FIFTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
FIFTH
AMENDMENT TO CREDIT AGREEMENT
This
FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of March 31,
2006, (the “Effective Date”) is among FFE TRANSPORTATION SERVICES, INC. (the
“Borrower”), each of the undersigned Other Companies, each of the banks or other
lending institutions which is a party to the Agreement (hereinafter defined)
(each a “Bank” and collectively, the “Banks”), COMERICA BANK,
successor-by-merger with Comerica Bank-Texas (“Comerica”), as administrative
agent for the Banks (in such capacity, together with its successors in
such
capacity, the “Administrative Agent”), and as issuer of Letters of Credit under
the Agreement (in such capacity, together with its successors in such capacity,
the “Issuing Bank”), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (“LaSalle”), as Syndication Agent (in such capacity, together with
its successors in such capacity, the “Syndication Agent”), and as Collateral
Agent (in such capacity, together with its successors in such capacity,
the
“Collateral Agent”).
RECITALS:
A. The
Borrower, the Other Companies, the Banks, the Issuing Bank and the
Administrative Agent, the Syndication Agent and the Collateral Agent have
entered into that certain Credit Agreement dated as of May 30, 2002, which
was
subsequently amended by the First Amendment to Credit Agreement dated as
of
December 11, 2003, the Second Amendment to Credit Agreement dated as of
June 30,
2004, the Third Amendment to Credit Agreement dated as of August 30, 2004
and
the Fourth Amendment to Credit Agreement dated as of April 15, 2005 (as
so
amended, the “Credit Agreement”).
B. The
parties hereto now desire to amend the Credit Agreement as provided
herein.
AGREEMENTS:
In
consideration of the premises and the mutual agreements herein set forth,
the
parties hereto hereby agree as follows:
ARTICLE
I.
DEFINITIONS
AND REFERENCES
§
1.1. Terms
Defined in the Credit Agreement.
Unless
the context otherwise requires or unless otherwise expressly defined herein,
the
terms defined in the Credit Agreement shall have the same meanings whenever
used
in this Amendment.
§
1.2. Other
Defined Terms.
Unless
the context otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this Section 1.2.
“Amendment”
means
as defined in the Introductory Paragraph hereof.
“Amendment
Documents”
means
this Amendment and any other document delivered by the Borrower to
Administrative Agent pursuant to this Amendment.
ARTICLE
II.
AMENDMENT
TO CREDIT AGREEMENT
§
2.1 Financial
Statements.
Section
5.1(b) of the Credit Agreement is hereby amended in its entirety to read
as
follows:
“(b) Financial
Statements.
Deliver
to each Bank, as soon as practicable, and (i) in any event by May 30, 2006
for
the 2005 fiscal year of Parent and within ninety (90) days after the end
of each
fiscal year of Parent thereafter, complete and detailed Financial Statements
(prepared on a consolidated basis), including balance sheet, operating
statement, reconciliation of earned surplus and such supporting schedules
as any
Bank may request, accompanied by the certificate of a firm of independent
public
accountants acceptable to the Banks that such statements have been prepared
in
accordance with GAAP and fairly present the consolidated financial condition
of
the Companies during the fiscal year just ended, and that during the course
of
their audit of the Companies, nothing came to their attention that caused
them
to believe the Companies were not in compliance with the terms of Subsections 5.1(f),
5.1(k),
5.1(m),
5.2(a) and 5.2(f),
(ii) in
any event by May 30, 2006 for the calendar quarter ending on March 31,
2006 and
within forty-five (45) days after the end of those calendar quarters ending
on
June 30, 2006 and September 30, 2006 and within forty-five (45) days after
the
end of the first, second and third calendar quarter of each fiscal year
thereafter, consolidated balance sheets of the Companies as of the close
of such
quarter, and consolidated operating statements of the Companies for the
part of
the fiscal year ended at the close of such quarter, accompanied by the
certificate of the Chief Financial Officer or Treasurer of Parent that
such
statements are true and correct, were prepared in accordance with GAAP
and
fairly present the consolidated financial conditions and results of operations
of the Companies, and (iii) after a request by any Bank, such other information
pertaining to the Companies and their affairs as such Bank shall from time
to
time request in writing.”
ARTICLE
III.
MISCELLANEOUS
§
3.1.
Survival
of Representations and Warranties.
All
representations and warranties made in this Amendment, the Credit Agreement
or
any other document or documents relating thereto, including, without limitation,
any Loan Document furnished in connection with this Amendment, shall survive
the
execution and delivery of this Amendment and the other Loan Documents,
and no
investigation by Administrative Agent or any closing shall affect the
representations and warranties or the right of Administrative Agent to
rely upon
them.
§
3.2.
Reference
to Credit Agreement.
Each of
the Loan Documents, including the Credit Agreement and any and all other
agreements, documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Credit Agreement,
as amended hereby, are hereby amended so that any reference in such Loan
Documents to the Credit Agreement shall mean a reference to the Credit
Agreement, as amended hereby.
§
3.3.
Expenses
of Administrative Agent.
As
provided in the Credit Agreement, Borrower agrees to pay on demand all
reasonable costs and expenses incurred by Administrative Agent in connection
with the preparation, negotiation and execution of this Amendment and the
other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation,
the
reasonable costs and fees of Administrative Agent’s legal counsel, and all
reasonable costs and expenses incurred by Administrative Agent in connection
with the enforcement or preservation of any rights under the Credit Agreement,
as amended hereby, or any other Loan Document, including, without limitation,
the reasonable costs and fees of Administrative Agent’s legal counsel.
§
3.4.
Severability.
Any
provision of this Amendment held by a court of competent jurisdiction to
be
invalid or unenforceable shall not impair or invalidate the remainder of
this
Amendment and the effect thereof shall be confined to the provision so
held to
be invalid or unenforceable.
§
3.5.
Applicable
Law.
THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE
DEEMED
TO HAVE BEEN MADE AND TO BE PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
§
3.6.
Successors
and Assigns.
This
Amendment is binding upon and shall inure to the benefit of Administrative
Agent
and Borrower and their respective successors and assigns, except Borrower
may
not assign or transfer any of its rights or obligations hereunder without
the
prior written consent of Administrative Agent.
§
3.7.
Counterparts.
This
Amendment may be executed in one or more counterparts, each of which when
so
executed shall be deemed to be an original, but all of which when taken
together
shall constitute one and the same instrument.
§
3.8.
Effect
of Waiver.
No
consent or waiver, express or implied, by Administrative Agent to or for
any
breach of or deviation from any covenant or condition of the Credit Agreement
shall be deemed a consent or waiver to or of any other breach of the same
or any
other covenant, condition or duty.
§
3.9.
Headings.
The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
§
3.10. Notice
Pursuant To Tex. Bus. & Comm. Code Section 26.02
THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE PARTIES BEFORE
OR
SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF, INCLUDING THE
GUARANTY, TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS
THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
§
3.11. Guarantors.
Each
of
the undersigned parties to a Guaranty Agreement and Security Agreement,
hereby
(i) consents to the provisions of this Amendment and the transactions
contemplated herein, (ii) ratifies and confirms the Guaranty Agreement and
Security Agreement made by it for the benefit of Agent and Banks executed
pursuant to the Credit Agreement and the other Loan Papers, (iii) agrees
that
all of its respective obligations and covenants thereunder shall remain
unimpaired by the execution and delivery of this Amendment and the other
documents and instruments executed in connection herewith, and (iv) agrees
that
such Guaranty Agreement and such Security Agreement shall remain in full
force
and effect.
IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
| FFE TRANSPORTATION SERVICES, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| X. X. Xxxxxx | ||
| Vice President |
| COMERICA BANK, as a Bank, Issuing Bank and Administrative Agent | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | ||
| Senior Vice President |
| LA SALLE BANK, as Bank, Collateral Agent and Syndication Agent | ||
| By: | /s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx | ||
| First Vice President |
GUARANTORS:
| FROZEN FOOD EXPRESS INDUSTRIES, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| X. X. Xxxxxx | ||
| Treasurer |
| FFE, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| X. X. Xxxxxx | ||
| Vice President |
| XXXXXXX CORPORATION | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| X. X. Xxxxxx | ||
| Vice President |
| FX HOLDINGS, INC. (formerly named AIRPRO HOLDINGS, INC.) | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| XXXX MOTOR LINES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| FROZEN FOOD EXPRESS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| XXXXXXX CARTAGE, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| MIDDLETON TRANSPORTATION COMPANY | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| COMPRESSORS PLUS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| FFE LOGISTICS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
| XXXXXXX, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxxxx | ||
| Corporate Secretary |
