EXHIBIT 10.17
Xxxxx 00, 0000
Xxxxxxxx Motor Xpress, Inc.
0000 Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxx 00000
And
East West Motor Express, Inc.
0000 XX Xxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
RE: TENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
Gentlemen:
SMITHWAY MOTOR XPRESS, INC., an Iowa corporation ("SMITHWAY INC.") and
EAST WEST MOTOR EXPRESS, INC., a South Dakota corporation ("EAST WEST")
(Smithway Inc. and East West each a "BORROWER" and collectively the "BORROWERS")
and LASALLE BANK NATIONAL ASSOCIATION, a national banking association ("LENDER")
have entered into that certain Amended and Restated Loan and Security Agreement
dated December 28, 2001 (the "SECURITY AGREEMENT"). From time to time
thereafter, Borrowers and Lender may have executed various amendments (each an
"AMENDMENT" and collectively the "AMENDMENTS") to the Security Agreement (the
Security Agreement and the Amendments hereinafter are referred to, collectively,
as the "AGREEMENT"). Borrowers and Lender now desire to further amend the
Agreement as provided herein, subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Smithway Motor Xpress, Inc.
March 26,2004
Page 2
1. The Agreement hereby is amended as follows:
(A) Subparagraph 4(b)(iv) of the Agreement is deleted in its
entirety and the following is substituted in its place:
(IV) AMENDMENT FEE: Borrowers shall pay to Lender an
amendment fee of Five Hundred and No/100 Dollars
($500.00), which fee shall be fully earned and
payable upon execution of this Amendment.
(B) Subparagraphs 15(m) and 15(n) of the Agreement are deleted in their
entirety and the following are substituted in their place:
(M) CHANGE OF CONTROL.
The failure of Smithway Corp. to own and have voting
control of at least one hundred percent (100%) of the
issued and outstanding capital stock of each Borrower
and the failure of Xxxxxx X. Xxxxx to own and have
voting control of at least twenty (20) percent of the
issued and outstanding voting Class A and Class B
common shares of Smithway Corp.
(N) CHANGE OF MANAGEMENT.
If Xxxxx Xxxxx shall cease to be the President and
CEO of Smithway Corp. and President of each Borrower
at any time.
2. This Amendment shall become binding when fully executed by all
parties hereto, and shall be effective March 26, 2004.
3. Except as expressly amended hereby and by any other
supplemental documents or instruments executed by either party hereto in order
to effectuate the transactions contemplated hereby, the Agreement hereby is
ratified and confirmed by the parties hereto and remain in full force and effect
in accordance with the terms thereof.
Smithway Motor Xpress, Inc.
March 26,2004
Page 3
LASALLE BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxx
Title Senior Vice President
ACKNOWLEDGED AND AGREED TO this 26th day of March, 2004:
SMITHWAY MOTOR XPRESS, INC.
By /s/ G. Xxxxx Xxxxx
---------------------------
G. XXXXX XXXXX
Title PRESIDENT & CEO
EAST WEST MOTOR EXPRESS, INC.
By /s/ G. Xxxxx Xxxxx
---------------------------
G. XXXXX XXXXX
Title PRESIDENT & CEO
Consented and agreed to by the following guarantor(s) of the obligations of
SMITHWAY MOTOR XPRESS, INC. and EAST WEST MOTOR EXPRESS, INC. to LASALLE BANK
NATIONAL ASSOCIATION.
SMSD ACQUISITION CORP.
By /s/ G. Xxxxx Xxxxx
---------------------------
G. XXXXX XXXXX
Title: PRESIDENT & CEO
Date: MARCH 26, 2004
Smithway Motor Xpress, Inc.
March 26,2004
Page 4
SMITHWAY MOTOR XPRESS CORP.
By /s/ G. Xxxxx Xxxxx
-----------------------------------------
G. XXXXX XXXXX
Title: PRESIDENT & CEO
Date: MARCH 26, 2004
M1:1101422.02
