Exhibit 10.1
SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is entered into as of April ___, 2001, by
and among FFE TRANSPORTATION SERVICES, INC., a Delaware corporation
("Borrower"), FROZEN FOOD EXPRESS INDUSTRIES, INC., a Texas corporation
("Parent"), FFE, INC., a Delaware corporation ("FFE"), CONWELL
CORPORATION, a Delaware corporation ("Conwell"), W & B REFRIGERATION
SERVICE COMPANY, a Delaware corporation ("W&B"), LISA MOTOR LINES, INC.,
a Delaware corporation ("LML"), FROZEN FOOD EXPRESS, INC., a Texas
corporation ("Express"), CONWELL CARTAGE, INC., a Texas corporation
("Cartage"), MIDDLETON TRANSPORTATION COMPANY, a Texas corporation
("Middleton"), COMPRESSORS PLUS, INC., a Texas corporation ("CPI"), AEL
TRANSPORTS, INC., a Delaware corporation ("AEL"), FLEET NATIONAL BANK
(formerly known as BANKBOSTON, N.A.) ("Fleet"), a national banking
association, COMERICA BANK ("Comerica"), WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION (successor by consolidation to Wells Fargo Bank (Texas),
National Association), a national banking association ("Wells Fargo"),
each other entity which may from time to time become party hereto as a
lender hereunder or any successor or assignee thereof (collectively,
other than the Companies, the "Banks") and Wells Fargo as agent for the
Banks (in such capacity, "Agent")
RECITALS
A. Borrower, Parent, FFE, Conwell, W&B, LML, Express, Cartage,
Middleton, CPI, AEL, Fleet, Wells Fargo and Comerica (as successor by
assignment from Chase Bank of Texas, National Association) are parties to
that certain Second Amended and Restated Credit Agreement, dated as of
March 1, 2000 (as the same has been and may be further amended, restated
or otherwise modified from time to time, the "Credit Agreement").
B. Pursuant to the written request of Fleet National Bank, the
Banks have exercised their option under Section 5.1(q)(ii)(A) of the
Credit Agreement.
C. In connection with the Banks' exercising their option under
Section 5.1(q)(ii)(A) of the Credit Agreement, the parties to the Credit
Agreement desire to amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
ARTICLE I
Definitions
Section 1.1 Terms that are used in this Amendment and that are
defined in the Credit Agreement are used herein as defined therein,
unless otherwise stated.
ARTICLE II
Amendments
Section 2.1 Amendment to Definition of "Borrowing Base". As of
the date of this Amendment, the Credit Agreement is amended as follows:
The definition of "Borrowing Base" in Article I of the Credit Agreement
is amended and restated to read in its entirety as follows:
"Borrowing Base" means the sum of (i) an amount equal
to ninety percent (90%) of the Net Book Value of Vehicles
that are not subject to any Lien other than Liens in favor
of Agent and the Banks, plus (ii) eighty percent (80%) of
the aggregate Eligible Accounts; all calculated in
accordance with GAAP based upon consolidated financial
information of Parent and the Subsidiaries, provided,
however, that none of the trucks, tractors, trailers,
buses, passenger cars, and other automotive vehicles
(including, without limitation, any Vehicles) owned or held
for sale or lease by W&B shall be included in the
calculation of the Borrowing Base. The Borrowing Base
shall be determined by Agent from time to time in its good
faith judgment.
Section 2.2 Addition of Definition of "Hedge Agreement". As of
the date of this Amendment, the Credit Agreement is amended as follows:
Article I of the Credit Agreement is amended to add the following
definition of "Hedge Agreement" to read in its entirety as follows:
"Hedge Agreement" means, with respect to Borrower or
any other Company, any and all transactions, agreements,
documents, or arrangements between Borrower or any other
Company and one or more Banks, now existing or hereafter
entered into, which provide for an interest rate, credit,
commodity, or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency
rate swap, currency option, or any combination of, or
option with respect to, these or other similar
transactions, for the purpose of hedging exposure to
fluctuations in interest or exchange rates, loan, credit
exchange, security, or currency valuations, or commodity
prices or other similar risks.
Section 2.3 Amendment to Definition of "Loan Papers". As of the
date of this Amendment, the Credit Agreement is amended as follows: The
definition of "Loan Papers" in Article I of the Credit Agreement is
amended and restated to read in its entirety as follows:
"Loan Papers" means this Agreement, the Notes, the
Guaranty Agreements, the Custodial Agreement and any and
all certificates, mortgages, deeds of trust, security
agreements and other documents and agreements executed
and/or delivered in connection with the making of Loans or
the issuing of Letters of Credit or otherwise pursuant to
the terms of this Agreement and any future amendments and
supplements thereto and restatements thereof. The
"Custodial Agreement" means that certain Custodial
Agreement dated as of April ___, 2001, between Agent and
Parent, as the "Custodial Agent" thereunder, as agreed and
consented to by the Subsidiaries of Parent (including,
without limitation, Borrower) and as such agreement may be
amended or otherwise modified from time to time.
Section 2.4 Amendment to Definition of "Obligations". The
definition of "Obligations" in Article I of the Credit Agreement
is amended and restated to read in its entirety as follows:
"Obligations" means all present and future
indebtedness, obligations and liabilities, and all renewals
and extensions thereof, or any part thereof, of Borrower or
any other Company to Agent and/or any one or more of the
Banks and created or evidenced by or existing or arising
out of or pursuant to this Agreement, the Revolving Credit
Notes, the Swingline Note, any one or more of the other
Loan Papers (including, without limitation, the Principal
Obligation, the Reimbursement Obligation arising pursuant
to any Letters of Credit, and all other indebtedness,
obligations, fees and liabilities arising pursuant to this
Agreement, or otherwise) and pursuant to or under any Hedge
Agreement that Borrower or any other Company may enter into
with the express written consent of Agent and the Required
Banks, and all interest accruing thereon and costs,
expenses and attorneys' fees incurred in the enforcement or
collection thereof, regardless of whether such
indebtedness, obligations and liabilities are direct,
indirect, fixed, contingent, liquidated, unliquidated,
joint, several, or joint and several, including, but not
limited to, the obligations and liabilities arising
pursuant to any of the Loan Papers or Hedge Agreements, and
all renewals and extensions thereof, or any part thereof,
and all present and future amendments thereto.
Section 2.5 Amendment to Definition of "Vehicles". The
definition of "Vehicles" in Article I of the Credit Agreement
is amended and restated to read in its entirety as follows:
"Vehicles" means any and all of the following,
whether now owned or hereafter acquired by Parent,
Borrower, or any Subsidiary: (i) all trucks, tractors,
trailers, buses, passenger cars, and other similar units
and automotive vehicles registered in accordance with any
Law for public roadway use in the operation of Parent's,
Borrower's or any Subsidiary's motor carrier business, and
(ii) all related equipment and accessories to any such
Vehicles intended for permanent attachment to such
Vehicles, including, without limitation, all refrigeration
units, tires and tubes; provided, that "Vehicles" shall not
include any such property described in the foregoing
clauses (i) and (ii) that (x) is leased to any Company by
any Person other than another Company, (y) is a vehicle
which is intended for use, and is in fact used, solely on
location at Parent's, Borrower's or any Subsidiary's place
of business (commonly known as "yard hosses"), provided,
however, that the aggregate fair market value of all such
vehicles shall not at any time exceed $100,000, or (z)
constitutes "inventory" as such term is defined in Chapter
or Article 9 of the Code, provided, however, that any
property that at any time constitutes a Vehicle without
giving effect to the foregoing clause (z), but later
constitutes "inventory" as such term is defined in Chapter
or Article 9 of the Code, shall nevertheless continue to be
subject to the provisions of Section 4.2(b) of that certain
Amended and Restated Security Agreement dated as of April
__, 2001, by and among Borrower, Parent, the Subsidiaries
and Agent for and on behalf of the Banks and shall continue
to constitute a Vehicle for such purposes.
Section 2.6 Amendment to Section 2.7(b). Section 2.7(b) of the
Credit Agreement is amended and restated to read in its entirety
as follows:
(b) Vehicle Sales. Borrower shall prepay the
outstanding Loans in an amount equal to the Net Book Value
of any Vehicle that is disposed of after a Default or
Potential Default has occurred and is continuing.
Section 2.7 Amendment to Section 2.15. Section 2.15 of the
Credit Agreement is amended and restated in its entirety to read as
follows:
Section 2.15 Method of Payment. All payments of
principal, interest, fees and other amounts to be made by
Borrower, Parent or any Subsidiary under this Agreement or
any other Loan Paper shall be made via wire transfer of
funds to Agent c/o Wells Fargo Bank, NA, San Francisco,
California, ABA # 1210-00248, for Account No. 4518-151444,
Payee Name Syndic/WFBCORP/FFE Transportation; Reference:
FFE Transportation, for the account of each Bank's
Applicable Lending Office in Dollars and in immediately
available funds, without setoff, deduction or counterclaim,
not later than 12:00 noon (Dallas, Texas time) on the date
on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). Borrower
or such other Person shall, at the time of making each such
payment, specify to Agent the sums payable by such Person
under this Agreement or the other Loan Document to which
each such payment is to be applied (and in the event that
such Person fails to so specify, or if an Default has
occurred and is continuing or if a Potential Default would
exist after the making of such payment, Agent may apply
such payment to such Person's Loans, Reimbursement
Obligations and other Obligations in such order and manner
as Agent may elect, subject to Section 2.16). Upon the
occurrence and during the continuation of a Default, all
proceeds of any Collateral and all other funds of Borrower,
Parent or any Subsidiary in the possession of Agent or any
Bank may be applied by Agent to the Obligations in such
order and manner as Agent may elect, subject to the
provisions of Section 2.16. Notwithstanding the foregoing,
if a Default has occurred and is continuing, Agent and the
Banks agree among themselves that all such payments,
proceeds and funds, shall be applied (or, in the case of
Letter of Credit Liabilities consisting of the undrawn face
amount of Letters of Credit, held by Agent as cash
collateral for application against) pro rata to the unpaid
Obligations then due. Each payment received by Agent under
this Agreement or any other Loan Paper for the account of a
Bank shall be paid promptly to such Bank, in immediately
available funds, for the account of such Bank's Applicable
Lending Office. Whenever any payment under this Agreement
or any other Loan Paper shall be stated to be due on a day
that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time
shall in such case be included in the computation of the
payment of interest and commitment fee, as the case may be.
Section 2.8 Amendments to Section 5.1. Section 5.1 of the Credit
Agreement is hereby amended as follows:
(i) Clause (l) is hereby amended and restated to read in
its entirety as follows:
(l) Borrowing Base Reports and Inspections.
Deliver to each Bank, concurrently with the delivery
of the Financial Statements under Subsection 5.1(a)
and the Financial Statements under Subsection 5.1(b),
a Borrowing Base Report dated as of the end of the
immediately preceding calendar quarter. In addition,
no more than once per calendar quarter per Company,
each Company shall permit Agent, accompanied by any
Bank which so elects (or any representative of Agent
or any such Bank), at any reasonable time during
regular business hours after prior written notice and
at the sole reasonable cost and expense of Borrower in
each case, to have access to, examine, audit, make
extracts from or copies of, and inspect any or all of
Borrower's or any other Company's property, records,
files, books of account, and documents relating to,
evidencing or constituting any part of the Borrowing
Base (each a "Borrowing Base Inspection"); provided,
that a Borrowing Base Inspection may be made at any
time without restriction when a Potential Default or
Default exists; and provided further, that in making
any Borrowing Base Inspection, whether or not a
Potential Default or Default exists, Agent shall in
good faith endeavor to comply with each Company's
reasonable standard procedures relating to the
security and confidentiality of such property,
records, files, books of account and documents.
(ii) Clause (q) is hereby amended by deleting clause (iii)
therein in its entirety.
(iii)the following clause (s) is added thereto immediately
following clause (r):
(s) Vehicle Reports. Within forty-five
(45) days after the end of each fiscal quarter, or
after otherwise being requested by Agent from time to
time, a list certified by Borrower and an officer of
Parent as being true and correct, to the best of such
officer's knowledge, and identifying in a form
acceptable to Agent all Vehicles owned as of such
fiscal quarter end, the identity of the owner of each
such Vehicle and all Vehicles acquired or disposed of
during the fiscal quarter then ended and, with respect
to each Vehicle owned as of such fiscal quarter end, a
description of such Vehicle and its Initial Cost and
Net Book Value, and, with respect to each Vehicle
disposed of, the Net Book Value of such Vehicle.
Section 2.9 Amendment to Section 5.2(f). Section 5.2(f) of the
Credit Agreement is hereby amended and restated in its entirety to read
as follows:
(f) Indebtedness. Assume, create or suffer to exist
any Indebtedness except (i) Indebtedness owed to the Banks
pursuant to this Agreement, (ii) additional Indebtedness not
for borrowed money incurred in the ordinary course of
business constituting trade payables and accrued
liabilities, including, without limitation, accrued Taxes
and payroll obligations, (iii) Existing Indebtedness, (iv)
Indebtedness under Hedge Agreements and (v) additional
Indebtedness for borrowed money incurred in the ordinary
course of business not to exceed at any time $1,000,000 in
aggregate amount with respect to all Companies.
Section 2.10 Amendment to Section 5.2(g). Section 5.2(g) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(g) Sales of Assets. Be a party to any sale,
transfer, or other disposition of all or any substantial
part of Borrower's or any other Company's property, assets
or business, and in any event will not sell, transfer or
otherwise dispose of any of Parent's interest in the
Subsidiaries (including, without limitation, any of the
stock of the Subsidiaries); provided, however, that neither
Borrower nor any other Company may sell, transfer, or
dispose of any Vehicle except in compliance with that
certain Amended and Restated Security Agreement dated as of
April ____, 2001 by and among Borrower, Parent, the
Subsidiaries, Agent and the Banks.
Section 2.10 Amendment to Schedule 4.3. Schedule 4.3 to the
Credit Agreement is hereby amended and restated in its entirety as
set forth in Schedule 4.3 attached to this Amendment.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent:
(a) Agent shall have received all of the following, each
dated (unless otherwise indicated) the date of this Amendment,
fully executed and in form and substance satisfactory to the
Agent and the Banks:
(i) Amended and Restated Security Agreement. An
Amended and Restated Security Agreement in the form of
Exhibit A hereto;
(ii) Custodial Agreement. A Custodial Agreement in
the form of Exhibit B hereto;
(iii) Vehicles. A list certified by Borrower and an
authorized officer of Parent as being true and correct, to
the best of such officer's knowledge, identifying all
Vehicles owned by Parent or any of the Subsidiaries as of
the date of this Amendment, along with the identity of the
owner of each such Vehicle and each such Vehicle's Initial
Cost and Net Book Value; and
(iv) Additional Information. Such additional
documentation and information as Agent may reasonably
request; and
(b) The representations and warranties contained herein and in all
other Loan Papers, as amended hereby, shall be true and correct
in all material respects as of the date hereof as if made on
the date hereof, except for such representations and warranties
limited by their terms to a specific date;
(c) Agent shall have received all fees and expenses
payable to it under Section 6.3 of this Amendment and all other
fees and expenses payable to Agent on or before the date of this
Amendment.
(d) No Potential Default or Default shall have occurred
and be continuing; and
(e) All proceedings taken in connection with the
transactions contemplated by this Amendment and all documentation
and other legal matters incident thereto shall be reasonably
satisfactory to Agent and each Bank.
ARTICLE IV
No Waiver
Section 4.1 Except as otherwise specifically provided for in this
Amendment, nothing contained herein shall be construed as a waiver by
Agent or the Banks of any covenant or provision of the Credit Agreement,
the other Loan Papers, this Amendment, or of any other contract or
instrument between any Company, Agent and/or the Banks, and the failure
of Agent or the Banks at any time or times hereafter to require strict
performance by Borrower of any provision thereof shall not waive, affect
or diminish any right of Agent or the Banks to thereafter demand strict
compliance therewith. Agent and the Banks hereby reserve all rights
granted under the Credit Agreement, the other Loan Papers, this
Amendment and any other contract or instrument between any Company,
Agent and/or the Banks.
ARTICLE V
Ratifications; Representations and Warranties
Section 5.1 Ratifications. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Credit Agreement and the other Loan Papers,
and, except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement and the other Loan Papers
are ratified and confirmed and shall continue in full force and effect.
The Companies, Agent and the Banks agree that the Credit Agreement and
the other Loan Papers, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms.
Section 5.2 Representations and Warranties. Borrower and each
other Company jointly and severally represent and warrant to Agent and
the Banks that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Papers executed and/or delivered in
connection herewith have been authorized by all requisite corporate
action on the part of the Companies and will not violate the Articles of
Incorporation or Bylaws of any Company; (b) the representations and
warranties contained in the Credit Agreement, as amended hereby, and
other Loan Papers are true and correct on and as of the date hereof and
on and as of the date of execution hereof as though made on and as of
each such date; (c) no Default under the Credit Agreement, as amended
hereby, has occurred and is continuing, unless such Default has been
specifically waived in writing by Agent and the Required Banks; (d) each
Company is in full compliance with all covenants and agreements
applicable to it contained in the Credit Agreement and the other Loan
Papers, as amended hereby; and (e) none of the Companies have amended or
rescinded or otherwise modified its resolutions attached to the
Corporate Certificate delivered by such Company to Agent on
March 1, 2000, in connection with the closing of the Credit Agreement.
ARTICLE VI
Miscellaneous Provisions
Section 6.1 Survival of Representations and Warranties. All
representations and warranties made in the Credit Agreement and any
other Loan Papers, including, without limitation, the documents
furnished in connection with this Amendment, shall survive the execution
and delivery of this Amendment and the other Loan Papers, and no
investigation by Agent or the Banks shsall affect the representations
and warranties or the right of Agent or the Banks to rely upon them.
Section 6.2 Reference to Credit Agreement. Each of the Credit
Agreement and the other Loan Papers, 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 the Credit Agreement and such other Loan Papers to the Credit
Agreement shall mean a reference to the Credit Agreement as amended
hereby.
Section 6.3 Expenses of Agent and the Banks. As provided in the
Credit Agreement, the Companies agree to pay on demand all reasonable
costs and expenses incurred by Agent and the Banks in connection with
the preparation, negotiation, and execution of this Amendment and the
other Loan Papers executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation,
the reasonable costs and fees of Agent's legal counsel, and all
reasonable costs and expenses incurred by Agent in connection with the
enforcement or preservation of any rights under the Credit Agreement,
as amended hereby, or any other Loan Papers, including, without
limitation, the costs and fees of Agent's and the Banks, legal counsel.
Section 6.4 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.
Section 6.5 Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of Agent, the Banks, Borrower and
the other Companies and their respective successors and assigns, except
that Borrower and the other Companies may not assign or transfer any
of their rights or obligations hereunder without the prior written
consent of Agent and the Banks.
Section 6.6 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.
Section 6.7 Effect of Waiver. No consent or waiver, express or
implied, by Agent or the Banks to or for any breach of or deviation from
any covenant or condition by Borrower or any other Company shall be
deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
Section 6.8 Headings. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect
the interpretation of this Amendment.
Section 6.9 Applicable Law. THIS AMENDMENT AND ALL OTHER LOAN
PAPERS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO
BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS. CHAPTER 346 OF THE TEXAS FINANCE
CODE SHALL NOT APPLY TO THE REVOLVING CREDIT LOANS.
Section 6.10 Final Agreement. THE CREDIT AGREEMENT AND THE OTHER
LOAN PAPERS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS
AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE OTHER LOAN PAPERS,
AS AMENDED HEREBY, 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. NO MODIFICATION,
RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY AN
AUTHORIZED OFFICER OF EACH COMPANY AND EACH OF THE REQUIRED BANKS.
Section 6.11 Release. EACH COMPANY HEREBY ACKNOWLEDGES THAT IT
HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND
OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE "OBLIGATIONS"
OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM
AGENT OR THE BANKS, EACH COMPANY HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES AGENT AND THE BANKS, THEIR PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE
OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH
SUCH COMPANY MAY NOW OR HEREAFTER -HAVE AGAINST AGENT AND/OR THE
BANKS, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
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 LOANS, 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 LOAN AGREEMENT OR OTHER AGREEMENTS,
AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
Section 6.12 Guarantor Consent and Ratification. Each of the
Companies, other than Borrower, jointly and severally, hereby consents
to the terms of this Amendment, confirms and ratifies the terms of
each of the other Loan Papers to which it is a party, including the
Guaranty Agreement, and acknowledges that each of the other Loan Papers
to which it is a party, including the Guaranty Agreement, is in full
force and effect on the date executed, that as of the date hereof it
has no defense, counterclaim, set-off or any other claim to diminish
its liability under such document(s), and that no consent by him/it
is required for the effectiveness of any future amendment, modification,
forbearance or other action with respect to the Loans, the Collateral,
the Credit Agreement or any of the other Loan Papers.
Section 6.13 Agreement for Binding Arbitration. Each party to
this Amendment hereby acknowledges that it has agreed to be bound by the
terms and provisions of the Arbitration Program, a copy of which is
attached to the Credit Agreement as Exhibit H, and which is incorporated
by reference herein and is acknowledged as received by the parties
pursuant to which any and all disputes shall be resolved by mandatory
binding arbitration upon the request of any party.
IN WITNESS WHEREOF, this Amendment has been executed and is
effective as of the date first above written.
AGENT:
WELLS FARGO BANK TEXAS, NATIONAL ASSOCIATION,
successor by consolidation to Wells Fargo Bank
(Texas), National Association,
Individually and as Agent
By: /s/Daniel T. Brown
----------------------
Name: Daniel T. Brown
Title: Vice President
BORROWER:
FFE TRANSPORTATION SERVICES, INC.
By: /s/Thomas G. Yetter
------------------------
Name: Thomas G. Yetter
Title: Vice President - Finance
OTHER BANKS:
COMERICA BANK
By: /s/ Donald P. Hellman
------------------------
Name: Donald P. Hellman
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Katherine A. Brand
------------------------
Name: Katherine A. Brand
Title: Vice President
OTHER COMPANIES:
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By: /s/ Thomas G. Yetter
-----------------------
Name: Thomas G. Yetter
Title: Treasurer
FFE, INC.
By: /s/ Thomas G. Yetter
-------------------------
Name: Thomas G. Yetter
Title: Vice President
CONWELL CORPORATION
By: /s/ Thomas G. Yetter
-------------------------
Name: Thomas G. Yetter
Title: Vice President
W & B REFRIGERATION SERVICE COMPANY
By: /s/ F. Dixon McElwee, Jr.
-------------------------
Name: F. Dixon McElwee, Jr.
Title: Vice President
LISA MOTOR LINES, INC.
By: /s/ L. W. Bartholomew
--------------------------
Name: L. W. Bartholomew
Title: Secretary
FROZEN FOOD EXPRESS, INC.
By: /s/ F. Dixon McElwee, Jr.
--------------------------
Name: F. Dixon McElwee, Jr.
Title: Vice President
CONWELL CARTAGE, INC.
By: /s/ L. W. Bartholomew
--------------------------
Name: L. W. Bartholomew
Title: Secretary
MIDDLETON TRANSPORTATION COMPANY
By: /s/ F. Dixon McElwee, Jr.
---------------------------
Name: F. Dixon McElwee, Jr.
Title: Vice President
COMPRESSORS PLUS, INC.
By: /s/ L. W. Bartholomew
---------------------------
Name: L. W. Bartholomew
Title: Secretary