EXHIBIT 10.13
THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Third Amendment"), dated as of May 30, 2003, by and among the lenders
listed on the signature pages hereof as Lenders (the "Lenders"), DYNAMEX INC., a
Delaware corporation (the "Borrower"), DYNAMEX OPERATIONS EAST, INC., a Delaware
corporation, DYNAMEX OPERATIONS WEST, INC., a Delaware corporation, ROAD RUNNER
TRANSPORTATION, INC., a Minnesota corporation, NEW YORK DOCUMENT EXCHANGE
CORPORATION, a New York corporation, DYNAMEX DEDICATED FLEET SERVICES, INC., a
Delaware corporation, DYNAMEX CANADA HOLDINGS, INC., a Delaware corporation,
DYNAMEX PROVINCIAL COURIERS, INC., a Delaware corporation, DYNAMEX CANADA
HOLDINGS NS CORP., a Nova Scotia (Canada) unlimited liability company, DYNAMEX
PROVINCIAL COURIERS NS CORP., a Nova Scotia (Canada) unlimited liability
company, DYNAMEX CANADA LIMITED PARTNERSHIP, a Nova Scotia (Canada) limited
partnership, DYNAMEX CANADA CORP., a Nova Scotia (Canada) unlimited liability
company, ALPINE ENTERPRISES LTD., a Manitoba (Canada) corporation, BANK OF
AMERICA, N.A., as administrative agent for itself and the other Lenders (in such
capacity, the "Administrative Agent"), and BANK ONE, NA, as syndication agent
under the Credit Agreement (in such capacity, the "Syndication Agent").
BACKGROUND
A. The Borrower, the other Loan Parties (as defined in the Credit
Agreement defined below), the Lenders, the Syndication Agent, and the
Administrative Agent are parties to that certain Third Amended and Restated
Credit Agreement, dated as of November 9, 2001, as amended by that certain First
Amendment to Third Amended and Restated Credit Agreement, dated as of September
27, 2002, and that certain Second Amendment to Third Amended and Restated Credit
Agreement, dated as of October 4, 2002 (said Third Amended and Restated Credit
Agreement, the "Credit Agreement"; the terms defined in the Credit Agreement and
not otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. The Borrower has requested (a) certain amendments to the
Credit Agreement and (b) to remove Fleet National Bank ("Fleet") and Bank
Austria Creditanstalt Corporate Finance, Inc. ("Bank Austria") (collectively,
"Exiting Lenders") as lenders under the Credit Agreement.
C. The Borrower, the Lenders, the Syndication Agent and the
Administrative Agent hereby agree to amend the Credit Agreement, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
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1. AMENDMENTS.
(a) The definition of "Amortizing Loan Portion" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Amortizing Loan Portion" means that portion of the aggregate
principal amount of the Loans outstanding as of the Third Amendment
Effective Date in an amount equal to $13,000,000. As of the Third
Amendment Effective Date, the Amortizing Loan Portion of each Lender is
the amount set forth opposite the name of such Lender on the signature
pages to the Third Amendment under the heading "Amortizing Loan
Portion".
(b) The definition of "Applicable Margin" set forth in Section 1.1
Of the Credit Agreement is hereby amended to read as follows:
"Applicable Margin" means the following percentages per annum,
based upon the ratio of Total Debt to EBITDA as set forth in the most
recent Compliance Certificate received by the Administrative Agent
pursuant to Section 8.1(c):
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PRICING RATIO OF TOTAL DEBT TO COMMITMENT EURODOLLAR LOANS ABR
LEVEL EBITDA FEE LETTERS OF CREDIT LOANS
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1 Less than 1.25 to 1.00 0.250 2.000 0.000
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2 Greater than or equal to 1.25 0.375 2.500 0.125
to 1.00 but less than 1.75 to 1.00
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3 Greater than or equal to 1.75 to 1.00 0.500 3.500 0.500
----------------------------------------------------------------------------------------------------------
Any increase or decrease in the Applicable Margin resulting
from a change in the ratio of Total Debt to EBITDA shall become
effective as of the first Business Day immediately following the end of
the compliance period for which a Compliance Certificate is delivered
pursuant to Section 8.1(c); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section,
then Pricing Level 3 shall apply as of the first Business Day after the
date on which such Compliance Certificate was required to be have been
delivered. The Applicable Margin from and after the Third Amendment
Effective Date through the date on which another Pricing Level would
otherwise be in effect based on the Compliance Certificate of the
Borrower shall be Pricing Level 3.
(c) The definition of "Commitment" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
"Commitment" means, as to any Lender, the obligation of such
Lender to make Loans under the Revolving Loan Portion
of the Loans and incur or participate in Letter of Credit Liabilities
hereunder in an aggregate principal amount at any one time outstanding
up to but not exceeding the amount set forth opposite the name of such
Lender on the signature pages to the Third Amendment (or any further
amendment to the Credit
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Agreement) under the heading "Commitment" or, if such Lender is a party
to an Assignment and Acceptance, the amount of the "Commitment" set
forth in the most recent Assignment and Acceptance of such Lender, as
the same may be reduced or terminated pursuant to Section 2.12 or 11.2,
and "Commitments" means such obligations of all Lenders. As of the
Third Amendment Effective Date, the aggregate principal amount of the
Commitments is $19,500,000.
(d) The defined term "Commitment Fee Rate" set forth in Section
1.1 of the Credit Agreement is hereby deleted.
(e) The defined term "Dividends" is hereby added to Section 1.1 of
the Credit Agreement in proper alphabetical order to read as follows:
"Dividends" means any dividend or other distribution (whether
in cash, Property or obligations), direct or indirect, on account of
(or the setting apart of money for a sinking or other analogous fund
for) any shares of any class of Capital Stock of the Borrower or any of
its Subsidiaries now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock to the holders of that
class.
(f) The definition of "Eligible Receivables" set forth in Section
1.1 Of the Credit Agreement is hereby amended by amending clause (o) of such
definition to read as follows:
(o) Such Receivable is not owed by an account debtor as
to which more than twenty percent of the aggregate balances then
outstanding on all Receivables owed by such account debtor thereon
and/or its Affiliates to the Borrower or one of its Subsidiaries (as
applicable) are more than 90 days past the original date of invoice;
provided, that if a single invoice causes the outstanding Receivables
from an account debtor that are over 90 days past due to be greater
than twenty percent of the aggregate Receivables owed by such account
debtor, but such Receivables from such invoice otherwise are "Eligible
Receivables" but for this clause (o) or clause (c) of the definition,
then only such Receivables from such invoice will be excluded in
determining "Eligible Receivables";
(g) The definition of "Fixed Charge Coverage Ratio" set forth in
Section 1.1 Of the Credit Agreement is hereby amended to read as follows:
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) the sum of the following (without duplication) for the Borrower
and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP: (i) Net Income, plus (ii) Interest Expense,
plus (iii) income and franchise taxes to the extent deducted in
determining Net Income, plus (iv) depreciation and amortization expense
and other non-cash items to the extent deducted in determining Net
Income, minus (v) non-cash income to the extent included in determining
Net Income, plus (vi) Lease Expense, minus (vii) Capital Expenditures,
minus (viii) Dividends to (b) the Fixed Charges of the Borrower and its
Subsidiaries for such period.
(h) The definition of "Interest Rate Protection Agreements" set
forth in Section 1.1 of the Credit Agreement is hereby amended to read as
follows:
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"Interest Rate Protection Agreements" means, with respect to
any Person, an interest rate swap, cap or collar agreement or similar
arrangement between such Person and one or more Lenders that are
parties to this Agreement (or Affiliates of such Lenders) providing for
the transfer or mitigation of interest rate risks either generally or
under specified contingencies.
(i) The definition of "Loan Documents" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Indemnity, Subrogation and Contribution Agreement, the
Administrative Agent's Letter, the Letters of Credit, the Letter of
Credit Agreements, the Joinder Agreements, any Interest Rate Protection
Agreement or Currency Hedge Agreement between the Borrower or any of
its Subsidiaries and any Lender or any Affiliate of a Lender, and all
other agreements, documents and/or instruments now or hereafter
executed and/or delivered pursuant to or in connection with any of the
foregoing, and any and all amendments, modifications, supplements,
renewals, extensions, restatements or replacements thereof.
(j) The definition of "Maturity Date" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Maturity Date" means November 30, 2005.
(k) The definition of "Obligations" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Obligations" means any and all (a) indebtedness, liabilities
and obligations of the Borrower and the other Loan
Parties, or any of them, to the Administrative Agent, the Issuing Bank
and the Lenders, or any of them, evidenced by and/or arising pursuant
to any of the Loan Documents (including, without limitation, this
Agreement, the Notes and the Guaranties), now existing or hereafter
arising, whether direct, indirect, related, unrelated, fixed,
contingent, liquidated, unliquidated, joint, several or joint and
several, including, without limitation, (i) the obligations of the
Borrower and the Guarantors to repay the Loans and the Reimbursement
Obligations, to pay interest on the Loans and the Reimbursement
Obligations (including, without limitation, interest accruing after
any, if any, bankruptcy, insolvency, reorganization or other similar
filing) and to pay all fees, indemnities, costs and expenses (including
attorneys' fees) provided for in the Loan Documents and (ii) the
indebtedness constituting the Loans, the Reimbursement Obligations and
such interest, fees, indemnities, costs and expenses, (b) indebtedness,
liabilities and obligations of the Borrower or any of its Subsidiaries
under any and all Interest Rate Protection Agreements and Currency
Hedge Agreements that it may enter into with any Lender or any
Affiliate of a Lender with the prior written consent of the
Administrative Agent and the Required Lenders (whether or not such
Lender remains as a Lender after the execution of any such Interest
Rate Protection Agreement or Currency Hedge Agreement, unless the
Administrative Agent and the Required Lenders otherwise provide in
connection with or as a condition to their consent), and (c)
indebtedness,
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liabilities and obligations of the Borrower or any of its Subsidiaries
to any Lender in respect of cash management, depository accounts
(including chargebacks) or similar agreements.
(l) The definition of "Restricted Payment" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Restricted Payment" means (a) any Dividend; (b) any
redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of the Borrower
or any of its Subsidiaries now or hereafter outstanding; (c) any
payment or prepayment of principal of, premium, if any, or interest on,
or any redemption, conversion, exchange, purchase, retirement or
defeasance of, or payment with respect to, any Subordinated Debt; (d)
any loan, advance or payment to any officer, director or shareholder of
the Borrower or any of its Subsidiaries (other than a shareholder
consisting of the Borrower or a Subsidiary of the Borrower), exclusive
of reasonable compensation paid to officers or directors paid in the
ordinary course of business; and (e) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of Capital Stock of the Borrower
or any of its Subsidiaries now or hereafter outstanding.
(m) The defined term "Third Amendment" is hereby added to Section
1.1 of the Credit Agreement in proper alphabetical order to read as follows:
"Third Amendment" means that certain Third Amendment to Third
Amended and Restated Credit Agreement, dated as of May 30, 2003, among
the Borrower, the Lenders, the Syndication Agent and the Administrative
Agent.
(n) The defined term "Third Amendment Effective Date" is hereby
added to Section 1.1 of the Credit Agreement in proper alphabetical order to
read as follows:
"Third Amendment Effective Date" means the date that all of
the conditions to effectiveness set forth in Section 3 of the Third
Amendment have been satisfied.
(o) Section 2.3 Of the Credit Agreement is hereby amended to read
as follows:
Section 2.3 Repayment of Loans. The Borrower shall pay to the
Administrative Agent for the account of each applicable Lender the
principal of the Loans (including the Amortizing Loan Portion of the
Loans) outstanding as of the Maturity Date (and the principal of the
Loans outstanding as of the Maturity Date shall be due and payable) in
full on the Maturity Date. In addition to the foregoing, the Borrower
shall pay to the Administrative Agent for the account of each
applicable Lender the outstanding principal of the Amortizing Loan
Portion of the Loans in ten installments, as follows:
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PAYMENT DATE PAYMENT AMOUNT
July 31, 2003 $1,375,000
October 31, 2003 $1,375,000
January 31, 2004 $1,375,000
April 30, 2004 $1,375,000
July 31, 2004 $1,375,000
October 31, 2004 $1,375,000
January 31, 2005 $1,375,000
April 30, 2005 $1,375,000
July 31, 2005 $1,375,000
November 30, 2005 $ 625,000
(p) Section 2.10(a) of the Credit Agreement is hereby amended to
read as follows:
(a) Subject to Section 13.12, the Borrower agrees to pay to
the Administrative Agent for the account of each Lender a commitment
fee on the daily average unused or unfunded amount of such Lender's
Commitment, for the period from and including the Third Amendment
Effective Date to and including the Revolving Period Termination Date,
at the Applicable Margin for commitment fee calculated in accordance
with the definition of "Applicable Margin" contained herein, based on a
360-day year and the actual number of days elapsed, which accrued
commitment fees shall be payable in arrears on each Quarterly Date and
on the Revolving Period Termination Date.
(q) Section 2.14(b) of the Credit Agreement is hereby amended to
read as follows:
(b) Prepayments from Excess Cash Flow. The Borrower shall,
on or before October 31st of each year after the Third Amendment
Effective Date if the ratio of Total Debt to EBITDA for the four fiscal
quarters of the Borrower ended on the July 31st immediately preceding
such October 31st is greater than or equal to 1.75 to 1.00, pay (or
cause to be paid) to the Administrative Agent, as a prepayment of the
Loans and the other Obligations then outstanding, an aggregate amount
equal to fifty percent (50%) of the Excess Cash Flow for the fiscal
year ended on the July 31st immediately preceding such payment date;
provided, however that, for purposes of this Section 2.1(b), Excess
Cash Flow attributable to the Canadian Subsidiaries generated on and
after the Closing Date shall not exceed $2,000,000 in the aggregate.
(r) Section 9.4 of the Credit Agreement is hereby amended to read
as follows:
Section 9.4 Restricted Payments. Each of the Loan
Parties will not, and will not permit any of its Subsidiaries to, make
any Restricted Payments, except:
(a) subject to the subordination provisions relating
thereto, (i) the Borrower may make regularly scheduled payments of
interest accrued on any Permitted Subordinated Debt and may pay
principal of Permitted Subordinated Debt if and to the extent (but only
if and to the extent) permitted by the express terms of the
Subordinated Debt Documents governing such Permitted Subordinated Debt,
which terms have been
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expressly approved in writing by the Administrative Agent and (ii) Subsidiaries
of the Borrower may make payments of principal and interest accrued on
subordinated intercompany Debt which is permitted to be incurred in accordance
with Section 9.1(c) if and to the extent (but only if and to the extent) that
such payments are permitted by the terms of the documents governing such
subordinated intercompany Debt, which terms have been expressly approved in
writing by the Administrative Agent;
(b) Subsidiaries of the Borrower owned by the Borrower may declare
and pay Dividends to the Borrower to the extent permitted by applicable law;
(c) Subsidiaries of the Borrower owned by Subsidiaries of the
Borrower may declare and pay Dividends to their parent Subsidiaries to the
extent permitted by applicable law;
(d) the Borrower may purchase shares of Dynamex Common Stock from
employees of the Borrower or its Subsidiaries upon the termination of the
employment of such employees, provided that the amount paid therefor shall not
exceed the fair market value of such shares to be purchased and shall not exceed
$100,000 in the aggregate during any fiscal year;
(e) the Borrower and its Subsidiaries may make Loans to any
officer, director or shareholder of the Borrower or any of its Subsidiaries
(other than a shareholder consisting of the Borrower or a Subsidiary of the
Borrower) which, when aggregated with all such other loans, do not exceed
$100,000 in aggregate amount at any time outstanding; and
(f) the Borrower may declare and pay Dividends, provided that
prior to any declaration and payment of any such Dividend, the Borrower shall
have delivered to the Administrative Agent a Compliance Certificate calculated
on a pro-forma basis giving effect to the proposed Dividend which indicates that
the ratio of Total Debt to EBITDA for the four fiscal quarters ended immediately
preceding the date of such proposed Dividend is less than 1.75 to 1.00 and the
Fixed Charge Coverage Ratio for the four fiscal quarters ended immediately
preceding the date of such proposed Dividend is in compliance with Section 10.3;
provided, however, that no Restricted Payments may be made pursuant to clauses
(a), (d) or (f) preceding if a Default exists at the time of such Restricted
Payment or would result therefrom.
(s) Section 10.1 of the Credit Agreement is hereby amended to read as
follows:
Section 10.1 Maximum Ratio of Total Debt to EBITDA. The Borrower and
its consolidated Subsidiaries will not permit the ratio, calculated in
accordance with Section 1.4, of (i) Total Debt to (ii) EBITDA for the four
fiscal quarters of the Borrower then ended to be greater than (a) 2.25 to 1.00
at the end of any fiscal quarter of the Borrower up to and including July 31,
2003 and (b) 2.00 to 1.00 at the end of any fiscal quarter of the Borrower
thereafter.
(t) Section 10.2 of the Credit Agreement is hereby amended to read as
follows:
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Section 10.2 Minimum Net Worth. The Borrower and its
consolidated Subsidiaries will at all times maintain Net Worth in an
amount equal to (a) $45,000,000, plus (b) 75% of cumulative Net Income,
if positive for any fiscal quarter (i.e., exclusive of any negative Net
Income for any fiscal quarter), for any fiscal quarter commencing on
and after May 1, 2003, plus (c) all Net Proceeds of each Equity
Issuance which occurs on or after January 1, 2003.
(u) Exhibit I, the Form of Compliance Certificate, is hereby
amended to be in the form of Exhibit I hereto.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that, as
of the date hereof, after taking into account the effectiveness of this Third
Amendment:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this Third Amendment, the replacement Amortizing Loan Notes for each
Lender (the "Replacement Amortizing Loan Notes"), the replacement Revolving Loan
Notes for each Lender (the "Replacement Revolving Loan Notes") (collectively,
the "Replacement Notes"), (ii) this Third Amendment and the Replacement Notes
have been duly executed and delivered by the Borrower, and (iii) this Third
Amendment and the Replacement Notes and the Credit Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms, except as enforceability may be
limited by applicable debtor relief laws and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and except as rights to indemnity may be limited by federal or state
securities laws;
(d) neither the execution, delivery and performance of this Third
Amendment, the Replacement Notes or the Credit Agreement, as amended hereby, nor
the consummation of any transactions contemplated herein or therein, will
conflict with any Law or organizational documents of the Borrower, or any
indenture, agreement or other instrument to which the Borrower or any of its
property is subject; and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person not
previously obtained is required for the execution, delivery or performance by
the Borrower of this Third Amendment or the Replacement Notes.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be
effective upon satisfaction of the following conditions:
(a) the representations and warranties set forth in Section 2 of
this Third Amendment shall be true and correct;
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(b) the Administrative Agent shall have received counterparts of
this Third Amendment executed by the Lenders;
(c) the Administrative Agent shall have received counterparts of
this Third Amendment executed by the Borrower and acknowledged by each Loan
Party;
(d) the Administrative Agent shall have received duly executed
Replacement Notes for each Lender;
(e) Fleet shall have received $1,911,201.56, which represents
payment in full of all amounts due and owing to Fleet under the Credit Agreement
and the other Loan Documents;
(f) Bank Austria shall have received $1,146,720.86, which
represents payment in full of all amounts due and owing to Bank Austria under
the Credit Agreement and the other Loan Documents;
(g) the Administrative Agent shall have received payments in
respect of the Amortizing Loan Portion for the account of the Lenders such that
after giving effect thereto the outstanding aggregate amount of the Amortizing
Loan Portion is $13,000,000;
(h) the Administrative Agent shall have reviewed the Security
Documents and shall be satisfied with the results of such review; and
(i) the Administrative Agent shall have received in form and
substance satisfactory to the Administrative Agent, such other documents,
certificates and instruments as the Lenders shall require.
4. PURCHASE BY LENDERS. Simultaneously with the satisfaction of
conditions of effectiveness set forth in Section 3, each Lender shall purchase
or sell (as the case may be), without recourse, (a) an amount of loans
consisting of the Revolving Loan Portion and Letter of Credit liabilities
outstanding such that after giving effect to this Third Amendment, the amount of
each Lender's Commitment under the Credit Agreement which has been utilized
shall be pro rata among the Lenders in the proportion that their respective
Commitment bears to the aggregate Commitments and (b) an amount of the loans
consisting of the Amortizing Loan Portion outstanding such that after giving
effect to this Third Amendment, the Amortizing Loan Portion Percentage of each
Lender shall be a percentage based on the Amortizing Loan Portions set forth on
the signature pages hereto.
5. EXITING LENDERS. Upon satisfaction of the conditions set forth
in Section 3 of this Third Amendment, (a) no Exiting Lender shall (i) be a
Lender under the Credit Agreement or (ii) have any rights or obligations with
respect to being a Lender, except for those that expressly survive termination
of the Credit Agreement or termination of any commitments thereunder, (b) each
Exiting Lender shall xxxx its Revolving Loan Note and Amortizing Loan Note "PAID
IN FULL", and promptly return its Revolving Loan Note and Amortizing Loan Note
to the Borrower and (c) each Exiting Lender shall be entitled to the benefits of
Section 7 hereof. Fleet acknowledges and agrees that the amount set forth in
Section 3(e) above is all amounts due and owing to Fleet under the Credit
Agreement and the other Loan Documents. Bank Austria acknowledges and agrees
that the amount set forth in Section 3(f) above is all
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amounts due and owing to Bank Austria under the Credit Agreement and the other
Loan Documents.
6. LOAN PARTY'S ACKNOWLEDGMENT. By signing below, each Loan Party
(i) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this Third Amendment, (ii) acknowledges and agrees that its
obligations in respect of the Loan Documents to which it is a party are not
released, diminished, waived, modified, impaired or affected in any manner by
this Third Amendment, or any of the provisions contemplated herein, (iii)
ratifies and confirms its obligations under the Loan Documents to which it is a
party, and (iv) acknowledges and agrees that it has no claim or offsets against,
or defenses or counterclaims to, its obligations under the Loan Documents to
which it is a party.
7. RELEASE. IN CONSIDERATION OF THE LENDER'S EXECUTION OF THIS
THIRD AMENDMENT, EACH OF THE LOAN PARTIES, IN EACH CASE ON BEHALF OF ITSELF AND
EACH OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASORS"), DOES
VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE EACH LENDER, EACH
EXITING LENDER AND ADMINISTRATIVE AGENT AND THEIR RESPECTIVE PREDECESSORS,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (EACH, A
"RELEASED PARTY") FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ARISING ON OR BEFORE THE DATE THIS THIRD
AMENDMENT IS EXECUTED, WHICH BORROWER OR ANY LOAN PARTY MAY NOW HAVE AGAINST ANY
RELEASED PARTY, 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 "OBLIGATIONS", 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 CREDIT
AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS
THIRD AMENDMENT.
8. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon and during the effectiveness of this Third Amendment,
each reference in the Credit Agreement to "this Agreement", "hereunder", or
words of like import shall mean and be a reference to the Credit Agreement, as
affected by this Third Amendment.
(b) Except as expressly set forth herein, this Third Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights or remedies of the Administrative Agent or the
Lenders under the Credit Agreement or any of the other Loan Documents, and shall
not alter, modify, amend, or in any way affect the terms, conditions,
obligations, covenants, or agreements contained in the Credit Agreement or the
other
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Loan Documents, all of which are hereby ratified and affirmed in all respects
and shall continue in full force and effect.
9. COSTS AND EXPENSES. The Borrower shall be obligated to pay the
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Third Amendment and
the other instruments and documents to be delivered hereunder.
10. EXECUTION IN COUNTERPARTS. This Third Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. For purposes of this Third Amendment, a
counterpart hereof (or signature page thereto) signed and transmitted by any
Person party hereto to the Administrative Agent (or its counsel) by facsimile
machine, telecopier or electronic mail is to be treated as an original. The
signature of such Person thereon, for purposes hereof, is to be considered as an
original signature, and the counterpart (or signature page thereto) so
transmitted is to be considered to have the same binding effect as an original
signature on an original document.
11. GOVERNING LAW; BINDING EFFECT. This Third Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
(without giving effect to conflict of laws) and the United States of America,
and shall be binding upon the Borrower and each Lender and their respective
successors and assigns.
12. HEADINGS. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Third Amendment for any other purpose.
13. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
THIRD AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
================================================================================
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
================================================================================
11
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first above written.
DYNAMEX INC.
By: /s/ Xxx Xxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President & CFO
DYNAMEX OPERATIONS EAST, INC.
DYNAMEX OPERATIONS WEST, INC.
ROAD RUNNER TRANSPORTATION, INC.
NEW YORK DOCUMENT EXCHANGE CORPORATION
DYNAMEX DEDICATED FLEET SERVICES, INC.
DYNAMEX CANADA HOLDINGS, INC.
DYNAMEX PROVINCIAL COURIERS, INC.
DYNAMEX CANADA HOLDINGS NS CORP.
DYNAMEX PROVINCIAL COURIERS NS
CORP., individually and as general partner
of Dynamex Canada Limited Partnership
DYNAMEX CANADA CORP.
ALPINE ENTERPRISES LTD.
By: /s/ Xxx Xxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President & CFO
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
12
LENDERS:
BANK OF AMERICA, N.A.
COMMITMENT: $14,677,304
AMORTIZING LOAN PORTION:
$8,574,822
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, N.A., (Main Office Chicago)
as Syndication Agent and as a Lender
COMMITMENT: $4,822,696
AMORTIZING LOAN PORTION:
$4,425,178
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED
FOR PURPOSES OF SECTION 5 AND
SECTION 7 HEREOF ONLY:
FLEET NATIONAL BANK
By: /s/ Xxx X. Xxxxxxxx
----------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
13
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Associate Director
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
14
