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: Fourth 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 ("Bank") 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 Bank 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 Bank 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:
1. The Agreement hereby is amended as follows:
Smithway Motor Xpress, Inc.
March 28, 2003
Page 2
(a) Section (10) of the Agreement is deleted in its entirety and the
following is substituted in its place:
(10) TERMINATION; AUTOMATIC RENEWAL.
THIS AGREEMENT SHALL BE IN EFFECT UNTIL UPON EXECUTION OF THIS
AMENDMENT UNTIL DECEMBER 31, 2003 (THE "ORIGINAL TERM") AND SHALL
AUTOMATICALLY RENEW ITSELF FROM MONTH TO MONTH THEREAFTER (EACH
SUCH ONE-MONTH RENEWAL BEING REFERRED TO HEREIN AS A "RENEWAL
TERM") unless (A) THE DUE DATE OF THE LIABILITIES IS ACCELERATED
PURSUANT TO SECTION 16 HEREOF; OR (B) A BORROWER OR LENDER ELECTS
TO TERMINATE THIS AGREEMENT AT THE END OF THE ORIGINAL TERM OR AT
THE END OF ANY RENEWAL TERM BY GIVING THE OTHER PARTY WRITTEN
NOTICE OF SUCH ELECTION AT LEAST FIFTEEN (15) DAYS PRIOR TO THE
END OF THE ORIGINAL TERM OR THE THEN CURRENT RENEWAL TERM IN
WHICH CASE BORROWERS SHALL PAY ALL OF THE LIABILITIES IN FULL ON
THE LAST DAY OF SUCH TERM. If one or more of the events specified
in clauses (a) and (b) occurs, then (i) Lender shall not make any
additional Loans on or after the date identified as the date on
which the Liabilities are to be repaid; and (ii) this Agreement
shall terminate on the date thereafter that the Liabilities are
paid in full. At such time as Borrowers have repaid all of the
Liabilities and this Agreement has terminated, Borrowers shall
deliver to Lender a release, in form and substance satisfactory
to Lender, of all obligations and liabilities of Lender and its
officers, directors, employees, agents, parents, subsidiaries and
affiliates to such Borrowers, and if Borrowers are obtaining new
financing from another lender, Borrowers shall deliver such
lender's indemnification of Lender, in form and substance
satisfactory to Lender, for checks which Lender has credited to
such Borrower's account, but which subsequently are dishonored
for any reason or for automatic clearinghouse or wire transfers
not yet posted to such Borrower's account.
Smithway Motor Xpress, Inc.
March 28, 2003
Page 3
(b) Subsection 14 (a) of the Agreement is deleted in its entirety and the
following is substituted in its place:
(a) Tangible Net Worth
The Consolidated Group's Tangible Net Worth shall not at any time
be less than the Minimum Tangible Net Worth; "Minimum Tangible
Net Worth" being defined for purposes of this subsection as (i)
$13,000,000.00 at all times from January 1, 2003 through December
31, 2003; and (ii) thereafter, from the last day of each Fiscal
Year of the Consolidated Group through the day prior to the last
day of each immediately succeeding Fiscal Year of the
Consolidated Group, the Minimum Tangible Net Worth during the
immediately preceding period plus $1,000,000.00; and "Tangible
Net Worth" being defined for purposes of this subsection as the
Consolidated Group's shareholders' equity (including retained
earnings) less the book value of all intangible assets as
determined solely by Lender on a consistent basis plus the amount
of any LIFO reserve plus the amount of any debt subordinated to
Lender, all as determined under generally accepted accounting
principles applied on a basis consistent with the financial
statement dated December 31, 2002 except as set forth herein;
2. This Amendment shall not become effective until fully executed by all
parties hereto.
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 and Exhibit A thereto hereby
are 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 28, 2003
Page 4
LASALLE BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxx
-----------------------------
Title Sr VP
--------------------------
ACKNOWLEDGED AND AGREED TO
this 28th day of March, 2003:
SMITHWAY MOTOR XPRESS, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
Title President
EAST WEST MOTOR EXPRESS, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
Title President
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: Vice President
Date: March 28, 2003
Smithway Motor Xpress, Inc.
March 28, 2003
Page 5
Smithway Motor Xpress Corp.
By: /s/ G. Xxxxx Xxxxx
-----------------------------
G. Xxxxx Xxxxx
Title: Vice President
Date: March 28, 2003
