FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH
AMENDMENT TO CREDIT AGREEMENT
This
FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of April 15,
2005, (the “Effective Date”) is among FFE TRANSPORTATION SERVICES, INC. (the
“Borrower”), each of the undersigned Other Companies, each of the banks or other
lending institutions which is a party to the Agreement (hereinafter defined)
(each a “Bank” and collectively, the “Banks”), COMERICA BANK,
successor-by-merger with Comerica Bank-Texas (“Comerica”), as administrative
agent for the Banks (in such capacity, together with its successors in such
capacity, the “Administrative Agent”), and as issuer of Letters of Credit under
the Agreement (in such capacity, together with its successors in such capacity,
the “Issuing Bank”), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (“LaSalle”), as Syndication Agent (in such capacity, together with
its successors in such capacity, the “Syndication Agent”), and as Collateral
Agent (in such capacity, together with its successors in such capacity, the
“Collateral Agent”).
RECITALS:
A. The
Borrower, the Other Companies, the Banks, the Issuing Bank and the
Administrative Agent, the Syndication Agent and the Collateral Agent have
entered into that certain Credit Agreement dated as of May 30, 2002, which was
subsequently amended by the First Amendment to Credit Agreement on December 11,
2003, the Second Amendment to Credit Agreement on June 30, 2004 and the Third
Amendment to Credit Agreement on August 30, 2004 (as so amended, the “Credit
Agreement”).
B. The
parties hereto now desire to amend the Credit Agreement as provided
herein.
AGREEMENTS:
In
consideration of the premises and the mutual agreements herein set forth, the
parties hereto hereby agree as follows:
ARTICLE
I.
DEFINITIONS
AND REFERENCES
§
1.1. Terms
Defined in the Credit Agreement. Unless
the context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Credit Agreement shall have the same meanings whenever used
in this Amendment.
§
1.2. Other
Defined Terms. Unless
the context otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this Section 1.2.
“Amendment” means
as defined in the Introductory Paragraph hereof.
“Amendment
Documents” means
this Amendment and any other document delivered by the Borrower to
Administrative Agent pursuant to this Amendment.
“Credit
Agreement” means
as defined in the Recitals of this Amendment.
ARTICLE
II.
AMENDMENT
TO CREDIT AGREEMENT
§
2.1 Loans,
Investments and Mergers. Section
5.2(c) of the Credit Agreement is hereby amended to read in its entirety as
follows:
“(c) Loans,
Investments and Mergers. Make
any loan to or investment in, nor purchase stock or other securities of, nor
merge or consolidate with, nor purchase all or substantially all of the assets
of, any Person other than Borrower
or another Company, except (i) mergers and consolidations of two or more
Companies or acquisitions of a Company by another Company, provided no Default
or Potential Default exists; (ii) secured loans to owner-operators who have
independent contractor agreements with Borrower or any other Company not to
exceed $2,000,000 in the aggregate outstanding at any time; (iii) the W&B
Note; (iv) indebtedness of purchasers to the Companies for the purchase
price of Vehicles sold by the Companies to such purchasers, provided that such
Indebtedness together with loans made pursuant to clause (v) of this Subsection
(c) shall not exceed $2,000,000 in the aggregate outstanding at any time;
(v) loans, other than the foregoing, provided that such loans together with
indebtedness pursuant to clause (iv) of this Subsection (c) shall not exceed
$3,500,000 in the aggregate outstanding at any time; (vi) Permitted
Investments, (vii) other investments from time to time in an amount
outstanding at any time less than or equal to $100,000; and
(viii) expenditures for acquisitions involving a Person other than a Company in
an amount not to exceed $5,000,000 during any fiscal year of
Borrower.”
ARTICLE
III.
MISCELLANEOUS
§ 3.1.
Survival
of Representations and Warranties. All
representations and warranties made in this Amendment, the Credit Agreement or
any other document or documents relating thereto, including, without limitation,
any Loan Document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by Administrative Agent or any closing shall affect the
representations and warranties or the right of Administrative Agent to rely upon
them.
§ 3.2.
Reference
to Credit Agreement. Each of
the Loan Documents, including the Credit Agreement 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 such Loan
Documents to the Credit Agreement shall mean a reference to the Credit
Agreement, as amended hereby.
§ 3.3.
Expenses
of Administrative Agent. As
provided in the Credit Agreement, Borrower agrees to pay on demand all
reasonable costs and expenses incurred by Administrative Agent in connection
with the preparation, negotiation and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation, the
reasonable costs and fees of Administrative Agent’s legal counsel, and all
reasonable costs and expenses incurred by Administrative Agent in connection
with the enforcement or preservation of any rights under the Credit Agreement,
as amended hereby, or any other Loan Document, including, without limitation,
the reasonable costs and fees of Administrative Agent’s legal counsel.
§ 3.4.
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.
§ 3.5.
Applicable
Law. THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED
TO HAVE BEEN MADE AND TO BE PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
§ 3.6.
Successors
and Assigns. This
Amendment is binding upon and shall inure to the benefit of Administrative Agent
and Borrower and their respective successors and assigns, except Borrower may
not assign or transfer any of its rights or obligations hereunder without the
prior written consent of Administrative Agent.
§ 3.7.
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.
§ 3.8.
Effect
of Waiver. No
consent or waiver, express or implied, by Administrative Agent to or for any
breach of or deviation from any covenant or condition of the Credit Agreement
shall be deemed a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty.
§ 3.9.
Headings. The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
§
3.10. Notice
Pursuant To Tex. Bus. & Comm. Code Section 26.02
THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE PARTIES BEFORE OR
SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF, INCLUDING THE
GUARANTY, TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND 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.
§
3.11. Guarantors.
Each of
the undersigned parties to a Guaranty Agreement and Security Agreement, hereby
(i) consents to the provisions of this Amendment and the transactions
contemplated herein, (ii) ratifies and confirms the Guaranty Agreement and
Security Agreement made by it for the benefit of Agent and Banks executed
pursuant to the Credit Agreement and the other Loan Papers, (iii) agrees that
all of its respective obligations and covenants thereunder shall remain
unimpaired by the execution and delivery of this Amendment and the other
documents and instruments executed in connection herewith, and (iv) agrees that
such Guaranty Agreement and such Security Agreement shall remain in full force
and effect.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
FFE
TRANSPORTATION SERVICES, INC.
By:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X.
Xxxxxx
Vice
President
COMERICA
BANK, as a Bank, Issuing Bank and Administrative Agent
By:
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X.
Xxxxxxx
Senior
Vice President
LA SALLE
BANK, as Bank, Collateral Agent and Syndication Agent
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
First Vice President
GUARANTORS:
FROZEN
FOOD EXPRESS INDUSTRIES, INC.
By:
/s/Xxxxxx X. Xxxxxx
X. X.
Xxxxxx
Treasurer
FFE,
INC.
By:
/s/Xxxxxx X. Xxxxxx
X. X.
Xxxxxx
Vice
President
XXXXXXX
CORPORATION
By:
/s/Xxxxxx X. Xxxxxx
X. X.
Xxxxxx
Vice
President
AIRPRO
HOLDINGS, INC.
By:
/s/ X. Xxxxx XxXxxxx
X. Xxxxx
XxXxxxx
Senior
Vice President
XXXX
MOTOR LINES, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Corporate
Secretary
FROZEN
FOOD EXPRESS, INC.
By:
/s/ X. Xxxxx XxXxxxx
X. Xxxxx
XxXxxxx
Senior
Vice President
XXXXXXX
CARTAGE, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Corporate
Secretary
MIDDLETON
TRANSPORTATION COMPANY
By:
/s/ X. Xxxxx XxXxxxx
X. Xxxxx
XxXxxxx
Senior
Vice President
COMPRESSORS
PLUS, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Corporate
Secretary
FFE
LOGISTICS, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Corporate
Secretary
XXXXXXX,
LLC
By:
/s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Corporate
Secretary
