THIRD AMENDMENT TO RESTATED AGENTED REVOLVING CREDIT AGREEMENT
Exhibit 10.36
THIRD AMENDMENT TO
RESTATED AGENTED REVOLVING CREDIT AGREEMENT
RESTATED AGENTED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO RESTATED AGENTED REVOLVING CREDIT AGREEMENT (“Amendment”) dated as of
the 31st day of January, 2007, among XXXX, INC. (formerly known as SCS TRANSPORTATION,
INC.), a Delaware corporation (the “Borrower”), and BANK OF OKLAHOMA, N.A., U.S. BANK NATIONAL
ASSOCIATION, JPMORGAN CHASE BANK, N.A. (as successor by merger to Bank One, NA), XXXXXX X.X. (as
successor by merger to XXXXXX TRUST AND SAVINGS BANK) and LASALLE BANK NATIONAL ASSOCIATION
(individually a “Bank” and collectively the “Banks”), and BANK OF OKLAHOMA, N.A., as agent for the
Banks (in such capacity the “Agent”).
RECITALS
A. Reference is made to the Restated Agented Revolving Credit Agreement dated January 31,
2005, and amended April 29, 2005, and June 30, 2006, among Borrower, Agent and Banks (as amended,
the “Credit Agreement”) pursuant to which a $110,000,000 Revolving Credit Loan was established.
Terms used herein shall have the meanings ascribed to them in the Credit Agreement unless otherwise
defined.
B. Borrower has requested that Banks and Agent extend the term of the Banks’ Commitment to
make Revolving Credit Loans under the Credit Agreement to January 31, 2009; and Banks and Agent
have agreed to accommodate such request, subject to the terms and conditions set forth below.
C. Borrower has notified Banks and Agent that it intends, from time to time, to acquire one
hundred percent (100%) of the outstanding stock of certain entity(ies) which operate a primary line
of business within Borrower’s core industry, and Banks and Agent have consented to such
acquisition(s) and agree to certain resulting secured indebtedness, subject to the terms and
conditions set forth below.
AGREEMENT
1. Amendments to the Credit Agreement.
1.1. Section 1.01(83) is hereby amended to evidence that the Termination Date shall now
be “January 31, 2009”.
1.2. Section 5.03 is hereby amended to add the following sentence at the end of such
Section:
“Notwithstanding the above, in the event, and each time, Borrower or one of its
Subsidiaries acquires one hundred percent (100%) of the outstanding stock of an
entity (or entities) (each a “Target”) which operates a primary line of business
within Borrower’s core industry, the indebtedness of such Target assumed as a result
of such acquisition, and Liens affecting the assets of such Target and securing such
indebtedness, may be maintained and remain in effect for a period of time not beyond
the existing maturity date of such indebtedness; provided, however, that the
aggregate amount of assumed indebtedness from all Targets shall not exceed
$10,000,000 at any one time outstanding.”
1.3. Section 5.09 is hereby amended to add the following sentence at the end of such
Section:
“Notwithstanding the above, the requirements of this Section 5.09 shall not apply to
indebtedness of a Target assumed by Borrower or one of its Subsidiaries, as allowed
under Section 5.03 hereof.”
2. Conditions Precedent. The obligations of the Banks to perform under the Credit
Agreement, as amended hereby, are subject to Borrower’s execution and/or delivery of the following:
2.1. This Amendment; and
2.2. Any other documents or agreements reasonably requested by Lender.
3. Representations and Warranties. The Borrower hereby (i) ratifies and confirms all
representations and warranties set forth in the Credit Agreement and all other Loan Documents, and
(ii) represents and warrants that no Event of Default has occurred and is continuing.
4. Ratification. Borrower hereby ratifies and confirms the Credit Agreement and all other
Loan Documents, and agrees that they remain in full force and effect.
5. Ratification of Guaranty. Guarantor, Xxxx Motor Freight Line, Inc., by execution
hereof, hereby acknowledges and agrees that its Guaranty Agreement remains in full force and
effect, as evidenced by the Ratification attached hereto.
6. Governing Law. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Oklahoma.
7. Multiple Counterparts. This Amendment may be executed in any number of counterparts,
and by different parties to this Amendment in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
8. Costs, Expenses and Fees. Borrower agrees to pay all costs, expenses and fees incurred
by Agent in connection herewith, including without limitation the reasonable attorney fees of
Riggs, Abney, Neal, Turpen, Orbison and Xxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first written.
[Signature Pages Follow]
2
| XXXX, INC. (f/k/a SCS TRANSPORTATION, INC.) |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx, Vice President, Chief | ||||
| Financial Officer and Secretary | ||||
| 00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxx 00000 Attention: Phone: Facsimile: |
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| BANK OF OKLAHOMA, N.A., as a Bank and as Agent |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx, Senior Vice President | ||||
| Principal Office and Lending Office for Prime and LIBOR Loans: Bank of Xxxxxxxx Xxxxx X.X. Xxx 0000 Xxxxx, Xxxxxxxx 00000 Attention: Xxxxx Xxxxxxx Phone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxxxx@xxxx.xxx |
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| U.S. BANK NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, | ||||
| Senior Vice President | ||||
| Principal Office and Lending Office for Prime Loans and LIBOR Loans: 000 Xxxxxxxx Xxxx Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxx Phone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxxx.xxxxxxx@xxxxxx.xxx |
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| JPMORGAN CHASE BANK, N.A. (as successor by merger to
Bank One, NA) |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, First Vice President | ||||
| Principal Office and Lending Office for Prime Loans and LIBOR Loans: 000 Xxxxxxxx Xxxxxx, XX0-0000 Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: Xxxxx X. Xxxxxx Phone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxx_xxxxxx@xxxxxxx.xxx |
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| BMO CAPITAL MARKETS FINANCING, INC. |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx, Vice President | ||||
| Principal Office and Lending Office for Prime Loans and LIBOR Loans: 000 Xxxx Xxxxxx, 00-X Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxx Phone: (000) 000-0000 Facsimile: (000) 000-0000 E-mail: xxxxxxx.xxxxxxx@xxx.xxx |
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| LASALLE BANK NATIONAL ASSOCIATION |
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| By | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Senior Vice President | ||||
| Principal Office and Lending Office for Prime Loans and LIBOR Loans: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attention: Xxxxx Xxxxxxxx Phone: (000) 000-0000 Fax: (000) 000-0000 E-mail: xxxxx.xxxxxxxx@xxxxxxx.xxx |
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RATIFICATION
As inducement for the Banks and the Agent to enter into the Third Amendment to Restated
Agented Revolving Credit Agreement (“Amendment”) dated January 31, 2007, to which this Ratification
is affixed, the undersigned Guarantor hereby ratifies and confirms its Guaranty Agreement, and
acknowledges and agrees that it remains in full force and effect.
| “Guarantor” XXXX MOTOR FREIGHT LINE, INC. |
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| By | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx, Secretary | ||||
