EXHIBIT 10.41
THIRD AMENDMENT TO INVESTMENT AND PARTICIPATION AGREEMENT
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THIS THIRD AMENDMENT TO INVESTMENT AND PARTICIPATION AGREEMENT (this "Third
Amendment") is dated as of June 13, 2000, among U.S. XPRESS ENTERPRISES, INC., a
Nevada corporation (the "Company") and WACHOVIA CAPITAL INVESTMENTS, INC.
(formerly known as Wachovia Capital Markets, Inc.), as Lessor (the "Lessor");
W I T N E S S E T H:
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WHEREAS, the Company and the Lessor executed and delivered that certain
Investment and Participation Agreement, dated as of March 20, 1998, as amended
by First Amendment to Investment and Participation Agreement dated as of
November 12, 1999 and Second Amendment to Investment and Participation Agreement
dated as of March 30, 2000 (as so amended, the "Investment Agreement");
WHEREAS, the Company has requested and the Lessor has agreed to an
amendment to the Investment Agreement to change the Scheduled Lease Termination
Date, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged by the parties hereto, the Company and the Lessor hereby covenant
and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
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used herein which is defined in Schedule 1.02 to the Investment Agreement shall
have the meaning assigned to such term in Schedule 1.02 to the Investment
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Investment Agreement shall from and
after the date hereof refer to the Investment Agreement as amended hereby.
2. Amendment to Schedule 1.02. Schedule 1.02 to the Investment Agreement
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hereby is amended by deleting the definition of "Scheduled Lease Termination
Date" and substituting the following therefor:
Scheduled Lease Termination Date": the later of: (i) May 26, 2005;
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or (ii) such later date to which it may be extended subject and pursuant to
the provisions of Section 2(b) of the Lease.
3. Restatement of Representations and Warranties. The Company hereby
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restates and renews each and every representation and warranty heretofore made
by it in the Investment
Agreement and the other Loan Documents as fully as if made on the date hereof
and with specific reference to this Third Amendment and all other loan documents
executed and/or delivered in connection herewith.
4. Effect of Amendment. Except as set forth expressly hereinabove, all
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terms of the Investment Agreement and the other Loan Documents shall be and
remain in full force and effect, and shall constitute the legal, valid, binding
and enforceable obligations of the Company. The amendments contained herein
shall be deemed to have prospective application only, unless otherwise
specifically stated herein.
5. Ratification. The Company hereby restates, ratifies and reaffirms each
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and every term, covenant and condition set forth in the Investment Agreement and
the other Operative Documents effective as of the date hereof.
6. Counterparts. This Third Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
7. Section References. Section titles and references used in this Third
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Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
8. No Default. To induce the Lessor to enter into this Third Amendment
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and to continue to make advances pursuant to the Investment Agreement, the
Company hereby acknowledges and agrees that, as of the date hereof, and after
giving effect to the terms hereof, there exists (i) no Default or Event of
Default and (ii) no right of offset, defense, counterclaim, claim or objection
in favor of the Company arising out of or with respect to any of the Rent or
other obligations of the Company owed to the Lessor under the Investment
Agreement, the Lease or the other Operative Documents.
9. Further Assurances. The Company agrees to take such further actions as
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the Lessor shall reasonably request in connection herewith to evidence the
amendments herein contained to the Company.
10. Governing Law. This Third Amendment shall be governed by and construed
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and interpreted in accordance with, the laws of the State of New York.
11. Conditions Precedent. This Third Amendment shall become effective only
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upon execution and delivery (i) of this Third Amendment by each of the parties
hereto, and (ii) of the Consent and Reaffirmation of Guarantors and Third
Amendment to Guaranty at the end hereof by each of the Guarantors and the
Lessor.
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IN WITNESS WHEREOF, the Company and the Lessor have caused this Third
Amendment to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
U.S. XPRESS ENTERPRISES, INC., (SEAL)
as Company
By: /s/
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Title:
WACHOVIA CAPITAL INVESTMENTS, INC. (SEAL)
(formerly known as Wachovia Capital
Markets, Inc.)
By: /s/
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Title:
3
CONSENT AND REAFFIRMATION OF GUARANTORS
AND THIRD AMENDMENT TO SUBSIDIARY GUARANTY
Each of the undersigned Subsidiary Guarantors (i) acknowledges receipt of
the foregoing Third Amendment to Investment Agreement (the "Third Amendment"),
(ii) consents to the execution and delivery of the Third Amendment by the
parties thereto and (iii) reaffirms all of its obligations and covenants under
the Subsidiary Guaranty dated as of March 20, 1998 executed by it, and agrees
that none of such obligations and covenants shall be affected by the execution
and delivery of the Third Amendment.
This Consent and Reaffirmation and Third Amendment to Subsidiary
Guaranty may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument.
U.S. XPRESS, INC.
CSI/CROWN, INC.
JTI, INC.
XPRESS AIR, INC.
U.S. XPRESS LEASING, INC.
By: /s/
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Title:
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