FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.1
FIRST
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein called this
“Amendment”) made as of April 25, 2007 among FFE TRANSPORTATION SERVICES, INC.,
a Delaware corporation (“Borrower”), LASALLE BANK NATIONAL ASSOCIATION, as a
Bank, Collateral Agent and Syndication Agent (“LaSalle”) and COMERICA BANK, a
Michigan banking corporation, as a Bank, Issuing Bank and Administrative
Agent
(individually, as “Administrative Agent” and collectively with “LaSalle”, the
“Bank”).
W
I T N E
S S E T H:
WHEREAS,
Borrower and Bank have entered into that certain Amended and Restated Credit
Agreement dated as of October 12, 2006 (as heretofore amended, the “Original
Credit Agreement”), for the purposes and consideration therein expressed,
pursuant to which Bank became obligated to make loans to Borrower as therein
provided; and
WHEREAS,
Borrower and Bank desire to amend the Original Credit Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Original Credit Agreement, in
consideration of the loans which may hereafter be made by Bank to Borrower,
and
for other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I.
Definitions
and References
§ 1.1. Terms
Defined in the Original Credit Agreement.
Unless
the context otherwise requires or unless otherwise expressly defined herein,
the
terms defined in the Original 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 § 1.2.
“Amendment”
means
this First Amendment to Credit Agreement.
“Amendment
Documents”
means,
collectively, this Amendment and the confirmation by Guarantor with respect
to
this Amendment and any other document required to be delivered by Borrower
pursuant to Article III hereof.
“Credit
Agreement”
means
the Original Credit Agreement as amended hereby.
ARTICLE
II.
Amendments
to Original Credit Agreement
§ 2.1. Dividends
and Distributions.
Section
5.2 (e) (i) of the Original Credit Agreement is hereby amended in its entirety
to read as follows:
“(i) If
no
Default or Potential Default exists, Parent may declare and pay cash dividends
and/or redeem its common stock from time to time provided (A) that the amount
of
such dividends and/or such redemption prices declared or paid during any
fiscal
quarter of Parent shall not exceed 100% of the positive Net Income of Parent
and
its consolidated subsidiaries for the immediately preceding fiscal quarter;
provided
that
the
amount of such dividends and/or such redemption prices declared or paid during
the fiscal quarter of Parent ending June 30, 2007 shall not exceed the sum
of
(x) 100% of the positive Net Income of Parent and its consolidated subsidiaries
for the immediately preceding fiscal quarter, plus (y) $1,900,000, (B) that
Parent and each other Company would otherwise be in compliance with all other
financial covenants contained in this Agreement if such financial covenants
were
measured as of the date such dividends are paid or such redemptions are made
after giving effect to such dividends and/or redemptions, and (C) if such
dividend is made with any proceeds of death benefits received under life
insurance policies, the amount of such dividend shall not exceed the amount
of
the after-tax proceeds of such death benefit.”
ARTICLE
III.
Conditions
of Effectiveness
§ 3.1. Effective
Date.
This
Amendment shall become effective as of the date first above written when
and
only when Bank shall have received, at Bank’s office,
(a) a
duly
executed counterpart of this Amendment,
(b) a
duly
executed Consent and Agreement from Guarantor in the form of Exhibit A hereto,
and
(c) each
other document to be executed and delivered by Borrower pursuant hereto or
thereto.
ARTICLE
IV.
Representations
and Warranties
§ 4.1. Representations
and Warranties of Borrower.
In
order to induce Bank to enter into this Amendment,
Borrower represents and warrants to Bank that:
(a) The
representations and warranties contained in Article IV of the Original Credit
Agreement are true and correct at and as of the time of the effectiveness
hereof;
(b) Borrower
is duly authorized to execute and deliver this Amendment and the other Amendment
Documents and is and will continue to be duly authorized to borrow and to
perform its obligations under the Credit Agreement. Borrower has duly taken
all
corporate action necessary to authorize the execution and delivery of this
Amendment and the other Amendment Documents and to authorize the performance
of
the obligations of Borrower hereunder and thereunder;
(c) The
execution and delivery by Borrower of this Amendment and the other Amendment
Documents, the performance by Borrower of its obligations hereunder and
thereunder and the consummation of the transactions contemplated hereby do
not
and will not conflict with any provision of law, statute, rule or regulation
or
of the articles of incorporation and bylaws of Borrower, or of any material
agreement, judgment, license, order or permit applicable to or binding upon
Borrower, or result in the creation of any lien, charge or encumbrance upon
any
assets or properties of Borrower. Except for those which have been duly
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrower of this Amendment and the other Amendment
Documents or to consummate the transactions contemplated hereby and
thereby;
(d) When
duly
executed and delivered, each of this Amendment and the other Amendment Documents
will be a legal and binding instrument and agreement of Borrower, enforceable
in
accordance with its terms, except as limited by bankruptcy, insolvency and
similar laws applying to creditors’ rights generally and by principles of equity
applying to creditors’ rights generally; and
(e) The
audited annual consolidated financial statements of Borrower dated as of
December 31, 2006 fairly presents the consolidated financial position at
such
date and the consolidated statement of operations and the changes in
consolidated financial position for the periods ending on such dates for
Borrower. Copies of such financial statements have heretofore been delivered
to
Bank. Since such date no material adverse change has occurred in the financial
condition or businesses or in the consolidated financial condition or businesses
of Borrower.
ARTICLE
V.
Miscellaneous
§
5.1. Ratification
of Agreement.
The
Original Credit Agreement as hereby amended is hereby ratified and confirmed
in
all respects. Any reference to the Credit Agreement in any Loan Document
shall
be deemed to refer to this Amendment also. The execution, delivery and
effectiveness of this Amendment and the other Amendment Documents shall not,
except as expressly provided herein, operate as a waiver of any right, power
or
remedy of Bank under the Credit Agreement or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement or any other
Loan
Document.
§
5.2. Survival
of Agreements.
All
representations, warranties, covenants and agreements of Borrower herein
shall
survive the execution and delivery of this Amendment and the performance
hereof,
and shall further survive until all of the Obligations are paid in full.
All
statements and agreements contained in any certificate or instrument delivered
by Borrower hereunder or under the Credit Agreement to Bank shall be deemed
to
constitute representations and warranties by, or agreements and covenants
of,
Borrower under this Amendment and under the Credit Agreement.
§
5.3. Loan
Documents.
This
Amendment and the other Amendment Documents are each a Loan Document, and
all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto
and
thereto.
§
5.4. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of Texas and any applicable laws of the United States of America in
all
respects, including construction, validity and performance.
§
5.5. Counterparts;
Fax.
This
Amendment may be separately executed in counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall
be
deemed to constitute one and the same Amendment. This Amendment may be duly
executed by facsimile or other electronic transmission.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT 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.
[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.,
as
Borrower
By:/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
COMERICA
BANK,
as
a
Bank, as Issuing Bank
and
as
Administrative Agent
By:/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Senior
Vice President
LASALLE
BANK NATIONAL ASSOCIATION,
as
a
Bank, as Collateral Agent and
as
Syndication Agent
By:/s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Vice President
EXHIBIT
A
CONSENT
AND AGREEMENT
Each
of
the undersigned Guarantors hereby (i) consents to the provisions of this
Amendment and the transactions contemplated herein, (ii) ratifies and
confirms the Amended and Restated Guaranty and Amended and Restated Security
Agreement, each dated as of October 12, 2006, made by them for the benefit
of
Bank pursuant to the Credit Agreement, (iii) ratifies and confirms all
other Loan Documents made by them for the benefit of Bank, (iv) agrees that
all of their 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 (v) agrees
that such Guaranty, such Security Agreement and such other Loan Documents
shall
remain in full force and effect.
FROZEN
FOOD EXPRESS INDUSTRIES, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
FFE,
INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
XXXXXXX
CORPORATION
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
FX
HOLDINGS, INC. (formerly names AIRPRO HOLDINGS, INC.)
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
XXXX
MOTOR LINES, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
FROZEN
FOOD EXPRESS, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
XXXXXXX
CARTAGE, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
MIDDLETON
TRANSPORTATION COMPANY
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
COMPRESSORS
PLUS, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
FFE
LOGISTICS, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
XXXXXXX
LLC
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
Senior
Vice President
