termloanfirstamendment






                                                          EXECUTION VERSION                     FIRST AMENDMENT TO CREDIT AGREEMENT         FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of August 2,  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.  From and after the First Amendment  Effective Date, the Existing Credit Agreement shall be amended as follows:         2.01  References  Generally.   References  in  the  Existing  Credit  Agreement  (including  references  to  the  Existing  Credit  Agreement  as  amended  hereby)  to  “this  Agreement”  (and  indirect  references  such  as  “hereunder”,  “hereby”,  “herein”  and  “hereof”)  and  each  reference  to  the  Existing  Credit Agreement in the other Loan Documents (and indirect references such as “thereunder”, “thereby”,  “therein” and “thereof”) shall be deemed to be references to the Existing Credit Agreement as amended  hereby.         2.02  Amended Language.               (a)   Section  1.01  of  the  Existing  Credit  Agreement  is  amended  by  adding  the        following defined term as follows in alphabetical order:               “First Amendment Effective Date” means August 2, 2019.               (b)   Section  2.01(e) of  the  Existing  Credit  Agreement  is  amended  by  adding  the        following sentences to the end of such Section:               Notwithstanding  anything  to  the  contrary,  CapX  Loans  shall  not  be  available              during  the  period  commencing  on  the  First  Amendment  Effective  Date and    AmericasActive:13778881.6  





 






      continuing  until the  Administrative  Agent’s  receipt  of  the  December  1,  2019        quarterly amortization payments pursuant to Section 2.05.          (c)   The table in Section 2.05(a) of the Existing Credit Agreement is hereby amended  and restated in its entirety to read as follows:              Date                   Quarterly Payment             December 1, 2019             $4,484,164             March 1, 2020                $2,242,082             June 1, 2020                 $2,242,082             September 1, 2020            $2,242,082             December 1, 2020             $2,242,082             March 1, 2021                $2,242,082             June 1, 2021                 $2,242,082             September 1, 2021            $2,242,082             December 1, 2021             $2,242,082             March 1, 2022                $2,242,082             June 1, 2022                 $2,242,082             September 1, 2022            $2,242,082             December 1, 2022             $2,242,082             March 1, 2023                $2,242,082             June 1, 2023                 $2,242,082             September 1, 2023            $2,242,082             December 1, 2023             $2,242,082         (d)   The table in Section 2.05(c) of the Existing Credit Agreement is hereby amended  and restated in its entirety to read as follows:              December 1, 2019              $916,800             March 1, 2020                 $458,400             June 1, 2020                  $458,400             September 1, 2020             $458,400             December 1, 2020              $458,400             March 1, 2021                 $458,400             June 1, 2021                  $458,400             September 1, 2021             $458,400             December 1, 2021              $458,400             March 1, 2022                 $458,400             June 1, 2022                  $458,400             September 1, 2022             $458,400             December 1, 2022              $458,400             March 1, 2023                 $458,400             June 1, 2023                  $458,400             September 1, 2023             $458,400             December 1, 2023              $458,400                                                             2  





 






      (e)   Section  8.01 of  the  Existing  Credit  Agreement  is  amended  by  (i)  re-lettering  clause (y) as (z) and (ii) inserting a new clause (y) as follows:                (y)  Indebtedness  under  the  Acceptable  Letter  of  Credit  Reimbursement        Agreement (as defined in the ABL Loan Agreement); and         (f)   Section 8.11 of the Existing Credit Agreement is amended by (i) amending and  restating clause (a) and (ii) adding a new clause (d), each as follows:               (a)   Make  or  pay,  directly  or  indirectly,  any  payment  or  other        distribution (whether in cash, securities or other property) of or in respect of (x)        principal of or interest on any Indebtedness, or any payment or other distribution        (whether  in  cash,  securities  or  other  property),  including  any  sinking  fund  or        similar deposit, on account of the purchase, redemption, retirement, acquisition,        cancellation or 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.                                        ***                                    3  





 






            (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.         (g)   Article XI of the Existing Credit Agreement is amended by adding a new Section  11.22:         11.22.  Acknowledgement Regarding Any Supported QFCs. To the extent that        the Loan Documents provide support, through a guarantee or otherwise, for any        Swap Contract or any other agreement or instrument that is a QFC (such support,        “QFC  Credit  Support”,  and  each  such  QFC,  a  “Supported  QFC”),  the  parties        acknowledge  and  agree  as  follows  with  respect  to  the  resolution  power  of  the        Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act        and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act        (together  with  the  regulations  promulgated  thereunder,  the  “U.S.  Special        Resolution  Regimes”)  in  respect  of  such  Supported  QFC  and  QFC  Credit        Support  (with  the  provisions  below  applicable  notwithstanding  that  the  Loan        Documents and any Supported QFC may in fact be stated to be governed by the        laws of the State of New York and/or of the United States or any other state of        the United States):                (a)   In the event a Covered Entity that is party to a Supported QFC        (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special        Resolution Regime, the transfer of such Supported QFC and the benefit of such        QFC Credit Support (and any interest and obligation in or under such Supported        QFC  and  such  QFC  Credit  Support,  and  any  rights  in  property  securing  such        Supported QFC or such QFC Credit Support) from such Covered Party will be        effective  to  the  same  extent  as  the  transfer  would  be  effective  under  the  U.S.        Special Resolution Regime if the Supported QFC and such QFC Credit Support        (and any such interest, obligation and rights in property) were governed by the        laws of the United States or a state of the United States. In the event a Covered        Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding        under  a  U.S.  Special  Resolution  Regime,  Default  Rights  under  the  Loan        Documents  that  might  otherwise  apply  to  such  Supported  QFC  or  any  QFC        Credit Support that may be exercised against such Covered Party are permitted to        be  exercised  to  no  greater  extent  than  such  Default  Rights  could  be  exercised        under the U.S. Special Resolution Regime if the Supported QFC and the Loan        Documents  were  governed  by  the  laws  of  the  United  States  or  a  state  of  the        United  States. Without limitation of the  foregoing, it is  understood and  agreed        that rights and remedies of the parties with respect to a Defaulting Lender shall in        no event affect the rights of any Covered Party with respect to a Supported QFC        or any QFC Credit Support.               (b)   As  used  in  this  Section 11.22, the  following  terms  have  the        following meanings:               “BHC  Act  Affiliate”  of  a  party  means  an  “affiliate”  (as  such  term  is        defined  under, and  interpreted  in  accordance  with,  12  U.S.C.  1841(k))  of  such        party.                                    4  





 






                  “Covered Entity” means any of the following: (i) a “covered entity” as              that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);              (ii)  a  “covered  bank”  as  that  term  is  defined  in,  and  interpreted  in  accordance              with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and              interpreted in accordance with, 12 C.F.R. § 382.2(b).                     “Default Right” has the meaning assigned to that term in, and shall be              interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.                     “QFC”  has  the  meaning  assigned  to  the term  “qualified  financial              contract”  in,  and  shall  be  interpreted  in  accordance  with,  12  U.S.C.              5390(c)(8)(D).               (h)   Section  10.06 of  the  Existing  Credit  Agreement  is  amended  by adding  the        following sentence after the period of the last sentence of such section:                     “Notwithstanding  anything  to  the  contrary  in  this  Section  10.06,  upon              written  notice  from  the  Administrative  Agent  of  its  resignation  to  the  Lenders              and the Borrower Agent and fifteen (15) days after the repayment in full of the              Tranche  A  Term  Loans  and  related  Obligations  (or  arrangements  therefore              satisfactory  to  BMO  in  its  sole  discretion),  BMO  shall be automatically              discharged  from  all  of  its  duties  and  obligations  as  Administrative  Agent  and              Elliott Associates, L.P., a Delaware limited partnership, or one of its Affiliates or              designees shall be vested with all of the rights, powers, privileges and duties of              the  Administrative  Agent; provided  that,  during  the  fifteen  (15)  day  period              described  above  BMO  shall  retain solely its  duties  and  obligations  relating  to              matters of perfection in the Collateral.”         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 First 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  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 “First  Amendment Effective Date”):                                          5  





 






      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 Lenders.         4.02  Acceptable Letter of Credit. The ABL Agent shall have received an original Acceptable  Letter of Credit (as defined in the ABL Loan Agreement) in an amount of not less than $20,000,000.         4.03  ABL Amendment. The Term Administrative Agent shall have received a fully executed  copy of the first amendment to the ABL Loan Agreement, (a) amending the definition of “Fixed Charge  Trigger Period” and (b) amending the definition of “Borrowing Base” to include the lesser of (i) 100% of  the  amount  of  any  Acceptable  Letter  of  Credit  (as  defined  in  the  ABL  Loan  Agreement)  and (ii)  $30,000,000 and otherwise in form and substance acceptable to the Term Administrative Agent.         4.04  Costs and Expenses.  The Company shall have paid all reasonable and documented out- of-pocket costs and expenses of the Term Administrative Agent in connection with this Amendment.         4.05  Fees.  The Company shall pay a fee to BMO in the amount of $10,000 in its capacity as  Term Administrative Agent and solely for its own account.         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 First 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 First  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 First 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  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 First 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                                          6  





 






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 10 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]                                          7  





 






         IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed  and delivered as of the day and year first above written.   BORROWER:                           ROADRUNNER  TRANSPORTATION  SYSTEMS,                                      INC.                                       By:_/s/ Terence R. Rogers                                           Name:  Terence R. Rogers                                       Title:  EVP & CFO                                [Signature Page to Amendment]  





 






 SUBSIDIARY GUARANTORS:    A&A EXPRESS, LLC                       INTERNATIONAL TRANSPORTATION  A&A LOGISTICS, LLC                      HOLDINGS, INC.    ACTIVE AERO CHARTER, LLC               ISI LOGISTICS, LLC   ACTIVE AERO GROUP, INC.                ISI LOGISTICS SOUTH, LLC   ACTIVE AERO MOTOR CARRIER, LLC         ASCENT GLOBAL LOGISTICS   ACTIVE GLOBAL SOLUTIONS, LLC           INTERNATIONAL, LLC   ACTIVE PTM, LLC                        MESCA FREIGHT SERVICES, LLC    ASCENT GLOBAL LOGISTICS, LLC           MORGAN SOUTHERN, INC.    ASCENT GLOBAL LOGISTICS HOLDINGS,      PRIME DISTRIBUTION SERVICES, INC.   INC.                                   RICH TRANSPORT, LLC   BEECH HILL ENTERPRISES, LLC            ROADRUNNER EQUIPMENT LEASING, LLC   BIG ROCK TRANSPORTATION, LLC           ROADRUNNER FREIGHT CARRIERS, LLC   CAPITAL TRANSPORTATION LOGISTICS,      ROADRUNNER INTERMODAL SERVICES,   LLC                                    LLC   CENTRAL CAL TRANSPORTATION, LLC        ROADRUNNER TEMPERATURE   CTW TRANSPORT, LLC                     CONTROLLED, LLC   D&E TRANSPORT, LLC                     ROADRUNNER TRANSPORTATION   EVERETT LOGISTICS, LLC                 SERVICES, INC.   EXPEDITED FREIGHT SYSTEMS, LLC         ROADRUNNER TRUCKLOAD 2, LLC   GREAT NORTHERN TRANSPORTATION          ROADRUNNER TRUCKLOAD AGENT   SERVICES, LLC                          INVESTMENT, INC.    GROUP TRANSPORTATION SERVICES, LLC     ROADRUNNER TRUCKLOAD HOLDINGS,                                          LLC                                          RRTC HOLDINGS, INC.                                          SARGENT TRUCKING, LLC                                           SORTINO TRANSPORTATION, LLC                                          STAGECOACH CARTAGE AND                                          DISTRIBUTION, LLC                                          USA JET AIRLINES, INC.                                          WANDO TRUCKING, LLC                                          WORLD TRANSPORT SERVICES, LLC                                                                                                                              By: _/s/ Terence R. Rogers___________________                                          Name:   Terence R. Rogers                                          Title: Executive Vice President                                                                                                                  [Signature Page to Amendment]  





 






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





 






          ELLIOTT ASSOCIATES, L.P., as a Lender                    Elliott Associates, L.P.                   By: Elliott Capital Advisors, L.P., as general partner                   By: Braxton Associates, Inc., as general partner             By: /s/ Elliot Greenberg                         Name: Elliot Greenberg            Title: Vice President                        ELLIOTT INTERNATIONAL, L.P., as a Lender                    Elliott International, L.P.                   By: Hambledon, Inc., its General Partner                   By: Elliott International Capital Advisors Inc., as attorney-in-fact             By: /s/ Elliot Greenberg                         Name: Elliot Greenberg            Title: Vice President                                [Signature Page to Amendment]