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                                                                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  “Term  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  Term  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 Term  Administrative  Agent  amend  the  Existing  Credit  Agreement  in  certain  respects,  and  the  Lenders  party  hereto and the Term 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  Term  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 Term 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:14047748.3 





 






   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  Term  Administrative  Agent  shall  have  received  counterparts  of  this  Amendment,  executed  by  the  Loan  Parties,  the  Term  Administrative  Agent  and  the  Required  Supermajority Lenders.          4.02. ABL Amendment. The Term Administrative Agent shall have received a fully executed  copy of the third amendment to the ABL Loan Agreement with substantially similar amendments to this  Amendment and otherwise in form and substance acceptable to the Term 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 $100,000.          4.04. Costs and Expenses.  The Company shall have paid all reasonable and documented and  invoiced  out-of-pocket  costs  and  expenses  of  the  Term  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 Term 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  apply to all Obligations as defined in the Amended Credit Agreement (including, without limitation, all                                              2  AmericasActive:14047748.3 





 






   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 Term  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  Term  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  Term  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  Term  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:14047748.3 





 












 












 






   TERM ADMINISTRATIVE AGENT:              BMO  HARRIS  BANK  N.A.,  as  Term  Administrative                                          Agent                                               By:                                                                        Name:                                                Isabella Battista                                         Title:                                                Director  LENDERS:                                BMO HARRIS BANK N.A., as a Lender                                              By:                                           Name:                                                 Isabella Battista                                         Title: Director                             [Signature Page to RRTS Third Amendment] 





 












 






                                            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                              BMO CAPITAL MARKETS CORP.,                              as Lead Arranger and Book Runner   AmericasActive:14048044.114048044.6





 






                                TABLE OF CONTENTS                                                                                    Page  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS                                           1   1.01   Defined Terms                                                               1   1.02   Other Interpretive Provisions                                              36   1.03   Accounting Terms                                                         3637   1.04   Uniform Commercial Code                                                  3738   1.05   Rounding                                                                 3738   1.06   Times of Day                                                             3738   1.07   Reserved.                                                                3738 ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS                                  3738   2.01   Loan Commitments                                                         3738   2.02   Borrowings, Conversions and Continuations of Loans                         39   2.03   Reserved                                                                 4041   2.04   Reserved                                                                 4041   2.05   Repayment of Loans                                                       4041   2.06   Prepayments                                                              4142   2.07   Termination or Reduction of Commitments                                    45   2.08   Interest                                                                 4546   2.09   Fees                                                                       46   2.10   Computation of Interest and Fees                                         4647   2.11   Evidence of Debt                                                         4647   2.12   Payments Generally; the Administrative Agent’s Clawback                    47   2.13   Sharing of Payments by Lenders                                           4849   2.14   Reserved                                                                 4950   2.15   Nature and Extent of Each Borrower’s Liability                           4950   2.16   Reserved.                                                                5253   2.17   Defaulting Lenders                                                       5253   2.18   Reserved                                                                 5354   2.19   Designation of Subsidiaries as Unrestricted Subsidiaries                 5354 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY                                  54   3.01   Taxes                                                                      54   3.02   Illegality                                                               5758   3.03   Inability to Determine Rates; Discontinuation of LIBOR                     58   3.04   Increased Costs; Reserves on LIBOR Loans                                   59   3.05   Compensation for Losses                                                  6061                                              i





 






  3.06   Mitigation Obligations; Replacement of Lenders                           6061 ARTICLE IV SECURITY AND ADMINISTRATION OF COLLATERAL                              6162   4.01   Security                                                                 6162   4.02   Collateral Administration                                                6162   4.03   After Acquired Property; Further Assurances                              6364   4.04   Cash Management                                                          6465   4.05   Information Regarding Certain Collateral                                 6566 ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS                               6566   5.01   Conditions of Initial Credit Extension                                   6566   5.02   Conditions to all Credit Extensions                                      6869 ARTICLE VI REPRESENTATIONS AND WARRANTIES                                           69   6.01   Existence, Qualification and Power                                         69   6.02   Authorization; No Contravention                                          6970   6.03   Governmental Authorization; Other Consents                               6970   6.04   Binding Effect                                                           6970   6.05   Financial Statements; No Material Adverse Effect                         6970   6.06   Litigation                                                               7071   6.07   No Default                                                               7071   6.08   Ownership of Property; Liens                                             7071   6.09   Environmental Compliance                                                   71   6.10   Insurance                                                                7172   6.11   Taxes                                                                      72   6.12   ERISA Compliance                                                         7273   6.13   Subsidiaries and Equity Interests                                          73   6.14   Margin Regulations; Investment Company Act                               7374   6.15   Disclosure                                                               7374   6.16   Compliance with Laws                                                     7374   6.17   Intellectual Property; Licenses, Etc                                     7374   6.18   Labor Matters                                                              74   6.19   Deposit Accounts, Securities Accounts and Commodity Accounts             7475   6.20   Reserved                                                                 7475   6.21   Anti-Terrorism Laws and Foreign Asset Control Regulations                7475   6.22   Brokers                                                                    76   6.23   Customer and Trade Relations                                               76   6.24   Material Contracts                                                       7677   6.25   Casualty                                                                 7677                                             ii





 






  6.26   Senior Indebtedness                                                      7677   6.27   Relations with Vendors and Customers                                     7677   6.28   Aircraft Parts                                                           7677   6.29   Rolling Stock                                                              77   6.30   Aircraft Matters.                                                        7778   6.31   Reserved.                                                                  78 ARTICLE VII AFFIRMATIVE COVENANTS                                                 7879   7.01   Financial Statements                                                     7879   7.02   Other Information                                                        7980   7.03   Notices                                                                    81   7.04   Payment of Obligations                                                     82   7.05   Preservation of Existence, Etc                                             82   7.06   Maintenance of Properties                                                8283   7.07   Maintenance of Insurance; Condemnation Proceeds                          8283   7.08   Compliance with Laws                                                     8384   7.09   Books and Records                                                          84   7.10   Inspection Rights and Appraisals; Meetings with the Administrative Agent   84   7.11   Use of Proceeds                                                          8485   7.12   New Subsidiaries                                                           85   7.13   Compliance with ERISA                                                      86   7.14   Further Assurances                                                         86   7.15   Licenses                                                                 8687   7.16   Environmental Laws                                                       8687   7.17   Leases, Mortgages and Third-Party Agreements                             8687   7.18   Material Contracts                                                       8788   7.19   Treasury Management and Other Services                                   8788   7.20   Reserved.                                                                8788   7.21   Post-Closing Agreements                                                  8788   7.22   Beneficial Ownership Regulation                                            88 ARTICLE VIII NEGATIVE COVENANTS                                                   8889   8.01   Indebtedness                                                             8889   8.02   Liens                                                                    9092   8.03   Investments                                                              9293   8.04   Fundamental Changes                                                      9394   8.05   Dispositions                                                             9495   8.06   Restricted Payments                                                      9596                                            iii





 






  8.07   Change in Nature of Business                                             9596   8.08   Transactions with Affiliates                                             9596   8.09   Burdensome Agreements                                                    9597   8.10   Use of Proceeds                                                          9697   8.11   Prepayment of Indebtedness; Amendment to Material Agreements             9697   8.12   Reserved.                                                                9798   8.13   Creation of New Subsidiaries                                             9798   8.14   Securities of Subsidiaries                                               9798   8.15   Sale and Leaseback                                                       9798   8.16   Organization Documents; Fiscal Year                                      9799   8.17   Reserved.                                                                9799   8.18   Anti-Money Laundering and Terrorism Laws and Regulations                 9799   8.19   Economic Sanctions Laws and Regulations                                  9899   8.20   Reserved.                                                                9899   8.21   Aircraft Operations                                                      9899 ARTICLE IX EVENTS OF DEFAULT AND REMEDIES                                        98100   9.01   Events of Default                                                       98100   9.02   Remedies Upon Event of Default                                         100102   9.03   Application of Funds                                                   101102 ARTICLE X ADMINISTRATIVE AGENT                                                  103104   10.01  Appointment and Authority                                              103104   10.02  Rights as a Lender                                                     103105   10.03  Exculpatory Provisions                                                 103105   10.04  Reliance by the Administrative Agent                                   104106   10.05  Delegation of Duties                                                   104106   10.06  Resignation of the Administrative Agent                                105106   10.07  Non-Reliance on the Administrative Agent and Other Lenders             105107   10.08  No Other Duties, Etc                                                   106107   10.09  The Administrative Agent May File Proofs of Claim; Credit Bidding      106107   10.10  Collateral Matters                                                     107108   10.11  Other Collateral Matters                                               107109   10.12  Credit Product Arrangement Provisions                                  108109 ARTICLE XI MISCELLANEOUS                                                        108110   11.01  Amendments, Etc                                                        108110   11.02  Notices; Effectiveness; Electronic Communication                       111112   11.03  No Waiver; Cumulative Remedies                                         113114                                             iv





 






  11.04  Expenses; Indemnity; Damage Waiver                                     113115   11.05  Marshalling; Payments Set Aside                                        115117   11.06  Successors and Assigns                                                 116117   11.07  Treatment of Certain Information; Confidentiality                      120122   11.08  Right of Setoff                                                        121122   11.09  Interest Rate Limitation                                               121123   11.10  Counterparts; Integration; Effectiveness                               122123   11.11  Survival                                                               122123   11.12  Severability                                                           122124   11.13  Replacement of Lenders                                                 122124   11.14  Governing Law; Jurisdiction; Etc                                       123125   11.15  Waiver of Jury Trial                                                   124126   11.16  Electronic Execution of Assignments and Certain Other Documents        124126   11.17  USA PATRIOT Act Notice                                                 125126   11.18  No Advisory or Fiduciary Responsibility                                125126   11.19  Attachments                                                            125127   11.20  Acknowledgement and Consent to Bail-In of EEA Financial Institutions   125127 ARTICLE XII CONTINUING GUARANTY                                                 127129   12.01  Guaranty                                                               127129   12.02  Rights of Lenders                                                      127129   12.03  Certain Waivers                                                        128129   12.04  Obligations Independent                                                128130   12.05  Subrogation                                                            128130   12.06  Termination; Reinstatement                                             128130   12.07  Subordination                                                          128130   12.08  Stay of Acceleration                                                   129130   12.09  Condition of Borrowers                                                 129130   12.10  Keepwell                                                               129131                                               v





 






SCHEDULES  1.01             [Reserved] 1.02             Unrestricted Subsidiaries 1.03(a)          Term Loan A Equipment 1.03(b)          Term Loan B Equipment 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-1             Term Loan A Note A-2             Term Loan A FILO Note A-3             Term Loan B Note A-4             CapX Loan Note B               Compliance Certificate C               Security Agreement D               Assignment and Assumption Agreement E               Joinder Agreement                                              vi





 






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.           “Appropriate  Lender”  means,  at  any  time,  with  respect  to  any  Facility,  a  Lender  that  has  a Commitment with respect to such Facility or holds a Loan under such 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.         “Arranger” means BMO Capital Markets Corp..        “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 D  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).        “Availability Period” means in respect of the CapX Facility, the period from the Effective Date to the earliest of (i) the date that is five (5) years after the Effective Date, (ii) the Maturity Date, (iii) the date on which the CapX Loans under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise), (iv) the Third Amendment Effective Date and (ivv) the date on which the CapX Commitment is terminated pursuant to Section 2.07.         “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.                                              4





 






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.        “Joinder” means a joinder agreement substantially in the form of Exhibit E 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.        “Lender” has the meaning specified in the introductory paragraph hereto.        “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower Agent and the Administrative Agent.         “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                                            21





 






      “Secured Party” means (a) each Lender, (b) each Credit Product Provider, (c) the Administrative Agent, (d) the Arranger and (e) the successors and assigns of each of the foregoing.         “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 Effective Date 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.         “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 Restricted Payment” means any Restricted Payment pursuant to Section 8.06(e) or (f).                                             31





 






      “Term Loan Priority Account” has the meaning specified in Section 7.21(f).         “Term Loan Priority Collateral” has the meaning given such term in the Intercreditor 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.         “Trade and Replacement Plan” means any plan or program providing for the trade or replacement of Rolling Stock.         “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.         “Tranche A  Lenders”  means,  collectively,  Tranche  A  Term  Lenders  and  Tranche  A  FILO Lenders.         “Tranche A  Loans”  means,  collectively,  Tranche  A  Term  Loans  and  Tranche  A  FILO Term Loans.         “Tranche A Term Borrowing” means a borrowing consisting of simultaneous Tranche A Term Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period, made by each of the Tranche A Term Lenders pursuant to Section 2.02.         “Tranche A Term Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Tranche A Term Loans.        “Tranche A Term Lender” means each Lender that has a Tranche A Term Loan Commitment or, following termination of the Tranche A Term Loan Commitments, has Tranche A Term Credit Exposure.         “Tranche A Term Loan”  means  a  Base  Rate  Loan  or  a  LIBOR  Loan  made  to  the  Borrowers pursuant to Section 2.01(b).         “Tranche A Term Loan Commitment” means, as to each Tranche A Term Lender, its obligation to make Tranche A Term Loans to the Borrowers pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Tranche A Term Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Tranche A Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The aggregate Tranche A Term Loan Commitment for all Tranche A Term Lenders is $40,357,469.        “Tranche A Term Loan Facility” means the facility described in Section 2.01(b), providing for Tranche A Term Loans to the Borrowers.                                              34





 






party and the funding of the Term Loan Credit Facilities and (c) the payment in full and cancellation of the Existing 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; and (c(c)  leasing  arrangement and  services  (including  equipment  leasing)  (“Leasing  Services”); and (d)  all  other  banking  products  or  services,  including  trade  and  supply  chain finance services, 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.        “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 Company is an Unrestricted Subsidiary as of the Third Amendment Effective Date is listed on Schedule  1.02 heretoand none shall be designated as an Unrestricted Subsidiary thereafter.        “Unused Fee” has the meaning specified in Section 2.09(b).        “Unused Fee Rate” means a per annum rate equal to 0.50%.        “U.S. Economic Sanctions” shall have the meaning specified in Section 6.21.         “U.S.  Person”  means  any  Person  that  is  a  “United  States  Person”  as  defined in  Section 7701(a)(30) of the Code.        “Used CapX Equipment” means CapX Equipment consisting of used trailers that are (i) currently being leased by a Loan Party and (ii) less than 60 months old.          “Vehicle Title Custodial Agreement” means the Collateral Agency Agreement dated as of the Effective Date among the Loan Parties, the Vehicle Title Service Provider and the Administrative Agent, in form and substance satisfactory to the Administrative Agent.         “Vehicle Title Service Provider” means Corporation Service Company, or any successor provider appointed by the Administrative Agent.         “Voting Stock” means in relation to a Person, shares of Equity Interests entitled to vote generally in the election of directors to the board of directors or equivalent governing body of such Person.                                             36





 






            (vi)    each  CapX  Loan  shall  not  exceed  (A)  with  respect  to  New  CapX  Equipment,       85% of the Cost of such New CapX Equipment to be financed by such CapX Loan and (B) with       respect  to  Used  CapX  Equipment,  85%  of  the  NOLV  of  such  Used  CapX  Equipment  to  be       financed by such CapX Loan.  It is understood and agreed that the Company will deliver to the Administrative Agent the information required  above,  together  with  such  additional  information  regarding  the  CapX  Equipment  that  the Administrative  Agent  reasonably  requests,  and  such  information shall be provided at least 10 days (or such  shorter  period,  as  the  Administrative  Agent  shall  agree)  prior  to  the  making  of  any  CapX  Loan. Upon the making of a CapX Loan, a portion of the CapX Commitment shall expire upon funding in an amount equal to the funded CapX Loan.  No more than ten (10) CapX Loans shall be made during the term  of  this  Agreement.  Notwithstanding  anything  to  the  contrary,  CapX  Loans  shall  not  be  available during  the  period  commencing  on  the  First  Amendment  Effective  Date  and  continuing  until  the Administrative  Agent’s  receipt  of  the  December  1,  2019  quarterly  amortization  payments  pursuant  to Section 2.05.  Notwithstanding the  foregoing, or  anything else  herein to the  contrary, the  Administrative  Agent, the  CapX  Lenders and the Loan  Parties  hereby  acknowledge and agree that  from and after the Third  Amendment Effective Date, the Borrower shall not be entitled to request, and no CapX Lender shall be  required or permitted to make, any new CapX Loans.        (f)    [Reserved].        2.02   Borrowings, Conversions and Continuations of Loans.        (a)    Each  Borrowing,  each  conversion  of  Loans  from  one  Type  to  the  other,  and  each continuation  of  LIBOR  Loans  shall  be  made  upon  the  Borrower  Agent’s  irrevocable  notice  to  the Administrative  Agent,  which  may  be  given  by  telephone.   Each  such  notice  must  be  received  by  the Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Loans or of any conversion of LIBOR Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower Agent pursuant to this Section 2.02(a) must be promptly confirmed in writing by a Responsible Officer of the Borrower Agent.  Each Borrowing of, conversion to or continuation of LIBOR Loans shall be in a principal amount of $500,000 or a whole multiple of $50,000 in excess thereof.  Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each such notice (whether telephonic or written) shall specify (i) whether the Borrowers are requesting a Tranche A Term Borrowing, a Tranche A FILO Term Borrowing, a Tranche B Term Borrowing or a CapX Borrowing, (ii) the principal amount of Loans to be borrowed, converted  or  continued,  (iii)  the  Type  of  Loans  to  be  borrowed or  to  which  existing  Loans  are  to  be converted,  (iv)  the  requested  date  of  the  Borrowing,  conversion  or  continuation,  as  the  case  may  be (which  shall  be  a  Business  Day)  and  (v)  if  applicable,  the  duration  of  the  Interest  Period  with  respect thereto.  If the Borrowers fail to specify a Type of Loan or if the Borrowers fail to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans.  If the Borrowers request a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Committed Loan Notice, but fail to specify an Interest Period, they will be deemed to have specified an Interest Period of one month.         (b)   Following receipt of a Committed Loan Notice for a Facility, the Administrative Agent shall  promptly  notify  each  Appropriate  Lender  of  the  amount  of its  Applicable  Percentage  under  such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the                                            40





 






insurance event is less than $1,000,000100,000, at the month end immediately following) receipt  thereof  by  such  Person,  first,  to  the  principal  repayment  installments  of  the Tranche A Term Loans, in the inverse order of maturity against the remaining scheduled principal payments (or ratably to all remaining scheduled principal payments in the case of  a  Disposition  in  connection  with  the  sale  of  a  business),  second, to the principal repayment installments of the Tranche A FILO Term Loans, and third, to the principal repayment installments of the Tranche B Term Loans and the CapX Loans, in the inverse order of maturity against the remaining scheduled principal payments (or ratably to all remaining scheduled principal payments in the case of a Disposition in connection with the sale of a business).         (B)    Term Loan B  Equipment.   If  a  Disposition  or  insurance  event  occurs with respect to any Term Loan B Equipment, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon (or, if the realization by such Person of Net Cash Proceeds for any such Disposition or insurance event is less than $1,000,000100,000, at the month end immediately following) receipt  thereof  by  such  Person,  first,  to  the  principal  repayment  installments  of  the Tranche B Term Loans, in the inverse order of maturity against the remaining scheduled principal payments (or ratably to all remaining scheduled principal payments in the case of a Disposition in connection with the sale of a business)  and second, to the principal repayment installments of the Tranche A Loans and the CapX Loans, in the inverse order of  maturity  against  the  remaining  scheduled  principal  payments (or  ratably  to  all remaining scheduled principal payments in the case of a Disposition in connection with the sale of a business).  Any prepayment of the Tranche A Loans shall be applied first to the Tranche A Loans that are not Tranche A FILO Term Loans until repaid in full, and then to Tranche A FILO Term Loans.         (C)    CapX  Equipment.   If  a  Disposition  or  insurance  event  occurs  with respect  to  any  CapX  Equipment,  the  Borrowers  shall  prepay  an  aggregate  principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon (or, if the realization by such Person of Net Cash Proceeds for any such Disposition or insurance event is less than $1,000,000100,000, at the month end immediately following) receipt thereof by such Person, first, to the principal repayment installments of the CapX Loan to which  such  CapX  Equipment  relates,  in  the  inverse  order  of  maturity  against  the remaining scheduled principal payments (or ratably to all remaining scheduled principal payments  in  the  case  of  a  Disposition  in  connection  with  the  sale  of  a  business)  and second, ratably to the principal repayment installments of the Tranche A Loans and the Tranche B Term Loans, in the inverse order of maturity against the remaining scheduled principal payments (or ratably to all remaining scheduled principal payments in the case of  a  Disposition  in  connection  with  the  sale  of  a  business).   Any  prepayment  of  the Tranche A Loans shall be applied first to the Tranche A Loans that are not Tranche A FILO Term Loans until repaid in full, and then to Tranche A FILO Term Loans.         (D)    Other Property.  If a Disposition or insurance event occurs with respect to any property (other than Term Loan A Equipment, Term Loan B Equipment and CapX Equipment)  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 $1,000,000100,000 for any such Disposition and insurance events or $1,000,000100,000 in  the  aggregate  for  all  such  Dispositions  and  insurance  events  in  any  fiscal  year,  the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such                               44





 






             excess Net Cash Proceeds immediately upon receipt thereof by such Person, ratably to              the principal repayment installments of the Tranche A Loans, Tranche B Term Loans and              the  CapX  Loans,  in  the  inverse  order  of  maturity  against  the  remaining  scheduled              principal payments (or ratably to all remaining scheduled principal payments in the case              of  a  Disposition  in  connection  with  the  sale  of  a  business).   Any  prepayment  of  the              Tranche A Loans shall be applied first to the Tranche A Loans that are not Tranche A              FILO Term Loans until repaid in full, and then to Tranche A FILO Term Loans.              (ii)    Appraisals.  If at any time after an appraisal of the Term Loan A Equipment the       outstanding principal amount of the Tranche A Term Loans is in excess of 85% of the NOLV of       the  Term  Loan  A  Equipment  as  determined  by  an  appraisal  prior  to  the  Effective  Date,  the       Borrowers shall promptly prepay the Tranche A Term Loans in an aggregate amount equal to such       excess.              (iii)   BMO as Administrative Agent and Lender.  To the extent that BMO is a Lender       hereunder,  if  at  any  time  prior  to  the  Maturity  Date  (a)  BMO  voluntarily  ceases  to  be  both  the       ABL  Agent  and  an  ABL  Lender  under  the  ABL  Loan  Agreement  pursuant  to  Section  10.06 or       11.06(b) of the ABL Loan Agreement, respectively or (b) BMO ceases to be both the ABL Agent       and an ABL Lender under the ABL Loan Agreement for any other reason, then (i) with respect to       clause  (a),  the  Borrowers  shall  prepay  all  outstanding  Obligations,  together  with any applicable       prepayment premium, within 30 days of the date on which BMO ceases to be the ABL Agent and       an ABL Lender under the ABL Loan Agreement or (ii) with respect to clause (b), the Borrowers       shall  prepay  all  outstanding  Obligations,  together  with  any  applicable  prepayment  premium,       within  3  Business  Days  of  the  date  on  which  BMO  ceases  to  be  the  ABL  Agent  and  an  ABL       Lender under the ABL Loan Agreement.        (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 in respect of the relevant Facilities.              (ii)    [Reserved].         (d)   Reinvestment.   Notwithstanding  the  foregoing,  with  respect  to  any  Net  Cash Proceeds less  than  $10,000,0005,000,000  realized  in  connection  with  a  Disposition  or  insurance  event, in  each case.  described  in  Section  2.06(b)(i)(D),  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).  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 this Section 2.06(d).                                              45





 






Agent of any default by the applicable Loan Party or Restricted Subsidiary with respect to such leases or mortgages, deeds of trust or similar security documents and (iii) promptly cure any such default by the applicable  Loan  Party  or  Restricted  Subsidiary.  If  any  such  default  is  not  so  cured,  each  Loan  Party hereby authorizes the Administrative Agent (as its non-fiduciary agent and on its behalf) to, if elected by the Administrative Agent in its reasonable discretion, make such payments and/or take such other actions as  the  Administrative  Agent  may elect  in  order  to  cure  any  such  default  (whether  or  not  an  Event  of Default under this Agreement exists at such time).  Each Loan Party agrees that the Administrative Agent shall have no obligation to exercise any right to cure hereunder, whether or not such right is exercised on any one or more occasions.        7.18   Material  Contracts.   Perform  and  observe  all  the  payment  terms  and  other  material terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material  Contract  in  full  force  and  effect,  enforce  each  such  Material  Contract  in  accordance  with  its 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  or  Wells  Fargo  Bank,  National  Association  for  other Treasury Management and Other Services (other than Leasing Services which, for the avoidance of doubt,  may be with any Person).        7.20   Reserved.        7.21   Post-Closing  Agreements.  Notwithstanding  anything  to  the  contrary  herein  or  in  any other Loan Document, 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  first 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.                                              89





 






      (o)    Indebtedness incurred in connection with any Permitted Earn-Out Payment;        (p)    Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with Dispositions permitted under Section 8.05(b);         (q)   Without  duplication  of  Indebtedness  permitted  under  Section  8.01(i)(iii)  above, Indebtedness incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;         (r)   Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to the Administrative Agent and/or for the benefit of providers of ABL Obligations title insurance policies;         (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  (as defined in the ABL Loan 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; 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                                              92





 






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  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 Effective Date as described on Schedule 8.02 (setting forth, as of the Effective 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;                                              93





 






      (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;        (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  ABL  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                                             94





 






      (d)    Dispositions that result from a casualty or condemnation in respect of such property or assets and is not otherwise an Event of Default so long as all proceeds thereof are applied in accordance with Section 2.06(c);        (e)    the  licensing,  on  a  non-exclusive  basis,  of  patents,  trademarks,  copyrights,  and  other Intellectual Property rights in the Ordinary Course of Business,        (f)    (i)  the  lapse  of  immaterial  registered  patents,  trademarks,  copyrights  and  other Intellectual Property to the extent maintaining such registered Intellectual Property is not economically desirable  in  the  conduct  of  its  business  or  (ii)  the  abandonment  of  patents,  trademarks,  copyrights,  or other intellectual property rights in the Ordinary Course of Business so long as in each case under clauses (i) and (ii), such lapse or abandonment is not materially adverse to the interests of the Secured Parties;        (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 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;        (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;         (l)    the Specified Dispositions in accordance with Schedule A; or        (m)    (l) other  Dispositions  of  assets  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                                             97





 






termination of any Indebtedness or (y) any amounts under the Acceptable Letter of Credit Reimbursement Agreement (as defined in the ABL Loan Agreement), including any taxes, fees, charges or other costs or expenses, except:              (i)     payments  when  due  of  regularly  scheduled  interest  and  principal payments       (including mandatory prepayments arising as a result of a change of control or sale of substantially       all  assets),  other  than (x)  payments  in  respect  of  any  Subordinated  Debt  prohibited  by  the       Subordination Provisions thereof and (y) any payment in respect of the Acceptable Letter of Credit       Reimbursement Agreement (as defined in the ABL Loan Agreement);              (ii)    payments made through the incurrence of Refinancing Indebtedness;              (iii)   payments  of  secured  Indebtedness  that  becomes  due  as  a  result  of  a  voluntary       sale or transfer permitted hereunder of the property securing such Indebtedness;              (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 paragraph 3 of the Acceptable Letter of Credit Reimbursement       Agreement (as defined in the ABL Loan Agreement) after satisfaction of the conditions set forth       therein.        (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 Effective 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 Effective Date.         (c)   Amend,  modify  or  change  in  any  manner  any  term  or  condition  of the  ABL  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 (as defined in the ABL Loan 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   Reserved.        8.13   Creation of New Subsidiaries.  Create or acquire any new Subsidiary after the Effective 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.                                             99





 






      (a)    Subject to Section 9.03(b) below, all payments made by Loan Parties in respect of the Loan Obligations shall be applied (a) first, as specifically required in the Loan Documents; (b) second, to Loan Obligations then due and owing; (c) third, to other Loan Obligations specified by Borrower Agent; and (d) fourth, as determined by the Administrative Agent in its discretion.  Any amount applied to the Tranche A Loans shall be applied first to the Tranche A Loans that are not Tranche A FILO Term Loans until repaid in full, and then to Tranche A FILO Term Loans.        (b)    Notwithstanding  any  provision  to  the  contrary  contained  herein,  after  the  exercise  of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and  payable  as  set  forth  in  the  proviso  to  Section 9.02),  any  amounts  received  on  account  of  the Obligations shall, subject to the provisions of Section 2.17, be applied by the Administrative Agent in the following order:               First,  to  all  fees,  indemnities,  expenses  and  other  amounts  (including  reasonable  fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article IV) due to the Administrative Agent in its capacity as such, until paid in full;               Second, to that portion of the Loan Obligations constituting fees, indemnities and other amounts (other than principal, interest and other Obligations expressly described in clauses Third through Sixth below) payable to the Lenders (including reasonable fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them until paid in full;               Third,  (i)  (a)  first,  with  respect  to  that  portion  of  the  Loan  Obligations  constituting accrued and interest on the Tranche A Loans, the proceeds of Term Loan A Equipment to be distributed ratably among the Tranche A Lenders in proportion to the respective amounts described in this clause Third  payable  to  them  until  paid  in  full,  (b)  second,  with  respect  to  that  portion  of  the  Obligations constituting unpaid principal of the Tranche A Loans, any remainder of the proceeds of Term Loan A Equipment to be distributed ratably among the Tranche A Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full and (c), third, with respect to any other Loan Obligations, any remainder of the proceeds of Term Loan A Equipment to be distributed ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full, (ii) (a) first, with respect to that portion of the Loan Obligations constituting accrued and interest on the Tranche B Term Loans, the proceeds of Term Loan B Equipment to be distributed ratably among the Tranche B Term Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full, (b) second, with respect to that portion of the Obligations constituting unpaid  principal  of  the  Tranche  B  Term  Loans,  any  remainder  of the  proceeds  of  Term  Loan  B Equipment to be distributed ratably among the Tranche B Term Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full and (c), third, with respect to any other  Loan  Obligations,  any  remainder  of  the  proceeds  of  Term  Loan  B  Equipment  to  be  distributed ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full and (iii) (a) first, with respect to that portion of the Loan Obligations constituting accrued  and  interest  on  the  CapX  Loans,  the  proceeds  of  CapX  Equipment  to  be  distributed  ratably among the CapX Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full, (b) second, with respect to that portion of the Obligations constituting unpaid principal of the CapX Loans, any remainder of the proceeds of CapX Equipment to be distributed ratably among the CapX Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full and (c), third, with respect to any other Loan Obligations, any remainder of the proceeds of CapX Equipment to be distributed ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them until paid in full,  ;                                            104





 






             Fourth,  to  the  payment  of  Priority  Swap  Obligations  to  the  extent  a  Credit  Product Reserve  has  been  established  therefor,  ratably  among  the  Lenders  and  the  applicable  Credit  Product Providers in proportion to the respective amounts described in this clause Fourth payable to them until paid in full;               Fifth, to payment of Conforming Credit Product Obligations (other than (i) Priority Swap Obligations to the extent paid under clause Fourth above and (ii) in respect of Leasing Services) ratably to the Credit Product Providers in proportion to the respective amounts described in this clause Fifth payable to them until paid in full;               Sixth, to all other Obligations (including Credit Product Obligations to the extent not paid under clauses Fourth or Fifth 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 Tranche A Loans shall be applied first to the Tranche A Loans that are not Tranche A FILO Term Loans until repaid in full, and then to Tranche A FILO Term Loans.         (c)   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.        (d)    For purposes of Section 9.03(b), “paid in full” of a type of Obligation means payment in cash  or  immediately  available  funds  of  all  amounts  owing  on  account  of  such  type  of  Obligation, including interest accrued after the commencement of any Insolvency Event, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any proceeding under Debtor Relief Laws.        (e)    Administrative  Agent  shall  not  be  liable  for  any  application  of  amounts  made  by  it  in good  faith  under  this  Section 9.03,  notwithstanding  the  fact  that  any  such  application  is  subsequently determined to have been made in error.                                       ARTICLE X                               ADMINISTRATIVE AGENT        10.01  Appointment and Authority.  Each of the Lenders hereby irrevocably appoints BMO to act  on  its  behalf  as  the  Administrative  Agent  hereunder  and  under  the  other  Loan  Documents  and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated  to  the  Administrative  Agent  by  the  terms  hereof  or  thereof,  together  with  such  actions  and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of                                           105