Exhibit 10.1


 





REFINANCING AMENDMENT


(AMENDMENT NO. 6 TO CREDIT AGREEMENT)


 


REFINANCING AMENDMENT (this “Agreement”),
dated as of March 3, 2021, among XPO LOGISTICS, INC., a Delaware corporation (the “Borrower”), the other Subsidiaries
of the Borrower party hereto, each financial institution identified on the signature pages hereto as a lender, and Morgan Stanley
Senior Funding, Inc., as administrative agent and collateral agent for the Lenders (in such capacities, the “Agent”),
relating to the Senior Secured Term Loan Credit Agreement, dated as of October 30, 2015 (as heretofore amended, amended and restated,
extended, supplemented or otherwise modified from time to time prior to the date hereof, including by that certain Incremental
and Refinancing Amendment (Amendment No. 1 to Credit Agreement), dated as of August 25, 2016, that certain Refinancing Amendment
(Amendment No. 2 to Credit Agreement), dated as of March 10, 2017, that certain Refinancing Amendment (Amendment No. 3 to Credit
Agreement), dated as of February 23, 2018, that certain Amendment No. 4 to Credit Agreement, dated as of March 7, 2019, and that
certain Amendment No. 5 to Credit Agreement, dated as of March 18, 2019, the “Credit Agreement”), among the
Borrower, the other Subsidiaries of the Borrower from time to time party thereto, the Lenders from time to time party thereto and
the Agent.


 


RECITALS:


 


WHEREAS, the Borrower desires to reprice
all outstanding Term B Loans and Term B-1 Loans under the Credit Agreement pursuant to the terms hereof such that the Applicable
Margin applicable thereto shall be reduced to (x) 1.75% per annum for any LIBOR Loan and (y) 0.75% per annum for any Base Rate
Loan.


 


WHEREAS, immediately following the effectiveness
of such repricing, the Borrower and the lenders party hereto (the “Refinancing Term Lenders”) (which Refinancing
Term Lenders, taken together, constitute all Lenders after giving effect to the Refinancing Transaction), desire to make certain
other changes to the terms of the Credit Agreement as set forth in Section 3 of this Agreement.


 


WHEREAS, the foregoing transactions will
be implemented pursuant to Section 2.16 and Section 12.2 of the Credit Agreement, as applicable.


 


NOW THEREFORE, the parties hereto hereby
agree as follows:


 


Section
1. Defined Terms. Unless
otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to
such term in the Credit Agreement.


 






     


     


    

 


Section
2. Refinancing Term Loans.


 


(a)              
Subject to and upon the terms and conditions set forth herein, each Refinancing Term Lender severally agrees to make, on
the Amendment No. 6 Closing Date (as defined below), a Refinancing Loan (the “Refinancing Term Loans”) in Dollars
to the Borrower (or, in the case of a Converting Refinancing Term Lender (as defined below), convert, exchange or roll its Refinanced
Term Loan (as defined below) for a Refinancing Term Loan in an equal principal amount) on the Amendment No. 6 Closing Date in
an aggregate principal amount equal to the commitment amount set forth next to such Refinancing Term Lender’s name in Schedule
1, Part A hereto (in the case of any Refinancing Term Lender making its Refinancing Term Loan in cash) or Schedule 1, Part B hereto
(in the case of any Refinancing Term Lender converting, exchanging or rolling its Refinanced Term Loan to or for a Refinancing
Term Loan), under the caption “Refinancing Term Commitment” (the “Refinancing Term Commitment”) on
the terms set forth in this Agreement. Each Refinancing Term Commitment will terminate in full upon the making of the related
Refinancing Term Loan (or conversion, exchange or roll of the related Refinanced Term Loan, as applicable). Refinancing Term Loans
borrowed under this Section 2 and subsequently repaid or prepaid may not be reborrowed. In addition, each Refinancing Term Lender
waives its right to any compensation pursuant to Section 2.11(b) of the Credit Agreement with respect to the prepayment, exchange,
roll or conversion of its Refinanced Term Loans. For the purposes hereof, “Refinanced Term Loans” shall mean all Loans
outstanding immediately prior to the effectiveness of this Agreement.


 


(b)              
Substantially simultaneously with the borrowing of Refinancing Term Loans, the Borrower shall fully prepay any outstanding
Refinanced Term Loans and shall pay all accrued and unpaid interest on the existing Term B Loans and Term B-1 Loans to the Amendment
No. 6 Closing Date; provided that each Converting Refinancing Term Lender irrevocably agrees to accept, in lieu of cash
for the outstanding principal amount of its Refinanced Term Loan so prepaid, on the Amendment No. 6 Closing Date an equal principal
amount of Refinancing Term Loans in accordance with this Agreement. For the purposes hereof, (x) “Converting Refinancing
Term Lender” means a Refinancing Term Lender that agrees pursuant to this Agreement to convert, exchange or “cashless
roll” all, or any portion, of its Refinanced Term Loan for a Refinancing Term Loan and (y) “Refinancing Transaction”
shall mean the transactions contemplated by this Section 2.


 


Section
3. Amendments to Credit Agreement. Immediately following the effectiveness of the Refinancing Transaction, the
Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:
stricken text) and to add the underlined text (indicated in the same manner as
the following example: underlined text) as
set forth in the changed pages of the Credit Agreement attached as Exhibit A hereto, effective immediately following the
effectiveness of the Refinancing Transaction on the Amendment No. 6 Closing Date.


 


Section
4 Terms of the Refinancing Term Loans Generally. On the Amendment No. 6 Closing Date, giving effect to the Refinancing
Term Loans hereunder, (a) each Refinancing Term Lender shall become a “Lender” and a “Term B Lender” for
all purposes of the Credit Agreement and the other Loan Documents, and (b) each Refinancing Term Loan shall constitute a “Loan”
and a “Term B Loan” for all purposes of the Credit Agreement and the other Loan Documents. The Refinancing Term Loans
shall be on identical terms as contemplated hereby and shall constitute a single class of Loans under the Credit Agreement. The
parties hereto hereby consent to the incurrence of, and allocation to the proceeds of, the Refinancing Term Loans and the other
amendments to the Credit Agreement contemplated hereby on the terms set forth herein. Upon the effectiveness of this Agreement,
all conditions and requirements set forth in the Credit Agreement or the other Loan Documents relating to the incurrence of the
Refinancing Term Loans and the other amendments to the Credit Agreement contemplated hereby shall be deemed satisfied and the incurrence
of the Refinancing Term Loans and such other amendments shall be deemed arranged and consummated in accordance with the terms of
the Credit Agreement (before and after giving effect to this Agreement) and the other Loan Documents.


 






    2


     


    

 


Section
5. Representations of the Borrower. The Borrower and each other
Credit Party hereby represents and warrants to the Agent and the Refinancing Term Lenders that on the Amendment No. 6 Closing Date:


 


(a)          
 no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence
of the Refinancing Term Loans;


 


(b)          
the representations and warranties set forth in Section 4 of the Credit Agreement and in each other Loan Document shall
be true and correct in all material respects on and as of the Amendment No. 6 Closing Date, except to the extent that such representations
or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of
such earlier date.


 


Section
6. Conditions to the Amendment No. 6 Closing Date. This Agreement shall become effective as of the first date
when each of the following conditions shall have been satisfied (the date of satisfaction of such conditions and the funding of
the Refinancing Term Loans, the “Amendment No. 6 Closing Date”):


 


(a)           
The Agent shall have received from the Borrower, each other Credit Party, each Refinancing Term Lender, and the Agent (acting
at the express direction of all Refinancing Term Lenders under the Credit Agreement as amended hereby) an executed counterpart
hereof or other written confirmation (in form satisfactory to the Agent) that such party has signed a counterpart hereof.


 


(b)           
The Agent shall have received a borrowing notice (with respect to the Refinancing Term Loans) at least one Business Day
prior to the Amendment No. 6 Closing Date, legal opinions, corporate documents and officers and public officials certifications
(including a solvency certificate) with respect to the Borrower and the Guarantors in each case customary for financings of the
type described herein (it being understood that any such documentation shall be deemed “customary” if in a form consistent
with such documentation delivered in connection with Amendment No. 5 on the Amendment No. 5 Closing Date (subject to adjustments
to be reasonably agreed taking into account the nature of the facilities contemplated hereby));


 


(c)           
Morgan Stanley Senior Funding, Inc., in its capacity as arranger of the amendments contemplated by this Agreement (the “Arranger”),
and the Agent shall have received, at least three business days prior to the Amendment No. 6 Closing Date, all documentation and
other information related to the Borrower or any Guarantor required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act, in each case to
the extent requested by the Arranger or the Agent from the Borrower in writing at least 10 Business Days prior to the Amendment
No. 6 Closing Date.


 


(d)           
All fees due to the Arranger on the Amendment No. 6 Closing Date pursuant to the Engagement Letter and the Fee Letters,
each dated as of February 22, 2021 between the Borrower and the Arranger and pertaining to the Refinancing Term Loans made hereunder,
shall have been paid, and all reasonable and documented out-of-pocket expenses to be paid or reimbursed to the Arranger on the
Amendment No. 6 Closing Date pursuant to such Engagement Letter or Fee Letter that have been invoiced at least three Business Days
prior to the Amendment No. 6 Closing Date shall have been paid.


 


(e)           
Any (i) accrued and unpaid interest owing by the Borrower to any Lender pursuant to the Credit Agreement, and (ii) subject
to the penultimate sentence of Section 2(a) hereof, fees owing by the Borrower pursuant to Section 2.11(b) of the Credit Agreement
in each case as a result of the consummation of the transactions contemplated by this Agreement shall have been paid in full, in
each case, to the Amendment No. 6 Closing Date.


 






    3


     


    

 


(f)           
 The representations and warranties made pursuant to Section 5 hereof shall be true and correct in all material respects
on and as of the Amendment No. 6 Closing Date, except to the extent that such representations or warranties expressly relate to
an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;


 


(g)           
Since December 31, 2020, no event shall have occurred that alone or together with any other events, has had a material adverse
effect on the business, financial condition, operations or properties of the Borrower and its Subsidiaries, taken as a whole.


 


(h)           
The Agent shall have received a certificate, duly executed by an Officer of the Borrower, certifying as to the satisfaction
of the conditions referred to in Sections 6(f) and 6(g) above.


 


Section
7. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws
of the State of New York.


 


Section
8. Confirmation of Guarantees and Security Interests. By signing this Agreement, each Credit Party hereby confirms
that (a) the obligations of the Credit Parties under the Credit Agreement as modified or supplemented hereby (including with respect
to the Refinancing Term Loans contemplated by this Agreement) and the other Loan Documents (i) are entitled to the benefits of
the guarantees and the security interests set forth or created in the Credit Agreement, the Collateral Documents and the other
Loan Documents, (ii) constitute “Obligations” as such term is defined in the Credit Agreement, subject to the qualifications
and exceptions described therein, (iii) notwithstanding the effectiveness of the terms hereof, the Collateral Documents and the
other Loan Documents, are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects
and (b) each Refinancing Term Lender shall be a “Secured Party” and a “Lender” (including without limitation
for purposes of the definition of “Requisite Lenders” contained in Section 1.1 of the Credit Agreement) for all purposes
of the Credit Agreement and the other Loan Documents. Each Credit Party ratifies and confirms that all Liens granted, conveyed,
or assigned to the Agent by such Person pursuant to any Loan Document to which it is a party remain in full force and effect, are
not released or reduced, and continue to secure full payment and performance of the Secured Obligations as increased hereby, subject
to Section 6.10(e) of the Credit Agreement.


 


Section
9. Credit Agreement Governs. Except as expressly set forth herein, this Agreement shall not by implication or
otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or the Agent under the
Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Credit Party
to a future consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.


 


Section
10. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile or electronic (i.e., “pdf” or “tif”)
transmission shall be effective as delivery of a manually executed counterpart of this Agreement. Any signature to this
Agreement may be delivered by electronic mail (including pdf) or any electronic signature complying with the U.S. federal
ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so
delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest
extent permitted by applicable law.


 






    4


     


    

 


Section
11. Miscellaneous. This Agreement shall constitute a “Refinancing Amendment” and a “Loan Document”
for all purposes of the Credit Agreement and the other Loan Documents. The provisions of this Agreement are deemed incorporated
into the Credit Agreement as if fully set forth therein. To the extent required by the Credit Agreement, each of the Borrower and
the Agent hereby consents to each Refinancing Term Lender that is not a Lender as of the date hereof becoming a Lender under the
Credit Agreement on the Amendment No. 6 Closing Date. The Agent and the Refinancing Term Lenders hereby acknowledge that the Borrower
has complied with the notice provisions required by Section 2.16 of the Credit Agreement in connection with the Refinancing Term
Loans. For only the purpose of Sections 11.1(a)(ii)(B) and 11.1(a)(iv)(A) of the Credit Agreement, the Borrower hereby consents
to the assignments by Morgan Stanley Senior Funding, Inc. (or its designated affiliate), in its capacity as a Lender under the
Credit Agreement, on or before the date that is 45 calendar days from the Amendment No. 6 Closing Date, in a manner otherwise in
accordance with the Credit Agreement, as amended by this Agreement, of its Refinancing Term Loans made by it on the Amendment No.
6 Closing Date solely to the institutions and solely in the amounts previously agreed upon by Morgan Stanley Senior Funding, Inc.
(or its designated affiliate) and the Borrower.


 


[Remainder of page intentionally
left blank]


 


 






    5


     


    

 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first above written.


 


	 	BORROWER:
	 	 
	 	XPO
    LOGISTICS, INC.
	 	 
	 	By: 	/s/ Ravi Tulsyan
	 	Name: 	Ravi Tulsyan
	 	Title:	 Deputy Chief Financial Officer and Treasurer




 


[Signature Page – Amendment No. 6 to XPO
Senior Secured Term Loan Credit Agreement]


 






     


     


    

  


The following Persons are signatories to this Agreement in their
capacity as Guarantors:


 


BOUNCE LOGISTICS, LLC


CON-WAY MULTIMODAL INC.


MANUFACTURERS CONSOLIDATION SERVICE OF CANADA,
INC.


XPO AIR CHARTER, LLC


XPO CNW, INC.


XPO COURIER, LLC 


XPO CUSTOMS CLEARANCE SOLUTIONS, LLC 


XPO DEDICATED, LLC


XPO ENTERPRISE SERVICES, LLC 


XPO GLOBAL FORWARDING, INC.


XPO INTERMODAL, INC. 


XPO INTERMODAL SERVICES, LLC


XPO INTERMODAL SOLUTIONS, INC. 


XPO LAND HOLDINGS, LLC


XPO LAST MILE, INC.


XPO LAST MILE HOLDING, INC.


XPO LOGISTICS CARTAGE, LLC


XPO LOGISTICS DRAYAGE, LLC


XPO LOGISTICS EXPRESS, LLC


XPO LOGISTICS FREIGHT, INC.


XPO LOGISTICS MANAGED TRANSPORTATION, LLC


XPO LOGISTICS MANUFACTURING, LLC


XPO LOGISTICS NLM, LLC


XPO LOGISTICS PORT SERVICES, LLC


XPO LOGISTICS SUPPLY CHAIN CORPORATE SERVICES,
INC. 


XPO LOGISTICS SUPPLY CHAIN HOLDING COMPANY


XPO LOGISTICS SUPPLY CHAIN OF NEW JERSEY, LLC



XPO LOGISTICS SUPPLY CHAIN OF TEXAS, LLC 


XPO LOGISTICS SUPPLY CHAIN, INC. 


XPO LOGISTICS WORLDWIDE GOVERNMENT SERVICES,
LLC


XPO LOGISTICS WORLDWIDE, INC.


XPO LOGISTICS WORLDWIDE, LLC


XPO LOGISTICS, LLC


XPO LTL HOLDINGS, LLC


XPO LTL SOLUTIONS, LLC


XPO Manufacturing
Holdings, LLC


XPO NAT
Solutions, LLC


XPO PROPERTIES, INC.


XPO SERVCO, LLC


XPO STACKTRAIN, LLC 


XPO TRANSPORT, LLC


 


	 	By:	/s/
    Ravi Tulsyan
	 	Name:	Ravi
    Tulsyan
	 	Title:	Senior
    Vice President and Treasurer




 


[Signature Page – Amendment
No. 6 to XPO Senior Secured Term Loan Credit Agreement]


 






     


     


    

 


	 	PDS
    TRUCKING, INC.
	 	XPO
    Distribution Services, Inc.
	 	 
	 	By:	/s/ Karlis P. Kirsis 
	 	Name:	Karlis
    P. Kirsis
	 	Title:	Secretary




 


[Signature Page – Amendment No. 6 to XPO Senior Secured Term Loan Credit Agreement]


 






     


     


    

 


	 	MORGAN
    STANLEY SENIOR FUNDING, INC., as a Lender
	 	 
	 	By:	/s/ Maya Venkatraman 
	 		Name: Maya Venkatraman
	 		Title: Authorized Signatory  



 


[Signature Page
 – Amendment No. 6 to XPO Senior Secured Term Loan Credit Agreement]


 






     


     


    

 


	 	MORGAN STANLEY SENIOR FUNDING, INC., as Agent
	 	 
	 	By:	/s/ Maya Venkatraman
	 		Name: Maya Venkatraman
	 		Title: Authorized Signatory


 


[Signature Page
 – Amendment No. 6 to XPO Senior Secured Term Loan Credit Agreement]


 






     


     


    

  


Remaining Signature Pages


 


[To be held on file with the Agent]


 


[Signature Page – Amendment No.
6 to XPO Senior Secured Term Loan Credit Agreement]


 






     


     


    

 


 


SCHEDULE 1


Refinancing Term Commitments


 


[To be
held on file with the Agent]


 






     


     


    

  


EXHIBIT A 



 



 



 


SENIOR
SECURED TERM LOAN CREDIT AGREEMENT1



by and among



XPO LOGISTICS, INC.,

as Borrower,



THE OTHER SUBSIDIARIES SIGNATORY HERETO,

as Guarantors,



THE LENDERS SIGNATORY HERETO

FROM TIME TO TIME,

as Lenders,



MORGAN STANLEY SENIOR FUNDING, INC.

as Agent,



MORGAN STANLEY SENIOR FUNDING, INC.,

J.P. MORGAN SECURITIES LLC, BARCLAYS BANK PLC,

DEUTSCHE BANK SECURITIES INC., HSBC SECURITIES (USA) INC.

and CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Joint Lead Arrangers and Joint Bookrunners


 


Dated
as of October 30, 2015


 




 





 


 



1
Conformed for Incremental and Refinancing Amendment No. 1, Refinancing Amendment No. 2, Refinancing Amendment No. 3, Amendment
No. 4 to Credit Agreement dated March 7, 2019 and Amendment No. 5.


 




    


     


    

 





	SENIOR SECURED TERM LOAN CREDIT AGREEMENT	1
	 	 
	RECITALS	 	1
	 	 	 	 
	1.	DEFINITIONS, ACCOUNTING PRINCIPLES AND OTHER INTERPRETIVE MATTERS	1
	 	 	 
	1.1	Definitions	1
	1.2	Rules of Construction	5867
	1.3	Interpretive Matters	5867
	1.4	[Reserved]Spin Transactions	5968
	1.5	Timing of Payment or Performance	5968
	1.6	LLC Division/Series Transactions	68
	 	 	 	 
	2.	AMOUNT AND TERMS OF CREDIT	5968
	 	 	 
	2.1	Term Facility	5968
	2.2	Maturity and Repayment of Loans	6170
	2.3	Prepayments; Commitment Reductions	6271
	2.4	Use of Proceeds	6574
	2.5	Interest; Applicable Margins	6574
	2.6	[Reserved]	6676
	2.7	Fees	6676
	2.8	Receipt of Payments	6776
	2.9	Application and Allocation of Payments	6776
	2.10	Evidence of Debt	6777
	2.11	Indemnity.	6777
	2.12	[Reserved]Interest Rate Determination.	6978
	2.13	Taxes	6980
	2.14	Capital Adequacy; Increased Costs; Illegality	7182
	2.15	Incremental Loans	7384
	2.16	Refinancing Facilities	7586
	2.17	Extended Loans	7687
	 	 	 	 
	3.	CONDITIONS PRECEDENT	7788
	 	 	 	 
	3.1	Conditions to the Closing Date	7788
	 	 	 	 
	4.	REPRESENTATIONS AND WARRANTIES	8091
	 	 	 	 
	4.1	Corporate Existence; Compliance with Law	8091
	4.2	Chief Executive Offices; Collateral Locations; FEIN	8091
	4.3	Corporate Power; Authorization; Enforceable Obligations; No Conflict	8091
	4.4	Financial Statements	8192
	4.5	Material Adverse Effect	8192
	4.6	Ownership of Property; Liens	8192
	4.7	Labor Matters	8192
	4.8	Subsidiaries and Joint Ventures	8293
	4.9	Investment Company Act	8293
	4.10	Margin Regulations	8293



 



    -i-


     


    

 


	4.11	Taxes/Other	8293
	4.12	ERISA	8293
	4.13	No Litigation	8394
	4.14	[Reserved]	8394
	4.15	Intellectual Property	8394
	4.16	Full Disclosure	8495
	4.17	Environmental Matters	8495
	4.18	Insurance	8495
	4.19	[Reserved]	8595
	4.20	[Reserved]	8596
	4.21	Creation and Perfection of Security Interests	8596
	4.22	Solvency	8596
	4.23	Economic Sanctions and Anti-Money Laundering	8596
	4.24	Economic Sanctions, FCPA, Patriot Act; Use of Proceeds	8596
	4.25	[Reserved]	8596
	4.26	Status as Senior Debt	8696
	4.27	FCPA and Related	8697
	 	 	 	 
	5.	FINANCIAL STATEMENTS AND INFORMATION	8697
	 	 	 	 
	5.1	Financial Reports and Notices	8697
	 	 	 	 
	6.	AFFIRMATIVE COVENANTS	8899
	 	 	 	 
	6.1	Maintenance of Existence and Conduct of Business	8899
	6.2	Payment of Charges and Taxes	8899
	6.3	Books and Records	8899
	6.4	Insurance; Damage to or Destruction of Collateral	8899
	6.5	Compliance with Laws	8899
	6.6	PATRIOT Act	8999
	6.7	Intellectual Property	89100
	6.8	Environmental Matters	89100
	6.9	Ratings	89100
	6.10	Further Assurances	89100
	6.11	ERISA Matters	91102
	6.12	Future Guarantors	91102
	6.13	Access	92103
	6.14	Post-Closing Matters	92103
	6.15	Use of Proceeds	92103
	 	 	 	 
	7.	NEGATIVE COVENANTS	92103
	 	 	 	 
	7.1	Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock	92103
	7.2	Limitation on Restricted Payments	99110
	7.3	Dividend and Other Payment Restrictions Affecting Subsidiaries	104115
	7.4	Asset Sales	106117
	7.5	Transactions with Affiliates	106117
	7.6	[Reserved]	108120
	7.7	Liens	109120
	7.8	When Borrower and Guarantors May Merge or Transfer Assets	110121



 



    -ii-


     


    

 


	7.9	OFAC; Patriot Act	112123
	7.10	Change of Fiscal Year	112123
	7.11	ERISA	112123
	 	 	 	 
	8.	TERM	112123
	 	 	 	 
	8.1	Termination	112123
	 	 	 	 
	9.	DEFAULTS AND REMEDIES	112123
	 	 	 	 
	9.1	Events of Default	112123
	9.2	Remedies	114125
	9.3	Waiver by Credit Parties	114126
	 	 	 	 
	10.	APPOINTMENT OF AGENT	115126
	 	 	 	 
	10.1	Appointment of Agents	115126
	10.2	Agents’ Reliance, Etc	115127
	10.3	MSSF and Affiliates	116127
	10.4	Lender Credit Decision	116128
	10.5	Indemnification	117128
	10.6	Successor Agent	117128
	10.7	Setoff and Sharing of Payments	117129
	10.8	Dissemination of Information	118129
	10.9	Actions in Concert	118129
	10.10	Procedures	118129
	10.11	Collateral Matters	119130
	10.12	Additional Agents	119130
	10.13	Distribution of Materials to Lenders	120131
	10.14	Agent	120132
	10.15	Intercreditor Agreements	121132
	10.16	Certain ERISA Matters	132
	 	 	 	 
	11.	ASSIGNMENT AND PARTICIPATIONS; SUCCESSORS AND ASSIGNS	121133
	 	 	 	 
	11.1	Assignment and Participations	121133
	11.2	Successors and Assigns	124137
	11.3	Certain Assignees	125137
	 	 	 	 
	12.	MISCELLANEOUS	125137
	 	 	 	 
	12.1	Complete Agreement; Modification of Agreement	125137
	12.2	Amendments and Waivers	125137
	12.3	Fees and Expenses	127139
	12.4	No Waiver	128140
	12.5	Remedies	129141
	12.6	Severability	129141
	12.7	Conflict of Terms	129141
	12.8	Confidentiality	129141
	12.9	GOVERNING LAW	130142
	12.10	Notices	131143



 



    -iii-


     


    

 


	12.11	Section Titles	132144
	12.12	Counterparts	132144
	12.13	WAIVER OF JURY TRIAL	132144
	12.14	Press Releases and Related Matters	132144
	12.15	Reinstatement	132145
	12.16	Advice of Counsel	133145
	12.17	No Strict Construction	133145
	12.18	Patriot Act Notice	133145
	12.19	Currency Equivalency Generally; Change of Currency	133145
	12.20	[Reserved]	133145
	12.21	Electronic Transmissions	133145
	12.22	Independence of Provisions	134146
	12.23	No Third Parties Benefited	134146
	12.24	Relationships between Lenders and Credit Parties	134147
	12.25	Intercreditor Agreements	135147
	12.26	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	147
	12.27	Acknowledgement Regarding Any Supported QFCs	148
	 	 	 	 
	13.	GUARANTY	135148
	 	 	 	 
	13.1	Guaranty	135149
	13.2	Waivers by Guarantors	136149
	13.3	Benefit of Guaranty	136149
	13.4	Subordination of Subrogation, Etc	136149
	13.5	Election of Remedies	137149
	13.6	Limitation	137150
	13.7	Contribution with Respect to Guaranty Obligations	137150
	13.8	Liability Cumulative	138151
	13.9	[Reserved]	138151
	13.10	Release of Guaranties	138151




 




    -iv-


     


    
 

INDEX
OF APPENDICES


 


	Annex
    A	--	Agent’s
    Wire Transfer Information
	Annex
    B	--	Commitments
    as of Closing Date
	 	 	 
	Exhibit
    1.1(a)	--	Form
    of Supplemental Guaranty
	Exhibit
    1.1(b)	--	Form
    of ABL Intercreditor Agreement
	Exhibit
    1.1(c)	--	Form
    of Compliance Certificate
	Exhibit
    1.1(d)	--	Form
    of Security Agreement
	Exhibit
    1.1(e)	--	Form
    of Pari Passu Intercreditor Agreement
	Exhibit
    1.1(f)	--	Form
    of Junior Intercreditor Agreement
	Exhibit
    1.1(g)	--	Form
    of Note
	Exhibit
    1.1(h)	--	Form
    of Permitted Loan Purchase Assignment and Acceptance
	Exhibit
    2.1(b)	--	Form
    of Notice of Borrowing
	Exhibit
    2.5(e)	--	Form
    of Notice of Conversion/Continuation
	Exhibit
    3.1	--	Form
    of Solvency Certificate
	Exhibit
    11.1(a)	--	Form
    of Assignment Agreement
	 	 	 
	Schedule
    A-1	--	Guarantors
	Schedule
    2.1	--	Agent’s
    Representatives
	Schedule
    4.2	--	Chief
    Executive Office, Jurisdiction of Organization; Principal Place of Business; Collateral Locations; FEIN
	Schedule
    4.6	--	Real
    Property and Leases
	Schedule
    4.7	--	Labor
    Matters
	Schedule
    4.8	--	Subsidiaries
    and Joint Ventures
	Schedule
    4.13	--	Litigation
	Schedule
    4.15	--	Intellectual
    Property
	Schedule
    4.17	--	Hazardous
    Materials
	Schedule
    6.10(b)	--	Material
    Real Property
	Schedule
    6.13	--	Unrestricted
    Subsidiaries
	Schedule
    6.14	--	Post-Closing
    Matters
	Schedule
    7.1	--	Indebtedness
    on the Closing Date



 



    -v-


     


    

 


SENIOR
SECURED TERM LOAN CREDIT AGREEMENT


 


This
SENIOR SECURED TERM LOAN CREDIT AGREEMENT (as the same may be amended, supplemented, restated or otherwise modified from time
to time, this “Agreement”), dated as of October 30, 2015, by and among XPO LOGISTICS, INC., a Delaware corporation
(“Borrower”); the other Credit Parties from time to time signatory hereto; MORGAN STANLEY SENIOR FUNDING, INC.
(“MSSF”), as administrative agent and collateral agent for the Lenders (together, with any permitted successors
in such capacity, “Agent”); and the Lenders signatory hereto from time to time.


 


RECITALS


 


WHEREAS,
in connection with the Transactions, Borrower has requested that the Lenders extend credit to Borrower in the form of Loans in
an aggregate principal amount not to exceed $1,600,000,000, and the Lenders are willing to do so on the terms and conditions set
forth herein.


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration,
the parties hereto agree as follows:


 


	1.	DEFINITIONS,
ACCOUNTING PRINCIPLES AND OTHER INTERPRETIVE MATTERS.



 


1.1          
Definitions. For purposes of this Agreement:


 


“20192023 Notes” means Borrower’s 7.8756.125%
Senior Notes due 20192023 issued on August 25, 2014 and February 13, 20152016 in an initial aggregate principal amount of $900,000,000535,000,000.


 


“20192023 Notes Indenture” means the Indenture dated as of August 25, 20142016 among Borrower and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee, under
which the 20192023 Notes were issued.


 


“2021
Notes” means Borrower’s 5.75% Senior Notes due 2021 issued on June 9, 2015 in an initial aggregate principal
amount of €500,000,000.


 


“2023
Notes Transactions” means the “Refinancing Transactions” (as defined in the 2023 Notes Indenture).


 


“20222024 Notes” means Borrower’s 6.506.750%
Senior Notes due 20222024 issued on June 9, 2015February
22, 2019 in an initial aggregate principal amount of $1,600,000,0001,000,000,000.


 


“2024
Notes Indenture” means the Indenture dated as of February 22, 2019 among Borrower and Wells Fargo Bank, National Association,
as trustee, under which the 2024 Notes were issued.


 


“2024
Notes Transactions” means the “Refinancing Transactions” (as defined in the 2024 Notes Indenture).


 


“2025
Notes” means, collectively, Borrower’s 6.250% Senior Notes due 2025 issued on April 28, 2020 in an aggregate
principal amount of $850,000,000
and 6.250% Senior Notes due 2025 issued on May 27, 2020 in an aggregate
principal amount of $300,000,000.


 



    -1-


     


    

 


“2021/20222025 Notes Indenture” means the Indenture dated as of June 9, 2015April
28, 2020 among Borrower and The Bank of New York Mellon Trust Company, N.A., a national
banking association, as trustee, The Bank of New York Mellon, London Branch as London paying agent and The Bank of New York Mellon
(Luxembourg) S.A. as Luxembourg paying agent,Wells
Fargo Bank, National Association, as trustee, under which the 2021 Notes and 20222025
Notes were issued.


 


“2021/20222025 Notes Offering MemorandumMemoranda”
means, collectively, the “Offering Memorandum”
(as defined in the 2021/2022 Notes Indenture) and
the Offering Memorandum, dated May 21, 2020, relating to the issuance of the and 6.250% Senior Notes due 2025 issued on May 27,
2020 in an aggregate principal amount of $300,000,000.


 


“2021/20222025 Notes Transactions” means the “Refinancing
Transactions” (as defined in the 2021/20222025 Notes Indenture).


 


“ABL
Agent” means MSSF, asthe administrative agent,  and MSSF and
JPMorgan Chase Bank, N.A. asthe collateral agent (or co-collateral agents), in each case under the
ABL Facility, and any successors thereto.


 


“ABL
Assets” means (i) accounts (as defined in the Uniform Commercial Code or the PPSA or any similar legislation) of Borrower
and any Restricted Subsidiary, (ii) equipment (as defined in the Uniform Commercial Code or the PPSA or any similar legislation)
of Borrower and any Restricted Subsidiary and (iii) all railcars, chassis, trucks, trailers or tractors owned by Borrower
and any Restricted Subsidiary.


 


“ABL
Credit Agreement” means that certain Second Amended and Restated Revolving Loan Credit Agreement, dated as of October
30, 2015, among Borrower, MSSF, as administrative agent, and the other parties thereto,
as amended, restated, supplemented, refinanced, replaced or otherwise modified time to time.


 


“ABL
Facility” means the asset-based revolving credit facilities under the ABL Credit Agreement.


 


“ABL
Intercreditor Agreement” means the intercreditor agreement dated as of the Closing Date among Agent, the ABL Agent and
the Credit Parties, substantially in the form of Exhibit 1.1(b), as modified
by the ABL Intercreditor Agreement Joiner and as the same may be further
amended, restated, supplemented or otherwise modified from time to time, or any other intercreditor agreement among
the ABL Agent, Agent and the Credit Parties on terms that are not less favorable in any material respect to the Secured Parties
than those contained in the form attached as Exhibit 1.1(b).


 


“ABL
Intercreditor Agreement Joinder” means that certain Lien Sharing and Priority Confirmation Joinder,
dated as of April 9,
2020, among Agent, Bilateral Agent and ABL Agent.


 


“Acquired
Indebtedness” means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time
such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person,
and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. Acquired Indebtedness will be
deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted
Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of
such assets.


 



    -2-


     


    

 


“Additional
Lender” means, at any time, any bank, other financial institution or institutional investor that, in any case, is
not an existing Lender and that agrees to provide any portion of any (a) Incremental Loan in accordance with Section 2.15
or (b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.16; provided
that each Additional Lender (other than any Person that is a Lender, an Affiliate of a Lender or an Approved Fund of a Lender
at such time) shall be subject to the approval of Agent (such approval not to be unreasonably withheld or delayed), in each
case to the extent any such consent would be required from Agent under Section 11.1(a)(iv) for an assignment of
Loans to such Additional Lender.


 


“Additional
Refinancing Amount” means, in connection with the Incurrence of any Refinancing Indebtedness, the aggregate principal
amount of additional Indebtedness, Disqualified Stock or Preferred Stock Incurred to pay accrued and unpaid interest, premiums
(including tender premiums), expenses, defeasance costs and fees in respect thereof.


 


“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.


 


“Affected
Lender” has the meaning ascribed to it in Section 2.14(d).


 


“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control with”), as used
with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.


 


“Affiliate
Transaction” has the meaning ascribed to it in Section 7.5(a).


 


“Agent”
has the meaning ascribed to it in the preamble to this Agreement.


 


“Agreement”
has the meaning given to such term in the preamble hereto.


 


“All-In
Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue
discount, upfront fees (and similar yield related discounts, deducts or payments), a LIBOR Rate floor or Base Rate floor greater
than 1.0% per annum or 2.0% per annum, respectively (with such increased amount being equated to interest margins for purposes
of determining any increase to the Applicable Margin), or otherwise; provided that original issue discount and upfront
fees shall be equated to interest rate assuming a four-year life to maturity (or, if less, the stated life to maturity at the
time of its incurrence of the applicable Indebtedness); and provided, further, that “All-In Yield” shall not
include arrangement fees, structuring fees or underwriting or similar fees paid to arrangers for such Indebtedness that are not
shared with the lenders providing such Indebtedness.


 


“Allocable
Amount” has the meaning ascribed to it in Section 13.7(b).


 


“Amendment
No. 1” means the Incremental and Refinancing Amendment (Amendment No. 1 to Credit Agreement) dated as of August 25,
2016 among the Borrower, the other Credit Parties thereto, the Lenders party thereto and the Agent.


 


“Amendment
No. 1 Closing Date” means has the meaning set forth in Amendment No.1, and occurred on August 25, 2016.


 



    -3-


     


    

 


“Amendment
No. 2” means the Refinancing Amendment (Amendment No. 2 to Credit Agreement) dated as of March 10, 2017 among the Borrower,
the other Credit Parties thereto, the Lenders party thereto and the Agent.


 


“Amendment
No. 2 Closing Date” has the meaning set forth in Amendment No. 2, and occurred on March 10, 2017.


 


“Amendment
No. 3” means the Refinancing Amendment (Amendment No. 3 to Credit Agreement) dated as of February 23, 2018 among the
Borrower, the other Credit Parties thereto, the Lenders party thereto and the Agent.


 


“Amendment
No. 3 Closing Date” has the meaning set forth in Amendment No. 3, and occurred on February 23, 2018.


 


“Amendment
No. 5” means the Incremental Amendment (Amendment No. 5 to Credit Agreement) dated as of March 18, 2019 among the Borrower,
the other Credit Parties party thereto, the Term B-1 Lenders party thereto and the Agent.


 


“Amendment
No. 5 Closing Date” has the meaning set forth in Amendment No. 5, and occurred on March 18, 2019.


 


“Amendment
No. 6” means the Refinancing Amendment (Amendment No. 6 to Credit Agreement) dated as of March 3, 2021 among the Borrower,
the other Credit Parties thereto, the Lenders party thereto and the Agent. 


 


“Amendment
No. 6 Closing Date” has the meaning set forth in Amendment No. 6, and occurred on March 3, 2021. 


 


“Applicable
Margin” shall mean for any day with respect to (i) any LIBOR Loan that is a Term B Loan, 2.001.75%
per annum, and
(ii) any Base Rate Loan that is a Term B Loan, 1.00% per annum, (iii) any LIBOR Loan that is
a Term B-1 Loan, 2.50% per annum and (iv) any Base Rate Loan that is a Term B-1 Loan, 1.500.75%
per annum.


 


“Approved
Fund” means, with respect to any Lender, any Person (other than a natural Person) that (a) is or will be engaged
in making, purchasing, holding or otherwise investing in revolving commercial loans and similar extensions of credit in the ordinary
course of its business and (b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any
Person (other than a natural Person) or any Affiliate of any Person (other than a natural Person) that administers or manages
such Lender.


 


“Asset
Sale” means:


 


(1)          the
sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions) of property
or assets (including by way of Sale/ Leaseback Transactions) outside the ordinary course of business of Borrower or any Restricted
Subsidiary (each referred to in this definition as a “disposition”); or


 


(2)          the
issuance or sale of Equity Interests (other than directors’ qualifying shares and shares issued to foreign nationals or
other third parties to the extent required by applicable law) of any Restricted Subsidiary (other than to Borrower or another
Restricted Subsidiary) (whether in a single transaction or a series of related transactions),


 



    -4-


     


    

 


in
each case other than:


 


(a)          a
disposition of Cash Equivalents or Investment Grade Securities or obsolete, damaged, surplus, uneconomic, negligible or worn out
property or equipment in the ordinary course of business (including the abandonment of any intellectual property or surrender
or transfer for no consideration) or otherwise as may be required pursuant to the terms of any lease, sublease, license or sublicense;


 


(b)         the
disposition of all or substantially all of the assets of Borrower or any Guarantor in a manner permitted pursuant to Section 7.8
or any disposition that constitutes a Change of Control;


 


(c)         any
Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 7.2;


 


(d)         any
disposition of assets of Borrower or any Restricted Subsidiary or issuance or sale of Equity Interests of Borrower or any Restricted
Subsidiary, which assets or Equity Interests so disposed or issued in any single transaction or series of related transactions
have an aggregate Fair Market Value (as determined in good faith by Borrower) of less than $55.0 million;


 


(e)         any
disposition of property or assets, or the sale or issuance of securities, by Borrower or a Restricted Subsidiary to Borrower or
a Restricted Subsidiary; provided that no Credit Party that is a Non-Con-way Subsidiary may dispose of any Equity Interests
or any Principal Property to a Con-way Subsidiary pursuant to this clause (e) if such disposition would cause such Equity
Interests or such Principal Property to be Excluded Property, unless Borrower agrees that such property will not constitute Excluded
Property;


 


(f)
          any disposition of the Capital Stock of any joint venture to the extent required by
the terms of customary buy-sell type arrangements entered into in connection with the formation of such joint venture;


 


(g)         any
exchange of assets (including a combination of assets and Cash Equivalents) for assets related to a Similar Business of comparable
or greater market value or usefulness to the business of Borrower and the Restricted Subsidiaries as a whole, as determined in
good faith by Borrower;


 


(h)         foreclosure
or any similar action with respect to any property or other asset of Borrower or any of its Restricted Subsidiaries;


 


(i)          any
disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;


 


(j)          the
lease, assignment or sublease of any real or personal property in the ordinary course of business;


 


(k)         any
sale of inventory or other assets in the ordinary course of business;


 


(l)          any
grant in the ordinary course of business of any license or sublicense of patents, trademarks, know-how or any other intellectual
property;


 



    -5-


     


    

 


(m)        any
swap of assets, or lease, assignment or sublease of any real or personal property, in exchange for services (including in connection
with any outsourcing arrangements) of comparable or greater value or usefulness to the business of Borrower and the Restricted
Subsidiaries as a whole, as determined in good faith by Borrower;


 


(n)         a
transfer of assets of the type specified in the definition of “Securitization Financing” (or a fractional undivided
interest therein), including by a Securitization Subsidiary in a Qualified Securitization Financing;


 


(o)         (i)
any financing transaction with respect to property built or acquired by Borrower or any Restricted Subsidiary after the Closing
Date, including any Sale/Leaseback Transaction or asset securitization permitted by this Agreement, and (ii) any Sale/Leaseback
Transactions consummated with respect to Railcars that Borrower or any of its Restricted Subsidiaries acquires from the original
lessor thereof in connection with the termination of the related lease and with the intent of refinancing such Railcars under
a new Sale/Leaseback Transaction;


 


(p)         dispositions
in connection with Permitted Liens;


 


(q)         any
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other
than Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary
acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition
and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;


 


(r)          dispositions
of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy
or similar proceedings and exclusive of factoring or similar arrangements;


 


(s)         any
surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other
claims of any kind;


 


(t)          making
Chassis, containers and Railcars available, on a non-exclusive basis, to third parties in accordance with the UIIA and the Interchange
System, as the case may be, in the ordinary course of business consistent with past practices and undertaken in good faith;


 


(u)         if and for so long as the Capital Stock of Con-way
constitutes “margin stock” within the meaning of Regulation U, any dispositions of such Capital Stock to the extent
the value of such Capital Stock, together with the value of all other margin stock held by Borrower
and its Subsidiaries, exceeds 25% of the total value of their assets subject to Section 7.4;
and[reserved];


 


(v)         any
transfer of accounts receivable and related assets in connection with any factoring or similar arrangements entered into by Foreign
Subsidiaries on arm’s-length terms;


 


(w)        dispositions
of real property (i) for the purpose of (x) resolving minor title disputes or defects, including encroachments and lot line
adjustments, or (y) granting easements, rights of way or access and egress agreements, or (ii) to any Governmental Authority
in consideration of the grant, issuance, consent or approval of or to any development agreement, change of zoning or zoning variance,
permit or authorization in connection with the conduct of any Credit Party’s business, in each case which does not materially
interfere with the business conducted on such real property; and 


 



    -6-


     


    

 


(x)          if
and for so long as theBorrower
or any of its Subsidiaries holds Capital Stock of Con-waythat constitutes “margin stock” within the meaning of Regulation U, dispositions of such Capital Stock to the
extent that the value of such Capital Stock, together with the value of all other margin stock held by Borrower and its Subsidiaries,
exceeds 25% of the total value of their assets.;
and


 


(y)         the
Distribution and any other dispositions pursuant to the Spin Transactions.


 


“Assignment
Agreement” has the meaning ascribed to it in Section 11.1(a)(i).


 


“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for
such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used
for determining the length of a LIBOR Period pursuant to this Agreement as of such date and not including,
for the avoidance of doubt, any tenor
for such Benchmark that is then-removed from the definition of “LIBOR Period” pursuant to clause (e) of Section 2.12.


 


“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA
Resolution Authority in respect of any liability of an EEAAffected Financial Institution.


 


“Bail-inBail-In Legislation” means, (a) with respect to
any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law, rule, regulation or requirement
for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.,
and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any
other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment
firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency
proceedings).


 


“Bankruptcy
Code” means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq.


 


“Bankruptcy
Law” means the Bankruptcy Code or any similar Federal or state law for the relief of debtors.


 


“Base
Rate” means, for any day, a floating rate equal to the highest of (i) the rate of interest per annum from time
to time published in the “Money Rates” section of The Wall Street Journal as being the “Prime Lending
Rate” or, if more than one rate is published as the Prime Lending Rate, then the highest of such rates (the “Prime
Rate”) (each change in the Prime Rate to be effective as of the date of publication in The Wall Street Journal
of a “Prime Lending Rate” that is different from that published on the preceding domestic business
dayBusiness Day); provided, that
in the event that The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, Agent
shall choose (in a manner consistent with its choice under similar credit agreements in respect of which Agent is acting as administrative
agent) a reasonably comparable index or source to use as the basis for the Prime Lending Rate, (ii) the Federal Funds Rate
plus 50 basis points per annum and (iii) LIBOR Rate for a LIBOR Period of one-month beginning on such day plus
1.00%. In no event shall the Base Rate be less than 0.00%. Each change in any interest rate provided for in this Agreement
based upon the Base Rate shall take effect at the time of such change in the Base Rate. If
the Base Rate is being used as an alternate rate of interest pursuant to Section 2.12 (for the avoidance of doubt, only until
the Benchmark Replacement has been determined pursuant to Section 2.12(a)), then the Base Rate shall be the greater of clauses
(i) and (ii) above and shall be determined without reference to clause (iii) above.


 



    -7-


     


    

 


“Base
Rate Loan” means a Loan or portion thereof bearing interest by reference to the Base Rate.


 


“Base
Rate Margin” means the per annum interest rate margin from time to time in effect and payable with respect to Base Rate
Loans, as determined in accordance with the definition of Applicable Margin.


 


“Benchmark”
means, initially, the LIBOR Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in
Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate or the then-current
Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement
has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 2.12.


 


“Benchmark
Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by
the Agent for the applicable Benchmark Replacement Date:


 


(1)          the
sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;


 


(2)          the
sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;


 


(3)          the
sum of: (a) the alternate benchmark rate that has been selected by the Agent and Borrower as the replacement for the then-current
Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated
credit facilities at such time in the U.S. syndicated loan market and (b) the related Benchmark Replacement Adjustment;


 


provided
that, in
the case of clause (1),
such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time
to time as selected by the Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary
in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term
SOFR Notice,  on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall
be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as
set forth in clause
(1) of this definition (subject to the first proviso above).


 


If
the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement
will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.


 


“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark
Replacement for any applicable LIBOR Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:


 


(1)          for
purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the
order below that can be determined by the Agent:


 


(a)          the
spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value
or zero) as of the Reference Time such Benchmark Replacement is first set for such LIBOR Period that has been selected or recommended
by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
the applicable Corresponding Tenor;


 



    -8-


     


    

 


(b)         the
spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first
set for such LIBOR Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions
to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and


 


(2)          for
purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating
or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent
and Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such
spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated
syndicated credit facilities;


 


provided
that,
in the case of clause
(1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment
from time to time as selected by the Agent in its reasonable discretion.


 


“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition
of “LIBOR Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing
requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions,
the formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement,”
the formula, methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical,
administrative or operational matters) that the Agent decides in its reasonable discretion is appropriate to reflect the adoption
and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially
consistent with market practice (or, if the Agent decides in its reasonable discretion that adoption of any portion of such market
practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark
Replacement exists, in such other manner of administration as the Agent decides in its reasonable discretion is reasonably necessary
in connection with the administration of this Agreement and the other Loan Documents).


 


“Benchmark
Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such
then-current Benchmark: 


 


(1)          in
the case of clause (1)
or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication
of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used
in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component
thereof);


 



    -9-


     


    

 


(2)          in
the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication
of information referenced therein;


 


(3)          in
the case of a
Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and
the Borrower pursuant to Section 2.12(b); or


 


(4)          in
the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election
is provided to the Lenders, so long as the Agent has not received, by 5:00 P.M. (New York City time) on the fifth (5th)
Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such
Early Opt-in Election from Lenders comprising the Requisite Lenders.


 


For
the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier
than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior
to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred
in the case of clause (1) or (2)
with respect to any Benchmark
upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such
Benchmark (or the published component used in the calculation thereof).


 


“Benchmark
Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect
to such then-current Benchmark: 


 


(1)          a public statement or publication of information by or on behalf of the administrator
of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or
will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided
that, at
the time of such
statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof);


 


(2)          a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve
Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution
authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that
the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or


 


(3)          a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that
all Available Tenors of such Benchmark (or such component thereof) are no longer representative.


 



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For
the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark
if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor
of such Benchmark (or the published component used in the calculation thereof).


 


“Benchmark
Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark
Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has
replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12 and
(y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under
any Loan Document in accordance with Section 2.12.


 


“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA,
(b) a “plan” as defined in and subject to Section 4975 of the IRC or (c) any Person whose assets include (for purposes
of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the IRC) the assets of any such “employee
benefit plan” or “plan”.


 


“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of such party.


 


“Bilateral
Agent” means Credit Agricole Corporate and Investment Bank, in its capacity as
administrative agent and collateral agent, and
any successors thereto.


 


“Bilateral
Credit Agreement” means the Senior Secured Term Loan Credit Agreement,
dated as of April 3,
2020 (as amended, amended and restated, extended, supplemented or otherwise modified from time to time prior to the date hereof,
the “Credit Agreement”), among the Borrower, certain subsidiaries of the Borrower from time to time party thereto,
the Lenders from time to time party thereto and Credit
Agricole Corporate and Investment Bank, in
its capacity as administrative agent and collateral agent for the Lenders.


 


“Bilateral
Credit Facility” means the term loan and letter of credit facilities under the Bilateral Credit Agreement.“Board
of Directors” means, as to any Person, the board of directors or managers, as applicable, of such Person or any direct
or indirect parent of such Person (or, if such Person is a partnership, the board of directors or other governing body of the
general partner of such Person) or any duly authorized committee thereof.


 


“Borrower”
has the meaning ascribed to it in the preamble.


 


“Borrower
Materials” has the meaning ascribed to it in Section 10.13(a).


 


“Borrower
Workspace” has the meaning ascribed to it in Section 10.13(a).


 


“Borrowing
Base” means the sum of (i) 85% of the book value of accounts (as defined in the Uniform Commercial Code or the
PPSA or any similar legislation) of Borrower and any Restricted Subsidiary, (ii) the lesser of (A) 65% of the cost of,
or (B) 85% of the net orderly liquidation value of, the equipment (as defined in the Uniform Commercial Code or the PPSA
or any similar legislation) of Borrower and any Restricted Subsidiary and (iii) the lesser of (A) 80% of the net book
value of, or (B) 65% of the net orderly liquidation value of, all railcars, chassis, trucks, trailers or tractors owned by
Borrower and any Restricted Subsidiary.


 


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“Bridge
Credit Agreement”
means that certain Credit
Agreement, dated as of December 24, 2018, by and among the Borrower, as Borrower, Citibank, N.A., as Agent and the other parties
thereto.


 


“Business
Day” means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in
the State of New York, and in reference to LIBOR Loans means any such day that is also a LIBOR Business Day.


 


“Capital
Expenditures” shall mean, for any period, the additions to property, plant and equipment, capitalized investment and
development costs, and other capital expenditures (including capitalized software) of Borrower and its consolidated Subsidiaries
that are (or should be) set forth in a consolidated statement of cash flows of Borrower for such period prepared in accordance
with GAAP.


 


“Capital
Stock” means:


 


(1)          in
the case of a corporation, corporate stock or shares;


 


(2)          in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


(3)          in
the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and


 


(4)          any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.


 


“Capitalized
Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect
of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding
the footnotes thereto) in accordance with GAAP; provided that obligations of Borrower or the Restricted Subsidiaries, or
of a special purpose or other entity not consolidated with Borrower and the Restricted Subsidiaries, either existing on the Closing
Date or created thereafter that (a) initially were not included on the consolidated balance sheet of Borrower as capital
lease obligations and were subsequently characterized as capital lease obligations or, in the case of such a special purpose or
other entity becoming consolidated with Borrower and the Restricted Subsidiaries were required to be characterized as capital
lease obligations upon such considerationconsolidation,
in either case, due to a change in accounting treatment or otherwise, or (b)did not exist on the Closing Date and were required
to be characterized as capital lease obligations but would not have been required to be treated as capital lease obligations on
the Closing Date had they existed at that time, shall for all purposes not be treated as Capitalized Lease Obligations or Indebtedness.


 


“Capital
Stock” means:


 


(1)          in
the case of a corporation, corporate stock or shares;


 


(2)          in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


(3)          in
the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and


 


(4)          any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.


 






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“Cash
Equivalents” means:


 


(1)          Dollars,
pounds sterling, euros, Canadian dollars, Singapore dollars,
the national currency of any member state in the European Union or such other local currencies held by Borrower or a Restricted
Subsidiary from time to time in the ordinary course of business;


 


(2)          securities
issued or directly and fully guaranteed or insured by the U.S. government, Canada, Switzerland or any country that is a member
of the European Union or any agency or instrumentality thereof in each case maturing not more than two years from the date of
acquisition;


 


(3)          certificates
of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’
acceptances, in each case with maturities not exceeding one year and overnight bank deposits, in each case with any commercial
bank having capital and surplus in excess of $250.0 million and whose long-term debt is rated at
least “A” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency);


 


(4)          repurchase
obligations for underlying securities of the types described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;


 


(5)          commercial
paper issued by a corporation (other than an Affiliate of Borrower) rated at least “A-1” or the equivalent thereof
by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each
case maturing within one year after the date of acquisition;


 


(6)          readily
marketable direct obligations issued by any state of the United States of America or any political subdivision thereof or any
Canadian province having at least a rating of Aa3 from Moody’s or a rating of AA- from S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date
of acquisition;


 


(7)          Indebtedness
issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s (or
reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding
two years from the date of acquisition;


 


(8)          investment
funds investing at least 95% of their assets in securities of the types described in clauses (1) through (7) above; and


 


(9)          instruments
equivalent to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit
quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction
outside the United States of America to the extent reasonably required in connection with any business conducted by any Subsidiary
organized in such jurisdiction.


 


“cash
management services” means cash management services for collections, treasury management services (including controlled
disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services),
any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit
cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox
services, stop payment services and wire transfer services.


 


“Casualty
Event” means any event that gives rise to the receipt by Borrower or any Restricted Subsidiary of any insurance proceeds
or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace
or repair such equipment, fixed assets or real property.


 






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“CERCLA”
has the meaning ascribed to it in the definition of “Environmental Laws”.


 


“CFC”
means a “controlled foreign corporation” within the meaning of Section 957 of the IRC.


 


“Change
of Control” means (a) any “person” or “group” (within the meaning of Sections 13(d)
and 14(d) of the Exchange Act) other than Permitted Holders, becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35%, or more, of the Capital Stock of Borrower entitled (without regard to the occurrence
of any contingency) to vote for the election of members of the Board of Directors of Borrower or (b) a majority of the members
of the Board of Directors of Borrower do not constitute Continuing Directors.


 


“Charges”
means all federal, state, provincial, county, city, municipal, local, foreign or other governmental taxes (including taxes owed
to the PBGC at the time due and payable), levies, assessments, charges, claims or encumbrances owed by any Credit Party and upon
or relating to (a) the Obligations hereunder, (b) the Collateral, (c) the employees, payroll, income, capital or gross
receipts of any Credit Party, (d) any Credit Party’s ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party’s business.


 


“Chassis”
means any intermodal chassis owned by Borrower or any Restricted Subsidiary consisting of steel frames with rubber tires and employed
in the conduct of such Person’s business to transport containers over highways.


 


“Closing
Date” means October 30, 2015.


 


“Code”
means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided,
that to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently
in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided,
further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, publication
or priority of, or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is governed by the Uniform
Commercial Code as enacted and in effect in another State other than the State of New York, the term “Code”
means the Uniform Commercial Code in such other State.


 


“Collateral”
means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by Borrower or any Guarantor in
or upon which a Lien is granted by such Person in favor of Agent under any of the Collateral Documents.


 


“Collateral
Documents” means the Security Agreement, the Intellectual Property Security Agreements, the Mortgages, the Memorandum
of Security Agreement(s) and all similar agreements entered into guarantying payment of, or granting a Lien upon property as security
for payment of, the Obligations hereunder.


 


“Commitments”
means, collectively, the aggregate Commitments of the Lenders, and the term “Commitment” with respect to an
individual Lender means such Lender’s commitment to make Loans to the Borrower in accordance with the terms of this Agreement
and, with respect to each Term B-1 Lender, the Term B-1 Commitment of such Term B-1 Lender. The Commitments of each Lender and
the aggregate Commitments of all Lenders on the Closing Date are set forth on Annex B. The Commitments of each Lender and
the aggregate Commitments of all Lenders on the Amendment No. 3 Closing Date are set forth on Schedule 1 to Amendment No. 3. The
Term B-1 Commitment of each Term B-1 Lender and the aggregate Term B-1 Commitments of all Term B-1 Lenders on the Amendment No.
5 Closing Date are set forth on Schedule 1 to Amendment No. 5. The
Commitments of each Lender and the
aggregate Commitments of all Lenders on
the Amendment No. 6 Closing Date are set forth on Schedule 1 to Amendment No. 6.


 






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“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit 1.1(c) and which certificate shall
in any event be a certificate of a Financial Officer (a) certifying as to whether a Default has occurred and is continuing
and, if applicable, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (b) in
the case of Financial Statements delivered under Section 5.1(c), setting forth reasonably detailed calculations, beginning
with the financial statements for the Fiscal Year of Borrower ending December 31, 2016, of Excess Cash Flow for such fiscal year
and (c) in the case of Financial Statements delivered under Section 5.1(c), setting forth a reasonably detailed
calculation of the Net Proceeds received during the applicable period by or on behalf of, Borrower or any of its Restricted Subsidiaries
in respect of any Asset Sale subject to prepayment pursuant to Section 2.3(b)(ii)(A) and the portion of such Net Proceeds
that has been invested or are intended to be reinvested in accordance with Section 2.3(b)(ii)(B).


 


“Consolidated
Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation
and amortization expense, including the amortization of intangible assets and deferred financing fees and amortization of unrecognized
prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, of such Person and
its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.


 


“Consolidated
EBITDA” means, as of any date of determination, the EBITDA of Borrower and its Restricted Subsidiaries for the most
recently ended four full fiscal quarters for which internal financial statements are available, on a consolidated basis, calculated
on a pro forma basis consistent with the calculations made under the definition of Fixed Charge Coverage Ratio or Consolidated
Secured Net Leverage Ratio, as applicable.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:


 


(1)          consolidated
interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing
Consolidated Net Income (including the interest component of Capitalized Lease Obligations and net payments and receipts (if any)
pursuant to interest rate Hedging Obligations, amortization of deferred financing fees and original issue discount, debt issuance
costs, commissions, fees and expenses, expensing of any bridge, commitment or other financing fees and non-cash interest expense
attributable to movement in mark to market valuation of Hedging Obligations or other derivatives (in each case permitted hereunder)
under GAAP); plus


 


(2)          consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; plus


 






    -15-


     


    

 


(3)          commissions,
discounts, yield and other fees and charges Incurred in connection with any Securitization Financing which are payable to Persons
other than Borrower and the Restricted Subsidiaries; minus


 


(4)          interest
income for such period.


 


For
purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis; provided, however, that:


 


(1)          any
net after-tax extraordinary, nonrecurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses
or charges shall be excluded;


 


(2)          any
severance expenses, relocation expenses, restructuring expenses, curtailments or modifications to pension and post-retirement
employee benefit plans, excess pension charges, any expenses related to any reconstruction, decommissioning, recommissioning or
reconfiguration of fixed assets for alternate uses and fees, expenses or charges relating to facilities closing costs, acquisition
integration costs, facilities opening costs, project start-up costs, business optimization costs, signing, retention or completion
bonuses, expenses, commissions or charges related to any
issuance, redemption, repurchase, retirement or acquisition
of Equity Interests, Investment, acquisition, disposition, recapitalization or issuance, repayment, refinancing, amendment or
modification of Indebtedness (in each case, whether or not successful), and any fees, expenses or charges related to the Spin
Transactions, the Refinancing Transactions, the Transactions, the Norbert Transactions or,
the 2021/20222023
Notes Transactions, the 2024 Notes Transactions and the 2025 Notes Transactions, in each case, shall be excluded;


 


(3)          effects
of purchase accounting adjustments (including the effects of such adjustments pushed down to such Person and such Subsidiaries
and including, without limitation, the effects of adjustments to (A) Capitalized Lease Obligations or (B) any other
deferrals of income) in amounts required or permitted by GAAP, resulting from the application of purchase accounting or the amortization
or write-off of any amounts thereof, net of taxes, shall be excluded;


 


(4)          the
Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;


 


(5)          any
net after-tax income or loss from disposed, abandoned, transferred, closed or discontinued operations or fixed assets and any
net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations or fixed assets
shall be excluded; provided that notwithstanding any classification
of any Person, business, assets or operations as discontinued operations because a definitive agreement for the sale, transfer
or other disposition in respect thereof has been entered into, such Person shall not exclude any such net after-tax income or
loss or any such net after-tax gains or losses attributable thereto until such sale, transfer or other disposition has been consummated;


 


(6)          any
net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or
asset dispositions other than in the ordinary course of business (as determined in good faith by management of Borrower) shall
be excluded;


 






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(7)          any
net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment
of indebtedness, Hedging Obligations or other derivative instruments shall be excluded;


 


(8)          (a)
the Net Income for such period of any Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or
that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or
distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Restricted
Subsidiary thereof in respect of such period and (b) the Net Income for such Periodperiod
shall include any dividend, distribution or other payment in cash (or to the extent converted into cash) received by the
referent Person or a Subsidiary thereof (other than an Unrestricted Subsidiary of such referent Person) from any Person
in excess of, but without duplication of, the amounts included in subclause (a);


 


(9)          solely
for the purpose of determining the amount available for Restricted Payments under clause (2) of the definition of “Cumulative
Credit,” the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the
extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its Net Income is
not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly
or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restrictions with respect
to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income
of such Person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or
converted into cash) by any such Restricted Subsidiary to such Person, to the extent not already included therein;


 


(10)        an
amount equal to the amount of Tax Distributions actually made to any parent or equity holder of such Person in respect of such
period in accordance with Section 7.2(b)(xi) shall be included as though such amounts had been paid as income taxes
directly by such Person for such period;


 


(11)        any
impairment charges or asset write-offs, in each case pursuant to GAAP, and the amortization of intangibles and other fair value
adjustments arising pursuant to GAAP shall be excluded;


 


(12)        any
non-cash expense realized or resulting from management equity plans, stock option plans, employee benefit plans or post-employment
benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock
or other rights shall be excluded;


 


(13)        any
(a) non-cash compensation charges, (b) costs and expenses related to employment of terminated employees, or (c) costs
or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights
existing on the Closing Date of officers, directors and employees, in each case of such Person or any Restricted Subsidiary, shall
be excluded;


 


(14)        accruals
and reserves that are established or adjusted within 12 months after the Closing Date and that are so required to be established
or adjusted in accordance with GAAP or as a result of adoption or modification of accounting policies shall be excluded;


 






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(15)        non-cash
gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related
interpretations shall be excluded;


 


(16)        any
currency translation gains and losses related to currency remeasurements of Indebtedness, and any net loss or gain resulting from
hedging transactions for currency exchange risk, shall be excluded;


 


(17)        (a)
to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a determination that there exists
reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not
denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such
evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect
to liability or casualty events or business interruption shall be excluded and (b) amounts in respect of which such Person
has determined that there exists reasonable evidence that such amounts will in fact be reimbursed by insurance in respect of lost
revenues or earnings in respect of liability or casualty events or business interruption shall be included (with a deduction for
amounts actually received up to such estimated amount, to the extent included in Net Income in a future period); and


 


(18)        non-cash
charges for deferred tax asset valuation allowances shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 7.2 only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries or Restricted Subsidiaries to the
extent such dividends, repayments or transfers increase the amount of Restricted Payments permitted under Section 7.2 pursuant to clauses (5) and (6) of the definition of “Cumulative Credit.”


 


“Consolidated
Non-Cash Charges” means, with respect to any Person for any period, the non-cash expenses (other than Consolidated Depreciation
and Amortization Expense) of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person for such
period on a consolidated basis and otherwise determined in accordance with GAAP, provided that if any such non-cash expenses
represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from EBITDA in such future period to the extent paid, but excluding from this proviso, for the avoidance
of doubt, amortization of a prepaid cash item that was paid in a prior period.


 


“Consolidated
Secured Net Leverage Ratio” means, with respect to any Person, at any date, the ratio of (i) Secured Indebtedness
of such Person and its Restricted Subsidiaries as of such date of calculation (determined on a consolidated basis in accordance
with GAAP) less the amount of cash and Cash Equivalents in excess of any Restricted Cash that would be stated on the balance sheet
of such Person and its Restricted Subsidiaries and held by such Person and its Restricted Subsidiaries as of such date of determination
to (ii) EBITDA of such Person for the four full fiscal quarters for which internal financial statements are available immediately
preceding such date on which such additional Indebtedness is Incurred.


 






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In
the event that Borrower or any Restricted Subsidiary Incurs, repays, repurchases or redeems any Indebtedness or
issues, repurchased or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period
for which the Consolidated Secured Net Leverage Ratio is being calculated but prior to the event for which the calculation of
the Consolidated Secured Net Leverage Ratio is made (the “Consolidated Secured Net Leverage Calculation
Date”), then the Consolidated Secured Net Leverage Ratio shall be calculated giving pro forma effect to such
Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified
Stock or Preferred Stock as if the same had occurred at the beginning of the applicable four-quarter period; provided
that, for purposes of clause 6(B) of the definition of “Permitted Lien”, Borrower may elect pursuant to an
Officer’s Certificate delivered to Agent to treat all or any portion of the commitment under any Indebtedness as being
Incurred at the time of delivery of such Officer’s Certificate, in which case any subsequent Incurrence of Indebtedness
under such commitment shall not be deemed, for purposes of this calculation, to be an Incurrence at such subsequent time, and
to the extent Borrower elects pursuant to such an Officer’s Certificate delivered to Agent to treat all or any portion
of the commitment under any Indebtedness as being Incurred at the time of delivery of such Officer’s Certificate,
solely for purposes of clause 6(B) of the definition of “Permitted Lien”, Borrower shall deem all or such portion
of such commitment as having been Incurred and to be outstanding for purposes of calculating the Consolidated Secured Net
Leverage Ratio for any period in which Borrower makes any such election and for any subsequent period until such commitments
are no longer outstanding, or until Borrower elects to withdraw such election.


 


For
purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business,
that Borrower or any Restricted Subsidiary has made during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Consolidated Secured Net Leverage Calculation Date (each, for purposes of this definition,
a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions,
dispositions, mergers, amalgamations, consolidations or discontinued operations (and the change of any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period;
provided that, notwithstanding any classification of any Person, business, assets or operations as discontinued operations because
a definitive agreement for the sale, transfer or other disposition in respect thereof has
been entered into,
Borrower shall not make such computations on a pro forma basis for any such classification for any period until such sale, transfer
or other disposition has been consummated.
If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into Borrower
or any Restricted Subsidiary since the beginning of such period shall have consummated any pro forma event that would have
required adjustment pursuant to this definition, then the Consolidated Secured Net Leverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such pro forma event had occurred at the beginning of the applicable four-quarter
period. If since the beginning of such period any Restricted Subsidiary is designated an Unrestricted Subsidiary or any Unrestricted
Subsidiary is designated a Restricted Subsidiary, then the Consolidated Secured Net Leverage Ratio shall be calculated giving
pro forma effect thereto for such period as if such designation had occurred at the beginning of the applicable four-quarter
period.


 


For
purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma
calculations shall be made in good faith by a responsible financial or accounting officer of Borrower. Any such pro forma
calculation may include adjustments appropriate, in the reasonable good faith determination of Borrower as
set forth in an Officer’s Certificate, to reflect operating
expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event within
12 months of the date the applicable event is consummated. For the avoidance of doubt, adjustments to the computation of the Consolidated
Secured Net Leverage Ratio arising from any pro forma event and made in accordance with this paragraph and the paragraph
immediately above shall not be subject to the 20% cap set forth in clause (9) of the definition of “EBITDA”.


 






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If
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the Consolidated Secured Net Leverage Calculation Date had been the applicable
rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation
has a remaining term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest
rate reasonably determined by a responsible financial or accounting officer of Borrower to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest
on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at
an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as Borrower may
designate.


 


For
purposes of this definition, any amount in a currency other than Dollars will be converted to Dollars based on the average exchange
rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent
with that used in calculating EBITDA for the applicable period. Notwithstanding anything to the contrary in this definition, for
the purpose of determining the ECF Percentage, pro forma effect shall not be given to events occurring after the period for which
Consolidated Secured Net Leverage is being calculated.


 


“Consolidated
Taxes” means, with respect to any Person for any period, the provision for taxes based on income, profits or capital,
including, without limitation, state, franchise, property and similar taxes, foreign withholding taxes (including penalties and
interest related to such taxes or arising from tax examinations) and any Tax Distributions taken into account in calculating Consolidated
Net Income.


 


“Consolidated
Total Indebtedness” means, as of any date of determination, an amount equal to the sum (without duplication) of (1)
the aggregate principal amount of all outstanding Indebtedness of Borrower and the Restricted Subsidiaries (excluding any undrawn
letters of credit) consisting of bankers’ acceptances and Indebtedness for borrowed money, plus (2) the aggregate amount
of all outstanding Disqualified Stock of Borrower and the Restricted Subsidiaries and all Preferred Stock of Restricted Subsidiaries,
with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences, in each case determined on a consolidated basis in accordance with GAAP.


 


“Contingent
Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or
other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:


 


(1)          to
purchase any such primary obligation or any property constituting direct or indirect security therefor,


 


(2)          to
advance or supply funds:


 


(a)          for
the purchase or payment of any such primary obligation; or


 


(b)          to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor; or


 


(3)          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 to make payment of such primary obligation against loss in respect thereof.


 


“Continuing
Director” means (a) any member of the Board of Directors who was a director of Borrower on the Closing Date and
(b) any individual who becomes a member of the Board of Directors after the Closing Date if such individual was approved,
appointed or nominated for election to the Board of Directors by Jacobs Private Equity, LLC (or any Affiliate thereof) or a majority
of the Continuing Directors.


 






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“Contract
Consideration” has the meaning specified in the definition of “Excess Cash Flow”.


 


“Contractual
Obligations” means, with respect to any Person, any security issued by such Person or any document or undertaking (other
than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property
is subject.


 


“Contribution”
means the transfer of the stock of certain Subsidiaries of Borrower holding the assets, liabilities and/or operations of all or
a portion of the logistics and warehousing businesses of the Borrower
and its Subsidiaries, along
with the transfer and assignment of certain related assets and liabilities of the Borrower or its Subsidiaries to SpinCo and its
Subsidiaries.


 


“Con-way”
means Con-wayXPO
CNW, Inc., a Delaware corporation.


 


“Con-way
Acquisition” means the acquisition by Borrower, directly or indirectly, of all of the outstanding capital stock of Con-way
in accordance with the Con-way Acquisition Agreement.


 


“Con-way
Acquisition Agreement” means that certain Agreement and Plan of Merger by and among Borrower, Con-way and Canada Merger
Corp., dated as of September 9, 2015, together with all exhibits, annexes and schedules thereto, as amended or modified from time
to time.


 


“Con-way
Acquisition Agreement Representations” means the representations made by or on behalf of Con-way and its Subsidiaries
in the Con-way Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Borrower has
(or an Affiliate of it has) the right to terminate (or not perform) its obligations under the Con-way Acquisition Agreement as
a result of a breach of such representations in the Con-way Acquisition Agreement.


 


“Con-way
Bridge Agent” means MSSF, as
administrative agent and collateral agent, in
each case under the Con-way Bridge Facility.


 


“Con-way
Bridge Credit Agreement” means that certain credit agreement which may be entered
into pursuant to that certain Second Amended and Restated Commitment Letter, dated October 29, 2015, among Morgan Stanley Senior
Funding, Inc., J.P. Morgan Securities LLC, JPMorgan Chase Bank, N.A., Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche
Bank AG Cayman Islands Branch, Deutsche Bank AG New York Branch, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., Credit
Agricole Corporate and Investment Bank, and
Borrower; provided   that the aggregate principal amount of loans Borrower may incur and shall remain outstanding under the Con-way
Bridge Credit Agreement shall not exceed $445,000,000 at any time. For the avoidance of doubt, the Con-way Bridge Credit Agreement
may or may not be entered into in Borrower’s discretion.


 


“Con-way
Bridge Facility” means the senior secured bridge credit facility under the Con-way Bridge Credit Agreement.


 


“Con-way
Existing Indebtedness” means (i) Indebtedness under the Con-way 2018 Notes and (ii)
Indebtedness under Conway’s 6.70% Senior Debentures due 2034.


 






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“Con-way
Material Adverse Effect” means any event, change, effect, development, circumstance, state of facts, condition or occurrence
(each, an “Effect”) that, when considered individually or in the aggregate with all other Effects, is or would
reasonably be expected to have a material adverse effect on (x) the ability of Con-way to timely perform its obligations
under, and consummate the transactions contemplated by, the Con-way Acquisition Agreement (for purposes of this definition, together
with the Offer and the Merger (for purposes of this definition, as each such term is defined in the Con-way Acquisition Agreement
as in effect on September 9, 2015), the “Transactions” provided that, the Transactions, for purposes of Con-way’s
representations and warranties contained in the Con-way Acquisition Agreement, shall not include the Financing (for purposes of
this definition, as defined in the Con-way Acquisition Agreement as in effect on September 9, 2015)) or (y) the business,
condition (financial or otherwise) or results of operations of Con-way and its Subsidiaries (for purposes of this definition,
as defined in the Con-way Acquisition Agreement as in effect on September 9, 2015), taken as a whole; provided that no
change or development resulting from or arising out of any of the following, alone or in combination, shall be deemed to constitute
or be taken into account in determining whether there has been a Con-way Material Adverse Effect under clause (y):


 


		(a)	changes
                                         or developments in economic conditions generally in the United States or other countries
                                         in which Con-way or any of its Subsidiaries conduct operations, including (1) any changes
                                         or developments in or affecting the securities, credit or financial markets, (2) any
                                         changes or developments in or affecting interest or exchange rates or (3) the effect
                                         of any potential or actual government shutdown, except to the extent such changes or
                                         developments have a disproportionate effect on Con-way and its Subsidiaries, taken as
                                         a whole, relative to others in the industry or industries in which Con-way and its Subsidiaries
                                         operate;



 


		(b)	changes
                                         or developments in or affecting the industry or industries in which Con-way or any of
                                         its Subsidiaries operate (including such changes or developments resulting from general
                                         economic conditions), except to the extent that such changes or developments have a disproportionate
                                         effect on Con-way and its Subsidiaries, taken as a whole, relative to others in the industry
                                         or industries in which Con-way and its Subsidiaries operate;



 


		(c)	the
                                         announcement of the Con-way Acquisition Agreement and the Transactions, including changes,
                                         developments, effects or events as a result of the identification of Parent (for purposes
                                         of this definition, as defined in the Con-way Acquisition Agreement as in effect on September
                                         9, 2015) or any of its Affiliates (for purposes of this definition, as defined in the
                                         Con-way Acquisition Agreement as in effect on September 9, 2015) as the acquirer of Con-way;



 


		(d)	changes
                                         or developments arising out of acts of terrorism or sabotage, civil disturbances or unrest,
                                         war (whether or not declared), the commencement, continuation or escalation of a war
                                         or military action, acts of hostility, weather conditions or other acts of God (including
                                         storms, earthquakes, floods or other natural disasters), including any material worsening
                                         of such conditions threatened or existing on the date of the Con-way Acquisition Agreement,
                                         except to the extent that they have a disproportionate effect on Con-way and its Subsidiaries,
                                         taken as a whole, relative to others in the industry or industries in which Con-way and
                                         its Subsidiaries operate;



 


		(e)	changes
                                         or developments after September 9, 2015 in applicable Laws ((for purposes of this definition,
                                         as defined in the Con-way Acquisition Agreement as in effect on September 9, 2015) or
                                         the definitive interpretations thereof, except to the extent that such changes or developments
                                         have a disproportionate effect on Con-way and its Subsidiaries, taken as a whole, relative
                                         to others in the industry or industries in which Con-way and its Subsidiaries operate;



 


		(f)	changes
                                         or developments after September 9, 2015 in generally accepted accounting principles in
                                         the United States or any foreign equivalents thereof or the interpretations thereof,
                                         except to the extent that such changes or developments have a disproportionate effect
                                         on Con-way and its Subsidiaries, taken as a whole, relative to others in the industry
                                         or industries in which Con-way and its Subsidiaries operate;



 






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		(g)	any
                                         failure by Con-way to meet any internal or public projections, forecasts or estimates
                                         of revenues or earnings for any period; provided that the exception in this clause
                                         shall not prevent or otherwise affect a determination that any change or development
                                         underlying such failure has resulted in, or contributed to, a Con-way Material Adverse
                                         Effect; and



 


		(h)	a
                                         decline in the price or trading volume of Con-way’s common stock or any change
                                         in the ratings or ratings outlook for Con-way or any of its Subsidiaries; provided
                                         that the exception in this clause shall not prevent or otherwise affect a determination
                                         that any change or development underlying such decline or change has resulted in, or
                                         contributed to, a Con-way Material Adverse Effect.



 


“Con-way
Merger” means the merger of Canada Merger Corp., a wholly owned subsidiary of Borrower, with and into Con-way pursuant
to Section 251(h) of the Delaware General Corporation Law, with Con-way surviving such merger as a wholly owned subsidiary
of Borrower in accordance with the Con-way Acquisition Agreement.


 


“Con-way
Specified Representations” means the representations and warranties of Borrower (solely as and to the extent they relate
to Borrower or any Guarantor (and not as they may relate to any other Subsidiary of Borrower or any other Person)) set forth in
(a) Section 4.1(a) (solely as it relates to organization and existence); (b) clause (a), (b), (c) and
(solely with respect to Indebtedness for borrowed money in excess of $100,000,000) (e) of the first sentence of Section 4.3;
(c) the second sentence of Section 4.3; (d) Section 4.9; (e) Section 4.10;
(f) the first sentence of Section 4.21; (g) the second sentence of Section 4.21 (solely as it
relates to the perfection of security interests in any Collateral the security interest in which may be perfected by (i) the
filing of a UCC financing statement or (ii) the delivery of stock certificates of each Guarantor and each material wholly
owned domestic restricted subsidiary (other than any Guarantor or subsidiary which is a subsidiary of Con-way)); (h) Section 4.23;
(i) Section 4.24; and (j) Section 4.27.


 


“Con-WayCon-way
Subsidiary” means any direct or indirect Subsidiary of Con-way.


 


“Copyrights”
has the meaning specified in the Security Agreement.


 


“Corresponding
Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day adjustment) as such Available Tenor.


 


“Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).


 


“Covered
Party” has the meaning ascribed to it in Section 12.27.


 


“Credit
Parties” means Borrower and each Guarantor.


 


“Cumulative
Credit” means the sum of (without duplication):


 


(1)          $450
million, plus


 






    -23-


     


    

 


(2)          50%
of the Consolidated Net Income of Borrower for the period (taken as one accounting period) from the first day of the first full
Fiscal Quarter commencing after the Closing Date to the end of Borrower’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income for such
period is a deficit, minus 100% of such deficit), plus


 


(3)          100%
of the aggregate net proceeds, including cash and the Fair Market Value (as determined in good faith by Borrower) of property
other than cash, received by Borrower after the Closing Date (other than net proceeds to the extent such net proceeds have been
used to incur Indebtedness, Disqualified Stock, or Preferred Stock pursuant to Section 7.1(b)(xiii)) from the issue
or sale of Equity Interests of Borrower or any direct or indirect parent entity of Borrower (excluding Refunding Capital Stock,
Designated Preferred Stock, Excluded Contributions, and Disqualified Stock), including Equity Interests issued upon exercise of
warrants or options (other than an issuance or sale to Borrower or a Restricted Subsidiary), plus


 


(4)          100%
of the aggregate amount of contributions to the capital of Borrower received in cash and the Fair Market Value (as determined
in good faith by Borrower) of property other than cash received by Borrower after the Closing Date (other than Excluded Contributions,
Refunding Capital Stock, Designated Preferred Stock, and Disqualified Stock and other than contributions to the extent such contributions
have been used to incur Indebtedness, Disqualified Stock, or Preferred Stock pursuant to Section 7.1(b)(xiii)), plus


 


(5)          100%
of the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may
be, of any Disqualified Stock of Borrower or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness
or Disqualified Stock issued to a Restricted Subsidiary) which has been converted into or exchanged for Equity Interests in Borrower
(other than Disqualified Stock) or any direct or indirect parent of Borrower (provided, that in the case of any such parent,
such Indebtedness or Disqualified Stock is retired or extinguished), plus


 


(6)          100%
of the aggregate amount received by Borrower or any Restricted Subsidiary after the Closing Date in cash and the Fair Market Value
(as determined in good faith by Borrower) of property other than cash received by Borrower or any Restricted Subsidiary from:


 


(A)          the
sale or other disposition (other than to Borrower or a Restricted Subsidiary) of Restricted Investments made by Borrower and the
Restricted Subsidiaries and from repurchases and redemptions of such Restricted Investments from Borrower and the Restricted Subsidiaries
by any Person (other than Borrower or any Restricted Subsidiary) and from repayments of loans or advances, and releases of guarantees,
which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant
to Section 7.2(b)(vii)),


 


(B)          the
sale (other than to Borrower or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary, or


 


(C)          a
distribution or dividend from an Unrestricted Subsidiary, plus


 


(7)          in
the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated
with or into, or transfers or conveys its assets to, or is liquidated into Borrower or a Restricted Subsidiary, the Fair Market
Value (as determined in good faith by Borrower) of the Investment of Borrower or the Restricted Subsidiaries in such Unrestricted
Subsidiary (which, if the Fair Market Value of such Investment shall exceed $62.5 million, shall be determined by the Board of
Directors of Borrower) at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as
applicable) (other than in each case to the extent that the designation of such Subsidiary as an Unrestricted Subsidiary was made
pursuant to Section 7.2(b)(vii)) or constituted a Permitted Investment).


 






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“Current
Assets” shall mean, at any time, the consolidated current assets (other than cash and Cash Equivalents) of Borrower
and its Restricted Subsidiaries at such time.


 


“Current
Liabilities” shall mean, at any time, (a) the consolidated current liabilities of Borrower and its Restricted Subsidiaries
at such time, but excluding, without duplication, the current portion of any long-term Indebtedness and (b) revolving loans,
swingline loans and letter of credit obligations under the ABL Credit Agreement or any other revolving credit facility.


 


“Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.


 


“Daily
Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established
by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining
 “Daily Simple SOFR” for syndicated business loans; provided that, if the Agent decides that any such convention is
not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.


 


“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.


 


“Defaulting
Lender” shall mean any Lender that (a) has failed to fund all or any portion of its Loans on the date such Loans
were required to be funded hereunder, (b) has notified Borrower and Agent in writing that it does not intend to comply with
its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three Business Days
after written request by Agent or Borrower, to confirm in writing to Agent and Borrower that it will comply with its funding obligation
hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon
receipt of such written confirmation by Agent and Borrower), or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Insolvency Law or a Bail-In Action, or (ii) had appointed for
it a receiver, interim receiver, custodian, conservator, trustee, monitor, administrator, assignee for the benefit of creditors
or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state, federal or foreign regulatory authority acting in such a capacity; provided that a Lender
shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct
or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide
such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs
of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one
or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding
absent manifest error, and such Lender shall be deemed to be a Defaulting Lender as of the date established therefor by Agent
in a written notice of such determination, which shall be delivered by Agent to Borrower and each other Lender promptly following
such determination.


 


“Default
Rate” has the meaning ascribed to it in Section 2.5(d).


 






    -25-


     


    

 


“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.


 


“Designated
Non-cash Consideration” means the Fair Market Value (as determined in good faith by Borrower) of non-cash consideration
received by Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash
Consideration pursuant to an Officer’s Certificate, setting forth such
valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.


 


“Designated
Preferred Stock” means Preferred Stock of Borrower or any direct or indirect parent of Borrower (other than Disqualified
Stock), that is issued for cash (other than to Borrower or any of its Subsidiaries or an employee stock ownership plan or trust
established by Borrower or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s
Certificate, on the issuance date thereof.


 


“disposition”
has the meaning set forth in the definition of Asset Sale (and “dispose” shall have a correlative meaning).


 


“Disqualified
Institution” means (i) any Person identified by name in writing to Agent and as a Disqualified Institution on or
prior to the Closing Date and (ii) a competitor of Borrower or its Subsidiaries identified by name in writing to Agent as
Disqualified Institutions prior to the Closing Date and any other Person identified by name in writing to Agent after the Closing
Date to the extent such Person becomes a direct competitor of Borrower or its Subsidiaries, which designations shall be promptly
provided by Agent to the Lenders and shall become effective two days after delivery of each such written supplement to Agent,
but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation
interest in the Loans; provided that a “competitor” shall not include any bona fide debt fund or investment
vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial revolving loans and similar extensions
of credit in the ordinary course of business which is managed, sponsored or advised by any Person controlling, controlled by or
under common control with such competitor, and for which no personnel involved with the investment of such competitor thereof,
as applicable, (i) makes any investment decisions or (ii) has access to any information (other than information publicly
available) relating to the Credit Parties or any entity that forms a part of the Credit Parties’ business (including their
Subsidiaries).


 


“Disqualified
Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:


 


(1)          matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control
or asset sale),


 


(2)          is
convertible or exchangeable for Indebtedness or Disqualified Stock of such Person or any of its Restricted Subsidiaries, or


 


(3)          is
redeemable at the option of the holder thereof, in whole or in part (other than solely as a result of a change of control or asset
sale), in each case prior to 91 days after the earlier of the Latest Maturity Date or the date the Loans are no longer outstanding;
provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible
or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified
Stock; provided, further, however, that if such Capital Stock is issued to any employee or to any plan for
the benefit of employees of Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by such Person in order to satisfy applicable statutory
or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further,
that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder
by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.


 






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“Distribution”
means the distribution, on
a pro rata basis,
to the equityholders of Borrower of any Equity Interests of SpinCo (with cash in lieu of any fractional shares).


 


“Dodd-Frank
Act” has the meaning ascribed to it in Section 2.14(e).


 


“Dollars”
or “$” means the lawful currency of the United States.


 


“Domestic
Subsidiary” means a Restricted Subsidiary that is not a Foreign Subsidiary.


 


“Early
Opt-in Election” means the occurrence of:


 


(a)          a
notification by the Agent to (or the request by Borrower to the Agent to notify) each of the other parties hereto that at least
five currently outstanding Dollar-denominated syndicated credit facilities in the U.S. syndicated loan market at such time contain
(as
a result of amendment
or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate
(and such syndicated credit facilities are identified in such notice and are publicly available for review), and


 


(b)          the
joint election by the Agent and Borrower to trigger a fallback from the applicable then-current Benchmark and the provision by
the Agent of written notice of such election to the Lenders.


 


“ECF
Percentage” has the meaning set forth in Section 2.3(b)(i).


 


“EBITDA”
means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:


 


(1)          Consolidated
Taxes; plus


 


(2)          Fixed
Charges and costs of surety bonds in connection with financing activities; plus


 


(3)          Consolidated
Depreciation and Amortization Expense; plus


 


(4)          Consolidated
Non-Cash Charges; plus


 


(5)          any
expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to any issuance of
Equity Interests, Investment, acquisition, disposition, recapitalization or the incurrence, modification or repayment
of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not
successful), including (i) such fees, expenses or charges related to the Refinancing
Transactions, the Transactions, the Norbert Transactions, the 2021/20222023
Notes Transactions, the 2024 Notes Transactions and the 2025
Notes Transactions, the Bilateral Facility or the ABL Facility, (ii) any amendment or other modification of
the 20212023 Notes, 20222024
Notes, 2025 Notes or other Indebtedness and (iii) commissions, discounts, yield and other fees and
charges (including any interest expense) related to any Qualified Securitization Financing; plus


 






    -27-


     


    

 


(6)          business
optimization expenses and other restructuring charges, reserves or expenses (which, for the avoidance of doubt, shall include,
without limitation, the effect of facility closures, facility consolidations, retention, severance, systems establishment costs,
contract termination costs, future lease commitments and excess pension charges); plus


 


(7)          the
amount of loss or discount on sale of assets to a Securitization Subsidiaryand
any commissions, yield and other fees and charges, in each case in connection with a Qualified Securitization Financing;
plus


 


(8)          any
costs or expense incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit
plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with
cash proceeds contributed to the capital of Borrower or any Guarantor or net cash proceeds of an issuance of Equity Interests
of Borrower (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation
of the Cumulative Credit; plus


 


(9)          the
amount of net cost savings, operating improvements or synergies projected by Borrower in good faith to be realized within twelve
months following the date of any operational changes, business realignment projects or initiatives, restructurings or reorganizations
which have been or are intended to be initiated (other than those operational changes, business realignment projects or initiatives,
restructurings or reorganizations entered into in connection with any pro forma event (as defined in “Fixed Charge Coverage
Ratio”) (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period)),
net of the amount of actual benefits realized during such period from such actions; provided that such net cost savings
and operating improvements or synergies are reasonably identifiable and quantifiable; provided, further,
that the aggregate amount added to EBITDA pursuant to this clause (9) shall not exceed 20% of EBITDA for such period (determined
after giving effect to such adjustments); and


 


less,
without duplication, to the extent the same increased Consolidated Net Income,


 


(10)        non-cash
items increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent
the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period and any
items for which cash was received in a prior period).


 


“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country
which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which
is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an
EEA Member Country which is a subsidiary of an institution described in clausesclause
(a) or (b) of this definition and is subject to consolidated supervision with its parent.


 


“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.


 


“EEA
Resolution Authority” means any public administrative authority or any personPerson
entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for
the resolution of any EEA Financial Institution.


 


“E-Fax”
means any system used to receive or transmit faxes electronically.


 






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“Electronic
Transmission” means each document, instruction, authorization, file, information and any other communication transmitted,
posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service acceptable
to Agent.


 


“Eligible
Assignee” means (a) a Lender, (b) a commercial or investment bank, insurance company, finance company, financial
institution, any fund that invests in loans, (c) any Affiliate of a Lender, or (d) an Approved Fund of a Lender; provided
that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified
Institution or (iii) Borrower, any Subsidiary or any Affiliate thereof.


 


“Environmental
Laws” means all applicable federal, state, provincial, local and foreign laws, statutes, ordinances, codes, rules, standards
and regulations, now or hereafter in effect, including any applicable judicial or administrative order, consent decree, order
or judgment, in each case having the force or effect of law, imposing liability or standards of conduct for or relating to the
regulation and protection of human health, safety, the environment and natural resources (including ambient air, soil, vapor,
surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation). Environmental
Laws include the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) (“CERCLA”); the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §§
5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.); the
Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic Substance Control Act (15 U.S.C. §§
2601 et seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water Pollution Control Act
(33 U.S.C. §§ 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.);
and the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), and any and all regulations promulgated thereunder,
and all analogous federal, state, provincial, local and foreign counterparts or equivalents and any transfer of ownership notification
or approval statutes related to the protection of human health, safety or the environment.


 


“Environmental
Liabilities” means, with respect to any Person, all liabilities, obligations, responsibilities, response, remedial and
removal costs, investigation and feasibility study costs, losses, damages, punitive damages, property damages, natural resource
damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses
of counsel, experts and consultants), fines, penalties, sanctions and interest incurred as a result of or related to any claim,
suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute or common law, arising under or related to any Environmental Laws, Environmental Permits,
or in connection with any Release or threatened Release or presence of a Hazardous Material whether on, at, in, under, from or
about or in the vicinity of any real or personal property.


 


“Environmental
Permits” means, with respect to any Person, all permits, licenses, authorizations, certificates, approvals or registrations
required by any Governmental Authority under any Environmental Laws for conducting the operations of such Person.


 


“Equity
Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).


 


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


 


“ERISA
Affiliate” means, with respect to any Credit Party, any trade or business (whether or not incorporated) that, together
with such Credit Party, are treated as a single employer within the meaning of Sections 414(b), (c), (m) or (o) of the IRC.


 






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“ERISA
Event” means, with respect to any Credit Party or any ERISA Affiliate, (a) any event described in Section 4043(c)
of ERISA with respect to a Title IV Plan (other than an event for which the thirty (30) day notice period is waived); (b) the
withdrawal of any Credit Party or ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal
of any Credit Party or any ERISA Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to terminate
a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA; (e) the termination
of a Title IV Plan or Multiemployer Plan by the PBGC pursuant to Section 4042 of ERISA; (f) the failure by any Credit
Party or ERISA Affiliate to make when due required contributions to a Multiemployer Plan or Title IV Plan unless such failure
is cured within thirty (30) days; (g) the termination of a Multiemployer Plan under Section 4041A of ERISA or the reorganization
or insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA or a determination that a Multiemployer Plan is
in “endangered” or “critical” status under the meaning of Section 432 of the IRC or Section 304 of ERISA;
(h) the loss of a Qualified Plan’s qualification or tax exempt status; or (i) the
termination of a Plan described in Section 4064 of ERISA; (kj)
the filing pursuant to Section 412(c) of the IRC or Section 302(c) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Title IV Plan; (lk)
a determination that any Title IV Plan is in “at risk” status (within the meaning of Section 430 of the IRC or Section
303 of ERISA; (ml)
the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of ERISA (other than non-delinquent
premiums payable to the PBGC under Sections 4006 and 4007 of ERISA); (nm)
the imposition of liability on any Credit Party or any ERISA Affiliate due to the cessation of operations at a facility under
the circumstances described in Section 4062(e) of ERISA,;
or (on)
the occurrence of a non-exempt “prohibited transaction” with respect to which any Credit Party or any of the Subsidiaries
is a “disqualified person” (within the meaning of Section 4975 of the IRC) or a “party in interest” (within
the meaning of Section 406 of ERISA) or with respect to which any Credit Party or any such Subsidiary could otherwise be liable.


 


“ERISA
Lien” has the meaning ascribed to it in Section 6.11.


 


“E-Signature”
means the process of attaching to, or logically associating with, an Electronic Transmission, an electronic symbol, encryption,
digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission)
with the intent to sign, authenticate or accept such Electronic Transmission.


 


“E-System”
means any electronic system approved by Agent, including Intralinks® and ClearPar® and any other Internet or extranet-based
site, whether such electronic system is owned, operated or hosted by Agent, any of its Related Persons or any other Person, providing
for access to data protected by passcodes or other security system.


 


“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or
any successor person), as in effect from time to time.


 


“Event
of Default” has the meaning ascribed to it in Section 9.1.


 


“Excess
Amount” has the meaning specified in Section 2.16.


 






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“Excess
Cash Flow” shall mean, for any Fiscal Year of Borrower, the excess of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such Fiscal Year, (ii) the decrease, if any, in Current Assets minus Current Liabilities from the beginning to
the end of such Fiscal Year and (iii) the amount relating to items that were deducted from or not added to Consolidated Net
Income in calculating EBITDA to the extent such items represented cash received by Borrower or any Restricted Subsidiary or did
not represent cash paid by Borrower or any Restricted Subsidiary, in each case during such Fiscal Year over (b) the sum,
without duplication, of:


 


(i)           Consolidated Taxes payable in cash by Borrower and its Restricted Subsidiaries with respect to such Fiscal Year;


 


(ii)          Fixed Charges for such Fiscal Year to the extent paid in cash;


 


(iii)         permanent repayments or prepayments of Indebtedness (other than prepayments of Loans under Section 2.3 and prepayment
of the ABL Credit Agreement or other revolving credit facilities), including any premium, make-whole or penalty payments related
thereto, made in cash by Borrower and its Subsidiaries during such Fiscal Year from Internally Generated Cash Flow;


 


(iv)         without duplication of amounts deducted pursuant to clause (v) in prior Fiscal Years, the amount of Capital Expenditures
and any business acquisitions that constitute Permitted Investments made during such period to the extent financed with Internally
Generated Cash Flow;


 


(v)          without duplication of amounts deducted from Excess Cash Flow in prior Fiscal Years, the aggregate consideration required to be
paid in cash by Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”)
entered into during such Fiscal Year relating to Capital Expenditures or any business acquisition that constitutes a Permitted
Investment to be consummated or made during the period of four consecutive Fiscal Quarters of Borrower following the end of such
Fiscal Year and intended to be financed with Internally Generated Cash Flow; provided that to the extent the aggregate
amount utilized to finance such Capital Expenditure or acquisition during such period of four consecutive Fiscal Quarters is less
than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end
of such period of four consecutive Fiscal Quarters;


 


(vi)         cash used to pay deferred acquisition consideration (including earn-outs), except to the extent such cash is from proceeds of
Internally Generated Cash Flow;


 


(vii)        cash expenditures in respect of Hedging Obligations during such period to the extent not reflected in the computation of Consolidated
EBITDA or Consolidated Interest Expense;


 


(viii)       the increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such Fiscal Year;


 


(ix)         the amount relating to items that were added to or not deducted from Consolidated Net Income in calculating EBITDA to the extent
such items represented a cash payment (which had not reduced Excess Cash Flow on accrual thereof in a prior Fiscal Year) by Borrower
and its Restricted Subsidiaries or did not represent cash received by Borrower and its subsidiaries, in each case on a consolidated
basis during such Fiscal Year;


 


(x)          cash payments by Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of Borrower and
its Restricted Subsidiaries other than Indebtedness;


 


(xi)         the aggregate amount of expenditures actually made by Borrower and its Restricted Subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period; and


 






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(xii)          
cash payments by Borrower and its Restricted Subsidiaries during such period in respect of non-cash charges included in the calculation
of Consolidated Net Income in any prior period.


 


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


 


“Excluded
Contributions” means, at any time the Cashcash and Cash Equivalents received by Borrower after the Closing Date from::


 


(1)             contributions
to its common equity capital, and


 


(2)             the
sale (other than to a Subsidiary of Borrower or to any Subsidiary management equity plan or stock option plan or any other management
or employee benefit plan or agreement) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of Borrower,


 


in
each case designated as Excluded Contributions pursuant to an Officer’s Certificate.


 


“Excluded
Principal Property” means (a) any Principal Property, (b) any shares of capital stock or Indebtedness (as defined in
either or both of the Existing Con-way IndenturesIndenture)
of any Restricted Subsidiary (as defined in either or both of the Existing Con-way
IndenturesIndenture)
or (c) any other assets or property owned by Con-way or any Restricted Subsidiary (as defined in either
or both of the Existing Con-way IndenturesIndenture)
to the extent, in the case of this clause (c), that the existence of liens on such assets or property in favor of the Lenders
as security for the Obligations owing under this Agreement would result in the breach of, or require the equal and ratable securing
of, all or any portion of the Con-way Existing Indebtedness; provided that the Borrower may, in its sole discretion, elect
to designate any property which is an Excluded Principal Property as not being an Excluded Principal Property.


 


“Excluded
Property” has the meaning assigned to such term in the Security Agreement.


 


“Excluded
Subsidiary” means (a) each Domestic Subsidiary that is prohibited from guaranteeing the Obligations hereunder by
any requirement of law or that would require consent, approval, license or authorization of a governmental
authorityGovernmental Authority to guarantee
the Obligations hereunder (unless such consent, approval, license or authorization has been received), (b) each Domestic
Subsidiary that is prohibited by any applicable contractual requirement from guaranteeing the Obligations hereunder on the Closing
Date or at the time such Subsidiary becomes a Subsidiary (to the extent not incurred in connection with becoming a Subsidiary
and in each case for so long as such restriction or any replacement or renewal thereof is in effect), (c) any Domestic Subsidiary
(i) that owns no material assets (directly or through its Subsidiaries) other than equity
interestsEquity Interests of one or more
Foreign Subsidiaries or (ii) that is a direct or indirect Subsidiary of a Foreign Subsidiary, (d) any Foreign Subsidiary,
(e) any Securitization Subsidiary, (f) any CFC, (g) any Unrestricted Subsidiary, (h)
any non-Wholly-Owned Subsidiary, (hi)
any Subsidiary that is a captive insurance company, (j) upon consummation
of the Spin Transactions, SpinCo and any of its direct or indirect Subsidiaries and (ik)
any not-for profit Subsidiary.


 


“Excluded
Swap Obligation” means, with respect to any Credit Party, any Hedging Obligation if, and to the extent that, all or
a portion of the Obligations of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such
Hedging Obligation (or any Obligations thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation
or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof). If a Hedging
Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such
Hedging Obligation that is attributable to swaps for which such Obligation or security interest is or becomes illegal.


 



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“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a Recipient, or required to be withheld or deducted
from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and
branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax
(or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S.
federal withholding Tax imposed on amounts payable to or for the account of such Lender pursuant to any law in effect on the date
such Lender becomes a party to this Agreement (other than as an assignee pursuant to a request by Borrower under Section 2.14(d))
or designates a new lending office (unless such designation is at the request of Borrower under Section 2.14(g)),
(c) Taxes attributable to such Recipient’s failure to comply with Section 2.13(d) and (d) any U.S.
federal withholding Taxes imposed under FATCA.


 


“Existing
ABL Credit Agreement” means that certain Amended and Restated Revolving Loan Credit Agreement, dated as of April 1,
2014, among Borrower, MSSF, as administrative agent, and the other parties thereto (as amended prior to the date of this Agreement).


 


“Existing
Con-way Indentures” means (i) that certain Indenture,
dated December 27, 2007, between Con-way, as issuer, and The Bank of New York Trust Company, N.A., as trustee, in the case of
Con-way’s 7.25% Senior Notes due 2018, and (ii)Indenture”
means that certain Indenture, dated as of March 8, 2000, between CNF Transportation, Inc., as issuer, and Bank One
Trust Company, National Association, as trustee, in the case of Con-way’s 6.70% Senior Debentures due 2034.


 


“Extended
Loans” has the meaning specified in Section 2.17(a).


 


“Extending
Lender” has the meaning specified in Section 2.17(c).


 


“Extension”
has the meaning specified in Section 2.17(a).


 


“Extension
Amendment” has the meaning specified in Section 2.17(d).


 


“Extension
Offer” has the meaning specified in Section 2.17(a).


 


“Facility”
shall mean the credit facility provided by the Lenders on the Amendment No. 36
Closing Date pursuant to Section 2.1 under this Agreement.


 


“Fair
Labor Standards Act” means the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.


 


“Fair
Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length
transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion
to complete the transaction.


 


“FATCA”
means Sections 1471 through 1474 of the IRC as of the date of this Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations
thereof and any agreement entered into pursuant to Section 1471(b)(1) of the IRC and any intergovernmental agreements implementing
the foregoing.


 



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“FCPA”
means the Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.), as amended, and the rules and
regulations thereunder.


 


“Federal
Funds Rate” means, for any day, a floating rate equal to (a) the weighted average of interest rates on overnight
federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on
the next Business Day; or (b) if no such rate is published on the next Business Day, the weighted average of the rates on
overnight Federal funds transactions among members of the Federal Reserve System, as determined by Agent in its reasonable discretion,
which determination shall be final, binding and conclusive (absent manifest error).


 


“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System.


 


“Fees”
means any and all fees and other amounts payable to Agent or any Lender pursuant to this Agreement or any of the other Loan Documents.


 


“Financial
Officer” means, with respect to any of Borrower or its Subsidiaries, the chief executive officer, the chief financial
officer, the principal accounting officer, the treasurer, the assistant treasurer and the controller thereof.


 


“Financial
Statements” means the consolidated income statements, statements of cash flows and balance sheets of Borrower delivered
in accordance with Section 4.4 and Section 5.1.


 


“Fiscal
Quarter” means any of the quarterly accounting periods of Borrower, ending on March 31, June 30, September 30, and December
31 of each year.


 


“Fiscal
Year” means any of the annual accounting periods of Borrower ending on December 31 of each year.


 


“Fixed
Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of EBITDA of such Person for such
period to the Fixed Charges of such Person for such period.


 


In
the event that Borrower or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other
than in the case of any Qualified Securitization
Financing, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the
applicable period) or issues, repurchases or redeems Disqualified Stock or Preferred Stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of
the Fixed Charge Coverage Ratio is made (the “Fixed Charge Calculation Date”), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness,
or such issuance, repurchase or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning
of the applicable four-quarter period; provided that Borrower may elect pursuant to an Officer’s Certificate delivered
to Agent to treat all or any portion of the commitment under any Indebtedness pertaining to a Limited Condition Acquisition as
being Incurred at the time the acquisition agreement or other similar agreement pertaining to such Limited Condition Acquisition
is entered into, in which case any subsequent Incurrence of Indebtedness under such commitment shall not be deemed, for purposes
of this calculation, to be an Incurrence at such subsequent time.


 



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To
the (i) extent Borrower elects pursuant to an Officer’s Certificate delivered to Agent to treat all or any portion of the
commitment under any Indebtedness as being Incurred in connection with a Limited Condition Acquisition as described in the preceding
paragraph or (ii) Borrower or any Restricted Subsidiary elects to treat Indebtedness as having been Incurred prior to the actual
Incurrence thereof pursuant to Section 7.1(c)(3iii),
Borrower shall deem all or such portion of such commitment or such Indebtedness, as applicable, as having been Incurred and to
be outstanding for purposes of calculating the Fixed Charge Coverage Ratio for any period in which Borrower makes any such election
and for any subsequent period until such commitments or such Indebtedness, as applicable, are no longer outstanding. For purposes
of making the computation referred to above, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and
discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business,
that Borrower or any Restricted Subsidiary has made during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Fixed Charge Calculation Date (each, for purposes of this definition, a “pro
forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions,
mergers, amalgamations, consolidations, or discontinued operations (and the change of any associated fixed charge obligations
and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period;
provided that, notwithstanding any classification of any Person, business, assets or operations as discontinued operations because
a definitive agreement for the sale, transfer or other disposition in respect thereof has
been entered into,
Borrower shall not make such computations on a pro forma basis for any such classification for any period until such sale, transfer
or other disposition has been consummated.
If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into Borrower
or any Restricted Subsidiary since the beginning of such period shall have made consummated
any pro forma event, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall
be calculated giving pro forma effect thereto for such period as if such pro forma event had occurred at the beginning of the
applicable four-quarter period. If since the beginning of such period any Restricted Subsidiary is designated an Unrestricted
Subsidiary or any Unrestricted Subsidiary is designated a Restricted Subsidiary, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such designation had occurred at the beginning of the applicable
four-quarter period.


 


For
purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma
calculations shall be made in good faith by a responsible financial or accounting officer of Borrower. Any such pro forma
calculation may include adjustments appropriate, in the reasonable good faith determination of Borrower as
set forth in an Officer’s Certificate, to reflect operating expense reductions and other operating improvements
or synergies reasonably expected to result from the applicable event within 12 months of the date the applicable event is consummated.
For the avoidance of doubt, adjustments to the computation of the Fixed Charge Coverage Ratio (or of Consolidated EBITDA)
arising from any pro forma event and made in accordance with this paragraph and the paragraph immediately above shall not
be subject to the 20% cap set forth in clause (9) of the definition of “EBITDA”.


 


If
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining
term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by a responsible financial or accounting officer of Borrower to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance
of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have
been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as Borrower may designate.


 



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For
purposes of this definition, any amount in a currency other than Dollars will be converted to Dollars based on the average exchange
rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent
with that used in calculating EBITDA for the applicable period.


 


“Fixed
Charges” means, with respect to any Person for any period, the sum, without duplication, of: (1) Consolidated Interest
Expense (excluding amortization or write-off of deferred financing costs) of such Person for such period, and (2) all cash dividend
payments (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock of such Person and
its Restricted Subsidiaries.


 


“Flood
Insurance Laws” means the National Flood Insurance Reform Act of 1994 and related or successor legislation (including
the regulations of the Board of Governors of the Federal Reserve System of the United States).


 


“Flood
Hazard Property” has the meaning specified in Section 6.10(b)(iv).


 


“Floor”
means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to the LIBOR Rate.


 


“Foreign
Disposition” has the meaning specified in Section 2.3(b)(v).


 


“Foreign
Lender” has the meaning ascribed thereto in Section 2.13(d).


 


“Foreign
Pension Plan” shall mean any benefit plan that under applicable law other than the laws of the United States or any
political subdivision thereof, is required to be funded through a trust or other funding vehicle other than a trust or funding
vehicle maintained exclusively by a Governmental Authority.


 


“Foreign
Subsidiary” means a Restricted Subsidiary that is not organized or established under the laws of the United States of
America, any state thereof or the District of Columbia. For the avoidance of doubt, any Subsidiary incorporated or organized under
the laws of a territory of the United States (including the Commonwealth of Puerto Rico) shall constitute a “Foreign Subsidiary”
hereunder.


 


“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the Closing Date (unless
otherwise specified herein). For the purposes of this Agreement, the term “consolidated” with respect to
any Person shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary,
but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.


 


“Governmental
Authority” any federal, state, provincial or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.


 



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“Guarantied
Obligations” means as to any Person, any obligation of such Person guarantying or otherwise having the economic effect
of guarantying any Indebtedness, lease, dividend, or other obligation (“primary obligation”) of any other Person
(the “primary obligor”) in any manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet condition of the primary obligor, (c) 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 to make payment of
such primary obligation, (d) protect the beneficiary of such arrangement from loss (other than product warranties given in
the ordinary course of business), or (e) indemnify the owner of such primary obligation against loss in respect thereof;
provided, however, that the term Guarantied Obligations shall not include endorsements of instruments for deposit
or collection in the ordinary course of business or standard contractual indemnities. The amount of any Guarantied Obligations
at any time shall be deemed to be an amount equal to the lesser at such time of (x) the stated or determinable amount of
the primary obligation in respect of which such Guarantied Obligations is incurred, and (y) the maximum amount for which
such Person may be liable pursuant to the terms of the instrument embodying such Guarantied Obligations, or, if not stated or
determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof.


 


“Guarantor
Payment” has the meaning ascribed to it in Section 13.7(a).


 


“Guarantors”
means any Subsidiary of Borrower that guarantees the Obligations hereunder by executing this Agreement or a supplemental guarantee
in the form of Exhibit 1.1(a) attached hereto; provided that (i) upon the release or discharge of such Person from
its Guaranty in accordance with this Agreement, such Person shall cease to be a Guarantor and (ii) notwithstanding anything
to the contrary in any Loan Document, in no event shall an Excluded Subsidiary be a Guarantor.


 


“Guaranty”
means the guarantee of the Obligations of Borrower hereunder by the Guarantors in Article 13 hereunder or in a supplemental
guarantee in accordance with Section 6.12 of this Agreement.


 


“Hazardous
Material” means any substance, material or waste that is regulated as a hazardous waste, hazardous substance, hazardous
material, pollutant, contaminant or words of similar import under any Environmental Law, including but not limited to any “Hazardous
Waste” as defined by the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq. (1976)), any
 “Hazardous Substance” as defined under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
(42 U.S.C. § 9601 et seq. (1980)), any petroleum or any fraction thereof, asbestos, polychlorinated biphenyls, toxic
mold, mycotoxins, toxic microbial matter (naturally occurring or otherwise), infectious waste and radioactive substances or any
other substance that is regulated under Environmental Law due to its toxic, ignitable, reactive, corrosive, caustic or dangerous
properties.


 


“Hedge
Bank” means (a) any Person counterparty to a Swap Contract who is (or at the time such Swap Contract was entered into,
was) a Lender, an Agent or an Affiliate of any thereof, (b) any Person counterparty to a Swap Contract who was, at the time such
Swap Contract was entered into, a lender or agent or Affiliate of any thereof under and pursuant to the Existing ABL Credit Agreement,
and (c) any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before
or after entering into a Swap Agreement, ceases to be an Agent or a Lender, as the case may be.


 



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“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under:


 


(1)          currency
exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency
exchange, interest rate or commodity collar agreements; and


 


(2)          other
agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates or commodity
prices.


 


“Impacted
Lender” means any Lender that fails to promptly provide Borrower or Agent, upon such Person’s reasonable request,
reasonably satisfactory evidence that such Lender will not become a Defaulting Lender.


 


“Increased
Amount” has the meaning ascribed to it in Section 7.7(d).


 


“Incremental
Amendment” has the meaning specified in Section 2.15(d).


 


“Incremental
Commitment” means a Person’s commitment to make an Incremental Loan to Borrower pursuant to an Incremental Amendment.


 


“Incremental
Lender” has the meaning specified in Section 2.15(c).


 


“Incremental
Loans” has the meaning specified in Section 2.15(a).


 


“Incur”
means issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or
Capital Stock of a Person existing at the time such person becomes a Subsidiary (whether by merger, amalgamation, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. “Incurred”
and “Incurrence” shall have like meanings.


 


“Indebtedness”
means, with respect to any Person:


 


(1)          the
principal of any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced
by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication,
reimbursement agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property (except
any such balance that constitutes (i) a trade payable or similar obligation to a trade creditor Incurred in the ordinary
course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such
Person in accordance with GAAP and (iii) liabilities accrued in the ordinary course of business), which purchase price is
due more than twelve months after the date of placing the property in service or taking delivery and title thereto, (d) in
respect of Capitalized Lease Obligations, or (e) representing any Hedging Obligations, if and to the extent that any of the
foregoing indebtedness would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared
in accordance with GAAP;


 


(2)          to
the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise,
the obligations referred to in clause (1) of another Person (other than by endorsement of negotiable instruments for collection
in the ordinary course of business); and


 


(3)          to
the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether
or not such Indebtedness is assumed by such Person); provided, however, that the amount of such Indebtedness will
be the lesser of: (a) the Fair Market Value (as determined in good faith by Borrower) of such asset at such date of determination,
and (b) the amount of such Indebtedness of such other Person;


 



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provided,
however, that, notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations
incurred in the ordinary course of business and not in respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase
price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations
of the respective seller; (4) obligations under or in respect of a Qualified Securitization Financing (including all obligations
of any Securitization Subsidiary); (5) trade and other ordinary course payables, accrued expenses and intercompany liabilities
arising in the ordinary course of business; (6) obligations in respect of cash management services; (7) in the case
of Borrower and the Restricted Subsidiaries (x) all intercompany Indebtedness having a term not exceeding 364 days (inclusive
of any roll-over or extensions of terms) and made in the ordinary course of business and (y) intercompany liabilities in
connection with cash management, tax and accounting operations of Borrower and the Restricted Subsidiaries; and (8) any obligations
under Hedging Obligations; provided that such agreements are entered into for bona fide hedging purposes of Borrower or
the Restricted Subsidiaries (as determined in good faith by the board of directorsBoard
of Directors or senior management of Borrower, whether or not accounted for as a hedge in accordance with GAAP) and,
in the case of any foreign exchange contract, currency swap agreement, futures contract, option contract or other similar agreement,
such agreements are related to business transactions of Borrower or the Restricted Subsidiaries entered into in the ordinary course
of business and, in the case of any interest rate protection agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other
similar agreement or arrangement, such agreements substantially correspond in terms of notional amount, duration and interest
rates, as applicable, to Indebtedness of Borrower or the Restricted Subsidiaries Incurred without violation of this Agreement.


 


Notwithstanding
anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to,
the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would
otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any
embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness
under this Agreement but for the application of this sentence shall not be deemed an Incurrence of Indebtedness under this Agreement.


 


“Indemnified
Person” has the meaning ascribed to in Section 2.11.


 


“Indemnified
Tax” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account
of any obligation of a Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a),
Other Taxes.


 


“Independent
Financial Advisor” means an accounting, appraisal or investment banking firm or consultant, in each case of nationally
recognized standing, that is, in the good faith determination of Borrower, qualified to perform the task for which it has been
engaged.


 


“Information”
has the meaning ascribed to it in Section 12.8.


 


“Insolvency
Law” means the Bankruptcy Code, as now and hereafter in effect, any successors to such statute and any other applicable
insolvency or other similar law of any jurisdiction including, without limitation, any law of any jurisdiction permitting a debtor
to obtain a stay or a compromise of the claims of its creditors against it.


 


“Intellectual
Property” means any and all Patents, Copyrights and Trademarks.


 



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“Intellectual
Property Security Agreements” means, collectively, any and all Copyright Security Agreements, Patent Security Agreements
and Trademark Security Agreements, made in favor of Agent, on behalf of itself and Lenders, by each Credit Party signatory thereto,
as amended from time to time.


 


“Interchange
System” means that certain rail interchange system governed by the Code of Car Service Rules/Code of Car Hire Rules
contained in AAR Circular OT-10 as promulgated in the Official Railway Equipment Register, as in effect from time to time, or
any successor thereto.


 


“Intercreditor
Agreement” has the meaning specified in Section 10.15.


 


“Interest
Payment Date” means (a) as to any Base Rate Loan, the last Business Day of each Fiscal Quarter to occur while such
Loan is outstanding and the Maturity Date and (b) as to any LIBOR Loan, the last day of the applicable LIBOR Period and the
Maturity Date; provided, that in the case of any LIBOR Period greater than three months in duration, interest shall be
payable at three-month intervals and on the last day of such LIBOR Period.


 


“Internally
Generated Cash Flow” means any cash of Borrower and its Restricted Subsidiaries that is not generated from a sale or
disposition of assets outside the ordinary course of business, a casualty or condemnation event, an incurrence of Indebtedness
or an issuance of Equity Interests.


 


“Investment
Grade Securities” means:


 


(1)          securities
issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than
Cash Equivalents),


 


(2)          securities
that have a rating equal to or higher than Baa3 (or equivalent) by Moody’s and BBB- (or equivalent) by S&P, but excluding
any debt securities or loans or advances between and among Borrower and its Subsidiaries,


 


(3)          investments
in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold
material amounts of cash pending investment and/or distribution, and


 


(4)          corresponding
instruments in countries other than the United States customarily utilized for high quality investments and in each case with
maturities not exceeding two years from the date of acquisition.


 


“Investments”
means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers
and commission, travel and similar advances to officers, employees and consultants made in the ordinary course of business and
any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the
ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities
issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of such Person in the
same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash
or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 7.2:


 


(1)          “Investments”
shall include the portion (proportionate to Borrower’s equity interestEquity
Interest in such Subsidiary) of the Fair Market Value (as determined in good faith by Borrower) of the net assets of
such Subsidiary at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, Borrower shall be deemed to continue to have a permanent “Investment”
in an Unrestricted Subsidiary equal to an amount (if positive) equal to:


 


(a)       its
 “Investment” in such Subsidiary at the time of such redesignation less


 



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(b)       the
portion (proportionate to its equity interestEquity
Interest in such Subsidiary) of the Fair Market Value (as determined in good faith by Borrower) of the net assets of
such Subsidiary at the time of such redesignation; and


 


(2)          any
property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value (as determined in good faith
by Borrower) at the time of such transfer, in each case as determined in good faith by the Board of Directors of Borrower.


 


“IRC”
means the Internal Revenue Code of 1986, as amended.


 


“IRS”
means the Internal Revenue Service.


 


“ISDA
Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any
successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives
published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.


 


“Joint
Venture” means any Person a portion (but not all) of the Capital Stock of which is owned directly or indirectly by Borrower
or a Subsidiary thereof but which is not a Wholly-Owned Subsidiary and which is engaged in a business that is similar to or complementary
with the business of Borrower and its Subsidiaries as permitted under this Agreement.


 


“Junior
Intercreditor Agreement” means the intercreditor agreement to be entered into among Agent, the Con-way
BridgeBilateral Agent (if the Con-way
BridgeBilateral Credit Agreement has
been entered into and isis
still effective), the Senior Representative of any Indebtedness that is to be secured by a Lien on the Collateral that
is not prohibited by this Agreement and is junior to the Lien of the Secured Parties, and the Credit Parties, substantially in
the form of Exhibit 1.1(f) hereto, as the same may be amended, restated, supplemented or otherwise modified from time to
time, or any other intercreditor agreement among the foregoing on terms that are reasonably acceptable to Agent and Borrower.


 


“Latest
Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or
Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Refinancing Loan
or any Extended Loan, in each case as extended in accordance with this Agreement from time to time.


 


“Lead
Arrangers” means Morgan Stanley Senior Funding, Inc., J.P. Morgan Securities LLC, Barclays Bank PLC, Deutsche Bank Securities
Inc., HSBC Securities (USA) Inc. and Credit Agricole Securities (USA) Inc., each in its capacities as a Joint Lead Arranger and
Joint Bookrunner.


 


“Lender”
means each financial institution or other entity that (a) is listed on the signature pages hereof as a “Lender”
or, pursuant to an Incremental Amendment or Refinancing Amendment, becomes an Additional Lender, or (b) from time to time
becomes a party hereto by execution of an Assignment Agreement. For the avoidance of doubt, the Refinancing Term Lenders, as defined
in Amendment No. 3, and the Term B-1 Lenders6,
shall constitute “Lenders” for all purposes hereunder.


 



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“LIBOR
Business Day” means a Business Day on which banks in the City of London are generally open for interbank or foreign
exchange transactions.


 


“LIBOR
Loan” means a Loan or any portion thereof bearing interest by reference to the LIBOR Rate.


 


“LIBOR
Margin” means the per annum interest rate margin from time to time in effect and payable with respect to LIBOR Loans,
as determined in accordance with the definition of Applicable Margin.


 


“LIBOR
Period” means, with respect to any LIBOR Loan, each period commencing on a LIBOR Business Day selected by Borrower pursuant
to this Agreement and ending one, three or six months (and if available to all Lenders, twelve months) thereafter, as selected
by Borrower’s irrevocable notice to Agent as set forth in Section 2.5(e); provided, that the foregoing
provision relating to LIBOR Periods is subject to the following:


 


(a)          
if any LIBOR Period would otherwise end on a day that is not a LIBOR Business Day, such LIBOR Period shall be extended to the
next succeeding LIBOR Business Day unless the result of such extension would be to carry such LIBOR Period into another calendar
month, in which event such LIBOR Period shall end on the immediately preceding LIBOR Business Day;


 


(b)          
any LIBOR Period that would otherwise extend beyond the Maturity Date shall end on such date;


 


(c)          
any LIBOR Period that begins on the last LIBOR 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 LIBOR Period) shall end on the last LIBOR Business Day of a calendar
month; and


 


(d)          
Borrower shall select LIBOR Periods so that there shall be no more than 10 separate LIBOR Loans in existence at any one time.


 


“LIBOR
Rate” means for each LIBOR Period, a rate of interest determined by Agent equal to:


 


(a)          
the London interbank offered rate, for any LIBOR Period with respect to a LIBOR Loan, and displayed on the appropriate page of
the Reuters screen (or on any successor page or any successor service, or any substitute page or substitute for such service,
providing rate quotations comparable to those currently provided on Reuters screen, as determined by Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) for deposits
in Dollars (for delivery on the first day of such LIBOR Period) with a term equivalent to such LIBOR Period two Business Days
prior to the commencement of such LIBOR Period (but if more than one rate is specified on such page, the rate will be an arithmetic
average of all such rates), or, if for any reason such rate is not available, the rate at which Dollar deposits for a maturity
comparable to such LIBOR Period that would be offered to Agent by major banks in the London or other offshore interbank market
for Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such LIBOR
Period; divided by


 


(b)         
a number equal to 1.0 minus the aggregate (but without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is two LIBOR Business Days prior to the beginning of such LIBOR Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the Federal Reserve Board or other Governmental Authority
having jurisdiction with respect thereto, as now and from time to time in effect) for Eurocurrencyeurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board)
that are required to be maintained by a member bank of the Federal Reserve System.


 



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In
no event shall the LIBOR Rate be less than 0.00%.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or similar encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale
or other title retention agreement or any lease in the nature thereof); provided that in no event shall an operating lease or
an agreement to sell be deemed to constitute a Lien.


 


“Limited
Condition Acquisition” means any acquisition, including by way of merger, amalgamation or consolidation, by one or more
of Borrower and its Restricted Subsidiaries of any Person or any business or line of business or division of any Person, permitted
by this Agreement and which is designated as a Limited Condition Acquisition by Borrower or such Restricted Subsidiary in writing
to Agent on or prior to the date the definitive agreements for such acquisition are entered into.


 


“Litigation”
has the meaning ascribed to it in Section 4.13.


 


“Loan
Documents” means this Agreement, the Guaranties, the Intercreditor Agreements, the Collateral Documents and all other
agreements, instruments, and documents executed and delivered to, or in favor of, Agent, or any Lenders pertaining to any Obligation
hereunder and including all other powers of attorney, consents and assignments. Any reference in this Agreement or any other Loan
Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements
or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and
all times such reference becomes operative.


 


“Loans”
means the Term B Loans and the Term B-1 Loans, collectively.


 


“Material
Adverse Effect” means, a material adverse effect on (x) the business, financial condition, operations or properties
of Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, (y) the ability of Borrower
or the other Credit Parties to perform their payment obligations under the Loan Documents when due, and (z) the validity
or enforceability of any of the Loan Documents or the rights and remedies of Agent and the Lenders under any of the Loan Documents.


 


“Material
Real Property” means any owned Real Property located in the United States (excluding, for the avoidance of doubt, any
territory thereof) that is owned in fee simple by Borrower or a Guarantor and has an individual fair market value in excess of
$15,000,000, other than any Real Property which is an Excluded Principal Property or which is Excluded Property.


 


“Maturity
Date” means the date that is seven years after the Amendment No. 3 Closing Date, provided that if such date is not a
Business Day, then the Maturity Date shall be the next succeeding Business Day.


 


“Maximum
Lawful Rate” has the meaning ascribed to it in Section 2.5(f).


 


“Memorandum
of Security Agreement” means one or more Memorandum of Security Agreement, dated as of the Closing Date (and after the
Closing Date with respect to any Railcars acquired after the Closing Date), executed by the Credit Parties that own any Railcars,
in each case, in favor of Agent and in form and substance reasonably satisfactory to Agent and in any event in customary form
and including such documents, including any required transmittal letter, for recording such Memorandum of Security Agreement with
Surface Transportation Board pursuant to the provisions of 49 USC §11301 and 49 CFR §1177.


 



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“MNPI”
means information that is (a) not publicly available with respect to Borrower (or any Subsidiary of Borrower, as the case
may be) and (b) material with respect to Borrower (or its Subsidiaries) or their securities for purpose of United States
federal and state securities laws.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor to its rating agency business.


 


“Mortgage
Policies” has the meaning specified in Section 6.10(b)(ii).


 


“Mortgages”
means collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by the Credit Parties in favor or for the benefit
of Agent on behalf of the Lenders in form and substance which (i) is consistent with the terms and provisions of this Agreement,
(ii) provides for automatic release to the extent the real property subject to the Mortgage is or becomes an Excluded Principal
Property or which is Excluded Property, or if the Lien created thereby is of the type described in Section 6.10(c)(D), and
(iii) is otherwise reasonably satisfactory to Agent executed and delivered pursuant to Section 6.10 or 6.14.


 


“Mortgage
Policies” has the meaning specified in Section 6.10(b)(ii).


 


“MSSF”
has the meaning ascribed to it in the preamble.


 


“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, and to which any Credit
Party or ERISA Affiliate is making, is obligated to make, or has made or been obligated to make, contributions on behalf of participants
who are or were employed by any of them.


 


“Net
Income” means, with respect to any Person, the net income (loss) of such Person and its Restricted Subsidiaries, determined
in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.


 


“Net
Proceeds” means:


 


(a)
with respect to any Prepayment Disposition, the aggregate cash proceeds received by Borrower or any Restricted Subsidiary in respect
of such Prepayment Disposition (including, without limitation, any cash received in respect of or upon the sale or other disposition
of any Designated Non-cash Consideration received in such Prepayment Disposition and any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding the
assumption by the acquiring person of Indebtedness relating to the disposed assets or other consideration received in any other
non-cash form), net of the direct costs relating to such Prepayment Disposition and the sale or disposition of such Designated
Non-cash Consideration (including, without limitation, legal, accounting and investment banking fees, and brokerage and sales
commissions), and any relocation expenses incurred as a result thereof, taxes paid or reasonably estimated by Borrower to be payable
as a result thereof (including Tax Distributions and after taking into account any available tax credits or deductions and any
tax sharing arrangements related solely to such disposition), amounts required to be applied to the repayment of principal, premium
(if any) and interest on Indebtedness required (other than the Loans and other Indebtedness (other
than the Con-way Bridge Facility, it being understood and agreed that Borrower
may apply the cash proceeds of any Prepayment Disposition to the repayment of the Con-way Bridge Facility prior to making any
repayment of the Obligations hereunder with such cash proceeds, and that any cash proceeds so applied shall not constitute Net
Proceeds) secured on a pari passu or junior lien basis with the Liens on
the Collateral securing the Obligations under this Agreement) to be paid as a result of such transaction, and any deduction
of appropriate amounts to be provided by Borrower and the Restricted Subsidiaries as a reserve in accordance with GAAP against
any liabilities associated with the asset disposed of in such transaction and retained by Borrower and the Restricted Subsidiaries
after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities
and liabilities related to environmental matters or against any indemnification obligations associated with such transaction;
provided, that (i) no net cash proceeds calculated in accordance with the foregoing shall constitute Net Proceeds in any
Fiscal Year until the aggregate amount of all such net cash proceeds otherwise constituting Net Proceeds pursuant to the foregoing
clause (a) in such Fiscal Year shall exceed $200,000,000 (and thereafter only net cash proceeds in excess of such amount
shall constitute Net Proceeds) and (ii) net cash proceeds from the sale or other disposition of any ABL Assets (including any
indirect sale or other disposition occurring by reason of the indirect sale or other disposition of the personPerson that holds such ABL Assets) shall not constitute Net Proceeds to the extent that such net cash proceeds are be applied
in payment of any obligations under the ABL Credit Agreement (or any credit facility or facilities which amend, restate, refinance,
replace, increase or otherwise modify the ABL Credit Agreement); and


 



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(b)
with respect to the incurrence of Indebtedness, the aggregate cash proceeds received by Borrower or any Restricted Subsidiary
in respect of the incurrence of such Indebtedness, net of the direct costs of such incurrence (including, without limitation,
legal, accounting and investment banking fees, and brokerage and sales commissions).


 


To
the extent Net Proceeds of any Prepayment Disposition are received by a Restricted Subsidiary that is not a Wholly Owned Restricted
Subsidiary, Net Proceeds of such Prepayment Disposition shall be deemed to be an amount equal to the gross Net Proceeds of such
Prepayment Disposition, multiplied by a fraction equal to Borrower’s percentage of ownership of the economic interests in
the equity interestsEquity
Interests of the Restricted Subsidiary.


 


“Non-Consenting
Lender” has the meaning ascribed to it in Section 12.2(d).


 


“Non-Con-way
Subsidiary” means any Subsidiary of Borrower that is not a Con-way Subsidiary.


 


“Norbert”
means XPO Logistics Europe SA (formerly known as Norbert
Dentressangle S.A.), a French public limited company (société
anonyme).


 


“Norbert
Acquisition” means the acquisition by Borrower, directly or indirectly, of up to 100% of the outstanding capital
stock of Norbert pursuant to (a) the Norbert Private Sale and (b) the Norbert Offer and (c) market purchases or
any other purchase of shares not sold in the Norbert Offer or the Norbert Private Sale.


 


“Norbert
Acquisition Agreement”
means that certain Share
Purchase Agreement among Dentressangle Initiatives, Mr. Norbert Dentressangle, Mrs. Evelyne Dentressangle, Mr. Pierre-Henri Dentressangle,
Ms. Marine Dentressangle and Borrower,
dated as of April 28,
2015, together with all exhibits, annexes and schedules thereto.


 


“Norbert
Bridge Credit Agreement” means that certain Senior Unsecured Bridge Term Loan Credit Agreement, dated as of April 28,
2015, by and among Borrower, certain subsidiaries of Borrower, MSSF, as administrative agent, and the other parties thereto, including
all exhibits, annexes and schedules thereto.


 



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“Norbert
Private Sale” means the sale of 6,561,776 ordinary shares, nominal value €2, of Norbert acquired by Borrower
pursuant to the Norbert Acquisition Agreement.


 


“Norbert
Offer” means the mandatory public takeover offer made or to be made by Borrower pursuant to the General Regulation
of the French Autorité des marches financiers and in
accordance with the Norbert
Offer Agreement.


 


“Norbert
Offer Agreement” means the Tender Offer Agreement between Borrower and Norbert,
dated as of April 28,
2015, together with all exhibits, annexes and schedules thereto.


 


“Norbert
Refinancing Indebtedness” means Indebtedness incurred at Norbert or any of its Subsidiaries and incurred to refund,
refinance, replace, renew, extend or defease any Indebtedness of Norbert or any of its Subsidiaries, and any Indebtedness incurred
at Norbert or any of its Subsidiaries issued to so refund, refinance, replace, renew, extend or defease such Indebtedness, in
an amount not to exceed the principal amount of such Indebtedness plus additional Indebtedness incurred to pay make-wholes, premiums,
accrued interest, defeasance costs and fees and related costs and expenses in connection therewith.


 


“Norbert
Transactions” means (a) the consummation of the acquisition
of Norbert Acquisition (including the Norbert Private Sale and the Norbert Offer)
and transactions contemplated thereby and in connection therewith, (b) the execution, delivery and performance
of the Norbert Bridge Credit Agreement, (c) Borrower’s or any of its Subsidiaries’ incurrence, replacement, redemption,
repayment, defeasance, discharge or refinancing of indebtedness or liens in connection with the acquisition
of Norbert Acquisition, including the incurrence of any Norbert Refinancing
Indebtedness, (d) the amendment of the Existing ABL Credit Agreement pursuant to Amendment No. 2 thereto and (e) the
payment of fees and expenses in connection with the foregoing.


 


“Note”
means a promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender hereunder, substantially in
the form of Exhibit 1.1(g).


 


“Notice
of Borrowing” has the meaning ascribed to it in Section 2.1(b).


 


“Notice
of Conversion/Continuation” has the meaning ascribed to it in Section 2.5(e).


 


“NYFRB”
means the Federal Reserve Bank of New York.


 


“NYFRB’s
Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.


 


“Obligations”
means all loans, advances, debts, liabilities and obligations for the performance of covenants or for payment of monetary amounts
(whether or not such performance is then required or contingent, or such amounts are liquidated or determinable) owing by any
Credit Party to any Secured Party under any Loan Document, and all covenants and duties regarding such amounts, of any kind or
nature, present or future, whether or not evidenced by any note, agreement or other instrument, arising under this Agreement,
any of the other Loan Documents, or any Secured Hedge Agreement (other than with respect to any Credit Party’s obligations
that constitute Excluded Swap Obligations solely with respect to such Credit Party). This term includes all principal, interest
(including all interest that accrues after the commencement of any case or proceeding by or against any Credit Party in bankruptcy,
whether or not allowed in such case or proceeding), Fees, Secured Hedging Obligations (other than with respect to any Credit Party’s
Secured Hedging Obligations that constitute Excluded Swap Obligations solely with respect to such Credit Party), expenses, attorneys’
fees and any other sum chargeable to any Credit Party under this Agreement, any of the other Loan Documents, or any Secured Hedge
Agreements.


 



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“OFAC”
has the meaning ascribed to it in Section 4.23.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of such Person.


 


“Officer’s
Certificate” means, with respect to any Person, a certificate signed on behalf of such Person by two Officers of such
Person, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting
officer of such Person, which meets the requirements set forth in this Agreement.


 


“Opinion
of Counsel” means, with respect to any Person, a written opinion reasonably acceptable to Agent, from legal counsel. The counsel may be an employee of or counsel to such Person.


 


“Other
Applicable Indebtedness” has the meaning specified in Section 2.3(b)(ii).


 


“Other
Connection Taxes” means, with respect to a Recipient, Taxes imposed as a result of a present or former connection between
such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed,
delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan
or Loan Document).


 


“Other
Lender” has the meaning ascribed to it in Section 2.1(g).


 


“Other
Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any other Loan Documents, except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.14(d)).


 


“Pari
Passu Intercreditor Agreement” means (x) the
intercreditor agreement dated as of April 9, 2020, among Borrower,
Agent, Bilateral Agent, ABL Agent and other parties thereto and (y) any other intercreditor agreement to be entered
into among Agent, the Con-way Bridge Agent (if the Con-way Bridge Credit Agreement has
been entered into and is effective), the Senior Representative of any Indebtedness
that is to be secured by a Lien on the Collateral that is not prohibited by this Agreement and is pari passu to the Lien
of the Secured Parties, and the Credit Parties, substantially in the form of Exhibit 1.1(e) hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time, or any other intercreditor agreement among the foregoing
on terms that are reasonably acceptable to Agent and Borrower.


 


“Participant
Register” has the meaning ascribed to it in Section 11.1(c).


 


“Patents”
has the meaning specified in the Security Agreement.


 


“PatriotPATRIOT Act” has the meaning ascribed to it in Section 4.24.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 



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“Pension
Plan” means a Plan described in Section 3(2) of ERISA.


 


“Permitted
Holders” means Jacobs Private Equity, LLC and each of its Affiliates, Bradley Jacobs (“Jacobs”),
any entity controlled by Jacobs, Jacobs’ wife, Jacobs’ children and other lineal descendants and trusts established
for the benefit of any of the foregoing.


 


“Permitted
Investments” means:


 


(1)         any
Investment in Borrower or any Restricted Subsidiary; provided that no Credit Party that is a Non-Con-way Subsidiary may
make an Investment in a Con-way Subsidiary by transferring any Equity Interests or any Principal Property to such Con-way Subsidiary
in reliance on this clause (1) if such Investment would cause such Equity Interests or Principal Property so invested to
be Excluded Principal Property, unless Borrower agrees that such property will not constitute Excluded Principal Property;


 


(2)         any
Investment in Cash Equivalents or Investment Grade Securities;


 


(3)         any
Investment by Borrower or any Restricted Subsidiary in a Person that is engaged in a Similar Business if as a result of such Investment
(a) such Person becomes a Restricted Subsidiary, or (b) such Person, in one transaction or a series of related transactions,
is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is
liquidated into, Borrower or a Restricted Subsidiary; provided that no Credit Party that is a Non-Con-way Subsidiary may
make an Investment in a Con-way Subsidiary by transferring any Equity Interests or any Principal Property to such Con-way Subsidiary
in reliance on this clause (3) if such Investment would cause such Equity Interests or Principal Property so invested to
be Excluded Principal Property, unless Borrower agrees that such property will not constitute Excluded Principal Property);


 


(4)         any
Investment in securities or other assets not constituting Cash Equivalents and received in connection with an Asset Sale made
pursuant to Section 7.4 or any other disposition of assets not constituting an Asset Sale;


 


(5)         any
Investment existing on, or made pursuant to binding commitments existing on, the Closing Date (including, for the avoidance of
doubt, Investments of Con-way and any Restricted Subsidiary which is a Subsidiary thereof) or an Investment consisting of any
extension, modification or renewal of any Investment existing on the Closing Date; provided that the amount of any such
Investment may be increased (x) as required by the terms of such Investment as in existence on the Closing Date or (y) as
otherwise permitted under this Agreement;


 


(6)         loans
and advances to officers, directors, employees or consultants of Borrower or any of its Subsidiaries (i) in the ordinary
course of business in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to
any write-downs or write-offs thereof) not to exceed $55.0 million at the time of Incurrence, (ii) in respect of payroll
payments and expenses in the ordinary course of business and (iii) in connection with such person’sPerson’s purchase of Equity Interests of Borrower or any direct or indirect parent of Borrower solely to the extent that the
amount of such loans and advances shall be contributed to Borrower in cash as common equity;


 


(7)         any
Investment acquired by Borrower or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable
held by Borrower or such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure by Borrower or any Restricted
Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
or as a result of a Bail-In Action with respect to any contractual counterparty of the Borrower or any Restricted Subsidiary;


 



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(8)         Hedging
Obligations permitted under Section 7.1(b)(x);


 


(9)         any
Investment by Borrower or any Restricted Subsidiary in a Similar Business having an aggregate Fair Market Value (as determined
in good faith by Borrower), taken together with all other Investments made pursuant to this clause (9) that are at that time
outstanding, not to exceed the sum of (x) the greater of $820 million and 60% of Consolidated EBITDA at the time such Investment
is made, plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits
on sale, repayments, income and similar amounts) actually received in respect of any such Investment (with the Fair Market Value
of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided,
however, that if any Investment pursuant to this clause (9) is made in any Person that is not a Restricted Subsidiary
at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment
shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this
clause (9) for so long as such Person continues to be a Restricted Subsidiary;


 


(10)       additional
Investments by Borrower or any Restricted Subsidiary having an aggregate Fair Market Value (as determined in good faith by Borrower),
taken together with all other Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed
the sum of (x) the greater of $820 million and 60% of Consolidated EBITDA as of the date of such Investment plus (y) an
amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments,
income and similar amounts) actually received in respect of any such Investment (with the Fair Market Value of each Investment
being measured at the time made and without giving effect to subsequent changes in value); provided, however, that
if any Investment pursuant to this clause (10) is made in any Person that is not a Restricted Subsidiary at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (10)
for so long as such Person continues to be a Restricted Subsidiary;


 


(11)       loans
and advances to officers, directors or employees for business-related travel expenses, moving expenses and other similar expenses,
in each case Incurred in the ordinary course of business or consistent with past practice or to fund such person’sPerson’s purchase of Equity Interests of Borrower or any direct or indirect parent of Borrower;


 


(12)       Investments
the payment for which consists of Equity Interests of Borrower (other than Disqualified Stock) or any direct or indirect parent
of Borrower, as applicable; provided, however, that such Equity Interests will not increase the amount available for Restricted
Payments under clause (4) of the definition of “Cumulative Credit”;


 


(13)       any
transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 7.5(b)
(except transactions described in clauses (ii), (iv), (vi), (viii)(B) and (xv) of Section 7.5(b));


 


(14)       guarantees
issued in accordance with Section 7.1 and Section 6.12 including, without limitation, any guarantee or
other obligation issued or incurred under the ABL Credit Agreement or
the Bilateral Credit Agreement (or any credit facility or facilities which amend, restate, refinance, replace, increase
or otherwise modify the ABL Credit Agreement or the Bilateral Credit
Agreement) in connection with any letter of credit issued for the account of Borrower or any of its Subsidiaries (including
with respect to the issuance of, or payments in respect of drawings under, such letters of credit);


 



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(15)       Investments
consisting of or to finance purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of
contract rights or licenses or leases of intellectual property;


 


(16)       any
Investment in a Securitization Subsidiary or any Investment by a Securitization Subsidiary in any other Person in connection with
a Qualified Securitization Financing, including Investments of funds held in accounts permitted or required by the arrangements
governing such Qualified Securitization Financing or any related Indebtedness;


 


(17)       any
Investment in an entity which is not a Restricted Subsidiary to which a Restricted Subsidiary sells Securitization Assets pursuant
to a Securitization Financing;


 


(18)       Investments
of a Restricted Subsidiary acquired after the Closing Date or of an entity merged into, amalgamated with, or consolidated with
Borrower or a Restricted Subsidiary in a transaction that is not prohibited by Section 7.8 after the Closing Date
to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation
and were in existence on the date of such acquisition, merger, amalgamation or consolidation;


 


(19)       Investments
in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and
Uniform Commercial Code Article 4 customary trade arrangements with customers;


 


(20)       advances
in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Borrower
or the Restricted Subsidiaries;


 


(21)
       Investments in joint ventures or Unrestricted Subsidiaries having an aggregate Fair
Market Value (as determined in good faith by the CompanyBorrower),
taken together with all other Investments made pursuant to this clause (21) that are at that time outstanding, not to exceed the
sum of (x) the greater of (A) $150 million and (B) 10% of Consolidated EBITDA in the aggregate as of the date of such Investment,
plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on
sale, repayments, income and similar amounts) actually received in respect of any such Investment (with the Fair Market Value
each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however,
that if any Investment pursuant to this clause (21) is made in any Person that is not a Restricted Subsidiary at the date
of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter
be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21)
for so long as such Person continues to be a Restricted Subsidiary;


 


(22)       any
Investment in any Subsidiary of Borrower or any joint venture in connection with intercompany cash management arrangements or
related activities arising in the ordinary course of business;


 



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(23)       Guarantied
Obligations of Borrower or any Restricted Subsidiary of leases or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business; and


 


(24)
       loans and advances to independent contractors, owner-operators, drivers and carriers
in an amount not to exceed $15 million at any time.;
and


 


(25)       Investments
pursuant to the Spin Transactions.


 


“Permitted
Jurisdictions” has the meaning ascribed to it in Section 7.8(a).


 


“Permitted
Liens” means, with respect to any Person:


 


(1)         pledges,
bonds or deposits and other Liens granted by such Person under workmen’s compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness)
or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of
cash or U.S. government bonds to secure surety or appeal bonds, performance and return of money bonds, or deposits as security
for contested Taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;


 


(2)         Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
construction or other like Liens securing obligations that are not overdue by more than 30 days or that are being contested in
good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which
such Person shall then be proceeding with an appeal or other proceedings for review;


 


(3)         Liens
for Taxes, assessments or other governmental charges not yet overdue by more than 30 days, or that are being contested in good
faith by appropriate proceedings;


 


(4)         Liens
in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of
credit, bankers’ acceptances or similar obligations issued pursuant to the request of and for the account of such Person
in the ordinary course of its business;


 


(5)         minor
survey exceptions, minor encumbrances, trackage rights, special assessments, easements or reservations of, or rights of others
for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, servicing agreements,
development agreements, site plan agreements and other similar encumbrances incurred in the ordinary course of business or zoning
or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to
the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;


 


(6)         (A)
Liens on assets of a Subsidiary that is not a Guarantor securing Indebtedness of a Subsidiary that is not a Guarantor permitted
to be Incurred pursuant to Section 7.1;


 


(B)         Liens
securing (x) Indebtedness Incurred pursuant to Section 7.1(b)(i) and (y) any other Indebtedness permitted
to be Incurred by this Agreement if, in the case of clause (y), as of the date such Indebtedness was Incurred, and after
giving pro forma effect thereto and the application of the net proceeds therefrom (but without netting the proceeds thereof),
the Consolidated Secured Net Leverage Ratio of Borrower does not exceed 3.00 to 1.00 provided
that when calculating the Consolidated Secured Net Leverage Ratio for purposes of this clause 6(B), the maximum
amount of Indebtedness that Borrower is permitted to incur (x) under Section 7.1(b)(i) and (y) under
the Con-way Bridge Credit Agreement (until such commitments are terminated and any Indebtedness Incurred thereunder is repaid
in full) shall, in each case, be deemed outstanding and secured by a Lien;


 



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provided
that in the case of clause (x), any such Lien securing Indebtedness incurred pursuant to Section 7.1(b)(i)
shall be permitted to be secured by (a) a Lien on the ABL Priority Collateral (as defined in the Security Agreement) that
is senior to the Lien on the ABL Priority Collateral securing the Obligations under this Agreement in accordance with and to the
extent contemplated by the ABL Intercreditor Agreement or (b) by a Lien on the Collateral of the type described in the following
proviso, and


 


provided
further that, in the case of clause (y), any such Lien securing Indebtedness incurred other than pursuant to Section 7.1(b)(i):


 


(i)
shall be either (A) secured by the Collateral on a pari passu basis (but without regard to the control of remedies)
with the Obligations hereunder and shall not be secured by any property or assets of Borrower or any Restricted Subsidiary other
than Collateral, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to or
otherwise subject to the provisions of the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement (reflecting
the pari passu status of the Liens securing such Indebtedness), or (B) secured by the Collateral on a junior basis
(including with respect to the control of remedies) with the Obligations hereunder and shall not be secured by any property or
assets of Borrower or any Restricted Subsidiary other than Collateral, and a Senior Representative acting on behalf of the holders
of such Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement and
the Junior Intercreditor Agreement (reflecting the junior-lien status of the Liens securing such Indebtedness), and


 


(ii)
in the case of pari passu Indebtedness that is in the form of syndicated term loans, such Indebtedness is subject to the
Yield Differential provisions provided for in Section 2.15(c)(v) as if such Indebtedness were incurred thereunder
as part of an Incremental Facility;


 


(C)        Liens
securing obligations in respect of Indebtedness permitted to be Incurred pursuant to clause (iv) or (xiv) (to the extent
such guarantees are issued in respect of any Indebtedness) of Section 7.1(b);


 


(D)
        Liens created pursuant to the Collateral Documents or otherwise securing the Obligations;


 


(7)         Liens
existing on the Closing Date (including, for the avoidance of doubt, Liens on assets of Con-way and any Restricted Subsidiary
which is a Subsidiary thereof but excluding Liens in favor of the lenders under the ABL Credit Agreement or the Con-way
Bridge FacilityBilateral Credit Agreement);


 


(8)         Liens
on assets, property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however,
that such Liens are not created or Incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary;
provided, further, however, that such Liens may not extend to any other property owned by Borrower or any
Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time
of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition);


 



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(9)         Liens
on assets or property at the time Borrower or a Restricted Subsidiary acquired the assets or property, including any acquisition
by means of a merger, amalgamation or consolidation with or into Borrower or any Restricted Subsidiary; provided, however,
that such Liens are not created or Incurred in connection with, or in contemplation of, such acquisition; provided, further,
however, that the Liens may not extend to any other property owned by Borrower or any Restricted Subsidiary (other than
pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the
type that would have been subject to such Lien notwithstanding the occurrence of such acquisition);


 


(10)       Liens
securing Indebtedness or other obligations of Borrower or a Restricted Subsidiary owing to Borrower or another Restricted Subsidiary
permitted to be Incurred in accordance with Section 7.1;


 


(11)       Liens
securing Hedging Obligations (and, for the avoidance of doubt, Swap Obligations) not incurred in violation of this Agreement;


 


(12)       Liens
on inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of documentary letters
of credit, bank guarantees or bankers’ acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;


 


(13)       leases,
subleases, licenses and sublicenses of real property which do not materially interfere with the ordinary conduct of the business
of Borrower or any of the Restricted Subsidiaries;


 


(14)       Liens
arising from Uniform Commercial Code financing statement filings (or equivalent filings including under the PPSA) regarding operating
leases or other obligations not constituting Indebtedness;


 


(15)       Liens
in favor of Borrower or any Guarantor;


 


(16)       Liens
on assets of the type specified in the definition of “Securitization Financing” Incurred in connection with a Qualified
Securitization Financing;


 


(17)       pledges
and deposits and other Liens made in the ordinary course of business to secure liability to insurance carriers;


 


(18)       Liens
on the Equity Interests of Unrestricted Subsidiaries;


 


(19)       leases
or subleases, and licenses or sublicenses (including with respect to intellectual property) granted to others in the ordinary
course of business, and Liens on real property which is not owned but is leased or subleased by Borrower or any Restricted Subsidiary;


 



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(20)       Liens
to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals
or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6), (7), (8), (9),
(10), (11), (15) and,
(25) and (38) of this definition; provided,
however, that (x) such new Lien shall be limited to all or part of the same property (including any after acquired
property to the extent it would have been subject to the original Lien) that secured the original Lien (plus improvements on and
accessions to such property, proceeds and products thereof, customary security deposits and any other assets pursuant to the after-acquired
property clauses to the extent such assets secured (or would have secured) the Indebtedness being refinanced, refunded, extended,
renewed or replaced), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount (or accreted value, if applicable) or, if greater, committed amount of the
applicable Indebtedness described under clauses (6), (7), (8), (9), (10), (11), (15) and,
(25) and (38) at the time the original Lien
became a Permitted Lien under this Agreement, (B) unpaid accrued interest and premiums (including tender premiums), and (C) an
amount necessary to pay any underwriting discounts, defeasance costs, commissions, fees and expenses related to such refinancing,
refunding, extension, renewal or replacement; provided, further, however, that (X) in the case of any
Liens to secure any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (6)(B),
(6)(C) or (25), the principal amount of any Indebtedness Incurred for such refinancing, refunding, extension or renewal shall
be deemed secured by a Lien under clause (6)(B), (6)(C) or (25) and not this clause (20) for purposes of determining
the principal amount of Indebtedness outstanding under clause (6)(B) or,
(6)(C) or (25) and (Y) in the case of Liens
to secure any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (6)(B)
or (25), such new Lien shall have priority equal to or more junior than the Lien securing such refinanced, refunded, extended
or renewed Indebtedness;


 


(21)       Liens
on equipment of Borrower or any Restricted Subsidiary granted in the ordinary course of business to Borrower’s or such Restricted
Subsidiary’s client at which such equipment is located;


 


(22)       judgment
and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation
being contested in good faith by appropriate proceedings and for which adequate reserves have been made;


 


(23)       Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered
into in the ordinary course of business;


 


(24)       Liens
incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business;


 


(25)       other
Liens securing obligations the outstanding principal amount of which does not, taken together with the principal amount of all
other obligations secured by Liens incurred under this clause (25) that are at that time outstanding, exceed the greater
of $410 million and 30% of Consolidated EBITDA at the time of incurrence (which Lien,
if on the Collateral, may be pari passu with or junior to, but not senior to, the Lien on
the Collateral securing the Obligations hereunder, except to the extent such Liens secure any Capitalized Lease Obligation
or any purchase money Indebtedness, in which case such Liens may be prior to the Liens on
the Collateral securing the Obligations hereunder, but only as to the applicable assets securing the Capitalized Lease
Obligation or purchase money Indebtedness);


 


(26)       any
encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar
arrangement securing obligations of such joint venture or pursuant to any joint venture or similar agreement;


 



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(27)       any
amounts held by a trustee in the funds and accounts under any indenture issued in escrow pursuant to customary escrow arrangements
pending the release thereof, or under any indenture pursuant to customary discharge, redemption or defeasance provisions;


 


(28)       Liens
(i) arising by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution, (ii) attaching
to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or (iii) encumbering
reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary
course of business and not for speculative purposes;


 


(29)       Liens
(i) in favor of credit card companies pursuant to agreements therewith and (ii) in favor of customers;


 


(30)       Liens
disclosed by the title commitments or title insurance policies delivered pursuant to the ABL Credit
Agreement or the Bilateral Credit Agreement and any replacement, extension or renewal of any such Lien; provided that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to
such Lien prior to such replacement, extension or renewal; provided, further, that the Indebtedness and other obligations
secured by such replacement, extension or renewal Lien are permitted under this Agreement;


 


(31)       Liens
that are contractual rights of set-off relating to purchase orders and other agreements entered into with customers, suppliers
or service providers of Borrower or any Restricted Subsidiary in the ordinary course of business;


 


(32)       in
the case of real property that constitutes a leasehold or subleasehold interest, (x) any Lien to which the fee simple interest
(or any superior leasehold interest) is subject or may
become subject and any subordination of such leasehold or subleasehold interest to any such Lien in accordance with the terms
and provisions of the applicable leasehold or subleasehold documents, and (y) any right of first refusal, right of first
negotiation or right of first offer which is granted to the lessor or sublessor;


 


(33)       agreements
to subordinate any interest of Borrower or any Restricted Subsidiary in any accounts receivable or other prices arising from inventory
consigned by Borrower or any such Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business;


 


(34)       Liens
on securities that are the subject of repurchase agreements constituting Cash Equivalents under clause (4) of the definition
thereof;


 


(35)       [Reserved]Lien
created pursuant to or arising in connection with the consummation of the Spin Transactions;


 


(36)       Liens
securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance
premiums;


 


(37)       Liens
granted in the ordinary course of business consistent with past practice to lessors of Railcars, Chassis, trucks, trailers or
tractors, leased by Borrower or any Restricted Subsidiary thereof pursuant to arrangements which are intended to be true leases;


 



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(38)       Liens
securing the Con-way BridgeBilateral Facility on a pari passu basis, which Liens are subject to
athe Pari
Passu Intercreditor Agreement; and


 


(39)       if
and for so long as any Capital Stock of Con-way constitutes “margin stock” within the meaning of Regulation U, Liens
on such Capital Stock to the extent the value of such Capital Stock, together with the value of all other margin stock held by
Borrower and its Subsidiaries, exceeds 25% of the total value of all their assets subject to Section 7.7; and


 


(40)       Liens
arising from the cash collateralization of letters of credit and other obligations of Con-way and its Subsidiaries, in each case
to the extent such letters of credit or other obligations are in existence on the Closing Date.


 


“Permitted
Loan Purchase” has the meaning specified in Section 11.1(h) hereof.


 


“Permitted
Loan Purchase Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender as an Assignor
and Borrower or any of the Subsidiaries as an Assignee, as accepted by Agent (if required by Section 11.1) in the
form of Exhibit 1.1(h) hereto or such other form as shall be approved by Agent and Borrower (such approval not to
be unreasonably withheld or delayed).


 


“Person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision thereof or any other entity.


 


“Plan”
means, at any time, an “employee benefit plan”, as defined in Section 3(3) of ERISA (other than a Multiemployer
Plan), that any Credit Party or ERISA Affiliate maintains, contributes to or has an obligation to contribute to or has maintained,
contributed to or had an obligation to contribute to at any time within the past seven (7) years on behalf of participants who
are or were employed by any Credit Party or ERISA Affiliate.


 


“PPSA” means the Personal Property Security Act (Ontario) (or any successor statute) or similar legislation (including the
Civil Code of Quebec) of any other Canadian jurisdiction the laws of which are required by such legislation to be applied in connection
with the issue, perfection, effect of perfection, enforcement, enforceability, opposability, validity or effect of security interests
or other applicable lien.


 


“Preferred
Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or
winding up.


 


“Prepayment
Disposition” means (i) any Asset Sale, (ii) any other Disposition of the type referred to in clause (b)
of the definition of Asset Sale and (iii) any Casualty Event (other than a Casualty Event relating to property or assets
which, had they been disposed of immediately prior to the applicable Casualty Event, would not have constituted an “Asset
Sale”).


 


“Principal
Property” means any “Principal Property” (as defined in either or both
of the Existing Con-way IndenturesIndenture)
owned by Con-way or any of its Restricted Subsidiaries (as defined in either or both of the
Existing Con-way IndenturesIndenture).


 



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“Pro
Rata Share” means (I) with respect
to any matter specified herein as relating to a Term B Loan or Term B-1 Loan or any Lender under
the Facility or the Term B-1 Facility, (i) the percentage obtained by dividing (A) the Commitment of such Lender under the Facility or the Term B-1 Facility, as applicable, by (B) the aggregate Commitments of all Lenders under
the Facility or the Term B-1 Facility, as applicable (provided that if
the Commitments in respect of the Facility or the Term B-1 Facility, as applicable, shall have terminated, the Pro Rata Share
of each Lender shall be obtained by dividing (A) the aggregate Loans of such Lender under the Facility
or the Term B-1 Facility, as applicable, by (B) the aggregate Loans of all Lenders under the Facility
or the Term B-1 Facility, as applicable), and (II) with respect to all other
matters relating to any Lender, (i) the
percentage obtained by dividing (A) the Commitment of such Lender by (B) the aggregate Commitments of
all Lenders (provided that if the Commitments shall have terminated, the Pro Rata Share of each Lender shall be obtained
by dividing (A) the aggregate Loans of such Lender by (B) the aggregate Loans of all Lenders), in each
case of clauses (I) and (II) as any such percentages may be adjusted by increases
or decreases in Commitments and Loans pursuant to the terms and conditions hereof or by assignments permitted pursuant to Section 11.1.


 


“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from
time to time.


 


“Public
Lender” has the meaning ascribed to it in Section 10.13(a).


 


“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with,
12 U.S.C. 5390(c)(8)(D).


 


“QFC
Credit Support” has the meaning ascribed to it in Section 12.27.


 


“Qualified
Plan” means a Pension Plan that is intended to be tax-qualified under Section 401(a) of the IRC.


 


“Qualified
Securitization Financing” means any Securitization Financing of a Securitization Subsidiary
that meets the following conditions:


 


(1)         the
Board of Directors of Borrower shall have determined in good faith that such
Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to Borrower and the Securitizationor
the applicable Subsidiary, as the case may be;


 


(2)         all
sales of Securitization Assets and related assets to theby
Borrower or the applicable Subsidiary (other than a Securitization Subsidiary)
either to the applicable Securitization Subsidiary or directly to the applicable third-party financing providers (as the case
may be) are made at Fair Market Value (as determined in good faith by Borrower); and


 


(3)         the
financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith
by Borrower) and may include Standard Securitization Undertakings.


 


For
the avoidance of doubt, the grant of a security interest in any Securitization Assets of Borrower or any Restricted Subsidiary
(other than a Securitization Subsidiary) to secure ABL Facility Indebtedness, Bilateral
Indebtedness, Indebtedness in respect of the 20192023
Notes, 20212024 Notes, 20222025 Notes, Indebtedness hereunder or any Refinancing Indebtedness with respect to the 20192023 Notes, 20212024 Notes, 20222025 Notes or hereunder (in each case, to the extent not constituting a Securitization Financing) shall not be deemed a
Qualified Securitization Financing.


 


“Railcars”
means the railroad cars, locomotives or other rolling stock (including stacktrain), or accessories used on such railroad cars,
locomotives or other rolling stock (including superstructures and racks) owned by Borrower or any Restricted Subsidiary and employed
in the conduct of such Person’s business.


 



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“Ratio
Debt” has the meaning specified in Section 7.1(a).


 


“Ratio
Incremental Basket” has the meaning specified in Section 2.15(a).


 


“Real
Property” shall mean collectively, all right, title and interest (including any leasehold estate) in and to any and
all parcels of or interests in real property owned in fee or leased by any Credit Party, whether by lease, license, or other means,
together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant
fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership,
lease or operation thereof.


 


“Recipient”
means (a) Agent and (b) any Lender, as applicable.


 


“Reference
Time” with respect to any setting of the then-current Benchmark means 11:00 A.M. (London time) on the day that is two London
banking days preceding the date of such setting.


 


“Refinanced
Loans” has the meaning specified in Section 2.16.


 


“Refinancing
Amendment” has the meaning specified in Section 2.16.


 


“Refinancing
Amount” has the meaning specified in Section 2.16.


 


“Refinancing
Indebtedness” has the meaning ascribed to it in Section 7.1(b)(xv).


 


“Refinancing
Lender” has the meaning specified in Section 2.16.


 


“Refinancing
Loans” has the meaning specified in Section 2.16.


 


“Refinancing
Transactions” means (A) the issuance and sale of the 2023 Notes, (B) the issuance and sale of the 2024 Notes and the entry
into, incurrence of indebtedness pursuant to and prepayment of all amounts outstanding under the Bridge Credit Agreement, (C)
the issuance and sale of the 2025 Notes, (D) the entry into and incurrence of indebtedness pursuant to this Agreement and any
repricing, refinancing, amendment, restatement or supplement, in whole or in part, of this Agreement, including Amendment No.
6, (E) the entry into and incurrence of indebtedness on or prior
to the Amendment No. 5 Effective
Date pursuant to the ABL Credit Agreement and/or any repricing, refinancing, amendment, restatement or supplement, in whole or
in part, of the ABL Credit Agreement, (F) the redemption (including any satisfaction and discharge in connection therewith) of
all of the Company’s then outstanding 7.875% Senior Notes due 2019, 5.75% Senior Notes due 2021 and 6.50% Senior Notes due
2022 and (G) the payment of fees and expenses in connection with the foregoing.


 


“Refunding
Capital Stock” has the meaning ascribed to it in Section 7.2(b)(ii)(A).


 


“Register”
has the meaning ascribed to it in Section 11.1(a)(i).


 


“Regulation
U” has the meaning ascribed to it in Section 4.10.


 


“Related
Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent,
trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor and other
consultants and agents of or to such Person or any of its Affiliates.


 



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“Release”
means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material in the environment, including the migration
of Hazardous Material through or in the air, soil, surface water, ground water or property.


 


“Relevant
Governmental Body” means the Federal Reserve Board or the NYFRB, or a committee officially endorsed or convened by the Federal
Reserve Board or the NYFRB, or any successor thereto and .


 


“Replacement
Lender” has the meaning ascribed to it in Section 2.14(d).


 


“Requisite
Lenders” means Lenders having more than 50% of the Commitments and Loans of all Lenders.


 


“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.


 


“Restricted
Cash” means cash and Cash Equivalents held by Borrower and the Restricted Subsidiaries that would appear as “restricted”
on a consolidated balance sheet of Borrower or any of the Restricted Subsidiaries.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Payments” has the meaning ascribed to such term in Section 7.2.


 


“Restricted
Subsidiary” means, with respect to any Person, any Subsidiary of such Person other than an Unrestricted Subsidiary of
such Person. Unless the context otherwise requires, the term “Restricted Subsidiary” shall mean a Restricted Subsidiary
of Borrower.


 


“Retired
Capital Stock” has the meaning ascribed to it in Section 7.2(b)(ii)(A).


 


“Retiree
Welfare Plan” means, at any time, a welfare plan (within the meaning of Section 3(1) of ERISA) that provides for
continuing coverage or benefits for any participant or any beneficiary of a participant after such participant’s termination
of employment, other than continuation coverage provided pursuant to Section 4980B of the IRC or other similar state law
and at the sole expense of the participant or the beneficiary of the participant.


 


“S&P”
means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property now owned or hereafter acquired by Borrower or a Restricted Subsidiary
whereby Borrower or such Restricted Subsidiary transfers such property to a Person and Borrower or such Restricted Subsidiary
leases it from such Person, other than leases between any of Borrower and a Restricted Subsidiary or between Restricted Subsidiaries.


 


“Schedules”
means the Schedules prepared by Borrower and attached to this Agreement.


 


“SDN
List” has the meaning ascribed to it in Section 4.23.


 



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“SEC”
means the United States Securities and Exchange Commission.


 


“Secured
Hedge Agreement” means any Swap Contract by and between any Credit Party and any Hedge Bank.


 


“Secured
Hedging Obligations” means the obligations of any Credit Party arising under any Secured Hedge Agreement.


 


“Secured
Indebtedness” means any Consolidated Total Indebtedness secured by a Lien.


 


“Secured
Parties” means, collectively, with respect to the Obligations, Agent and the Lenders and any Lender, Agent or any Hedge
Bank that is a party to a Secured Hedge Agreement.


 


“Securitization
Assets” means any of the following assets (or interests therein) from time to time originated, acquired or otherwise
owned by Borrower or any Restricted Subsidiary or in which Borrower or any Restricted Subsidiary has any rights or interests,
in each case, without regard to where such assets or interests are located: (1) accounts receivablereceivables,
payment obligations, installment contracts, and similar rights, whether currently existing or arising or estimated to arise in
the future, and whether in the form of accounts, chattel paper, general intangibles, instruments or otherwise (including
any drafts, bills of exchange or
similar notes and instruments), (2) royalty and other similar payments made related to the use of trade names and other
intellectual property, business support, training and other services, including,
without limitation, licensing fees, lease payments and similar revenue streams, (3) revenues related to distribution
and merchandising of the products of Borrower and the Restricted Subsidiaries, (4) intellectual property rights relating to the
generation of any of the foregoing types of assets, (5) parcels of or interests in real property, together with all easements,
hereditaments and appurtenances thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership,
lease or operation thereof and (6) any other assets and property to the extent customarily included in securitization transactions
or factoring transactions of the relevant type in the applicable
jurisdictions (as determined by Borrower in good faith).


 


“Securitization
Fees” means distributions or payments made directly or by means of discounts with respect to any participation interests
issued or sold in connection with, and all other fees paid to a Person that is not a Restricted Subsidiary in connection with,
any Securitization Financing.


 


“Securitization
Financing” means any transaction or series of transactions that may be entered into by Borrower or any of theirits
Subsidiaries pursuant to which Borrower or any of theirits
Subsidiaries may sell, assign, convey or otherwise
transfer   (including, for the avoidance of
doubt, any conveyance or transfer effected by means of declaration of a trust over the relevant
assets) to (a) a Securitization Subsidiary (in the case of a transfer by Borrower or any
of its Subsidiaries); and (b) any other Person (in the case of a transfer by a Securitization
Subsidiary)to any other Person, or may
grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of Borrower or any of
theirits
Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets,
all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization
Assets and other assets which are customarily sold, assigned, conveyed
or transferred or in respect of which security interests are customarily granted in connection with asset securitization
transactions or factoring transactions involving Securitization
Assets and any Hedging Obligations entered into by Borrower or any such Subsidiary in connection with such Securitization Assets.


 


“Securitization
Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing
to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including
as a result of a Securitization Asset or portion thereof becoming subject to any asserted defense, dispute, dilution,
off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other
event relating to the seller.


 






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“Securitization
Subsidiary” means a Wholly Owned Restricted Subsidiary (or another Person formed for the purposes of engaging in a Qualified
Securitization Financing with the Borrower or any of its Subsidiaries
in which Borrower or any of its Subsidiaries makes an Investment and to which Borrower or any of its Subsidiaries transfers
Securitization Assets and related assets) which engages in no activities other than in connection with the financing of Securitization
Assets of Borrower and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets
relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board
of Directors of Borrower (as provided below) as a Securitization
Subsidiary and:


 


(a)           no
portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by Borrower or
any other Restricted Subsidiary (excluding guarantees of obligations (other than the principal of and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates Borrower or any other Restricted Subsidiary
in any way other than pursuant to Standard Securitization Undertakings, or (iii) subjects any property or asset of Borrower
or any other Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings;


 


(b)           with
which neither Borrower nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other
than on terms which Borrower reasonably believes to be no less favorable to Borrower or such Restricted Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of Borrower (other than pursuant to Standard Securitization
Undertakings); and


 


(c)           to
which neither Borrower nor any Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results (other than pursuant to Standard Securitization
Undertakings).


 


Any
such designation by the Board of Directors of Borrower shall be evidenced to Agent by filing with Agent a certified copy of the
resolution of the Board of Directors of Borrower giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the foregoing conditions.


 


“Security
Agreement” means that certain Security Agreement, dated as of the Closing Date, made by the Credit Parties party thereto
in favor of Agent, on behalf of the Lenders, as amended, restated, supplemented or otherwise modified from time to time, in the
form of Exhibit 1.1(d) hereto.


 


“Senior
Representative” means, with respect to any Indebtedness, the trustee, administrative agent, collateral agent, security
agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained,
as the case may be, and each of their successors in such capacities.


 


“Separation”
means each of the Contribution, the Distribution and each of the other transactions ancillary to the foregoing, including but
not limited to any distributions or other transfers of cash and/or other property or liabilities by SpinCo or its Subsidiaries
to Borrower or its Subsidiaries in connection with the Contribution and, as and to the extent determined by the Borrower to be
necessary or desirable in connection with the foregoing, the assumption by SpinCo or any of its Subsidiaries of any liabilities
of Borrower.


 






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“Significant
Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” within the meaning
of Rule 1-02 under Regulation S-X promulgated by the SEC (or any successor provisions).


 


“Similar
Business” means any business (x) the majority of whose revenues are derived from business or activities conducted
by Borrower and its Subsidiaries on the Closing Date, (y) that is a natural outgrowth or reasonable extension, development,
expansion of any business or activities conducted by Borrower and their subsidiaries on the Closing Date or any business similar,
reasonably related, incidental, complementary or ancillary to any of the foregoing and (z) any business that in Borrower’s
good faith business judgment constitutes a reasonable diversification of businesses conducted by Borrower and its Subsidiaries.


 


“SOFR”
means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day
published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.


 


“SOFR
Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).


 


“SOFR
Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor
source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.


 


“Solvent”
means, with respect to any Person organized under the laws of the United States or any state thereof, on a particular date, that
on such date (a) the fair value of the assets of such Person, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of such Person; (b) the present fair saleable value of the property of such
Person will be greater than the amount that will be required to pay the probable liability of such Person on its debts and other
liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such
Person will be able to pay its debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) such Person will not have unreasonably small capital with which to conduct the businesses
in which it is engaged as such businesses are conducted on such date and are proposed to be conducted after such date.


 


“SpinCo”
means a domestic corporation formed or to be formed by or on behalf of the Borrower.


 


“Spin
Transactions” means (a) the Incurrence of Indebtedness by SpinCo, (b) any distributions paid by or on behalf of SpinCo to
the Borrower in connection with the Separation, (c) the consummation of each of the Contribution, Distribution and Separation
and the other transactions related thereto or to facilitate the Contribution, Distribution or Separation, as applicable, as determined
in good faith by the Borrower, which determination shall be conclusive, (d) the execution and performance of all agreements (along
with schedules and exhibits thereto) entered into by or between Borrower
or any of its Subsidiaries,
on the one hand, and SpinCo or any of its Subsidiaries, on the other hand, relating to or in connection with the Contribution,
the Separation, the Distribution or any other transactions necessary to complete the Contribution, the Separation or the Distribution,
including but not limited to, the separation and distribution agreement, the transition services agreement, the tax matters agreement,
the employee matters agreement, the intellectual property license agreement and the transfer documents (the items in this clause
(d), collectively, the “Spin Documents”) and (e) the payment of fees and expenses related to the foregoing.


 






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“Standard
Securitization Undertakings” means representations, warranties, covenants, indemnities and,
reimbursement obligations, performance undertakings, guarantees of performance and
other customary payment obligations entered into by Borrower or any of its Subsidiaries,
whether joint and several or otherwise, which Borrower has determined in good faith to be customary in a Securitization
Financing including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being
understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.


 


“Subordinated
Indebtedness” means (a) with respect to Borrower, any Indebtedness of Borrower which is by its terms subordinated
in right of payment to the Loans, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its
terms subordinated in right of payment to its Guaranty of Indebtedness under this Agreement.


 


“Subsidiary”
means, with respect to any Person, (1) any corporation, association or other business entity (other than a partnership, joint
venture or limited liability company) of which more than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof, and (2) any partnership, joint venture or limited liability company of which (x) more than
50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests,
as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise,
and (y) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Unless the context otherwise requires, the term “Subsidiary” shall mean a Subsidiary of Borrower.


 


“Successor
Company” has the meaning ascribed to it in Section 7.8(a)(i).


 


“Supported
QFC” has the meaning ascribed to it in Section 13.12.


 


“Surface
Transportation Board” means the Surface Transportation Board, an agency of the Federal Government of the United States,
and any successor agency thereof.


 


“Swap
Contract” means (a) any agreement with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates, currencies, cross-currency hedges, commodities,
equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants
of Borrower or any of its Subsidiaries shall be a “Swap Agreement” and (b) any agreement with respect to any
transactions (together with any related confirmations) which are subject to the terms and conditions of, or are governed by, any
master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement or any other similar master agreement.


 


“Swap
Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract
or transaction that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act.


 


“Tax
Compliance Certificate” has the meaning ascribed to it in Section 2.13(d).


 






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“Tax
Distributions” means any distributions described in Section 7.2(b)(xi).


 


“Taxes”
means present and future taxes (including, but not limited to, income, corporate, capital, excise, property, ad valorem, sales,
use, payroll, value added and franchise taxes, deductions, withholdings and custom duties), charges, fees, imposts, levies, deductions
or withholdings (including backup withholding) and all liabilities (including interest, additions to tax and penalties) with respect
thereto, imposed by any Governmental Authority.


 


“Tax
Group” has the meaning ascribed to it in Section 7.2(b)(xi).


 


“Tax
Structure” has the meaning ascribed to it in Section 12.8.


 


“Term
B Loans” means the loans made by the Lenders to the Borrower (a) pursuant to Section 2.1(a) on the Closing Date,
which loans, for the avoidance of doubt, ceased to be outstanding on the Amendment No. 1 Closing Date, (b) pursuant to Amendment
No. 1 on the Amendment No. 1 Closing Date, which loans, for the avoidance of doubt, ceased to be outstanding on the Amendment
No. 2 Closing Date, (c) pursuant to Amendment No. 2 on the Amendment No. 2 Closing Date, which loans, for the avoidance of doubt,
ceased to be outstanding on the Amendment No. 3 Closing Date or,
(d) pursuant to Amendment No. 3 on the Amendment No. 3 Closing Date,
which loans, for the avoidance of doubt, ceased to be outstanding on the Amendment No. 6 Closing Date or (e) pursuant to Amendment
No. 6 on the Amendment No. 6 Closing Date.


 


“Term
B Loan Yield
Differential” has the meaning specified in Section 2.15(c).


 


“Term
B-1 Commitment” means, with respect to each Term B-1 Lender, such Term B-1 Lender’s commitment to make Term B-1
Loans to the Borrower in accordance with Amendment No. 5.


 


“Term
B-1 Facility” means the credit facility provided by the Term B-1 Lenders on the Amendment No. 5 Closing Date pursuant
to Amendment No. 5.


 


“Term
B-1 Lender” means, at any time, any Lender with a Term B-1 Commitment or an outstanding Term B-1 Loan at such time.


 


“Term
B-1 Loans” means the loans made by the Term B-1 Lenders to the Borrower on the Amendment No. 5 Closing Date pursuant
to Amendment No. 5, which loans, for the avoidance of doubt, ceased
to be outstanding on the Amendment No. 6 Closing Date.


 


“Termination
Date” means the date on which (a) the Loans have been repaid in full in cash and (b) all other Obligations
under this Agreement and the other Loan Documents have been completely discharged or paid (other than contingent indemnification
obligations for which no claim has been asserted and other than Secured Hedging Obligations).


 


“Term
SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based
on SOFR that has been selected or recommended by the Relevant Governmental Body.


 


“Term
SOFR Notice” means a notification by the Agent to the Lenders and Borrower of the occurrence of a Term SOFR Transition Event.



 


“Term
SOFR Transition Event” means the determination by the Agent that (a) Term SOFR has been recommended for use by the Relevant
Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Agent and (c) a Benchmark Transition
Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with
Section 2.12 that is not Term SOFR.


 






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“Title
IV Plan” means a Pension Plan (other than a Multiemployer Plan) that is covered by Title IV of ERISA or Section 412
of the IRC, and that any Credit Party or ERISA Affiliate maintains, contributes to or has an obligation to contribute to on behalf
of participants who are or were employed by any of them.


 


“Trademarks”
has the meaning to it in the Security Agreement.


 


“Transactions”
means (a) the consummation of the Con-way Acquisition and transactions contemplated thereby and in connection therewith, (b) the
execution, delivery and performance of this Agreement, the ABL Credit Agreement, the Bridge Credit Agreement and any documentation
relating to Indebtedness incurred in lieu thereof or to refinance the foregoing, and the incurrence of Indebtedness thereunder
and Liens in connection therewith, (c) Borrower’s or any of its Subsidiaries’ incurrence, replacement, redemption,
repayment, defeasance, discharge or refinancing of indebtedness or liens in connection with the Con-way Acquisition, including
the assumption of the Con-way Existing Indebtedness and other existing Indebtedness of Con-way and its Subsidiaries, (d) the entry
by Borrower into this Agreement and the borrowing of loans hereunder in connection with the Con-way Acquisition and (e) the payment
of fees and expenses in connection the foregoing.


 


“UIIA”
means that Uniform Intermodal Interchange and Facilities Access Agreement, effective as of April 20, 2009, administered by The
Intermodal Association of North America, together with each addendum thereto executed by Pacer Stacktrain, Inc. or Union Pacific
Railroad Company and each Motor Carrier (as defined in the UIIA) party thereto, each in the form delivered to ABL Agent prior
to April 1, 2014, pursuant to which Pacer Stacktrain, Inc. or Union Pacific Railroad Company and each Motor Carrier have agreed
additional terms and conditions applicable to the interchange of Chassis to such Motor Carrier by Pacer Stacktrain, Inc. or Union
Pacific Railroad Company.


 


“UK
Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time
to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.


 


“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the
resolution of any UK Financial Institution.


 


“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.


 


“Unfunded
Pension Liability” means, at any time, the aggregate amount, if any, of the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all assets of such Title IV Plan, allocable to such
benefits in accordance with Title IV of ERISA, all determined as of the most recent valuation date for each such Title IV Plan
using the actuarial assumptions for funding purposes in effect under such Title IV Plan.


 


“United
States” and “U.S.” mean the United States of America.


 






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“Unrestricted
Subsidiary” means:


 


(1)       any
Subsidiary of Borrower that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors
of Borrower in the manner provided below; and


 


(2)       any
Subsidiary of an Unrestricted Subsidiary.


 


Borrower
may designate any Subsidiary of Borrower (including any newly acquired or newly formed Subsidiary of Borrower) to be an Unrestricted
Subsidiary unless at the time of such designation such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness
of, or owns or holds any Lien on any property of, Borrower or any other Restricted Subsidiary that is not a Subsidiary of the
Subsidiary to be so designated, in each case at the time of such designation; provided, however, that the Subsidiary
to be so designated and its Subsidiaries do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant
to which the lender has recourse to any of the assets of Borrower or any of the Restricted Subsidiaries unless otherwise permitted
under Section 7.2; provided, further, however, that either:


 


(a)       the
Subsidiary to be so designated has total consolidated assets of $1,000 or less; or


 


(b)       if
such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 7.2.


 


Borrower
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation:


 


(x)       (1)
Borrower could Incur $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 7.1(a) or (2) the Fixed Charge Coverage Ratio of Borrower would be no less than such ratio immediately prior to such designation,
in each case on a pro forma basis taking into account such designation, and


 


(y)       no
Event of Default shall have occurred and be continuing.


 


Any
such designation by Borrower shall be evidenced to Agent by promptly filing with Agent a copy of the resolution of the Board of
Directors of Borrower or any committee thereof giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the foregoing provisions. In
no event may Borrower be an Unrestricted Subsidiary. Notwithstanding anything to the contrary herein, on the Closing Date, XPO
Escrow Sub, LLC shall be automatically deemed an Unrestricted Subsidiary.


 


As
of the Closing Date, each entity listed on Schedule 6.13 is an Unrestricted Subsidiary.


 


“Upfront
Fee” has the meaning specified in Section 2.7.


 


“U.S.
Special Resolution Regimes” has the meaning ascribed to it in Section 12.27.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness or Disqualified Stock or Preferred Stock, as the case
may be, at any date, the quotient obtained by dividing (1) the sum of the products of the number of years from the date of determination
to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect
to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment, by (2) the sum of all such payments.


 






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“Wholly
Owned Restricted Subsidiary” means any Wholly Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly
Owned Subsidiary” of any Person means a Subsidiary of such Person 100% of the outstanding Capital Stock or other ownership
interests of which (other than directors’ qualifying shares or shares required pursuant to applicable law) shall at the
time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as
a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.


 


“Withholding
Agent” means any Credit Party and Agent.


 


“Write-Down
and Conversion Powers” means, (a) with respect
to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under
the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU
Bail-In Legislation Schedule.,
and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to
cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which
that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other
person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend
any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary
to any of those powers.


 


“Yield
Differential” has the meaning specified in Section 2.15(c).


 


1.2           Rules of Construction. Unless otherwise specified, references in this Agreement or any of the Appendices to a Section,
subsection or clause refer to such Section, subsection or clause as contained in this Agreement. The words “herein”,
 “hereof” and “hereunder”, and other words of similar import refer to this Agreement as a whole, including
all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not
to any particular section, subsection or clause contained in this Agreement or any such Annex, Exhibit or Schedule.


 


1.3           Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural
shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine,
feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed
to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons
include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in
the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements
and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations.
Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are
intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such
Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition,
for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance
with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred
Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever
is greater; and (e) unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance
with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision
(or if Agent notifies Borrower that the Requisite Lenders request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until
such notice shall have been withdrawn or such provision amended in accordance herewith.


 






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1.4           [Reserved]Spin Transactions.



 


.
Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, no provision of this Agreement
or any Loan Document shall prevent the consummation of any of the Spin Transactions, nor shall the Spin Transactions give rise
to any default or constitute a utilization of any basket or ratio under this Agreement or any Loan Document. 


 


1.5           Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation
is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described
in the definition of LIBOR Period) or performance shall extend to the immediately succeeding Business Day.


 


1.6           LLC Division/Series Transactions. Any reference herein to an “Asset
Sale” shall be deemed to include a “division” of or by a limited liability company, that (a) results in assets
that had formerly been held by a Restricted Subsidiary ceasing to be held by a Restricted Subsidiary, and (b) would have constituted
an “Asset Sale” had such assets been sold to a third party, rather than transferred by way of a division.


 


2.             AMOUNT AND TERMS OF CREDIT


 


2.1           Term Facility.


 


(a)        Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single Loan denominated
in Dollars to Borrower in a single drawing on the Closing Date in an aggregate amount not to exceed the amount of such Lender’s
Commitment at such time. Immediately after giving effect to such Loan, each Lender’s Commitment shall automatically be reduced
to $0. The Commitments are not revolving in nature, and amounts borrowed under this Section 2.1(a) and repaid or prepaid
may not be reborrowed. Each Loan made on the Amendment No. 3 Closing Date shall be made by the Lenders in accordance with their
applicable Pro Rata Share of the Commitments as of such date. Each Term B-1 Loan made on the Amendment No. 5 Closing Date shall
be made by the Term B-1 Lenders in accordance with their applicable Pro Rata Share of the Term B-1 Commitments as of such date.
Each Loan made on the Amendment No. 6 Closing Date shall be made by
the Lenders in accordance with their applicable Pro Rata Share of the Commitments as of such date.


 






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(b)           Notice of Borrowing. The Loan to be made pursuant to Section 2.1(a) shall be made on notice by Borrower to
one of the representatives of Agent identified in Schedule 2.1 at the address specified therein. Notice of the Loan must
be given no later than (1) 10:00 a.m. (New York time) on the date that is one Business Day prior to the date of the proposed Loan,
in the case of a Base Rate Loan, or (2) 10:00 a.m. (New York time) on the date which is three Business Days’ prior to the
proposed Loan, in the case of a LIBOR Loan. Each such notice (a “Notice of Borrowing”) may be given verbally
by telephone but must be promptly confirmed in writing (by fax, electronic mail or overnight courier) substantially in the form
of Exhibit 2.1(b), and shall include the information required in such Exhibit. Notices may be revocable or conditional
to the extent set forth in the form of Notice of Borrowing attached hereto as Exhibit 2.1(b).


 


(c)           Reliance on Notices. Agent shall be entitled to rely upon, and shall be fully protected in relying upon, any Notice of
Borrowing, Notice of Conversion/Continuation or similar notice reasonably believed by Agent to be genuine. Agent may assume that
each Person executing and delivering any notice in accordance herewith was duly authorized, unless the responsible individual
acting thereon for Agent has actual knowledge to the contrary.


 


(d)           Lender’s Making of Loans and Payments. Upon receipt of a Notice of Borrowing, Agent shall promptly forward to each
Lender the details of the Notice of Borrowing it received from Borrower requesting the Loan. Each Lender shall make the amount
of such Lender’s Pro Rata Share of such Loan available to Agent in same day funds by wire transfer to Agent’s account
as set forth in Annex B not later than 3:00 p.m. (New York time) on the Business Day prior to the requested funding date.
After receipt of such wire transfers (or, in Agent’s sole discretion, before receipt of such wire transfers), subject to
the terms hereof, Agent shall make the requested Loan available to Borrower by 9:00 a.m. (New York time) on the requested funding
date. All payments by each Lender shall be made without setoff, counterclaim or deduction of any kind.


 


(e)           Availability of Lender’s Pro Rata Share. Agent may assume that each Lender will make its Pro Rata Share of the Loan
available to Agent on the Closing Date unless Agent has received prior written notice from such Lender that it does not intend
to make its Pro Rata Share of a Loan because all or any of the conditions set forth in Section 3 have not been satisfied.
If such Pro Rata Share is not, in fact, paid to Agent by such Lender when due, Agent will be entitled to recover such amount on
demand from such Lender without setoff, counterclaim or deduction of any kind. If any Lender fails to pay the amount of its Pro
Rata Share forthwith upon Agent’s demand, Agent shall promptly notify Borrower and Borrower shall repay such amount to Agent
within three (3) Business Days of such demand. Nothing in this Section 2.1(e) or elsewhere in this Agreement or the
other Loan Documents shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result
of any default by such Lender hereunder. Unless Agent has received prior written notice from a Lender that it does not intend
to make its Pro Rata Share of each Loan available to Agent because all or any of the conditions set forth in Section 3 have not been satisfied to the extent that Agent advances funds to Borrower on behalf of any Lender and is not reimbursed
therefor on the same Business Day as such Loan is made, Agent shall be entitled to retain for its account all interest accrued
on such Loan until reimbursed by such Lender.


 


(f)            Return of Payments.


 


(i)          
If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will
be received by Agent from Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such
amount from such Lender on demand without setoff, counterclaim or deduction of any kind.


 






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(ii)        
If Agent determines at any time that any amount received by Agent under this Agreement must be returned to Borrower or paid to
any other Person pursuant to any Insolvency Law or otherwise, then, notwithstanding any other term or condition of this Agreement
or any other Loan Document, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender
will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at
such rate, if any, as Agent is required to pay to Borrower or such other Person, without setoff, counterclaim or deduction of
any kind.


 


(g)           Defaulting Lenders. The failure of any Defaulting Lender to make any Loan or any payment required by it hereunder on the
date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its
obligations to make the Loan or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible
for the failure of any Defaulting Lender to make the Loan, purchase a participation or make any other payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Defaulting Lender shall not have any voting or consent rights under
or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included
in the determination of “Requisite Lenders” or “Lenders directly affected” hereunder) for any voting or
consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described
in Section 12.2(c)(i)-(iv) that directly affects such Defaulting Lender. Moreover, for the purposes of determining
Requisite Lenders, the Loans and Commitments held by any Defaulting Lender shall be excluded from the total Loans and Commitments
outstanding. At Borrower’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s
reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Defaulting Lender,
and each Defaulting Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the
Commitments of that Defaulting Lender for an amount equal to the principal balance of all Loans held by such Defaulting Lender
and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant
to an executed Assignment Agreement. In the event that a Defaulting Lender does not execute an Assignment Agreement pursuant to
Section 11.1 within five (5) Business Days after receipt by such Defaulting Lender of notice of replacement pursuant
to this Section 2.1(g) and presentation to such Defaulting Lender of an Assignment Agreement evidencing an assignment
pursuant to this Section 2.1(g), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement
on behalf of such Defaulting Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall
be effective for purposes of this Section 2.1(g) and Section 11.1.


 


2.2              
Maturity and Repayment of Loans. 


 


(a)
Term B Loans. The.
..  Borrower shall pay to each Lender
holding Term B Loans (i) on the last Business Day of each Fiscal Quarter occurring after the Amendment No. 36
Closing Date (commencing with the Fiscal Quarter ending March 31, 20182021)
but prior to the Maturity Date, a portion of the principal amount of all Term B Loans then outstanding in an amount equal to 0.25%
of the sum of the aggregate principal amount of the Term B Loans outstanding on the Amendment No. 36
Closing Date after giving effect to Amendment No. 36
(which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority
set forth in Section 2.3 of this Agreement (it being understood and agreed that the
$555,000,000 prepayment made on November 3, 2016 shall be applied (net of any amounts from such prepayment applied to amortization
payments required by this Section 2.2,
including prepayments made prior to the Amendment No. 36
Closing Date) to the amortization (and
as a result of which no payments will be required
byunder
this Section 2.2clause
(ai) in
direct order of maturityafter the Amendment No. 6
Closing Date)) and (ii) on the Maturity
Date, the aggregate principal amount of all Term B Loans outstanding on such date and all accrued and unpaid interest thereon.


 






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(b)
Term B-1 Loans. The Borrower shall pay to each Lender holding Term B-1 Loans (i) on the last Business
Day of each Fiscal Quarter occurring after
the Amendment No. 5
Closing Date (commencing with the Fiscal Quarter ending June 30, 2019) but prior to the Maturity Date, a portion of the principal
amount of all Term B-1 Loans then outstanding in an amount equal to 0.25% of the sum of the aggregate principal amount of the
Term B-1 Loans
outstanding on the Amendment No. 5
Closing Date after giving effect to Amendment No. 5 (which amounts shall be reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.3
of this Agreement (it being understood and agreed that the $555,000,000 prepayment made on November 3, 2016 shall
be applied (net of (x) any amounts from such prepayment applied to amortization payments required by Section 2.2
prior to the Amendment No. 5 Closing
Date and (y) any amounts from such prepayment applied to amortization payments required by Section
2.2(a)) to the amortization payments required by this Section 2.2(b) in direct order of maturity))
and (ii) on the Maturity Date, the aggregate principal amount of all Term B-1 Loans outstanding on such date and all accrued
and unpaid interest thereon.


 


2.3             
Prepayments; Commitment Reductions. 


 


(a)            Voluntary Prepayments; Reductions in Commitments.


 


(i)          
Borrower may prepay the Loans at any time (1) on at least three (3) Business Days’ prior written notice, in the case of
LIBOR Loans and (2) on at least one (1) Business Day’s prior written notice, in the case of Base Rate Loans, in each case
by Borrower to Agent, and Borrower may at any time and from time to time without prior notice permanently reduce or terminate
the undrawn Commitments; provided that any such prepayments or reductions shall be in a minimum principal amount of $1,000,000
or a whole multiple thereof. Any voluntary prepayment must be accompanied by the payment of any LIBOR funding breakage costs in
accordance with Section 2.11(b) and the fee payable in accordance with Section 2.3(a)(ii), if any. Upon
any such reduction or termination of the Commitments, Borrower’s right to request Loans, shall simultaneously be permanently
reduced or terminated, as the case may be. Each notice of partial prepayment shall designate the Loans or other Obligations hereunder
to which such prepayment is to be applied, and any notice delivered pursuant to this Section 2.3(a) may be conditioned
on the occurrence of one or more events described in the applicable notice; provided,
that each such partial prepayment shall be applied on a pro rata basis between
the Facility and the Term B-1 Facility based on the aggregate principal amount of Loans
outstanding thereunder at such time. If no direction is given as to the application of prepayments within the
Facility or the Term B-1 Facility as applicable, the prepayments applicable to
such facilityFacility
shall be applied to the amortization payments required by Section 2.2(a)
or (b), as applicable, in direct order of maturity and, thereafter, to the remaining balance of Loans then
outstanding.


 


(ii)        
In the event that, on or prior to the date that is 6 months after the Amendment No. 36
Closing Date, Borrower (x) prepays, refinances, substitutes or replaces any Term B Loans with the proceeds of
any new or replacement tranche of long-term secured term loans that are broadly syndicated to banks and other institutional investors
in financings similar to the Term B Loans and have an All-in Yield that is less than the All-in Yield of such Term B Loans or
(y) effects any amendment of this Agreement which reduces the All-in Yield of the Term B Loans (other than in the case of
each of clauses (x) and (y), in connection with a Change of Control or a transformative acquisition referred to in the last
sentence of this paragraph), Borrower shall pay to Agent, for the ratable account of each of the applicable Lenders holding Term
B Loans at such time, (A) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount
of the Term B Loans so prepaid and (B) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount
of the applicable Term B Loans for which the All-In Yield has been reduced pursuant to such amendment. In
the event that, on or prior to the date that is 6 months after the Amendment No. 5 Closing Date, Borrower (x) prepays, refinances,
substitutes or replaces any Term B-1 Loans with the proceeds of any new or replacement tranche of long-term secured term loans
that are broadly syndicated to banks and other institutional investors in financings similar to the Term B-1 Loans and have an
All-in Yield that is less than the All-in Yield of such Term B-1 Loans or (y) effects any amendment of this Agreement which
reduces the All-in Yield of the Term B-1 Loans (other than in the case of each of clauses (x) and (y), in connection with
a Change of Control or a transformative acquisition referred to in the last sentence of this paragraph), Borrower shall pay to
Agent, for the ratable account of each of the applicable Lenders holding Term B-1 Loans at such time, (A) in
the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of
the Term B-1 Loans so prepaid and (B) in the case of clause (y),
a fee equal to 1.00% of the aggregate principal amount of the applicable Term B-1 Loans for which the All-In Yield has been reduced
pursuant to such amendment. Such amounts shall be due and payable on the date of such prepayment or the effective
date of such amendment, as the case may be. For purposes of this Section 2.3(a), a transformative acquisition is any
acquisition (together with any related transaction, including incurrence of indebtedness to finance such acquisition) by Borrower
or any Subsidiary that (i) is not permitted by the terms of the Loan Documents immediately prior to the consummation of such
acquisition or (ii) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition,
would not provide Borrower and its Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or
expansion of their combined operations following such consummation, as determined by Borrower in good faith.


 






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(b)           Mandatory Repayments.


 


(i)           Excess
Cash Flow. Within five Business Days after financial statements have been or are required to be delivered pursuant to Section 5.1(c)
and the related Compliance Certificate has been or is required to be delivered pursuant to Section 5.1(a),
Borrower shall, subject to clause (b)(v) of this Section 2.3, prepay an aggregate principal amount of Loans
equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of
Excess Cash Flow, if any, for the Fiscal Year covered by such financial statements (commencing with the Fiscal Year ending
December 31, 2016) minus (B) the sum of (i) all voluntary prepayments of Loans during such fiscal year
pursuant to Section 2.3(a)(i) and Section 11.1(h) (it being understood that the amount of any such
payment constituting a below-par Permitted Loan Purchase shall be calculated to equal the amount of cash used and not the
principal amount deemed prepaid therewith) (ii) all voluntary prepayments of loans under the ABL Credit Agreement or any
other revolving credit facilities during such Fiscal Year to the extent accompanied by a corresponding permanent reduction in
the commitments under the Credit Agreement or any other revolving credit facilities in the case of each of the immediately
preceding clauses (i) and (ii), to the extent such prepayments are funded with Internally Generated Cash Flow; provided, further,
that (x) the ECF Percentage shall be 25% if the Consolidated Secured Net Leverage Ratio of Borrower for the fiscal year
covered by such financial statements was less than or equal to 3.00:1.00 and greater than 2.50:1.00 and (y) the ECF
Percentage shall be 0% if the Consolidated Secured Net Leverage Ratio of Borrower for the fiscal year covered by such
financial statements was less than or equal to 2.50:1.00.


 


(ii)        
Prepayment Dispositions. (A) If Borrower or any of its Restricted Subsidiaries receive Net Proceeds of any Prepayment
Disposition, Borrower shall prepay on or prior to the date which is five Business Days after the date of receipt of such Net Proceeds,
subject to clause (b)(ii)(B) and clause (b)(v) of this Section 2.3, an aggregate principal amount of Loans
equal to 100% of all Net Proceeds received; provided that if at the time that any such prepayment would be required pursuant
to this clause (ii), Borrower is required to offer to repurchase any Indebtedness that is secured on a pari passu basis
with the Obligations under this Agreement pursuant to the terms of the documentation governing such Indebtedness with the Net
Proceeds of such Prepayment Disposition, other than the Con-way Bridge Facility 
(such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then Borrower
may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the
Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such
Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated
to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall
be allocated to the Loans in accordance with the terms hereof to the prepayment of the Loans and to the repurchase or prepayment
of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to
this clause (ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline
to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business
Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof.


 






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(B)          With
respect to any Net Proceeds received with respect to any Prepayment Disposition, at the option of Borrower and so long as no
Event of Default shall have occurred and be continuing, Borrower may reinvest all or any portion of such Net Proceeds in
acquisitions, Investments in Similar Businesses, or assets useful for its business within (x) 12 months following
receipt of such Net Proceeds or (y) if Borrower enters into a legally binding commitment to reinvest such Net Proceeds
within 12 months following receipt thereof, within 18 months following receipt thereof, and provided, further,
that if any Net Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of
reinvestment election, or have not been reinvested within the time period set forth above, an amount equal to any such Net
Proceeds shall be applied as set forth in Section 2.3(a)(ii)(A) within five Business Days after Borrower
reasonably determines that such Net Proceeds are no longer intended to be or cannot be so reinvested to the prepayment of the
Loans as set forth in this Section 2.3.


 


(iii)      
Prepayments of Proceeds of Indebtedness. If Borrower or any Restricted Subsidiary incurs or issues any Indebtedness (A) not
expressly permitted to be incurred or issued pursuant to Section 7.1 or (B) that constitutes Refinancing Indebtedness
with respect to the Loans or Indebtedness incurred pursuant to a Refinancing Amendment, Borrower shall prepay an aggregate principal
amount of Loans equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five Business Days after
the receipt of such Net Proceeds.


 


(iv)      
[Reserved]


 


(v)         Certain
Dispositions. Notwithstanding any other provisions of this Section 2.3(b), (A) to the extent that any or
all of the Net Proceeds of any Prepayment Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.3(b)(ii)
(a “Foreign Disposition”), or Excess Cash Flow attributable to any Foreign Subsidiary are prohibited or
delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds or Excess Cash
Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.3(b)
but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not
permit repatriation to the United States (Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly
take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of
any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be
promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than two
Business Days after such repatriation) applied (net of additional Taxes payable, as reasonably estimated by Borrower in good
faith, or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.3(b) to
the extent provided herein and (B) to the extent that Borrower has determined in good faith that repatriation of any of
or all the Net Proceeds of any Foreign Disposition or Excess Cash Flow attributable to any Foreign Subsidiary would have a
material adverse Tax consequence (taking into account any foreign Tax credit or benefit actually realized in connection with
such repatriation) with respect to such Net Proceeds or Excess Cash Flow, the Net Proceeds or Excess Cash Flow so affected
may be retained by the applicable Foreign Subsidiary.


 






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(c)           All prepayments under this Section 2.3 shall be accompanied by all accrued interest thereon, together with amounts
payable pursuant to Section 2.3(a)(ii) and, in the case of any such prepayment of a LIBOR Loan on a date prior to
the last day of a LIBOR Period therefor, any amounts owing in respect of such LIBOR Loan pursuant to Section 2.11(b).


 


(d)           Application of Mandatory Prepayments. Mandatory prepayments shall be applied on a pro
rata basis between the Facility and the Term B-1 Facility based on the aggregate principal amount of Loans outstanding thereunder
at such time, and within the Facilityto the Loans
as directed by Borrower. If no direction is given as to the application of prepayments within
the Facility or the Term B-1 Facility, as applicable, the,
such prepayments applicable to such facility shall be applied to the
amortization payments required by Section 2.2(a) or (b),
as applicable,  in direct order of maturity and, thereafter, to the remaining balance of Loans then outstanding.


 


(e)           No Implied Consent. Nothing in this Section 2.3 shall be construed to constitute Agent’s or any Lender’s
consent to any transaction that is not permitted by other provisions of this Agreement or the other Loan Documents.


 


2.4              Use
of Proceeds. The Borrower shall utilize the proceeds of the Loans made on the Amendment No. 3 Closing Date (i) to repay
all Loans outstanding on the Amendment No. 3 Closing Date immediately prior to the funding of the Loans made on such date,
(ii) to pay accrued interest, fees, costs and expenses in connection with the foregoing (including any original issue
discount or upfront fees) and (iii) for general corporate purposes. The Borrower shall utilize the proceeds of the Term B-1
Loans made on the Amendment No. 5 Closing Date (i) for general corporate purposes, including to fund purchases of the
Borrower’s Equity Interests and (ii) to pay fees and expenses relating to, or in connection with the transactions
contemplated by, Amendment No. 5; provided, that if the Borrower repurchases its Equity Interests with
any proceeds of the Term B-1 Loans, it shall immediately cancel such Equity Interests. Borrower
shall utilize the proceeds of the Loans made on the Amendment No. 6 Closing Date, together with cash on hand, (i) to repay
all Loans
outstanding on the Amendment No. 6
Closing Date immediately prior to the funding of the Loans made on such date and (ii) to pay accrued interest, fees, costs
and expenses in connection with the foregoing (including any original issue discount or upfront fees). 


 


2.5             
Interest; Applicable Margins. 


 


(a)           Borrower shall pay interest to Agent, for the ratable benefit of Lenders, in arrears on each applicable Interest Payment Date,
at the following rates of interest on the unpaid principal amount of each:


 


(i)          
Base Rate Loans at the Base Rate plus the Base Rate Margin.


 


(ii)        
LIBOR Loans at the LIBOR Rate plus the LIBOR Margin.


 


(b)           If any payment on any Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to
the next succeeding Business Day (except as set forth in the definition of LIBOR Period), and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such extension.


 


(c)           All computations of Fees are calculated on a per annum basis and interest shall be made by Agent on the basis of a 360-day year,
in each case for the actual number of days occurring in the period for which such interest and Fees are payable, except that with
respect to Base Rate Loans based on the prime or base commercial lending rate the interest thereon shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. Each determination by Agent of an interest
rate and Fees hereunder shall be presumptive evidence of the correctness of such rates and Fees.


 






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(d)           All overdue amounts not paid when due hereunder shall bear interest in an amount equal to two percentage points (2.00%) per annum
above the rates of interest or the rate of such Fees otherwise applicable hereunder unless Agent and Requisite Lenders elect to
impose a smaller increase (the “Default Rate”), accruing from the initial date of such non-payment until such
payment is made and shall be payable upon demand.


 


(e)           Borrower shall have the option to (i) request that any loan be made as a LIBOR Loan or a Base Rate Loan, (ii) convert
any Base Rate Loan to a LIBOR Loan, (iii) convert any LIBOR Loan to a Base Rate Loan subject to payment of LIBOR breakage
costs in accordance with Section 2.11(b) if such conversion is made prior to the expiration of the LIBOR Period applicable
thereto, or (iv) continue all or any portion of any Loan as a LIBOR Loan upon the expiration of the applicable LIBOR Period
and the succeeding LIBOR Period of that continued Loan shall commence on the first day after the last day of the LIBOR Period
of the Loan to be continued; provided, however, that no Loan shall be converted to, or continued at the end of the
LIBOR Period applicable thereto as a LIBOR Loan for a LIBOR Period of longer than one (1) month if any Event of Default has occurred
and is continuing. Any Loan or group of Loans having the same proposed LIBOR Period to be made or continued as, or converted into,
a LIBOR Loan must be in a minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of such amount. Any such
election must be made by 11:00 a.m. (New York time) on the third Business Day prior to (1) the date of any proposed Loan which
is to bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued as such,
or (3) the date on which Borrower wishes to convert any Base Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower
in such election. If no election is received with respect to a LIBOR Loan by 11:00 a.m. (New York time) on the third Business
Day prior to the end of the LIBOR Period with respect thereto (or if an Event of Default has occurred and is continuing or if
the additional conditions precedent set forth in Section 3.1 shall not have been satisfied), that LIBOR Loan shall
be converted to a LIBOR Loan with a LIBOR Period of one month at the end of its LIBOR Period. Borrower must make such election
by notice to Agent in writing, by fax or overnight courier. In the case of any conversion or continuation, such election must
be made pursuant to a written notice (a “Notice of Conversion/Continuation”) in the form of Exhibit 2.5(e).


 


(f)            Anything
herein to the contrary notwithstanding, the obligations of Borrower hereunder shall be subject to the limitation that
payments of interest shall not be required, for any period for which interest is computed hereunder, to the extent (but only
to the extent) that contracting for or receiving such payment by the respective Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest which may be lawfully contracted for, charged or
received by such Lender, and in such event Borrower shall pay such Lender interest at the highest rate permitted by
applicable law (the “Maximum Lawful Rate”); provided, however, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay
interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders,
is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the
operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement.
Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 2.5(a)
through (e), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this
paragraph shall again apply. In no event shall the total interest received by any Lender pursuant to the terms hereof exceed
the amount that such Lender could lawfully have received had the interest due hereunder been calculated for the full term
hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall
be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such
calculation is made. If, notwithstanding the provisions of this Section 2.5(f), a court of competent jurisdiction
shall finally determine that a Lender has received interest hereunder in excess of the Maximum Lawful Rate, Agent shall, to
the extent permitted by applicable law, promptly apply such excess in the order specified in Section 2.9 and
thereafter shall refund any excess to Borrower or as a court of competent jurisdiction may otherwise order.


 






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2.6             
[Reserved]. 


 


2.7             
Fees. 


 


(a)           Borrower shall pay on the Closing Date to each Lender party to this Agreement on the Closing Date, as fee compensation for the
funding of such Lender’s Loan, an upfront fee (the “Upfront Fee”) in amount equal to 2.00% of the stated
principal amount of such Lender’s Loan made on the Closing Date. Such Upfront Fee will be in all respects fully earned,
due and payable on the Closing Date and non-refundable and non-creditable thereafter. Such Upfront Fee shall be netted against
Loans made by such Lender on the Closing Date.


 


(b)           Borrower shall pay the fee specified in Section 2.3(a)(ii) if, as and when such fee shall become due in accordance
with the terms of this Agreement.


 


(c)           Borrower shall pay to the applicable Lead Arranger, Bookrunner or Lender any other fees that have been separately agreed to between
Borrower and any applicable Lead Arranger, Bookrunner or Lender.


 


2.8             
Receipt of Payments. Borrower shall make each payment under this Agreement not later than 3:00 p.m. (New York time) on
the day when due in immediately available funds in Dollars to Agent at its address listed on Annex A. For purposes of computing
interest and Fees, all payments shall be deemed received on the Business Day on which immediately available funds are received
by Agent at its address listed on Annex A prior to 3:00 p.m. (New York time). Payments received after 3:00 p.m. (New York time)
on any Business Day, or on a day that is not a Business Day, shall be deemed to have been received on the following Business Day.
Agent shall distribute such payments to Lender or other applicable Persons in like funds as received.


 


2.9             
Application and Allocation of Payments. So long as no Event of Default has occurred and is continuing, (i) payments
of regularly scheduled payments then due shall be applied to those scheduled payments, (ii) voluntary prepayments shall be
applied in accordance with the provisions of Section 2.3(a), and (iii) mandatory prepayments shall be applied
as set forth in Sections 2.3(d). All payments and prepayments applied to the Loansa
particular Loan shall be applied on a pro rata basis between the Facility and the
Term B-1 Facility based on the aggregate principal amount of Loans outstanding thereunder at such time and shall be further applied
ratably within the Facility and the Term B-1 Facilityratably to the portion thereof held by each Lender as determined by its Pro Rata Share of
the Facility or Term B-1 Facility, as applicable. As to all payments made when an Event of Default has occurred
and is continuing, Borrower hereby irrevocably waives the right to direct the application of any and all payments received from
a Credit Party. All voluntary prepayments shall be applied as directed by Borrower; provided,
that all such voluntary prepayment shall be applied on a pro rata basis between the Facility and the Term B-1 Facility based on
the aggregate principal amount of Loans outstanding thereunder at such time. In all circumstances after an Event
of Default, all payments and all proceeds of Collateral shall be applied to amounts then due and payable in the following order:
(1) to Fees and Agent’s expenses reimbursable hereunder; (2) to interest on the Loans, ratably in proportion to the interest
accrued as to each Loan; and (3) to all other Obligations hereunder on a ratable basis, including expenses of Lenders to the extent
reimbursable under Section 12.3.


 






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2.10           
Evidence of Debt. Upon the request of any Lender made through Agent, Borrower shall execute and deliver to such Lender
(through Agent) one or more Notes, which shall evidence such Lender’s Loans. 


 


2.11           
Indemnity.


 


(a)           Each Credit Party that is a signatory hereto shall jointly and severally indemnify and hold harmless each of Agent, Lead Arrangers,
the Lenders, and their respective Affiliates, and each such Person’s respective officers, directors, employees, attorneys,
agents, advisors and representatives (each, an “Indemnified Person”), from and against any and all suits, actions,
proceedings, claims, damages, actual losses, liabilities, and out-of-pocket expenses (including reasonable attorneys’ fees
and disbursements and other reasonable documented out-of-pocket costs of investigation or defense, including those incurred upon
any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the result of credit having
been extended, suspended or terminated under this Agreement, the other Loan Documents and the administration of such credit, and
in connection with or arising out of the transactions contemplated hereunder (including the syndication of the Facility and
the Term B-1 Facility) and thereunder and any actions or failures to act in connection therewith, including any
and all Environmental Liabilities and reasonable, out-of-pocket legal costs and expenses arising out of or incurred in connection
with disputes between or among any parties to any of the Loan Documents; provided that no such Credit Party shall be liable
for any indemnification to an Indemnified Person to the extent that any such suit, action, proceeding, claim, damage, actual loss,
liability, or expense results from that Indemnified Person’s (or such Indemnified Person’s Related Persons) gross
negligence, bad faith, willful misconduct or material breach of any of its obligations under any Loan Document as determined by
a court of competent jurisdiction in a final and non-appealable judgment; provided, further, that no Indemnified
Person will be indemnified for any such cost, expense or liability to the extent of any dispute solely among Indemnified Persons
(other than any claims against Agent or Lead Arrangers acting in its capacity as such) that does not involve actions or omissions
of any Credit Party or any of its Affiliates. In the absence of an actual conflict of interest, or the written opinion of counsel
that a potential conflict of interest exists, Borrower and its Subsidiaries will not be responsible for the fees and expenses
of more than one legal counsel for all Indemnified Persons and appropriate local legal counsel; provided that in the case
of an actual conflict of interest, or the written opinion of counsel that a potential conflict of interest exists, Borrower and
its Subsidiaries shall be responsible for one additional counsel in each applicable jurisdiction for the affected Indemnified
Parties, taken as a whole. To the extent permitted by applicable law, no party hereto shall be responsible or liable to any other
Person party to any Loan Document, any successor, assignee, or third party beneficiary of such person or any other person asserting
claims derivatively through such Party, for indirect, punitive, exemplary or consequential damages which may be alleged as a result
of credit having been extended, suspended, or terminated under any Loan Document or as a result of any other transaction contemplated
hereunder or thereunder; provided that nothing hereunder in this sentence shall limit any Credit Party’s indemnity
and reimbursement obligations to the extent set forth herein. No Indemnified Person referred to in this clause (a)
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.


 






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(b)           To induce Lenders to provide the LIBOR Rate option on the terms provided herein, if (i) any LIBOR Loans are repaid in whole
or in part prior to the last day of any applicable LIBOR Period (whether that repayment is made pursuant to any provision of this
Agreement or any other Loan Document or occurs as a result of acceleration, by operation of law or otherwise); (ii) Borrower
shall default in payment when due of the principal amount of or interest on any LIBOR Loan; (iii) Borrower shall refuse to
accept any borrowing of, or shall request a termination of, any borrowing of, conversion into or continuation of, LIBOR Loans
after Borrower has given notice requesting the same in accordance herewith; (iv) Borrower shall fail to make any prepayment
of a LIBOR Loan after Borrower has given a notice thereof in accordance herewith; or (v) an assignment of LIBOR Loans is
mandated pursuant to Sections 2.14(d) or 12.2(d), then Borrower shall indemnify and hold harmless each Lender
from and against all actual losses, costs and reasonable documented out-of-pocket expenses resulting from or arising from any
of the foregoing. Such indemnification shall include any actual and documented out-of-pocket loss or expense (other than loss
of anticipated profits), if any, arising from the reemployment of funds obtained by it or from fees payable to terminate deposits
from which such funds were obtained. For the purpose of calculating amounts payable to a Lender under this Section 2.11(b),
each Lender shall be deemed to have actually funded its relevant LIBOR Loan through the purchase of a deposit bearing interest
at the LIBOR in an amount equal to the amount of that LIBOR Loan and having a maturity comparable to the relevant LIBOR Period;
provided that each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the foregoing assumption shall
be utilized only for the calculation of amounts payable under this Section 2.11(b). This covenant shall survive the
termination of this Agreement and the payment of the Obligations hereunder and all other amounts payable hereunder. As promptly
as practicable under the circumstances, each Lender shall provide Borrower with its written and detailed calculation of all amounts
payable pursuant to this Section 2.11(b), and such calculation shall be binding on the parties hereto absent manifest
error, in which case Borrower shall object in writing within ten (10) Business Days of receipt thereof, specifying the basis for
such objection in detail.


 


2.12
[Reserved]2.12 Interest
Rate Determination.


 


(a)           Notwithstanding anything to the contrary herein or in any other Loan
Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date
have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement
is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark
Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document
in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent
of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance
with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement
will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after
5:00 P.M. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided
to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan
Document so
long as the Agent
has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite
Lenders.


 


(A)             
Notwithstanding anything to the contrary herein or in any other Loan
Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement
Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark
Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark
setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this
Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Agent has delivered to
the Lenders and Borrower a Term SOFR Notice.


 






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(b)          In connection with the implementation of a Benchmark Replacement,
the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything
to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes
will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.


 


(c)           The Agent will promptly notify Borrower and the Lenders of (i) any
occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related
Benchmark Replacement Date and (if known at such time) the related Benchmark Replacement, (ii) the implementation of any Benchmark
Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any
tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period.
Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant
to this Section 2.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence
of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive
and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to
this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.12.


 


(d)           Notwithstanding anything to the contrary herein or in any other Loan
Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark
is a term rate (including Term SOFR or the LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen
or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion
or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information
announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify the definition
of “LIBOR Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative
tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information
service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it
is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition
of “LIBOR Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.


 


(e)           Upon Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, Borrower may revoke any request for a conversion to or continuation of LIBOR Loans to be made, converted
or continued during any Benchmark Unavailability Period and, failing that, Borrower will be deemed to have converted any such
request into a request for a conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor
for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark
or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. Furthermore, if any LIBOR
Loan is outstanding on the date of Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period,
then on the last day of the LIBOR Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business
Day), such Loan shall be converted by the Agent to, and shall constitute, a Base Rate Loan on such day.


 


(f)            If Borrower shall fail to select the duration of any LIBOR Period
for any LIBOR Loans in
accordance with the provisions
contained in the definition of “LIBOR Period” in Section 1.01, the Agent will forthwith so notify Borrower and
Lenders and such Loans will automatically, on the last day of the then existing LIBOR Period therefor convert into Base Rate Loans.


 






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(g)           Upon the occurrence and during the continuance of any Event of Default
under Section 9.01(a), (x) each LIBOR Loan will automatically, on the last day of the then existing LIBOR Period therefor,
be Converted into Base Rate Loans and (y) the obligation of the Lenders to make, or to convert Loans into, LIBOR Loans shall
be suspended.


 


2.13           
Taxes. 


 


(a)           All payments by or on account of any obligation of any Credit Party hereunder or under any other Loan Document shall be made,
in accordance with this Section 2.13, free and clear of and without withholding or deduction for any Taxes, except
as required by applicable law. If any Withholding Agent shall be required by law to withhold or deduct any Taxes from or in respect
of any sum payable hereunder (including any payments made pursuant to this Section 2.13) or under any other Loan Document,
(i) if such Tax is an Indemnified Tax, the sum payable by the applicable Credit Party shall be increased, without duplication,
as much as shall be necessary so that, after making all required withholdings and deductions (including withholdings and deductions
applicable to additional sums payable under this Section 2.13), Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such withholdings and deductions been made, (ii) the relevant Withholding
Agent shall make such withholdings and deductions, and (iii) such Withholding Agent shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law. Each Lender agrees that, as promptly as reasonably practicable
after it becomes aware of any circumstances which would result in additional payments under this Section 2.13, it
shall notify Borrower thereof.


 


(b)           Without duplication of any obligation set forth in subsection (a), each Credit Party shall timely pay any Other Taxes to the relevant
Governmental Authority (or, at the option of Agent, to Agent as reimbursement for Agent’s payment thereof).


 


(c)           Each Credit Party shall, without duplication of any obligation set forth in subsection (a), jointly and severally indemnify and,
within ten (10) days of demand therefor, pay Agent and each Lender for the full amount of Indemnified Taxes (including, any Indemnified
Taxes imposed by any jurisdiction on amounts payable under this Section 2.13) paid by (or on behalf of) Agent or such
Lender as a result of payments made pursuant to this Agreement or any other Loan Document, as appropriate, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such Taxes and evidence of payment thereof submitted to
the Credit Parties shall be conclusive evidence, absent manifest error, of the amount due from the Credit Parties to Agent or
such Lenders. Upon actually learning of the imposition of any such Taxes, Agent or such Lender, as the case may be, shall act
in good faith to notify Borrower of the imposition of such Taxes arising hereunder.


 


(d)           Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Agreement
or any other Loan Documents shall deliver to Borrower (with a copy to Agent), at the time or times reasonably requested by Borrower
or Agent, such properly completed and executed documentation reasonably requested by Borrower or Agent as will permit such payments
to be made without withholding or at a reduced rate of withholding. Without limiting the generality of the foregoing, each Lender,
and any successor or assignee of a Lender, that is a “United States person” within the meaning of section 7701(a)(30)
of the IRC shall deliver to Borrower (with a copy to Agent) a properly completed and executed IRS Form W-9 and such other documentation
or information prescribed by applicable law or reasonably requested by Agent or Borrower to (i) determine whether such Lender
is subject to backup withholding or information reporting requirements and (ii) for Borrower to comply with its obligations
under FATCA. Each Lender, and any successor or assignee of a Lender, that is not a “United States person” as defined
in section 7701(a)(30) of the IRC (“Foreign Lender”) to whom payments to be made under this Agreement may be
exempt from, or eligible for a reduced rate of, United States withholding tax (as applicable) shall, at the time or times prescribed
by applicable law, provide to Borrower (with a copy to Agent) a properly completed and executed IRS Form W-8ECI, Form W-8BEN,
Form W-8BEN-E, Form W-8IMY or other applicable form, certificate (including, but not limited to, certification, if applicable,
that such Foreign Lender is not a “bank,” a “10 percent shareholder,” or a “controlled foreign corporation”
for purposes of the portfolio interest exemption of section 881(c) of the IRC, a “Tax Compliance Certificate”)
or document prescribed by the IRS or the United States. Each Lender shall deliver to Borrower and Agent (in such number of copies
as shall be requested by Borrower or Agent) on or prior to the date on which such Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of Borrower or Agent), executed originals of any other form prescribed
by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Agent, as applicable, to determine
the withholding or deduction required to be made. Notwithstanding anything to the contrary in this paragraph, the completion,
execution, and submission of such documentation (other than (A) IRS Form W-9, (B) applicable IRS Form W-8, (C) a
Tax Compliance Certificate, if applicable, and (D) any information or documentation reasonably requested by Borrower or Agent
in connection with FATCA (which, for this purpose shall include any amendments made to FATCA after the date hereof)) shall not
be required if in the Lender’s reasonable judgment such completion, execution, or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify Borrower and Agent in writing of its legal inability to do so.


 






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(e)           If Agent or any Lender, as applicable, determines, in its sole discretion, exercised in good faith, that it has received a refund
of any Taxes as to which it has been indemnified by any Credit Party or with respect to which any Credit Party has paid additional
amounts pursuant to this Section 2.13, it shall pay over such refund to such Credit Party (but only to the extent
of indemnity payments made, or additional amounts paid, by such Credit Party under this Section 2.13 with respect
to the Taxes giving rise to such refund), net of all out-of-pocket expenses of Agent or Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund). Such Credit Party, upon the request of
Agent or Lender, shall repay to Agent or Lender the amount paid over pursuant to this paragraph (e) (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) in the event that Agent or Lender is required to repay such refund
to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will Agent or a Lender
be required to pay any amount to a Credit Party pursuant to this paragraph (e) the payment of which would place Agent or Lender
in a less favorable net after-Tax position than Agent or such Lender would have been in if the Tax subject to indemnification
and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional
amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require Agent or any Lender to
make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to a Credit Party or
any other Person.


 


(f)            Each Lender shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable
to such Lender (but only to the extent that a Credit Party has not already indemnified Agent for such Indemnified Taxes and without
limiting the obligation of any Credit Party to do so), (ii) any Taxes attributable to such Lender’s failure to comply
with the provisions of Section 11.1(c) relating to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with any Loan Document, and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any
Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set off and apply any and all
amounts at any time owing to such Lender under any Loan Document or otherwise payable by Agent to the Lender from any other source
against any amount due to Agent under this paragraph (f).


 






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(g)          The provisions of this Section 2.13 shall survive the termination of this Agreement and repayment of all Obligations
hereunder.


 


2.14           
Capital Adequacy; Increased Costs; Illegality. 


 


(a)           If any Lender shall have determined that any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy, liquidity, reserve requirements or similar requirements or compliance by any Lender with any
request or directive regarding capital adequacy, liquidity, reserve requirements or similar requirements (whether or not having
the force of law), in each case, adopted after the Closing Date, from any central bank or other Governmental Authority increases
or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender
and thereby reducing the rate of return on such Lender’s capital as a consequence of its obligations hereunder, then Borrower
shall from time to time upon demand by such Lender (with a copy of such demand to Agent) pay to Agent, for the account of such
Lender, additional amounts sufficient to compensate such Lender for such reduction. A certificate as to the amount of that reduction
and setting forth in reasonable detail the basis of the computation thereof submitted by such Lender to Borrower and to Agent
shall, absent manifest error, be final, conclusive and binding for all purposes.


 


(b)           If, due to either (i) the introduction of or any change in any law or regulation (or any change in the interpretation thereof)
or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not
having the force of law), in each case adopted after the Closing Date, there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining, continuing, converting to any LIBOR Loan, or there shall be a Tax (other than
Indemnified Taxes or Excluded Taxes) on any Recipient on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, or other liabilities, or capital attributable thereto, then Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to Agent), pay to Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate setting forth in reasonable detail the amount of such increased
cost and the basis of the calculation thereof, submitted to Borrower and to Agent by such Lender, shall, absent manifest error,
be final, conclusive and binding for all purposes. Each Lender agrees that, as promptly as practicable after it becomes aware
of any circumstances referred to above which would result in any such increased cost, the affected Lender shall, to the extent
not inconsistent with such Lender’s internal policies of general application, use reasonable commercial efforts to minimize
costs and expenses incurred by it and payable to it by Borrower pursuant to this Section 2.14(b).


 


(c)           Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any
change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert
that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Loan, as contemplated
by this Agreement, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Loan at another branch
or office of that Lender without, in that Lender’s reasonable opinion, materially adversely affecting it or its Loans or
the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Agent, (i) the obligation
of such Lender to agree to make or to make or to continue to fund or maintain such LIBOR Loans, as the case may be, shall terminate
and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Loans owing by it to such Lender, together with interest
accrued thereon, unless such Lender may maintain such LIBOR Loans through the end of such LIBOR Period under applicable law or
unless Borrower, within five Business Days after the delivery of such notice and demand, converts all LIBOR Loans into Base Rate
Loans. Notwithstanding the foregoing, if Borrower provides Agent and the Affected Lender notice that it seeks to replace such
Affected Lender in accordance with Section 2.14(d), Borrower’s obligation to prepay Loans pursuant to this Section 2.14(c)
shall be suspended; provided that if no Replacement Lender is found within the time provided for in Section 2.14(d),
Borrower shall have five Business Days to prepay such Affected Lender’s LIBOR Loans. In the event Borrower relies on this
provision to suspend its obligation to prepay LIBOR Loans, such LIBOR Loans shall be converted to Base Rate Loans at the end of
the applicable LIBOR Period.


 






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(d)           Within thirty (30) days after receipt by Borrower of written notice and demand from any Lender (an “Affected Lender”)
for payment of additional amounts or increased costs as provided in Sections 2.13(a), 2.14(a) or 2.14(b),
or notice and demand that Borrower prepay Loans pursuant to Section 2.14(c), Borrower may, at its option, notify Agent
and such Affected Lender of its intention to replace the Affected Lender. So long as no Event of Default has occurred and is continuing,
Borrower, with the consent of Agent, may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”)
for the Affected Lender, which Replacement Lender must be reasonably satisfactory to Agent. If Borrower obtains a Replacement
Lender within ninety (90) days following notice of their intention to do so, the Affected Lender must sell and assign its Loans
and Commitments to such Replacement Lender for an amount equal to the principal balance of all Loans held by the Affected Lender
and all accrued interest and Fees with respect thereto through the date of such sale and such assignment shall not require the
payment of an assignment fee to Agent; provided, that Borrower shall have reimbursed such Affected Lender for the additional
amounts or increased costs that it is entitled to receive under this Agreement through the date of such sale and assignment. Notwithstanding
the foregoing, Borrower shall not have the right to obtain a Replacement Lender if the Affected Lender rescinds its demand for
increased costs or additional amounts within 15 days following its receipt of Borrower’s notice of intention to replace
such Affected Lender. Furthermore, if Borrower gives a notice of intention to replace and does not so replace such Affected Lender
within ninety (90) days thereafter, Borrower’s rights under this Section 2.14(d) shall terminate with respect
to such Affected Lender for such request for additional amounts or increased costs and Borrower shall promptly pay all increased
costs or additional amounts demanded by such Affected Lender pursuant to Sections 2.13(a), 2.14(a) and 2.14(b).
An exercise of Borrower’s option under this Section 2.14(d) shall not suspend Borrower’s obligation to
pay such increased costs or additional amounts demanded by such Affected Lender pursuant to Sections 2.13(a), 2.14(a)
and 2.14(b) until such Affected Lender is replaced.


 


(e)           It is understood and agreed that (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines
or directives in connection therewith (collectively, the “Dodd-Frank Act”) are deemed to have been adopted
and gone into effect after the date of this Agreement to the extent necessary to provide Lenders with the benefit of this Section 2.14
with respect to any “change in law or regulation” resulting from the Dodd-Frank Act and (y) all requests,
rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel
III, shall, for the purposes of this Agreement, be deemed to have been adopted and gone into effect after the date of this Agreement
to the extent necessary to provide Lenders with the benefit of this Section 2.14 with respect to any “change
in law or regulation” resulting from Basel III.


 






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(f)            No Lender shall request compensation under Section 2.14(a) or (b) hereof unless such Lender is generally requesting
similar compensation from its borrowers with similar provisions in their loan or credit documents. Borrower shall not be required
to compensate a Lender for any increased costs incurred or reduced rate of return suffered more than six months prior to the date
that the Lender notifies Borrower of the change in law giving rise to such increased costs or reduced return and of such Lender’s
intention to claim compensation therefor; provided that to the extent the change is law is retroactive to a date that is
prior to the date such change in law is enacted, such six months period shall commence on the date of enactment of such change
in law.


 


(g)           Within thirty (30) days after receipt by Borrower of written notice and demand from any Affected Lender for payment of additional
amounts or increased costs as provided in Sections 2.13(a), 2.14(a) or 2.14(b), then such Lender shall
(at Borrower’s request) use reasonable efforts to designate a different lending office for funding or booking its Loans
or to assign its rights and obligations hereunder to another of its offices, branches, or affiliates, if, in the good-faith judgment
of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.13(a),
2.13(b), 2.14(a), or 2.14(b), as the case may be, in the future, and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower shall pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.


 


2.15           
Incremental Loans. 


 


(a)           Borrower may, by written notice to Agent from time to time, request an increase in the principal amount of the Loans, or request
one or more additional tranches of Loans (the “Incremental Loans”); provided that the aggregate principal
amount of Incremental Loans incurred under this Section 2.15 after
the Amendment No. 6 Closing Date shall not exceed an amount equal to the sum of (a) $100 million plus (b) an
additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00
of additional Indebtedness under Section 7.1(a) and (ii) the pro forma Consolidated Secured Net Leverage
Ratio of Borrower (calculated without netting the cash proceeds of such Incremental Loans) does not exceed 3.00:1.00 (the “Ratio
Incremental Basket”); provided that when calculating the Consolidated Secured Net Leverage
Ratio for purposes of this Section 2.15(a) at any time, the maximum amount of Indebtedness that Borrower
is permitted to incur under its undrawn commitments under (A) the ABL Credit Agreement as in effect at such time and (B) the Con-way
Bridge Credit Agreement as in effect at such time shall, in each case, be deemed outstanding and secured by a Lien.
Such notice shall set forth (x) the amount of the Incremental Commitments being requested (which shall be in minimum increments
of $1,000,000 and a minimum amount of $5,000,000), (y) the date on which such Incremental Commitments are requested to become
effective (which shall not be less than ten (10) Business Days nor more than sixty (60) days after the date of such notice (or
such longer or shorter periods as Agent shall agree)) and (ii) whether such Incremental Loans are intended to be increases
to the existing Loans or are intended to be a new tranche of Loans with terms different from the Loans. Borrower may seek Incremental
Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any
Additional Lender.


 


(b)           It shall be a condition precedent to the incurrence of the Incremental Loans that (i) no Default or Event of Default shall
have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, (ii) the
representations and warranties set forth in Section 4 and in each other Loan Document shall be true and correct in
all material respects on and as of the date the Incremental Loans are made, except to the extent that such representations or
warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such
earlier date and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c);
provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental
Loans are being used to finance a Limited Condition Acquisition.


 






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(c)           The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental
Lender”) and set forth in an Incremental Amendment; provided that (i) the final maturity date of any Incremental
Loans shall be no earlier than the Latest Maturity Date, (ii) the Weighted Average Life to Maturity of the Incremental Loans
shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Loans, (iii) the Incremental
Loans will rank pari passu in right of payment and with respect to security with the Loans, (iv) none of the borrower
or guarantors with respect to the Incremental Loans shall be a Person that is not a Credit Party and the Incremental Loans shall
not be secured by assets that do not constitute Collateral, (v) with respect to any Incremental Loans incurred pursuant to
clause (a) of this Section 2.15, (A) if the All-in Yield on
any tranche of such Incremental Loans incurred
within twelve (12) months of the Amendment No. 6 Closing Date exceeds the initial All-in Yield for the Term B Loans
by more than 50 basis points (or, in the case
of up to $500,000,000 aggregate principal amount of such Incremental Loans incurred on or prior
to the date that is 90 days after March 7, 2019, 75 basis points) (the amount of such excess above 50 or
75 basis points, as applicable,  being referred to herein as
the “Term B Loan Yield Differential”), then the Applicable Margin for such Term B Loans shall automatically
be increased by the Term B Loan Yield Differential applicable to such Term B Loans effective upon the making of the Incremental
Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B Loans
as necessary to ensure the Incremental Loans are “fungible” with such Term B Loans) and
(B) if the All-in Yield on any such Incremental Loans incurred on or prior to the date that is 12 months following the Amendment
No. 5 Closing Date exceeds the initial All-in Yield for the Term B-1 Loans by more than 50 basis points (the amount of such excess
above 50 basis points being referred to herein as the “Term B-1 Loan Yield Differential”),
then the Applicable Margin for such Term B-1 Loans shall automatically be increased by the Term B-1 Loan Yield Differential applicable
to such Term B-1 Loans effective upon the making of the Incremental Loans (and Borrower shall be entitled, without the consent
of any other Lender, to increase the All-in Yield on such Term B-1 Loans as necessary to ensure the Incremental Loans are “fungible”
with such Term B-1 Loans),, (vi) the
Incremental Loans may share ratably or less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to
the extent the terms of the Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause
(i) through (vi) above), such terms shall be reasonably satisfactory to Agent.


 


(d)           In connection with any Incremental Loans, Borrower, Agent and each applicable Incremental Lender shall execute and deliver to
Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental
Amendment”) and such other documentation as Agent shall reasonably specify to evidence the Incremental Loans of each
Incremental Lender. Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Any Incremental
Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may
be necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effect the provisions of this Section 2.15,
including any amendments necessary to establish the Incremental Loans as a new class or tranche of Loans and such other technical
amendments as may be necessary or appropriate in the reasonable opinion of Agent and Borrower in connection with the establishment
of such new class or tranche, in each case on terms consistent with this Section 2.15.


 


(e)           This Section 2.15 shall supersede any provision in Section 2.9 or 12.2.


 






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2.16           
Refinancing Facilities. 


 


(a)           Borrower may, by written notice to Agent from time to time, request loans (the “Refinancing Loans”) to refinance
all or a portion of any existing Loans (the “Refinanced Loans”), and, with respect to the Excess Amount, for
general corporate purposes, in an aggregate principal amount not to exceed (i) the aggregate principal amount of the Refinanced
Loans, plus (ii) any accrued interest, fees, costs and expenses related thereto (including any original issue discount or upfront
fees) (clauses (i) and (ii) together, the “Refinancing Amount”), plus (iii) an additional amount not to exceed
$1,500,000 (the “Excess Amount”). Such notice shall set forth (i) the amount of the Refinancing Loan (which
shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), and (ii) the date on which the applicable
Refinancing Loan is to be made available (which shall not be less than ten (10) Business Days nor more than sixty (60) days after
the date of such notice (or such longer or shorter periods as Agent shall agree)). Borrower may seek Refinancing Loans from existing
Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.


 


(b)           It shall be a condition precedent to the incurrence of any Refinancing Loans that (i) no Default or Event of Default shall
have occurred and be continuing immediately prior to or immediately after giving effect to such the incurrence of the Refinancing
Loans, (ii) the terms of the Refinancing Loans shall comply with this Section 2.16 and (iii) substantially
concurrently with the incurrence of any Refinancing Loans, 100% of the Refinancing Amount shall be applied to repay the Refinanced
Loans (including accrued interest, fees and premiums (if any) payable in connection therewith).


 


(c)           The terms of any Refinancing Loans shall be determined by Borrower and the Persons providing the Refinancing Loans (each, a “Refinancing
Lender”) and set forth in a Refinancing Amendment; provided that (i) the final maturity date of any Refinancing
Loans shall be no earlier than the Latest Maturity Date, (ii) the Weighted Average Life to Maturity of the Refinancing Loans
shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing class of Loans, (iii) the Refinancing
Loans will rank pari passu in right of payment and of security with the Loans, (iv) none of the borrower and the guarantors
of the Refinancing Loans shall be a Person that is not a Credit Party and the Refinancing Loans shall not be secured by assets
that do not constitute Collateral, (v) the interest rate margin, rate floors, fees, original issue discount and premiums
applicable to the Refinancing Loans shall be determined by Borrower and the applicable Refinancing Lenders, (vi) the Refinancing
Loans may share ratably or less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to the extent
the terms of the Refinancing Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through
(vi) above), such terms shall be reasonably satisfactory to Agent.


 


(d)           In connection with any Refinancing Loans, Borrower, Agent and each applicable Refinancing Lender shall execute and deliver to
Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (a “Refinancing
Amendment”) and such other documentation as Agent shall reasonably specify to evidence such Refinancing Loans. Agent
shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Any Refinancing Amendment may, without
the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or
appropriate (but only to such extent), in the reasonable opinion of Agent and Borrower, to effect the provisions of this Section 2.16,
including any amendments necessary to establish the applicable Refinancing Loans as a new class or tranche of Loans, and such
other technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and Borrower in connection with
the establishment of such new class or tranche, in each case on terms consistent with this Section 2.16.


 






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(e)           This Section 2.16 shall supersede any provision in Section 2.9,
2.15(c), or 12.2.


 


2.17           
Extended Loans. 


 


(a)           Borrower may, by written notice to Agent from time to time, request an extension (each, an “Extension”) of
the Maturity Date of any class of Loans to the extended maturity date specified in such request. Such notice shall set forth (i) the
amount of the applicable class of Loans to be extended (the “Extended Loans”) (which shall be in minimum increments
of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Extension is requested to become effective
(which shall be not less than ten (10) Business Days nor more than sixty (60) days after the date of such requested Extension
(or such longer or shorter periods as Agent shall agree)) and (iii) identifying the relevant class or classes of Loans to
which such requested Extension relates. Each Lender of the applicable class shall be offered (an “Extension Offer”)
an opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions as each other Lender
of such class pursuant to procedures established by, or reasonably acceptable to, Agent. If the aggregate principal amount of
Loans in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal
amount of Loans requested to be extended by Borrower pursuant to such Extension Offer, then the Loans of Lenders of the applicable
class shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual
holdings of record) with respect to which such Lenders have accepted such Extension Offer.


 


(b)           It shall be a condition precedent to the effectiveness of any Extension that (i) no Default or Event of Default shall have
occurred and be continuing immediately prior to and immediately after giving effect to such Extension and (ii) the terms
of such Extended Loans shall comply with Section 2.17(c).


 


(c)           The terms of each Extension shall be determined by Borrower and the Lenders agreeing to such extension (the “Extending
Lenders”) and set forth in an Extension Amendment; provided that (i) the final maturity date of any Extended
Loan shall be no earlier than the Latest Maturity Date (ii) the Weighted Average Life to Maturity of the Extended Loans shall
be no shorter than the remaining Weighted Average Life to Maturity of any then-existing class of Loans, (iii) the Extended
Loans will rank pari passu in right of payment and with respect to security, (iv) none of the borrower and the guarantors
of the Extended Loans shall be a Person that is not a Credit Party and the Extended Loans shall not be secured by assets that
do not constitute Collateral, (v) the interest rate margin, rate floors, fees, original issue discounts and premiums applicable
to any Extended Loan shall be determined by Borrower and the applicable extending Lender, (vi) the Extended Loans may share
ratably or less than ratably (but not more than ratably) in in any prepayments hereunder and (vii) to the extent the terms
of the Extended Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above),
such terms shall be reasonably satisfactory to Agent.


 


(d)           In connection with any Extension, Borrower, Agent and each applicable extending Lender shall execute and deliver to Agent an amendment
to this Agreement (which may take the form of an amendment and restatement of this Agreement) (a “Extension Amendment”)
and such other documentation as Agent shall reasonably specify to evidence the Extension. Agent shall promptly notify each Lender
as to the effectiveness of each Extension. Any Extension Amendment may, without the consent of any other Lender, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or appropriate (but only to such extent), in the reasonable
opinion of Agent and Borrower, to implement the terms of any such Extension, including any amendments necessary to establish Extended
Loans as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the reasonable
opinion of Agent and Borrower in connection with the establishment of such new class or tranche, in each case on terms consistent
with this Section 2.17).


 






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(e)           This Section 2.17 shall supersede any provision in Section 2.9 or 12.2.


 


3.            CONDITIONS PRECEDENT


 


3.1             
Conditions to the Closing Date. This Agreement shall become effective, and each Lender shall be obligated to fund its Loans,
on the date that the following conditions have been satisfied (or waived in accordance with Section 12.2):


 


(a)           Loan Documents. The following documents shall have been duly executed by Borrower, each other Credit Party, Agent and the
Lenders party thereto; and Agent shall have received such documents, instruments and agreements, each in form and substance reasonably
satisfactory to Agent, each Lead Arranger and each Lender:


 


(i)        
Agreement. Duly executed originals of this Agreement, dated the Closing Date, and all annexes, exhibits and schedules hereto.


 


(ii)      
Security Agreements. Duly executed originals of the Security Agreement, dated the Closing Date, and all Annexes, Exhibits
and Schedules thereto.


 


(iii)      
Intellectual Property Security Agreements. Duly executed originals of Intellectual Property Security Agreements, dated
the Closing Date, with respect to Copyrights, Patents and Trademarks and in form and substance reasonably satisfactory to Agent
(it being understood that the forms attached to the Security Agreement are reasonably satisfactory to Agent).


 


(iv)      
ABL Intercreditor Agreement. Duly executed originals of the ABL Intercreditor Agreement, dated the Closing Date.


 


(v)        
[Reserved].


 


(vi)      
Lien, Tax, and Judgment Searches. Agent shall have received the result of recent lien, Tax and judgment searches in each
of the jurisdictions reasonably requested by it and such lien searches shall reveal no Liens on any of the assets of the Credit
Parties, other than Permitted Liens.


 


(vii)    
Filings, Registrations, and Recordings. Subject to the last paragraph of this Section, (A) Agent shall have received
each document (including, without limitation, any financing statement authorized for filing under the Code) reasonably requested
by Agent to be filed, registered or recorded in order to create in favor of Agent, for the benefit of the Lenders and other Secured
Parties, a perfected Lien on the Collateral described therein (subject to Permitted Liens) which can be perfected by the filing
of such document and authorization for filing, registering or recording each such document (including, without limitation, any
financing statement authorized for filing under the Code) and (B) Memorandum of Security Agreements dated the Closing Date
shall have been delivered for recording with the Surface Transportation Board.


 


(viii)     
Notes. If requested by Lenders, duly executed originals of the Notes for each applicable Lender, dated the Closing Date.


 


(ix)      Formation and Good Standing. For each Credit Party, such Person’s (a) articles of incorporation or certificate
of formation, as applicable, and all amendments thereto, each certified as of the Closing Date by such Person’s corporate
secretary or an assistant secretary, managing member, manager or equivalent senior officer, as applicable, as being in full force
and effect without any further modification or amendment (b) for Borrower only, a good standing certificate (including verification
of Tax status) or like certificate in its jurisdiction of incorporation or formation, as applicable, and (c) for each Credit
Party other than Borrower, a “bring down” certificate of good standing or like certificate in its jurisdiction of
incorporation or formation, as applicable.


 






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(x)        
Bylaws and Resolutions. For each Credit Party, (a) such Person’s bylaws, operating agreement, limited liability
company agreement or limited partnership agreement, as applicable, together with all amendments thereto and (b) resolutions
of such Person’s members or board of directors, as the case may be, and, to the extent required under applicable law, stockholders,
approving and authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and the
transactions to be consummated in connection therewith, each certified as of the Closing Date by such Person’s corporate
secretary or an assistant secretary, managing member, manager or equivalent senior officer, as applicable, as being in full force
and effect without any modification or amendment.


 


(xi)      
Incumbency Certificates. For each Credit Party, signature and incumbency certificates of the officers of each such Person
executing any of the Loan Documents, certified as of the Closing Date by such Person’s corporate secretary or an assistant
secretary, managing member, manager or equivalent senior officer, as applicable, as being true, accurate, correct and complete.


 


(xii)    
Opinions of Counsel. Duly executed originals of a legal opinion of (i) Wachtell, Lipton, Rosen & Katz, U.S. special
counsel to the Credit Parties, (ii) Spencer Fane LLP, Missouri special counsel to the Credit Parties and (iii) the Law
Offices of Louis E. Gittomer, LLC, U.S. special railroad counsel to the Credit Parties, each in form and substance reasonably
satisfactory to Agent and its counsel, dated the Closing Date.


 


(xiii)     
Officer’s Certificate. Agent shall have received duly executed originals of a certificate of a Financial Officer
of Borrower, dated the Closing Date, stating that:


 


(A)       
the Con-way Merger has been consummated on the Closing Date substantially simultaneously with the closing of the Facility on the
terms described in the Con-way Acquisition Agreement, without giving effect to any amendment, modification or waiver thereof by
Borrower or any consent thereunder (including, for the avoidance of doubt, with respect to the conditions to the Offer set forth
in the Con-way Acquisition Agreement) by Borrower which is materially adverse to the Lenders or the Lead Arrangers without the
prior written consent of each Lead Arranger who, together with its affiliates, holds 20% or more of the Commitments under the
Facility (it being understood and agreed that any (a) decrease in the price paid per share in connection with the Con-way
Acquisition of (x) more than 10% or (y) less than 10% if such decrease is not allocated to reduce the aggregate amount
of the Facility, (b) increase in the price paid in connection with the Con-way Acquisition that is not funded with the proceeds
of a substantially concurrent issuance of equity or (c) any waiver or modification of the Minimum Condition (as defined in
the Con-way Acquisition Agreement as in effect on September 9, 2015) shall, in each case, be deemed to be a modification that
is materially adverse to the Lenders);


 


(B)       
(I) the Con-way Specified Representations are true and correct in all material respects and (II) the Con-way Acquisition
Agreement Representations are true and correct in all material respects (except that any Con-way Specified Representations that
are qualified by materiality or in relation to material adverse effect are true and correct in all respects); and


 


(C)       
since September 9, 2015 until the Acceptance Time (as defined in the Con-way Acquisition Agreement on September 9, 2015), there
has not occurred any Effect (as defined in the Con-way Acquisition Agreement on September 9, 2015) that has had or would be reasonably
likely to have, individually or in the aggregate, a Con-way Material Adverse Effect.


 






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(xiv)  
Solvency Certificate. Agent shall have received a duly completed solvency certificate substantially in the form of Exhibit
3.1 hereto.


 


(xv)    
Notice of Borrowing. Agent shall have received a duly completed Notice of Borrowing for the borrowing of Loans on the Closing
Date substantially in the form of Exhibit 2.1(b) hereto and a letter of direction with respect to the disbursement of the
proceeds of such Loan.


 


(xvi)  
Financial Statements. Borrower shall have caused Agent to have received (and Agent hereby acknowledges receipt of, in the
case of the 2012, 2013 and 2014 fiscal year financial statements described in clause (a) and, as to the Fiscal Quarters ending
on March 31, 2015 and June 30, 2015, clause (b)) (a) audited consolidated balance sheets and related consolidated statements
of income, stockholders’ equity and cash flows of Borrower and Con-way for the 2012, 2013 and 2014 fiscal years (or, if
the Closing Date occurs 90 days or more after December 31, 2015, audited consolidated balance sheets and related consolidated
statements of income, stockholders’ equity and cash flows of Borrower and Con-way for the 2013, 2014 and 2015 fiscal years)
and (b) unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and
cash flows of Borrower and Con-way for each subsequent Fiscal Quarter (other than a quarter that is also a fiscal year-end) ended
at least 45 days before the Closing Date.


 


(b)           Payment of Fees. Borrower shall have paid (or caused to be paid) to Agent and Lead Arranger all Fees required to be paid
on or before the Closing Date in the respective amounts specified in Section 2.7, and shall have reimbursed Agent
for all reasonable fees, costs and expenses, including due diligence expenses, syndication expenses, and reasonable fees, disbursements
and other charges of counsel presented at least three (3) Business Days prior to the Closing Date.


 


(c)           Patriot Act. Agent and the Lenders shall have received, at least three business days prior to the Closing Date, from the
Credit Parties prior to the Closing Date all documentation and other information required by Governmental Authorities under applicable
 “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case to the
extent requested by Agent from Borrower in writing at least 10 business days prior to the Closing Date.


 


For
purposes of determining compliance with the conditions specified in this Section 3.1, each Lender 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 the Lenders unless an officer of Agent responsible for the transactions contemplated
by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and,
in the case of the borrowing of Loans, such Lender shall not have made available to Agent such Lender’s ratable portion
of the borrowing of Loans.


 


Notwithstanding
anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable
(including those referred to in clauses (a)(ii)-(vii) of this Section 3.1 related to the perfection of security
interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by (i) the
filing of a UCC financing statement or (ii) the delivery of stock certificates of each Guarantor and each material wholly
owned domestic restricted subsidiary (other than any Guarantor or subsidiary which is a subsidiary of Borrower), then the provision
and/or perfection of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of
the Commitments on the Closing Date but, to the extent otherwise required hereunder, shall be delivered after the Closing Date
in accordance with Section 6.14.


 






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4.            REPRESENTATIONS AND WARRANTIES


 


To
induce Lenders to make the Loans, the Credit Parties executing this Agreement make the following representations and warranties
on the Closing Date to Agent and each Lender with respect to itself and its Restricted Subsidiaries, each and all of which shall
survive the execution and delivery of this Agreement.


 


4.1             
Corporate Existence; Compliance with Law. Each Credit Party (a) is a corporation, limited liability company, limited
partnership or other entity duly organized or incorporated, as applicable, validly existing and is in good standing (to the extent
such concept is applicable in the relevant jurisdiction) under the laws of its respective jurisdiction of incorporation or organization;
(b) is duly qualified to conduct business and is in good standing (to the extent such concept is applicable in the relevant
jurisdiction) in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or be in good standing would not reasonably be expected to have a Material
Adverse Effect; (c) has the requisite power and authority, and the legal right to own and operate in all material respects
its properties, to lease the property it operates under lease and to conduct its business in all material respects as now, heretofore
and proposed to be conducted and has the requisite power and authority and the legal right to pledge, mortgage, hypothecate or
otherwise encumber all material Collateral; (d) has all material licenses, permits, consents or approvals from or by, and
has made all material filings with, and has given all material notices to, all Governmental Authorities having jurisdiction over
such Credit Party, to the extent required for such ownership, operation and conduct or other organizational documents; and (e) is
in compliance in material respects with all applicable provisions of law except where the failure to be in compliance would not
reasonably be expected to have a Material Adverse Effect.


 


4.2             
Chief Executive Offices; Collateral Locations; FEIN. As of the Closing Date, each Credit Party’s name as it appears
in official filings in its jurisdiction of incorporation or organization, organizational identification number, if any, issued
by its jurisdiction of incorporation or organization and the location of each Credit Party’s chief executive office, principal
place of business or registered office are set forth in Schedule 4.2, and except as set forth on such schedule each Credit
Party has only one jurisdiction of incorporation or organization.


 


4.3             
Corporate Power; Authorization; Enforceable Obligations; No Conflict. The execution, delivery and performance by each Credit
Party of the Loan Documents to which it is a party: (a) are within such Person’s power; (b) have been duly authorized
by all necessary corporate, limited liability company or limited partnership action; (c) do not contravene any provision
of such Person’s charter, bylaws or partnership or operating agreements or other organizational documents, as applicable;
(d) do not violate any material provision of any law or regulation, or any material provision of any order or decree of any
court or Governmental Authority; (e) do not conflict with or result in the breach or termination of, constitute a default
under or accelerate or permit the acceleration of any performance required by, any material indenture, mortgage, deed of trust,
lease, loan agreement or other material instrument to which such Person is a party or by which such Person or any of its property
is bound; (f) do not result in the creation or imposition of any Lien upon any of the property of such Person other than
(i) those in favor of Agent, on behalf of itself and Lenders, pursuant to the Loan Documents and (ii) the filings referred
to in Section 4.21; and (g) do not require the consent or approval of any Governmental Authority or any other
Person, other than those which will have been duly obtained, made or complied with prior to the Closing Date. Each of the Loan
Documents have been duly executed and delivered by each Credit Party that is a party thereto and, each such Loan Document constitutes
a legal, valid and binding obligation of such Credit Party enforceable against it in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).


 






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4.4             
Financial Statements. All Financial Statements concerning Borrower and its consolidated Subsidiaries that are referred
to in clause (a) below have been prepared in accordance with GAAP (as
in effect at the time delivered) consistently applied throughout the periods covered (except as disclosed therein and
except, with respect to unaudited Financial Statements, for the absence of footnotes and normal year-end audit adjustments) and
fairly present, in all material respects, the financial position of the Persons covered thereby as at the dates thereof and the
results of their operations and cash flows for the periods then ended.


 


(a)           Financial Statements. The audited consolidated balance sheet at December 31, 2014 and the related statement of income and
cash flows of Borrower and its consolidated Subsidiaries certified by KPMG LLP for the Fiscal Year then ended and audited consolidated
balance sheet at December 31, 2012, December 31, 2013 and December 31 2014 have been delivered to Agent on or prior to the Closing
Date.


 


(b)           [Reserved].


 


(c)           [Reserved].


 


(d)           Undisclosed Liabilities; Burdensome Restrictions. None of Borrower or its Restricted Subsidiaries has any material Guarantied
Obligations, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency
swap or exchange transaction or other obligation in respect of derivatives, that are required by GAAP to be reflected or reserved
against on a balance sheet of Borrower and its Restricted Subsidiaries other than (i) as are reflected in the financial statements
described in clause (a) hereof (including the footnotes thereto) and (ii) as otherwise permitted hereunder. No
Credit Party is a party or is subject to any contract, agreement or charter restriction that would reasonably be expected to have
a Material Adverse Effect.


 


4.5             
Material Adverse Effect. Since December 31, 2014, no event has occurred, that alone or together with other events, has
had a Material Adverse Effect.


 


4.6             
Ownership of Property; Liens. As of the Closing Date, the Real Property listed in Schedule 4.6 constitutes all of
the real property owned, leased or subleased by any Credit Party. Each Credit Party owns fee simple title to all of its owned
material Real Property and valid leasehold interests in all of its leased material Real Property, subject in each case to Agent’s
Liens and Permitted Liens. Each Credit Party is the sole legal and beneficial owner of and has good and marketable title (subject
to Agent’s Liens and Permitted Liens) to each component of the Collateral. Each Credit Party also has title to, or valid
leasehold interests in, all of its other personal property and assets, in each case, material in the ordinary course of their
respective businesses or where failure to so own or possess would not reasonably be expected to have a Material Adverse Effect.
As of the Closing Date, none of the Real Property and assets of any Credit Party are subject to any Liens other than Permitted
Liens.


 


4.7             
Labor Matters. Except as set forth on Schedule 4.7 or as would not reasonably be expected to result in a Material
Adverse Effect, to the knowledge of each Credit Party (a) no strikes or other labor disputes against any Credit Party or
any Restricted Subsidiary of any Credit Party are pending or, to the knowledge of any Credit Party, threatened; (b) hours
worked by and payment made to employees of each Credit Party and each Restricted Subsidiary of any Credit Party comply with the
Fair Labor Standards Act and each other federal, state, local or foreign law applicable to such matters; (c) all payments
due from any Credit Party or any Restricted Subsidiary of any Credit Party for employee health and welfare insurance have been
paid or accrued as a liability on the books of such Credit Party or such Restricted Subsidiary; (d) there is no organizing
activity involving any Credit Party or any Restricted Subsidiary of any Credit Party pending or threatened by any labor union
or group of employees; (e) there are no representation proceedings pending or, to the knowledge of any Credit Party, threatened
with the National Labor Relations Board or any other applicable labor relations board, and no labor organization or group of employees
of any Credit Party or any Restricted Subsidiary of any Credit Party has made a pending demand for recognition; and (f) there
are no complaints or charges against any Credit Party or any Restricted Subsidiary of any Credit Party pending or, to the knowledge
of any Credit Party, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection
with, or otherwise relating to the employment or termination of employment by any Credit Party or any Restricted Subsidiary of
any Credit Party of any individual.


 






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4.8             
Subsidiaries and Joint Ventures. As of the Closing Date, (a) Schedule 4.8 sets forth the name and jurisdiction
of incorporation of each direct Subsidiary and Joint Venture of each Credit Party and, as to each such direct Subsidiary and Joint
Venture, the percentage of each class of Capital Stock owned by any Credit Party and (b) there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors
and directors’ qualifying shares) of any nature relating to any Capital Stock of Borrower or any of their respective Subsidiaries.


 


4.9             
Investment Company Act. No Credit Party is an “investment company” or a company controlled by an “investment
company,” as such terms are defined in the Investment Company Act of 1940 as amended.


 


4.10           
Margin Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions
of Regulation T, Regulation U (“Regulation U”) or Regulation X of the Federal Reserve Board. 


 


4.11           
Taxes/Other. Except as would not reasonably be expected to result in a Material Adverse Effect, (i) all income and other
Tax returns, reports, and statements, including information returns, required by any Governmental Authority to have been filed
by any Credit Party or any Restricted Subsidiary have been filed (after giving effect to any extensions) with the appropriate
Governmental Authority, and (ii) all Taxes have been paid on or prior to the due date therefor, excluding Taxes or other amounts
being contested in accordance with Section 6.2(b).


 


4.12           
ERISA.


 


(a)           Borrower has previously delivered or made available to Agent all Pension Plans (including Title IV Plans and Multiemployer Plans)
and all Retiree Welfare Plans, as now in effect. Except with respect to Multiemployer Plans, and except as would not reasonably
be expected to have a Material Adverse Effect, each Qualified Plan has either received a favorable determination letter from the
IRS or may rely on a favorable opinion letter issued by the IRS, and to the knowledge of any Credit Party nothing has occurred
that would be reasonably expected to cause the loss of such qualification or tax-exempt status. Each Pension Plan, to the knowledge
of Borrower, is in compliance in all respects with the applicable provisions of ERISA, the IRC and its terms, including the timely
filing of all reports required under the IRC or ERISA except where the failure to comply would not reasonably be expected to have
a Material Adverse Effect. Except as has not resulted, or would not reasonably be expected to result, in an ERISA Lien (whether
or not perfected), neither any Credit Party nor ERISA Affiliate has failed to make any material contribution or pay any material
amount due as required by either Section 412 of the IRC or Section 302 of ERISA or the terms of any such Pension Plan.
No “prohibited transaction,” as defined in Section 406 of ERISA and Section 4975 of the IRC, has occurred
with respect to any Pension Plan that would subject any Credit Party to a material tax on prohibited transactions imposed by Section 502(i)
of ERISA or Section 4975 of the IRC.


 






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(b)           Except as would not reasonably be expected to have a Material Adverse Effect: (i) no Title IV Plan is or is reasonably expected
to be in “at risk” status (within the meaning of Section 430 of the IRC or Section 303 of ERISA); (ii) no
ERISA Event has occurred or to the knowledge of any Credit Party is reasonably expected to occur; (iii) there are no pending,
or to the knowledge of any Credit Party, threatened material claims (other than claims for benefits in the normal course), sanctions,
actions or lawsuits, asserted or instituted against any Plan or any Person as fiduciary or sponsor of any Plan; (iv) no Credit
Party or ERISA Affiliate has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal
from a Multiemployer Plan; and (v) within the last five years no Title IV Plan of any Credit Party or ERISA Affiliate has
been terminated, whether or not in a “standard termination” as that term is used in Section 4041 of ERISA, nor
has any Title IV Plan of any Credit Party or any ERISA Affiliate (determined at any time within the last five years) with Unfunded
Pension Liabilities been transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14)
of ERISA) of any Credit Party or ERISA Affiliate (determined at such time).


 


(c)           Except as would not reasonably be expected to result in a Material Adverse Effect, each Foreign Pension Plan is in compliance
in all material respects with all requirements of law applicable thereto and the respective requirements of the governing documents
for such plan. With respect to each Foreign Pension Plan, neither any Credit Party nor any Subsidiaries or any of their respective
directors, officers, employees or agents has engaged in a transaction which would subject any Credit Party or any Subsidiary,
directly or indirectly, to a tax or civil penalty which would reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect. With respect to each Foreign Pension Plan, except as would not reasonably be expected to result
in a Material Adverse Effect, reserves have been established in the financial statements furnished to Lenders in respect of any
unfunded liabilities in accordance with applicable law and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The aggregate unfunded liabilities
with respect to such Foreign Pension Plans would not reasonably be expected to result individually or in the aggregate in a Material
Adverse Effect.


 


4.13          
No Litigation. Except as set forth on Schedule 4.13, no action, claim, lawsuit, demand, or proceeding is now pending
or, to the knowledge of any Credit Party, threatened in writing against any Credit Party or any Restricted Subsidiary of any Credit
Party, before any Governmental Authority or before any arbitrator or panel of arbitrators (collectively, “Litigation”),
(a) on the Closing Date that challenges such Credit Party’s right or power to enter into or perform any of its obligations
under the Loan Documents to which it is a party, or the validity or enforceability of any Loan Document or any action taken thereunder,
or (b) that would reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 4.13,
as of the Closing Date there is no Litigation pending or threatened in writing, that would reasonably be expected to have a Material
Adverse Effect.


 


4.14           
[Reserved]. 


 


4.15           
Intellectual Property. As of the Closing Date, each Credit Party owns or has rights to use all Intellectual Property necessary
to continue to conduct its business as now conducted by it and material to such Credit Party’s business, taken as a whole.
Each issued or applied for Patent, registered or applied for Trademark, and registered or applied for Copyright owned by any Credit
Party on the Closing Date is listed, together with application or registration numbers, as applicable, on Schedule 4.15.
To Borrower’s knowledge, as of the Closing Date, each Credit Party conducts its business and affairs without infringement
of any Intellectual Property of any other Person that would reasonably be expected to result in a Material Adverse Effect. Except
as set forth in Schedule 4.15, on the Closing Date no Credit Party is aware of any material infringement claim by any other
Person that is pending or threatened in writing against any Credit Party with respect to any material Intellectual Property owned
by such Credit Party on the Closing Date.


 






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4.16           
Full Disclosure. No information contained in this Agreement, any of the other Loan Documents or Financial Statements or
other written reports from time to time prepared by any Credit Party (other than the projections referred to below, forward-looking
information and information of a general economic or industry nature) and delivered hereunder or under any other Loan Document
(in each as modified or supplemented by other information so furnished and taken as a whole) by or on behalf of any Credit Party
to Agent or any Lender pursuant to the terms of this Agreement contains any untrue statement of a material fact or omits to state
a material fact necessary to make the statements contained herein or therein not materially misleading in light of the circumstances
under which they were made (after giving effect to all supplements and updates thereto).


 


4.17           
Environmental Matters.


 


(a)           Except as set forth in Schedule 4.17 or would not reasonably be expected to have a Material Adverse Effect, as of the Closing
Date: (i) the Real Property of each Credit Party and each of their Restricted Subsidiaries is free of contamination from
any Hazardous Material; (ii) no Credit Party nor any Restricted Subsidiary of any Credit Party has caused or knowingly allowed
to occur any Release of Hazardous Materials on, at, in, under, above, to, from or about any of its Real Property; (iii) the
Credit Parties and each of their Restricted Subsidiaries are and, except for matters which have been fully resolved, have, for
the past three (3) years, been in compliance with all Environmental Laws; (iv) the Credit Parties and each of their Restricted
Subsidiaries (A) have obtained, (B) possess as valid, uncontested and in good standing, and (C) are in compliance
with all Environmental Permits required by Environmental Laws for the operation of their respective businesses as presently conducted;
(v) there is no Litigation by a Governmental Authority arising under or related to any Environmental Laws, Environmental
Permits or Hazardous Material that seeks damages, penalties, fines, costs or expenses from, or that alleges criminal misconduct
by, any Credit Party or any Restricted Subsidiary of any Credit Party; (vi) except for matters which have been fully resolved,
no written notice has been received by any Credit Party or any Restricted Subsidiary of any Credit Party identifying it as a “potentially
responsible party” or requesting information under CERCLA or analogous state statutes; and (vii) the Credit Parties
and each of their Restricted Subsidiaries have provided to Agent copies of existing material environmental reports, reviews and
audits relating to actual or potential material Environmental Liabilities and relating to any Credit Party or any Restricted Subsidiary
of any Credit Party.


 


(b)           Each Credit Party hereby acknowledges and agrees that none of Agent or any of its officers, directors, employees, attorneys, agents
and representatives (i) is now, or has ever been, in control of any of the Real Property or any Credit Party’s or any
Restricted Subsidiary of any Credit Party’s affairs, and (ii) has the capacity or the authority through the provisions
of the Loan Documents or otherwise to direct or influence any (A) Credit Party’s or any Restricted Subsidiary of any
Credit Party’s conduct with respect to the ownership, operation or management of any of its Real Property, (B) undertaking,
work or task performed by any employee, agent or contractor of any Credit Party or any Restricted Subsidiary of any Credit Party
or the manner in which such undertaking, work or task may be carried out or performed, or (C) compliance of any Credit Party
or any Restricted Subsidiary of any Credit Party with Environmental Laws or Environmental Permits.


 


4.18           
Insurance. Borrower has previously delivered or made available to Agent lists of all material insurance policies of any
nature maintained, as of the Closing Date, for current occurrences by each Credit Party and each Restricted Subsidiary.


 


4.19           
[Reserved].


 






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4.20           
[Reserved]. 


 


4.21           
Creation and Perfection of Security Interests. Once executed and delivered, the Security Agreement will create a valid
and enforceable security interest in the Collateral described therein, subject to any exceptions contained therein. In the case
of the portion of the pledged Collateral consisting of the certificated securities represented by the certificates described in
the Security Agreement, when stock certificates representing such pledged Collateral are delivered to Agent and such stock certificates
are held in New York, and in the case of the other Collateral described in the Security Agreement, when UCC financing statements
in appropriate form are filed in the appropriate UCC filing offices, the Security Agreement shall constitute the creation of a
perfected Lien under the Code (to the extent a Lien on such Collateral can be perfected by such possession or filings) on, and
security interest in, all right, title and interest of the Credit Parties signatory to the Security Agreement in such pledged
Collateral and other Collateral, as security for the Obligations.


 


4.22           
Solvency. Immediately after giving effect to the disbursement of proceeds of the Loans pursuant to the instructions of
Borrower, and the payment and accrual of all transaction costs in connection with the foregoing, Borrower and its Subsidiaries,
taken as a whole on a consolidated basis, are Solvent.


 


4.23           
Economic Sanctions and Anti-Money Laundering. Each Credit Party and each Subsidiary of each Credit Party is in compliance
in all material respects with all United States economic sanctions, laws, executive orders, and implementing regulations as promulgated
by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all applicable
anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to
it. No Credit Party and no Subsidiary of a Credit Party (a) is a Person designated by the United States government on the
list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a United States
Person cannot deal with or otherwise engage in business transactions, (b) is a Person who is otherwise the target of United
States economic sanctions laws such that a United States Person cannot deal or otherwise engage in business transactions with
such Person or (c) is controlled by (including, without limitation, by virtue of such Person being a director or owning voting
shares or interests), or acts, directly or indirectly, for or on behalf of, any Person on the SDN List or a foreign government
that is the target of United States economic sanctions prohibitions such that the entry into, or performance under, this Agreement
or any other Loan Document would be prohibited under United States law.


 


4.24           
Economic Sanctions, FCPA, Patriot Act; Use of Proceeds. Each Credit Party and each of its Subsidiaries is in compliance
with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto,
(b) the USA PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, the “Patriot
Act”), and (c) other federal or state laws relating to anti-money laundering rules and regulations. No part of the
proceeds of any Loan will be used directly or indirectly for any payments to any government official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the FCPA.  Borrower will not, directly or to
the knowledge of Borrower, indirectly, use the proceeds of any Loan to fund any activities or business of or with any Person,
or in any country or territory, that, at the time of such funding, is, or whose government is, the target of United States economic
sanctions laws.


 


4.25           
[Reserved]. 


 


4.26           
Status as Senior Debt. The Obligations in respect of the Loans are “senior debt” or “designated senior
debt” (or any comparable term) under, and as may be defined in, any indenture or document governing any applicable Indebtedness
that is subordinated in right of payment to the Loans.


 






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4.27           
FCPA and Related. No Credit Party nor any of its Subsidiaries nor any director, officer or, to the knowledge of such Credit
Party, agent or employee of such Credit Party or Subsidiary, is aware of or has taken any action, directly or indirectly, that
would result in a material violation by such persons of the FCPA, including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
or approval of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of
value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office in contravention of the FCPA. Each Credit Party, and its
Subsidiaries have conducted their businesses in compliance with, in all material respects, the FCPA and have established, and
maintains, and will continue to maintain, policies and procedures designed to promote and achieve compliance with such laws and
with the representation and warranty contained herein.


 


5.              FINANCIAL STATEMENTS AND INFORMATION


 


5.1             
Financial Reports and Notices. Each Credit Party executing this Agreement hereby agrees that from and after the Closing
Date and until the Termination Date, it shall deliver to Agent or to Agent for distribution to Lenders, as required, the following
Financial Statements, notices and other information at the times, to the Persons and in the manner set forth below:


 


(a)            Compliance Certificate. To Agent, concurrently with the delivery of any Financial Statements delivered pursuant to Section 5.1(b)
or 5.1(c), a completed Compliance Certificate.


 


(b)            Quarterly Financials. To Agent, within forty-five (45) days after the end of the first three Fiscal Quarters of each Fiscal
Year, consolidated financial information regarding Borrower and its consolidated Restricted Subsidiaries, certified by a Financial
Officer of Borrower, including (i) unaudited balance sheets as of the close of such Fiscal Quarter and (ii) unaudited
statements of income and cash flows for such Fiscal Quarter, in each case setting forth in comparative form the figures for the
corresponding period in the prior year and the related statements of income and cash flow for that portion of the Fiscal Year
ending as of the close of such Fiscal Quarter, all prepared in accordance with GAAP (subject to absence of footnotes and normal
year-end adjustments). In addition, Borrower shall deliver to Agent and Lenders, within forty-five (45) days after the end of
each of the first three Fiscal Quarters of each Fiscal Year, a management discussion and analysis that includes a comparison of
performance for that Fiscal Quarter to the corresponding period in the prior year.


 


(c)            Annual Audited Financials. To Agent, within ninety (90) days after the end of each Fiscal Year, audited Financial Statements
for Borrower and its consolidated Restricted Subsidiaries on a consolidated basis, consisting of balance sheets and statements
of income and retained earnings and cash flows, setting forth in comparative form in each case the figures for the previous Fiscal
Year, which Financial Statements shall be prepared in accordance with GAAP (except as approved by accountants or officers), as
the case may be, and disclosed in reasonable detail therein, including the economic impact of such exception, and certified without
qualification as to going-concern or qualification arising out of the scope of the audit, by KPMG LLP, another independent certified
public accounting firm of national standing or a firm otherwise reasonably acceptable to Agent. In addition, Borrower shall deliver
to Agent and Lenders, together with such audited Financial Statements delivered pursuant to this clause, a management discussion
and analysis that includes a comparison of performance for that Fiscal Year to the corresponding period in the prior year.


 


(d)            Simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (b) and (c)
above, to the extent that the Unrestricted Subsidiaries of Borrower, as of the last day of the applicable fiscal period, taken
in the aggregate, constituted a Significant Subsidiary, the related consolidating financial statements reflecting adjustments
necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.


 






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(e)            Information required to be delivered pursuant to this Section 5.1 may be delivered by electronic communication pursuant
to procedures approved hereunder.


 


(f)             Default Notices. To Agent and Lenders, as soon as practicable, and in any event within five (5) Business Days after a Financial
Officer of Borrower has actual knowledge of the existence of any Default, or Event of Default, telephonic or fax or electronic
notice specifying the nature of such Default or Event of Default, including the anticipated effect thereof, which notice, if given
telephonically, shall be promptly confirmed in writing on the next Business Day.


 


(g)            [reserved].


 


(h)            Litigation. To Agent in writing, promptly upon learning thereof, notice of any Litigation commenced or threatened in writing
against any Credit Party that (i) would reasonably be expected to result in damages in excess of $90,000,000 (net of insurance
coverages for such damages), (ii) seeks injunctive relief which, if granted, would reasonably be expected to have a Material
Adverse Effect or (iii) would otherwise reasonably be expected to have a Material Adverse Effect.


 


(i)             [Reserved].


 


(j)             Other Documents. To Agent for distribution to Lenders, such other financial and other information respecting any Credit
Party’s or any Subsidiary of any Credit Party’s business or financial condition as Agent shall from time to time reasonably
request.


 


(k)            [Reserved].


 


(l)             Environmental Matters. To Agent, notice of any matter under any Environmental Law that has resulted or is reasonably expected
to result in a Material Adverse Effect, including arising out of or resulting from the commencement of, or any material adverse
development in, any litigation or proceeding affecting any Credit Party or any Subsidiary and arising under any Environmental
Law.


 


(m)           ERISA/Pension Matters. To Agent, notice of the occurrence of any ERISA Event that has resulted or would reasonably be expected
to result in a liability of any Credit Party and the Restricted Subsidiaries in an aggregate amount exceeding $90,000,000 and
a statement of a Financial Officer of Borrower setting forth details as to such ERISA Event and the action, if any, that Borrower
proposes to take with respect thereto and, upon Agent’s request, copies of each Schedule SB (Actuarial Information) to the
Annual Report (Form 5500 Series) with respect to each Title IV Plan.


 


(n)            Change of Name; etc. Borrower agrees to notify Agent in writing, at the time of delivery of any Compliance Certificate,
of any change in (i) the legal name of any Credit Party, (ii) the identity or type of organization or corporate structure
of such Credit Party, or (iii) the jurisdiction of organization of such Credit Party.


 






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6.             AFFIRMATIVE COVENANTS


 


Each
Credit Party executing this Agreement agrees as to itself and its Restricted Subsidiaries that from and after the Closing Date
and until the Termination Date:


 


6.1             
Maintenance of Existence and Conduct of Business. Except as otherwise permitted under Section 7.8, each Credit
Party shall, and shall cause each Restricted Subsidiary to, do or cause to be done all things necessary to (a) preserve and
keep in full force and effect (i) its corporate existence (except, as to Persons other than Credit Parties, where the failure
to do so would not reasonably be expected to result in a Material Adverse Effect) and (ii) its material rights and franchises;
(b) continue to conduct its business substantially as now conducted or as otherwise permitted hereunder; and (c) at
all times maintain, preserve and protect all of its assets and properties used or useful in the conduct of its business and keep
the same in good repair, working order and condition in all material respects (taking into consideration ordinary wear and tear
and except for casualties and condemnations) and from time to time make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry practices, except, in each case, referred to in this Section 6.1(a)(ii),
(b) and (c) where the failure to do so would not reasonably be expected to have a Material Adverse Effect.


 


6.2             
Payment of Charges and Taxes. 


 


(a)             Subject to Section 6.2(b), each Credit Party shall pay and discharge or cause to be paid and discharged promptly all
material Charges, Taxes and claims payable by it, including: (i) material Charges and Taxes imposed upon it, its income and
profits, or any of its property (real, personal or mixed) and all material Charges with respect to Tax, social security, employer
contributions and unemployment withholding with respect to its employees and (ii) lawful material claims for labor, materials,
supplies and services or otherwise, in each case, before any thereof shall become past due, in each case, where the non-payment
of such Charge, Tax or claim could give rise to a material Lien (other than Permitted Liens) or a Material Adverse Effect.


 


(b)             Each Credit Party may in good faith contest, by appropriate proceedings, the validity or amount of any Charges, Taxes or claims
described in Section 6.2(a) and not pay or discharge such Charges, Taxes or claims while so contested; provided,
that (i) adequate reserves with respect to such contest are maintained on the books of such Credit Party, in accordance with
GAAP and (ii) the failure to make such payment would not reasonably be expected to result in a Material Adverse Effect.


 


6.3             
Books and Records. Each Credit Party shall keep adequate books and records with respect to its business activities in which
proper entries, reflecting all material financial transactions, are made in accordance with GAAP and on a basis consistent with
the Financial Statements delivered pursuant to Section 4.4.


 


6.4             
Insurance; Damage to or Destruction of Collateral. 


 


(a)             Borrower will, and will cause each Restricted Subsidiary to, maintain, with financially sound and reputable insurance companies
insurance in such amounts and against such risks, as are customarily maintained by similarly situated companies engaged in the
same or similar businesses operating in the same or similar locations (after giving effect to any self-insurance reasonable and
customary for similarly situated companies). Borrower will furnish to Agent, upon written request, information in reasonable detail
as to the insurance so maintained.


 


6.5             
Compliance with Laws. Each Credit Party shall, and shall cause each Restricted Subsidiary to, comply in all material respects
with all applicable provisions of law of any Governmental Authority, unless such failure of compliance would not reasonably be
expected to result in a Material Adverse Effect or a material adverse effect on the specific property affected by such non-compliance.


 


6.6             
PATRIOT Act. No Credit Party or any Subsidiary thereof is in breach of or is the subject of any action or investigation
under the PATRIOT Act.


 






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6.7             
Intellectual Property. Each Credit Party shall, and shall cause each Restricted Subsidiary to, (a) conduct its business
without knowingly infringing any Intellectual Property of any other Person which infringement would reasonably be expected to
result in a Material Adverse Effect, and (b) comply in all material respects with the obligations under its material Intellectual
Property licenses.


 


6.8             
Environmental Matters. Except where the failure to do so would not result in a Material Adverse Effect, each Credit Party
shall, and shall cause the Restricted Subsidiaries to:


 


(a)            comply in all material respects with, and use commercially reasonable efforts to ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply in all material respects with
and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all Environmental Permits, except in each case, where the failure to do so would not reasonably
be expected to have a Material Adverse Effect, and


 


(b)            conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.


 


6.9             
Ratings. Borrower shall use commercially reasonable efforts (x) to cause the Facility and
the Term B-1 Facility to be continuously rated by S&P and Moody’s, and (y) to maintain a corporate
rating from S&P and a corporate family rating from Moody’s, in each case in respect of Borrower.


 


6.10           
Further Assurances. 


 


(a)           Each Credit Party executing this Agreement agrees that it shall and shall cause each applicable Subsidiary to, at such Credit
Party’s reasonable expense and upon the reasonable request of Agent, duly execute and deliver, or cause to be duly executed
and delivered, to Agent such further instruments and take all such further actions (including the authorization of filing and
recording of Code financing statements, fixture filings, and other documents, in each case to the extent reasonably requested
by Agent), which may be required under any applicable law, or which Agent may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created by the Collateral Documents or
the validity or priority of any such Liens (subject to Permitted Liens), all at the reasonable expense of the Credit Parties and
to the extent required by the Loan Documents.


 


(b)           In the case of any Material Real Property, each Credit Party shall provide Agent with Mortgages with respect to such Material
Real Property within 90 days (or such longer period as may be reasonably required with diligence and dispatch for the applicable
Credit Party to secure compliance with the provisions of subdivisions (ii), (iii) and/or (iv) below not to exceed an additional
45 days in the aggregate, unless further extended by Agent as Agent may agree in its sole discretion) of (x) the date hereof with
respect to all Material Real Property on Schedule 6.10(b) which lists completely and correctly each Material Real Property owned
by Borrower or GrantorGuarantor
on the date hereof, and (y) the acquisition of Material Real Property which is acquired after the date hereof, in each
case together with:


 


(i)          
evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing
or recording in all filing or recording offices that Agent may deem reasonably necessary or desirable in order to create a valid
and subsisting perfected Lien on the property and/or rights described therein in favor of Agent for the benefit of the Secured
Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory
to Agent;


 






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(ii)        
fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other
form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements
available in the applicable jurisdiction and in amount, reasonably acceptable to Agent (not to exceed the value of the real properties
covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to Agent, insuring the Mortgages to
be valid subsisting Liens on the property described therein, subject only to Permitted Liens, and providing for such other affirmative
insurance (including endorsements for future advances under the Loan Documents) and such coinsurance and direct access reinsurance
as Agent may reasonably request and is available in the applicable jurisdiction, provided, however, that zoning
reports from nationally recognized provider may be substituted for any zoning endorsement;


 


(iii)      
(A) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have
been paid, dated no more than 90 days before the date of acquisition of the property by the applicable Credit Party, certified
to Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to Agent by a land surveyor duly registered
and licensed in the states in which the property described in such surveys is located and reasonably acceptable to Agent, showing
all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way,
building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on
to such property, and other defects, other than encroachments and other defects reasonably acceptable to Agent, or (B) existing
surveys in lieu thereof so long as each such survey is accompanied by an affidavit of no material change, reasonably satisfactory
to Agent and sufficient for the applicable title insurer to eliminate all standard survey-related exceptions to the applicable
Mortgage Policy;


 


(iv)      
(A) evidence as to whether each Material Real Property that is subject
to a Mortgage (a “Mortgaged Property”) is
in an area designated by the Federal Emergency Management Agency as having special flood hazard (a “Flood Hazard Property”)
pursuant to a standard “life-of-loan” flood hazard determination form ordered and received by Agent (together
with a notice about special flood hazard area status and flood disaster assistance duly executed by Borrower and each Credit Party
relating thereto), and (B) if such Mortgaged Property is a Flood Hazard Property, a declaration page confirming
that flood insurance has been issued, or such other evidence of flood insurance satisfactory to Agent, in each case sufficient
to comply with the Flood Insurance Laws;


 


(v)        
opinions of local counsel for the Credit Parties in states in which the real properties are located, with respect to the enforceability
and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to Agent; and


 


(vi)      
such other reasonably satisfactory evidence that all other actions that Agent may reasonably deem necessary or desirable in order
to create valid and subsisting Liens on the property described in the Mortgages has been taken.


 


(c)           Notwithstanding anything to the contrary contained herein, Borrower nor any Subsidiary of Borrower shall be required to execute
and deliver any joinder agreement, Collateral Document or any other document or grant a Lien in any Capital Stock or other property
held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate
benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal
capacity of Borrower or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition
or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other
matters is unreasonably burdensome in relation to the benefits to the Lenders of Borrower’s or such Subsidiary’s guaranty
or security or (D) in the case of Con-way or any Subsidiary of Con-way, if the Con-way Existing Indebtedness is outstanding,
would result in the breach of, or require the equal and ratable securing of, such outstanding Con-way Existing Indebtedness or
the documents governing such Con-way Existing Indebtedness (as in effect on the Closing Date)


 






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(d)           In each jurisdiction in which there is a mortgage recording tax, intangible tax or other tax, levy, charge or assessment imposed
with respect to the delivery or recordation of any Mortgage based upon the amount secured thereby, each such Mortgage shall not
secure the amount of Indebtedness under this Agreement, but shall expressly state that the maximum amount secured thereby shall
be an amount equal to the fair market value of the respective Material Real Property as determined hereunder.


 


(e)           Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower and the Guarantors shall not be required
to amend, modify, or otherwise revise the Mortgage relating to the property owned thereby and located at 2220 Claremont Court,
Hayward, CA, to update title or obtain any title policy endorsement, or to take any other step with respect to such property described
in Section 6.10(b) above or otherwise, to the extent that the Borrower reasonably concludes that any such amendment, modification,
revision or other step described herein cannot be obtained or completed in spite of the Borrower’s commercially reasonable
efforts, and the Agent and Lenders hereby acknowledge that, as of the Amendment No. 1 Closing Date, the Borrower has made such
determination. In addition, the Borrower and the Guarantors shall not be deemed to be in breach of any representation, warranty,
covenant, or other provision of this Agreement or any other Loan Document by virtue of any failure to grant or maintain a perfected
lien on such property.


 


6.11           
ERISA Matters. Each Credit Party executing this Agreement agrees that it shall and shall cause each other Credit Party
and each Restricted Subsidiary to timely make all contributions, pay all amounts due, and otherwise perform such actions necessary
to prevent the imposition of any Liens under ERISA or Section 412 of the IRC (each an “ERISA Lien”).


 


6.12           
Future Guarantors. 


 


(a)           Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary or at any
time a Subsidiary becomes a Restricted Subsidiary, Borrower shall notify Agent of such event and, promptly thereafter (and in
any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an
Excluded Subsidiary to deliver to Agent (A) a supplement to the Security Agreement substantially in the form attached hereto as
Exhibit 2 to the Security Agreement, (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a) and (C)
a supplemental joinder to each Intercreditor Agreement, (ii) with respect to all new Restricted Subsidiaries that are directly
owned in whole or in part by a Credit Party, cause such Credit Party to provide to Agent a supplement to the Security Agreement
providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary,
sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary
and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such
Capital Stock does not constitute Excluded Property), together with appropriate certificates and powers, in form and substance
reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation
which is reasonably requested by Agent in connection with the foregoing clauses (i) and (ii).


 






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(b)           Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of Borrower shall be required to
execute and deliver any supplemental guarantee, Collateral Document or any other document or grant a Lien in any Capital Stock
or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance,
corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within
the legal capacity of Borrower or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any
legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal
limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of Borrower’s or such
Subsidiary’s guaranty or security as reasonably determined by Borrower and Agent or (D) is Excluded Property or Excluded
Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms
of the Collateral Documents.


 


6.13           
Access. Each Credit Party shall, during normal business hours, from time to time upon reasonable notice as frequently as
Agent reasonably determines to be appropriate: (a) provide Agent, Lenders (coordinated through Agent) and any of their representatives
and designees access to its properties, facilities, advisors, officers and employees, (b) permit Agent, Lenders and any of
their officers, employees and agents, to inspect, audit and make extracts from any Credit Party’s books and records, and
(c) permit Agent, Lenders and their representatives and other designees, to inspect, review, evaluate and make test verifications
and counts of the accounts, equipment and other Collateral of any Credit Party; provided, that to the extent that no Event
of Default has occurred and is continuing, Borrower shall only be responsible for the costs of providing such access once per
Fiscal Year. Furthermore, so long as any Event of Default has occurred and is continuing or at any time after all or any portion
of the Obligations hereunder have been declared due and payable pursuant to Section 9.2(b), Borrower shall provide
reasonable assistance to Agent to obtain access, which access shall be coordinated in scope and substance in consultation with
Borrower, to their suppliers and customers.


 


6.14           
Post-Closing Matters. Execute and deliver the documents and complete the tasks set forth on Schedule 6.14, in each
case within the time limits specified on such schedule, as such time limits may be extended from time to time by Agent in its
reasonable discretion.


 


6.15           
Use of Proceeds. All proceeds of the Loans shall be used as provided in Section 2.4.


 


7.              NEGATIVE COVENANTS


 


Each
Credit Party (to the extent applicable as set forth below) executing this Agreement agrees as to itself and its Restricted Subsidiaries
that from and after the Closing Date and until the Termination Date:


 


7.1              
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock. 


 


(a)           (i) Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock; and (ii) Borrower shall not permit any of the
Restricted Subsidiaries (other than any Guarantor) to issue any shares of Preferred Stock; provided, however, that
Borrower and any Guarantor may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and
any Restricted Subsidiary that is not a Guarantor may Incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified
Stock or issue shares of Preferred Stock, in each case if the Fixed Charge Coverage Ratio of Borrower for the most recently ended
four full Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such additional
Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would be no less than 2.00 to 1.00 determined
on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness
had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds
therefrom had occurred at the beginning of such four-quarter period; provided, that the amount of Indebtedness (including
Acquired Indebtedness), Disqualified Stock and Preferred Stock that may be incurred or issued, as applicable, pursuant to the
foregoing by Restricted Subsidiaries that are not Guarantors, together with all Indebtedness, Disqualified Stock or Preferred
Stock Incurred by Restricted Subsidiaries that are not Guarantors pursuant to Section 7.1(b)(xii) and (xvi)(A)
below, together with any Refinancing Indebtedness in respect thereof, shall not exceed, in the aggregate, the greater of $820
million and 60% of Consolidated EBITDA as of the date on which such Indebtedness is Incurred (plus, in the case of any
Refinancing Indebtedness, the Additional Refinancing Amount) (Indebtedness Incurred pursuant to this clause (a), the “Ratio
Debt”).


 






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(b)           The limitations set forth in Section 7.1(a) shall not apply to:


 


(i)          
the Incurrence by Borrower or any Restricted Subsidiary of Indebtedness (including under the ABL Credit Agreement and the issuance
and creation of letters of credit and bankers’ acceptances thereunder) up to an aggregate principal amount outstanding at
the time of Incurrence that, together with the aggregate
principal amount of Indebtedness outstanding under clause (xvii) below at
the time of Incurrence,  does not exceed an
amount equal to (I) the greater of (x) $1,100 million and (y) the Borrowing Base;


 


(ii)        
the Incurrence by Borrower and the other Guarantors of Indebtedness under this Facility and the Con-way
BridgeBilateral Facility (in each case,
including any guarantees of any of the foregoing);


 


(iii)      
Indebtedness, Preferred Stock and Disqualified Stock of Borrower, the Guarantors and their Restricted Subsidiaries (including,
for the avoidance of doubt, Con-way and any Restricted Subsidiary which is a Subsidiary thereof) existing on the Closing Date
(other than Indebtedness described in clauses (i) and (ii) of this Section 7.1(b)) and, if such Indebtedness
is for borrowed money and is in excess of $20,000,000, listed on Schedule 7.1 hereto;


 


(iv)      
Indebtedness (including Capitalized Lease Obligations) Incurred by Borrower or any Restricted Subsidiary, Disqualified Stock issued
by Borrower or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary to finance (whether prior to
or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of property (real or personal)
or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) that, when
aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Stock or Preferred Stock
then outstanding and Incurred pursuant to this clause (iv), together with any Refinancing Indebtedness in respect thereof
Incurred pursuant to clause (xv) below, does not exceed at any one time outstanding the greater of $685 million and 50% of
Consolidated EBITDA as of the date such Indebtedness is Incurred (plus, in the case of any Refinancing Indebtedness, the Additional
Refinancing Amount);


 


(v)        
Indebtedness Incurred by Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters
of credit and bank guarantees issued in the ordinary course of business, including without limitation letters of credit in respect
of workers’ compensation claims, health, disability or other benefits to employees or former employees or their families
or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or
pursuant to the requirements of, environmental law or permits or licenses from governmental authorities, or other Indebtedness
with respect to reimbursement type obligations regarding workers’ compensation claims;


 






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(vi)      
Indebtedness arising from agreements of Borrower or any Restricted Subsidiary providing for indemnification, adjustment of acquisition
or purchase price or similar obligations (including earn-outs), in each case, Incurred or assumed in connection with the Transactions,
any Investments or any acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other
than guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for
the purpose of financing such acquisition;


 


(vii)    
Indebtedness of Borrower to a Restricted Subsidiary, provided that (except in respect of intercompany current liabilities
incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Borrower
and its Subsidiaries) any such Indebtedness owed to a Restricted Subsidiary that is not a Guarantor is subordinated in right of
payment to the Obligations of Borrower under the Loans; provided, further, that any subsequent issuance or transfer of any Capital
Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such Indebtedness (except any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof
upon foreclosure) shall be deemed, in each case, to be an Incurrence of such Indebtedness not permitted by this clause (vii);


 


(viii)  
shares of Preferred Stock of a Restricted Subsidiary issued to Borrower or another Restricted Subsidiary; provided that
any subsequent issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary that holds
such shares of Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares of Preferred Stock (except to Borrower or another Restricted Subsidiary) shall be deemed, in each
case, to be an issuance of shares of Preferred Stock not permitted by this clause (viii);


 


(ix)      
Indebtedness of a Restricted Subsidiary to Borrower or another Restricted Subsidiary; provided that if a Guarantor incurs such
Indebtedness to a Restricted Subsidiary that is not a Guarantor (except in respect of intercompany current liabilities incurred
in the ordinary course of business in connection with the cash management, tax and accounting operations of Borrower and its Subsidiaries),
such Indebtedness is subordinated in right of payment to the Guaranty of such Guarantor; provided, further, that any subsequent
issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary holding such Indebtedness
ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to Borrower or another
Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof upon foreclosure)
shall be deemed, in each case, to be an Incurrence of such Indebtedness not permitted by this clause (ix);


 


(x)        
Hedging Obligations that are not incurred for speculative purposes but (A) for the purpose of fixing or hedging interest
rate risk with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding; (B) for the
purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (C) for the purpose of
fixing or hedging commodity price risk with respect to any commodity purchases or sales and, in each case, extensions or replacements
thereof;


 


(xi)      
obligations (including reimbursement obligations with respect to letters of credit, bank guarantees, warehouse receipts and similar
instruments) in respect of performance, bid, appeal and surety bonds, completion guarantees and similar obligations provided by
Borrower or any Restricted Subsidiary in the ordinary course of business or consistent with past practice or industry practice;


 






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(xii)    
Indebtedness or Disqualified Stock of Borrower or Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary
in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference
of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (xii),
together with any Refinancing Indebtedness in respect thereof incurred pursuant to clause (xv) below, does not exceed at
any one time outstanding the greater of $820 million and 60% of Consolidated EBITDA as of the date such Indebtedness is Incurred
(plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount) (it being understood that any Indebtedness
Incurred pursuant to this clause (xii) shall cease to be deemed Incurred or outstanding for purposes of this clause (xii)
but shall be deemed Incurred for purposes of Section 7.1(a) from and after the first date on which Borrower, or the
Restricted Subsidiary, as the case may be, could have Incurred such Indebtedness under Section 7.1(a) without reliance
upon this clause (xii)); provided, that the amount of Indebtedness, Disqualified Stock and Preferred Stock that may
be Incurred or issued, as applicable, pursuant to this clause (xii) by Restricted Subsidiaries that are not Guarantors, together
with all Indebtedness, Disqualified Stock or Preferred Stock Incurred by Restricted Subsidiaries that are not Guarantors pursuant
to the first paragraph of this covenant or clause (xvi)(A) below, and any Refinancing Indebtedness of Restricted Subsidiaries
that are not Guarantors incurred in respect thereof, shall not exceed, in the aggregate, the greater of $820 million and 60% of
Consolidated EBITDA (plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount);


 


(xiii)  
Indebtedness or Disqualified Stock of Borrower or any Restricted Subsidiary and Preferred Stock of any Restricted Subsidiary in
an aggregate principal amount or liquidation preference at any time outstanding, together with Refinancing Indebtedness in respect
thereof incurred pursuant to clause (xv) hereof, not greater than 100.0% of the net cash proceeds received by Borrower and
the Restricted Subsidiaries since immediately after the Closing Date from the issue or sale of Equity Interests of Borrower or
any direct or indirect parent entity of Borrower (which proceeds are contributed to Borrower or a Restricted Subsidiary) or cash
contributed to the capital of Borrower (in each case other than proceeds of Disqualified Stock or sales of Equity Interests to,
or contributions received from Borrower or any of its Subsidiaries) to the extent such net cash proceeds or cash have not been
applied to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 7.2(b) or
to make Permitted Investments (other than Permitted Investments specified in clauses (1) and (3) of the definition thereof)
(plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount) (it being understood that any Indebtedness
incurred pursuant to this clause (xiii) shall cease to be deemed incurred or outstanding for purposes of this clause (xiii)
but shall be deemed incurred for the purposes of Section 7.1(a) from and after the first date on which Borrower, or
the Restricted Subsidiary, as the case may be, could have incurred such Indebtedness under Section 7.1(a) without
reliance upon this clause (xiii));


 


(xiv)  
any guarantee by Borrower or any Restricted Subsidiary of Indebtedness or other obligations of Borrower or any Restricted Subsidiary
so long as the Incurrence of such Indebtedness Incurred by Borrower or such Restricted Subsidiary is permitted under the terms
of this Agreement; provided that (A) if such Indebtedness is by its express terms subordinated in right of payment
to the Loans or the Guaranty of such Restricted Subsidiary, as applicable, any such guarantee with respect to such Indebtedness
shall be subordinated in right of payment to the Loans or such Guaranty, as applicable, substantially to the same extent as such
Indebtedness is subordinated to the Loans or the Guaranty, as applicable, and (B) if such guarantee is of Indebtedness of
Borrower, such guarantee is Incurred in accordance with, or not in contravention of, Section 6.12 solely to the extent
Section 6.12 is applicable;


 






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(xv)    
the Incurrence by Borrower or any of the Restricted Subsidiaries of Indebtedness or Disqualified Stock, or by any Restricted Subsidiary
of Preferred Stock of a Restricted Subsidiary, that serves to refund, refinance or defease any Indebtedness Incurred or Disqualified
Stock or Preferred Stock issued as permitted under Section 7.1(a) and clauses (i), (ii), (iii), (iv), (xii),
(xiii), (xv), (xvi), (xx) and (xxiv) of this Section 7.1(b) up to the outstanding principal amount (or, if applicable,
the liquidation preference, face amount, or the like) or, if greater, committed amount (only to the extent the committed amount
could have been Incurred on the date of initial Incurrence and was deemed Incurred at such time for the purposes of this Section 7.1)
of such Indebtedness or Disqualified Stock or Preferred Stock, in each case at the time such Indebtedness was Incurred or Disqualified
Stock or Preferred Stock was issued pursuant to Section 7.1(a) or clauses (i), (ii), (iii), (iv), (xii), (xiii),
(xv), (xvi), (xx) and (xxiv) of this Section 7.1(b), or any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, plus any additional Indebtedness, Disqualified
Stock or Preferred Stock Incurred to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance
costs and fees in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior
to its respective maturity; provided, however, that such Refinancing Indebtedness:


 


(A)       
has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the shorter
of (x) the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded,
refinanced or defeased and (y) the Weighted Average Life to Maturity that would result if all payments of principal on the
Indebtedness, Disqualified Stock and Preferred Stock being refunded or refinanced that were due on or after the date that is one
year following the Latest Maturity Date of any Loans then outstanding were instead due on such date;


 


(B)       
to the extent such Refinancing Indebtedness refinances (a) Indebtedness junior in right of payment to the Loans or a Guaranty,
as applicable, such Refinancing Indebtedness is junior in right of payment to the Loans or the Guaranty, as applicable, (b) Disqualified
Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock, (c) Indebtedness secured
by a Lien on the Collateral that is pari passu or junior to the Lien on the Collateral securing the Obligations hereunder,
such Refinancing Indebtedness is secured by a Lien on the Collateral that is pari passu with or junior to the Lien on the
Collateral securing the Obligations hereunder to the same extent as such Indebtedness, and a Senior Representative of such Refinancing
Indebtedness acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions
of ABL Intercreditor Agreement (and the Pari Passu Intercreditor Agreement or the Junior Intercreditor Agreement, as applicable)
and (d) the ABL Facility, the Lien on the Collateral securing such Indebtedness shall have the priorities contemplated by
the ABL Intercreditor Agreement, and a Senior Representative of such Refinancing Indebtedness acting on behalf of the holders
of such Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement; and


 


(C)       
shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Guarantor that refinances Indebtedness of Borrower
or a Guarantor, or (y) Indebtedness of Borrower or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary;


 


(xvi)  
Indebtedness, Disqualified Stock or Preferred Stock of (A) Borrower or any Restricted Subsidiary incurred to finance an acquisition
or (B) Persons that are acquired by Borrower or any Restricted Subsidiary or are merged, consolidated or amalgamated with
or into Borrower or any Restricted Subsidiary in accordance with the terms of this Agreement (so long as such Indebtedness is
not incurred in contemplation of such acquisition, merger, consolidation or amalgamation); provided that after giving effect
to such acquisition or merger, consolidation or amalgamation, either:


 


(A)       
Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in Section 7.1(a); or


 






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(B)       
the Fixed Charge Coverage Ratio of Borrower would be no less than immediately prior to such acquisition or merger, consolidation
or amalgamation;


 


provided,
that the amount of Indebtedness, Disqualified Stock and Preferred Stock that may be Incurred or issued, as applicable, pursuant
to clause (xvi)(A) by Restricted Subsidiaries that are not Guarantors, together with all Indebtedness, Disqualified Stock
or Preferred Stock Incurred by Restricted Subsidiaries that are not Guarantors pursuant the first paragraph of this covenant or
clause (xii) above, together with any Refinancing Indebtedness of Restricted Subsidiaries that are not Guarantors incurred
in respect thereof, shall not exceed, in the aggregate, the greater of $820 million and 60% of Consolidated EBITDA (plus, in the
case of any Refinancing Indebtedness, the Additional Refinancing Amount); provided,
further, that with respect to Indebtedness incurred pursuant to clause (xvi)(A) (and not assumed);


 


(xvii)
     [reserved];


 


(xviii)   Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five
Business Days of its Incurrence;


 


(xix)     
Indebtedness of Borrower or any Restricted Subsidiary supported by a letter of credit or bank guarantee, in a principal amount
not in excess of the stated amount of such letter of credit;


 


(xx)      
Indebtedness of Restricted Subsidiaries of Borrower that are not Guarantors not to exceed at any one time outstanding (together
with any Refinancing Indebtedness of Restricted Subsidiaries that are not Guarantors incurred in respect thereof pursuant to clause (xv)
above) the greater of $410 million or 30% of Consolidated EBITDA as of the date on which such Indebtedness is Incurred (plus,
in the case of any Refinancing Indebtedness, the Additional Refinancing Amount);


 


(xxi)     
Indebtedness of Borrower or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary course of business;


 


(xxii)
     Indebtedness consisting of Indebtedness of Borrower or a Restricted Subsidiary to current or former officers, directors and employees
thereof or any direct or indirect parent thereof, their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of Borrower or any direct or indirect parent of Borrower to the extent described
in Section 7.2(b)(iv);


 


(xxiii)   
Indebtedness in respect of obligations of Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or
services or progress payments in connection with such goods and services; provided that such obligations are incurred in
connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection
with the borrowing of money or any Hedging Obligations; and


 


(xxiv)   
Indebtedness under asset-level financings, Capitalized Lease Obligations and purchase money indebtedness incurred by (1) Norbert
Dentressangle S.A. or any of its Subsidiaries or (2) any Foreign Subsidiary of
Borrower, in each case in the ordinary course of business consistent with past practice; provided that the amount of Indebtedness
outstanding under this Section 7.1(b)(xxiv), together with any Refinancing Indebtedness in respect thereof incurred
pursuant to Section 7.1(b)(xv) shall not exceed, in the aggregate, the greater of $1,025 million and 75% of Consolidated
EBITDA (plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount).;
and


 






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(xxv)
Indebtedness of SpinCo incurred in connection with the Spin Transactions,
provided that such Indebtedness is not of recourse to the Borrower or any Subsidiary of the Borrower, other than SpinCo and its
Subsidiaries.


 


(c)         
For purposes of determining compliance with this Section 7.1:


 


(i)          
 in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria
of more than one of the categories of permitted Indebtedness described in clauses (i) through (xxiv) of Section 7.1(b)
above or is entitled to be Incurred pursuant to Section 7.1(a), then Borrower may, in its sole discretion, classify
or reclassify, or later divide, classify or reclassify (as if Incurred at such later time), such item of Indebtedness, Disqualified
Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 7.1; provided
that Indebtedness outstanding under the ABL Credit Agreement shall be incurred under clause (i) of Section 7.1(b)
above and may not be reclassified and Indebtedness outstanding under the Con-way BridgeBilateral Credit Agreement shall be incurred under clause (ii) of Section 7.1(b) above and may not be reclassified;
and


 


(ii)        
at the time of incurrence, Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the categories
of Indebtedness described in Section 7.1(a) or (i) through (xxiv) of Section 7.1(b) (or any portion thereof)
without giving pro forma effect to the Indebtedness Incurred pursuant to any other clause or paragraph of Section 7.1(a)
(or any portion thereof) when calculating the amount of Indebtedness that may be Incurred pursuant to any such clause or paragraph
(or any portion thereof).


 


(iii)      
in connection with the Incurrence (including with respect to any Incurrence on a revolving basis pursuant to a revolving loan
commitment) of any Indebtedness under Section 7.1(a), clause (i) of Section 7.1(b) or clause (xvi) of Section 7.1(b), Borrower
or the applicable Restricted Subsidiary may, by notice to Agent at any time prior to the actual Incurrence of such Indebtedness
designate such Incurrence as having occurred on the date of such prior notice, and any related subsequent actual Incurrence will
be deemed for all purposes under this Agreement to have been Incurred on the date of such prior notice until such date as such
notice is withdrawn.


 


Accrual
of interest, the accretion of accreted value, the payment of interest or dividends in the form of additional Indebtedness, Disqualified
Stock or Preferred Stock, as applicable, amortization of original issue discount, the accretion of liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will
not be deemed to be an Incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 7.1.
Guaranties of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination
of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided
that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance
with this Section 7.1.


 


For
purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange
rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed or first Incurred (whichever
yields the lower Dollar equivalent), in the case of revolving credit debt. However, if the Indebtedness is Incurred to refinance
other Indebtedness denominated in a foreign currency, and the refinancing would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of the refinancing, the Dollar-denominated
restriction will be deemed not to have been exceeded so long as the principal amount of the refinancing Indebtedness does not
exceed the principal amount of the Indebtedness being refinanced.


 



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Notwithstanding
any other provision of this Section 7.1, the maximum amount of Indebtedness that Borrower and the Restricted Subsidiaries
may Incur pursuant to this Section 7.1 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness,
solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance
other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, will be calculated based on the
currency exchange rate applicable to the currencies in which the respective Indebtedness is denominated that is in effect on the
date of the refinancing.


 


7.2         
Limitation on Restricted Payments. 


 


(a)         
Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly:


 


(i)         
declare or pay any dividend or make any distribution on account of any of Borrower’s or any of the Restricted Subsidiaries’
Equity Interests, including any payment made in connection with any merger, amalgamation or consolidation involving Borrower (other
than (A) dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of Borrower; or (B) dividends
or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of
any class or series of securities issued by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, Borrower
or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities);


 


(ii)        
purchase or otherwise acquire or retire for value any Equity Interests of Borrower or any direct or indirect parent of Borrower;


 


(iii)       
make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to
any scheduled repayment or scheduled maturity, any Subordinated Indebtedness of Borrower, or any Guarantor (other than the payment,
redemption, repurchase, defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such payment,
redemption, repurchase, defeasance, acquisition or retirement and (B) Indebtedness permitted under clauses (vii) and
(ix) of Section 7.1(b)); or


 


(iv)       
make any Restricted Investment


 


(all
such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


(A)       
no Default shall have occurred and be continuing or would occur as a consequence thereof;


 


(B)       
immediately after giving effect to such transaction on a pro forma basis, Borrower could Incur $1.00 of additional Indebtedness
under Section 7.1(a); and


 



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(C)       
such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Borrower and the Restricted
Subsidiaries after the Closing Date (including Restricted Payments permitted by clauses (vi)(C), (viii) and, solely to the
extent provided therein, ‎(xviii) of Section 7.2(b), but excluding all other Restricted Payments permitted by
Section 7.2(b)), is less than the amount equal to the Cumulative Credit.


 


(b)         
The provisions of Section 7.2(a) shall not prohibit:


 


(i)         
the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of
declaration thereof, if at the date of declaration or the giving of notice of such irrevocable redemption, as applicable, such
payment would have complied with the provisions of this Agreement;


 


(ii)       
(A)the redemption, repurchase, retirement or other acquisition of any Equity
Interests (“Retired Capital Stock”) or Subordinated Indebtedness of Borrower, any direct or indirect parent
of Borrower or any Guarantor in exchange for, or out of the proceeds of, the substantially concurrent sale of, Equity Interests
of Borrower or any direct or indirect parent of Borrower or contributions to the equity capital of Borrower (other than any Disqualified
Stock or any Equity Interests sold to a Subsidiary of Borrower) (collectively, including any such contributions, “Refunding
Capital Stock”);


 


(A)      
the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary of Borrower) of Refunding Capital Stock; and


 


(B)       
if immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends thereon was permitted
under clause (vi) of this Section 7.2(b) and not made pursuant to clause (ii)(B), the declaration and payment
of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase,
retire or otherwise acquire any Equity Interests of any direct or indirect parent of Borrower) in an aggregate amount per year
no greater than the aggregate amount of dividends per annum that were declarable and payable on such Retired Capital Stock immediately
prior to such retirement;


 


(iii)      
the redemption, repurchase, defeasance, or other acquisition or retirement of Subordinated Indebtedness of Borrower or any Guarantor
made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of Borrower or a Guarantor,
which is Incurred in accordance with Section 7.1 so long as:


 


(A)       
the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount (or accreted
value, if applicable), plus any accrued and unpaid interest, of the Subordinated Indebtedness being so redeemed, repurchased,
defeased, acquired or retired for value (plus the amount of any premium required to be paid under the terms of the instrument
governing the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired, plus any tender premiums,
plus any defeasance costs, fees and expenses incurred in connection therewith);


 


(B)       
such Indebtedness is subordinated to the Loans or the related Guaranty of such Guarantor, as the case may be, at least to the
same extent as such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased, defeased, acquired or retired for
value;


 






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(C)       
such Indebtedness has a final scheduled maturity date equal to or later than the earlier of (x) the final scheduled maturity
date of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired and (y) 91 days following the last
maturity date of any Loans then outstanding; and


 


(D)       
such Indebtedness has a Weighted Average Life to Maturity at the time Incurred which is not less than the shorter of (x) the
remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, defeased, acquired
or retired and (y) the Weighted Average Life to Maturity that would result if all payments of principal on the Subordinated
Indebtedness being redeemed, repurchased, defeased, acquired or retired that were due on or after the date that is one year following
the last maturity date of any Loans then outstanding were instead due on such date;


 


(iv)      
a Restricted Payment to pay for the repurchase, retirement or other acquisition for value of Equity Interests of Borrower or any
direct or indirect parent of Borrower held by any future, present or former employee, director, officer or consultant of Borrower
or any Subsidiary of Borrower or any direct or indirect parent of Borrower pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate
Restricted Payments made under this clause (iv) do not exceed $45 million in any calendar year, with unused amounts in any
calendar year being permitted to be carried over to succeeding calendar years up to a maximum of $60 million in any calendar year;
provided, further, however, that such amount in any calendar year may be increased by an amount not to exceed:


 


(A)       
the cash proceeds received by Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified
Stock) of Borrower or any direct or indirect parent of Borrower (to the extent contributed to Borrower) to employees, directors,
officers or consultants of Borrower and the Restricted Subsidiaries or any direct or indirect parent of Borrower that occurs after
the Closing Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition
or dividend will not increase the amount available for Restricted Payments under Section 7.2(b)(viii)), plus


 


(B)       
the cash proceeds of key man life insurance policies received by Borrower or any direct or indirect parent of Borrower (to the
extent contributed to Borrower) or the Restricted Subsidiaries after the Closing Date;


 


provided
that Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (A) and (B) above
in any calendar year; and provided, further, that cancellation of Indebtedness owing to Borrower or any Restricted Subsidiary
from any present or former employees, directors, officers or consultants of Borrower, any Restricted Subsidiary or the direct
or indirect parents of Borrower in connection with a repurchase of Equity Interests of Borrower or any of its direct or indirect
parents will not be deemed to constitute a Restricted Payment for purposes of this Section 7.2 or any other provision
of this Agreement;


 


(v)        
the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of Borrower
or any Restricted Subsidiary issued or incurred in accordance with Section 7.1;


 


(vi)      
(B)the declaration and payment of dividends or distributions to holders of any
class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing Date;


 



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(A)       
a Restricted Payment to any direct or indirect parent of Borrower, the proceeds of which will be used to fund the payment of dividends
to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of any direct or indirect parent
of Borrower issued after the Closing Date; provided that the aggregate amount of dividends declared and paid pursuant to
this clause (B) does not exceed the net cash proceeds actually received by Borrower from any such sale of Designated Preferred
Stock (other than Disqualified Stock) issued after the Closing Date; and


 


(B)       
the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable
and payable thereon pursuant to Section 7.2(b)(ii); provided, however, in the case of each of clauses (A)
and (B) above of this clause (vi), that for the most recently ended four full Fiscal Quarters for which internal financial
statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to
such issuance (and the payment of dividends or distributions and treating such Designated Preferred Stock as Indebtedness for
borrowed money for such purpose) on a pro forma basis (including a pro forma application of the net proceeds therefrom),
Borrower would have had a Fixed Charge Coverage Ratio no less than 2.00 to 1.00.


 


(vii)     
Investments in joint ventures and Unrestricted Subsidiaries having an aggregate Fair Market Value (as determined in good faith
by Borrower), taken together with all other Investments made pursuant to this clause (vii) that are at that time outstanding,
not to exceed the sum of (a) the greater of $275 million and 20% of Consolidated EBITDA as of the date of such Investment
and (b) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale,
repayments, income and similar amounts) actually received in respect of any such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however,
that if any Investment pursuant to this clause (vii) is made in any Person that is not Borrower or a Restricted Subsidiary
at the date of the making of such Investment and such Person becomes Borrower or a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (1) of the definition of Permitted Investments
and shall cease to have been made pursuant to this clause (vii) for so long as such Person continues to be Borrower or a
Restricted Subsidiary;


 


(viii)    
Restricted Payments that are made with (or in an aggregate amount that does not exceed the aggregate amount of) Excluded Contributions;


 


(ix)      
other Restricted Payments in an aggregate amount, when taken together with all other Restricted Payments made pursuant to this
clause (ix) that are at that time outstanding, not to exceed the greater of $750 million and 55% of Consolidated EBITDA as
of the date such Restricted Payment is made;


 


(x)       
the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to Borrower or a Restricted
Subsidiary by, Unrestricted Subsidiaries;


 


(xi)      
with respect to any taxable period for which Borrower and/or any of its Subsidiaries are members of a consolidated, combined,
affiliated, unitary or similar income tax group for U.S. federal and/or applicable state or local income tax purposes of which
a direct or indirect parent of Borrower is the common parent (a “Tax Group”), distributions (“Tax
Distributions”) to any direct or indirect parent of Borrower to pay the portion of the taxes of such Tax Group attributable
to the income of Borrower and/or its applicable Subsidiaries in an amount not to exceed the amount of any U.S. federal, state
and/or local income taxes (as applicable) that Borrower and/or its applicable Subsidiaries would have paid for such taxable period
had Borrower and/or its applicable Subsidiaries been a stand-alone corporate taxpayer or a stand-alone corporate group with respect
to such taxes; provided that distributions attributable to the income of any Unrestricted Subsidiary shall be permitted
only to the extent that such Unrestricted Subsidiary made distributions to Borrower or any Restricted Subsidiary for such purpose;


 



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(xii)     
any Restricted Payment, if applicable:


 


(A)       
in amounts required for any direct or indirect parent of Borrower to pay fees and expenses (including franchise or similar Taxes)
required to maintain its corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided
on behalf of, officers and employees of any direct or indirect parent of Borrower and general corporate operating and overhead
expenses of any direct or indirect parent of Borrower, in each case, to the extent such fees and expenses are attributable to
the ownership or operation of Borrower, if applicable, and its Subsidiaries;


 


(B)       
[reserved]; and


 


(C)       
in amounts required for any direct or indirect parent of Borrower to pay fees and expenses related to any equity or debt offering
of such parent (whether or not successful);


 


(xiii)    
repurchases of Equity Interests that occur or are deemed to occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;


 


(xiv)    
purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization
Financing and the payment or distribution of Securitization Fees;


 


(xv)     
Restricted Payments by Borrower or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional
shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person;


 


(xvi)    
the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions
similar to those described in Section 7.4 or in connection with customary change of control offers; provided
that if such transaction constitutes a Change of Control, all Loans shall have been repaid in full (or the Change of Control Event
of Default shall have been waived);


 


(xvii)
    payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation,
amalgamation, merger or transfer of all or substantially all of the assets of Borrower and the Restricted Subsidiaries, taken
as a whole, that complies with Section 7.8; provided that if such consolidation, amalgamation, merger or transfer
of assets constitutes a Change of Control, all Loans shall have been repaid in full (or the Change of Control Event of Default
shall have been waived); and


 


(xviii)   other Restricted Payments; provided that the Consolidated Secured Net Leverage Ratio of Borrower for the most recently
ended four full Fiscal Quarters for which internal financial statements are available, determined on a pro forma basis,
is less than 2.00 to 1.00; provided, further, that any Restricted Payments made in reliance on this clause (xviii)
shall reduce the Cumulative Credit in an amount equal to the amount of such Restricted Payment but the Cumulative Credit shall
not be reduced below zero as a result thereof; and


 


(xix)     
the Distribution, and any other Restricted Payment pursuant to or
in connection with the Spin Transactions; 


 



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provided,
however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (vi)(B), (vii),
(ix), (x) and (xviii) of this Section 7.2(b), no Default shall have occurred and be continuing or would occur as a
consequence thereof (provided, however, that Borrower may make regularly-scheduled dividend payments on its existing Series
A Preferred Stock in accordance with the terms thereof pursuant to Section 7.2(ix), regardless of whether any Default has
occurred or is continuing or would occur as a consequence thereof); provided, further, that any Restricted Payments made
with property other than cash shall be calculated using the Fair Market Value (as determined in good faith by Borrower) of such
property.


 


(c)         
As of the Closing Date, all of the Subsidiaries of Borrower other than XPO Escrow Sub, LLC will be Restricted Subsidiaries. For
purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by Borrower and the
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments
in an amount determined as set forth in the last sentence of the definition of “Investments.” Such designation will
only be permitted if a Restricted Payment or Permitted Investment in such amount would be permitted at such time and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.


 


7.3         
Dividend and Other Payment Restrictions Affecting Subsidiaries. Borrower shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist any consensual encumbrance or consensual restriction
which prohibits or limits the ability of any Restricted Subsidiary to:


 


(a)          
pay dividends or make any other distributions to Borrower or any Restricted Subsidiary (1) on its Capital Stock; or (2) with respect
to any other interest or participation in, or measured by, its profits; or


 


(b)         
make loans or advances to Borrower or any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary;


 


except
in each case for such encumbrances or restrictions existing under or by reason of:


 


(i)        
(i) contractual encumbrances or restrictions in effect on the Closing Date (including encumbrances or restrictions imposed on
Con-way and any Subsidiary thereof which is a Restricted Subsidiary) and (ii) contractual encumbrances or restrictions pursuant
to this Agreement, the other Loan Documents, the ABL Credit Agreement (and all guarantee, security and other documents relating
thereto), the Con-way BridgeBilateral Credit Agreement and, in each case, similar contractual encumbrances effected by any amendments, modifications, restatements,
renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;


 


(ii)       
(x) the 20192023 Notes Indenture, the 20192023 Notes or the guarantees thereunder and,
(y) the 2021/20222024 Notes Indenture, the 20212024 Notes, the 2022 or
the guarantees thereunder or (z) the 2025 Notes Indenture, the 2025 Notes or the guarantees thereunder;


 


(iii)      
applicable law or any applicable rule, regulation or order;


 


(iv)      
any agreement or other instrument of a Person acquired by Borrower or any Restricted Subsidiary which was in existence at the
time of such acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support
utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries,
so acquired;


 



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(v)       
contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant
to an agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary;


 


(vi)      
Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 7.1 and Section 7.7 that limits
the right of the debtor to dispose of the assets securing such Indebtedness;


 


(vii)     
restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of
business;


 


(viii)    
customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;


 


(ix)       
purchase money obligations for property acquired and Capitalized Lease Obligations in the ordinary course of business;


 


(x)        
customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business;


 


(xi)      
any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or
asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including
without limitationslimitation,
licenses of intellectual property) or other contracts;


 


(xii)     
any encumbrance or restriction of a Securitization Subsidiary effected in connection with a Qualified Securitization Financing;
provided, however, that such restrictions apply only to such Securitization Subsidiary;


 


(xiii)     
other Indebtedness, Disqualified Stock or Preferred Stock (a) of Borrower or any Restricted Subsidiary that is a Guarantor
or a Foreign Subsidiary or (b) of any Restricted Subsidiary that is not a Guarantor or a Foreign Subsidiary so long as such
encumbrances and restrictions contained in any agreement or instrument will not materially affect Borrower’s or any Guarantor’s
ability to make anticipated principal or interest payments on the Loans (as determined in good faith by Borrower), provided
that in the case of each of clauses (a) and (b), such Indebtedness, Disqualified Stock or Preferred Stock is permitted
to be Incurred subsequent to the Closing Date pursuant to Section 7.1;


 


(xiv)     
any Restricted Investment not prohibited by Section 7.2 and any Permitted Investment; or


 


(xv)     
any encumbrances or restrictions of the type referred to in Section 7.3(a) or (b) above imposed by any
amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (i) through (xiv) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Borrower,
no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other
payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.;
or


 


(xvi)     
the Spin Transactions.


 



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For
purposes of determining compliance with this Section 7.3, (i) the priority of any Preferred Stock in receiving
dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be
deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances
made to Borrower or a Restricted Subsidiary to other Indebtedness Incurred by Borrower or any such Restricted Subsidiary shall
not be deemed a restriction on the ability to make loans or advances.


 


7.4         
Asset Sales. 


 


(a)           
Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, cause or make an Asset Sale, unless (x) Borrower
or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the
Fair Market Value (as determined in good faith by Borrower) of the assets sold or otherwise disposed of, and (y) at least
75% of the consideration therefor received by Borrower or such Restricted Subsidiary, as the case may be, is in the form of Cash
Equivalents; provided that the amount of:


 


 (i)        
any liabilities (as shown on Borrower’s or a Restricted Subsidiary’s most recent balance sheet or in the notes thereto)
of Borrower or a Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Loans or any Guaranty)
that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction
with such transferee,


 


 (ii)        
any notes or other obligations or other securities or assets received by Borrower or such Restricted Subsidiary from such transferee
that are converted by Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of
the cash received),


 


 (iii)      
Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent
that Borrower and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection
with the Asset Sale,


 


 (iv)      
consideration consisting of Indebtedness of Borrower (other than Subordinated Indebtedness) received after the Closing Date from
Persons who are not Borrower or any Restricted Subsidiary, and


 


 (v)       
any Designated Non-cash Consideration received by Borrower or any Restricted Subsidiary in such Asset Sale having an aggregate
Fair Market Value (as determined in good faith by Borrower), taken together with all other Designated Non-cash Consideration received
pursuant to this Section 7.4(a)(v) that is at that time outstanding, not to exceed the greater of $340 million and
25% of Consolidated EBITDA at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of
each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes
in value),


 


shall
be deemed to be Cash Equivalents for the purposes of this Section 7.4(a).


 


7.5         
Transactions with Affiliates. 


 


(a)           
Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or
enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of Borrower (each of the foregoing, an “Affiliate Transaction”)
involving aggregate consideration in excess of $45 million, unless:


 



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(i)         
such Affiliate Transaction is on terms that are not materially less favorable to Borrower or the relevant Restricted Subsidiary
than those that could have been obtained in a comparable transaction by Borrower or such Restricted Subsidiary with an unrelated
Person; and


 


(ii)       
with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess
of $112.5 million, Borrower delivers to Agent a resolution adopted in good faith by the majority of the Board of Directors of
Borrower, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate
Transaction complies with clause (i) above.


 


(b)         
The provisions of Section 7.5(a) shall not apply to the following:


 


(i)        
transactions between or among Borrower and/or any of the Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary
as a result of such transaction) and any merger, consolidation or amalgamation of Borrower and any direct parent of Borrower;
provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and
the Capital Stock of Borrower and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this
Agreement and effected for a bona fide business purpose;


 


(ii)       
Restricted Payments permitted by Section 7.2 and Permitted Investments;


 


(iii)      
the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of Borrower, any Restricted Subsidiary, or any direct or indirect parent of Borrower;


 


(iv)      
transactions in which Borrower or any Restricted Subsidiary, as the case may be, delivers to Agent a letter from an Independent
Financial Advisor stating that such transaction is fair to Borrower or such Restricted Subsidiary from a financial point of view
or meets the requirements of clause (i) of Section 7.5(a);


 


(v)       
payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority
of the Board of Directors of Borrower in good faith;


 


(vi)      
any agreement as in effect as of the Closing Date or any amendment thereto (so long as any such agreement together with all amendments
thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in
effect on the Closing Date) or any transaction contemplated thereby as determined in good faith by Borrower;


 


(vii)     
the existence of, or the performance by Borrower or any Restricted Subsidiary of its obligations under the terms of any stockholders
or limited liability Borrower agreement (including any registration rights agreement or purchase agreement related thereto) to
which it is a party as of the Closing Date, any transaction, agreement or arrangement described in the 2021/20222025 Notes Offering MemorandumMemoranda and, in each case, any amendment thereto or similar transactions, agreements or arrangements which it may enter into
thereafter; provided, however, that the existence of, or the performance by Borrower or any Restricted Subsidiary of its
obligations under, any future amendment to any such existing transaction, agreement or arrangement or under any similar transaction,
agreement or arrangement entered into after the Closing Date shall only be permitted by this clause (vii) to the extent that
the terms of any such existing transaction, agreement or arrangement together with all amendments thereto, taken as a whole, or
new transaction, agreement or arrangement are not otherwise more disadvantageous to the Lenders in any material respect than the
original transaction, agreement or arrangement as in effect on the Closing Date;


 



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(viii)    
(A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating
to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with
the terms of this Agreement, which are fair to Borrower and the Restricted Subsidiaries in the reasonable determination of the
Board of Directors or the senior management of Borrower, or are on terms at least as favorable as might reasonably have been obtained
at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into
in the ordinary course of business and consistent with past practice or industry norm;


 


(ix)      
any transaction effected as part of a Qualified Securitization Financing;


 


(x)       
the issuance of Equity Interests (other than Disqualified Stock) of Borrower to any Person;


 


(xi)      
the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, management equity plans, stock option and stock ownership plans or similar employee benefit plans approved
by the Board of Directors of Borrower or the Board of Directors of any direct or indirect parent of Borrower, or the Board of
Directors of a Restricted Subsidiary, as applicable, in good faith;


 


(xii)      
the entering into of any tax sharing agreement or arrangement that complies with Sections 7.2(b)(xi) and 7.2(b)(xii)
and the performance under any such agreement or arrangement;


 


(xiii)    
any contribution to the capital of Borrower;


 


(xiv)    
transactions permitted by, and complying with, Section 7.8;


 


(xv)     
transactions between Borrower or any Restricted Subsidiary and any Person, a director of which is also a director of Borrower
or any direct or indirect parent of Borrower; provided, however, that such director abstains from voting as a director
of Borrower or such direct or indirect parent of Borrower, as the case may be, on any matter involving such other Person;


 


(xvi)    
pledges of Equity Interests of Unrestricted Subsidiaries;


 


(xvii)
    the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes
in the ordinary course of business;


 


(xviii)   any employment agreements entered into by Borrower or any Restricted Subsidiary in the ordinary course of business;


 


(xix)    
transactions undertaken in good faith (as certifieddetermined by a responsible financial or accounting officer of Borrower in an Officer’s
Certificate) for the purpose of improving the consolidated tax efficiency of Borrower and its Subsidiaries and
not for the purpose of circumventing any covenant set forth in this Agreement; and


 



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(xx)      
non-exclusive Licenses of Intellectual Property to or among Borrowers, their respective Restricted Subsidiaries and their Affiliates.;
and


 


(xxi)     
the Spin Transactions, including the execution, delivery and performance
of any Spin Documents.


 


7.6         
[Reserved]. 


 


7.7         
Liens. 


 


(a)           
Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer
to exist any Lien securing Indebtedness of Borrower or any Restricted Subsidiary, other than Permitted Liens, on any asset or
property of Borrower or such Restricted Subsidiary.


 


(b)              
Notwithstanding anything herein to the contrary, Borrower shall not, and shall not permit any of the Restricted Subsidiaries to,
directly or indirectly, create, Incur or suffer to exist any Lien securing Indebtedness for borrowed money in excess of $100,000,000
on any Excluded Principal Property owned by any Credit Party without effectively providing that the Loans outstanding at such
time (together with, if Borrower shall so determine, any other Indebtedness for borrowed money of Borrower or such Restricted
Subsidiary existing at such time or thereafter created that is not subordinate to the Loans) shall be secured by Liens on such
Excluded Principal Property (as and to the extent such assets would otherwise constitute Collateral were they not an Excluded
Principal Property) (i) on a pari passu basis with, or on a senior basis to, such secured Indebtedness for borrowed money
and/or (ii) on a junior basis to any Liens on such Excluded Property securing the ABL Credit Agreement (or any credit facility
or facilities which amend, restate, refinance, replace, increase or otherwise modify the ABL Credit Agreement), to the extent
required by the provisions of the ABL Intercreditor Agreement, so long as such secured Indebtedness for borrowed money shall be
so secured (and, for the avoidance of doubt, the Loans shall no longer be required to be secured by Liens on any such Excluded
Principal Property at any time that such Excluded Principal Property ceases to be subject to Liens securing Indebtedness for borrowed
money in excess of $100,000,000).


 


(c)           
For purposes of determining compliance with this Section 7.7, (i) a Lien securing an item of Indebtedness need
not be permitted solely by reference to one category of permitted Liens (or any portion thereof) described in the definition of
 “Permitted Liens” but may be permitted in part under any combination thereof and (ii) in the event that a Lien
securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens
(or any portion thereof) described in the definition of “Permitted Liens” or pursuant to Section 7.7(a),
Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify (as if Incurred at such
later time), such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant
and will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or any
portion thereof) in one of the categories of permitted Liens (or any portion thereof) described in the definition of “Permitted
Liens” and, in such event, such Lien securing such item of Indebtedness (or any portion thereof) will be treated as being
Incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to
such item (or portion thereof) when calculating the amount of Liens or Indebtedness that may be Incurred pursuant to any other
clause or paragraph. Notwithstanding the foregoing, Liens securing the ABL Credit Agreement shall be incurred pursuant to paragraph
(6)(B) of the definition of Permitted Liens and may not be reclassified.


 



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(d)          
With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of
such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased
Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual
of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form
of additional Indebtedness with the same terms or in the form of common stock of Borrower, the payment of dividends on Preferred
Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation
preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of
currencies or increases in the value of property securing Indebtedness described in clause (3) of the definition of “Indebtedness.”


 


7.8         
When Borrower and Guarantors May Merge or Transfer Assets. 


 


(a)          
Borrower may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or
not Borrower is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to any Person unless:


 


(i)           
Borrower is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up
or conversion (if other than Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will
have been made is a corporation, partnership or limited liability company or similar entity organized or existing under the laws
of the United States, any state thereof, or the District of Columbia (Borrower or such Person, as the case may be, being herein
called the “Successor Company”); provided that in the event that the Successor Company is not a corporation,
a co-obligor of the Loans is a corporation;


 


(ii)          
the Successor Company (if other than Borrower) expressly assumes all the obligations of Borrower under the Loan Documents pursuant
to joinder or other applicable documents or instruments (including Collateral Documents or supplements or joinders thereto) in
form reasonably satisfactory to Agent;


 


(iii)         
immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor
Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company
or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;


 


(iv)         
immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable
four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted
Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at
the time of such transaction), either


 


 (A)             
the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 7.1(a); or


 


 (B)             
the Fixed Charge Coverage Ratio of Borrower would be no less than such ratio immediately prior to such transaction;


 



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(v)           
if Borrower is not the Successor Company, each Guarantor, unless it is the other party to the transactions described above, shall
have by supplemental documentation confirmed that its Guaranty of the Obligations hereunder (and related grant of a security interest
in the Collateral) shall apply to such Person’s obligations under the Loan Documents; and


 


(vi)      
the Successor Company shall have delivered to Agent (x) information reasonably requested in writing by Agent (or any Lender
through Agent) reasonably required by regulatory authorities under “know your customer” and anti-money laundering
rules and regulations and (y) an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, amalgamation or transfer and such supplemental documentation (if any) comply with this Agreement.


 


The
Successor Company (if other than Borrower) will succeed to, and be substituted for, Borrower under this Agreement and the other
Loan Documents, and in such event Borrower will automatically be released and discharged from its obligations under this Agreement
and the other Loan Documents. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 7.8(a), (A) Borrower
or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to
a Restricted Subsidiary or, provided that Borrower is the Successor Company, Borrower, and (B) Borrower may merge, consolidate
or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Borrower in another state of the United
States or the District of Columbia (collectively, “Permitted Jurisdictions”) or may convert into a corporation,
partnership or limited liability company, so long as the amount of Indebtedness of Borrower and the Restricted Subsidiaries is
not increased thereby. This Section 7.8(a) will not apply to a sale, assignment, transfer, conveyance or other disposition
of assets between or among Borrower and the Restricted Subsidiaries.


 


(b)          
Subject to Section 13.10 hereof, other than in connection
with the Spin Transactions, no Guarantor shall, and Borrower shall not permit any such Guarantor to, consolidate, amalgamate
or merge with or into or wind up or convert into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions
to, any Person, unless:


 


(i)            
either (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation
or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a company, corporation, partnership or limited liability company or similar entity organized or existing under
the laws of the United States, any state thereof or the District of Columbia (such Guarantor or such Person, as the case may be,
being herein called the “Successor Guarantor”) and the Successor Guarantor (if other than such Guarantor) expressly
assumes all the obligations of such Guarantor under this Agreement and the other Loan Documents or the Guaranty, as applicable,
pursuant to supplemental documentation or other applicable documents or instruments (including Collateral Documents, or supplements
or joinders thereto) in form reasonably satisfactory to Agent, or (B) such sale or disposition or consolidation, amalgamation
or merger is not in violation of Section 7.4; and


 


(ii)           
the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to Agent an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental
documentation (if any) comply with this Agreement.


 



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Except
as otherwise provided in this Agreement, the Successor Guarantor (if other than such Guarantor) will succeed to, and be substituted
for, such Guarantor under this Agreement and the other Loan Documents or the Guaranty, as applicable, and such Guarantor will
automatically be released and discharged from its obligations under this Agreement and the other Loan Documents or its Guaranty.
Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for
the purpose of reincorporating such Guarantor in a Permitted Jurisdiction or may convert into a limited liability company, corporation,
partnership or similar entity organized or existing under the laws of any Permitted Jurisdiction so long as the amount of Indebtedness
of such Guarantor is not increased thereby and (2) a Guarantor may merge, amalgamate or consolidate with Borrower or another Guarantor.


 


In
addition, notwithstanding the foregoing, a Guarantor may consolidate, amalgamate or merge with or into or wind up or convert into,
liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties
or assets to Borrower or any Guarantor.


 


Notwithstanding
the foregoing, in no event shall any Credit Party that is a Non-Con-way Subsidiary be merged, amalgamated or consolidated with
or into, or transfer all or substantially all of its property or business to, a Con-way Subsidiary if such transaction would cause
Equity Interests or any Principal Property owned by a Non-Con-way Subsidiary to become Excluded Principal Property, unless Borrower
agrees that such property will not constitute Excluded Property.


 


7.9         
OFAC; Patriot Act. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to fail to comply in
all material respects with the laws, regulations and executive orders referred to in Section 4.23 and Section 4.24.


 


7.10       
Change of Fiscal Year. Borrower shall not change its Fiscal Year without prior notice to Agent, in which case, Borrower
and Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect
such change in Fiscal Year.


 


7.11       
ERISA. No Credit Party shall, or shall cause or permit any ERISA Affiliate to, cause or permit to occur (i) an event that
could result in the imposition of an ERISA Lien or (ii) an ERISA Event to the extent such ERISA Event or ERISA Lien, either alone
or together with all such other ERISA Events, would reasonably be expected to have a Material Adverse Effect.


 


	8.	TERM



 


8.1         
Termination. The financing arrangements contemplated hereby shall be in effect until the Termination Date.


 


	9.	DEFAULTS
AND REMEDIES



 


9.1         
Events of Default. The occurrence of any one or more of the following events constitute an “Event of Default”:


 


(a)           
there is a default in any payment of interest or other amounts (other than principal or premium) on any Loans when due, and such
default continues for a period of five Business Days; or


 


(b)           
there is a default in the payment of principal or premium, if any, of any Loans when due, upon declaration or otherwise; or


 


(c)           
any representation or warranty made or deemed made in or in connection with any Loan Document or the borrowings hereunder, or
any certificate or document furnished pursuant to any Loan Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;


 



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(d)           
default shall be made in the due observance or performance by Borrower or any Restricted Subsidiary of any covenant, condition
or agreement contained in Section 5.1(f), 6.1(a) (solely as to Borrower) or 6.15 or in Section 7;
or


 


(e)          
default shall be made in the due observance or performance by Borrower or any Restricted Subsidiary of any covenant, condition
or agreement contained in any Loan Document (other than those specified in (a), (b) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from Agent to Borrower (which notice shall also be given at the request
of any Lender); or


 


(f)            
(i) Borrower or any Restricted Subsidiary shall fail to pay any principal or interest, regardless of amount, due in respect of
any Indebtedness for which the aggregate principal amount exceeds $90 million, when and as the same shall become due and payable,
or (ii) Borrower or any Restricted Subsidiary shall breach or default any other material term of Indebtedness for which the
aggregate principal amount exceeds $100 million beyond the grace period, if any, provided therefor, if the effect of such breach
or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders),
to cause, that Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity, provided that
this clause (f)(ii) shall not apply to (1) secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer
is permitted hereunder and under the documents providing for such Indebtedness or (2) for
the avoidance of doubt, to Con-way Existing Indebtedness that becomes due as a result of the consummation
of the Con-way Offer or the Con-way Merger; or


 


(g)           
Borrower or any Significant Subsidiary (or any group of Subsidiaries that together would constitute a Significant Subsidiary)
pursuant to or within the meaning of any Bankruptcy Law:


 


(i)             
commences a voluntary case; or


 


(ii)           
consents to the entry of an order for relief against it in an involuntary case; or


 


(iii)          
consents to the appointment of a Custodian of it or for any substantial part of its property; or


 


(iv)          
makes a general assignment for the benefit of its creditors or takes any comparable action under any foreign laws relating to
insolvency, or


 


(h)          
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)             
is for relief against Borrower or any Significant Subsidiary in an involuntary case; or


 


(ii)            
appoints a Custodian of Borrower or any Significant Subsidiary or for any substantial part of its property; or


 


(iii)           
orders the winding up or liquidation of Borrower or any Significant Subsidiary; or


 



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any
similar relief is granted under any foreign laws and, in each case, the order or decree remains unstayed and in effect for 60
days; or


 


(i)                
there is a failure by Borrower or any Restricted Subsidiary to pay final judgments aggregating in excess of $90 million or its
foreign currency equivalent (net of any amounts which are covered by enforceable insurance policies issued by solvent carriers),
which judgments are not discharged, waived or stayed for a period of 60 days; or


 


(j)                
any material provision of any Loan Document for any reason (other than due to (i) Agent’s failure to take or refrain
from taking any action under its sole control or (ii) Agent’s loss of possessory Collateral that was in its possession
or failure to file Uniform Commercial Code continuation statements) ceases to be in full force and effect (or any Credit Party
shall challenge in writing the enforceability of any Loan Document or shall assert in writing that any provision of any of the
Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any Loan
Document ceases to create a valid and perfected security interest in any material portion of the Collateral purported to be covered
thereby (subject to Permitted Liens and qualifications with respect to perfection set forth in this Agreement) having the priority
contemplated by the Collateral Documents and the applicable Intercreditor Agreements, except to the extent that any such loss
of perfection or priority results from the failure of Agent to maintain possession of certificates actually delivered to them
representing securities pledged under the Collateral Documents or to file Code financing statements or continuation statements
or other equivalent filings; or


 


(k)              
a Change of Control shall have occurred; or


 


(l)                
an ERISA Event shall have occurred that, when taken either alone or together with all other such ERISA Events then outstanding,
would reasonably be expected to have a Material Adverse Effect.


 


The
foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.


 


9.2         
Remedies. 


 


(a)               
[Reserved].


 


(b)              
If any Event of Default has occurred and is continuing, Agent shall, at the written request of the Requisite Lenders, take any
or all of the following actions (i) declare all or any portion of the Obligations hereunder (other than, for the avoidance
of doubt, Obligations under any Secured Hedge Agreement), including all or any portion of any Loan to be forthwith due and payable,
all without presentment, demand, protest or further notice of any kind, all of which are expressly waived by Borrower and each
other Credit Party; or (ii) exercise any rights and remedies provided to Agent under the Loan Documents or at law or equity,
including all remedies provided under the Code and any other applicable law of any jurisdiction; provided, upon the occurrence
of an Event of Default specified in Section 9.1(f) or Section 9.1(g) relating to Borrower only, all of
the Obligations hereunder shall become immediately due and payable without declaration, notice or demand by any Person. Agent
shall, as soon as reasonably practicable, provide to Borrower notice of any action taken pursuant to this Section 9.2(b)
(but failure to provide such notice shall not impair the rights of Agent or the Lenders hereunder and shall not impose any
liability upon Agent or the Lenders for not providing such notice).


 



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9.3          
Waiver by Credit Parties. Except as otherwise provided for in this Agreement or by applicable law, each Credit Party waives,
to the fullest extent permitted by law (including for purposes of Article 13): (a) presentment, demand and protest
and notice of presentment, dishonor, notice of intent to accelerate, notice of acceleration, protest, default, nonpayment, maturity,
release, compromise, settlement, extension or renewal of any or all commercial paper, accounts, contract rights, documents, instruments,
chattel paper and guaranties at any time held by Agent as Collateral on which any Credit Party may in any way be liable, and hereby
ratifies and confirms whatever Agent may do in this regard, (b) all rights to notice and a hearing prior to Agent’s
taking possession or control of, or to Agent’s replevy, attachment or levy upon, the Collateral or any bond or security
that might be required by any court prior to allowing Agent to exercise any of its remedies, and (c) the benefit of all valuation,
appraisal, marshaling and exemption laws. Each Credit Party acknowledges that in the event such Credit Party fails to perform,
observe or discharge any of its obligations or liabilities under this Agreement or any other Loan Document, any remedy of law
may prove to be inadequate relief to Agent and the Lenders; therefore, such Credit Party agrees, except as otherwise provided
in this Agreement or by applicable law, that Agent and the Lenders shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.


 


	10.	APPOINTMENT
OF AGENT



 


10.1        
Appointment of Agents. MSSF, as Agent, is hereby appointed to act on behalf of all Lenders with respect to the administration
of the Loans and the Commitments made to Borrower and to act as agent on behalf of all Lenders with respect to Collateral of the
Credit Parties under this Agreement and the other Loan Documents. The provisions of this Section 10.1 are solely for
the benefit of Agent and Lenders and no Credit Party nor any other Person shall have any rights as a third party beneficiary of
any of the provisions hereof (other than Sections 10.6 and 10.11). In performing its functions and duties under
this Agreement and the other Loan Documents, Agent shall act solely as an agent of Lenders and does not assume or shall not be
deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person.
Agent shall not have any duties or responsibilities except for those expressly set forth in this Agreement and the other Loan
Documents. The duties of Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have,
by reason of this Agreement, any other Loan Document or otherwise a fiduciary relationship in respect of any Lender. Except as
expressly set forth in this Agreement and the other Loan Documents, Agent shall not have any duty to disclose, nor shall they
be liable for failure to disclose, any information relating to any Credit Party or any of their respective Subsidiaries that is
communicated to or obtained by Agent or any of its Affiliates in any capacity. Agent nor any of its Affiliates nor any of their
respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted
to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused
by its or their own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable
judgment.


 


If
Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (including failure
to act) in connection with this Agreement or any other Loan Document, then Agent shall be entitled to refrain from such act or
taking such action unless and until Agent shall have received instructions from Requisite Lenders or all affected Lenders, as
the case may be, and Agent shall not incur liability to any Person by reason of so refraining. Agent shall be fully justified
in failing or refusing to take any action hereunder or under any other Loan Document (a) if such action would, in the opinion
of Agent be contrary to law or the terms of this Agreement or any other Loan Document, (b) if such action would, in the reasonable
opinion of Agent expose Agent to Environmental Liabilities, or (c) if Agent shall not first be indemnified to its satisfaction
against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting
or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Requisite Lenders
or all affected Lenders, as applicable.


 



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10.2         
Agents’ Reliance, Etc. Neither Agent nor any of its Affiliates nor any of their respective directors, officers, agents
or employees shall be liable for any action taken or not taken by it or them under or in connection with this Agreement or the
other Loan Documents, except for damages caused by its or their own gross negligence or willful misconduct or that of its Affiliates
or their respective directors, officers, agents or employees as determined by a court of competent jurisdiction in a final and
non-appealable judgment. Without limiting the generality of the foregoing, Agent: (a) may treat the payee of any Note as
the holder thereof until Agent receives written notice of the assignment or transfer thereof signed by such payee and in form
reasonably satisfactory to Agent; (b) may consult with legal counsel, independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts; (c) makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations made in or in connection with this Agreement or the other Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or the other Loan Documents on the part of any Credit Party or to inspect the Collateral
(including the books and records) of any Credit Party; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (f) shall incur no liability under or in respect of this Agreement
or the other Loan Documents by acting upon any notice, consent, certificate or other instrument or writing (which may be by fax,
telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties; and (g) shall be
entitled to delegate any of its duties hereunder to one or more sub-agents.


 


Except
for action requiring the approval of Requisite Lenders or all Lenders, as the case may be, Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights which may be vested in it by, and with respect
to taking or refraining from taking any action or actions which it may be able to take under or in respect of, this Agreement,
unless Agent shall have been instructed by Requisite Lenders or all Lenders, as the case may be, to exercise or refrain from exercising
such rights or to take or refrain from taking such action. No Agent shall incur any liability to the Lenders under or in respect
of this Agreement with respect to anything which it may do or refrain from doing in the reasonable exercise of its judgment or
which may seem to it to be necessary or desirable in the circumstances, except for its own gross negligence, bad faith, material
breach or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. No Agent
shall be liable to any Lender in acting or refraining from acting under this Agreement in accordance with the instructions of
Requisite Lenders or all Lenders, as the case may be, and any action taken or failure to act pursuant to such instructions shall
be binding on all Lenders.


 


10.3         
MSSF and Affiliates. With respect to its Commitments hereunder, MSSF shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Lender and may exercise the same as though it were not Agent; and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated, include MSSF in its individual capacity. MSSF and each of
its Affiliates may lend money to, invest in, and generally engage in any kind of business with, any Credit Party, any of their
Affiliates and any Person who may do business with or own securities of any Credit Party or any such Affiliate, all as if MSSF
were not Agent and without any duty to account therefor to Lenders. MSSF and each of its Affiliates may accept fees and other
consideration from any Credit Party for services in connection with this Agreement or otherwise without having to account for
the same to Lenders.


 



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10.4         
Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other
Lender and based on the Financial Statements referred to in Section 4.4(a) and such other documents and information
as it has deemed appropriate, made its own credit and financial analysis of the Credit Parties and its own decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon 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 credit decisions
in taking or not taking action under this Agreement. Each Lender acknowledges the potential conflict of interest of each other
Lender as a result of Lenders holding disproportionate interests in the Loans, and expressly consents to, and waives any claim
based upon, such conflict of interest. Each Lender acknowledges the potential conflict of interest between MSSF, as a Lender,
holding disproportionate interests in the Loans, and MSSF, as Agent.


 


10.5         
Indemnification. Each Lender severally agrees to indemnify Agent (to the extent not reimbursed by Credit Parties and without
limiting the obligations of Credit Parties hereunder), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against Agent in any way relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted to be taken by Agent in connection therewith in accordance with its Pro Rata Share; provided, that
no Lender shall be liable to Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent’s gross negligence or willful misconduct of Agent as determined
by a court of competent jurisdiction in a final and non-appealable judgment. Without limiting the foregoing, each Lender severally
agrees to reimburse Agent promptly upon demand for its Pro Rata Share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and each other Loan Document, to the extent that Agent is not reimbursed for such expenses by Credit Parties.


 


10.6         
Successor Agent. Agent may resign at any time by giving not less than thirty (30) days’ prior written notice thereof
to Lenders and Borrower. Upon any such resignation, the Requisite Lenders (in consultation with Borrower) shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed by the Requisite Lenders and shall have accepted
such appointment within thirty (30) days after the resigning Agent’s giving notice of resignation, then the resigning Agent
may, on behalf of Lenders, appoint a successor Agent, which shall be a Lender, if a Lender is willing to accept such appointment,
or otherwise shall be a commercial bank, financial institution or trust company. If no successor Agent has been appointed pursuant
to the foregoing, within thirty (30) days after the date such notice of resignation was given by the resigning Agent, such resignation
shall become effective and the Requisite Lenders shall thereafter perform all the duties of Agent hereunder, in each case, until
such time, if any, as the Requisite Lenders appoint a successor Agent as provided above. Any successor Agent appointed by Requisite
Lenders hereunder shall be subject to the approval of Borrower, such approval not to be unreasonably withheld or delayed; provided
that such approval shall not be required if an Event of Default has occurred and is continuing. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Agent. Upon the earlier of the acceptance of any appointment as Agent hereunder
by a successor Agent or the effective date of the resigning Agent’s resignation, the resigning Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan Documents, except that any indemnity rights or other rights
in favor of such resigning Agent shall continue. After any resigning Agent’s resignation hereunder, the provisions of this
Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as
Agent under this Agreement and the other Loan Documents. 


 



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10.7         
Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under applicable law and not by way
of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default, each Lender is hereby
authorized at any time or from time to time, without prior notice to any Credit Party or to any Person other than Agent, any such
notice being hereby expressly waived, to offset and to appropriate and to apply any and all balances held by it at any of its
offices for the account (other than Excluded Accounts (as defined in the Security Agreement)) of a Credit Party (regardless of
whether such balances are then due to such Credit Party) and any other Indebtedness at any time held or owing by that Lender or
that holder to or for the credit or for the account of a Credit Party against and on account of any of the Obligations hereunder
that are not paid when due; provided that the Lender exercising such offset rights shall give notice thereof to the affected
Credit Party promptly after exercising such rights. Any Lender exercising a right of setoff or otherwise receiving any payment
on account of the Obligations hereunder in excess of its Pro Rata Share thereof shall purchase for cash (and the other Lenders
or holders shall sell) such participations in each such other Lender’s or holder’s Pro Rata Share of the Obligations
hereunder as would be necessary to cause such Lender to share the amount so offset or otherwise received with each other Lender
or holder in accordance with their respective Pro Rata Shares (other than offset rights exercised by any Lender with respect to
Sections 2.11, 2.16 or 2.14). Each Credit Party agrees, to the fullest extent permitted by law and subject
to the limitations set forth above, that any Lender may exercise its right to offset with respect to amounts in excess of its
Pro Rata Share of the Obligations hereunder owed to it and may sell participations in such amounts so offset to other Lenders
and holders. Notwithstanding the foregoing, if all or any portion of the offset amount or payment otherwise received is thereafter
recovered from the Lender that has exercised the right of offset, the purchase of participations by that Lender shall be rescinded
and the purchase price restored without interest. If a Defaulting Lender or Impacted Lender receives any such payment as described
in this Section 10.7, such Lender shall turn over such payments to Agent in an amount that would satisfy the cash
collateral requirements set forth in Section 2.1(d). 


 


10.8         
Dissemination of Information. Agent shall not be required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by Agent from any Credit Party, any Subsidiary, any Lender
or any other Person under or in connection with this Agreement or any other Loan Document except (i) as specifically provided
for in this Agreement or any other Loan Document, and (ii) as specifically requested from time to time in writing by any
Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession
of Agent at the time of receipt of such request and then only in accordance with such specific request.


 


10.9         
Actions in Concert. Anything in this Agreement to the contrary notwithstanding, each Lender hereby agrees with each other
Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or the Notes (other
than exercising any rights of setoff) without first obtaining the prior written consent of Agent and Requisite Lenders, it being
the intent of Lenders that any such action to protect or enforce rights under this Agreement and the Notes shall be taken in concert
and at the direction or with the consent of Agent or Requisite Lenders; provided, however, that (i) each Lender
shall be entitled to file a proof of claim in any proceeding under any Insolvency Law to the extent that such Lender disagrees
with Agent’s composite proof of claim filed on behalf of all Lenders, (ii) each Lender shall be entitled to vote its
claim with respect to any plan of reorganization in any proceeding under any Insolvency Law and (iii) each Lender shall be
entitled to pursue its deficiency claim after liquidation of all or substantially all of the Collateral and application of the
proceeds therefrom.


 


10.10       
Procedures. Agent is hereby authorized by each Credit Party and each other Person to whom any Obligations hereunder are
owed to establish procedures (and to amend such procedures from time to time) to facilitate administration and servicing of the
Loans and other matters incidental thereto. Without limiting the generality of the foregoing, Agent is hereby authorized to establish
procedures to make available or deliver, or to accept, notices, documents and similar items on, by posting to or submitting and/or
completion on, E-Systems. The posting, completion and/or submission by any Credit Party of any communication pursuant to an E-System
shall constitute a representation and warranty by the Credit Parties that any representation, warranty, certification or other
similar statement required by the Loan Documents to be provided, given or made by a Credit Party in connection with any such communication
is true, correct and complete in all material respects except as expressly noted in such communication or otherwise on such E-System.


 



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10.11       
Collateral Matters. 


 


(a)            
Lenders hereby irrevocably authorize and direct Agent to release Liens upon any Collateral (and any such Liens shall be automatically
released), without further action by Agent or any other Person, (i) upon the Termination Date; (ii) in respect of property
of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed
of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or
otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on, a certificate
from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is
approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to
the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent
the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in
a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations
hereunder (pursuant to Section 13.10 or otherwise); or (vi) as required by the terms of any Intercreditor Agreement. Upon
request by Agent or Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular
types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate
any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the
definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted
Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such
designation.


 


(b)           
Promptly, and in any event not later than five (5) Business Days’ following written request by Borrower, Agent shall (and
is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release
(or subordination) of its Liens upon Collateral as contemplated by Section 10.11(a); provided, however,
that (i) Agent shall be fully protected in relying on such certification by Borrower (and shall not be responsible for or have
a duty to ascertain or inquire into any representation or warranty contained therein) and any execution and delivery of such requested
documentation shall be without recourse or warranty to Agent (other than Agent’s authority to execute and deliver such documents)
and (ii) such release shall not in any manner discharge, affect or impair the Obligations hereunder or any Liens (other than those
expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including
the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral
Documents.


 


10.12       
Additional Agents. None of the Lenders or other entities identified on the facing page of this Agreement as a “syndication
agent”, “documentation agent”, “arranger” or “bookrunner”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. No Agent, Lender, “syndication agent”, “documentation
agent”, “arranger” or “bookrunner” has any fiduciary relationship with or duty to
any Credit Party arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship
between Agent and Lenders, on one hand, and the Credit Parties, on the other hand, in connection herewith or with such other Loan
Documents is solely that of debtor and creditor. Without limiting the foregoing, none of the Lenders so identified shall have
or be deemed to have any fiduciary relationship with any other Lender. Each Lender acknowledges that it has not relied, and will
not rely, on any of the Lenders or other entities so identified in deciding to enter into this Agreement or any other Loan Document
or in taking or not taking action hereunder or thereunder. If necessary or appropriate Agent may appoint a Person to serve as
separate collateral agent under any Loan Document. Each right and remedy intended to be available to Agent under the Loan Document
shall also be vested in Agent. The Lenders shall execute and deliver any instrument or agreement that Agent may request to effect
such appointment. If such Person appointed by Agent shall die, dissolve, become incapable of acting, resign or be removed, then
all the rights and remedies of Agent, to the extent permitted by applicable law, shall vest in and be exercised by Agent until
appointment of a new agent.


 



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10.13       
Distribution of Materials to Lenders. 


 


(a)           
Borrower acknowledges and agrees that the Loan Documents and all reports, notices, communications and other information or materials
provided or delivered by, or on behalf of, Borrower hereunder (collectively, the “Borrower Materials”) may
be disseminated by, or on behalf of, Agent, and made available to, the Lenders by posting such Borrower Materials on an E-System
(the “Borrower Workspace”). Borrower authorizes Agent to download copies of its logos from its website and
post copies thereof on Borrower Workspace. Borrower hereby acknowledge that certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive MNPI) (each, a “Public Lender”). Borrower hereby agrees
that it will use commercially reasonable efforts to identify that portion of Borrower Materials that may be distributed to the
Public Lenders and that (i) all such Borrower Materials 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, (ii) by marking
Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Agent and the Lenders to treat such Borrower
Materials as either publicly available information or not material information (although it may be sensitive, confidential and
proprietary) with respect to Borrower, its Subsidiaries or their securities for purposes of United States federal and state securities
laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of Borrower
Workspace designated “Public Investor”, and (iv) Agent shall be entitled to treat Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of Borrower Workspace not designated “Public
Investor.”


 


(b)           
Each Lender represents, warrants, acknowledges and agrees that (i) Borrower Materials may contain MNPI concerning Borrower,
its Affiliates or their securities, (ii) it has developed compliance policies and procedures regarding the handling and use
of MNPI, and (iii) it shall use all such Borrower Materials in accordance with Section 12.8 and any applicable
laws and regulations, including federal and state securities laws and regulations.


 


(c)            
If any Lender has elected to abstain from receiving MNPI concerning Borrower, their Affiliates or their securities, such Lender
acknowledges that, notwithstanding such election, Agent and/or Borrower will, from time to time, make available syndicate-information
(which may contain MNPI) as required by the terms of, or in the course of administering the credit facilities, including this
Agreement and the other Loan Documents, to the credit contact(s) identified for receipt of such information on the Lender’s
administrative questionnaire who are able to receive and use all syndicate-level information (which may contain MNPI) in accordance
with such Lender’s compliance policies and Contractual Obligations and applicable law, including federal and state securities
laws; provided that if such contact is not so identified in such questionnaire, the relevant Lender hereby agrees to promptly
(and in any event within one (1) Business Day) provide such a contact to Agent and Borrower upon oral or written request therefor
by Agent or Borrower. Notwithstanding such Lender’s election to abstain from receiving MNPI, such Lender acknowledges that
if such Lender chooses to communicate with Agent, it assumes the risk of receiving MNPI concerning Borrower, its Affiliates or
their securities.


 



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10.14        
Agent. Notwithstanding anything to the contrary set forth in this Agreement, all determinations of Agent under the Loan
Documents shall be made by Agent.


 


10.15        
Intercreditor Agreements. The Lenders and the other Secured Parties hereby irrevocably authorize and instruct Agent to,
without any further consent of any Lender or any other Secured Party, enter into (or join,
acknowledge and consent to) or amend, renew, extend, supplement, restate, replace, waive or otherwise modify (A)(i) the
ABL Intercreditor Agreement, the ABL Intercreditor Agreement Joinder and any other joinder to the ABL Intercreditor
Agreement, (ii) any Pari Passu Intercreditor Agreement and any
joinder thereto with the collateral agent or representative of the holders of Indebtedness secured by a Lien permitted
hereunder and intended to be pari passu with the Liens on the Collateral
securing the Obligations under this Agreement and (iii) any Junior Intercreditor Agreement with the collateral
agent or representative of the holders of Indebtedness secured by a Lien permitted hereunder and intended to be junior to the
Liens on the Collateral securing the Obligations under
this Agreement (any of the foregoing, an “Intercreditor Agreement” and, collectively, the “Intercreditor
Agreements”) and (B) any joinders to the Collateral Documents with
the collateral agent or representative of the holders of Indebtedness secured by a Lien permitted hereunder and intended to be
pari passu with the Liens on the Collateral securing the Obligations under this Agreement (collectively, the “Collateral
Document Joinders”). The Lenders and the other Secured Parties irrevocably agree that (x) Agent may rely
exclusively on a certificate of an Officer of Borrower as to whether the Liens governed by such Collateral
Document Joinders and Intercreditor AgreementAgreements
and the priority of such Liens as contemplated thereby are not prohibited and (y) any Intercreditor Agreement or Collateral Document Joinder entered into by Agent shall
be binding on the Secured Parties, and each Lender and the other Secured Parties hereby agrees that it will take no actions contrary
to the provisions of, if entered into and if applicable, any Intercreditor Agreement or
Collateral Document Joinder (or the Collateral Documents as modified thereby). The foregoing provisions are intended
as an inducement to any provider of any Indebtedness not prohibited by Section 7.1 hereof to extend credit to the
Credit Parties and such persons are intended third-party beneficiaries of such provisions.


 


10.16        
Certain ERISA Matters. 


 


(a)       
Each Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of Agent and not, for
the avoidance of doubt, to or
for the benefit of Borrower or any Guarantor, that at least one of the following is and will be true:


 


(i)             such Lender is not using “plan assets” (within the meaning
of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation
in, administration of and performance of the Loans or this Agreement,


 


(ii)            the transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60
(a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving
bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers),
is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans
and this Agreement,


 






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(iii)           (A) such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager
made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans and this
Agreement, (C) the entrance into, participation in, administration of and performance of the Loans and this Agreement satisfies
the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration
of and performance of the Loans and this Agreement, or


 


(iv)           such
other representation, warranty and covenant as may be agreed in writing between Agent, in its sole discretion, and such Lender.


 


(b)        
In addition, unless either (1) sub-clause (i) in the immediately preceding
clause (a) is true with respect to a Lender or (2) such Lender has provided another representation, warranty and covenant in accordance
with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date
such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the
date such Person ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for
the benefit of Borrowers or any Guarantor, that Agent is not a fiduciary with respect to the assets of such Lender involved in
such Lender’s entrance into, participation in, administration of and performance of the Loans and this Agreement (including
in connection with the reservation or exercise of any rights by Agent under this Agreement, any Loan Document or any documents
related hereto or thereto).


 


11.            ASSIGNMENT AND PARTICIPATIONS; SUCCESSORS AND ASSIGNS


 


11.1          
Assignment and Participations.


 


(a)            Subject to the terms of this Section 11.1, any Lender may make an assignment, or sell participations in, at any time
or times, the Loan Documents, Loans and any Commitment or any portion thereof or interest therein, including any Lender’s
rights, title, interests, remedies, powers or duties thereunder, to an Eligible Assignee (in the case of an assignment) or to
any Person (in the case of a participation). Any assignment by a Lender shall be subject to the following conditions:


 


(i)         
Assignment Agreement. Any assignment by a Lender shall require (A) the execution of an assignment agreement (the “Assignment
Agreement”) substantially in the form attached hereto as Exhibit 11.1(a) or otherwise in form and substance reasonably
satisfactory to and acknowledged by Agent and (B) the payment of a processing and recordation fee of $3,500 by the assignor
or assignee to Agent (unless such assignment is to a Lender or an Affiliate of a Lender or an Approved Fund). Agent, acting as
Borrower’s agent, shall maintain at one of its offices listed in Section 12.10 (as may be updated from time
to time pursuant to Section 12.10), a copy of each Assignment Agreement delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of each Lender pursuant to the terms hereof from time to time (the
 “Register”). Agent shall accept and record into the Register each Assignment Agreement that it receives which
is executed and delivered in accordance with the terms of this Agreement. The entries in the Register shall be conclusive, absent
manifest error, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by Borrower and the Lenders, at any reasonable time and from time to time upon reasonable prior notice.


 


(ii)         
Minimum Amounts.


 


(A)       
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and


 






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(B)       
in any case not described in Section 11.1(a)(ii)(A), the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment shall not be less than $5,000,000, and in increments of $1,000,000
unless each of (1) Agent and (2) so long as no Event of Default under Sections 9.1(a), (f) or (g) has
occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed, and Borrower
shall be deemed to have consented to such assignment unless Borrower shall have objected thereto by written notice to Agent within
ten (10) Business Days after having received such Assignment Agreement).


 


(iii)       
Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this
Section 11.1(a)(iii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among
separate tranches on a non-pro rata basis (if any).


 


(iv)       
Required Consents. No consent shall be required for any assignment except to the extent required by Section 11.1(a)(ii)(B)
and, in addition:


 


(A)       
the consent of Borrower for any assignment (such consent not to be unreasonably withheld, conditioned or delayed) shall be required
unless (x) an Event of Default has occurred and is continuing at the time of such assignment, (y) such assignment is
to a Lender, an Affiliate of a Lender or an Approved Fund or (z) such assignment is to or by MSSF in connection with the initial
syndication of the Loans and Commitments; provided that Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to Agent within ten (10) Business Days after having received written notice thereof;
and


 


(B)       
the consent of Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required for assignments
in respect of any Loan or Commitment if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved
Fund.


 


(b)            In the case of an assignment by a Lender under this Section 11.1, the assignee shall have, to the extent of such assignment,
the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall be relieved of its obligations
hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby
acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee
shall be considered to be a “Lender”. In all instances, each Lender’s liability to make Loans hereunder shall
be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event
Agent or any Lender assigns or otherwise transfers all or any part of the Obligations hereunder, Agent or any such Lender shall
so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes,
if any, being assigned. Notwithstanding the foregoing provisions of this Section 11.1, (i) any Lender may at
any time pledge the Obligations hereunder held by it and such Lender’s rights under this Agreement and the other Loan Documents
to a Federal Reserve Bank, and any Lender that is an investment fund may assign the Obligations hereunder held by it and such
Lender’s rights under this Agreement and the other Loan Documents to another investment fund managed by the same investment
advisor; provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Lender’s obligations
hereunder or under any other Loan Document and (ii) no assignment shall be made to any Credit Party, any Subsidiary of a
Credit Party or any Affiliate of a Credit Party.


 






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(c)            A Lender may at any time, without consent of or notice to Borrower or Agent, sell participations to any Person (other than a natural
person or Borrower, any Subsidiary or any Affiliate thereof, or any Disqualified Institution (to the extent that the list of Disqualified
Institutions has been made available to all Lenders) in all or a portion of such lender’s rights and/or obligation under
this Agreement; provided that any such participation by a Lender shall be made with the understanding that all amounts
payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any
such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly
affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, the Loans participated;
(ii) any extension of the final maturity date thereof; and (iii) any release of all or substantially all of the Collateral
or the value of the Guaranties (other than in accordance with the terms of this Agreement, the Collateral Documents or the other
Loan Documents). Solely for purposes of Sections 2.11, 2.13 and 2.14 Borrower acknowledges and agrees
that a participation shall give rise to an obligation of Borrower to the participant and the participant shall be considered to
be a “Lender”; provided, that, such participant (A) shall not be entitled to receive any greater payment under
Sections 2.13 and 2.14 than the Lender from whom it received its participation would have been entitled to
receive with respect to the participation sold to such participant and (B) complies with the provisions of Sections 2.13(d),
2.14(d) and 2.14(g) as though it were a Lender. Each Lender that sells a participation shall, acting solely for
this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each participant
and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the
Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose
all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s
interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to
the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is
in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. Except as set
forth in this paragraph, neither Borrower nor any Credit Party shall have any obligation or duty to any participant and shall
continue to deal solely and directly with the Lender selling the participation. Neither Agent nor any Lender (other than the Lender
selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation
as if no such sale had occurred. Notwithstanding anything to the contrary contained in the Loan Documents, no Lender may assign
or sell a participation to any Person that is not an Eligible Assignee and participations shall not require Borrower’s or
Agent’s prior written consent.


 


(d)            Except as expressly provided in this Section 11.1, no Lender shall, as between Borrower and that Lender, or Agent
and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation
of, or granting of participation in, all or any part of the Loans, the Notes or other Obligations hereunder owed to such Lender.


 


(e)            Any Lender may furnish information concerning Credit Parties in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided that such Lender shall obtain from assignees
or participants confidentiality covenants substantially equivalent to those contained in Section 12.8.


 


(f)             No Lender shall assign or sell participations in any portion of its Loans or Commitments to a potential Lender or participant,
if, as of the date of the proposed assignment or sale, the assignee Lender or participant would be subject to capital adequacy
or similar requirements under Section 2.14(a), increased costs under Section 2.14(b), an inability to
fund LIBOR Loans under Section 2.14(c), or withholding taxes in accordance with Section 2.16(a).


 






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(g)            Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”), may grant to a
special purpose funding vehicle (an “SPC”), identified as such in writing by the Granting Lender to Agent and
Borrower, the option to provide to Borrower all or any part of any Loans that such Granting Lender would otherwise be obligated
to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by
any SPC to make any Loan; and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if such Loan were made by such
Granting Lender. No SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). Any SPC may (i) with notice to, but without the prior written consent of, Borrower
and Agent assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented
to by Borrower and Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC. This Section 11.1(g)
may not be amended without the prior written consent of each Granting Lender, all or any of whose Loans are being funded by
an SPC at the time of such amendment. For the avoidance of doubt, the Granting Lender shall for all purposes, including, without
limitation, the approval of any amendment or waiver of any provision of any Loan Document or the obligation to pay any amount
otherwise payable by the Granting Lender under the Loan Documents, continue to be the Lender of record hereunder.


 


(h)            Notwithstanding anything to the contrary in this Agreement, including Section 10.7 (pertaining to sharing of payments)
(which provisions shall not be applicable to clauses (h) or (i) of this Section 11.1), any of Borrower
or its Subsidiaries may purchase by way of assignment and become an Assignee with respect to Loans at any time and from time to
time from Lenders in accordance with Section 11.1(a) hereof (each, a “Permitted Loan Purchase”);
provided, that, in respect of any Permitted Loan Purchase, (A) no Permitted Loan Purchase shall be made from the proceeds
of any extensions of credit under the ABL Credit Agreement, (B) upon consummation of any such Permitted Loan Purchase, the
Loans purchased pursuant thereto shall be deemed to be automatically and immediately cancelled and extinguished in accordance
with Section 11.1(i), (C) in connection with any such Permitted Loan Purchase, any of Borrower or its Subsidiaries
and such Lender that is the assignor shall execute and deliver to Agent a Permitted Loan Purchase Assignment and Acceptance (and
for the avoidance of doubt, (x) shall make the representations and warranties set forth in the Permitted Loan Purchase Assignment
and Acceptance and (y) shall not be required to execute and deliver an Assignment and Acceptance pursuant to Section 11.1(a)(i))
and shall otherwise comply with the conditions to assignments under this Section 11.1 and (D) no Default or Event
of Default would exist immediately after giving effect on a pro forma basis to such Permitted Loan Purchase.


 


(i)             Each Permitted Loan Purchase shall, for purposes of this Agreement be deemed to be an automatic and immediate cancellation and
extinguishment of such Loans and Borrower shall, upon consummation of any Permitted Loan Purchase, notify Agent that the Register
be updated to record such event as if it were a prepayment of such Loans.


 






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11.2       
Successors and Assigns. This Agreement and the other Loan Documents is binding on and inures to the benefit of each Credit
Party, Agent, Lender and their respective successors and assigns (including, in the case of any Credit Party, a debtor-in-possession
on behalf of such Credit Party), except as otherwise provided herein or therein. No Credit Party may assign, transfer, hypothecate
or otherwise convey its rights, benefits, obligations or duties hereunder or under any of the other Loan Documents without the
prior express written consent of Agent and all of the Lenders; provided that Agent and the Lenders shall be deemed to have
consented to any assignment, transfer, hypothecation or conveyance of rights, benefits, obligations or duties to any successor
of a Credit Party as a result of the consummation of a merger, consolidation, amalgamation or other fundamental change or transaction
permitted under Section 7. Any such purported assignment, transfer, hypothecation or other conveyance by any Credit
Party without the prior express written consent of Agent and all of the Lenders shall be void. The terms and provisions of this
Agreement are for the purpose of defining the relative rights and obligations of each Credit Party, Agent and Lenders with respect
to the transactions contemplated hereby and no Person shall be a third party beneficiary of any of the terms and provisions of
this Agreement or any of the other Loan Documents (other than the Indemnified Persons).


 


11.3       
Certain Assignees. No assignment or participation may be made to Borrower, any Affiliate of Borrower, Defaulting Lender
or a natural person.


 


12.          
MISCELLANEOUS


 


12.1       
Complete Agreement; Modification of Agreement. This Agreement shall become effective when it shall have been executed by
Borrower, the other Credit Parties signatory hereto, the Lenders and Agent. Thereafter, it shall be binding upon and inure to
the benefit of, but only to the benefit of, Borrower, the other Credit Parties party hereto, Agent and each Lender, their respective
successors and permitted assigns. Except as expressly provided in any Loan Document, none of Borrower, any other Credit Party,
any Lender or Agent shall have the right to assign any rights or obligations hereunder or any interest herein. The Loan Documents
constitute the complete agreement between the parties with respect to the subject matter thereof and may not be modified, altered
or amended except as set forth in Section 12.2. Any letter of interest, commitment letter, fee letter or confidentiality
agreement, if any, between any Credit Party and any Agent or any Lender or any of their respective Affiliates, predating this
Agreement and relating to a financing of substantially similar form, purpose or effect shall be superseded by this Agreement.



 


12.2       
Amendments and Waivers.


 


(a)            Except for actions expressly permitted to be taken by Agent, no amendment, modification, termination or waiver of any provision
of this Agreement or any other Loan Document, or any consent to any departure by any Credit Party therefrom, shall in any event
be effective unless the same shall be in writing and signed by Borrower and by Requisite Lenders or all directly and adversely
affected Lenders as provided in Section 12.2(c). Except as set forth in clauses (b) and (c) below, all such amendments,
modifications, terminations or waivers requiring the consent of any Lenders shall require the written consent of Requisite Lenders.


 


(b)            No amendment, modification, termination or waiver of or consent with respect to any provision of this Agreement that waives compliance
with the conditions precedent set forth in Section 3 to the making of any Loan shall be effective unless the same
shall be in writing and signed by Requisite Lenders and Borrower. Notwithstanding anything contained in this Agreement to the
contrary, no waiver or consent with respect to any Default or any Event of Default shall be effective for purposes of the conditions
precedent to the making of Loans set forth in Section 3.1 unless the same shall be in writing and signed by Agent
and Requisite Lenders.


 






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(c)            No amendment, modification, termination or waiver shall, unless in writing and signed by Agent and each Lender directly affected
thereby: (i) increase the principal amount of any Lender’s Commitment (which action shall be deemed only to affect
those Lenders whose Commitments are increased); (ii) reduce the principal of, rate of interest on, composition of interest
on (i.e., cash pay or payment-in-kind) or Fees payable with respect to any Loan of any affected Lender (provided, however,
in each case, the waiver of any Default or Event of Default or the implementation or revocation of Default Rate interest shall
not constitute a reduction in the rate of interest or any Fee); (iii) extend the final maturity date or scheduled payment
date of any principal amount of any Loan of any Lender; (iv) waive, forgive, defer, extend or postpone any payment of interest
or Fees or other Obligations hereunder as to any affected Lender (provided, however, in each case, the waiver of
any Default or Event of Default or the implementation or revocation of Default Rate interest shall not constitute a reduction
in the rate of interest or any Fee); (v) release all or substantially all of the value of the Guaranties, except as otherwise
permitted herein or in the other Loan Documents, release (or, except as contemplated in the ABL Intercreditor Agreement, subordinate
the Lien of Agent in), or permit any Credit Party to sell or otherwise dispose of, all or substantially all of the Collateral
(which action shall be deemed to directly affect all Lenders); (vi) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans that shall be required for Lenders or any of them to take any action hereunder; (vii) amend
or waive this Section 12.2 or the definition of the term “Requisite Lenders”; or (viii) amend
the allocation and waterfalls in Section 2.9. Furthermore, no amendment, modification, termination or waiver affecting
the rights or duties of Agent under this Agreement or any other Loan Document, including any release of any Guaranty requiring
a writing signed by all of the Lenders or release of any Collateral requiring a writing signed by all Lenders, shall be effective
unless in writing and signed by Agent in addition to Lenders required hereinabove to take such action. Notwithstanding anything
in this Section 12.2 to the contrary, this Agreement and the other Loan Documents may be amended by Agent and each
Credit Party party thereto in accordance with Section 2.15, 2.16 and 2.17 to provide for, or to incorporate
the terms of, any Incremental Loans, Refinancing Loans or Extended Loans and to provide for non-Pro Rata borrowings and payments
of any amounts hereunder as between the Loans and any Incremental Loans, Refinancing Loans or Extended Loans, in each case with
the consent of Agent but without the consent of any Lender. Each amendment, modification, termination or waiver shall be effective
only in the specific instance and for the specific purpose for which it was given. No amendment, modification, termination or
waiver shall be required for Agent to take additional Collateral pursuant to any Loan Document. No amendment, modification, termination
or waiver of any provision of any Note shall be effective without the written concurrence of the holder of that Note. No notice
to or demand on any Credit Party in any case shall entitle such Credit Party or any other Credit Party to any other or further
notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance
with this Section 12.2 shall be binding upon each holder of the Obligations hereunder at the time outstanding and
each future holder of the Obligations hereunder. Any amendment, modification, waiver, consent, termination or release of any Secured
Hedge Agreement may be effected by the parties thereto without the consent of the Lenders.


 


(d)            If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of all Lenders or all
directly and adversely affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose
consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 12.2(d)
being referred to as a “Non-Consenting Lender”), then, with respect to this Section 12.2(d),
so long as Agent is not a Non-Consenting Lender, at Borrower’s request, Agent or a Person reasonably acceptable to Agent
shall have the right with Agent’s consent (but shall have no obligation) to purchase from any such Non-Consenting Lenders,
and any such Non-Consenting Lenders agree that they shall, upon Agent’s request, sell and assign to Agent or such Person,
all of the Commitments of any such Non-Consenting Lenders for an amount equal to the principal balance of all Loans held by such
Non-Consenting Lenders and all accrued interest and Fees (including fees payable in accordance with Section 2.3(a)(ii))
with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement.
In the event that a Non-Consenting Lender does not execute an Assignment Agreement pursuant to Section 11.1 within
five (5) Business Days after receipt by such Non-Consenting Lender of notice of replacement pursuant to this Section 12.2(d)
and presentation to such Non-Consenting Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 12.2(d),
Borrower shall be entitled (but not obligated) to execute such Assignment Agreement on behalf of any such Non-Consenting Lender,
and any such Assignment Agreement so executed by Borrower, the replacement Lender and Agent, shall be effective for purposes of
this Section 12.2(d) and Section 11.1.


 






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(e)            Upon the Termination Date, Agent shall deliver to Borrower termination statements, security releases and other documents necessary
or appropriate to evidence the termination of the Liens securing payment of the Obligations.


 


(f)             Notwithstanding the foregoing, no Lender’s consent is required to enter into any Intercreditor Agreement, or to effect any
amendment, modification or supplement to the ABL Intercreditor Agreement, any other Intercreditor Agreement permitted under this
Agreement (i) that is for the purpose of adding the holders of Indebtedness permitted hereunder (or a Senior Representative
with respect thereto) as parties thereto, as expressly contemplated by the terms of the ABL Intercreditor Agreement or such other
intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted
hereby that is permitted to be secured by the Collateral, as applicable (it being understood that any such amendment or supplement
may make such other changes to the applicable intercreditor or subordination agreement as, in the good faith determination of
Agent, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect,
to the interests of the Lenders) or (ii) that is expressly contemplated by the ABL Intercreditor Agreement (or the comparable
provisions, if any, of any other Intercreditor Agreement or arrangement permitted under this Agreement) or (iii) that is
otherwise permitted by Section 10.15 hereof; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of Agent hereunder or under any other Loan Document without the prior written consent of
Agent, as applicable.


 


(g)            Notwithstanding anything herein to the contrary, any amendment, modification, waiver, consent, termination or release of any Secured
Hedge Agreement may be effected by the parties thereto without the consent of the Lenders.


 


(h)            Further, notwithstanding anything to the contrary contained in this Section 12.2, technical and conforming modifications
to the Loan Documents may be made with the consent of Borrower and Agent (but without the consent of any Lender) to the extent
necessary to cure any ambiguity, omission, defect or inconsistency; provided, that Agent shall notify the Lenders of any
such proposed modifications and no such modification shall become effective if the Requisite Lenders have objected thereto within
five (5) Business Days after the delivery of such notice.


 


12.3       
Fees and Expenses. Borrower shall reimburse: (i) Agent and Lead Arrangers for all reasonable documented fees, reasonable
documented out-of-pocket costs and expenses (including the reasonable documented fees and reasonable documented out-of-pocket
expenses of one firm of counsel); and (ii) Agent and Lead Arrangers (and, with respect to clauses (b), (c) and (d) below,
all Lenders for all reasonable documented out-of-pocket fees, costs and expenses, including the reasonable documented fees, reasonable
documented out-of-pocket costs and expenses of one firm of counsel for Agent, Lead Arrangers and Lenders, taken as a whole, and
a single local counsel in each relevant jurisdiction and in the case of an actual or potential conflict of interest where Agent,
Lead Arrangers or the Lender affected by such conflict informs Agent of such conflict and thereafter retains its own counsel,
of another firm of counsel for such affected Person), incurred in connection with the negotiation, preparation and filing and/or
recordation of the Loan Documents, and incurred in connection with:


 






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(a)            any amendment, modification or waiver of, consent with respect to, or termination of, any of the Loan Documents or advice in connection
with the syndication and administration of the Loans made pursuant hereto or its rights hereunder or thereunder;


 


(b)            any litigation, contest, dispute, suit, proceeding or action (whether instituted by Agent, any Lender, any Credit Party or any
other Person and whether as a party, witness or otherwise) in any way relating to the Collateral, any of the Loan Documents and
the transactions contemplated thereby or any other agreement to be executed or delivered in connection herewith or therewith,
including any litigation, contest, dispute, suit, case, proceeding or action, and any appeal or review thereof; in connection
with a case commenced by or against any or all of the Credit Parties or any other Person that may be obligated to Agent by virtue
of the Loan Documents; including any such litigation, contest, dispute, suit, proceeding or action arising in connection with
any work-out or restructuring of the Loans during the pendency of one or more Events of Default; provided, that no Person
shall be entitled to reimbursement under this clause (b) in respect of any litigation, contest, dispute, suit, proceeding
or action to the extent any of the foregoing results from such Person’s (or such Person’s Related Person’s)
gross negligence, bad faith, material breach or willful misconduct (as determined by a court of competent jurisdiction in a final
and non-appealable judgment); provided, further, that no Indemnified Person will be indemnified for any such cost,
expense or liability to the extent of any dispute solely among Indemnified Persons other than claims against Agent, in such capacity
in connection with fulfilling any such roles;


 


(c)            any attempt to enforce any remedies of Agent against any or all of the Credit Parties or any other Person that may be obligated
to Agent or any Lender by virtue of any of the Loan Documents, including any such attempt to enforce any such remedies in the
course of any work-out or restructuring of the Loans during the pendency of one or more Events of Default;


 


(d)            any workout or restructuring of the Loans upon the occurrence and during the continuance of one or more Events of Default; and


 


(e)            efforts to (i) monitor the Loans or any of the other Obligations hereunder, (ii) evaluate, observe or assess any of
the Credit Parties or their respective affairs and (iii) subject to the limitations contained herein verify, protect, evaluate,
assess, appraise, audit, collect, sell, liquidate or otherwise dispose of any of the Collateral; including, as to each of clauses (a)
through (d) above, all reasonable and documented professionals fees, including, but not limited to appraisers’, field examiners’
and attorneys’ fees arising from such services and other advice, assistance or other representation, including those in
connection with any appellate proceedings, and all reasonable documented out-of-pocket expenses, costs, charges and other fees
incurred by such professionals in connection with or relating to any of the events or actions described in this Section 12.3.
All amounts under this Section 12.3 shall be payable no later than 20 days after written demand therefore (together
with reasonably detailed supporting documentation submitted to a Financial Officer of Borrower).


 


12.4       
No Waiver. Agent’s or any Lender’s failure, at any time or times, to require strict performance by the Credit
Parties of any provision of this Agreement or any other Loan Document shall not waive, affect or diminish any right of Agent or
such Lender thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of an Event
of Default shall not suspend, waive or affect any other Event of Default whether the same is prior or subsequent thereto and whether
the same or of a different type. Subject to the provisions of Section 12.2, none of the undertakings, agreements,
warranties, covenants and representations of any Credit Party contained in this Agreement or any of the other Loan Documents and
no Default or Event of Default by any Credit Party shall be deemed to have been suspended or waived by Agent or any Lender, unless
such waiver or suspension is by an instrument in writing signed by an officer of or other authorized employee of Agent and the
applicable Requisite Lenders, and directed to Borrower specifying such suspension or waiver.


 






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12.5       
Remedies. Agent’s and Lenders’ rights and remedies under this Agreement shall be cumulative and nonexclusive
of any other rights and remedies that Agent or any Lender may have under any other agreement, including the other Loan Documents,
by operation of law or otherwise. Recourse to the Collateral shall not be required.


 


12.6       
Severability. Wherever possible, each provision of this Agreement and the other Loan Documents shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any other Loan Document
shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement or such other
Loan Document.


 


12.7       
Conflict of Terms. Except as otherwise provided in this Agreement or any of the other Loan Documents by specific reference
to the applicable provisions of this Agreement, if any provision contained in this Agreement conflicts with any provision in any
of the other Loan Documents, the provision contained in this Agreement shall govern and control.


 


12.8       
Confidentiality. Each Lender and Agent agrees to maintain, the confidentiality of information obtained by it pursuant to
any Loan Document and designated in writing by any Credit Party as confidential or disclosed under circumstances where it is reasonable
to assume that such information is confidential (the “Information”), except that such Information may be disclosed
by the Lenders or Agent (i) with Borrower’s consent, (ii) to Related Persons of such Lender or Agent, as the case
may be, that are advised of the confidential nature of such Information and are instructed to keep such Information confidential
in accordance with the terms hereof, (iii) to the extent such information presently is or hereafter becomes (A) publicly
available other than as a result of a breach of this Section 12.8 or (B) available to such Lender or Agent or
any of their Related Persons, as the case may be, from a source (other than any Credit Party) not known by them to be subject
to disclosure restrictions, (iv) to the extent disclosure is required by applicable law or other legal process or requested
or demanded by any Governmental Authority, including any governmental bank regulatory authority (in which case Agent shall notify
Borrower, to the extent not prohibited by law or legal process; provided that no notice shall be required in the case of disclosure
to bank regulatory authorities having jurisdiction over Agent or any Lender), (v) to the extent necessary or customary for
inclusion in league table measurements, (vi) (A) to the National Association of Insurance Commissioners or any similar organization,
any examiner or any nationally recognized rating agency or (B) otherwise to the extent consisting of general portfolio information
that does not identify Credit Parties, (vii) to current or prospective assignees or participants, and to their respective
Related Persons, in each case to the extent such assignees, participants, counterparties or Related Persons agree to be bound
by provisions substantially similar to the provisions of this Section 12.8 (and such Person may disclose information
to their respective Related Persons in accordance with clause (ii) above), (viii) to any other party hereto, (ix) in
connection with the exercise or enforcement of any right or remedy under any Loan Document, in connection with any litigation
or other proceeding to which such Lender or Agent or any of their Related Persons is a party or bound, or to the extent necessary
to respond to public statements or disclosures by Credit Parties or their Related Persons referring to a Lender or Agent or any
of their Related Persons, (x) to the National Association of Insurance Commissioners, CUSIP Service Bureau or any similar
organization, regulatory authority, examiner or nationally recognized ratings agency and (xi) to any actual or prospective
party (or its managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives)
to any swap or derivative or similar transaction under which payments are to be made by reference to Borrower and its obligations,
this Agreement or payments hereunder, in each case to the extent such Persons agree to be bound by provisions substantially similar
to the provisions of this Section 12.8. In the event of any conflict between the terms of this Section 12.8
and those of any Loan Document, the terms of this Section 12.8 shall govern.


 






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Notwithstanding
anything to the contrary set forth herein or in any other written or oral understanding or agreement to which the parties hereto
are parties or by which they are bound, the parties acknowledge and agree that (i) any obligations of confidentiality contained
herein and therein do not apply and have not applied to the federal tax treatment and federal tax structure of the Loans (the
 “Tax Structure”) (and any related transactions or arrangements) from the commencement of discussions between
the parties, and (ii) each party (and each of its employees, representatives or other agents) may disclose to any and all
persons, without limitation of any kind, the Tax Structure and all materials of any kind (including opinions or other tax analyses)
that are provided to such party relating to the Tax Structure. The preceding sentence is intended to cause the Tax Structure to
be treated as not having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any
successor provision) of the Treasury Regulations promulgated under Section 6011 of the IRC, and shall be construed in a manner
consistent with such purpose. Each party hereto acknowledges that it has no proprietary or exclusive rights to the Tax Structure.


 


12.9       
GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY
APPLICABLE LAWS OF THE UNITED STATES. EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THE CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS RELATED TO THIS
AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT
AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
OF NEW YORK COUNTY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION
THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS
SET FORTH IN SECTION 12.10 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH CREDIT PARTY’S
ACTUAL RECEIPT THEREOF OR FIVE (5) BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.


 






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12.10     
Notices.


 


(a)            Addresses. All notices, demands, requests, directions and other communications required or expressly authorized to be made
by this Agreement shall, whether or not specified to be in writing unless otherwise expressly specified to be given by any other
means, be given in writing and (i) addressed to (A) the party to be notified and sent to the address or facsimile number
indicated in this Section 12.10 (or to such other address as may be hereafter notified by the respective parties hereto),
or (B) the party to be notified at its address specified on the signature page of this Agreement or any applicable Assignment
Agreement, (ii) to the extent given by a Credit Party posted to any E-System set up by or at the direction of Agent in an
appropriate location or (iii) addressed to such other address as shall be notified in writing (A) in the case of Borrower
and Agent, to the other parties hereto and (B) in the case of all other parties, to Borrower and Agent. Transmission by electronic
mail (including E-Fax, even if transmitted to the fax numbers set forth in clause (i) above) shall not be sufficient
or effective to transmit any such notice under this clause (a) unless such transmission is an available means to post to
any E-System. Notice addresses as of the Closing Date shall be as set forth below:


 


(i)       If to Agent, at


 


Morgan
Stanley Senior Funding, Inc.

1585 Broadway

New York, New York 10036

Primary Contact: Crystal Dadd

Telephone No. (Group Hotline): (917) 260-0588

Telephone No. (Primary Contact): (917) 260-5232

Fax: (212) 507-6680

Email (Group): AGENCY.BORROWERS@morganstanley.com

Email (Primary Contact): Crystal.Dadd@morganstanley.com


 


(ii)      If to Borrower, at


 


XPO
Logistics, Inc.

Five Greenwich Office Park

Greenwich, Connecticut 06831

Attn: Gordon Devens

Fax: (203) 629-7073

Telephone No.: (203) 413-4003

Email: Gordon.devens@xpologistics.com


 


(b)          Effectiveness.


 


(i)         All communications described in clause (a) above and all other notices, demands, requests and other communications made in
connection with this Agreement shall be effective and be deemed to have been received (i) if delivered by hand, upon personal
delivery, (ii) if delivered by overnight courier service, one Business Day after delivery to such courier service, (iii) if
delivered by mail, five (5) Business Days after deposit in the mail, (iv) if delivered by facsimile or electronic mail (other
than to post to an E-System pursuant to clause (a) above) upon sender’s receipt of confirmation of proper transmission,
and (v) if delivered by posting to any E-System, on the later of the date of such posting in an appropriate location and
the date access to such posting is given to the recipient thereof in accordance with the standard procedures applicable to such
E-System. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication
to any Person (other than Borrower or Agent) designated in Section 12.10 to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. The giving of
any notice required hereunder may be waived in writing by the party entitled to receive such notice.


 






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(ii)        The posting, completion and/or submission by any Credit Party of any communication pursuant to an E-System shall constitute a
representation and warranty by the Credit Parties that any representation, warranty, certification or other similar statement
required by the Loan Documents to be provided, given or made by a Credit Party in connection with any such communication is true,
correct and complete in all material respects (to the extent required under the Loan Documents) except as expressly noted in such
communication or E-System.


 


(c)           Each Lender shall notify Agent in writing of any changes in the address to which notices to such Lender should be directed, of
addresses of its lending office, of payment instructions in respect of all payments to be made to it hereunder and of such other
administrative information as Agent shall reasonably request.


 


12.11     
Section Titles. The Section titles and Table of Contents contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.


 


12.12     
Counterparts. This Agreement may be executed in any number of separate counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.
Delivery of an executed signature page of this Agreement by facsimile transmission or Electronic Transmission shall be as effective
as delivery of a manually executed counterpart hereof.


 


12.13     
WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER
THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO KNOWINGLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT PARTY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.


 


12.14     
Press Releases and Related Matters. Each Credit Party consents to the publication by Agent or any Lender of customary advertising
material relating to the financing transactions contemplated by this Agreement using Borrower’s name, product photographs,
logo or trademark. Agent reserves the right to provide to industry trade organizations information necessary and customary for
inclusion in league table measurements.


 






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12.15     
Reinstatement. This Agreement shall remain in full force and effect should any petition be filed by or against Borrower
for liquidation or reorganization, should Borrower become insolvent or make an assignment for the benefit of any creditor or creditors
or should a receiver, interim receiver, receiver and manager or trustee be appointed for all or any significant part of Borrower’s
assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of
the Obligations hereunder, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Obligations hereunder, whether as a “voidable preference,” “fraudulent
conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Obligations hereunder shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.


 


12.16     
Advice of Counsel. Each of the parties represents to each other party hereto that it has discussed this Agreement and,
specifically, the provisions of Sections 12.9 and 12.16, with its counsel.


 


12.17     
No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement.
In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.


 


12.18     
Patriot Act Notice. Each Lender and Agent (for itself and not on behalf of any Lender) hereby notifies the Credit Parties
that pursuant to the requirements of the Patriot Act, such Lender and Agent may be required to obtain, verify and record information
that identifies the Credit Parties, which information includes the name and address of the Credit Parties and other information
that will allow such Lender and Agent, as the case may be, to identify the Credit Parties in accordance with the Patriot Act.


 


12.19     
Currency Equivalency Generally; Change of Currency.


 


(a)            For the purposes of making valuations or computations under this Agreement (but not for purposes of the preparation of any financial
statements delivered pursuant hereto), unless expressly provided otherwise, where a reference is made to a dollar amount the amount
is to be considered as the amount in Dollars and, therefore, each other currency shall be converted into the Dollar Equivalent
thereof.


 


(b)            Each provision of this Agreement shall be subject to such reasonable changes of construction as Agent may from time to time specify
with Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market conventions
or practices relating to such change in currency.


 


12.20     
[Reserved]. 


 


12.21     
Electronic Transmissions. 


 


(a)            Authorization. Subject to the provisions of Section 12.10(a), each of Agent, Lenders, each Credit Party and
each of their Related Persons, is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole
discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein. Borrower
and each Lender party hereto acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that
there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes
and accepts such risks by hereby authorizing the use of Electronic Transmissions.


 






    -145-


     


    

 


(b)            Signatures. Subject to the provisions of Section 12.10(a), (i)(A) no posting to any E-System shall be denied
legal effect merely because it is made electronically, (B) each E-Signature on any such posting shall be deemed sufficient
to satisfy any requirement for a “signature” and (C)(i) each such posting shall be deemed sufficient to satisfy any
requirement for a “writing”, in each case including pursuant to any Loan Document, any applicable provision of any
Code, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive
or procedural applicable law governing such subject matter, (ii) each such posting that is not readily capable of bearing
either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or logically associating
with such posting, an E-Signature, upon which Agent, each Lender and each Credit Party may rely and assume the authenticity thereof,
(iii) each such posting containing a signature, a reproduction of a signature or an E-Signature shall, for all intents and
purposes, have the same effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto agrees
not to contest the validity or enforceability of any posting on any E-System or E-Signature on any such posting under the provisions
of any applicable law requiring certain documents to be in writing or signed; provided, however, that nothing herein
shall limit such party’s or beneficiary’s right to contest whether any posting to any E-System or E-Signature has
been altered after transmission.


 


(c)            Separate Agreements. All uses of an E-System shall be governed by and subject to, in addition to Section 12.10
and this Section 12.21, the separate terms, conditions and privacy policy posted or referenced in such E-System
(or such terms, conditions and privacy policy as may be updated from time to time, including on such E-System) and related Contractual
Obligations executed by Agent and Credit Parties in connection with the use of such E-System.


 


(d)            LIMITATION OF LIABILITY. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS
AVAILABLE”. NONE OF AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF
ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND
IS MADE BY AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E-SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES
OR OTHER CODE DEFECTS. Each of Borrower, each other Credit Party executing this Agreement and each Lender agrees that Agent has
no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any
Electronic Transmission or otherwise required for any E-System.


 


12.22     
Independence of Provisions. The parties hereto acknowledge that this Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar matters, and that such limitations, tests and measurements
are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement.


 


12.23     
No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Credit
Parties, the Lenders, Agent, Lead Arranger, and for the purposes of Section 2.11, the Indemnified Persons and their
permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. Neither Agent nor any
Lender nor any Credit Party (except as otherwise specifically provided under the Loan Documents) shall have any obligation to
any Person not a party to this Agreement or the other Loan Documents.


 






    -146-


     


    

 


12.24     
Relationships between Lenders and Credit Parties. Borrower acknowledge and agree that the Lenders are acting solely in
the capacity of an arm’s length contractual counterparty to Borrower with respect to the Loans and other financial accommodations
contemplated hereby and not as a financial advisor or a fiduciary to, or an agent of, Borrower or any other Person. Additionally,
no Lender is advising Borrower or any other Person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.
Borrower shall consult with their own advisors concerning such matters and shall be responsible for making their own independent
investigation and appraisal of the transactions contemplated hereby, and the Lenders shall have no responsibility or liability
to Borrower with respect thereto. Any review by the Lenders of Borrower, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the Lenders and shall not be on behalf of Borrower.


 


12.25     
Intercreditor Agreements. Each Lender hereunder (a) acknowledges that it has received a copy of the Intercreditor
Agreements (attached hereto as Exhibits 1.1(b), 1.1(e) and 1.1(f)), (b) agrees that it will be bound
by and take no actions contrary to the provisions of the Intercreditor Agreements and (c) authorizes and instructs Agent
to enter into the Intercreditor Agreements as Agent on behalf of such Lender and to enter into such amendments thereto as contemplated
by Section 12.2(f) hereof. In the event of any conflict between the express terms and provisions of this Agreement
or any other Loan Document, on the one hand, and of the ABL Intercreditor Agreement or any other Intercreditor Agreement, on the
other hand, the terms and provisions of the ABL Intercreditor Agreement or any other Intercreditor Agreement, as applicable, shall
control.


 


12.26     
Acknowledgement and Consent to Bail-In of EFAAffected
Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any of thesuch
parties hereto, each party hereto acknowledges that any liability
of any EEAAffected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to
the write-down and conversion powers of an EEAthe
applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:


 


(a)           the application of any Write-Down and Conversion Powers by an EEAthe
applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto
that is an EEAAffected
Financial Institution; and


 


(b)           the effects of any Bail-in Action on any such liability, including, if applicable:


 


(i)         
a reduction in full or in part or cancellation of any such liability;


 


(ii)        
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEAAffected
Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred
on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or


 


(iii)       
the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any
EEAthe applicable Resolution Authority.


 






    -147-


     


    

 


12.27     
Acknowledgement Regarding Any Supported QFCs


 


.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement
or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”),
the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation
under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together
with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC
and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may
in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United
States):


 


(a)            In the event a Covered Entity that is party to a Supported QFC (each,
a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported
QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC
Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a
state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC
or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights
and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with
respect to a Supported QFC or any QFC Credit Support


 


13.          GUARANTY


 


13.1         
Guaranty. 


 


(a)            Each Guarantor hereby agrees that such Guarantor is jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity,
by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and the Lenders by Borrower.
Each Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection,
that its obligations under this Section 13 shall not be discharged until the repayment of the Loans and termination
of the Commitments, and that its obligations under this Section 13 shall be absolute and unconditional, irrespective
of, and unaffected by,


 


(i)         
the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan
Document or any other agreement, document or instrument to which Borrower is or may become a party;


 


(ii)        
the absence of any action to enforce this Agreement (including this Section 13) or any other Loan Document or the
waiver or consent by Agent and Lenders with respect to any of the provisions thereof;


 


(iii)      
the existence, value or condition of, or failure to perfect its Lien, if any, against, any security for the Obligations hereunder
or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);


 


(iv)      
the insolvency of any Credit Party; or


 


(v)       
any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.


 






    -148-


     


    


 


Each
Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guarantied
hereunder.


 


(b)            
Each Guarantor expressly represents and acknowledges that it is part of a common enterprise with Borrower and that any financial
accommodations by Lenders, or any of them, to Borrower hereunder and under the other Loan Documents are and will be of direct
and indirect interest, benefit and advantage to all Guarantors.


 


13.2         
Waivers by Guarantors. Each Guarantor expressly waives, to the extent permitted by law, all rights it may have now or in
the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Agent or Lenders to marshal assets
or to proceed in respect of the Obligations hereunder guarantied hereunder against any other Credit Party, any other party or
against any security for the payment and performance of the Obligations hereunder before proceeding against, or as a condition
to proceeding against, such Guarantor. It is agreed among each Guarantor, Agent and Lenders that the foregoing waivers are of
the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of
this Section 13 and such waivers, Agent and Lenders would decline to enter into this Agreement. Each Guarantor expressly
waives diligence, presentment and demand (whether for non-payment or protest or of acceptance, maturity, extension of time, change
in nature or form of the Obligations hereunder, acceptance of further security, release of further security, composition or agreement
arrived at as to the amount of, or the terms of, the Obligations hereunder, notice of adverse change in Borrower’s financial
condition or any other fact which might increase the risk to Borrower).


 


13.3         
Benefit of Guaranty. Each Credit Party agrees that the provisions of this Section 13 are for the benefit of
Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any other Credit Party and Agent or Lenders, the obligations of such other Credit Party under the Loan Documents.


 


13.4         
Subordination of Subrogation, Etc. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document,
and except as set forth in Section 13.7, each Credit Party hereby expressly and irrevocably subordinates to payment
of the Obligations hereunder any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Maturity
Date. Each Credit Party acknowledges and agrees that this subordination is intended to benefit Agent and Lenders and shall not
limit or otherwise affect such Credit Party’s liability hereunder or the enforceability of this Section 13,
and that Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 13.4.


 


13.5         
Election of Remedies. If Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the
Loan Documents giving Agent or such Lender a Lien upon any collateral, whether owned by any Credit Party or by any other Person,
either by judicial foreclosure or by non-judicial sale or enforcement, Agent or any Lender may, at its sole option, determine
which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 13.
If, in the exercise of any of its rights and remedies, Agent or any Lender shall forfeit any of its rights or remedies, including
its right to enter a deficiency judgment against any Credit Party or any other Person, whether because of any applicable laws
pertaining to “election of remedies” or the like, each Credit Party hereby consents to such action by Agent or such
Lender and waives any claim based upon such action, even if such action by Agent or such Lender shall result in a full or partial
loss of any rights of subrogation that such Credit Party might otherwise have had but for such action by Agent or such Lender.
Any election of remedies that results in the denial or impairment of the right of Agent or any Lender to seek a deficiency judgment
against any Credit Party shall not impair any other Credit Party’s obligation to pay the full amount of the Obligations
hereunder. In the event Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted
by law or the Loan Documents, Agent or such Lender may bid all or less than the amount of the Obligations hereunder and the amount
of such bid need not be paid by Agent or such Lender but shall be credited against the Obligations hereunder. The amount of the
successful bid at any such sale, whether Agent, Lender or any other party is the successful bidder, shall be conclusively deemed
to be the fair market value of the collateral and the difference between such bid amount and the remaining balance of the Obligations
shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 13, notwithstanding
that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim
to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.



    -149-


     


    



 


13.6      
Limitation. Notwithstanding any provision herein contained to the contrary, each Guarantor’s liability under this
Section 13 shall be limited to an amount not to exceed as of any date of determination the greater of:


 


(a)               
the amount of all Loans advanced to Borrower; and


 


(b)              
the amount that could be claimed by Agent and Lenders from such Guarantor under this Section 13 without rendering
such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar foreign or domestic statute or common law after taking into
account, among other things, such Guarantor’s right of contribution and indemnification from each other Guarantor under
Section 13.7.


 


13.7      
Contribution with Respect to Guaranty Obligations. 


 


(a)               
To the extent that any Guarantor shall make a payment under this Section 13 of all or any of the Obligations hereunder
(a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently
made by any other Guarantor, exceeds the amount that such Guarantor would otherwise have paid if Borrower had paid the aggregate
Obligations hereunder satisfied by such Guarantor Payment in the same proportion that such Guarantor’s “Allocable
Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts
of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following the repayment
of the Loans and termination of the Commitments, such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts
in effect immediately prior to such Guarantor Payment.


 


(b)              
As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the maximum amount
of the claim that could then be recovered from such Guarantor under this Section 13 without rendering such claim voidable
or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law.


 


(c)              
This Section 13.7 is intended only to define the relative rights of the Credit Parties and nothing set forth in this
Section 13.7 is intended to or shall impair the obligations of the Credit Parties, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the terms of, and subject to the limitations contained
in, this Agreement, including Section 13.1. Nothing contained in this Section 13.7 shall limit the liability
of Borrower to pay the Loans made to it and accrued interest, Fees and expenses with respect thereto for which it is primarily
liable.


 



    -150-


     


    



 


(d)            
The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantors
to which such contribution and indemnification is owing.


 


(e)             
The rights of the indemnifying Borrower against other Credit Parties under this Section 13.7 shall be exercisable
upon the full and indefeasible payment of the Obligations hereunder and the termination of the Commitments.


 


13.8      
Liability Cumulative. The liability of each Guarantor under this Section 13 is in addition to and shall be
cumulative with all liabilities of such Guarantor to Agent and Lenders under this Agreement and the other Loan Documents to which
such Guarantor is a party or in respect of any Obligations hereunder or obligation of the other Guarantors, without any limitation
as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.


 


13.9      
[Reserved].


 


13.10    
Release of Guaranties. A Guaranty as to any Guarantor shall automatically terminate and be of no further force or effect
and such Guarantor shall be automatically released from all obligations under this Agreement and all the Loan Documents upon:


 


(a)             
the sale, disposition, exchange or other transfer (including through merger, consolidation amalgamation or otherwise) of the Capital
Stock (including any sale, disposition or other transfer following which the applicable Guarantor is no longer a Restricted Subsidiary),
of the applicable Guarantor if such sale, disposition, exchange or other transfer is made in a manner not in violation of this
Agreement; or


 


(b)            
the designation of such Guarantor as an Unrestricted Subsidiary in accordance with the provisions of the definition of “Unrestricted
Subsidiary”; or


 


(c)             
such Subsidiary becomes an Excluded Subsidiary (as evidenced by a notice in writing from an Officer of Borrower); or


 


(d)            
repayment of all of the Loans and termination of all of the Commitments hereunder.


 


[SIGNATURE
PAGES FOLLOW]






    -151-


     


    



 


IN
WITNESS WHEREOF, this Agreement has been duly executed as of the date first written above.


 





	 	BORROWER:
	 	 	 	 
	 	 	XPO LOGISTICS, INC.
	 	 	 	 
	 	 	By: 	 
	 	 	 	Name: 	John Hardig 
	 	 	 	Title: 	Chief Financial Officer 



  





[Signature Page – Senior Secured
Term Loan Credit Agreement]








     


     

    



	 	The
                    following Persons are signatories to this

                    Agreement
                    in their capacity as Guarantors:

	 	 	 	 
	 	GUARANTORS:	 
	 	 	 	 
	 	 	GREENWICH AQ CORP
	 	 	 	 
	 	 	By: 	 
	 	 	 	Name: 	John Hardig 
	 	 	 	Title: 	Chief Executive Officer 


 





	 	PACER TRANSPORT, INC.
	 	XPO OCEAN WORLD LINES, INC.
	 	 	 	 
	 	 	By: 	 
	 	 	 	Name: 	John Hardig 
	 	 	 	Title: 	Chief Financial Officer 


  


[Signature
Page – Senior Secured Term Loan Credit Agreement]




     


     

    


	 	3PD HOLDING,
    INC.
	 	3PDIC, INC.
	 	BOUNCE LOGISTICS,
    INC.
	 	BTTS HOLDING CORPORATION
	 	BTTS INTERMEDIATE
    HOLDING CORPORATION
	 	MANUFACTURERS CONSOLIDATION
    SERVICE OF CANADA, INC.
	 	PACER SERVICES, INC.
	 	XPO AIR CHARTER,
    LLC
	 	XPO AQ, INC.
	 	XPO CARTAGE, INC.
	 	XPO COURIER, LLC
	 	XPO DEDICATED, LLC
	 	XPO DRAYAGE, INC.
	 	XPO EXPRESS, INC.
	 	XPO FLEET SERVICES,
    INC.
	 	XPO GLOBAL FORWARDING,
    INC.
	 	XPO INTERMODAL SOLUTIONS,
    INC.
	 	XPO INTERMODAL, INC.
	 	XPO LAST MILE, INC.
	 	XPO LOGISTICS SUPPLY
    CHAIN CORPORATE SERVICES, INC.
	 	XPO LOGISTICS SUPPLY
    CHAIN ECOMMERCE, INC.
	 	XPO LOGISTICS SUPPLY
    CHAIN HOLDING COMPANY
	 	XPO LOGISTICS SUPPLY
    CHAIN OF NEW JERSEY, INC.
	 	XPO LOGISTICS SUPPLY
    CHAIN OF SOUTH CAROLINA, LLC
	 	XPO LOGISTICS SUPPLY
    CHAIN OF TEXAS, LLC
	 	XPO LOGISTICS SUPPLY
    CHAIN TECHNOLOGY SERVICES, INC.
	 	XPO LOGISTICS SUPPLY
    CHAIN, INC.
	 	XPO LOGISTICS, LLC
	 	XPO NLM, INC.
	 	XPO PORT SERVICES,
    INC.
	 	XPO SERVCO, LLC
	 	XPO STACKTRAIN, LLC
	 	XPO SUPPLY CHAIN,
    INC.
	 	XPO TRANSPORT, LLC


 


	 	By:	 
	 	 	Name: 	John Hardig
	 	 	Title: 	Treasurer










 


[Signature
Page – Senior Secured Term Loan Credit Agreement]





     


     

    


	 	S & H TRANSPORT, INC.
	 	S & H LEASING, INC.
	 	XPO
    Distribution Services, Inc.
	 	 	 
	 	By: 	 
	 	 	Name: 	Gordon Devens 
	 	 	Title: 	Vice President and 
	 	 	 	Assistant Secretary 


 





	 	XPO
    Customs Clearance  Solutions, Inc.
	 	 	 
	 	By: 	 
	 	 	Name: 	Gordon Devens 
	 	 	Title: 	Vice President and
	 	 	 	Secretary 


 





	 	BTTS INSURANCE RISK RETENTION
     GROUP, INC.
	 	 	 
	 	By: 	 
	 	 	Name: 	Gordon Devens 
	 	 	Title: 	President








 


[Signature
Page – Senior Secured Term Loan Credit Agreement] 




     


     

    


	 	CTP
LEASING, INC.
	 	 	 
	 	By: 	 
	 	 	Name: 	Ryan Brenan 
	 	 	Title: 	President


 





	 	PDS
TRUCKING, INC.
	 	 	 
	 	By: 	 
	 	 	Name: 	Ryan Brenan 
	 	 	Title: 	Controller & Treasurer


 


[Signature
Page – Senior Secured Term Loan Credit Agreement]




     


     

    


	 	AGENT:
	 	 
	 	MORGAN STANLEY SENIOR FUNDING,
    INC., as Agent
	 	 	 
	 	By: 	 
	 	Name:  
	 	Title:  





 


[Signature
Page – Senior Secured Term Loan Credit Agreement]






     


     

    


	 	LENDERS:
	 	 
	 	[_____], as a Lender
	 	 	 
	 	By: 	 
	 	Name:  
	 	Title:  





 


[Signature
Page – Senior Secured Term Loan Credit Agreement]




     


     

    



ANNEX
A

TO

CREDIT AGREEMENT


 


WIRE
TRANSFER INFORMATION


 


		To:	Citibank,
N.A.






		Via:	ABA
No. 021-000-089






		Account
                            Name:	Morgan
Stanley Senior Funding, Inc.






		Account
                            No.:	406-99-776






		Reference:	XPO
Logistics Term Loan Credit Agreement






		Attention:	Loan
Ops - AGENCY TEAM







     


     

    



ANNEX
B

TO

CREDIT AGREEMENT


 


	Lender(s)	Commitment
	Morgan
    Stanley Senior Funding, Inc.	$1,600,000,000
	TOTAL	$1,600,000,000




     


     

    

SCHEDULE
(2.1)

TO

CREDIT AGREEMENT


 


AGENTS’
REPRESENTATIVES


 


Morgan
Stanley Senior Funding, Inc.

1585 Broadway

New York, New York 10036


 


Loan
Administration:


 


Group
Hotline

Telephone: (917) 260-0588

Fax: (212) 507-6680

Email: AGENCY.BORROWERS@morganstanley.com


 


Escalations: 


Primary
Contact: Crystal Dadd

Telephone: (917) 260-5232

Email: Crystal.Dadd@morganstanley.com