Exhibit 10(EE)
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Sixth Amendment"), dated as of October 16, 1998, 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, N.A.
(successor by merger to NationsBank of Texas, N.A.), in its
capacity as agent (in said capacity, the "Agent").
BACKGROUND
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A. Companies, Lenders and Agent are parties to that certain
Amended and Restated Credit Agreement, dated as of October 20,
1994, as amended by that certain First Amendment to Amended and
Restated Credit Agreement, dated as of May 31, 1995, that certain
Second Amendment to Amended and Restated Credit Agreement, dated as
of March 26, 1996, that certain Third Amendment to Amended and
Restated Credit Agreement, dated as of May 31, 1996, that Fourth
Amendment to Amended and Restated Credit Agreement, dated as of
March 31, 1997, and that certain Fifth Amendment to Amended and
Restated Credit Agreement, dated as of May 15, 1998 (said Credit
Agreement, as amended, 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 amend the Credit
Agreement to increase the Net Earnings Available For Restricted
Payments for the fiscal year ending December 31, 1998.
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. AMENDMENT. The definition of "Net Earnings Available For
Restricted Payments" set forth in Article 1 of the Credit Agreement
is hereby amended to read as follows:
"'Net Earnings Available For Restricted Payments' means with
respect to the Companies and their Subsidiaries on a consolidated
basis (a) for the fiscal year ending December 31, 1998, an amount
equal to the lesser of (i) 125% of Net Earnings and
(ii) $25,000,000 and (b) for each other fiscal year, an amount
equal to 75% of Net Earnings. If the preceding calculation results
in a number less than zero, such amount shall be considered to be
zero."
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
amendment 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 Sixth Amendment, and this Sixth Amendment and the
Credit Agreement, as amended hereby, 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 and the respective Boards of Directors of the
Companies) is required for the execution, delivery or
performance by each Company of this Sixth Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Sixth Amendment shall be
effective as of October 16, 1998, subject to the following:
(a) Agent shall have received counterparts of this Sixth
Amendment executed by each Lender;
(b) Agent shall have received counterparts of this Sixth
Amendment executed by each Company;
(c) the representations and warranties set forth in Section 2
of this Sixth Amendment shall be true and correct;
(d) Agent shall have received an amendment to the Prudential
Debt with respect to Restricted Payments in substance
substantially similar to this Sixth Amendment and acceptable
to the Agent; and
(e) 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 Sixth 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 amendment
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 Sixth 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 Sixth 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 Sixth 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 Sixth Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Sixth Amendment for any other purpose.
9. JOINT AND SEVERAL OBLIGATIONS. The Companies acknowledge and
agree that their obligations and duties under the Credit Agreement
and the other Loan Papers are joint and several in all instances.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
SIXTH 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.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have executed this
Sixth Amendment as the date first above written.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: EVP-Accounting & Finance
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AMERICAN FREIGHTWAYS, INC.
By: /s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: EVP-Accounting & Finance
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NATIONSBANK, N.A.
as Agent and as a Lender
By: /s/Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Vice President
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Sr. Vice President
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WACHOVIA BANK OF GEORGIA, N.A.
By: /s/Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
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Title: Vice President
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ABN-AMRO BANK N.V.
By: /s/Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Group Vice President
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By: /s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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