
12.2
hereof) take such action with respect to such Default or Event of Default as
shall reasonably be directed by the Required Lenders, provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders.




12.4.   Rights
as Lender.
With respect to its Revolving Credit Commitment and the Loans made by it and
Letters of Credit issued by it, Bank of America (and any successor acting as
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and the term “Lender” or “Lenders” shall, unless the
context otherwise indicates, include the Agent in its individual capacity. Bank
of America (and any successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or any of its
Subsidiaries or affiliates as if it were not acting as Agent, and Bank of
America (and any successor acting as Agent) and its affiliates may accept fees
and other consideration from any Credit Party or any of its Subsidiaries or
affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.








88













12.5.   Indemnification.
The Lenders agree to indemnify the Agent and each of its affiliates, and their
respective officers, employees and agents (each, an “Agent Indemnitee”) (to the
extent not reimbursed under Section
13.9
hereof, but without limiting the obligations of the Borrower under such Section)
ratably in accordance with their respective Revolving Credit Commitments, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including reasonable attorneys’ fees), or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against any Agent Indemnitees (including by any Lender) in any
way relating to or arising out of any Loan Document or the transactions
contemplated thereby or any action taken or omitted by any Agent Indemnitee
under any Loan Document; provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified;
provided further, however, that no action or omission taken or occurring at the
direction of the Required Lenders shall constitute either gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any costs or
expenses payable by the Borrower under Section
13.5,
to the extent that the Agent is not promptly reimbursed for such costs and
expenses by the Borrower. The agreements contained in this Section
12.5
shall survive payment in full of the Loans and all other amounts payable under
this Agreement.




12.6.   Non-Reliance
on Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on the Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Credit Parties and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under the Loan Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
affiliates that may come into the possession of the Agent or any of its
affiliates.




12.7.   Resignation
of Agent.
The Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Agent’s giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which
shall be a commercial bank organized under the laws of the United States of
America having combined capital and surplus of at least $500,000,000;
provided that
if the Agent shall notify the Borrower and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations provided to be
made by, to or through the Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Agent as
provided for above in this Section
12.7.
Upon the acceptance of any appointment as Agent hereunder by a successor, such
successor shall thereupon succeed to and become vested with all the rights,
powers, discretion, privileges, and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent’s resignation hereunder as Agent, the provisions of
this Article
XII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent. 








89
















12.8.   Collateral
and Guaranty Matters.
The Lenders irrevocably authorize the Agent, at its option and in its
discretion,




(a)   to
release any Lien on any property granted to or held by the Agent under any Loan
Document (i) upon termination of the Total Revolving Credit Commitment and
payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii)
that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section
13.6,
if approved, authorized or ratified in writing by the Required
Lenders;




(b)   to
subordinate any Lien on any property granted to or held by the Agent under any
Loan Document to the holder of any Lien on such property that is permitted by
Section
10.3(f)
and (g);
and 




(c)   to
release any Guarantor from its obligations under any Facility Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.




Upon
request by the Agent at any time, the Required Lenders will confirm in writing
the Agent’s authority to release or subordinate its interest in particular types
or items of property, or to release any Guarantor from its obligations under the
Facility Guaranties pursuant to this Section
12.8.








90













ARTICLE
XIII




Miscellaneous




13.1.   Assignments
and Participations.
(a) Each Lender may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Loans, its Revolving Note, and its Revolving Credit
Commitment); provided,
however,
that 




(i)   each
such assignment shall be to an Eligible Assignee;




(ii)   except
in the case of an assignment to another Lender or an assignment of all of a
Lender’s rights and obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof;




(iii)   each
such assignment by a Lender shall be of a constant, and not varying, percentage
of all of its rights and obligations under this Agreement and its Revolving Note
(except that any assignment by Bank of America shall not include its rights,
benefits or duties as the Issuing Bank or as the provider of Swing Line Loans);





(iv)   any
assignment of a Revolving Credit Commitment must be approved by the Agent, the
Issuing Bank, and Bank of America, in its capacity as Swing Line lender, unless
the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee);
and




(v)   the
parties to such assignment shall execute and deliver to the Agent for its
acceptance an Assignment and Acceptance in the form of Exhibit
B
hereto, together with any Revolving Note subject to such assignment and a
processing fee of $3,500, provided that
no such processing fee will be due in the case of an assignment to an affiliate
of such Lender.




Upon
execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with Section 6.6.




(b)   The
Agent shall maintain at its address referred to in Section
13.2 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Revolving Loans
owing to, each Lender from time to time (the “Register”). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.








91
















(c)   Upon
its receipt of an Assignment and Acceptance executed by the parties thereto,
together with any Revolving Note subject to such assignment and payment of the
processing fee, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit
B
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.




(d)   Each
Lender may sell participations to one or more Persons (each, a “Participant”) in
all or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Loans); provided,
however,
that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participant shall be entitled to
the benefit of the yield protection provisions contained in Article VI
and the right of set-off contained in Section
13.3,
and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Revolving Loans and its Revolving
Note and to approve any amendment, modification, or waiver of any provision of
this Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such
Revolving Loans or Revolving Note, extending any scheduled principal payment
date or date fixed for the payment of interest on such Revolving Loans or
Revolving Note, or extending its Revolving Credit Commitment or releasing all or
substantially all of the Guarantors from the Facility Guaranties or all or
substantially all of the Collateral in any transaction or series of related
transactions).




(e)      Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
assign and pledge all or any portion of its Revolving Loans and its Revolving
Note to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations
hereunder.




(f)   Any
Lender may furnish any information concerning the Borrower or any of its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants).




(g)   Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are
contained in the Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Agent, the Lenders, or any of them. The Borrower may
not assign or otherwise transfer to any other Person any right, power, benefit,
or privilege (or any interest therein) conferred hereunder or under any of the
other Loan Documents, or delegate (by assumption or otherwise) to any other
Person any duty, obligation, or liability arising hereunder or under any of the
other Loan Documents, and any such purported assignment, delegation or other
transfer shall be void.








92
















13.2.   Notices;
Generally; Electronic Communications.





(a)   Notices
Generally.
Any notice shall be conclusively deemed to have been received by any party
hereto and be effective, other than as provided in subsection (b) with regard to
electronic communications, (i) on the day on which delivered (including hand
delivery by commercial courier service) to such party (against receipt
therefor), (ii) on the date of transmission to such party, in the case of notice
by telefacsimile (where the proper transmission of such notice is either
acknowledged by the recipient or electronically confirmed by the transmitting
device), or (iii) on the fifth Business Day after the day on which mailed to
such party, if sent prepaid by certified or registered mail, return receipt
requested, in each case delivered, transmitted or mailed, as the case may be, to
the address or telefacsimile number, as appropriate, set forth below or such
other address or number as such party shall specify by notice
hereunder:





	 	 
      (A)	if
      to the Borrower or to the Parent:






Covenant
Asset Management, Inc.

400
Birmingham Highway

Chattanooga,
Tennessee 37419

Attn:
Joey B. Hogan

Telephone:   (423)
821-1212

Telefacsimile:
(423) 821-5442

Electronic
Mail: hogjoe@covenanttransport.com





	 	  
      (B)	if
      to the Agent:



 

Bank
of America, N.A., as Agent

Agency
Management

Mailcode:
IL1-231-08-30

231
S. LaSalle Street

Chicago,
Illinois 60697

Attention:
Laura B. Schmuck

Telephone:   (312)
828-3935
                                   
Telefacsimile:  (877) 206-8427
Electronic
Mail: laura.b.schmuck@bankofamerica.com




with
a copy to:

 

Bank
of America, N.A.

Mailcode:
MA5-100-09-07

100
Federal Street

Boston,
Massachusetts 02110

Attention:
Robert L. Wallace, Jr.

Telephone:  (617) 434-8174

Telefacsimile: (617) 434-1955

                                   
Electronic Mail: robert.l.wallace@bankofamerica.com








93

















	 	   
      (C)	if
      to the Issuing Bank:



Bank
of America, N.A.

Trade
Finance

Mailcode:
CA9-703-19-23

333
S. Beaudry Avenue

Los
Angeles, California 90017-1466

Attention:
Tai Anh Lu

Telephone: (213) 345-0145

Telefacsimile:  (213)
345-6710

Electronic Mail: tai_anh.lu@bankofamerica.com

 


	 	 
      (D)	if
      to the Lenders:






At
the addresses set forth on the signature pages hereof and on the signature page
of each Assignment and Acceptance;





	 	 
      (E)	if
      to any other Credit Party, at the address set forth on the signature page
      of the Facility Guaranty or Security Instrument executed by such Credit
      Party, as the case may be.






(b)   Electronic
Communications.
Notices and other communications to the Lenders and the Issuing Bank hereunder
may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices to any Lender or the
Issuing Bank if such Lender or the Issuing Bank, as applicable, has notified the
Agent that it is incapable of receiving notices under such Article by electronic
communication. The Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.




Unless
the Agent otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.








94
















13.3.   Right
of Set-off; Adjustments.
(a) Upon the occurrence and during the continuance of any Event of Default, each
Lender (and each of its affiliates) is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender (or any of
its affiliates) to or for the credit or the account of the Parent or the
Borrower (other than any such deposits being held in trust for the benefit of
any non-Credit Party third parties) against any and all of the obligations of
the Parent or the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower and the
Agent after any such set-off and application made by such Lender; provided,
however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section
13.3
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender may have.




(b)   If
any Lender (a “benefited Lender”) shall at any time receive any payment of all
or part of the Loans owing to it, or interest thereon, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s
Revolving Loans owing to it, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender’s Revolving Loans owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided,
however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender or is repaid in whole or in part by such
benefited Lender in good faith settlement of a pending or threatened avoidance
claim, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery or settlement payment, but without
interest. The Borrower agrees that any Lender so purchasing a participation from
a Lender pursuant to this Section
13.3
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the amount
of such participation.




13.4.   Survival.
All covenants, agreements, representations and warranties made herein shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit and the execution and delivery to the Lenders of this Agreement and
the Notes and shall continue in full force and effect so long as any of
Obligations remain outstanding or any Lender has any Revolving Credit Commitment
hereunder or the Borrower has continuing obligations hereunder unless otherwise
provided herein.








95
















13.5.   Expenses.
The Borrower agrees to pay on demand all costs and expenses of the Agent in
connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Agreement, the other Loan
Documents, and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent (with
limitations as agreed by the Agent) with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
attorneys’ fees and expenses and the cost of internal counsel), in connection
with the enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Loan Documents and the other documents to be delivered
hereunder.




13.6.   Amendments,
Etc.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Credit
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Credit Party, as the case may be, and
acknowledged by the Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:




(a)   waive
any condition set forth in Section
7.1
without the written consent of each Lender;




(b)   extend
or increase the Revolving Credit Commitment or Letter of Credit Commitment of
any Lender (or reinstate any Revolving Credit Commitment or Letter of Credit
Commitment terminated pursuant to Section
11.1)
(other than increases in Revolving Credit Commitments effective pursuant to
Section
2.1(f))
without the written consent of such Lender;




(c)   postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;




(d)   reduce
the principal of, or the rate of interest specified herein on, any Loan or
Letter of Credit, or any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided,
however,
that only the consent of the Required Lenders shall be necessary (i) to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to
pay interest or fees on Letters of Credit at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
Letter of Credit or to reduce any fee payable hereunder;




(e)   change
Section
11.5
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;








96
















(f)   change
any provision of this Section or the definition of “Required Lenders” or the
percentage of the Total Revolving Credit Commitment or the unpaid principal
amount of the Notes, or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; or




(g)   release
all or substantially all of the Guarantors from the Facility Guaranties or all
or substantially all of the Collateral in any transaction or series of related
transactions without the written consent of each Lender;




and,
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Lenders required
above, affect the rights or duties of the Issuing Bank under this Agreement or
any Letter of Credit issued or to be issued by it or any Application and
Agreement for Letter of Credit; (ii) no amendment, waiver or consent shall,
unless in writing and signed by Bank of America as provider of Swing Line Loans
in addition to the Lenders required above, affect the rights or duties of Bank
of America as provider of Swing Line Loans under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above, affect the rights or duties of the Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Revolving Credit Commitment of such
Lender may not be increased or extended without the consent of such
Lender.




No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances, except
as otherwise expressly provided herein. No delay or omission on any Lender’s or
the Agent’s part in exercising any right, remedy or option shall operate as a
waiver of such or any other right, remedy or option or of any Default or Event
of Default.




13.7.   Counterparts;
Facsimile Signatures.
This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such fully-executed counterpart. Signatures on communications and other
documents may be transmitted by facsimile only with the consent of the Agent in
its sole and absolute discretion in each instance. The effectiveness of any such
signatures accepted by the Agent shall, subject to applicable law, have the same
force and effect as manual signatures and shall be binding on all parties. The
Agent may also require that any such signature be confirmed by a manually-signed
hard copy thereof. Each party hereto hereby adopts as an original executed
signature page each signature page hereafter furnished by such party to the
Agent (or an agent of the Agent) bearing (with the consent of the Agent) a
facsimile signature by or on behalf of such party. Nothing contained in this
Section shall limit the provisions of Section
12.2.








97













13.8.   Termination.
This Agreement shall terminate on the Facility Termination Date, except that (x)
those provisions which by the express terms thereof continue in effect
notwithstanding the Facility Termination Date, and (y) obligations in the nature
of continuing indemnities or expense reimbursement obligations not yet due and
payable, shall continue in effect. Notwithstanding the foregoing, if after
receipt of any payment of all or any part of the Obligations, the Agent, the
Issuing Bank or any Lender (including the Swing Line Lender) is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason or elects to repay any such
amount in good faith settlement of a pending or threatened avoidance claim, (i)
this Agreement (including the provisions pertaining to Participations in Letters
of Credit, Reimbursement Obligations, and Swing Line Loans) shall continue in
full force (or be reinstated, as the case may be) and the Borrower shall be
liable to, and shall indemnify and hold the Agent, the Issuing Bank or such
Lender harmless for, the amount of such payment surrendered until the Agent, the
Issuing Bank or such Lender shall have been finally and irrevocably paid in
full, and (ii) in the event any portion of any amount so required to be
surrendered by the Agent or the Issuing Bank or the Swing Line Lender shall have
been distributed to the Lenders, the Lenders shall promptly repay such amounts
to the Agent or the Issuing Bank or the Swing Line Lender on demand therefor.
The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent, the
Issuing Bank or the Lenders in reliance upon such payment, and any such contrary
action so taken shall be without prejudice to the Agent’s, the Issuing Bank’s or
the Lenders’ rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.




13.9.   Indemnification;
Limitation of Liability.
(a) Each of the Borrower and the Parent agrees to indemnify and hold harmless
the Agent, the Collateral Agent and each Lender and each of their affiliates and
their respective officers, directors, employees, agents, and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys’ fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted primarily from
such Indemnified Party’s gross negligence or willful misconduct. In the case of
an investigation, litigation or other proceeding to which the indemnity in this
Section
13.9
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, the Parent or either of
their respective directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. Each of the
Borrower and the Parent agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found in a
final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party’s gross negligence or willful
misconduct. Each of the Borrower and the Parent agrees not to assert any claim
against the Agent, the Collateral Agent, any Lender, any of their affiliates, or
any of their respective directors, officers, employees, attorneys, agents, and
advisers, on any theory of liability, for special, indirect, consequential, or
punitive damages arising out of or otherwise relating to the Loan Documents, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans. No Indemnified Party shall be liable for any damages
arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or
thereby.








98













(b)     
 The
agreements and obligations of the Borrower and the Parent contained in this
Section
13.9
shall continue in effect notwithstanding the Facility Termination
Date.




13.10.    Severability.
If any provision of this Agreement or the other Loan Documents shall be
determined to be illegal or invalid as to one or more of the parties hereto,
then such provision shall remain in effect with respect to all parties, if any,
as to whom such provision is neither illegal nor invalid, and in any event all
other provisions hereof shall remain effective and binding on the parties
hereto.




13.11.   Entire
Agreement.
This Agreement, together with the other Loan Documents, constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all previous proposals, negotiations, representations, commitments
and other communications between or among the parties, both oral and written,
with respect thereto.




13.12.   Agreement
Controls.
In the event that any term of any of the Loan Documents other than this
Agreement conflicts with any express term of this Agreement, the terms and
provisions of this Agreement shall control to the extent of such
conflict.




13.13.   Usury
Savings Clause.
Notwithstanding any other provision herein, the aggregate interest rate charged
under any of the Notes, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate (as such term is defined below). If the rate of interest
(determined without regard to the preceding sentence) under this Agreement at
any time exceeds the Highest Lawful Rate (as defined below), the outstanding
amount of the Loans made hereunder shall bear interest at the Highest Lawful
Rate until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect. In addition, if when
the Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, the Borrower shall pay to the Agent an amount equal
to the difference between the amount of interest paid and the amount of interest
which would have been paid if the Highest Lawful Rate had at all times been in
effect. Notwithstanding the foregoing, it is the intention of the Lenders and
the Borrower to conform strictly to any applicable usury laws. Accordingly, if
any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such Lender’s
option be applied to the outstanding amount of the Loans made hereunder or be
refunded to the Borrower. As used in this paragraph, the term “Highest Lawful
Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.








99
















13.14.   Treatment
of Certain Information; Confidentiality.
Each of the Agent, the Lenders and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its affiliates and to its and its affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Agent, any Lender, the Issuing Bank or any of their respective affiliates on
a nonconfidential basis from a source other than the Borrower. 




For
purposes of this Section, “Information” means all information received from the
Parent, the Borrower or any Subsidiary relating to the Parent, the Borrower or
any Subsidiary or any of their respective businesses, other than any such
information that is available to the Agent, any Lender or the Issuing Bank on a
nonconfidential basis prior to disclosure by the Parent, the Borrower or any
Subsidiary, provided that, in the case of information received from the Parent,
the Borrower or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential
information.




13.15.   Governing
Law; Waiver of Jury Trial.




(a)   THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE SECURITY INSTRUMENTS
WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE GOVERNED BY THE LAWS OF ANOTHER
JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TENNESSEE APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE. 








100
















(b)   THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF HAMILTON, STATE OF TENNESSEE, UNITED STATES OF AMERICA
AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.




(c)   THE
BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE OF A
COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO
THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
13.2,
OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN
EFFECT IN THE STATE OF TENNESSEE.




(d)   NOTHING
CONTAINED IN SUBSECTIONS
(b)
OR (c)
HEREOF SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER’S PROPERTY OR ASSETS MAY
BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH
JURISDICTION, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.




(e)   IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR
RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE
BORROWER, THE AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN
ANY SUCH ACTION, SUIT OR PROCEEDING.








101
















(f)   THE
BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE THAT ANY COURT TO
WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN
INCONVENIENT FORUM.




13.16   USA
PATRIOT Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify the Borrower in
accordance with the Act.




[Signatures
on following pages]








102















IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be made, executed and delivered by their duly authorized officers as of the
day and year first above written.





	 	
      COVENANT ASSET MANAGEMENT, INC.

      a Nevada corporation

	 	 	 
	 	
      By:
	
      /s/ Joey B. Hogan

	 	
      Name:
	
      Joey B. Hogan

	 	
      Title:
	
      Vice President








	 	
      COVENANT TRANSPORT, INC.

      a Nevada corporation

	 	 	 
	 	
      By:
	
      /s/ Joey B. Hogan

	 	
      Name:
	
      Joey B. Hogan

	 	
      Title:
	
      Executive Vice President, Chief Financial

      Officer and Assistant Secretary















































































CREDIT AGREEMENT

Signature Page











103

















	 	
      BANK OF AMERICA, N.A.

	 	 	 
	 	
      By:
	
      /s/ Robert L. Wallace

	 	
      Name:
	
      Robert L. Wallace

	 	
      Title:
	
      Managing Director

	 	 	 
	 	
      Lending Office for Base Rate Loans:

	 	 	
      Bank of America, N.A.

	 	 	
      101 North Tryon Street, 15th Floor

	 	 	
      NC1 001 15 04

	 	 	
      Charlotte, North Carolina 28255

	 	 	
      Attention: Agency Services

	 	 	
      Telephone: (704) 387-1184 

	 	 	
      Telefacsimile: (704) 409-0024 

	 	 	 
	 	
      Wire Transfer Instructions:

	 	 	
      Bank of America, N.A.

	 	 	
      ABA# 053000196

	 	 	
      Account No.: 136 621 225 0600

	 	 	
      Reference: Covenant Transport

	 	 	
      Attention: Agency Services

	 	 	 
	 	
      Lending Office for Eurodollar Rate Loans:

	 	 	
      Bank of America, N.A.

	 	 	
      101 North Tryon Street, 15th Floor

	 	 	
      NC1 001 15 04

	 	 	
      Charlotte, North Carolina 28255

	 	 	
      Attention: Agency Services

	 	 	
      Telephone: (704) 387-1184 

	 	 	
      Telefacsimile: (704) 409-0024 

	 	 	 
	 	
      Wire Transfer Instructions:

	 	 	
      Bank of America, N.A.

	 	 	
      ABA# 053000196

	 	 	
      Account No.: 136 621 225 0600

	 	 	
      Reference: Covenant Transport

	 	 	
      Attention: Agency Services

	 	 	 



















CREDIT
AGREEMENT

Signature
Page










104












 


		
      
      BANK OF AMERICA, N.A.,

      as Agent for the Lenders


	 	 	 
	 	
      By:
	
      
      /s/ Laura B. Schmuck


	 	
      Name:
	
      
      Laura B. Schmuck


	 	
      Title:
	
      
      Agency Officer

      Assistant Vice President


	 	 	 









































































































CREDIT
AGREEMENT

Signature
Page










105



















	 	
      BRANCH
      BANKING AND TRUST COMPANY

	 	 	 
	 	
      By:
	
      /s/
      L. Allen Rathbone, SVP

	 	
      Name:
	
      L.
      Allen Rathbone

	 	
      Title:
	
      Senior
      Vice President

	 	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      900
      S. Gay Street, 24th Floor

	 	 	
      Knoxville,
      Tennessee 37902

	 	 	
      Attention:
      Allen Rathbone

	 	 	
      Telephone:
      865-766-8641

	 	 	
      Telefacsimile:
      865-766-8717

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      Branch
      Banking and Trust Company

	 	 	
      ABA#:
      064 208 165

	 	 	
      Account
      No.: 9630159684

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Leslie Hahn

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      900
      S. Gay Street, 24th Floor

	 	 	
      Knoxville,
      Tennessee 37902

	 	 	
      Attention:
      Allen Rathbone

	 	 	
      Telephone:
      865-766-8641

	 	 	
      Telefacsimile:
      865-766-8717

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      Branch
      Banking and Trust Company

	 	 	
      ABA#:
      064 208 165

	 	 	
      Account
      No.: 9630159684

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Leslie Hahn































CREDIT
AGREEMENT

Signature
Page










106



















	 	
      NATIONAL
      CITY BANK OF KENTUCKY 

	 	 	 
	 	
      By:
	
      /s/
      Kevin L. Anderson

	 	
      Name:
	
      Kevin
      L. Anderson

	 	
      Title:
	
      Senior
      Vice President

	 	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      101
      South Fifth Street, 37th Floor

	 	 	
      Louisville,
      Kentucky 40202

	 	 	
      Attention:
      Kevin Anderson

	 	 	
      Telephone:
      502-581-7874

	 	 	
      Telefacsimile:
      502-581-4424

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      National
      City Bank of Kentucky

	 	 	
      Louisville,
      Kentucky

	 	 	
      ABA#:
      083000056

	 	 	
      Account
      No.: 151804

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Kevin Anderson

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      101
      South Fifth Street, 37th Floor

	 	 	
      Louisville,
      Kentucky 40202

	 	 	
      Attention:
      Kevin Anderson

	 	 	
      Telephone:
      502-581-7874

	 	 	
      Telefacsimile:
      502-581-4424

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      National
      City Bank of Kentucky

	 	 	
      Louisville,
      Kentucky

	 	 	
      ABA#:
      083000056

	 	 	
      Account
      No.: 151804

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Kevin Anderson

	 	 	 





















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      FIRST
      TENNESSEE BANK NATIONAL ASSOCIATION 

	 	 	 
	 	
      By:
	
      /s/
      Robert T. Lusk

	 	
      Name:
	
      Robert
      T. Lusk

	 	
      Title:
	
      Vice
      President

	 	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      701
      Market Street

	 	 	
      Chattanooga,
      Tennessee 37402

	 	 	
      Attention:
      Robert T. Lusk

	 	 	
      Telephone:
      423-757-4107

	 	 	
      Telefacsimile:
      423-757-4028

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      First
      Tennessee Bank National Association

	 	 	
      ABA#:
      084000026

	 	 	
      Account
      No.: 114174-1088

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Robert Lusk

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      701
      Market Street

	 	 	
      Chattanooga,
      Tennessee 37402

	 	 	
      Attention:
      Robert T. Lusk

	 	 	
      Telephone:
      423-757-4107

	 	 	
      Telefacsimile:
      423-757-4028

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      First
      Tennessee Bank National Association

	 	 	
      ABA#:
      084000026

	 	 	
      Account
      No.: 114174-1088

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Robert Lusk

	 	 	 
























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AGREEMENT

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      BNP
      PARIBAS 

	 	 	 
	 	
      By:
	
      /s/
      Jeff Tebeaux

	 	
      Name:
	
      Jeff
      Tebeaux

	 	
      Title:
	
      Vice
      President

	 	 	 
	 	
      By:
	
      /s/
      Lloyd G. Cox

	 	
      Name:
	
      Lloyd
      G. Cox

	 	
      Title:
	
      Managing
      Director

	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      919
      3rd Avenue

	 	 	
      New
      York, New York 10022

	 	 	
      Attention:
      Gabriel Candamo

	 	 	
      Telephone:
      212-471-6626

	 	 	
      Telefacsimile:
      212-841-2683

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      BNP
      Paribas New York

	 	 	
      New
      York, New York

	 	 	
      ABA#:
      026007689

	 	 	
      Account
      No.: 52131543461

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Gabriel Candamo

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      919
      3rd Avenue

	 	 	
      New
      York, New York 10022

	 	 	
      Attention:
      Gabriel Candamo

	 	 	
      Telephone:
      212-471-6626

	 	 	
      Telefacsimile:
      212-841-2683

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      BNP
      Paribas New York

	 	 	
      New
      York, New York

	 	 	
      ABA#:
      026007689

	 	 	
      Account
      No.: 52131543461

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Gabriel Candamo
















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AGREEMENT

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      AMSOUTH
      BANK 

	 	 	 
	 	
      By:
	
      /s/
      W. Walter Robinson

	 	
      Name:
	
      W.
      Walter Robinson

	 	
      Title:
	
      Vice
      President

	 	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      250
      Riverchase Parkway, BH3641

	 	 	
      Hoover,
      Alabama 35244

	 	 	
      Attention:
      Valencia Jackson

	 	 	
      Telephone:
      205-560-5261

	 	 	
      Telefacsimile:
      205-560-6858

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      AmSouth
      Bank

	 	 	
      Birmingham,
      Alabama

	 	 	
      ABA#:
      062000019

	 	 	
      Account
      No.: 001102450400362

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Valencia Jackson

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      250
      Riverchase Parkway, BH3641

	 	 	
      Hoover,
      Alabama 35244

	 	 	
      Attention:
      Valencia Jackson

	 	 	
      Telephone:
      205-560-5261

	 	 	
      Telefacsimile:
      205-560-6858

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      AmSouth
      Bank

	 	 	
      Birmingham,
      Alabama

	 	 	
      ABA#:
      062000019

	 	 	
      Account
      No.: 001102450400362

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Valencia Jackson




























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AGREEMENT

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      SUNTRUST
      BANK

	 	 	 
	 	
      By:
	
      /s/
      William H. Crawford

	 	
      Name:
	
      William
      H. Crawford

	 	
      Title:
	
      Director

      SunTrust
      Bank

	 	 	 
	 	
      Lending
      Office for Base Rate Loans:

	 	 	
      303
      Peachtree Street, 10th Floor

	 	 	
      Atlanta,
      Georgia 30308

	 	 	
      Attention:
      Bonnie Langley

	 	 	
      Telephone:
      404-658-4624

	 	 	
      Telefacsimile:
      404-230-1940

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      SunTrust
      Bank

	 	 	
      Atlanta,
      Georgia

	 	 	
      ABA#
      061-000-104

	 	 	
      Account
      No.: 9088000112

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Corporate Banking Operations

	 	 	 
	 	
      Lending
      Office for Eurodollar Rate Loans:

	 	 	
      303
      Peachtree Street, 10th Floor

	 	 	
      Atlanta,
      Georgia 30308

	 	 	
      Attention:
      Bonnie Langley

	 	 	
      Telephone:
      404-658-4624

	 	 	
      Telefacsimile:
      404-230-1940

	 	 	 
	 	
      Wire
      Transfer Instructions:

	 	 	
      SunTrust
      Bank

	 	 	
      Atlanta,
      Georgia

	 	 	
      ABA#
      061-000-104

	 	 	
      Account
      No.: 9088000112

	 	 	
      Reference:
      Covenant Transport

	 	 	
      Attention:
      Corporate Banking Operations

























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AGREEMENT

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