EIGHTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.14
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Eighth Amendment”), dated as of
January 26, 2009, by and among the lender listed on the signature pages hereof as Lender (the
“Lender”), DYNAMEX INC., a Delaware corporation (the “Borrower”), DYNAMEX
OPERATIONS EAST, INC., a Delaware corporation, DYNAMEX OPERATIONS WEST, INC., a Delaware
corporation, DYNAMEX CANADA HOLDINGS, INC., a Delaware corporation, DYNAMEX PROVINCIAL COURIERS,
INC., a Delaware corporation, DYNAMEX FRANCHISE HOLDINGS, INC., a Delaware corporation, DYNAMEX
DOMESTIC FRANCHISING, INC., a Delaware corporation, DYNAMEX FLEET SERVICES, INC., a Delaware
corporation, BANK OF AMERICA, N.A., in its capacity as a lender (the “Lender”), and BANK OF
AMERICA, N.A., as administrative agent for itself and the Lender (in such capacity, the
“Administrative Agent”).
BACKGROUND
A. The Borrower, the other Loan Parties (as defined in the Credit Agreement defined below),
the Lender and the Administrative Agent are parties to that certain Credit Agreement, dated as of
March 2, 2004, as amended by that certain First Amendment to Credit Agreement, dated as of
April 22, 2005, that certain Second Amendment to Credit Agreement, dated as of November 10, 2005,
that certain Third Amendment to Credit Agreement, dated as of December 23, 2005, that certain
Fourth Amendment to Credit Agreement, dated as of July 21, 2006, that certain Fifth Amendment,
dated as of October 5, 2006, that certain Sixth Amendment to Credit Agreement, dated as of July 31,
2007, and that certain Seventh Amendment to Credit Agreement, dated as of September 17, 2008 (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. The Borrower has requested an amendment to the Credit Agreement.
C. The Lender and the Administrative Agent hereby agree to such request, subject to the terms
and conditions set forth herein.
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, the parties hereto covenant and agree as follows:
1. AMENDMENT. The dollar amount “$7,500,000” which is set forth on the fourth line
of Section 2.13(a) of the Credit Agreement is hereby amended to be “$10,000,000”.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, the Borrower represents and warrants that, as of the date hereof, after giving
effect to the amendment provided for in Section 1 of this Eighth Amendment:
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(a) the representations and warranties contained in the Credit Agreement and the other Loan
Documents 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) (i) the Borrower has full power and authority to execute and deliver this Eighth
Amendment, (ii) this Eighth Amendment has been duly executed and delivered by the Borrower, and
(iii) this Eighth Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief laws 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;
(d) neither the execution, delivery and performance of this Eighth Amendment or the Credit
Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or
therein, will violate any Law or conflict with any organizational documents of the Borrower, or any
indenture, agreement or other instrument to which the Borrower or any of its property is subject;
and
(e) no authorization, approval, consent, or other action by, notice to, or filing with, any
governmental authority or other Person (including the Board of Directors of the Borrower) not
previously obtained is required for the execution, delivery or performance by the Borrower of this
Eighth Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Eighth Amendment shall be effective as of
January 26, 2009, upon satisfaction of the following conditions:
(a) the representations and warranties set forth in Section 2 of this Eighth Amendment shall
be true and correct;
(b) the Administrative Agent shall have received counterparts of this Eighth Amendment
executed by the Lender;
(c) the Administrative Agent shall have received counterparts of this Eighth Amendment
executed by the Borrower and acknowledged by each other Loan Party; and
(d) the Administrative Agent shall have received in form and substance satisfactory to the
Administrative Agent, such other documents, certificates and instruments as the Lenders shall
require.
4. LOAN PARTY’S ACKNOWLEDGMENT. By signing below, each Loan Party (a) acknowledges,
consents and agrees to the execution, delivery and performance by the Borrower of this Eighth
Amendment, (b) acknowledges and agrees that its obligations in respect of the Loan Documents to
which it is a party are not released, diminished, waived, modified, impaired or affected in any
manner by this Eighth Amendment, or any of the provisions
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contemplated herein, (c) ratifies and confirms its obligations under the Loan Documents to
which it is a party, and (d) acknowledges and agrees that it has no claim or offsets against, or
defenses or counterclaims to, its obligations under the Loan Documents to which it is a party.
5. RELEASE. IN CONSIDERATION OF THE LENDER’S EXECUTION OF THIS EIGHTH AMENDMENT, EACH
OF THE LOAN PARTIES, IN EACH CASE ON BEHALF OF ITSELF AND EACH OF THEIR SUCCESSORS AND ASSIGNS
(COLLECTIVELY, THE “RELEASORS”), DOES VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE THE
LENDER, AND ADMINISTRATIVE AGENT AND THEIR RESPECTIVE PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SUCCESSORS AND ASSIGNS (EACH, A “RELEASED PARTY”) FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW
OR IN EQUITY, ARISING ON OR BEFORE THE DATE THIS EIGHTH AMENDMENT IS EXECUTED, WHICH BORROWER OR
ANY LOAN PARTY MAY NOW HAVE AGAINST ANY RELEASED PARTY, IF ANY, AND IRRESPECTIVE OF WHETHER ANY
SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING
FROM ANY “OBLIGATIONS”, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING,
RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND
NEGOTIATION FOR AND EXECUTION OF THIS EIGHTH AMENDMENT.
6. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon and during the effectiveness of this Eighth 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 by this Eighth Amendment.
(b) Except as expressly set forth herein, this Eighth Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the rights or remedies of the
Administrative Agent or the Lender under the Credit Agreement or any of the other Loan Documents,
and shall not alter, modify, amend, or in any way affect the terms, conditions, obligations,
covenants, or agreements contained in the Credit Agreement or the other Loan Documents, all of
which are hereby ratified and affirmed in all respects and shall continue in full force and effect.
7. COSTS AND EXPENSES. The Borrower shall be obligated to pay the costs and expenses
of the Administrative Agent in connection with the preparation, reproduction, execution and
delivery of this Eighth Amendment and the other instruments and documents to be delivered
hereunder.
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8. EXECUTION IN COUNTERPARTS. This Eighth 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. For purposes of this Eighth Amendment, a counterpart
hereof (or signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be
treated as an original. The signature of such Person thereon, for purposes hereof, is to be
considered as an original signature, and the counterpart (or signature page thereto) so transmitted
is to be considered to have the same binding effect as an original signature on an original
document.
9. GOVERNING LAW; BINDING EFFECT. This Eighth Amendment shall be governed by and
construed in accordance with the laws of the State of Texas (without giving effect to conflict of
laws) and the United States of America, and shall be binding upon the Borrower and each Lender and
their respective successors and assigns.
10. HEADINGS. Section headings in this Eighth Amendment are included herein for
convenience of reference only and shall not constitute a part of this Eighth Amendment for any
other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS EIGHTH AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER
THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Eighth Amendment as of the date
first above written.
| DYNAMEX INC. | ||||||
| By: | /s/ XXX X. XXXXXXX | |||||
| Vice President | ||||||
| DYNAMEX OPERATIONS EAST, INC. | ||||||
| DYNAMEX OPERATIONS WEST, INC. | ||||||
| DYNAMEX CANADA HOLDINGS, INC. | ||||||
| DYNAMEX PROVINCIAL COURIERS, INC. | ||||||
| DYNAMEX FRANCHISE HOLDINGS, INC. | ||||||
| DYNAMEX DOMESTIC FRANCHISING, INC. | ||||||
| DYNAMEX FLEET SERVICES, INC. | ||||||
| By: | /s/ XXX X. XXXXXXX | |||||
| Vice President | ||||||
| ADMINISTRATIVE AGENT: | ||||||
| BANK OF AMERICA, N.A., | ||||||
| as Administrative Agent | ||||||
| By: | /S/ XXXXXXXX XXX | |||||
| Vice President | ||||||
| LENDER: | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /S/ XXXXXXXX XXX | |||||
| Vice President | ||||||
Signature Page to Eighth Amendment
