Exhibit 10.54
SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of March 29, 2002March [__], 2002, between
U.S. XPRESS ENTERPRISES, INC., a Nevada corporation, U.S. XPRESS, INC., a Nevada
corporation, CSI/CROWN, INC., a Georgia corporation, and U.S. XPRESS LEASING,
INC., a Tennessee corporation (each of the foregoing, a "Borrower" and
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collectively, the "Borrowers"), XPRESS AIR, INC., a Tennessee corporation,
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XPRESS COMPANY STORE, INC., a Tennessee corporation, XPRESS HOLDINGS, INC., a
Nevada corporation, CSI ACQUISITION CORPORATION, a Georgia corporation, and
DEDICATED XPRESS SERVICES, INC., a Nevada corporation (each of the foregoing, a
"Guarantor" and collectively, the "Guarantors") (each of the Borrowers and the
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Guarantors being sometimes referred to herein as a "Company" and collectively,
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as the "Companies"), and FLEET CAPITAL CORPORATION, a Rhode Island corporation,
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as administrative agent (hereinafter, in such capacity, the "Administrative
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Agent") for itself and other lending institutions (hereinafter, collectively,
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the "Lenders") which are or may become parties to a Revolving Credit Agreement
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dated as of March 29, 2002March [__], 2002 (as amended and in effect from time
to time, the "Credit Agreement"), among the Borrowers, the Lenders and the
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Administrative Agent.
WHEREAS, it is a condition precedent to the Lenders' making any loans or
otherwise extending credit to the Borrowers under the Credit Agreement that each
Company execute and deliver to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, a security agreement in substantially the
form hereof; and
WHEREAS, each Company wishes to grant a security interest in favor of the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
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All capitalized terms used herein without definitions shall have the
respective meanings provided therefor in the Credit Agreement. The term "State",
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as used herein, means the Commonwealth of Massachusetts. All terms defined in
the Uniform Commercial Code of the State and used herein shall have the same
definitions herein as specified therein. However, if a
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term is defined in Article 9 of the Uniform Commercial Code of the State
differently than in another Article of the Uniform Commercial Code of the State,
the term has the meaning specified in Article 9.
2. Grant of Security Interest.
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Each Company hereby grants to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, to secure the payment and performance
in full of all of the Obligations, a security interest in and so pledges and
assigns to the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, the following properties, assets and rights of such
Company, wherever located, whether now owned or hereafter acquired or arising,
and all proceeds and products thereof (all of the same being hereinafter called
the "Collateral"): all personal and fixture property of every kind and nature
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including without limitation all goods (including inventory, equipment
(including trucks, tractors, trailers and related motor vehicle equipment) and
any accessions thereto), instruments (including promissory notes), documents,
accounts (including health-care-insurance receivables), chattel paper (whether
tangible or electronic), deposit accounts (including the Fleet Concentration
Account, the Interim Concentration Accounts, the Local Accounts and the
Operating Account), letter-of-credit rights (whether or not the letter of credit
is evidenced by a writing), commercial tort claims, securities and all other
investment property, supporting obligations, any other contract rights or rights
to the payment of money, insurance claims and proceeds, and all general
intangibles (including all payment intangibles); provided, however, that the
Collateral shall not include any Real Estate, any ownership interests in
Transplace, Inc., Xxxxxxx-Xxxxxxx Xpress, LLC or Xtra Benefit Plans, LLC or any
of the assets described on Schedule A hereto so long as the grant of a security
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interest in such assets described on Schedule A would be prohibited by
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contractual arrangements of such Company in existence on the Closing Date
(collectively, the "Excluded Assets"). The Administrative Agent acknowledges
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that the attachment of its security interest in any commercial tort claim as
original collateral is subject to each Company's compliance with ss.4.8.
3. Authorization to File Financing Statements.
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Each Company hereby irrevocably authorizes the Administrative Agent at any
time and from time to time to file in any filing office in any Uniform
Commercial Code jurisdiction any initial financing statements and amendments
thereto that (a) indicate the Collateral (i) as all assets of the Company other
than the Excluded Collateral or words of similar effect, regardless of whether
any particular asset comprised in the Collateral falls
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within the scope of Article 9 of the Uniform Commercial Code of the State or
such other jurisdiction, or (ii) as being of an equal or lesser scope or with
greater detail, and (b) contain any other information required by part 5 of
Article 9 of the Uniform Commercial Code of the State for the sufficiency or
filing office acceptance of any financing statement or amendment, including
whether such Company is an organization, the type of organization and any
organizational identification number issued to such Company. Each Company agrees
to furnish any such information to the Administrative Agent promptly upon
request. Each Company also ratifies its authorization for the Administrative
Agent to have filed in any Uniform Commercial Code jurisdiction any like initial
financing statements or amendments thereto if filed prior to the date hereof.
4. Other Actions.
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Further to insure the attachment, perfection and first priority of, and the
ability of the Administrative Agent to enforce, the Administrative Agent's
security interest in the Collateral, each Company agrees, in each case at such
Company's own expense, to take the following actions with respect to the
following Collateral and without limitation on such Company's other obligations
contained in this Agreement:
4.1. Motor Vehicle Equipment.
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(a) On the Closing Date. Each item of Collateral, the ownership
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of, or title to, which is evidenced by a motor vehicle or other certificate
of title statute (the "Titled Equipment"), the jurisdiction in which each
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such item of Titled Equipment is registered or titled, and the vehicle
identification number, or other appropriate serial number relating thereto,
is listed on the Schedule of Titled Equipment (the "Schedule of Titled
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Equipment") attached to the Perfection Certificate delivered by the
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Companies to the Administrative Agent. As soon as practical, but in no
event later than April 5, 2002, each Company shall either (i) deliver to
the Administrative Agent properly completed applications to note the lien
of the Administrative Agent on the certificates of title with respect to
each item of Titled Equipment owned by such Company which will evidence the
lien of the Administrative Agent in such Titled Equipment together with the
originals of each such certificate of title and provide for payment of all
filing fees with respect thereto or (ii) make appropriate electronic
application(s) to note the lien of the Administrative Agent on certificates
of title (which will evidence the lien of the Administrative Agent in such
Titled Equipment) with the appropriate state registries of motor vehicles
on behalf of the Administrative Agent and provide
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evidence satisfactory to the Administrative Agent that originals of such
certificates of title have been delivered to such registries of motor
vehicles and that such Company has paid all filing fees relating to such
applications.
(b) Covenants of the Companies. Each Company will, at all times, (i)
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maintain the registration and titling of each item of Titled Equipment in
the jurisdiction set forth with respect thereto on the applicable
Perfection Certificate and (ii) cause the lien of the Administrative Agent
on each item of Titled Equipment to be noted on the certificate of title
relating thereto. Upon the acquisition by any Company of any additional
Titled Equipment, such Company shall promptly, and in any event within
twenty (20) days after such acquisition, (i) cause the lien of the
Administrative Agent on such Titled Equipment to be noted on the
certificate of title relating thereto and (ii) deliver to the
Administrative Agent a copy of such certificate of title (which shall
evidence the lien of the Administrative Agent thereon). In addition, each
Company will cause all additional Titled Equipment to be listed on an
updated Schedule of Titled Equipment, which updated Schedule of Titled
Equipment shall be delivered to the Administrative Agent contemporaneously
with the delivery of unaudited consolidated balance sheets in accordance
with ss.8.4(b) of the Credit Agreement.
4.2. Promissory Notes and Tangible Chattel Paper.
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If any Company shall, now or at any time hereafter, hold or acquire
any promissory notes or tangible chattel paper, such Company shall, as soon
as is reasonably practical, endorse, assign and deliver the same to the
Administrative Agent, accompanied by such instruments of transfer or
assignment duly executed in blank as the Administrative Agent may from time
to time specify.
4.3. Deposit Accounts.
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For each deposit account that each Company, now or at any time
hereafter, opens or maintains, each such Company shall, at the
Administrative Agent's request and option, pursuant to an agreement in form
and substance satisfactory to the Administrative Agent, either (a) cause
the depositary bank to agree to comply at any time with instructions from
the Administrative Agent to such depositary bank directing the disposition
of funds from time to time credited to such deposit account, without
further consent of such Company, or (b) arrange for the Administrative
Agent to become the customer of the
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depositary bank with respect to the deposit account, with such Company
being permitted, only with the consent of the Administrative Agent, to
exercise rights to withdraw funds from such deposit account. The provisions
of this paragraph shall not apply to (i) any deposit account for which the
Administrative Agent is the depositary bank and is in automatic control,
and (ii) deposit accounts specially and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the
benefit of any Company's salaried employees.
4.4. Investment Property.
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If any Company shall, now or at any time hereafter, hold or acquire
any certificated securities, such Company shall, as soon as is reasonably
practical, endorse, assign and deliver the same to the Administrative
Agent, accompanied by such instruments of transfer or assignment duly
executed in blank as the Administrative Agent may from time to time
specify. If any securities now or hereafter acquired by any Company are
uncertificated and are issued to such Company or its nominee directly by
the issuer thereof, such Company shall immediately notify the
Administrative Agent thereof and, at the Administrative Agent's request and
option, pursuant to an agreement in form and substance satisfactory to the
Administrative Agent, either (a) cause the issuer to agree to comply
without further consent of such Company or such nominee, at any time with
instructions from the Administrative Agent as to such securities, or (b)
arrange for the Administrative Agent to become the registered owner of the
securities. If any securities, whether certificated or uncertificated, or
other investment property now or hereafter acquired by any Company are held
by such Company or its nominee through a securities intermediary or
commodity intermediary, such Company shall immediately notify the
Administrative Agent thereof and, at the Administrative Agent's request and
option, pursuant to an agreement in form and substance satisfactory to the
Administrative Agent, either (i) cause such securities intermediary or (as
the case may be) commodity intermediary to agree to comply, in each case
without further consent of such Company or such nominee, at any time with
entitlement orders or other instructions from the Administrative Agent to
such securities intermediary as to such securities or other investment
property, or (as the case may be) to apply any value distributed on account
of any commodity contract as directed by the Administrative Agent to such
commodity intermediary, or (ii) in the case of financial assets or other
investment property held through a securities intermediary, arrange for the
Administrative Agent to
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become the entitlement holder with respect to such investment property,
with such Company being permitted, only with the consent of the
Administrative Agent, to exercise rights to withdraw or otherwise deal with
such investment property. The provisions of this paragraph shall not apply
to any financial assets credited to a securities account for which the
Administrative Agent is the securities intermediary.
4.5. Collateral in the Possession of a Bailee.
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If any Collateral is, now or at any time hereafter, in the possession
of a bailee, the Companies shall promptly notify the Administrative Agent
thereof and, at the Administrative Agent's request and option, shall
promptly obtain an acknowledgement from the bailee, in form and substance
satisfactory to the Administrative Agent, that the bailee holds such
Collateral for the benefit of the Administrative Agent and such bailee's
agreement to comply, without further consent of the Companies, at any time
with instructions of the Administrative Agent as to such Collateral.
4.6. Electronic Chattel Paper and Transferable Records.
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If any Company, now or at any time hereafter, holds or acquires an
interest in any electronic chattel paper or any "transferable record," as
that term is defined in Section 201 of the federal Electronic Signatures in
Global and National Commerce Act, or in ss.16 of the Uniform Electronic
Transactions Act as in effect in any relevant jurisdiction, such Company
shall promptly notify the Administrative Agent thereof and, at the request
and option of the Administrative Agent, shall take such action as the
Administrative Agent may reasonably request to vest in the Administrative
Agent control, under ss.9-105 of the Uniform Commercial Code, of such
electronic chattel paper or control under Section 201 of the federal
Electronic Signatures in Global and National Commerce Act or, as the case
may be, ss.16 of the Uniform Electronic Transactions Act, as so in effect
in such jurisdiction, of such transferable record.
4.7. Letter-of-credit Rights.
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If any Company is, now or at any time hereafter, a beneficiary under a
letter of credit now or hereafter, such Company shall promptly notify the
Administrative Agent thereof and, at the request and option of the
Administrative Agent, such Company shall, pursuant to an agreement in form
and substance satisfactory to the Administrative Agent, either (a) arrange
for the issuer and any confirmer of such letter
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of credit to consent to an assignment to the Administrative Agent of
the proceeds of the letter of credit or (b) arrange for the
Administrative Agent to become the transferee beneficiary of the letter
of credit, with the Administrative Agent agreeing, in each case, that
the proceeds of the letter of credit are to be applied as provided in
the Credit Agreement.
4.8. Commercial Tort Claims.
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If any Company shall, now or at any time hereafter, hold or
acquire a commercial tort claim, such Company shall immediately notify
the Administrative Agent in a writing signed by such Company of the
particulars thereof and grant to the Administrative Agent, for the
benefit of the Lenders and the Administrative Agent, in such writing a
security interest therein and in the proceeds thereof, all upon the
terms of this Agreement, with such writing to be in form and substance
satisfactory to the Administrative Agent.
4.9. Accounts Receivable; Leases.
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With respect to all existing leases of each Company that are
Collateral hereunder or pursuant to which a Company, as lessor, leases
trucks, tractors, trailers or other motor vehicle equipment comprising
Collateral to third parties, such Company shall conspicuously stamp
such Company's original counterpart of each such lease and any other
counterpart thereof that comes into such Company's possession with a
legend, in form and substance satisfactory to the Administrative Agent,
clearly indicating that such lease and a portion or all of the Motor
Vehicle Equipment leased thereunder are subject to the security
interest granted pursuant hereto. With respect to all leases of each
Company entered into on or after the date hereof that will constitute
Collateral hereunder or pursuant to which a Company, as lessor, will
lease Motor Vehicle Equipment comprising Collateral to third parties,
such Company agrees that (i) each such lease shall be executed in three
original counterparts, one and only one of which shall be designated
the "Lessor's Original", (ii) only the Lessor's Original counterpart of
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each such lease shall be deemed to constitute chattel paper under the
UCC and (iii) each such lease shall contain a provision setting forth
the terms contained in clauses (i) and (ii) of this sentence. Each such
Company shall conspicuously stamp the Lessor's Original counterpart of
each such lease and any other counterpart thereof that comes into such
Company's possession with a legend, in form and substance satisfactory
to the Administrative Agent, clearly indicating that such
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lease and a portion or all of the Motor Vehicle Equipment leased
thereunder are subject to the security interest granted pursuant
hereto. Each Company shall provide to the Administrative Agent upon
request copies of any leases to which any portion of the Collateral is
subject.
4.10. Other Actions as to any and all Collateral.
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Each Company further agrees, upon the request of the
Administrative Agent and at the Administrative Agent's option, to take
any and all other actions as the Administrative Agent may determine to
be necessary or useful for the attachment, perfection and first
priority of, and the ability of the Administrative Agent to enforce,
the Administrative Agent's security interest in any and all of the
Collateral, including, without limitation, (a) executing, delivering
and, where appropriate, filing financing statements and amendments
relating thereto under the Uniform Commercial Code, to the extent, if
any, that such Company's signature thereon is required therefor, (b)
causing the Administrative Agent's name to be noted as secured party on
any certificate of title for a titled good if such notation is a
condition to attachment, perfection or priority of, or ability of the
Administrative Agent to enforce, the Administrative Agent's security
interest in such Collateral, (c) complying with any provision of any
statute, regulation or treaty of the United States as to any Collateral
if compliance with such provision is a condition to attachment,
perfection or priority of, or ability of the Administrative Agent to
enforce, the Administrative Agent's security interest in such
Collateral, (d) obtaining governmental and other third party waivers,
consents and approvals, in form and substance satisfactory to the
Administrative Agent, including, without limitation, any consent of any
licensor, lessor or other person obligated on Collateral and (e) taking
all actions under any earlier versions of the Uniform Commercial Code
or under any other law, as reasonably determined by the Administrative
Agent to be applicable in any relevant Uniform Commercial Code or other
jurisdiction, including any foreign jurisdiction.
5. Relation to Other Security Documents.
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The provisions of this Agreement shall be read and construed with the
other Security Documents referred to below in the manner so indicated.
5.1. Stock Pledge Agreement.
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Concurrently herewith each of the Borrowers is executing and
delivering to the Administrative Agent, for the benefit of the Lenders
and the Administrative Agent, a stock pledge agreement pursuant to
which each Borrower is pledging to the Administrative Agent all of the
shares of the capital stock of such Borrower's subsidiary or
subsidiaries. Such pledges shall be governed by the terms of such stock
pledge agreement and not by the terms of this Agreement.
5.2. Trademark Assignments.
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Concurrently herewith certain of the Companies are executing
and delivering to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, the Trademark Assignments
pursuant to which such Companies are assigning to the Administrative
Agent, for the benefit of the Lenders and the Administrative Agent,
certain Collateral consisting of trademarks, service marks and
trademark and service xxxx rights, together with the goodwill
appurtenant thereto. The provisions of the Trademark Assignments are
supplemental to the provisions of this Agreement, and nothing contained
in the Trademark Assignments shall derogate from any of the rights or
remedies of the Administrative Agent or any of the Lenders hereunder.
Neither the delivery of, nor anything contained in, the Trademark
Assignments shall be deemed to prevent or postpone the time of
attachment or perfection of any security interest in such Collateral
created hereby.
6. Representations and Warranties Concerning each Company's Legal
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Status.
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The Companies have previously delivered to the Administrative Agent a
certificate signed by the Company and entitled "Perfection Certificate" (the
"Perfection Certificate"). Each Company represents and warrants to the Lenders
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and the Administrative Agent as follows: (a) each Company's exact legal name is
that indicated on the Perfection Certificate and on the signature page hereof,
(b) each Company is an organization of the type, and is organized in the
jurisdiction, set forth in the Perfection Certificate, (c) the Perfection
Certificate accurately sets forth each Company's organizational identification
number or accurately states that such Company has none, (d) the Perfection
Certificate accurately sets forth each Company's place of business or, if more
than one, its chief executive office, as well as such Company's mailing address,
if different, (e) all other information set forth on the Perfection Certificate
pertaining to the Companies is accurate and complete and (f) there has been no
change in any of such information since the date on which the Perfection
Certificate was signed by the Companies.
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7. Covenants Concerning each Company's Legal Status.
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Each Company covenants with the Lenders and the Administrative Agent as
follows: (a) without providing at least thirty (30) days prior written notice to
the Administrative Agent, such Company will not change its name, its place of
business or, if more than one, chief executive office, or its mailing address or
organizational identification number if it has one, (b) if such Company does not
have an organizational identification number and later obtains one, such Company
will forthwith notify the Administrative Agent of such organizational
identification number, and (c) such Company will not change its type of
organization, jurisdiction of organization or other legal structure.
8. Representations and Warranties Concerning Collateral, Etc.
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Each Company further represents and warrants to the Lenders and the
Administrative Agent as follows: (a) such Company is the owner of the
Collateral, free from any right or claim of any person or any adverse lien,
except for the security interest created by this Agreement and the Permitted
Liens set forth in (S)9.2 of the Credit Agreement, (b) none of the Collateral
constitutes, or is the proceeds of, "farm products" as defined in
(S)9-102(a)(34) of the Uniform Commercial Code of the State, (c) none of the
account debtors or other persons obligated on any of the Collateral is a
governmental authority covered by the Federal Assignment of Claims Act or like
federal, state or local statute or rule in respect of such Collateral, (d) such
Company holds no commercial tort claim except as indicated on the Perfection
Certificate, (e) such Company has at all times operated its business in
compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances, (f) all other information set forth on the
Perfection Certificate pertaining to the Collateral is accurate and complete,
and (g) there has been no change in any of such information since the date on
which the Perfection Certificate was signed by the Companies.
9. Covenants Concerning Collateral, Etc.
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Each Company further covenants with the Lenders and the Administrative
Agent as follows: (a) the Collateral, to the extent not delivered to the
Administrative Agent pursuant to (S)4, will be kept at those locations listed
on the Perfection Certificate and such Company will not remove the Collateral
from such locations, without providing at least 30 days prior written notice to
the Administrative Agent, (b) except for the security
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interest herein granted and the Permitted Liens set forth in (S)9.2 of the
Credit Agreement, the Companies shall be the owners of the Collateral free from
any right or claim of any other person or any lien, and such Company shall
defend the same against all claims and demands of all Persons at any time
claiming the same or any interests therein adverse to the Administrative Agent
or any of the Lenders, (c) such Company shall not pledge, mortgage or create, or
suffer to exist any right of any person in or claim by any person to the
Collateral, or any lien in the Collateral in favor of any Person, other than the
Administrative Agent, (d) such Company will keep the Collateral in good order
and repair and will not use the same in violation of law or any policy of
insurance thereon, (e) such Company will permit the Administrative Agent, or its
designee, to inspect the Collateral at any reasonable time, wherever located,
(f) such Company will pay promptly when due all taxes, assessments, governmental
charges and levies upon the Collateral or incurred in connection with the use or
operation of the Collateral or incurred in connection with this Agreement, (g)
such Company will continue to operate, its business in compliance with all
applicable provisions of the federal Fair Labor Standards Act, as amended, and
with all applicable provisions of federal, state and local statutes and
ordinances dealing with the control, shipment, storage or disposal of hazardous
materials or substances, and (h) such Company will not sell or otherwise
dispose, or offer to sell or otherwise dispose, of the Collateral or any
interest therein except for sales and leases of inventory and equipment in the
ordinary course of business.
10. Insurance.
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10.1. Maintenance of Insurance.
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Each Company will maintain with financially sound and
reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in
accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that such Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall
be in such amounts, contain such terms, be in such forms and be for
such periods as may be reasonably satisfactory to the Administrative
Agent. In addition, all such insurance shall be payable to the
Administrative Agent as loss payee under a "standard" or "New York"
loss payee clause for the benefit of the Lenders and the Administrative
Agent. Without limiting the foregoing, each Company will (a) keep all
of its physical property insured with casualty or physical hazard
insurance on an "all risks" basis, with broad form flood
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and earthquake coverages and electronic data processing coverage, with
a full replacement cost endorsement and an "agreed amount" clause in an
amount equal to 100% of the full replacement cost of such property, (b)
maintain all such workers' compensation or similar insurance as may be
required by law and (c) maintain, in amounts and
with deductibles equal to those generally maintained by businesses
engaged in similar activities in similar geographic areas, general
public liability insurance against claims of bodily injury, death or
property damage occurring, on, in or about the properties of such
Company; business interruption insurance; and product liability
insurance.
10.2. Insurance Proceeds.
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The proceeds of any casualty insurance in respect of any
casualty loss of any of the Collateral shall, subject to the rights, if
any, of other parties with an interest having priority in the property
covered thereby, (a) so long as no Default or Event of Default has
occurred and is continuing and to the extent that the amount of such
proceeds is less than $2,500,000, be disbursed to any Company for
direct application by such Company solely to the repair or replacement
of such Company's property so damaged or destroyed and (b) in all other
circumstances, be held by the Administrative Agent as cash collateral
for the Obligations. The Administrative Agent may, at its sole option,
disburse from time to time all or any part of such proceeds so held as
cash collateral, upon such terms and conditions as the Administrative
Agent may reasonably prescribe, for direct application by any Company
solely to the repair or replacement of such Company's property so
damaged or destroyed, or the Administrative Agent may apply all or any
part of such proceeds to the Obligations with the Commitment (if not
then terminated) being reduced by the amount so applied to the
Obligations.
10.3. Continuation of Insurance.
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All policies of insurance shall provide for at least thirty
(30) days prior written cancellation notice to the Administrative
Agent. In the event of failure by any Company to provide and maintain
insurance as herein provided, the Administrative Agent may, at its
option, provide such insurance and charge the amount thereof to the
Companies. Each Company shall furnish the Administrative Agent with
certificates of insurance and policies evidencing compliance with the
foregoing insurance provision.
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11. Collateral Protection Expenses; Preservation of Collateral.
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11.1. Expenses Incurred by Administrative Agent.
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In the Administrative Agent's discretion, if any Company fails
to do so, the Administrative Agent may discharge taxes and other
encumbrances at any time levied or placed on any of the Collateral,
maintain any of the Collateral, make repairs thereto and pay any
necessary filing fees or insurance premiums. Each Company agrees to
reimburse the Administrative Agent on demand for all expenditures so
made. The Administrative Agent shall have no obligation to any Company
to make any such expenditures, nor shall the making thereof be
construed as a waiver or cure of any Default or Event of Default.
11.2. Administrative Agent's Obligations and Duties.
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Anything herein to the contrary notwithstanding, each Company
shall remain obligated and liable under each contract or agreement
comprised in the Collateral to be observed or performed by such Company
thereunder. Neither the Administrative Agent nor any Lender shall have
any obligation or liability under any such contract or agreement by
reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any Lender of any payment relating to any of
the Collateral, nor shall the Administrative Agent or any Lender be
obligated in any manner to perform any of the obligations of any
Company under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Administrative Agent or any Lender in respect of the Collateral or as
to the sufficiency of any performance by any party under any such
contract or agreement, to present or file any claim, to take any action
to enforce any performance or to collect the payment of any amounts
which may have been assigned to the Administrative Agent or to which
the Administrative Agent or any Lender may be entitled at any time or
times. The Administrative Agent's sole duty with respect to the
custody, safe keeping and physical preservation of the Collateral in
its possession, under ss.9-207 of the Uniform Commercial Code of the
State or otherwise, shall be to deal with such Collateral in the same
manner as the Administrative Agent deals with similar property for its
own account.
12. Securities and Deposits.
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During the continuance of an Event of Default and during any time when
any amount is due and payable under the Credit Agreement, the Administrative
Agent may (i) transfer to itself or any nominee any securities constituting
Collateral, receive any income thereon and hold such income as additional
Collateral or apply it to the Obligations and (ii) demand, xxx for, collect, or
make any settlement or compromise which it deems desirable with respect to the
Collateral. Regardless of the adequacy of Collateral or any other security for
the Obligations, any deposits or other sums at any time credited by or due from
the Administrative Agent or any Lender to any Company may at any time be applied
to or set off against any of the Obligations.
13. Notification to Account Debtors and Other Persons Obligated on
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Collateral.
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Each Company shall, at the request of the Administrative Agent, which
request shall be made only after the occurrence of an Event of Default, notify
account debtors and other persons obligated on any of the Collateral of the
security interest of the Administrative Agent in any account, chattel paper,
general intangible, instrument or other Collateral and that payment thereof is
to be made directly to the Administrative Agent or to any financial institution
designated by the Administrative Agent as the Administrative Agent's agent
therefor, and the Administrative Agent may itself, upon the occurrence of an
Event of Default, without notice to or demand upon such Company, so notify
account debtors and other persons obligated on Collateral. After the making of
such a request or the giving of any such notification, such Company shall hold
any proceeds of collection of accounts, chattel paper, general intangibles,
instruments and other Collateral received by such Company as trustee for the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, without commingling the same with other funds of such Company and shall
turn the same over to the Administrative Agent in the identical form received,
together with any necessary endorsements or assignments. The Administrative
Agent shall apply the proceeds of collection of accounts, chattel paper, general
intangibles, instruments and other Collateral received by the Administrative
Agent to the Obligations, such proceeds to be immediately credited after final
payment in cash or other immediately available funds of the items giving rise to
them.
14. Power of Attorney.
-----------------
14.1. Appointment and Powers of Administrative Agent.
----------------------------------------------
-15-
Each Company hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power
of substitution, as its true and lawful attorneys-in-fact with full
irrevocable power and authority in the place and stead of such Company
or in the Administrative Agent's own name, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be
necessary or useful to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives said
attorneys the power and right, on behalf of such Company, without
notice to or assent by such Company, to do the following:
(a) upon the occurrence and during the continuance of
an Event of Default, generally to sell, transfer, pledge, make
any agreement with respect to or otherwise dispose of or deal
with any of the Collateral in such manner as is consistent
with the Uniform Commercial Code of the State and as fully and
completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and to do, at such
Company's expense, at any time, or from time to time, all acts
and things which the Administrative Agent deems necessary or
useful to protect, preserve or realize upon the Collateral and
the Administrative Agent's security interest therein, in order
to effect the intent of this Agreement, all no less fully and
effectively as such Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal, state or
local agencies or authorities with respect to trademarks,
copyrights and patentable inventions and processes, (ii) upon
written notice to such Company, the exercise of voting rights
with respect to voting securities, which rights may be
exercised, if the Administrative Agent so elects, with a view
to causing the liquidation of assets of the issuer of any such
securities and (iii) the execution, delivery and recording, in
connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other
instruments of conveyance or transfer with respect to such
Collateral; and
(b) to the extent that such Company's authorization
given in (S)3 is not sufficient, to file such financing
statements with respect hereto, with or without such Company's
signature, or a photocopy of this Agreement in substitution
for a financing statement, as the Administrative Agent may
deem appropriate
-16-
and to execute in such Company's name such financing
statements and amendments thereto and continuation statements
which may require such Company's signature.
14.2. Ratification by the Companies.
-----------------------------
To the extent permitted by law, each Company hereby ratifies
all that said attorneys shall lawfully do or cause to be done by virtue
hereof. This power of attorney is a power coupled with an interest and
is irrevocable.
14.3. No Duty on Administrative Agent.
-------------------------------
The powers conferred on the Administrative Agent hereunder are
solely to protect the interests of the Administrative Agent and the
Lenders in the Collateral and shall not impose any duty upon the
Administrative Agent to exercise any such powers. The Administrative
Agent shall be accountable only for the amounts that it actually
receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be
responsible to any Company for any act or failure to act, except for
the Administrative Agent's own gross negligence or willful misconduct.
15. Rights and Remedies.
-------------------
If an Event of Default shall have occurred and be continuing, the
Administrative Agent, without any other notice to or demand upon the Companies,
shall have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a secured
party under the Uniform Commercial Code of the State and any additional rights
and remedies as may be provided to a secured party in any jurisdiction in which
Collateral is located, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Administrative Agent may,
so far as any Company can give authority therefor, enter upon any premises on
which the Collateral may be situated and remove the same therefrom. The
Administrative Agent may in its discretion require each Company to assemble all
or any part of the Collateral at such location or locations within the
jurisdiction(s) of such Company's principal office(s) or at such other locations
as the Administrative Agent may reasonably designate. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Administrative Agent shall give to the
Companies at least five (5) Business Days prior written notice of the time and
place of any public sale of Collateral or of the time after which any private
sale or any other intended
-17-
disposition is to be made. Each Company hereby acknowledges that five (5)
Business Days prior written notice of such sale or sales shall be reasonable
notice. In addition, to the extent permitted by law, each Company waives any and
all rights that it may have to a judicial hearing in advance of the enforcement
of any of the Administrative Agent's rights and remedies hereunder, including,
without limitation, its right following an Event of Default to take immediate
possession of the Collateral and to exercise its rights and remedies with
respect thereto.
16. Standards for Exercising Rights and Remedies.
--------------------------------------------
To the extent that applicable law imposes duties on the Administrative
Agent to exercise remedies in a commercially reasonable manner, each Company
acknowledges and agrees that it is not commercially unreasonable for the
Administrative Agent (a) to fail to incur expenses reasonably deemed significant
by the Administrative Agent to prepare Collateral for disposition or otherwise
to fail to complete raw material or work in process into finished goods or other
finished products for disposition, (b) to fail to obtain third party consents
for access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the
collection or disposition of Collateral to be collected or disposed of, (c) to
fail to exercise collection remedies against account debtors or other persons
obligated on Collateral or to fail to remove Liens on or any adverse claims
against Collateral, (d) to exercise collection remedies against account debtors
and other persons obligated on Collateral directly or through the use of
collection agencies and other collection specialists, (e) to advertise
dispositions of Collateral through publications or media of general circulation,
whether or not the Collateral is of a specialized nature, (f) to contact other
persons, whether or not in the same business as such Company, for expressions of
interest in acquiring all or any portion of the Collateral, (g) to hire one or
more professional auctioneers to assist in the disposition of Collateral,
whether or not the Collateral is of a specialized nature, (h) to dispose of
Collateral by utilizing Internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capability of
doing so, or that match buyers and sellers of assets, (i) to dispose of assets
in wholesale rather than retail markets, (j) to disclaim disposition warranties,
(k) to purchase insurance or credit enhancements to insure the Administrative
Agent against risks of loss, collection or disposition of Collateral or to
provide to the Administrative Agent a guaranteed return from the collection or
disposition of Collateral, or (l) to the extent deemed appropriate by the
Administrative Agent, to obtain the services of brokers, investment bankers,
consultants and other professionals to assist the Administrative Agent in the
collection or disposition of any of the Collateral. Each Company acknowledges
that the purpose of this (S)16 is to provide
-18-
non-exhaustive indications of what actions or omissions by the Administrative
Agent would fulfill the Administrative Agent's duties under the Uniform
Commercial Code of the State or any other relevant jurisdiction in the
Administrative Agent's exercise of remedies against the Collateral and that
other actions or omissions by the Administrative Agent shall not be deemed to
fail to fulfill such duties solely on account of not being indicated in this
(S)16. Without limitation upon the foregoing, nothing contained in this ss.16
shall be construed to grant any rights to any Company or to impose any duties on
the Administrative Agent that would not have been granted or imposed by this
Agreement or by applicable law in the absence of this ss.16.
17. No Waiver by Administrative Agent, Etc.
--------------------------------------
The Administrative Agent shall not be deemed to have waived any of its
rights and remedies in respect of the Obligations or the Collateral unless such
waiver shall be in writing and signed by the Administrative Agent with the
consent of the Required Lenders. No delay or omission on the part of the
Administrative Agent in exercising any right or remedy shall operate as a waiver
of such right or remedy or any other right or remedy. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right or remedy on
any future occasion. All rights and remedies of the Administrative Agent with
respect to the Obligations or the Collateral, whether evidenced hereby or by any
other instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the
Administrative Agent deems expedient.
18. Suretyship Waivers by the Companies.
-----------------------------------
Each Company waives demand, notice, protest, notice of acceptance of
this Agreement, notice of loans made, credit extended, Collateral received or
delivered or other action taken in reliance hereon and all other demands and
notices of any description. With respect to both the Obligations and the
Collateral, each Company assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of or
failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Administrative Agent may deem advisable. The Administrative Agent shall have no
duty as to the collection or protection of the Collateral or any income
therefrom, the preservation of rights against prior parties, or the preservation
of any rights pertaining thereto beyond the safe custody thereof as set forth in
(S)11.2. Each Company further waives any and all other suretyship defenses.
-19-
19. Marshalling.
-----------
Neither the Administrative Agent nor any Lender shall be required to
marshal any present or future collateral security (including but not limited to
the Collateral) for, or other assurances of payment of, the Obligations or any
of them or to resort to such collateral security or other assurances of payment
in any particular order, and all of the rights and remedies of the
Administrative Agent or any Lender hereunder and of the Administrative Agent or
any Lender in respect of such collateral security and other assurances of
payment shall be cumulative and in addition to all other rights and remedies,
however existing or arising. To the extent that it lawfully may, each Company
hereby agrees that it will not invoke any law relating to the marshalling of
collateral which might cause delay in or impede the enforcement of the
Administrative Agent's rights and remedies under this Agreement or under any
other instrument creating or evidencing any of the Obligations or under which
any of the Obligations is outstanding or by which any of the Obligations is
secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, each Company hereby irrevocably waives the benefits of all such
laws.
20. Proceeds of Dispositions; Expenses.
----------------------------------
Each Company shall pay to the Administrative Agent on demand any and
all expenses, including reasonable attorneys' fees and disbursements, incurred
or paid by the Administrative Agent in protecting, preserving or enforcing the
Administrative Agent's rights and remedies under or in respect of any of the
Obligations or any of the Collateral. After deducting all of said expenses, the
residue of any proceeds of collection or sale or other disposition of Collateral
shall, to the extent actually received in cash, be applied to the payment of the
Obligations in such order or preference as is provided in the Credit Agreement,
proper allowance and provision being made for any Obligations not then due. Upon
the final payment and satisfaction in full of all of the Obligations and after
making any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the
Uniform Commercial Code of the State, any excess shall be returned to the
Companies. In the absence of final payment and satisfaction in full of all of
the Obligations, each Company shall remain liable for any deficiency.
21. Overdue Amounts.
---------------
Until paid, all amounts due and payable by the Companies hereunder
shall be a debt secured by the Collateral and shall bear, whether before or
after judgment, interest at the rate of interest set forth in (S)5.11 of the
Credit Agreement.
-20-
22. Governing Law; Consent to Jurisdiction.
--------------------------------------
THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE.
Each Company agrees that any action or claim arising out of any dispute in
connection with this Agreement, any rights or obligations hereunder or the
performance or enforcement of such rights or obligations may be brought in the
courts of the State or any federal court sitting therein and consents to the
non-exclusive jurisdiction of such court and to service of process in any such
suit being made upon such Company by mail at the address specified in ss.16.6 of
the Credit Agreement. Each Company hereby waives any objection that it may now
or hereafter have to the venue of any such suit or any such court or that such
suit is brought in an inconvenient court.
23. Waiver of Jury Trial.
--------------------
EACH COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OR ENFORCEMENT OF ANY
SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, each Company waives any
right which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. Each Company (a)
certifies that neither the Administrative Agent or any Lender nor any
representative, agent or attorney of the Administrative Agent or any Lender has
represented, expressly or otherwise, that the Administrative Agent or any Lender
would not, in the event of litigation, seek to enforce the foregoing waivers or
other waivers contained in this Agreement and (b) acknowledges that, in entering
into the Credit Agreement and the other Loan Documents to which the
Administrative Agent or any Lender is a party, the Administrative Agent and the
Lenders are relying upon, among other things, the waivers and certifications
contained in this (S)23.
24. Miscellaneous.
-------------
The headings of each section of this Agreement are for convenience only
and shall not define or limit the provisions thereof. This Agreement and all
rights and obligations hereunder shall be binding upon each Company and its
successors and assigns, and shall inure to the benefit of the Administrative
Agent, the Lenders and their respective successors and assigns. If any term of
this Agreement shall be held to be invalid, illegal or
-21-
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
Company acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, each Company has
caused this Agreement to be duly executed as of the date first above written.
U.S. XPRESS ENTERPRISES, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President of
Finance, Chief Financial Officer
and Assistant Secretary
U.S. XPRESS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
CSI/CROWN, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
U.S. XPRESS LEASING, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
XPRESS AIR, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
XPRESS COMPANY STORE, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
XPRESS HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Secretary and Treasurer
CSI ACQUISITION CORPORATION
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
DEDICATED XPRESS SERVICES, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Secretary
Accepted:
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Senior Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Executive Vice President of Finance, Chief Financial Officer and
Assistant Secretary of U.S. Xpress Enterprises, Inc., and that said instrument
was signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said Assistant Secretary acknowledged said instrument to be the
free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of U.S. Xpress, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said Assistant Secretary acknowledged said instrument to be the
free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of CSI/Crown, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said Assistant Secretary acknowledged said instrument to be the
free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
------------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of U.S. Xpress Leasing, Inc., and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said Assistant Secretary acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
------------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29rh day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of Xpress Air, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said Assistant Secretary acknowledged said instrument to be the
free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of Xpress Company Store, Inc., and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said Assistant Secretary acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------------------------
Notary Public
My commission expires: Oct. 26, 0000
XXXXXXXXXXXX XX XXXXX XX XXXXXX )
) ss.
COUNTY OF XXXXX )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29 day of March, 2002, personally appeared Xxxxxxxxxxx
Xxxxxxx to me known personally, and who, being by me duly sworn, deposes and
says that he is the Secretary and Treasurer of Xpress Holdings, Inc., and that
said instrument was signed and sealed on behalf of said corporation by authority
of its Board of Directors, and said Secretary acknowledged said instrument to be
the free act and deed of said corporation.
/s/ Xxxx Xxxx
-------------------------------
Notary Public
My commission expires: 1/21/2005
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ___ day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of CSI Acquisition Corporation, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said Assistant Secretary acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------------------
Notary Public
My commission expires: Oct. 26, 2002
COMMONWEALTH OR STATE OF MASS. )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of March, 2002, personally appeared Xxx X. Xxxxxx to
me known personally, and who, being by me duly sworn, deposes and says that he
is the Assistant Secretary of Dedicated Xpress Services, Inc., and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said Assistant Secretary acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Notary Public
My commission expires: Oct. 26, 2002
Schedule A
----------
Excluded Assets
