SEVENTH AMENDMENT TO
CREDIT AGREEMENT
This SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of August 25, 2000, by and between Smithway Motor Xpress, Inc.
("Borrower"), Smithway Motor Xpress Corp. as Guarantor (the "Guarantor") and
LaSalle Bank National Association, formerly known as LaSalle National Bank, as
Lender (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Guarantor entered into a Credit Agreement
dated as of September 3, 1997, a First Amendment to Credit Agreement dated as of
March 1, 1998, a Second Amendment to Credit Agreement dated as of March 15,
1998, a Third Amendment to Credit Agreement dated as of October 30, 1998, a
Fourth Amendment to Credit Agreement dated as of August 20, 1999, a Fifth
Amendment to Credit Agreement dated as of December 17, 1999 and a Sixth
Amendment to Credit Agreement dated as of July 1, 2000 (collectively referred to
as the "Agreement"); and
WHEREAS, the Borrower has requested certain modifications to the Agreement
and the Lender is willing to do so on the following terms and conditions; and
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
1. Unless otherwise stated herein, all of the capitalized terms contained
in this document shall have the same meanings as contained in the Agreement.
2. Section 1.1(b) of the Agreement is deleted in its entirety and is
replaced with the following:
(b) Letters of Credit. Subject to the terms and conditions of
this Agreement, in addition to advances under the Revolving Loan, the
Revolving Commitment may be utilized for the issuance by the Lender of
letters of credit (each a "Letter of Credit"). In determining the
amount of outstanding Letters of Credit, the maximum amount then
undrawn under each Letter of Credit plus any drawings which have not
been reimbursed to the Lender will be considered outstanding. Each
Letter of Credit shall expire not later than one (1) year after the
date of its issuance and at least thirty (30) days prior to the
Revolving Termination Date in effect from time to time. For each
requested Letter of Credit, a Borrower shall give the Lender not less
than five (5) Business Days' prior written notice by delivery to the
Lender of a duly completed and executed application for such Letter of
Credit on the form prescribed or required by the Lender, which the
Lender may accept or reject in its sole discretion. At no time shall
the total outstanding Letters of Credit exceed $6,000,000.
The Borrower shall be irrevocably and unconditionally obligated,
forthwith without presentment, demand, protest or other formalities of
any kind, to reimburse the Lender for any amounts paid by the Lender
under any Letter of Credit. The Borrower hereby authorizes and directs
the Lender, at the Lender's option, to make a Revolving Loan in the
amount of any payment made by the Lender with respect to any Letter of
Credit. All amounts paid by the Lender with respect to any Letter of
Credit that are not immediately repaid by the Borrower with the
proceeds of a Revolving Loan or otherwise shall bear interest at the
interest rate then applicable to Revolving Loans, calculated using the
Prime Rate and the Applicable Margin in effect.
3. This Amendment will become effective upon the execution and delivery of
this Amendment by each of Borrower, Guarantor, East West and SMSD.
4. Borrower shall pay 50% of the legal fees incurred in connection with the
preparation of this Amendment and the documents and instruments referred to
herein, and shall pay 100% of all out of pocket costs incurred by the Lender or
its attorneys.
5. Borrower expressly acknowledges and agrees that all collateral, security
interests, liens, pledges, and mortgages heretofore, under this Amendment, or
hereafter granted to Lender, including, without limitation, such collateral,
security interests, liens, pledges and mortgages granted under the Agreement,
and all other supplements to the Agreement, extend to and cover all of the
obligations of Borrower to Lender, now existing or hereafter arising including,
without limitation, those arising in connection with the Agreement, as amended
by this Amendment, upon the terms set forth in such agreements, all of which
security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
6. Borrower represents and warrants to Lender that (i) it has all necessary
power and authority to execute and deliver this Amendment and perform its
obligations hereunder, (ii) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms, and (iii) all
representations and warranties of Borrower contained in the Agreement, as
amended, and all other agreements, instruments and other writings relating
thereto, are true, correct and complete as of the date hereof.
7. The parties hereto acknowledge and agree that the terms and provisions
of this Amendment amend, add to and constitute a part of the Agreement. Except
as expressly modified and amended by the terms of this Amendment, all of the
other terms and conditions of the Agreement, as amended, and all documents
executed in connection therewith or referred to or incorporated therein remain
in full force and effect and are hereby ratified, reaffirmed, confirmed and
approved.
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8. If there is an express conflict between the terms of this Amendment and
the terms of the Agreement, or any of the other agreements or documents executed
in connection therewith or referred to or incorporated therein, the terms of
this Amendment shall govern and control.
9. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original.
10. This Amendment was executed and delivered in Chicago, Illinois and
shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
IN WITNESS WHEREOF, this Seventh Amendment has been duly executed as of the
day and year specified at the beginning hereof.
SMITHWAY MOTOR XPRESS, INC., as Borrower
By: /s/ G. Xxxxx Xxxxx
Title: Exec. V.P.
Address Notice:
X.X. Xxx 000
Xxxx Xxxxx, Xxxx 00000
Attn: G. Xxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
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SMITHWAY MOTOR XPRESS CORP., as Guarantor
By: /s/ G. Xxxxx Xxxxx
Title: Exec. V.P.
Address Notice:
X.X. Xxx 000
Xxxx Xxxxx, Xxxx 00000
Attn: G. Xxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxx X. Xxxxxx
Title: AVP
Address notices and Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
CONSENT AND RATIFICATION
The undersigned, pursuant to that certain Guaranty dated as of September 3,
1997, is a guarantor of all of the obligations of the Borrower to the Lender
under the terms of the Agreement and hereby consents to the Seventh Amendment to
the Agreement. Guarantor hereby reaffirms and ratifies his guaranty as if the
same were fully set forth herein.
SMITHWAY MOTOR XPRESS CORP., as Guarantor
By: /s/ G. Xxxxx Xxxxx
Title: Exec. V.P.
The undersigned, pursuant to that certain Guaranty dated as of March 15,
1998, is a guarantor of all of the obligations of the Borrower to the Lender
under the terms of the Agreement
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and hereby consents to the Seventh Amendment to the Agreement. Guarantor hereby
reaffirms and ratifies his guaranty as if the same were fully set forth herein.
EAST WEST MOTOR EXPRESS, INC., as Guarantor
By: /s/ G. Xxxxx Xxxxx
Title: Exec. V.P.
The undersigned, pursuant to that certain Guaranty dated as of December 17,
1999, is a guarantor of all of the obligations of the Borrower to the Lender
under the terms of the Agreement and hereby consents to the Seventh Amendment to
the Agreement. Guarantor hereby reaffirms and ratifies his guaranty as if the
same were fully set forth herein.
SMSD ACQUISITION CORP., a South Dakota
corporation, as Guarantor
By: /s/ G. Xxxxx Xxxxx
Title: Exec. V.P.
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