FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "First Amendment"), dated as of May 31, 1995, is entered into
among AMERICAN FREIGHTWAYS CORPORATION, an Arkansas corporation
("AFC"), AMERICAN FREIGHTWAYS, INC., an Arkansas corporation
("AFI"; AFC and AFI are referred to collectively as the "Companies"
and individually as a "Company"), the banks listed on the signature
pages hereof (the "Lenders"), NATIONSBANK OF TEXAS, N.A., in its
capacity as agent (in said capacity, the "Agent").
BACKGROUND
----------
A. Companies, Lenders and Agent heretofore entered into that
certain Amended and Restated Credit Agreement, dated as of October
20, 1994 (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. Companies, Lenders and Agent desire to make certain
amendments to the Credit Agreement to provide for an increase in
the amount of the Commitment.
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, Companies, Lenders and Agent covenant and agree as
follows:
1. AMENDMENTS.
(a) The amount of "$75,000,000" set forth in the introductory
paragraph of the Credit Agreement is hereby amended to be
"$125,000,000."
(b) The definition of "Commitment" set forth in Article I of
the Credit Agreement is hereby amended to read as follows:
"Commitment means $125,000,000, as reduced from time
to time pursuant to Section 2.04 hereof."
2. REPRESENTATIONS AND WARRANTIES TRUE: NO EVENT OF
DEFAULT. By its execution and delivery hereof, each Company
represents and warrants that, as of the date hereof and after
giving effect to the amendments contemplated by the foregoing
Section 1:
(a) the representations and warranties contained in the
Credit Agreement 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) each Company has full power and authority to execute and
deliver this First Amendment, the $57,500,000 replacement Note
payable to the order of NationsBank of Texas, N.A. (the
"NationsBank Note"), the $42,500,000 replacement Note payable to
the order of Texas Commerce Bank National Association (the "Texas
Commerce Note"), and the $25,000,000 replacement Note payable to
the order of Wachovia Bank of Georgia, N.A. (the "Wachovia Note"),
and this First Amendment and the Credit Agreement, as amended
hereby, the NationsBank Note, the Texas Commerce Note and the
Wachovia Note constitute the legal, valid and binding obligations
of such Company, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally 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; and
(d) no authorization, approval consent, or other action by,
notice to, or filing with, any governmental authority or other
Person (including, but not limited to, with respect to the
Prudential Debt), is required for the execution, delivery or
performance by each Company of this First Amendment, the
NationsBank Note, the Texas Commerce Note or the Wachovia Note.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall
be effective as of May 31, 1995 subject to the following:
(i) Agent shall have received counterparts of this First
Amendment executed by each Lender;
(ii) Agent shall have received counterparts of this First
Amendment executed by each Company;
(iii) NationsBank of Texas, N.A. shall have received
the executed NationsBank Note;
(iv) Texas Commerce Bank National Association shall have
received the executed Texas Commerce Note;
(v) Wachovia Bank of Georgia, N.A. shall have received
the executed Wachovia Note;
(vi) Agent shall have received certified copies of
resolutions of each Company authorizing execution, delivery
and performance of this First Amendment, the NationsBank Note,
the Texas Commerce Note and the Wachovia Note; and
(vii) Agent shall have received, in form and
substance satisfactory to Agent and its counsel, such other
documents, certificates and instruments as Agent shall
require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First 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 and amended hereby.
(b) The Credit Agreement, as amended by the amendments
referred to above, shall remain in full force and effect and is
hereby ratified and confirmed.
5. COSTS, EXPENSES AND TAXES. The Companies, jointly and
severally, agree to pay on demand all costs and expenses of Agent
in connection with the preparation, reproduction, execution and
delivery of this First Amendment and the other instruments and
documents to be delivered hereunder (including the reasonable fees
and out-of-pocket expenses of counsel for Agent with respect
thereto and with respect to advising Agent as to its rights and
responsibilities under the Credit Agreement, as hereby amended).
6. EXECUTION IN COUNTERPARTS. This First 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.
7. GOVERNING LAW: BINDING EFFECT. This First Amendment
shall be governed by and construed in accordance with the laws of
the State of Texas and shall be binding upon each Company and each
Lender and their respective successors and assigns.
8. HEADINGS. Section headings in this First Amendment are
included herein for convenience of reference only and shall not
constitute a part of this First Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY
THIS FIRST AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment as the date first above written.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Xxxxx Xxxxxx
Title: Executive Vice President -
Accounting & Finance
AMERICAN FREIGHTWAYS, INC.
By: /s/Xxxxx Xxxxxx
Title: Executive Vice President -
Accounting & Finance
NATIONSBANK OF TEXAS, N.A.
as Administrative Lender and as a Lender
By: /s/Xxxxx Xxxxx
Title: Senior Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/Xxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/F. Xxxx Xxxxx
Title: Vice President
American Freightways Corporation
American Freightways, Inc.
SENIOR NOTE
No. V-001
ORIGINAL PRINCIPAL AMOUNT: $20,000,000
ORIGINAL ISSUE DATE: June 15, 1995
INTEREST RATE: 6.92%
INTEREST PAYMENT DATES: March 15, June 15, September 15 and
December 15
FINAL MATURITY DATE: June 15, 2005
PRINCIPAL INSTALLMENT DATES AND AMOUNTS:
June 15, 2001, $4,000,000; June 15, 2002, $4,000,000;
June 15, 2003, $4,000,000; and June 15, 2004, $4,000,000.
FOR VALUE RECEIVED, the undersigned, American Freightways
Corporation, a corporation organized and existing under the laws of
the State of Arkansas ("AFC"), and American Freightways, Inc., a
corporation organized and existing under the laws of the State of
Arkansas ("AFI", AFC and AFI are collectively referred to herein as
the "Companies"), hereby promise to pay to The Prudential Insurance
Company of America, or registered assigns, the principal sum of
TWENTY MILLION DOLLARS ($20,000,000), payable in installments on
the Principal Installment Dates and in the amounts specified above,
and on the Final Maturity Date specified above in an amount equal
to the unpaid balance of the principal hereof, with interest
(computed on the basis of a 360-day year--30-day month) (a) on the
unpaid balance thereof at the Interest Rate per annum specified
above, payable on each Interest Payment Date specified above and on
the Final Maturity Date specified above, commencing with the
Interest Payment Date next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) on any
overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest, and any overdue payment of any
Yield-Maintenance Amount (as defined in the Note Agreement referred
to below), payable on each Interest Payment Date as aforesaid (or,
at the option of the registered holder hereof, on demand), at a
rate per annum from time to time equal to the greater of (i) 8.92%
or (ii) 2% over the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York from time to time in New York
City as its Prime Rate.
Payments of principal of, and interest on, and any Yield-
Maintenance Amount payable with respect to, this Note are to be
made at the main office of Xxxxxx Guaranty Trust Company of New
York in New York City or at such other place as the holder hereof
shall designate to the Companies in writing, in lawful money of the
United States of America.
This Note is one of a series of Senior Notes (herein
called the "Notes") issued pursuant to a Master Shelf Agreement,
dated as of September 3, 1993, as amended (herein called the
"Agreement"), between the Companies and The Prudential Insurance
Company of America and is entitled to the benefits thereof. As
provided in the Agreement, this Note is subject to prepayment, in
whole or from time to time in part on the terms specified in the
Agreement.
This Note is a registered Note and, as provided in the
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such
holder's attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of
transfer, the Companies may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Companies shall not be
affected by any notice to the contrary.
In case an Event of Default, as defined in the Agreement,
shall occur and be continuing, the principal of this Note may be
declared or otherwise become due and payable in the manner and with
the effect provided in the Agreement.
This Note shall be construed and enforced in accordance
with the laws of the State of Texas.
American Freightways Corporation
By: /s/Xxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
American Freightways, Inc.
By: /s/Xxxxx Xxxxxx
Executive Vice President
and Chief Financial Officer
