FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.4
FIFTH
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein called this
“Amendment”) made as of February 27, 2009 among FFE TRANSPORTATION SERVICES,
INC., a Delaware corporation (“Borrower”), BANK OF AMERICA, N.A., as a Bank,
Collateral Agent and Syndication Agent (“Bank of America”) and COMERICA BANK, as
a Bank, Issuing Bank and Administrative Agent (individually, as “Administrative
Agent” and collectively with Bank of America, the “Bank”).
W I T N E
S S E T H:
WHEREAS,
Borrower and Bank have entered into that certain Amended and Restated Credit
Agreement dated as of October 12, 2006 (as heretofore amended, the “Original
Credit Agreement”), for the purposes and consideration therein expressed,
pursuant to which Bank became obligated to make loans to Borrower as therein
provided; and
WHEREAS,
Borrower and Bank desire to amend the Original Credit Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Original Credit Agreement, in
consideration of the loans which may hereafter be made by Bank to Borrower, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I.
Definitions and
References
§ 1.1. Terms Defined in the
Original Credit Agreement. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the
Original 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 § 1.2.
“Amendment” means this
Fifth Amendment to Credit Agreement.
“Amendment Documents”
means, collectively, this Amendment and the confirmation by Guarantor with
respect to this Amendment and any other document required to be delivered by
Borrower pursuant to Article III hereof.
“Credit Agreement”
means the Original Credit Agreement as amended hereby.
ARTICLE
II.
Amendments to Original
Credit Agreement
§ 2.1. Dividends and
Distributions. Subsection 5.2(e)(i) of the Original Credit
Agreement is hereby amended in its entirety to read as follows:
“(i) If
no Default or Potential Default exists at the time any dividend payment
described below in this subsection (i) is made and if after giving effect to any
such dividend payment, Parent and each other Company would be in compliance with
all financial covenants contained in this Agreement, (A) Parent may declare and
pay cash dividends during Parent’s fiscal quarter ending March 31, 2009 in an
aggregate amount not to exceed $540,000; and (B) if Parent did not have
consolidated net losses determined in conformity with GAAP for its Fiscal
Quarter ending March 31, 2009 in excess of $1,500,000, Parent may declare and
pay cash dividends during Parent’s fiscal quarter ending June 30, 2009 in an
aggregate amount not to exceed $540,000.”
ARTICLE
III.
Conditions of
Effectiveness
§ 3.1. Effective
Date. This Amendment shall become effective as of the date
first above written when and only when Bank shall have received, at Bank’s
office,
(a) a
duly executed counterpart of this Amendment,
(b) a
duly executed Consent and Agreement from Guarantor in the form of Exhibit A
hereto,
(c) payments
of an amendment fee (i) by Borrower to Bank of America in the amount of $7,500
and (ii) by Borrower to Administrative Agent in the amount of $7,500,
and
(d) each
other document to be executed and delivered by Borrower pursuant hereto or
thereto.
ARTICLE
IV.
Representations and
Warranties
§ 4.1. Representations and
Warranties of Borrower. In order to induce Bank to enter into
this Amendment, Borrower represents and warrants to Bank that:
(a) The
representations and warranties contained in Article IV of the Original Credit
Agreement are true and correct at and as of the time of the effectiveness
hereof;
(b) Borrower
is duly authorized to execute and deliver this Amendment and the other Amendment
Documents and is and will continue to be duly authorized to borrow and to
perform its obligations under the Credit Agreement. Borrower has duly
taken all corporate action necessary to authorize the execution and delivery of
this Amendment and the other Amendment Documents and to authorize the
performance of the obligations of Borrower hereunder and
thereunder;
(c) The
execution and delivery by Borrower of this Amendment and the other Amendment
Documents, the performance by Borrower of its obligations hereunder and
thereunder and the consummation of the transactions contemplated hereby do not
and will not conflict with any provision of law, statute, rule or regulation or
of the articles of incorporation and bylaws of Borrower, or of any material
agreement, judgment, license, order or permit applicable to or binding upon
Borrower, or result in the creation of any lien, charge or encumbrance upon any
assets or properties of Borrower. Except for those which have been
duly obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrower of this Amendment and the other Amendment
Documents or to consummate the transactions contemplated hereby and
thereby;
(d) When
duly executed and delivered, each of this Amendment and the other Amendment
Documents will be a legal and binding instrument and agreement of Borrower,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency and similar laws applying to creditors’ rights generally and by
principles of equity applying to creditors’ rights generally; and
(e) The
audited annual consolidated financial statements of Borrower dated as of
December 31, 2007 fairly presents the consolidated financial position at such
date and the consolidated statement of operations and the changes in
consolidated financial position for the periods ending on such dates for
Borrower. Copies of such financial statements have heretofore been
delivered to Bank. Since such date no material adverse change has
occurred in the financial condition or businesses or in the consolidated
financial condition or businesses of Borrower.
ARTICLE
V.
Miscellaneous
§
5.1. Ratification of
Agreement. The Original Credit Agreement as hereby amended is
hereby ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall be deemed to refer to this Amendment
also. The execution, delivery and effectiveness of this Amendment and
the other Amendment Documents shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Bank under the Credit
Agreement or any other Loan Document nor constitute a waiver of any provision of
the Credit Agreement or any other Loan Document.
§
5.2. Survival of
Agreements. All representations, warranties, covenants and
agreements of Borrower herein shall survive the execution and delivery of this
Amendment and the performance hereof, and shall further survive until all of the
Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Borrower hereunder or under the
Credit Agreement to Bank shall be deemed to constitute representations and
warranties by, or agreements and covenants of, Borrower under this Amendment and
under the Credit Agreement.
§
5.3. Loan
Documents. This Amendment and the other Amendment Documents
are each a Loan Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto and thereto.
§
5.4. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity and
performance.
§
5.5. Counterparts;
Fax. This Amendment may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be duly executed by facsimile or other
electronic transmission.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT 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.
[The
remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
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FFE
TRANSPORTATION SERVICES, INC.,
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as
Borrower
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By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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| Senior Vice President | |
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COMERICA
BANK,
as
a Bank, as Issuing Bank
and
as Administrative Agent
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By: /s/ Xxxxxx X.
Clause
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Xxxxxx
X. Xxxxxx
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Vice
PresidentVice President
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BANK
OF AMERICA, N.A.,
as
a Bank, as Collateral Agent and
as
Syndication Agent
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| By: /s/ Xxxxx X. Xxxxxx | |
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Xxxxx X. Xxxxxx
Senior Vice
President
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EXHIBIT
A
CONSENT
AND AGREEMENT
Each of
the undersigned Guarantors hereby (i) consents to the provisions of this
Amendment and the transactions contemplated herein, (ii) ratifies and
confirms the Amended and Restated Guaranty and Amended and Restated Security
Agreement, each dated as of October 12, 2006, made by them for the benefit of
Bank pursuant to the Credit Agreement, (iii) ratifies and confirms all
other Loan Documents made by them for the benefit of Bank, (iv) agrees that
all of their 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 (v) agrees
that such Guaranty, such Security Agreement and such other Loan Documents shall
remain in full force and effect.
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FROZEN
FOOD EXPRESS INDUSTRIES, INC.
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By: /s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx X. Xxxxxxx
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| Senior Vice President | |
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XXXXXXX
CORPORATION
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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| Secretary | |
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FX
HOLDINGS, INC. (formerly named AIRPRO HOLDINGS, INC.)
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X.
Xxxxxxxxxxx
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| Secretary | |
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XXXX
MOTOR LINES, INC.
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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| Secretary | |
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COMPRESSORS
PLUS, INC.
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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| Secretary | |
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FFE
LOGISTICS, INC.
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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| Secretary | |
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XXXXXXX
LLC
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By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
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Xxxxxxx X.
Xxxxxxxxxxx
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Secretary
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