SIXTH AMENDMENT TO
CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into
as of July 1, 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 and a Fifth
Amendment to Credit Agreement dated as of December 17, 1999 (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 6.13 of the Agreement is deleted in its entirety as of June 1,
2000 and is replaced with the following:
Section 6.13 Debt Service Coverage Ratio. As measured
on the last day of each fiscal quarter hereafter for the
twelve month period then ending, the Borrower shall not
permit the ratio of (I) EBITDA less (a) all income taxes
actually paid during such period, less (b) 20% of its
Capital Expenditures incurred during such period to (II) the
Current Maturities of Indebtedness, plus (a) interest
expense of Guarantor and its Subsidiaries on a consolidated
basis for such period, determined in accordance with GAAP,
deducted from Consolidated Net Income (or Loss) for such
period, plus (b) 33% of the sum of (i) the outstanding
principal balance on the Revolving Loan plus any outstanding
Letters of Credit, less (ii) 85% of the aggregate amount of
the Borrower's then existing Eligible Accounts, to be less
than 1.0:1.0.
3. There is hereby added to the Agreement the following Section 6.17:
Section 6.17 Minimum Net Profit. The Borrower shall
have after tax earnings at the end of each fiscal year
hereafter of not less than $1.00.
4. Section 9.1 is amended to add the following new definitions:
"Capital Expenditures" shall mean, for any period, expenditures (including
the aggregate amount of expenditures under Capital Leases) made by the Guarantor
or its Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs unless
such repairs are required to be capitalized in accordance with GAAP) during such
period computed in accordance with GAAP; provided that Capital Expenditures
shall not include expenditures made with the insurance proceeds or sale proceeds
for fixed assets, plant and equipment.
"Capital Lease" shall mean a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Current Maturities of Indebtedness" shall mean at any time and with
respect to any item of Indebtedness, the portion of such Indebtedness
outstanding at such time which by the terms of such Indebtedness or the terms of
any instrument or agreement relating thereto is due on demand or within one year
from the time of determination (whether by sinking fund, other required
prepayment or final payment at maturity) and is not directly or indirectly
renewable, extendible or refundable at the option of the obligor under an
agreement or firm commitment in effect at such time to a date one year or more
from such time.
5. This Amendment will become effective upon the execution and delivery of
this Amendment by each of Borrower, Guarantor, East West and SMSD.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original.
12. 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.
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IN WITNESS WHEREOF, this Sixth 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 Sixth 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 Agreementand hereby consents to the Sixth 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.
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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 Sixth 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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