FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Fourth Amendment"), dated as of March 31, 1997, 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 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, and that certain Third
Amendment to Amended and Restated Credit Agreement, dated as of
May 31, 1996 (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 (i) extend the Maturity Date and (ii) revise
Section 5.03 thereof.
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 definition of "Maturity Date" set forth in
Article I of the Credit Agreement is hereby amended to read as
follows:
"'Maturity Date' means April 1, 2002, or such
earlier date the Obligation becomes due and payable
(whether by acceleration, prepayment in full or
otherwise) or such later date as extended pursuant to
Section 2.12."
(b) Section 5.03 of the Credit Agreement is hereby deleted
in its entirety and the following is inserted in lieu thereof:
"Section 5.03. Fixed Charge Ratio. The
Companies will not permit the ratio of Income Available
for Fixed Charges (based on the four fiscal quarters
immediately prior to the date of determination) to
Fixed Charges (based on the four fiscal quarters
immediately prior to the date of determination) to be
less than (a) 1.80 to 1 at the end of each fiscal
quarter during fiscal year 1997 and (b) 2.00 to 1 at
the end of each fiscal quarter thereafter."
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 Fourth Amendment, and this Fourth 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), other than the Board of Directors of the
Companies is required for the execution, delivery or performance
by each Company of this Fourth Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Fourth Amendment
shall be effective as of March 31, 1997, subject to the
following:
(a) Agent shall have received counterparts of this Fourth
Amendment executed by each Lender;
(b) Agent shall have received counterparts of this Fourth
Amendment executed by each Company;
(c) Agent shall have received certified copies of
resolutions of each Company authorizing execution, delivery and
performance of this Fourth Amendment; and
(d) 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 Fourth 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 Fourth 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 Fourth 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 Fourth 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 Fourth Amendment
are included herein for convenience of reference only and shall
not constitute a part of this Fourth 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 FOURTH 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
Fourth Amendment as the date first above written.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Executive Vice
President
AMERICAN FREIGHTWAYS, INC.
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Executive Vice
President
NATIONSBANK OF TEXAS, N.A.
as Agent and as a Lender
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/Xxxx X. Xxxx
Name: Xxxx Xxxx
Title: A. Vice President
ABN-AMRO
BANK N.V., HOUSTON AGENCY
By: ABN-AMRO NORTH AMERICA, INC.,
as agent
By: /s/Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Vice President
By: /s/Diego Puiggari
Name: Diego Puiggari
Title:Vice Presient
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
THE FIRST
NATIONAL BANK OF CHICAGO
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
