EXHIBIT 10.1
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is entered into as of May 26,
2000, among FFE TRANSPORTATION SERVICES, INC., a Delaware
corporation ("Borrower"), FROZEN FOOD EXPRESS INDUSTRIES, INC., a
Texas corporation ("Parent"), FFE, INC., a Delaware corporation
("FFE"), XXXXXXX CORPORATION, a Delaware corporation ("Xxxxxxx"),
W & B REFRIGERATION SERVICE COMPANY, a Delaware corporation
("W&B"), XXXX MOTOR LINES, INC., a Delaware corporation ("LML"),
FROZEN FOOD EXPRESS, INC., a Texas corporation ("Express"),
XXXXXXX CARTAGE, INC., a Texas corporation ("Cartage"), MIDDLETON
TRANSPORTATION COMPANY, a Texas corporation ("Middleton"),
COMPRESSORS PLUS, INC., a Texas corporation ("CPI"), AEL
TRANSPORTS, INC., a Delaware corporation ("AEL"), FLEET NATIONAL
BANK (formerly known as BANKBOSTON, N.A.) ("Fleet"), a national
banking association, COMERICA BANK ("Comerica"), XXXXX FARGO BANK
TEXAS, NATIONAL ASSOCIATION (successor by consolidation to Xxxxx
Fargo Bank (Texas), National Association), a national banking
association ("Xxxxx Fargo"), each other entity which may from
time to time become party hereto as a lender hereunder or any
successor or assignee thereof (collectively, other than the
Companies, the "Banks") and Xxxxx Fargo as agent for the Banks
(in such capacity, "Agent")
RECITALS
A. Borrower, Parent, FFE, Xxxxxxx, W&B, LML, Express,
Cartage, Middleton, CPI, AEL, Fleet, Xxxxx Fargo and Comerica (as
successor by assignment from Chase Bank of Texas, National
Association) are parties to that certain Second Amended and
Restated Credit Agreement, dated as of March 1, 2000 (the "Credit
Agreement").
B. The parties to the Credit Agreement desire to amend the
Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
ARTICLE I
Definitions
Section 1.1 Terms that are used in this Amendment and that
are defined in the Credit Agreement are used herein as defined
therein, unless otherwise stated.
ARTICLE II
Amendments
Section 2.1 Amendments to Article I. (a) The following
defined terms and their associated definitions in the Credit
Agreement are hereby amended and restated in their entireties to
read, respectively, as follows:
"Base Rate" means, at any time, the higher of (a)
the rate of interest per annum then most recently
established by Xxxxx Fargo as its prime or base rate of
interest (which rate may not be the lowest rate of
interest charged by Xxxxx Fargo, each change in the
Base Rate to become effective, without notice to
Borrower, as of the opening of business on the
effective date of each change in the Base Rate;
provided, however, that, in the event Xxxxx Fargo is no
longer Agent hereunder for whatever reason, the
aforesaid reference in this definition to Xxxxx Fargo
shall instead be deemed to mean and refer to such Bank
as may from time to time be Agent hereunder, in such
Bank's capacity as a Bank hereunder, or such other Bank
as may from time to time be specified by the Banks in
their discretion, which rate shall be established by
such Bank in accordance with its internal policies and
procedures applicable from time to time or (b) the sum
of the Federal Funds Rate plus one-half of one percent
(0.5%).
"Final Maturity Date" means as defined in Section 2.3.
"Revolving Credit Commitment Termination Date"
shall mean June 1, 2002, or such earlier date upon
which the obligation of the Banks to make Loans is
terminated pursuant to the terms of this Agreement.
(b) Clause "h" in the definition of Permitted Liens is
amended and restated to read as follows:
h. Liens at any time existing on up to twenty-five
(25) tractors and twenty-five 25 trailers
(collectively, the "Demo Vehicles") that are purchased
for a nominal amount from vehicle vendors and that are
subject to a negative pledge and a re-sale option (for
a nominal amount) by the owner back to such vendors.
Section 2.2 Amendment to Section 2.3. Section 2.3 of the
Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Section 2.3 Repayment of Loans. Borrower shall
pay the outstanding principal amount on all Loans,
including Swingline Advances, outstanding on the
Revolving Credit Commitment Termination Date in forty-
eight (48) consecutive monthly installments, beginning
the first day of the first month following the
Revolving Credit Commitment Termination Date, each such
installment to be in an amount equal to the aggregate
amount of the Loans outstanding as of the Revolving
Credit Commitment Termination Date divided by forty-
eight (48) (the date of the final installment being
herein referred to as the "Final Maturity Date"). If
any payment of principal becomes due and payable on a
day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day
and interest shall be payable at the then applicable
rate during such extension.
Section 2.3 Amendment to Section 2.4(b). Section 2.4(b)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(b) Determinations of Margins and Fees. The
margins identified in Section 2.4(a) and the fees
payable under Section 2.11 shall be defined and
determined as follows:
(i) "Base Rate Margin" shall mean (A) during the
period commencing on the Closing Date and ending
on but not including the first Adjustment Date (as
defined below), one-half of one percent (0.50%)
per annum and (B) during each period from and
including one Adjustment Date to but excluding the
next Adjustment Date (herein a "Calculation
Period"), the percent per annum set forth in the
table below under the heading "Base Rate Margin"
and opposite the Funded Debt to EBITDAR Ratio
which corresponds to the Funded Debt to EBITDAR
Ratio set forth in, and as calculated in
accordance with, the applicable Quarterly Report.
(ii) "LIBOR Rate Margin" shall mean (A) during the
period commencing on the Closing Date and ending
on but not including the first Adjustment Date,
one and three-fourths of one percent (1.75%) per
annum and (B) during each Calculation Period, the
percent per annum set forth in the table below
under the heading "LIBOR Rate Margin" and opposite
the Funded Debt to EBITDAR Ratio which corresponds
to the Funded Debt to EBITDAR Ratio set forth in,
and as calculated in accordance with, the
applicable Quarterly Report.
(iii) "Commitment Fee Rate" shall mean (A)
during the period commencing on the Closing Date
and ending on but not including the first
Adjustment Date, seven-twentieths of one percent
(0.35%) per annum and (B) during each Calculation
Period, the percent per annum set forth in the
table below under the heading "Commitment Fee
Rate" and opposite the Funded Debt to EBITDAR
Ratio which corresponds to the Funded Debt to
EBITDAR Ratio set forth in, and as calculated in
accordance with, the applicable Quarterly Report
Funded Debt to Base LIBOR Commitment
EBITDAR Rate Rate Fee
Ratio Margin Margin Rate
------------- ------ ----- ------
Greater than or 1.00% 2.25% 0.50%
equal to 2.75
Greater than or 0.75% 2.00% 0.35%
equal to 2.25 but
less than 2.75
Greater than or 0.50% 1.75% 0.25%
equal to 1.75 but
less than 2.25
Greater than or 0.00% 1.50% 0.25%
equal to 1.25 but
less than 1.75
Less than 1.25 0.00% 1.00% 0.20%
Upon delivery of each Quarterly Report pursuant to
this Agreement, commencing with such Quarterly Report
delivered as of the period ending on December 31, 1999,
the LIBOR Rate Margin (for Interest Periods commencing
after the applicable Adjustment Date), the Base Rate
Margin and the Commitment Fee Rate shall automatically
be adjusted in accordance with the Funded Debt to
EBITDAR Ratio set forth therein and the table set forth
above, such automatic adjustment to take effect as of
the first Business Day after the receipt by the Agent
of the related Quarterly Report (each such Business Day
when such margins or fees change pursuant to this
sentence or the next following sentence, herein an
"Adjustment Date"). If Parent fails to deliver such
Quarterly Report which so sets forth the Funded Debt to
EBITDAR Ratio within the period of time required by
this Agreement or if a Default exists and the Agent
provides notice of the Default to Parent: (i) the
LIBOR Rate Margin (for Interest Periods commencing
after the applicable Adjustment Date) shall
automatically be adjusted to two and one-quarter
percent (2.25%) per annum; (ii) the Base Rate Margin
shall automatically be adjusted to one percent (1.00%);
and (iii) the Commitment Fee Rate shall automatically
be adjusted to one-half of one percent (0.50%), such
automatic adjustments to take effect as of the first
Business Day after the last day on which Parent was
required to deliver the applicable Quarterly Report in
accordance with this Agreement or, in the case of a
Default, on the date the written notice is given to
Parent and to remain in effect until subsequently
adjusted in accordance herewith upon the delivery of
such Quarterly Report or, in the case of a Default,
when such Default has been cured to the satisfaction of
the Agent or waived by the Required Banks.
Section 2.4 Amendment to Section 2.9. The chart in Section
2.9 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
Number of
Business
Days
Notice Prior
------ -----
Terminations or Reductions of Commitments 5
Advances of Loans as Base Rate Loans 1
Advances of Loans as LIBOR Loans 2
Conversions or Continuations of Loans 2
Prepayments of Loans which are Base Rate Loans 1
Prepayments of Loans which are LIBOR Loans 2
Section 2.5 Amendment to Section 2.14(g). Clause (g) in
Section 2.14 of the Credit Agreement is amended and restated
to read in its entirety as follows:
(g) All letters of credit issued pursuant to the
Existing Agreement and outstanding on the Closing Date
shall be deemed to be Letters of Credit issued pursuant
to this Agreement; and any letter of credit issued by
Chase at any time in favor of Borrower or any other
Company are not Letters of Credit issued pursuant to
this Agreement and do not and shall not create Letter
of Credit Liabilities (individually or collectively) or
any Reimbursement Obligation.
Section 2.6 Amendment to Section 2.16. The first sentence
in Section 2.16 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
All payments of principal, interest, fees and other
amounts to be made by Borrower, Parent or any
Subsidiary under this Agreement or any other Loan Paper
shall be made via wire transfer of funds to Agent c/o
Wells Fargo Bank, NA, San Francisco, California,
ABA # 1210-00248, for Account No. 4518-151444, Payee
Name Syndic/WFBCORP/FFE Transportation; Reference: FFE
Transportation, for the account of each Bank's
Applicable Lending Office in Dollars and in immediately
available funds, without setoff, deduction or
counterclaim, not later than 12:00 noon (Dallas, Texas
time) on the date on which such payment shall become
due (each such payment made after such time on such due
date to be deemed to have been made on the next
succeeding Business Day).
Section 2.7 Amendment to Section 5.1(a). Section 5.1(a)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(a) Quarterly Report. On or before forty-five
(45) days after the end of the first, second and third
calendar quarters, and on or before ninety (90) days
after the fourth calendar quarter, deliver to each Bank
a Quarterly Report (herein so called), in the form of
Exhibit E attached hereto, with the blanks completed
accurately, and signed by the chief financial officer
or Vice President of Finance of Borrower.
Section 2.8 Amendments to Section 5.1(f). (a) The first
sentence in Section 5.1(f) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
As of the last day of each fiscal quarter during the
periods set forth in the table below, maintain a Fixed
Charge Coverage Ratio equal to or greater than the
ratio set forth opposite the period in the table below
containing the applicable fiscal quarter ending date.
(b) The chart in Section 5.1(f) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
Minimum Fixed Charge
Period Coverage Ratio
------ --------------
From the Closing Date
through and including March 1.15 to 1.00
31, 2000
From April 1, 2000, through
and including June 30, 2000 1.10 to 1.00
From July 1, 2000, and 1.20 to 1.00
thereafter
Section 2.9 Amendments to Section 5.1(k). (a) The first two
sentences in Section 5.1(k) are hereby deleted and replaced with
the following sentences:
As of the last day of each fiscal quarter during the
periods set forth in the table below, maintain a Debt
Coverage Ratio equal to or less than the ratio set
forth opposite the period in the table below containing
the applicable fiscal quarter ending date. "Debt
Coverage Ratio" is defined to mean, as of the date of
any determination thereof, the ratio of (i) Funded Debt
as of such measurement date to (ii) EBITDAR for the
twelve (12) month period then ending, all as determined
in conformity with GAAP.
(b) The chart in Section 5.1(k) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
Maximum Debt
Period Coverage Ratio
------ --------------
From the Closing Date 3.25 to 1.00
through March 31, 2000
From April 1, 2000, through
and including September 30, 2000 3.00 to 1.00
From October 1, 2000, and thereafter 2.75 to 1.00
Section 2.10 Amendment to Section 5.1(q). Clause (ii)(A) in
Section 5.1(q) is amended and restated to read in its entirety as
follows: "(A) the Vehicles (other than the Demo Vehicles) and".
Section 2.11 Amendment to Section 5.2(c). Clause (i) in
Section 5.2(c) of the Credit Agreement is amended and restated to
read in its entirety as follows:
(i) mergers and consolidations of two or more
Companies or acquisitions of a Company by another
Company; provided no Default or Potential Default
exists,
Section 2.12 Amendment to Section 5.2(d). Section 5.2(d) of
the Credit Agreement is hereby amended by deleting the term
"Bank" and replacing it with the phrase "the Banks".
Section 2.13 Amendment to Section 5.2. Section 5.2 of the
Credit Agreement is amended by adding the following clause "(l)"
immediately after clause "(k)":
(l) Net Income. Permit the Companies'
consolidated net income as determined in conformity
with GAAP to be less than zero for each of any two (2)
consecutive fiscal quarters that begin on or after
December 31, 1999.
Section 2.14 Amendment to Sections 6.6 and 6.7. Sections 6.6
and 6.7 of the Credit Agreement are amended and restated to read
in their entireties, respectively, as follows:
Section 6.6 Judgments. Any of the Companies
fails to pay any money judgment against it in an amount
greater than $100,000 at least ten (10) days prior to
the date on which any of the assets of any of the
Companies may be lawfully sold to satisfy such
judgment.
Section 6.7 Attachment. The failure to have
discharged within a period of thirty (30) days after
the commencement thereof any attachment, sequestration
or similar proceedings against any of the assets owned
by Borrower or any other Company having an aggregate
fair market value of $100,000 or more.
Section 2.15 Amendment to Section 8.1(a). Section 8.1(a) of
the Credit Agreement is hereby amended and restated by deleting
the phrase "Article VI" and replacing it with the phrase "Article
VII".
Section 2.16 Amendment to Section 8.10. The first sentence
in Section 8.10 of the Credit Agreement is amended by deleting the
phrase "two (2)" and replacing it with the phrase "thirty (30)".
Section 2.17 Amendment to Schedule 4.3. Schedule 4.3 to the
Credit Agreement is hereby amended and restated in its entirety
as set forth in Schedule 4.3 attached to this Amendment.
Section 2.18 Amendment to Schedule 4.11. Schedule 4.11 to the
Credit Agreement is hereby amended and restated in its entirety
as set forth in Schedule 4.11 attached to this Amendment.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions
precedent:
(a) Agent shall have received all of the following, each
dated (unless otherwise indicated) the date of this Amendment,
in form and substance satisfactory to the Agent and the Banks:
(i) Resolutions. Resolutions of the Board of
Directors (or other similar authorizing documents) of
the Borrower and each other Company certified by its
Secretary, an Assistant Secretary, or another
authorized Person which authorize its execution,
delivery, and performance of this Amendment and the
Loan Papers to which it is or is to be a party
hereunder;
(ii) Incumbency Certificate. A certificate of
incumbency certified by the Secretary, an Assistant
Secretary or other authorized Person of the Borrower
and each other Company certifying the names of its
representatives who are authorized to sign this
Amendment and the Loan Papers to which it is or is to
be a party hereunder (including the certificates
contemplated herein) together with specimen signatures
of each such officers;
(iii) Articles of Incorporation. The articles
of incorporation, articles of organization, certificate
of limited partnership or similar governing document,
as applicable of the Borrower and each other Company
certified by the Secretary of State of the state of its
incorporation or organization (or the other appropriate
governmental officials of its jurisdiction of
organization) and dated a current date;
(iv) Bylaws. The bylaws of the Borrower and each
other Company certified by its Secretary or an
Assistant Secretary;
(v) Governmental Certificates. Certificates of
the appropriate government officials of the state of
incorporation of the Borrower and each other Company as
to its existence and good standing;
(vi) Opinion of Counsel. A favorable opinion of
legal counsel to Borrower and the other Companies as to
such matters as the Agent may reasonably request;
(vii) New Note. An executed Revolving Credit
Note payable by Borrower to the order of Comerica Bank
in the maximum principal amount of $16,666,666.67;
(viii) Assignment and Acceptance. An executed
Assignment and Acceptance between Comerica Bank and
Chase Bank of Texas, National Association in the form
of Exhibit A hereto; and
(viii) Additional Information. Agent shall have
received such additional documentation and information
as Agent may request; and
(b) The representations and warranties contained herein
and in all other Loan Papers, as amended hereby, shall be true
and correct in all material respects as of the date hereof as
if made on the date hereof, except for such representations and
warranties limited by their terms to a specific date;
(c) Agent shall have received all fees and expenses payable
to it or any Bank under the Fee Letter and all fees and expenses
payable under Section 6.3 of this Amendment and all other fees
and expenses payable on or before the date of this Amendment.
(d) No Potential Default or Default shall have occurred and
be continuing; and
(e) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other
legal matters incident thereto shall be reasonably satisfactory
to Agent and each Bank.
ARTICLE IV
No Waiver
Section 4.1 Except as otherwise specifically provided for in
this Amendment, nothing contained herein shall be construed as a
waiver by Agent or the Banks of any covenant or provision of the
Credit Agreement, the other Loan Papers, this Amendment, or of
any other contract or instrument between any Company, Agent
and/or the Banks, and the failure of Agent or the Banks at any
time or times hereafter to require strict performance by Borrower
of any provision thereof shall not waive, affect or diminish any
right of Agent or the Banks to thereafter demand strict
compliance therewith. Agent and the Banks hereby reserve all
rights granted under the Credit Agreement, the other Loan Papers,
this Amendment and any other contract or instrument between any
Company, Agent and/or the Banks.
ARTICLE V
Ratifications. Representations and Warranties
Section 5.1 Ratifications. The terms and provisions set forth
in this Amendment shall modify and supersede all inconsistent
terms and provisions set forth in the Credit Agreement and the
other Loan Papers, and, except as expressly modified and
superseded by this Amendment, the terms and provisions of the
Credit Agreement and the other Loan Papers are ratified and
confirmed and shall continue in full force and effect. The
Companies, Agent and the Banks agree that the Credit Agreement
and the other Loan Papers, as amended hereby, shall continue to
be legal, valid, binding and enforceable in accordance with their
respective terms.
Section 5.2 Representations and Warranties. Borrower and
each other Company jointly and severally represent and warrant to
Agent and the Banks that (a) the execution, delivery and
performance of this Amendment and any and all other Loan Papers
executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of the
Companies and will not violate the Articles of Incorporation or
Bylaws of any Company; (b) the representations and warranties
contained in the Credit Agreement, as amended hereby, and other
Loan Papers are true and correct on and as of the date hereof and
on and as of the date of execution hereof as though made on and
as of each such date; (c) no Default under the Credit Agreement,
as amended hereby, has occurred and is continuing, unless such
Default has been specifically waived in writing by Agent and the
Required Banks; (d) each Company is in full compliance with all
covenants and agreements applicable to it contained in the Credit
Agreement and the other Loan Papers, as amended hereby; and (e)
none of the Companies have amended or rescinded or otherwise
modified its resolutions attached to the Corporate Certificate
delivered by such Company to Agent on March 1, 2000, in
connection with the closing of the Credit Agreement.
ARTICLE VI
Miscellaneous Provisions
Section 6.1 Survival of Representations and Warranties. All
representations and warranties made in the Credit Agreement and
any other Loan Papers, including, without limitation, the
documents furnished in connection with this Amendment, shall
survive the execution and delivery of this Amendment and the
other Loan Papers, and no investigation by Agent or the Banks
shall affect the representations and warranties or the right of
Agent or the Banks to rely upon them.
Section 6.2 Reference to Credit Agreement and Assignment and
Acceptances. Each of the Credit Agreement and the other Loan
Papers, and any and all other agreements, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement, as amended hereby,
are hereby amended so that any reference in the Credit Agreement
and such other Loan Papers to the Credit Agreement shall mean a
reference to the Credit Agreement as amended hereby. The Assignment
and Acceptance executed pursuant to Section 3.1(a)(viii) of this
Amendment is for all purposes an "Assignment and Acceptance" under
the Credit Agreement, notwithstanding the deviation from the form
prescribed by the Credit Agreement.
Section 6.3 Expenses of Agent and the Banks. As provided in
the Credit Agreement, the Companies agree to pay on demand all
reasonable costs and expenses incurred by Agent and the Banks in
connection with the preparation, negotiation, and execution of
this Amendment and the other Loan Papers executed pursuant hereto
and any and all amendments, modifications, and supplements
thereto, including, without limitation, the reasonable costs and
fees of Agent's legal counsel, and all reasonable costs and
expenses incurred by Agent in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended
hereby, or any other Loan Papers, including, without limitation,
the costs and fees of Agent's and the Banks, legal counsel.
Section 6.4 Severability. Any provision of this Amendment
held by a court of competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate the remainder of
this Amendment and the effect thereof shall be confined to the
provision so held to be invalid or unenforceable.
Section 6.5 Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of Agent, the Banks, Borrower
and the other Companies and their respective successors and
assigns, except that Borrower and the other Companies may not
assign or transfer any of their rights or obligations hereunder
without the prior written consent of Agent and the Banks.
Section 6.6 Counterparts. This Amendment may be executed in
one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
Section 6.7 Effect of Waiver. No consent or waiver, express
or implied, by Agent or the Banks to or for any breach of or
deviation from any covenant or condition by Borrower or any other
Company shall be deemed a consent to or waiver of any other
breach of the same or any other covenant, condition or duty.
Section 6.8 Headings. The headings, captions, and
arrangements used in this Amendment are for convenience only
and shall not affect the interpretation of this Amendment.
Section 6.9 Applicable Law. THIS AMENDMENT AND ALL OTHER
LOAN PAPERS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN
MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. CHAPTER 346 OF
THE TEXAS FINANCE CODE SHALL NOT APPLY TO THE REVOLVING CREDIT
LOANS.
Section 6.10 Final Agreement. THE CREDIT AGREEMENT AND THE
OTHER LOAN PAPERS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE
EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT
AGREEMENT AND THE OTHER LOAN PAPERS, AS AMENDED HEREBY, MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION,
RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY
AN AUTHORIZED OFFICER OF EACH COMPANY AND EACH OF THE REQUIRED
BANKS.
Section 6.11 Release. EACH COMPANY HEREBY ACKNOWLEDGES
THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT,
CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY
TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES
OF ANY KIND OR NATURE FROM AGENT OR THE BANKS, EACH COMPANY HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT
AND THE BANKS, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS
AND ASSIGNS, FROM UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL,
AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH COMPANY MAY NOW
OR HEREAFTER -HAVE AGAINST AGENT AND/OR THE BANKS, THEIR
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY,
AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
AND ARISING FROM ANY LOANS, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
LOAN AGREEMENT OR OTHER AGREEMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AMENDMENT.
Section 6.12 Guarantor Consent and Ratification. Each
of the Companies, other than Borrower, jointly and severally,
hereby consents to the terms of this Amendment, confirms and ratifies
the terms of each of the other Loan Papers to which it is a party,
including the Guaranty Agreement and Security Agreement(s), and
acknowledges that each of the other Loan Papers to which it is a
party, including the Guaranty Agreement and Security Agreement(s) is
in full force and effect on the date executed, that as of the date
hereof it has no defense, counterclaim, set-off or any other claim
to diminish its liability under such document(s), and that no consent
by him/it is required for the effectiveness of any future amendment,
modification, forbearance or other action with respect to the
Loans, the Collateral, the Credit Agreement or any of the other
Loan Papers.
Section 6.13 Agreement for Binding Arbitration. Each party
to this Amendment hereby acknowledges that it has agreed to be bound
by the terms and provisions of the Arbitration Program, a copy of
which is attached to the Credit Agreement as Exhibit H, and which
is incorporated by reference herein and is acknowledged as
received by the parties pursuant to which any and all disputes
shall be resolved by mandatory binding arbitration upon the
request of any party.
IN WITNESS WHEREOF, this Amendment has been executed and is
effective as of the date first above written.
AGENT:
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, successor by
consolidation to Xxxxx Fargo Bank
(Texas), National Association
Individually and as Agent
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BORROWER:
FFE TRANSPORTATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Finance
OTHER BANKS:
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxxxx Brand
------------------------
Name: Xxxxxxxxx Brand
Title: Vice President
OTHER COMPANIES:
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
FFE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
W & B REFRIGERATION SERVICE COMPANY
By: /s/ X. Xxxxx XxXxxxx
-----------------------
Name: F. Xxxxx XxXxxxx, Xx.
Title: Senior Vice President
XXXX MOTOR LINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Secretary
FROZEN FOOD EXPRESS, INC.
By: /s/ F. Xxxxx XxXxxxx, Xx.
---------------------------
Name: F. Xxxxx XxXxxxx, Xx.
Title: Senior Vice President
XXXXXXX CARTAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Secretary
MIDDLETON TRANSPORTATION COMPANY
By: /s/ F. Xxxxx XxXxxxx, Xx.
---------------------------
Name: F. Xxxxx XxXxxxx, Xx.
Title: Senior Vice President
COMPRESSORS PLUS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Secretary
