ablthirdamendmentoct2019






                                                                EXECUTION VERSION                       THIRD AMENDMENT TO CREDIT AGREEMENT          THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of October  21, 2019 among ROADRUNNER TRANSPORTATION SYSTEMS, INC., a Delaware corporation (the  “Company”),  each  of  the  Subsidiaries  of  the  Company  identified as  “Subsidiary  Guarantors”  on  the  signature pages to the Credit Agreement (the “Subsidiary Guarantors”), the Lenders (as defined below)  party  hereto  and  BMO  HARRIS  BANK  N.A.,  as  Administrative  Agent (the  “ABL  Administrative  Agent”), each of which is a party to the Existing Credit Agreement (as defined below).         WHEREAS,  Company,  the  Subsidiary  Guarantors,  the  financial  institutions  from  time  to  time  party  thereto  as  lenders  (the  “Lenders”)  and  the  ABL  Administrative  Agent  are  parties  to  that  certain  Credit Agreement dated as of February 28, 2019 (as amended, supplemented, or otherwise modified from  time  to  time  prior  to  this  Amendment  and  as  in  effect  immediately  prior  to  the  effectiveness  of  this  Amendment, the “Existing Credit Agreement”, and as amended by this Amendment and as may be further  amended,  supplemented  or  otherwise  modified  and  in  effect  from time  to  time,  the  “Amended  Credit  Agreement”).         WHEREAS, the Company and the Subsidiary Guarantors request that the Lenders and the ABL  Administrative  Agent  amend  the  Existing  Credit  Agreement  in  certain  respects,  and  the  Lenders  party  hereto and the ABL Administrative Agent are willing to so amend the Existing Credit Agreement, as set  forth below.         NOW  THEREFORE,  in  consideration  of  the  foregoing  and  for  other good  and  valuable  consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:         Section 1.    Definitions.  Except as otherwise defined in this Amendment, terms defined in  the Amended Credit Agreement are used herein as defined therein.         Section 2.    Amendments to the Existing Credit Agreement.  The Company, the Subsidiary  Guarantors, the Lenders and the ABL Administrative Agent agree that on the Third Amendment Effective  Date, the Existing 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 double-underlined text (indicated  textually in the same manner as the following example: double-underlined text) as set forth in the changed  pages (including the Specified Disposition Summary in Schedule A) attached as Exhibit A hereto. Each of  the parties acknowledges and agrees that its obligations under the Loan Documents are, effective as of the  Third Amendment Effective Date, modified as necessary to accommodate the amendment of the Existing  Credit Agreement pursuant hereto.           Section 3.   Representations and Warranties of the Loan Parties.  The Loan Parties represent  and warrant to the ABL Administrative Agent and the Lenders that as of the Third Amendment Effective  Date:          3.01. each  of  the  representations  and  warranties  set  forth  in  the  Amended  Credit Agreement  and in the other Loan Documents are true and correct in all respects (or in all material respects for such  representations and warranties that are not by their terms already qualified as to materiality) as of the date  hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in  which case they shall be true and correct in all respects (or in all material respects for such representations  and warranties that are not by their terms already qualified as to materiality) as of such earlier date, and  except  that  for  purposes  of  this Section 3.01,  (i)  the  representations  and  warranties  contained  in  Section 6.05(a) and (c) of the Amended Credit Agreement shall be deemed to refer to the most recent  statements furnished pursuant to clause (a) of Section 7.01 of the Amended Credit Agreement and (ii) the    AmericasActive:14002698.6 





 






   representations and warranties contained in Section 6.05(b) of the Amended Credit Agreement shall be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clause (b)  of  Section 7.01  of  the  Amended Credit Agreement; and          3.02. both immediately before and after giving effect to this Amendment and the transactions  contemplated hereby, no Default shall have occurred and be continuing, or would result therefrom.          Section 4.   Conditions  Precedent  to  this  Amendment.   This  Amendment  shall  become  effective  as  of  the  date,  upon  which  each  of  the  following  conditions  precedent  shall  be  satisfied  or  waived (the “Third Amendment Effective Date”):         4.01.  Amendment.   The  ABL  Administrative  Agent  shall  have  received  counterparts  of  this  Amendment,  executed  by  the  Loan  Parties,  the  ABL  Administrative  Agent  and  the  Required  Supermajority Lenders.          4.02. Term  Loan  Amendment.  The  ABL  Administrative  Agent  shall  have  received  a  fully  executed  copy  of  the  Third  Amendment  to  the  Term  Loan  Agreement  with  substantially  similar  amendments  to  this  Amendment  and otherwise  in  form  and  substance  acceptable  to  the  ABL  Administrative Agent.          4.03. Amendment  Fee.   As  consideration  for  the  agreements  set  forth  herein,  the  Company  agrees to pay to the Lenders on a pro rata basis an amendment fee equal to $250,000.          4.04. Costs and Expenses.  The Company shall have paid all reasonable and documented and  invoiced  out-of-pocket  costs  and  expenses  of  the  ABL  Administrative  Agent  in  connection  with  this  Amendment.          Section 5.   Reference to and Effect Upon the Existing Credit Agreement.         5.01.  Except as specifically amended or waived above, the Existing Credit Agreement and the  other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and  confirmed.         5.02.  The  execution,  delivery  and  effectiveness  of  this  Amendment  shall  not  operate  as  a  waiver of any right, power or remedy of the ABL Administrative Agent or any Lender under the Existing  Credit Agreement or any Loan Document, nor constitute a waiver of any provision of the Existing Credit  Agreement or any Loan Document, except as specifically set forth herein.          Section 6.   Ratification  of  Liability.  As  of  the  Third  Amendment  Effective Date,  the  Company  and  the  other  Loan  Parties,  as  debtors,  grantors,  pledgors,  guarantors,  assignors,  or  in  other  similar capacities in which such parties grant liens or security interests in their properties or otherwise act  as accommodation parties or guarantors, as the case may be, under the Loan Documents to which they are  a party, hereby ratify and reaffirm all of their payment and performance obligations and obligations to  indemnify, contingent or otherwise, under each of such Loan Documents to which they are a party, and  ratify and reaffirm their grants of liens on or security interests in their properties pursuant to such Loan  Documents to which they are a party, respectively, as security for the Obligations, and as of the Third  Amendment  Effective  Date,  each  such  Person  hereby  confirms  and agrees  that  such  liens  and  security  interests hereafter secure all of the Obligations, including, without limitation, all additional Obligations  hereafter  arising  or  incurred  pursuant  to  or  in  connection  with  this  Amendment,  the  Amended  Credit  Agreement or any other Loan Document. As of the Third Amendment Effective Date, the Company and  the other Loan Parties further agree and reaffirm that the Loan Documents to which they are parties now                                              2  AmericasActive:14002698.6 





 






   apply to all Obligations as defined in the Amended Credit Agreement (including, without limitation, all  additional Obligations hereafter arising or incurred pursuant to or in connection with this Amendment, the  Amended Credit Agreement or any other Loan Document). As of the Third Amendment Effective Date,  the Company and the other Loan Parties (a) further acknowledge receipt of a copy of this Amendment, (b)  consent  to  the  terms  and  conditions  of  same,  and  (c)  agree  and acknowledge  that  each  of  the  Loan  Documents to which they are a party remain in full force and effect and is hereby ratified and confirmed.          Section 7.   Miscellaneous.  Except as herein provided, the Existing Credit Agreement shall  remain unchanged and in full force and effect.  This Amendment is a Loan Document for all purposes of  the Amended Credit Agreement. This Amendment may be executed in any number of counterparts, and  by  different  parties  hereto  on  separate  counterpart  signature  pages,  and  all  such  counterparts  taken  together shall be deemed to constitute one and the same instrument.  Delivery of a counterpart signature  page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also  known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page.   Section headings used in this Amendment are for reference only and shall not affect the construction of  this Amendment.          Section 8.   GOVERNING  LAW.   THIS  AMENDMENT,  AND  THE  RIGHTS  AND  DUTIES  OF  THE  PARTIES  HERETO,  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN  ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.          Section 9.   Release  and  Waiver.  The  Loan  Parties  each  do  hereby  release  the ABL  Administrative Agent and each of the Lenders and each of their officers, directors, employees, agents,  attorneys, personal representatives, successors, predecessors and assigns from all manner of actions, cause  and  causes  of  action,  suits,  deaths,  sums  of  money,  accounts,  reckonings,  bonds,  bills,  specialties,  covenants,  controversies,  agreements,  promises,  variances,  trespasses,  damages,  judgments,  executions,  claims and demands, whatsoever, in law or in equity, and particularly, without limiting the generality of  the foregoing, in connection with the Amended Credit Agreement and the other Loan Documents and any  agreements, documents and instruments relating to the Amended Credit Agreement and the other Loan  Documents and the administration of the Amended Credit Agreement and the other Loan Documents, all  indebtedness,  obligations  and  liabilities  of  the  Loan  Parties  to  the  ABL  Administrative  Agent  or  any  Lender and any agreements, documents and instruments relating to the Amended Credit Agreement and  the other Loan Documents (collectively, the “Claims”), which the Loan Parties now have against the ABL  Administrative Agent or any Lender or ever had, or which might be asserted by their heirs, executors,  administrators, representatives, agents, successors, or assigns based on any Claims which exist on or at  any time prior to the date of this Amendment.  The Loan Parties expressly acknowledge and agree that  they have been advised by counsel in connection with this Amendment and that they each understand that  this Section 9 constitutes a general release of the ABL Administrative Agent and the Lenders and that  they  each  intend  to  be  fully  and  legally  bound  by  the  same.   The  Loan  Parties  further  expressly  acknowledge  and  agree  that  this  general  release  shall  have  full  force  and  effect  notwithstanding  the  occurrence  of  a  breach  of  the  terms  of  this  Amendment  or  an  Event  of  Default  or  Default  under  the  Amended Credit Agreement.                                    [signature pages follow]                                               3  AmericasActive:14002698.6 





 












 












 












 












 












 






                           EXHIBIT A                   Changed pages to Credit Agreement                              [Attached.]                                    





 






                                                                EXECUTION VERSION             CONFORMED THROUGH SECONDTHIRD AMENDMENT, DATED SEPTEMBER                                                                     13OCTOBER 21, 2019                                    CREDIT AGREEMENT                                 Dated as of February 28, 2019                                          among                     ROADRUNNER TRANSPORTATION SYSTEMS, INC.,                                      as a Borrower                                            and    THE SUBSIDIARIES OF ROADRUNNER TRANSPORTATION SYSTEMS, INC. SIGNATORY                         HERETO AS SUBSIDIARY GUARANTORS,                                    each as a Guarantor,                                            and                            CERTAIN FINANCIAL INSTITUTIONS,                                        as Lenders,                                            and                                 BMO HARRIS BANK N.A.,                        as Administrative Agent and Swing Line Lender,                                            and                            BMO CAPITAL MARKETS CORP., and                     WELLS FARGO BANK, NATIONAL ASSOCIATION,                        as Joint Lead Arrangers and Joint Book Runners   AmericasActive:14016681.114016681.2





 






                                TABLE OF CONTENTS                                                                                    Page  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS                                           1   1.01   Defined Terms                                                               1   1.02   Other Interpretive Provisions                                            4648   1.03   Accounting Terms                                                         4748   1.04   Uniform Commercial Code                                                  4849   1.05   Rounding                                                                 4849   1.06   Times of Day                                                             4849   1.07   Letter of Credit Amounts                                                 4850 ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS                                  4850   2.01   Loan Commitments                                                         4850   2.02   Borrowings, Conversions and Continuations of Loans                       5052   2.03   Letters of Credit                                                        5253   2.04   Swing Line Loans                                                         5860   2.05   Repayment of Loans                                                       6163   2.06   Prepayments                                                              6163   2.07   Termination or Reduction of Commitments                                  6365   2.08   Interest                                                                 6466   2.09   Fees                                                                     6466   2.10   Computation of Interest and Fees                                         6567   2.11   Evidence of Debt                                                         6567   2.12   Payments Generally; the Administrative Agent’s Clawback                  6668   2.13   Sharing of Payments by Lenders                                           6770   2.14   Settlement Among Lenders                                                 6870   2.15   Nature and Extent of Each Borrower’s Liability                           6971   2.16   Cash Collateral                                                          7274   2.17   Defaulting Lenders                                                       7375   2.18   Increase in Revolving Credit Commitments                                 7577   2.19   Designation of Subsidiaries as Unrestricted Subsidiaries                 7678 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY                                7779   3.01   Taxes                                                                    7779   3.02   Illegality                                                               8083   3.03   Inability to Determine Rates; Discontinuation of LIBOR                   8183   3.04   Increased Costs; Reserves on LIBOR Loans                                 8284   3.05   Compensation for Losses                                                  8386                                              i





 






  3.06   Mitigation Obligations; Replacement of Lenders                           8486 ARTICLE IV SECURITY AND ADMINISTRATION OF COLLATERAL                              8487   4.01   Security                                                                 8487   4.02   Collateral Administration                                                8587   4.03   After Acquired Property; Further Assurances                              8689   4.04   Cash Management                                                          8790   4.05   Information Regarding Certain Collateral                                 8991 ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS                               8992   5.01   Conditions of Initial Credit Extension                                   8992   5.02   Conditions to all Credit Extensions                                      9295 ARTICLE VI REPRESENTATIONS AND WARRANTIES                                         9395   6.01   Existence, Qualification and Power                                       9395   6.02   Authorization; No Contravention                                          9396   6.03   Governmental Authorization; Other Consents                               9396   6.04   Binding Effect                                                           9396   6.05   Financial Statements; No Material Adverse Effect                         9396   6.06   Litigation                                                               9497   6.07   No Default                                                               9497   6.08   Ownership of Property; Liens                                             9497   6.09   Environmental Compliance                                                 9597   6.10   Insurance                                                                9598   6.11   Taxes                                                                    9698   6.12   ERISA Compliance                                                         9699   6.13   Subsidiaries and Equity Interests                                        9799   6.14   Margin Regulations; Investment Company Act                              97100   6.15   Disclosure                                                              97100   6.16   Compliance with Laws                                                    97100   6.17   Intellectual Property; Licenses, Etc                                    97100   6.18   Labor Matters                                                           98100   6.19   Deposit Accounts, Securities Accounts and Commodity Accounts            98101   6.20   Accounts                                                                98101   6.21   Anti-Terrorism Laws and Foreign Asset Control Regulations               99102   6.22   Brokers                                                                100103   6.23   Customer and Trade Relations                                           100103   6.24   Material Contracts                                                     101103   6.25   Casualty                                                               101103                                             ii





 






  6.26   Senior Indebtedness                                                    101104   6.27   Relations with Vendors and Customers                                   101104   6.28   Aircraft Parts                                                         101104   6.29   Rolling Stock                                                          101104   6.30   Aircraft Matters.                                                      102105   6.31   No Agency Relationship                                                 103105   6.32      Beneficial Ownership Certification                                     103   6.32                                                                             106 ARTICLE VII AFFIRMATIVE COVENANTS                                               103106   7.01   Financial Statements                                                   103106   7.02   Borrowing Base Certificate; Other Information                          104107   7.03   Notices                                                                106109   7.04   Payment of Obligations                                                 107110   7.05   Preservation of Existence, Etc                                         107110   7.06   Maintenance of Properties                                              108111   7.07   Maintenance of Insurance; Condemnation Proceeds                        108111   7.08   Compliance with Laws                                                   109112   7.09   Books and Records                                                      109112   7.10   Inspection Rights and Appraisals; Meetings with the Administrative Agent 109112   7.11   Use of Proceeds                                                        110113   7.12   New Subsidiaries                                                       110113   7.13   Compliance with ERISA                                                  111114   7.14   Further Assurances                                                     111114   7.15   Licenses                                                               112115   7.16   Environmental Laws                                                     112115   7.17   Leases, Mortgages and Third-Party Agreements                           112115   7.18   Material Contracts                                                     112115   7.19   Treasury Management and Other Services                                 113116   7.20   Freight Payables                                                       113116   7.21   Post-Closing Agreements                                                113116   7.22   Beneficial Ownership Regulation.       1137.22 Beneficial Ownership Regulation 116   . The Borrower shall provide written notice of any applicable changes relating to compliance with the    Beneficial Ownership Regulation and shall deliver to the Administrative Agent any information and    documentation reasonably requested by the Administrative Agent or any Lender for purpose of    compliance with the Beneficial Ownership Regulation.                             116 ARTICLE VIII NEGATIVE COVENANTS                                                 114117   8.01   Indebtedness                                                           114117                                            iii





 






  8.02   Liens                                                                  116120   8.03   Investments                                                            117121   8.04   Fundamental Changes                                                    119122   8.05   Dispositions                                                           119123   8.06   Restricted Payments                                                    120124   8.07   Change in Nature of Business                                           121124   8.08   Transactions with Affiliates                                           121124   8.09   Burdensome Agreements                                                  121125   8.10   Use of Proceeds                                                        121125   8.11   Prepayment of Indebtedness; Amendment to Material Agreements           121125   8.12   Financial Covenant                                                     122126   8.13   Creation of New Subsidiaries                                           122126   8.14   Securities of Subsidiaries                                             123126   8.15   Sale and Leaseback                                                     123126   8.16   Organization Documents; Fiscal Year                                    123127   8.17   [Reserved].                                                            123127   8.18   Anti-Money Laundering and Terrorism Laws and Regulations               123127   8.19   Economic Sanctions Laws and Regulations                                124128   8.20   No Agency Relationship                                                 124128   8.21   Aircraft Operations                                                    124128 ARTICLE IX EVENTS OF DEFAULT AND REMEDIES            124events of default and remedies 128   9.01   Events of Default                                                      124128   9.02   Remedies Upon Event of Default                                         126130   9.03   Application of Funds                                                   127131 ARTICLE X ADMINISTRATIVE AGENT                                                  129133   10.01  Appointment and Authority                                              129133   10.0210.03                                                           Rights as a Lender          129133   10.0310.04                                                       Exculpatory Provisions          129133   10.0410.05                                            Reliance by the Administrative Agent          130134   10.0510.06                                                         Delegation of Duties          131135   10.0610.07                                         Resignation of the Administrative Agent          131135   10.0710.08                        Non-Reliance on the Administrative Agent and Other Lenders          132136                                             iv





 






  10.0810.09                                                         No Other Duties, Etc          132136   10.0910.10                  The Administrative Agent May File Proofs of Claim; Credit Bidding          132136   10.10  Collateral Matters                                                        133   10.11  Other Collateral Matters                                               133137   10.12  Other Collateral Matters                                                  138   10.13  Credit Product Arrangement Provisions                                  134138 ARTICLE XI MISCELLANEOUS                                                        135139   11.01  Amendments, Etc                                                        135139   11.02  Notices; Effectiveness; Electronic Communication                       138142   11.03  No Waiver; Cumulative Remedies                                         139144   11.04  Expenses; Indemnity; Damage Waiver                                     140144   11.05  Marshalling; Payments Set Aside                                        142146   11.06  Successors and Assigns                                                 142147   11.07  Treatment of Certain Information; Confidentiality                      147152   11.08  Right of Setoff                                                        148153   11.09  Interest Rate Limitation                                               149153   11.10  Counterparts; Integration; Effectiveness                               149153   11.11  Survival                                                               149153   11.12  Severability                                                           149154   11.13  Replacement of Lenders                                                 150154   11.14  Governing Law; Jurisdiction; Etc                                       151155   11.15  Waiver of Jury Trial                                                   151156   11.16  Electronic Execution of Assignments and Certain Other Documents        152156   11.17  USA PATRIOT Act Notice                                                 152156   11.18  No Advisory or Fiduciary Responsibility                                152157   11.19  Attachments                                                            153157   11.20  Acknowledgement and Consent to Bail-In of EEA Financial Institutions   153157   11.21                                                           Real            Estate  Collateral....................................................................................152 ARTICLE XII CONTINUING GUARANTY                                                 154159   12.01  Guaranty                                                               154159   12.02  Rights of Lenders                                                      155159   12.03  Certain Waivers                                                        155159   12.04  Obligations Independent                                                155160   12.05  Subrogation                                                            155160   12.06  Termination; Reinstatement                                             156160                                             v





 






12.07  Subordination                                                          156160 12.08  Stay of Acceleration                                                   156160 12.09  Condition of Borrowers                                                 156161 12.10  Keepwell                                                               156161                                            vi





 






SCHEDULES  1.01             Existing Letters of Credit 1.02             Unrestricted Subsidiaries 1.03             [Reserved] 1.04             [Reserved] 2.01             Commitments and Applicable Percentages 4.05             Information Regarding Collateral 6.06             Litigation 6.08             Owned and Ground Lease Real Property 6.09             Environmental Matters 6.10             Insurance 6.12             Pension Plans 6.13             Subsidiaries and Equity Interests 6.18             Labor Matters 6.19             Deposit Accounts, Securities Accounts and Commodity Accounts 6.24             Material Contracts 6.28             Aircraft Parts Locations 6.29(a)          Rolling Stock 6.29(b)          Rolling Stock Locations 6.30(a)          Aircraft 6.30(b)          Aircraft Locations 7.21             Post-Closing Agreements 8.01             Existing Indebtedness 8.02             Existing Liens 8.03             Existing Investments 8.08             Transactions with Affiliates 11.02            Addresses for Notices 11.06            Disqualified Institutions A                Specified Disposition Summary  EXHIBITS                  Form of A               Revolving Credit Loan Note B               Compliance Certificate C               Security Agreement D               Borrowing Base Certificate E               Assignment and Assumption Agreement F               Joinder Agreement F                               Joinder Agreement                                             vii





 






                                CREDIT AGREEMENT         This  Credit  Agreement  (this  “Agreement”)  is  entered  into  as  of  February  28,  2019,  among Roadrunner  Transportation  Systems,  Inc.,  a  Delaware  corporation (the “Company”),  those  additional Persons that are joined as a party hereto by executing a joinder (the Company and such joined Persons each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”), each of the Subsidiaries  of  the  Company  identified  as  “Subsidiary Guarantors”  on  the  signature  pages  to  this Agreement  (together  with  those  additional  entities  that  hereafter  become  parties  hereto  as  “Subsidiary Guarantors” in accordance with the terms hereof, individually, a “Subsidiary Guarantor” and collectively the  “Subsidiary Guarantors”),  each  of  the  Lenders  form  time  to  time  party  hereto  (collectively,  the “Lenders” and individually, a “Lender”), and BMO Harris Bank N.A., as Administrative Agent, Swing Line Lender and a Letter of Credit Issuer.                                   Preliminary Statements        A.     The  Borrowers  have  requested  that  Lenders,  the  Swing  Line  Lender  and  the  Letter  of Credit  Issuer  provide  certain  credit  facilities  to  the  Borrowers  to  finance  their  mutual  and  collective business enterprise.       B.     Lenders are willing to provide the credit facilities on the terms and conditions set forth in this Agreement.        In  consideration  of  the  mutual  covenants  and  agreements  herein contained,  the  parties  hereto covenant and agree as follows:                                       ARTICLE I                        DEFINITIONS AND ACCOUNTING TERMS        1.01   Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:         “ABL Priority Collateral” has the meaning given such term in the Intercreditor Agreement.         “Acceptable Letters of Credit” means one or more standby letters of credit satisfying each of the following:   (a)  issued  by  HSBC  Bank  USA,  National  Association  or  another  bank  acceptable  to  the Administrative  Agent,  (b) Elliott  Associates, L.P.a  Permitted  Holder  is  the  applicant,  (c)  BMO,  as administrative agent, is the beneficiary, (d) expiration no earlier than DecemberMarch 31, 20192020, (e) may be drawn by the Administrative Agent upon the earlier of (i) an Event of Default and (ii) 30 days prior  the  expiration  date  for  such  letter  of  credit  if  it  has  not  been  replaced  or  extended  on  terms  and conditions acceptable to the Administrative Agent and the Required Lenders and (f) otherwise on terms and  conditions  acceptable  to  the  Administrative  Agent  and  the  Required  Lenders;  provided  that  the Administrative  Agent  shall  return  such  letter  of  credit  (and  remove  such  letter  of  credit  from  the Borrowing Base) upon request of the Borrower Agent and satisfaction of the following conditions:  (i) as  of the date of return of such  letter of credit and  immediately after  giving  effect thereto, no  Event of  Default has occurred and is continuing, (ii) Adjusted Excess Availability immediately before and after  giving Pro Forma  Effect to return of such letter of credit (and removing such letter of credit from the  Borrowing Base), and on an average basis after giving Pro Forma Effect to return of such letter of credit  (and  removing such  letter of credit  from the  Borrowing  Base)  during the thirty  (30)  consecutive day  period ending on and including the date of return of such letter of credit, shall be not less than, the greater  of (A)  20.0% of the Maximum  Borrowing  Amount and (B)  $40,000,000 and  (iii) the  Administrative  Agent shall have received a certificate of a Responsible Officer of the Borrower Agent certifying as to     1





 






compliance with the preceding clauses and demonstrating (in reasonable detail) the calculations required  therebyPayment Conditions.        “Acceptable  Letter of Credit  Reimbursement  Agreement”  means  that  certain  RRTS  –  Elliott Letter of Credit Fee Letter dated as of August 2, 2019 among the Permitted Holders and the Company, as  amended by the First Amendment to Fee Letter dated as of August 20, 2019 and the Second Amendment  to Fee Letter dated as of October 21, 2019.        “Account” means “accounts” as defined in the UCC.        “Account Debtor” means any Person who is obligated under or on account of any Account.        “ACH” means automated clearing house transfers.         “Acquisition”  means  the  acquisition  of  (a)  a  controlling  equity  or  other  ownership  interest  in another Person, whether by purchase of such equity or other ownership interest or upon exercise of an option  or  warrant  for,  or  conversion  of  securities  into,  such  equity  or  other  ownership  interest,  or  (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business conducted by such Person.         “Additional Commitment Lender” has the meaning specified in Section 2.18(c).        “Adjusted Excess Availability” means Availability plus Qualified Unrestricted Cash.         “Adjustment Date” has the meaning specified in the definition of “Applicable Margin.”        “Administrative  Agent”  means  BMO  Harris  Bank  N.A.,  in  its  capacity  as  administrative  agent under any of the Loan Documents, or any successor administrative agent.         “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower Agent and the Lenders.         “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.        “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.         “Agent Indemnitee” has the meaning specified in Section 11.04(c).         “Agent Indemnitee Liabilities” has the meaning specified in Section 11.04(c).        “Aggregate Revolving Credit Commitments” means, as at any date of determination thereof, the sum of all Revolving Credit Commitments of all Lenders at such date.        “Agreement” has the meaning specified in the introductory paragraph hereof.     2





 






      “Anti-Corruption Laws” shall have the meaning specified in Section 6.21.        “Anti-Money Laundering Laws” shall have the meaning specified in Section 8.18.        “Applicable Margin” means:         (a)    prior to the Third Amendment Effective Date, with respect to any Loan, the percentages  per annum set forth in this Agreement as in effect prior to the Third Amendment Effective Date;         (b)    on and after the Third  Amendment  Effective  Date, with  respect  to  any  Loan,  the percentages  per  annum  set  forth  below,  as  based  upon  the  Average  Availability  for  the  immediately preceding fiscal quarter:           Average Availability                              LIBOR FILO    Base Rate FILO  Level                        LIBOR Loans   Base Rate Loans   Loans          Loans   I    > $60,000,000    1.50%      0.50%      2.50%      1.50%      3.50%   1.50%2.50%       ≤ $60,000,000 but   II   > $30,000,000    1.75%      0.75%      2.75%      1.75%      3.75%   1.75%2.75%  III   <  $30,000,000   2.00%      1.00%      3.00%      2.00%      4.00%   2.00%3.00%  From the Closing Date until the first day of each fiscal quarter, commencing with October 1, 2019 (the “Adjustment Date”) margins shall be determined as if Level II were applicable. Thereafter, any increase or  decrease  in  the  Applicable  Margin  resulting  from  a  change  in  Average  Availability  shall  become effective  as  of  each  Adjustment  Date  based  upon  Average  Availability  for  the  immediately  preceding fiscal quarter.  If any Borrowing Base Certificate (including any required financial information in support thereof)  of  the  Borrowers  is  not  received  by  Administrative  Agent  by  the  date  required  pursuant  to Section 7.02(a), then the Applicable Margin shall be determined as if the Average Availability for the immediately preceding fiscal quarter is at Level III until such time as such Borrowing Base Certificate and supporting information are received.         “Applicable  Percentage”  means,  with  respect  to  any  Revolving  Credit  Lender  at  any  time,  the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility, represented by the amount of the Revolving Credit Commitment of such Revolving Credit Lender at such time; provided that  if  the  Aggregate  Revolving  Credit  Commitments  have  been  terminated  at  such  time,  then  the Applicable  Percentage  of  each  Revolving  Credit  Lender  shall  be the  Applicable  Percentage  of  such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments.   The  initial  Applicable  Percentage  of  each  Lender with  respect  to  the  Revolving  Credit Facility  is  set  forth  opposite  the  name  of  such  Lender  on  Schedule 2.01  or  in  the  Assignment  and Assumption pursuant to which such Lender becomes a party hereto, as applicable.         “Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any  time,  such  Revolving  Credit  Lender’s  Applicable  Percentage in  respect  of  the  Revolving  Credit Facility at such time.         “Approved  Fund”  means  any  Fund  that  is  administered  or  managed  by  (a)  a  Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Arrangers” means BMO Capital and Wells Fargo Bank, National Association.    4





 






      “Assignment and  Assumption”  means  an  assignment  and  assumption  entered  into  by  a  Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and  accepted  by  the  Administrative  Agent,  in  substantially  the form  of  Exhibit E  or  any  other  form approved by the Administrative Agent.         “Assumed  Indebtedness”  means Indebtedness of a Person which is (a) in existence at the time such Person becomes a Subsidiary or (b) assumed in connection with an Investment in or Acquisition of such  Person,  and  which,  in  each  case,  (i)  has  not  been  incurred  or  created  in  connection  with,  or  in anticipation  or  contemplation  of,  such  Person  becoming  a  Subsidiary,  (ii)  only  such  Person  (or  its Subsidiaries so acquired) are obligors with respect to such Indebtedness, (iii) such Indebtedness is not a revolving loan facility; and (iv) such Indebtedness is not secured by any Liens on Accounts or Aircraft Parts.        “Attributable  Indebtedness”  means,  on  any  date,  (a)  in  respect  of  any  Capital  Lease  of  any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such  date  in  accordance  with  GAAP,  (b)  in  respect  of  any  Synthetic  Lease  Obligation,  the  capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease, and (c) in respect of any sale and leaseback transaction, the present value (discounted at the implied interest rate in such transaction compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including  any  period  for  which  such  lease  has  been  extended  or  may,  at  the  option  of  the  lessor,  be extended).        “Audited Financial Statements” means the audited Consolidated balance sheet of the Company and  its  Subsidiaries  as  of  December  31,  2017,  and  the  related  Consolidated  statement  of  operations, stockholders’  investment  and  cash  flows  for  the  fiscal  year  of the  Company  and  its  Subsidiaries  then ended, including the notes thereto.        “Auditor” has the meaning specified in Section 7.01(a).        “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).         “Availability”  means  (a)  the  Maximum  Borrowing  Amount  minus  (b)  Total  Revolving  Credit Outstandings.         In calculating Availability at any time and for any purpose under this Agreement, the Borrower Agent, on behalf of the Borrowers, shall certify to the Administrative Agent that all accounts payable and Taxes are being paid on a timely basis consistent with past practices (absent which the Administrative Agent may establish a Reserve therefor).          “Availability Block”  means  an  amount  equal  to  (i)  $10,000,000  until the  Consolidated Fixed  Charge  Coverage  Ratio is  equal to or  greater than 1.25 to  1.00, as  evidenced by the  Compliance  Certificate required by Section 7.02(c) for the most recently ended Measurement Period, and (ii) $0 on  the first  Business Day after  delivery of such  Compliance  Certificate and at all  times  thereafter.a)  $10,000,000 plus (b) on and after the  receipt of Net  Cash  Proceeds  from the  Specified  Disposition  referenced in  Section 1 of  Schedule A  hereto, the  greater of (i)  $7,500,000 and  (ii)  50% of the  Unrestricted Net  Cash  Proceeds  from the  Specified  Disposition referenced in Section 1 of Schedule A  hereto plus (c) on and after the receipt of Net Cash Proceeds from the Specified Disposition referenced in    5





 






Section 2 of Schedule A hereto, the greater of (i) $1,500,000 and (ii) 50% of the Unrestricted Net Cash  Proceeds from the Specified Disposition referenced in Section 2 of Schedule A hereto.        “Availability Period”  means  in  respect  of  the  Revolving  Credit  Facility,  the  period  from  the Closing Date to the Revolving Credit Termination Date.         “Availability  Reserves”  means,  without  duplication  of  any  other  Reserves  or  items  that  are otherwise  addressed  or  excluded  through  eligibility  criteria,  such  reserves  as  the  Administrative  Agent from  time  to  time  determines  in  its  Permitted  Discretion  as  being  appropriate  (a)  to  reflect  the impediments  to  the  Administrative  Agent’s  ability  to  realize  upon  the  Collateral  consisting  of  Eligible Accounts,  (b)  to  reflect  sums  that  any  Loan  Party  could  reasonably  be  expected  to  be  required  to  pay under  any  Section  of  this  Agreement  or  any  other  Loan  Document (including  taxes,  assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay in a timely manner consistent with past practice, (c) to reflect amounts for which claims  are  reasonably  expected  to  be  asserted  against  the  Collateral,  the  Administrative  Agent  or  the Lenders  or  (d)  to  reflect  criteria,  events,  conditions,  contingencies  or  risks  which  adversely  affect  any component of the Borrowing Base, or the assets, business, financial performance or financial condition of any Loan Party.  Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on (but without duplication of other reserves or adjustments): (i) Rent and  Charge  Reserves;  (ii)  customs  duties;  (iii)  outstanding  Taxes  and  other  governmental  charges, including,  without  limitation,  ad  valorem,  real  estate,  personal  property,  sales,  and  other  Taxes  which could  reasonably  be  expected  to  have  priority  over  the  interests  of  the  Administrative  Agent  in  the Collateral; (iv) salaries, wages and benefits due to employees of any Loan Party (including amounts for employee  wage  claims  for  earned  wages,  vacation  pay,  health  care  reimbursements and other amounts due under Wisconsin wage lien law, Wis. Stat 109.01, et seq., or any similar state or local law); (v) any liabilities  that  are  or  could  reasonably  be  expected  to  become secured  by  Liens  on  the  Collateral (including  Permitted  Liens)  which  could  reasonably  be  expected to  have  priority  over  the  Liens  or interests of the Administrative Agent in the Collateral; (vi) Credit Product Reserves; (vii) and payments with respect to Freight Payables; (viii)  brokers fees; and (ix) the Dilution Reserve.         “Average  Availability”  means  for  any  period,  the  average  daily  amount  of  Availability  during such period.        “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 EEA Financial Institution.         “Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.        “Bankruptcy Code” means Title 11 of the United States Code.         “Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the rate of interest announced by BMO from time to time as its prime rate for such day (with any change in such rate  announced  by  BMO  taking  effect  at  the  opening  of  business on  the  day  specified  in  the  public announcement of such change); (b) the Federal Funds Rate for such day, plus 0.50%; or (c) the LIBOR Rate for a one month Interest Period plus 1.00%.  In no event shall Base Rate be less than 0%.         “Base Rate Loan” means a Base Rate Revolving Credit Loan.    6





 






      “Base Rate Revolving Credit Loan” means a Revolving Credit Loan that bears interest based on the Base Rate.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership  as required by the Beneficial Ownership Regulation, in form and substance satisfactory to each Lender.        “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.        “Blocked Person” shall have the meaning specified in Section 6.21.        “BMO” means BMO Harris Bank N.A.         “BMO Capital” means BMO Capital Markets Corp.        “Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person or any committee thereof duly authorized to act on behalf of such board, (b)  in  the  case  of  any  limited  liability  company,  the  board  of managers  or  board  of  directors  or  sole member or manager of such Person or any Person or any committee thereof duly authorized to act on behalf of such board, (c) in the case of any partnership, the Board of Directors of a general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.        “Borrower Agent” has the meaning specified in Section 2.15(g).        “Borrowers” has the meaning specified in the introductory paragraph hereto.        “Borrower Materials” has the meaning specified in Section 7.02.        “Borrowing” means any of (a) a Revolving Credit Borrowing or (b) a Swing Line Borrowing, as the context may require.        “Borrowing Base” means, at any time of calculation, an amount equal to:        (a)    the  Value  of  Eligible  Credit  Enhanced  Accounts  (less  all  cash  received  but  not  yet applied in respect of such Eligible Credit Enhanced Accounts) multiplied by 90%; plus        (b)    the  Value  of  Eligible  Accounts  other  than  Eligible  Credit  Enhanced  Accounts  (less  all cash received but not yet applied in respect of such Eligible Accounts) multiplied by 85%; plus        (c)    the lesser of (i) the Value of Eligible Foreign Accounts (less all cash received but not yet applied in respect of such Eligible Accounts) multiplied by 85% and (ii) $5,000,000; plus        (d)    the  lesser  of  (i)  the  Value  of  Eligible  Unbilled  Accounts  multiplied  by  85%  and  (ii) $30,000,000; plus        (e)    the lesser of (i) 100% of the amount of any Acceptable LetterLetters of Credit and (ii) $30,000,00045,000,000; plus        (f)    the FILO Amount; minus        (g)    the amount of all Availability Reserves.    7





 






      The term “Borrowing Base” and the calculation thereof shall not include any assets or property acquired in an Acquisition or otherwise outside the Ordinary Course of Business unless (i) if so required by the Administrative Agent in its Permitted Discretion, the Administrative Agent has conducted Field Exams and appraisals reasonably required by it (with results reasonably satisfactory to the Administrative Agent) and (ii) the Person owning such assets or property shall be a (directly or indirectly) wholly-owned Domestic Subsidiary of the Company and have become a Loan Party; provided that Accounts acquired in connection with any Permitted Acquisition may be included in the Borrowing Base prior to a Field Exam so  long  as  (x)  a  Field  Exam  is  completed  within  60  days  of  such  Permitted  Acquisition  and  (y)  the aggregate amount of such Accounts attributable to the Borrowing Base prior to such Field Exam (after giving effect to the applicable advance rate) shall not exceed 10% of the sum of clauses (a)-(e) hereof).   For the  avoidance of  doubt, any  increase to the  Borrowing  Base  pursuant to clause (e) above shall be  given  immediate  effect  (including in the  calculation of  Availability and all  concomitant terms)  upon  delivery of the Acceptable Letter of Credit to the Administrative Agent, and shall not require delivery of  an updated Borrowing Base Certificate.        “Borrowing Base Certificate” means a certificate, in the form of Exhibit D hereto and otherwise satisfactory to Administrative Agent, by which Loan Parties certify calculation of the Borrowing Base.         “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of Illinois, and, if such day relates to any interest rate settings as to a LIBOR Loan, any fundings, disbursements, settlements and payments in respect of any such LIBOR Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, means any such day that is also a London Banking Day.        “Capital  Leases”  means  all  leases  that  have  been  or  should  be,  in  accordance  with  GAAP, recorded as capitalized leases.        “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, (a) for the benefit of one or more of the Letter of Credit Issuer or the Revolving Credit Lenders, as collateral for Letter of Credit Obligations or obligations of the Revolving Credit Lenders to fund participations in respect of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent and  the  Letter  of  Credit  Issuer  shall  agree  in  their  sole  discretion,  other  credit  support,  in  each  case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Letter of Credit Issuer or (b) for the benefit of the Administrative Agent, as collateral for Protective Advances or Swing Line Loans that have not been refunded by the Revolving Credit Lenders, cash or deposit  account  balances  or,  if  the  Administrative  Agent  shall agree  in  its  sole  discretion,  other  credit support,  in  each  case  pursuant  to  documentation  in  form  and  substance  reasonably  satisfactory  to  the Administrative Agent, or (c) for the benefit of the Secured Parties during the continuance of an Event of Default or in connection with the Payment in Full, as collateral for any Obligations that are due or may become  due,  cash  or  deposit  account  balances  or,  if  the  Administrative  Agent  shall  agree  in  its  sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to  the  Administrative  Agent.   “Cash  Collateral”  shall  have  a  meaning  correlative  to  the  foregoing  and shall include the proceeds of such cash collateral and other credit support.        “Cash  Equivalents”  means  any  of  the  following  types  of  property,  to  the  extent  owned  by  the Company or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Security Instruments):        (a)    cash, denominated in Dollars or Canadian dollars;     8





 






             (b)    any  cash  payments  made  during  such  period  in  respect  of  items  described  in       clause (A)(d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or       losses were reflected as a charge in the statement of Consolidated Net Income.         For the purposes of calculating Consolidated EBITDA for any period, (i) if at any time during the relevant period the Company shall have made any Material Disposition, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period as if such Material Disposition occurred on the first day of such period, and (ii) if during the relevant period the Company shall have made a Material Acquisition, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such period; provided that any pro forma adjustments in connection with any such Material Acquisition that increases Consolidated EBITDA as a result of cost-savings, operating expense reductions, operating improvements and synergies shall be subject to the limitations set forth in the definition of Consolidated EBITDA.         Notwithstanding  the  foregoing,  the  aggregate  amount  added  back in  respect  of  legal  fees  and expenses in the calculation of Consolidated EBITDA pursuant to clauses (f), (g) and (h) shall not exceed (i) for any period ending during the time from the date of this Agreement through the end of the fiscal year 2019, $10,000,000, (ii) for any period ending during the fiscal year 2020, $10,000,000, and (iii) for any  period  ending  after  fiscal  year  2020, $0 and (iv) solely  with  respect to  determination of the  Consolidated Fixed Charge  Coverage  Ratio for  purposes of the  Availability Block and for any period  (including during fiscal years 2019 and 2020), $0.        “Consolidated Fixed Charge  Coverage  Ratio”  means  the  ratio,  determined  on  a  Consolidated basis  for  the  Company  and  its  Restricted  Subsidiaries  for  the  applicable  Measurement  Period,  of  (a) Consolidated EBITDA, minus Consolidated Capital Expenditures, to (b) Consolidated Fixed Charges.         “Consolidated Fixed Charges”  means,  for  any  period,  for  the  Company  and  its  Restricted Subsidiaries on a Consolidated basis, the sum of, without duplication, (a) Consolidated Interest Charges paid or required to be paid in cash during such period, (b) all principal repayments made or required to be made of Consolidated Funded Indebtedness during such period; provided that (i) the following shall be excluded  from  Consolidated  Funded  Indebtedness  for  purposes  of determining  Consolidated  Fixed Charges:  (A)  any  such  payments  to  the  extent  constituting  a  refinancing  of  such  Consolidated  Funded Indebtedness  through  the  incurrence  of  additional  Indebtedness otherwise  expressly  permitted  under Section 8.01 and (B) repayments of Revolving Credit Loans, (c) all Restricted Payments made in cash during such period, and (d) the aggregate amount of federal, state, local and foreign income taxes paid in cash, in each case, of or by the Company and its Restricted Subsidiaries for the most recently completed Measurement Period.         “Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a Consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under standby and commercial letters of credit (excluding the undrawn amount thereof), bankers’ acceptances, bank guaranties (excluding the amounts  available  thereunder  as  to  which  demand  for  payment  has  not  yet  been  made),  surety  bonds (excluding the amounts available thereunder as to which demand for payment has not yet been made) and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the Ordinary Course of Business), (e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with  13





 






      “Field Exam” means any visit and inspection of the properties, assets and records of any Loan Party during the term of this Agreement, which shall include access to such properties, assets and records (including maintenance records of any Rolling Stock) sufficient to permit the Administrative Agent or its representatives  to  examine,  audit  and  make  extracts  from  any  Loan  Party’s  books  and  records,  make examinations  and  audits  of  any  Loan  Party’s  other  financial  matters  and  Collateral  as  Administrative Agent deems appropriate in its Permitted Discretion, and discussions with its officers, employees, agents, advisors and independent accountants regarding such Loan Party’s business, financial condition, assets, prospects and results of operations.         “FILO Amount” shall mean the lesser of (a) 5.0% (reduced by 0.417% on the end of each fiscal quarter, commencing June 30, 2019) of Eligible Accounts (other than Eligible Credit Enhanced Accounts) and Eligible Unbilled Accounts and (b) $15,000,000 (reduced by $1,250,000 on the end of each fiscal quarter, commencing June 30, 2019); provided that the FILO Amount shall be zero on and after June 30, 2022.         “FILO Loan”  means  a  Revolving  Credit  Loan  that  is  borrowed  and  deemed  outstanding  as  a “FILO Loan” pursuant to Section 2.01(a).         “First Amendment Effective Date” means August 2, 2019.         “Fixed Charge  Trigger Period”  means  the  period  (a)(i)  at  any  time  during  the  period  from  the First  Amendment  Effective  Date  through OctoberMarch  31, 20192020,  commencing  on  the  day  when Adjusted Excess Availability is less than $17,500,000 and (ii) at any other time, commencing on the day when  Adjusted  Excess  Availability  is  less  than  the  greater  of  (x)  $17,500,000  and  (y)  10.0%  of  the Maximum Borrowing Amount and (b) continuing until the day Adjusted Excess Availability exceeds the greater of (x) $17,500,000 and (y) 10.0% of the Maximum Borrowing Amount for thirty (30) consecutive days.         “FLSA” means the Fair Labor Standards Act of 1938.         “Foreign Activities Laws” has the meaning specified in Section 7.11.        “Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.        “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.         “FRB” means the Board of Governors of the Federal Reserve System of the United States.        “Freight Carrier” shall mean a motor transport, rail, other carrier, owner-operators or independent contractors  that  provides  transportation  of  property  under  contracts  with  other  carriers  (including  the Company and its Subsidiaries), shippers, and receivers and/or brokers of general commodities.        “Freight Carrier Document” shall mean any agreement, instrument or other document pursuant to which a Freight Carrier agrees to provide transportation of property on behalf of any other Person.        “Freight Payable” shall mean any and all freight or other charges payable to a Freight Carrier in respect  of  transportation  services  provided  by  such  Freight  Carrier  pursuant  to  a  Freight  Carrier Document or otherwise.        “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s Applicable Percentage of  25





 






(including through the purchase of an option, warrant or convertible or similar type of security),  (b) a loan,  advance  or  capital  contribution  to,  Guarantee  or  assumption  of  debt  of,  or  purchase  or  other acquisition  of  any  other  debt  or  equity  participation  or  interest  in,  another  Person,  including  any partnership  or  joint  venture  interest  in  such  other  Person  and any  arrangement  pursuant  to  which  the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction  or  a  series  of  transactions)  of  assets  of  another  Person  that  constitute  a  business  unit.   For purposes of compliance with Section 8.03, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to  have  been  made  in  an  original  principal  or  capital  amount  equal  to  the  Fair  Market  Value  of  such property at the time of such transfer or exchange.         “IP Rights” rights of any Person to use any Intellectual Property.        “ISP”  means,  with  respect  to  any  Letter  of  Credit,  the  “International  Standby  Practices  1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).         “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and any Borrower (or any Subsidiary) or in favor the Letter of Credit Issuer and relating to any such Letter of Credit.         “Joinder” means a joinder agreement substantially in the form of Exhibit F to this Agreement.       “Junior Lien Credit Agreement” means a credit agreement, among certain of the Loan Parties and  certain of the Permitted Holders, as may be amended, restated, supplemented or otherwise modified from  time to  time in  accordance  with the terms  hereof and the terms of the  Junior Lien  Intercreditor  Agreement.        “Junior Lien Debt” means the Indebtedness evidenced by the Junior Lien Credit Agreement.        “Junior Lien  Documents”  means the  Junior Lien Credit  Agreement and all other  security  agreements, indentures, pledge agreements and other agreements, instruments and documents heretofore  or hereafter executed or in connection with the Junior Lien Credit Agreement.        “Junior Lien Intercreditor Agreement” means an intercreditor agreement in form and substance  reasonably satisfactory to the Borrower, the Administrative Agent and the Required Lenders, as may be  amended, restated, supplemented or otherwise modified from time to time in accordance with the terms  thereof.        “Laws”  means,  collectively,  all  international,  foreign,  federal,  state  and  local  statutes,  treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation  or  administration  thereof  by  any  Governmental  Authority  charged  with  the  enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.         “Leasing  Services” has the  meaning  specified in the  definition of  Treasury  Management and  Other Services.   30





 






amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.         “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $30,000,00045,000,000 and (b) the Aggregate Revolving Credit Commitments.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.         “LIBOR Loan” means a Loan that bears interest a rate based on clause (a) of the definition of “LIBOR Rate.”        “LIBOR Rate” means:        (a)    for any Interest Period with respect to a LIBOR Loan, the rate per annum equal to (but in no  event  less  than  zero)  (i)  the  ICE  Benchmark  Administration  (or  the  successor  thereto  if  the  ICE Benchmark Administration is no longer making the LIBOR Rate available) LIBOR Rate (“ICE LIBOR”), as  published  by  Reuters  (or  such other  commercially  available  source  providing  quotations  of  ICE LIBOR  as  designated  by  the  Administrative  Agent  from  time  to  time)  at  approximately  11:00  a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits  (for  delivery  on  the  first  day  of  such  Interest  Period)  with  a  term  equivalent  to  such  Interest Period or, (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or  converted  and  with  a  term  equivalent  to  such  Interest  Period  would  be  offered  by  such  other authoritative source (as is selected by the Administrative Agent in its sole reasonable discretion) to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the commencement of such Interest Period; and         (b)   for  any  interest  calculation  with  respect to a Base Rate Loan on any date, the rate per annum equal to (but which shall never be less than zero) (i) ICE LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by such other authoritative source (as is selected by the Administrative Agent in its sole reasonable discretion) to major banks in the London interbank eurodollar market at their request at the date and time of determination.         “License”  means  any  license  or  agreement  under  which  a  Loan  Party  is  granted  IP  Rights  in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of assets or property or any other conduct of its business.         “Licensor” means any Person from whom a Loan Party obtains IP Rights.        “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement, encumbrance,  lien  (statutory  or  other),  charge  or  other  security  interest,  or  any  preference,  priority  or other security agreement or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any financing lease having substantially the same economic effect as any of the foregoing).   32





 






Securities Exchange Act of 1934; (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; or (c) that relates to Subordinated Debt or the Term Loan Obligations, or to Indebtedness in an aggregate amount of $10,000,000 or more.         “Material Disposition” means any Disposition or series of related Dispositions that involves gross proceeds to the Company in excess of $15,000,000.        “Material License” has the meaning assigned to such term in Section 7.15.        “Material Third-Party Agreement” has the meaning assigned to such term in Section 7.17(a).        “Maturity Date” means February 28, 2024.        “Maximum  Borrowing  Amount”  means  (i)  the  lesser  of  (A)  the  Aggregate  Revolving  Credit Commitments, and (B) the Borrowing Base (after giving immediate effect to any Acceptable Letters of  Credit upon delivery thereof), minus (ii) the Availability Block.  Notwithstanding anything to the contrary in this Agreement, the Availability Block shall not be decreased or eliminated other than in accordance with  the  definition  thereof  as  in  effect  on  the  Closing  Date  without the written consent of each of the Lenders.         “Measurement Period” means, at any date of determination, the most recently completed trailing twelve month period of the Company and its Restricted Subsidiaries for which financial statements have or should have been delivered in accordance with Section 7.01(a) or 7.01(b).        “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of  cash  or  Deposit  Account  balances  provided  to  reduce  or  eliminate  Fronting  Exposure  during  the existence  of  a  Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the Letter of Credit  Issuer  with  respect  to  Letters  of  Credit  issued  and  outstanding  at  such  time  plus  105%  of  the Fronting Exposure of the Administrative Agent with respect to Protective Advances outstanding at such time,  (b)  with  respect  to  Cash  Collateral  consisting  of  cash  or  Deposit  Account  balances  provided  in accordance  with  the  provisions  of  Section  2.16(a)(i)  or  2.16(a)(ii),  an  amount  equal  to  105%  of  the Outstanding  Amount  of  all  Letter  of  Credit  Obligations,  and  (c)  otherwise,  an  amount  reasonably determined by the Administrative Agent and the Letter of Credit Issuer.        “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Mortgage Related Documents” means, with respect to any Real Property subject to a Mortgage, and  at  the  request  of  the  Administrative  Agent,  the  following, in  form  and  substance  reasonably satisfactory to the Administrative Agent and received by the Lenders for review at least 15 days prior to the effective date of the Mortgage:  (a) an ALTA mortgagee title policy (or binder therefor) covering the Administrative  Agent’s  interest under  the  Mortgage,  by  an  insurer  acceptable  to  the  Administrative Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment  agreements,  consents,  waivers  and  releases  as  the  Administrative  Agent  may  reasonably require with respect to other Persons having an interest in the Real Property; (c) an ALTA Survey by a licensed  surveyor  reasonably  acceptable  to  the  Administrative  Agent;  (d)  a  life-of-loan  flood  hazard determination and, if the Real Property is located in a flood plain, an acknowledged notice to borrower and flood insurance in an amount, with endorsements and by an insurer acceptable to the Lenders; (e) a current  appraisal  of  the  Real  Property,  prepared  by  an  appraiser  reasonably  acceptable  to  the Administrative Agent; (f) an environmental assessment, prepared by environmental engineers reasonably acceptable to the Administrative Agent, and accompanied by such reports, certificates, studies or data as the  Administrative  Agent  may  reasonably  require;  and  (g)  an  environmental  indemnity  agreement  and  34





 






      “Secured Party Expenses” has the meaning specified in Section 11.04(a).         “Securities Laws” means the Securities Act of 1933, the Exchange Act, Sarbanes-Oxley and the applicable  accounting  and  auditing  principles,  rules,  standards  and  practices  promulgated,  approved  or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.         “Security Agreement” means the Pledge and Security Agreement and Irrevocable Proxy dated as of the date hereof by the Loan Parties and the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.         “Security  Instruments”  means,  collectively  or  individually  as  the  context  may  indicate,  the Security Agreement, the Control Agreements, the Aircraft Mortgages, the Aircraft Related Documents, the  Mortgages,  the  Mortgage  Related  Documents,  the  Copyright  Security  Agreement,  the  Trademark Security  Agreement,  the  Patent  Security  Agreement,  each  Lien  Waiver  and  all  other  agreements (including  securities  account  control  agreements),  instruments and  other  documents,  whether  now existing or hereafter in effect, pursuant to which any Loan Party or other Person shall grant or convey to the  Administrative  Agent  or  the  Lenders  a  Lien  in  property  as  security  for  all  or  any  portion  of  the Obligations.         “Settlement Date” has the meaning provided in Section 2.14.        “Solvent” means, as to any Person, such Person (a) owns property or assets whose fair salable value  is  greater  than  the  amount  required  to  pay  all  of  its  debts  (including  contingent,  subordinated, unmatured and unliquidated liabilities); (b) owns property or assets whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by  way  of  assumption  or  otherwise)  any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud  either  present  or  future  creditors  of  such  Person  or  any  of  its  Affiliates.   “Fair  salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is  willing  (but  under  no  compulsion)  to  purchase.   For  purposes  hereof,  the  amount  of  all  contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability.         “Specified Debt Payment”  means  any  prepayment  of  Indebtedness  made  pursuant  to  Section  8.11(a)(v).        “Specified Dispositions” means those certain Dispositions described in Schedule A.        “Specified Investment” means any Investment made pursuant to Section 8.03(l).         “Specified Loan Party”  means  a  Loan  Party  that  is  not  then  an  “eligible  contract  participant” under the Commodity Exchange Act (determined prior to giving effect to Section 2.15(c)).        “Specified Pro Forma  Transaction”  means,  with  respect  to  any  period,  any  Investment, Disposition,  incurrence  or  repayment  of  Indebtedness,  Restricted  Payment,  subsidiary  designation  or   44





 






Contracts,  as  determined  based  upon  one  or  more  mid-market  or  other  readily  available  quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).         “Swing Line”  means  the  revolving  credit  facility  made  available  by  the  Swing  Line  Lender pursuant to Section 2.04.         “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.         “Swing Line  Lender”  means  BMO  in  its  capacity  as  provider  of  Swing  Line  Loans,  or any successor swing line lender hereunder.         “Swing Line Loan” has the meaning specified in Section 2.04(a).         “Swing Line Loan  Notice”  means  a  notice  of  a  Swing  Line  Borrowing  pursuant  to  Section  2.04(b).        “Swing Line  Sublimit”  means  an  amount  equal  to  the  lesser  of  (a)  $20,000,000  and  (b)  the Aggregate Revolving Credit Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.         “Synthetic  Lease  Obligation”  means  the  monetary  obligation  of  a  Person  under  (a)  a  so-called synthetic,  off-balance  sheet  or  tax  retention  lease,  or  (b)  an agreement  for  the  use  or  possession  of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency  or  bankruptcy  of  such  Person,  would  be  characterized  as  the  indebtedness  of  such  Person (without regard to accounting treatment).        “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including  backup  withholding),  assessments,  fees  or  other  charges  imposed  by  any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.        “Term Loan Agent” means BMO, as administrative agent under the Term Loan Agreement.         “Term Loan Agreement” has the meaning given such term in the Intercreditor Agreement.        “Term Loan Documents” has the meaning given such term in the Intercreditor Agreement.         “Term Loan Lenders” has the meaning given such term in the Intercreditor Agreement.        “Term Loan Obligations” has the meaning given such term in the Intercreditor Agreement.         “Term Loan Priority Collateral” has the meaning given such term in the Intercreditor Agreement.        “Term Loans” means the “Loans” under and as defined in the Term Loan Agreement.        “Third Amendment Effective Date” means October 21, 2019.        “Threshold Amount” means $10,000,000.        “Total Credit  Exposure”  means,  as  to  any  Lender  at  any  time,  the  unused  outstanding Commitments of such Lender and the Credit Exposure of such Lender at such time.   46





 






      “Total  Revolving Credit  Outstandings”  means,  without  duplication,  the  aggregate  Outstanding Amount of all Revolving Credit Loans, Protective Advances, Overadvances, Swing Line Loans and Letter of Credit Obligations.         “Trade Date” has the meaning specified in Section 11.06(i)(a).         “Trademark Security Agreement” means any trademark security agreement pursuant to which any Loan  Party  assigns  to  the  Administrative  Agent,  for  the  benefit  of  the  Secured  Parties,  such  Person’s interest in its trademarks as security for the Obligations.         “Transaction” means, individually or collectively as the context may indicate, (a) entering into the Term Loan Obligations and (b) the entering by the Loan Parties of the Loan Documents to which they are a party and the funding of the Revolving Credit Facility.        “Treasury  Management and Other  Services”  means  (a)  all  arrangements  for  the  delivery  of treasury  and  cash  management  services,  (b)  all  commercial  credit  card,  purchase  card,  p-card  and merchant  card  services; (c)  leasing  arrangement and  services  (including  equipment  leasing) (“Leasing  Services”);  and  (cd)  all  other  banking  products  or  services,  including  trade  and  supply  chain  finance services, other than Letters of Credit, in each case, to or for the benefit of any Loan Party or an Affiliate of any Loan Party which are entered into or maintained with a Lender or an Affiliate of a Lender and which are not prohibited by the express terms of the Loan Documents.         “Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.        “UCC”  means  the  Uniform  Commercial  Code  as  in  effect  from  time  to  time  in  the  State  of Illinois;  provided  that  if,  with  respect  to  any  financing  statement  or  by  reason of  any  mandatory provisions  of  law,  the  perfection  or  the  effect  of  perfection  or  non-perfection  of  the  security  interests granted  to  the  Administrative  Agent  pursuant  to  any  applicable Loan  Document  is  governed  by  the Uniform Commercial Code as in effect in a jurisdiction of the United States other than Illinois, the term “UCC”  shall  also  include  the  Uniform  Commercial  Code  as  in  effect  from  time  to  time  in  such  other jurisdiction  for  purposes  of  the  provisions  of  this  Agreement, each  Loan  Document  and  any  financing statement relating to such perfection or effect of perfection or non-perfection.         “United States” and “U.S.” mean the United States of America.        “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).        “Unrestricted Net Cash Proceeds” means the Net Cash Proceeds from any Specified Disposition  less the amount of ABL Priority Collateral attributable to the Borrowing Base in respect of such Specified  Disposition.        “Unrestricted Subsidiary” means any Subsidiary of the Company that has been designated as an Unrestricted  Subsidiary  in  accordance  with  Section 6.13. Each  UnrestrictedNo  Subsidiary as of  the Closing Date is  listed on Schedule 1.02  heretoCompany is an  Unrestricted  Subsidiary as of the Third  Amendment Effective Date and none shall be designated as an Unrestricted Subsidiary thereafter.        “Unused Facility Amount” means the daily amount by which (a) the Aggregate Revolving Credit Commitments exceeds (b) the sum of (i) Outstanding Amount of all Revolving Credit Loans other than Swing  Line  Loans  and  (ii)  the  Outstanding  Amount  of  all  Letter of  Credit  Obligations,  subject  to adjustment as provided in Section 2.17.  For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be considered usage for purposes of determining the Unused Facility Amount.   47





 






“Commodity  Account,”  “Commodity  Contracts,”  “Deposit  Account,” “Documents,”  “Equipment”, “General Intangibles,” “Instrument,” “Inventory,” “Record,” and “Securities Account.”        1.05   Rounding.  Any financial ratios required to be maintained by the Borrowers pursuant to this  Agreement  shall  be  calculated  by  dividing  the  appropriate component  by  the  other  component, carrying the result to one place more than the number of places by which such ratio is expressed herein and  rounding  the  result  up  or  down  to  the  nearest  number  (with a  rounding-up  if  there  is  no  nearest number).        1.06   Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).        1.07   Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount  of  such  Letter  of  Credit  shall  be  deemed  to  be  the  maximum  stated  amount  of  such  Letter  of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.                                       ARTICLE II                    THE COMMITMENTS AND CREDIT EXTENSIONS        2.01   Loan Commitments.        (a)    Revolving Credit  Commitments.   Subject  to  the  terms  and  conditions  set  forth  herein, each Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrowers from time to time during the Availability Period for the Revolving Credit Facility, in an aggregate amount not  to  exceed  at  any  time  outstanding  the  lesser  of  (i)  the  amount  of  such  Lender’s  Revolving  Credit Commitment, or (ii) such Lender’s Applicable Revolving Credit Percentage of the Borrowing Base (after  giving immediate effect to any Acceptable Letters of Credit upon delivery thereof); provided, however, that after giving effect to any Revolving Credit Borrowing, (A) the Total Revolving Credit Outstandings shall not exceed Maximum Borrowing Amount, and (B) the Revolving Credit Exposure of each Lender shall not exceed such Lender’s Revolving Credit Commitment.  All Revolving Credit Loans outstanding from time to time up to the FILO Amount shall be deemed to be outstanding FILO Loans for all purposes under this Agreement.  Within such limits and subject to the other terms and conditions hereof, the Borrowers may borrow under this  Section  2.01(a),  prepay  under  Section  2.06(a),  and  reborrow  under  this  Section  2.01(a).  The Administrative Agent shall have the right, at any time and from time to time on and after the Closing Date in its Permitted Discretion to establish, modify or eliminate Reserves.        (b)    [Reserved].        (c)    [Reserved].         (d)   Overadvances and Protective Advances.              (i)     Overadvances.    50





 






     Type(s) of Loans to be prepaid and, if LIBOR Loans are to be prepaid, the Interest Period(s) of      such  Loans.   The  Administrative  Agent  will  promptly  notify  each  Lender  of  its  receipt  of  each      such  notice,  and  of  the  amount  of  such  Lender’s  ratable  portion  of  such  prepayment  (based  on      such  Lender’s  Applicable  Percentage).   If  such  notice  is  given by  the  Borrower  Agent,  the      Borrowers shall make such prepayment and the payment amount specified in such notice shall be      due  and  payable  on  the  date  specified  therein.   Any  prepayment of  a  LIBOR  Loan  shall  be      accompanied by all accrued interest on the amount prepaid, together with any additional amounts      required pursuant to Section 3.05.  Subject to Section 2.17, such prepayments shall be paid to the      Lenders  in  accordance  with  their  respective  Applicable  Percentages.  Any payment of the      Revolving  Credit  Loans  shall  be  applied  first  to  the  Revolving Credit  Loans  that  are  not  FILO      Loans until repaid in full, and then to FILO Loans.             (ii)    The Borrowers may, upon notice to the Swing Line Lender (with a copy to the      Administrative  Agent)  from  the Borrower  Agent,  at  any  time  or  from  time  to  time,  voluntarily      prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such      notice must be received by the Swing Line Lender and the Administrative Agent not later than      1:00  p.m.  on  the  date  of  the  prepayment,  and  (B)  any  such  prepayment  shall  be  in  a  minimum      principal  amount  of  $100,000.   Each  such  notice  shall  specify  the  date  and  amount  of  such      prepayment.   If  such  notice  is  given  by  the  Borrower  Agent,  the  Borrowers  shall  make  such      prepayment and the payment amount specified in such notice shall be due and payable on the date      specified therein.       (b)    Mandatory.             (i)     Asset  Dispositions and  Insurance  Events.   Subject  to  Section  2.06(d),  If  a      Disposition or insurance event occurs with respect to any property (other than Term Loan Priority      Collateral so long as the Term Loan Obligations is outstanding) of any Loan Party or any of its      Restricted  Subsidiaries  (other  than  any  Disposition  of  property  permitted  by  Section  8.05(a),      Section 8.05(l) or Section 8.05(m)) which results in the realization by such Person of Net Cash      Proceeds in excess of $1,000,000 for any such Disposition and insurance events or $1,000,000 in      the aggregate for all such Dispositions and insurance events in any fiscal year, the Borrowers shall      prepay  an  aggregate  principal  amount  of  Loans  (and  Cash  Collateralize  Letter  of  Credit      Obligations,  if  applicable)  equal  to  100%  of  such  excess  Net  Cash  Proceeds  immediately  upon      receipt thereof by such Person, to the Revolving Credit Facility in the manner set forth in clause       (c)(ii) below.  Notwithstanding anything to the contrary, the Net Cash Proceeds of any Specified       Disposition (other than any Term Loan Priority Collateral, which shall be applied to permanently       reduce the Term Loan Obligations) shall be applied as follows: (A) first, to prepay an aggregate       principal  amount of  Loans (and  Cash  Collateralize  Letter of Credit  Obligations, if  applicable)       equal to the amount of ABL Priority Collateral attributable to the Borrowing Base in respect of       such  Specified  Disposition, (B) second, to prepay an aggregate principal amount of Loans (and       Cash Collateralize Letter of Credit Obligations, if applicable) equal to 50% of the Unrestricted Net       Cash Proceeds in respect of such Specified Disposition and (C) third, to the extent required by the       Junior Lien Documents, to permanently prepay an aggregate principal amount of Junior Lien Debt       (to the extent  permitted by the  Junior Lien  Intercreditor  Agreement)  equal to  50% of the       Unrestricted Net Cash Proceeds in respect of such Specified Disposition.             (ii)    Overadvances. If for any reason the Total Revolving Credit Outstandings at any      time exceed the Borrowing Base at such time (including as a result of a scheduled reduction in the      FILO  Amount),  the  Borrowers  shall  upon  demand  prepay  Revolving Credit  Loans,  Swing  Line      Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations      in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be 64





 






      required to Cash Collateralize the Letter of Credit Obligations pursuant to this Section 2.06(b)(ii)       unless,  after  the  prepayment  of  the  Revolving  Credit  Loans  and Swing  Line  Loans,  the  Total       Revolving  Credit  Outstandings  exceed  the  Aggregate  Revolving  Credit  Commitments  at  such       time.        (c)    Application of Mandatory Prepayments.  Subject to Section 9.03:              (i)     Generally.  Subject to Section 2.17, prepayments shall be paid to the Lenders in       accordance  with  their  respective Applicable  Percentage.  Notwithstanding  the  foregoing,  any       prepayment  hereunder  arising  from  a  Disposition  of  assets  of  the  type  then  included  in  the       Borrowing Base shall be applied to repay Revolving Credit Facility in accordance with clause (ii)       below.              (ii)    Revolving Credit  Loans.   Except  as  otherwise  provided  in  Section 2.17,       prepayments  of  the  Revolving  Credit  Facility  made  pursuant  to  Section  2.06(b),  first,  shall  be       applied  ratably  to  the  Letter of  Credit  Borrowings  and  the  Swing  Line  Loans,  second,  shall  be       applied  ratably  to  the  outstanding  Revolving  Credit  Loans,  third,  shall  be  used  to  Cash       Collateralize the remaining Letter of Credit Obligations in the Minimum Collateral Amount and,       fourth, the amount remaining, if any, after the prepayment in full of all outstanding Obligations       (other than Credit Product Obligations) and the Cash Collateralization of the remaining Letter of       Credit Obligations in the Minimum Collateral Amount may be retained by the Borrowers for use       in the ordinary course of Borrowers’ business.  Upon the drawing of any Letter of Credit that has       been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further       action by or notice to or from the Borrowers or any other Loan Party or any Defaulting Lender that       has  provided  Cash  Collateral)  to  reimburse  the  Letter  of  Credit  Issuer  or  the  Revolving  Credit       Lenders, as applicable.  Any amount applied to the Revolving Credit Loans shall be applied first to       the Revolving Credit Loans that are not FILO Loans until repaid in full, and then to FILO Loans.         (d)   Reinvestment.   Notwithstanding  the  foregoing,  (A)  with  respect  to  any  Net  Cash Proceeds  less  than  $10,000,0005,000,000  realized  in  connection  with  a  Disposition  or  insurance  event described in Section 2.06(b)(i), at the election of the Borrowers (as notified by the Borrower Agent to the Administrative Agent on or prior to the date of such Disposition or insurance event or receipt of proceeds) and  so  long  as  no  Default  shall have  occurred  and  be  continuing,  such  Loan  Party  or  such  Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets within 180 days after the receipt of such Net Cash Proceeds (the consummation of such reinvestment to be certified by the Borrowers in writing to the Lender within such period); provided, however, that any Net Cash Proceeds not so reinvested in excess of $250,000 in any fiscal year shall be immediately applied to the prepayment of the Loans as set forth in Section 2.06(c) and (B) with respect to Net Cash Proceeds equal to or greater than  $10,000,0005,000,000  realized  in  connection  with  a  Disposition  or  insurance  event  described  in Section 2.06(b)(i), if the Borrowers have requested that Administrative Agent agree to permit Borrowers or the applicable Restricted Subsidiary to repair or replace the Collateral subject to such Disposition, such amounts shall be held as Cash Collateral and provisionally applied to reduce the outstanding principal balance  of  the  Revolving  Credit  Loans  (but  shall  not  create  Availability)  until  the  earlier  of Administrative Agent’s decision with respect thereto or the expiration of 180 days from such request.  If Administrative Agent, after consultation with the Borrowers agrees in its reasonable discretion to permit such repair or replacement, such amount shall, unless an Event of Default is in existence, be remitted to Borrowers for use in replacing or repairing the Collateral so Disposed of or subject to an insurance event at  such  time  and  in  such  amounts  as  the  Administrative  Agent  may  determine  in  its  reasonable  credit judgment.   If  Administrative  Agent  declines  to  permit  such  repair  or  replacement  in  its  reasonable discretion within such 180 day period, such amount shall be applied to the Loans in the manner otherwise specified in Section 2.06(c).  65





 






      (d)    The Administrative Agent shall be satisfied that after giving effect to (i) the initial Credit Extension  hereunder,  (ii)  consummation  of  the  Transactions  and payment  of  all  fees  and  expenses  in connection therewith and (iii) any payables stretched beyond their customary payment practices, Adjusted Excess Availability shall be at least $65,000,000.        Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other  matter  required  thereunder to  be  consented  to  or  approved  by  or  acceptable  or  satisfactory  to  a Lender  unless  the  Administrative  Agent  shall  have  received  notice  from  such  Lender  prior  to  the proposed Closing Date specifying its objection thereto.        5.02   Conditions to all Credit Extensions.  The obligation of each Lender or Letter of Credit Issuer to honor any Request for Credit Extension (other than one requesting only a conversion of Loans to the  other  Type  or  a  continuation  of  LIBOR  Loans)  or  make  the  initial  Credit  Extension  hereunder  is subject to the following conditions precedent:         (a)   The  representations  and  warranties  of  the  Loan  Parties  contained  in  Article VI or any other  Loan  Document,  or  which  are  contained  in  any  document  furnished  at  any  time  under  or  in connection herewith or therewith, shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (or in all respects if qualified by materiality) as of such earlier date, and except that for purposes of this Section 5.02(a), the representations and warranties contained in subsections (a) and (b) of Section  6.05  shall  be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses  (a)  and  (b), respectively, of Section 7.01.        (b)    No Default shall have occurred and be continuing, or would result from such proposed Credit Extension or from the application of the proceeds thereof.        (c)    The Administrative Agent and, if applicable, the Letter of Credit Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.        (d)    After giving effect to each Credit Extension, Total Revolving Credit Outstandings do not exceed  the  lesser  of  (i)  the  Total  Revolving  Credit  Commitments  and  (ii)  the  Borrowing  Base (after  giving immediate effect to any Acceptable Letters of Credit upon delivery thereof).        Each Request for Credit Extension (other than one requesting only a conversion of Loans to the other Type or a continuation of LIBOR Loans) submitted by the Borrower Agent shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a), 5.02(b), and 5.02(d) have been satisfied on and as of the date of the applicable Credit Extension.                                       ARTICLE VI                        REPRESENTATIONS AND WARRANTIES        To induce the Secured Parties to enter into this Agreement and to make Loans and to issue Letters of  Credit  hereunder,  each  Loan  Party  represents  and  warrants  to  the  Administrative  Agent  and  the Lenders, subject to the limitation set forth in Section 5.02(a), that:        6.01   Existence, Qualification and Power.  Each Loan Party and each Restricted Subsidiary (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing  95





 






terms,  take  all  such  action  to  such  end  as  may  be  from  time  to time  reasonably  requested  by  the Administrative Agent and, upon reasonable request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its  Subsidiaries  to  do  so,  except,  in  any  case,  where  the  failure  to  do  any  of  the  foregoing,  either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.        7.19   Treasury  Management  and  Other  Services.   Each  Loan  Party  shall  maintain  its lockboxes, Deposit Accounts (other than Excluded Deposit Accounts) and primary disbursement accounts exclusively  with  BMO,  and  shall  utilize  BMO,  Wells  Fargo  Bank, National  Association  or  Bank  of America, N.A. for other Treasury Management and Other Services (other than Leasing Services which,  for the avoidance of doubt, may be with any Person).        7.20   Freight Payables.  Pay on or before the due date thereof all Freight Payables (other than Freight  Payables  in  an  aggregate  amount  not  to  exceed  $2,500,000  and  not  aged  more  than  60  days beyond  the  date  of  receipt  of  the  invoice,  rate,  and  load  confirmation,  bill  of  lading  or  other  proof  of delivery in respect of such Freight Payable by the applicable Freight Carrier Documents), except to the extent that (a) the validity or amount thereof (or any other amount owed to the applicable Freight Carrier) is being Properly Contested and (b) such Loan Party or Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP.        7.21   Post-Closing  Agreements.  Notwithstanding  anything  to  the  contrary  herein  or  in  any other  Loan  Document  (including,  without  limitation,  in  respect of  the  “eligibility”  requirements  of Eligible Accounts and the requirements of Article IV, Section 5.01 and Section 7.19), execute and deliver the documents and complete the tasks set forth below as soon as reasonably practicable, but in any event within the time limit specified below, or such later date as the Administrative Agent agrees to in writing:        (a)    No later than April 30, 2019, (i) execute and deliver a Control Agreement with respect to each  Deposit  Account  listed  on  part  (a)  of  Schedule 6.19,  other  than  Excluded  Deposit  Accounts, which  shall  include  all  lockboxes  and  related lockbox accounts used for the collection of Accounts, or (ii) close any such Deposit Account (other than any Excluded Deposit Account) that is not subject to a Control Agreement.         (b)   No later than April 30, 2019, (i) execute and deliver a Control Agreement with respect to each Securities Account and Commodity Account listed on part (b) of Schedule 6.19, or (ii) close any such Securities Account or Commodity Account that is not subject to a Control Agreement.        (c)    No later than April 30, 2019, execute and deliver Aircraft Mortgages granting a second priority lien in favor of the Administrative Agent, together with each Aircraft Related Document, with respect to each Aircraft constituting Term Loan Equipment.        (d)    No later than April 30, 2019, transfer any disbursement accounts to BMO.        (e)    No later than March 15, 2019, provide evidence satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect.        7.22   Beneficial Ownership Regulation7.23 . The  Borrower  shall  provide  written  notice  of any applicable changes relating to compliance with the Beneficial Ownership Regulation and shall deliver to  the  Administrative  Agent  any  information  and  documentation  reasonably  requested  by  the  116





 






      (s)    Contingent  Obligations  related  to  guaranty  obligations  of  the  Company  or  any  of  its Subsidiaries  with  respect  to  operating  leases  of  the  Company’s Domestic  Subsidiaries  for  terminal facilities  and  other  contract  obligations  (other  than  Indebtedness)  of  the  Company’s  Domestic Subsidiaries not prohibited by this Agreement so long as the same remain Contingent Obligations;        (t)    Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Acquisitions;        (u)    Indebtedness or Contingent Obligations related to co-borrower or guaranty obligations of the  Company  or  its  Subsidiaries  with  respect  to  loans  obtained by  independent  contractors  of  the Company or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that the aggregate amount of all such Indebtedness or Contingent Obligations, together with the aggregate amount of Investments permitted under Section 8.03(i), shall not exceed $15,000,000 at any one time outstanding;         (v)   Assumed  Indebtedness;  provided  that  the  aggregate  amount  of  such  Assumed Indebtedness does not exceed $7,500,000 in the aggregate at any time outstanding;         (w)   Refinancing Indebtedness;         (x)   Without duplication of Indebtedness permitted under Section 8.01(f) above, Attributable Indebtedness;  provide  that  the  aggregate  amount  of  such  Attributable  Indebtedness  does  not  exceed $10,000,000 at any time outstanding;        (y)    Indebtedness under the Acceptable Letter of Credit Reimbursement Agreement; and        (z)    Junior Lien Debt; provided that (i) the aggregate principal amount of such Junior Lien  Debt (excluding any increase to such principal amount pursuant to any interest paid in kind) together with  any Indebtedness incurred pursuant to clauses (aa) and (bb) below does not exceed $100,000,000 in the  aggregate at any  time  outstanding,  (ii) such  Indebtedness is  subject to the  Junior Lien  Intercreditor  Agreement, (iii) the Junior Lien Credit Agreement and the Junior Lien Intercreditor Agreement shall be  executed no later than November 7, 2019, (iv) such Indebtedness has a final maturity at least 180 days  after the Maturity Date, (v) no interest (other than interest paid in kind) on such Indebtedness may be paid  prior to  repayment in full of the  Obligations  unless the Payment  Conditions are  satisfied  with  respect  thereto, (vi) no principal amount of such Indebtedness may be voluntarily or mandatorily prepaid prior to  repayment in full of the  Obligations  unless the Payment  Conditions are  satisfied  with  respect thereto;  provided, that the  Indebtedness  permitted by this clause (z) may be  refinanced at any  time by other  Indebtedness permitted by this clause (z), (vii) such Indebtedness shall not be secured by property other  than the Collateral, (viii) such Indebtedness shall not at any time be incurred or guaranteed by any Person  other than a Loan Party and (ix) such Indebtedness shall be on terms, taken as a whole (other than interest  rates, rate floors, fees and optional repayment or redemption terms) not materially more restrictive to the  Loan Parties than the terms of this Agreement and it shall be subject to customary 10% cushions;        (aa)   unsecured  Indebtedness;  provided that (i) the  aggregate principal  amount of such  Indebtedness  (excluding any  increase to such principal  amount  pursuant to any  interest paid in  kind)  together with any Indebtedness incurred pursuant to clauses (z) and (bb) does not exceed $100,000,000 in  the aggregate at any time outstanding, (ii) such Indebtedness has a final maturity at least 180 days after  the Maturity Date, (iii) no interest (other than interest paid in kind) on such Indebtedness may be paid  prior to  repayment in full of the  Obligations, (iv) no principal  amount of such  Indebtedness may be  voluntarily or  mandatorily prepaid prior to  repayment in full of the  Obligations;  provided, that the  Indebtedness permitted by this clause (aa) may be refinanced at any time by other Indebtedness permitted  119





 






by  clauses (z) or  (aa) of this  Section 8.01, (v) such  Indebtedness shall  not at any  time be  incurred or  guaranteed by any  Person other than a Loan Party and (vi) the  notes,  agreements or other  documents  evidencing such Indebtedness shall acknowledge the restrictions in this clause (aa); and        (bb)   (z) Otherother unsecured Indebtedness; provided that the aggregate principal amount of such  other  unsecured  Indebtedness (excluding any  increase to such principal  amount  pursuant to any  interest paid in kind) (i) does not exceed $20,000,000 and (ii) together with any Indebtedness incurred  pursuant to clause (z) and  (aa)  above  does  not  exceed  $100,000,000 in  the  aggregate  at  any  time outstanding.        8.02   Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,  whether  now  owned  or  hereafter  acquired,  other  than  the  following  (collectively,  “Permitted  Liens”):        (a)    Liens pursuant to any Loan Document;         (b)   Liens existing on the date hereof as described on Schedule 8.02 (setting forth, as of the Closing  Date,  the  lienholder  thereof,  the  principal  amount  of  the  obligations  secured  thereby  and  the property or assets of such Loan Party or such Restricted Subsidiary subject thereto) and any renewals or extensions  thereof,  provided  that  (i)  the  Lien  does  not  extend  to  any  additional  property, and  (ii)  the obligations secured or benefited thereby constitutes Refinancing Indebtedness;         (c)   Liens  for  taxes,  assessments  or  other  governmental  charges,  not  yet  due  or  which  are being Properly Contested, and which in all cases are junior to the Lien of the Administrative Agent;         (d)   Liens of carriers, warehousemen, mechanics, materialmen, repairmen, landlords or other like Liens imposed by Law or arising in the Ordinary Course of Business which are not overdue for a period of more than 60 days or which are being Properly Contested;        (e)    Liens,  pledges  or  deposits  in  the  Ordinary  Course  of  Business  in  connection  with  (i) insurance, workers compensation, unemployment insurance and social security legislation, (ii) contracts, bids, government contracts, and surety, appeal, customs, performance and return-of-money bonds and (iii) other  similar  obligations  (exclusive  of  obligations  in  respect of  the  payment  for  borrowed  money), whether  pursuant  to  contracts,  statutory  requirements,  common  law  or  consensual  arrangements,  other than any Lien imposed by ERISA;        (f)    Liens  arising  in  the  Ordinary  Course  of  Business  consisting  of deposits  to  secure  the performance  of  bids,  trade  contracts  and  leases  (other  than  Indebtedness),  statutory  obligations,  surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature, in each case, incurred in the Ordinary Course of Business;        (g)    Liens  with  respect  to  minor  defects  in  title  and  easements,  rights-of-way,  covenants, consents,  reservations,  encroachments,  variations  and  zoning  and  other  similar  restrictions,  charges, encumbrances  or  title  defects  affecting  Real  Property  which,  in  the  aggregate,  are  not  substantial  in amount, and which do not in any case materially detract from the value of the property subject thereto or materially  interfere  with  the  ordinary  conduct  of  the  business of  the  applicable  Person  and  do  not materially  detract  from  the  value  of  or  materially  impair  the  use  by  the  Loan  Parties  in  the  Ordinary Course of Business of the property subject to or to be subject to such encumbrance;   120





 






      (h)    Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01 or securing appeal or other surety bonds related to such judgments, and which in all cases are junior to the Lien of the Administrative Agent;         (i)   Liens securing Indebtedness permitted under Section 8.01(f); provided that (i) such Liens do  not  at  any  time  encumber  any  property  other  than  the  property  financed  by  such  Indebtedness (including any leases and chattel paper related to such property, any lease or rental payments related to such  property  and  any  proceeds  of  such  property)  and  (ii)  the  Indebtedness  secured  thereby  does  not exceed the cost or Fair Market Value, whichever is lower, of the property being acquired on the date of acquisition;         (j)   Liens arising from precautionary Uniform Commercial Code financing statement filings regarding leases entered into in the Ordinary Course of Business;         (k)   operating leases or subleases (other than leases or sublease of any Aircraft subject to an Aircraft Mortgage) granted by the Loan Parties to any other Person in the Ordinary Course of Business;         (l)   Liens (a) of a collection bank arising under Section 4-210 of the UCC or any comparable or successor provision on items in the course of collection, (b) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the Ordinary Course of Business and (c) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;         (m)   Liens in favor of customs and revenue authorities imposed by Law to secure payment of customs  duties  in  connection  with  the  importation  of  goods  and arising  in  the  Ordinary  Course  of Business which are not overdue for a period of more than 60 days or which are being Properly Contested;         (n)   Liens on the collateral securing the Term Loan Obligations to the extent such Liens are permitted by and subject to the Intercreditor Agreement;         (o)   Liens  on  insurance  policies  and the  proceeds  thereof  securing  the  financing  of  the premiums with respect thereto;        (p)    Liens securing the Junior Lien Debt permitted under Section 8.01(z); provided that it is at  all times subject to the Junior Lien Intercreditor Agreement; and        (q)    (p) Liens  not  otherwise  permitted  by  this  Section  so  long  as  neither  (i)  the  aggregate outstanding principal amount of the obligations secured thereby, nor (ii) the aggregate Fair Market Value (determined as of the date such Lien is incurred) exceeds (as to all Loan Parties) $2,500,000 at any time; provided that such Lien shall not attach to any Accounts, Aircraft Parts or Aircraft.        8.03   Investments. Make or maintain any Investments, except:        (a)    Investments held by the Loan Parties in the form of Cash Equivalents that are (i) subject to  the  Administrative  Agent’s  Lien  and  control,  pursuant  to  documentation  in  form  and  substance reasonably satisfactory to the Administrative Agent, or (ii) maintained in an Excluded Deposit Account;        (b)    loans  and  advances  to  officers,  directors  and  employees  of  the Loan  Parties  and Restricted Subsidiaries made in the Ordinary Course of Business in an aggregate amount at any one time outstanding not to exceed $5,000,000;  121





 






      (g)    the leasing or subleasing of assets (other than sale and leaseback transactions prohibited under Section 8.15) in the Ordinary Course of Business;         (h)   Dispositions that consist of the sale or discount in the Ordinary Course of Business of overdue  Accounts  that  are  not  Eligible  Accounts  in  connection  with  the  compromise,  settlement  or collection  thereof;  provided  that  the  Net  Cash  Proceeds  from  such  Disposition  shall  be  deposited  in  a Controlled Deposit Account or Concentration Account;        (i)    Dispositions among the Loan Parties or by any Subsidiary to a Loan Party;        (j)    Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not a Loan Party;        (k)    Dispositions of surplus, outdated, obsolete or worn out property in the Ordinary Course of Business; or        (l)    the Specified Dispositions in accordance with Schedule A; or        (m)    (l) other Dispositions of assets other than Collateral of a type included in the Borrowing Base so long as (i) no Event of Default has occurred and is continuing at the time of such Disposition and (ii) the Fair Market Value of all such assets Disposed of, whether individually or in a series of related transactions, does not exceed $5,000,000 in the aggregate in any fiscal year.        8.06   Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:         (a)   each Subsidiary may make Restricted Payments, directly or indirectly, to any Borrower;         (b)   the  Company  and  each  Subsidiary  may  declare  and  make  dividend  payments  or  other distributions payable solely in the common stock or other common Equity Interests of such Person;         (c)   the  Company,  the  Borrowers  and  each  Restricted  Subsidiary  may  purchase,  redeem  or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire  any  such  shares  in  connection  with  customary  employee  or  management  agreements,  plans  or arrangements, all in an aggregate amount not to exceed $1,000,000 during the term of this Agreement;         (d)   the  Borrower  may  acquire  its  common  stock upon the exercise of stock options or the vesting of restricted stock units if such common stock represents a portion of the exercise price of such stock options or in connection with tax withholding obligations arising in connection with such exercise or vesting of securities held by any current or former director, officer or employee of any Loan Party or Subsidiary, all in an aggregate amount not to exceed $1,000,000 during any fiscal year; and         (e)   the  Company  shall  be  permitted  to make any other Restricted Payment if the Payment Conditions are satisfied with respect thereto.        8.07   Change in Nature of Business.  Engage in any material line of business substantially different from those lines of business conducted by the Borrowers and their Restricted Subsidiaries on the date hereof or any business substantially related or incidental thereto.        8.08   Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of any Loan Party, whether or not in the Ordinary Course of Business, other than:  124





 






            (iv)    payments  made  solely  from  and substantially  contemporaneously  with  the       proceeds  of  the  issuance  of  Equity  Interests  by  the  Company  (other  than  Disqualified  Equity       Interests);              (v)     optional  payment,  prepayments  or  redemptions  in  respect  of  any Indebtedness       (other than Subordinated Debt to the extent contrary to the Subordination Provisions applicable       thereto) so long as the Payment Conditions are satisfied (a “Specified Debt Payment”); and              (vi)    payments  under  the  Acceptable  Letter  of  Credit  Reimbursement  Agreement;       provided that the following conditions have been satisfied:  (i) as of the date of such payment and       immediately after giving effect thereto, no Event of Default has occurred and is continuing, (ii)       Adjusted  Excess  Availability  immediately  before  and  after  giving  Pro  Forma  Effect  to  such       payment, and on an average basis after giving Pro Forma Effect to such payment during the thirty       (30) consecutive day period ending on and including the date of such payment, shall not be less       than, the greater of (A) 20.0% of the Maximum Borrowing Amount and (B) $40,000,000 and (iii)       the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower       Agent  certifying  as  to  compliance  with  the  preceding  clauses  and  demonstrating  (in  reasonable       detail)  the  calculations  required  thereby  (for  the  avoidance  of  doubt,  to  the  extent  any  such       payment is being made contemporaneous with the return of any Acceptable Letter of Credit (and       removal such letter of credit from the Borrowing Base) then all calculations of Adjusted Excess       Availability  shall include the impact of both events).        (b)    Amend,  modify  or  change  in  any  manner  any  term  or  condition  of any  Indebtedness permitted under Section 8.01(b), (d), (f), (g), (j), (l) or (n) outstanding on the Closing Date, in each case so that the terms and conditions thereof are less favorable in any material respect to the Administrative Agent and the Lenders than the terms of such Indebtedness as of the Closing Date.         (c)   Amend,  modify  or  change  in  any  manner  any  term  or  condition  of the  Term  Loan Documents,  unless  such  modifications  are  expressly  permitted  by  the  terms  of  the  Intercreditor Agreement.         (d)   Amend, modify or change in any manner any term or condition of the Acceptable Letter of Credit Reimbursement Agreement without the prior written consent of the Administrative Agent.        (e)    Amend,  modify or  change in any  manner any term or  condition of the  Junior Lien  Documents,  unless such  modifications are  not  prohibited by the terms of the  Junior Lien  Intercreditor  Agreement.        8.12   Financial Covenant.  Permit the Consolidated Fixed Charge Coverage Ratio, determined on a Pro Forma Basis as of (i) the last day of the Measurement Period most recently ended before the commencement  of  a  Fixed  Charge  Trigger  Period  and  (ii)  the  last  day  of  each  Measurement  Period thereafter  ending  during  any  Fixed  Charge  Trigger  Period  to  be less  than  1.00  to  1.00  for  such Measurement Period.        8.13   Creation of New Subsidiaries.  Create or acquire any new Subsidiary after the Closing Date other than Subsidiaries created or acquired in accordance with Section 7.12.        8.14   Securities  of  Subsidiaries.   Permit  any  Restricted  Subsidiary  to  issue  any  Equity Interests (whether for value or otherwise) to any Person other than a Loan Party.   126





 






             Fourth, to that portion of the Loan Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit Fees and other Obligations expressly described in clauses  Fifth  through  Eighth  below)  payable  to  the  Lenders  and  the  Letter  of  Credit  Issuer (including reasonable fees, charges and disbursements of counsel to the respective Lenders and the Letter of Credit Issuer  and  amounts  payable  under  Article  III),  ratably  among  them  in  proportion  to  the  respective amounts described in this clause Fourth payable to them until paid in full;               Fifth, to that portion of the Loan Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, Letter of Credit Borrowings and other Loan Obligations, ratably among the Lenders and the Letter of Credit Issuer in proportion to the respective amounts described in this clause Fifth payable to them until paid in full;               Sixth, to (i) that portion of the Obligations constituting unpaid principal of the Loans and Letter  of  Credit  Borrowings  and  to  Cash  Collateralize  that  portion  of  Letter  of  Credit  Obligations comprising  the  aggregate  undrawn  amount  of  Letters  of  Credit  to  the  extent  not  otherwise  Cash Collateralized by the Borrowers and (ii) the payment of Priority Swap Obligations and Conforming Credit Product Obligations (other than in respect of Leasing Services) to the extent a Credit Product Reserve has been established therefor, ratably among the Lenders, Letter of Credit Issuer and the applicable Credit Product Providers in proportion to the respective amounts described in this clause Sixth payable to them until paid in full;               Seventh,  to  payment  of  Conforming  Credit  Product  Obligations (other than (i) Priority Swap Obligations and Conforming Credit Product Obligations to the extent paid under clause Sixth above  and  (ii) in  respect of  Leasing  Services)  ratably  to  the  Credit  Product  Providers  in  proportion  to  the respective amounts described in this clause Seventh payable to them until paid in full;               Eighth, to all other Obligations (including Credit Product Obligations to the extent not paid under clauses Sixth or Seventh above) that are due and payable to the Administrative Agent and the other Secured Parties, or any of them, on such date, ratably based on the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date until paid in full; and               Last, the balance, if any, after Payment in Full, to the Borrowers or as otherwise required by Law.               Any amount applied to the Revolving Credit Loans shall be applied first to the Revolving Credit Loans that are not FILO Loans until repaid in full, and then to FILO Loans.        (c)    Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings under  such  Letters  of  Credit  as  they  occur.   Amounts  distributed  with  respect  to  any  Credit  Product Obligations  shall  be  the  lesser  of  (i)  the  maximum  Credit  Product  Obligations  last  reported  to  the Administrative  Agent  or  (ii)  the  actual  Credit  Product  Obligations  as  calculated  by  the  methodology reported to the Administrative Agent for determining the amount due.  The Administrative Agent shall have  no  obligation  to  calculate  the  amount  to  be  distributed  with  respect  to  any  Credit  Product Obligations, and may request a reasonably detailed calculation of such amount from the applicable Credit Product Provider.  The allocations set forth in this Section are solely to determine the rights and priorities of Administrative Agent and Secured Parties as among themselves, and may be changed by agreement among them without the consent of any Borrower.  This Section is not for the benefit of or enforceable by any Loan Party.  132