Exhibit 10.5
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THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT AND LIMITED CONSENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT AND LIMITED CONSENT (this "Amendment"), dated effective as of
December 26, 2001, is 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"), FFE LOGISTICS, INC., a Delaware corporation,
formerly known as AEL TRANSPORTS, INC., a Delaware corporation (herein, "AEL"),
FLEET NATIONAL BANK ("Fleet"), COMERICA BANK - TEXAS ("Comerica"), WELLS
FARGO BANK TEXAS, NATIONAL 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:
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A. Borrower, Parent, FFE, Conwell, W&B, LML, Express, Cartage,
Middleton, CPI, AEL, Fleet (formerly known as BankBoston, N.A.), Wells Fargo
(successor by consolidation to Wells Fargo Bank (Texas), National Association)
and Comerica (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. Borrower and W&B have informed the Banks that, pursuant to the terms
of that certain Asset Purchase Agreement (the "Asset Sale Agreement") dated as
of December 26, 2001, by and between W&B and W&B Newco, L.P., a Texas limited
partnership (the "Purchaser"), W&B intends to, among other things, sell to the
Purchaser the properties and assets of W&B constituting the "Purchased Assets",
as such term is defined therein (the "Assets", and such sale of the Assets in
accordance with the terms of the Asset Sale Agreement being referred to
herein as the "Asset Sale").
C. In consideration for the Assets, the Purchaser intends to (i) pay
cash to W&B, on the closing date of the Asset Sale, of an amount equal to the
"Cash Purchase Price", as such term is defined and more fully described in the
Asset Sale Agreement, provided however, such amount shall not be less than Six
Million Dollars ($6,000,000) (herein, the "Asset Sale Payment"), (ii) issue to
W&B no less than 19.9% of the total outstanding partnership interests of the
Purchaser, and (iii) execute and deliver a promissory note payable to the
order of W&B and made by its terms expressly subordinate to the Purchaser's
obligations to Wells Fargo Business Credit, Inc., a copy of which is attached
hereto as Exhibit A (the "Asset Sale Note").
D. Borrower, W&B and the other Companies have requested that the Banks
consent to the Asset Sale and, in connection therewith, amend the Credit
Agreement in certain respects and the Banks are willing to comply with such
requests subject to the terms and provisions of this Amendment.
NOW, THEREFORE, BE IT RESOLVED, THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
ARTICLE 1
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Definitions
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Section 1.1 Definitions. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as
in the Credit Agreement, as amended hereby.
ARTICLE 2
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Amendments
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Section 2.1 Amendment to Article I. The definition of "Final Maturity
Date" in Article I of the Credit Agreement is amended and restated to read in
its entirety as follows:
"Final Maturity Date" means the later to occur of (a) the
Revolving Credit Commitment Termination Date or (if applicable, and
only if applicable) (b) the "Final Extended Maturity Date", as such
term is defined in Section 2.3(b).
Section 2.2 Amendment to Section 2.3. Section 2.3 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 2.3 Repayment of Loans.
(a) Repayment. Subject to clause (b) of this Section 2.3,
Borrower shall pay to the Agent for the account of each Bank the
outstanding principal amount of all Loans, including without
limitation, Swingline Advances (in the aggregate, such amount
outstanding on the Revolving Credit Commitment Termination Date
being referred to herein as the "Outstanding Loans Amount"), on
the Revolving Credit Commitment Termination Date in a single
installment.
(b) Optional Extended Repayment. Subject to clause (c) of
this Section 2.3, Borrower may, with at least ten (10) days written
notice to the Agent prior to the Revolving Credit Commitment
Termination Date (such notice, the "Extended Repayment Notice"),
pay to the Agent for the account of each Bank the Outstanding Loans
Amount in thirteen (13) consecutive monthly installments (the
date of the final such installment being referred to as the
"Final Extended Maturity Date"), commencing on the first day of
the first month following the Revolving Credit Commitment
Termination Date, each of which installments shall be in an
amount equal to the Outstanding Loans Amount divided by forty-eight
(48). In addition, Borrower shall pay to the Agent for the account
of each Bank the remaining outstanding aggregate principal amount
of the Loans, including Swingline Advances, on the Final Extended
Maturity Date.
(c) Extension Fee; Amendment. Notwithstanding anything to
the contrary, the effectiveness of the Extended Repayment Notice and
clause (b) of this Section 2.3 is subject to the conditions precedent
that (i) the Agent on behalf of each Bank shall have received an
extension fee in an amount equal to each such Bank's pro rata portion
(based on the Commitments of the Banks) of one percent (1.00%) of the
Outstanding Loans Amount on the Revolving Credit Commitment Termination
Date, provided that said fee in the aggregate shall not exceed one
percent (1.00%) of the total Outstanding Loans Amount on the Revolving
Credit Commitment Termination Date and (ii) no Default or Potential
Default shall have occurred and be continuing on the Revolving Credit
Commitment Termination Date. Upon satisfaction of the foregoing
conditions precedent and upon timely delivery of the Extended Repayment
Notice in accordance with the foregoing Section 2.3(b), this Agreement
shall be automatically amended as follows: (i) Clause (iii) of Section
2.4(b) shall be deleted in its entirety and (ii) the chart that is
a part of Section 2.4(b) and the text following such chart shall be
amended and restated to read as follows:
Base Rate LIBOR Rate
Funded Debt to EBITDAR Ratio Margin Margin
----------------------------- --------- ----------
Greater than or equal to 2.75 3.50% 4.75%
Greater than or equal to 2.25 but
less than 2.75 3.25% 4.50%
Greater than or equal to 1.75 but
less than 2.25 3.00% 4.25%
Greater than or equal to 1.25 but
less than 1.75 2.50% 4.00%
Less than 1.25 2.00% 3.50%
Upon delivery of each Quarterly Report pursuant to this Agreement,
the LIBOR Rate Margin (for Interest Periods commencing after the
applicable Adjustment Date) and the Base Rate Margin shall
automatically be adjusted in accordance with the Funded Debt to
EBITDAR Ratio set forth therein and the table set forth above,
such automatic adjustment to take effect as of the first Business
Day after the receipt by the Agent of the related Quarterly Report
(each such Business Day when such margins change pursuant to this
sentence or the next following sentence, herein an "Adjustment Date").
If Parent fails to deliver such Quarterly Report which so sets forth
the Funded Debt to EBITDAR Ratio within the period of time required
by this Agreement or if a Default exists and the Agent provides
notice of the Default to Parent: (i) the LIBOR Rate Margin (for
Interest Periods commencing after the applicable Adjustment Date)
shall automatically be adjusted to four and three-quarters percent
(4.75%) per annum and (ii) the Base Rate Margin shall
automatically be adjusted to three and one-half percent (3.50%),
such automatic adjustments to take effect as of the first Business
Day after the last day on which Parent was required to deliver
the applicable Quarterly Report in accordance with this
Agreement or, in the case of a Default, on the date the written
notice is given to Parent and to remain in effect until
subsequently adjusted in accordance herewith upon the delivery
of such Quarterly Report or, in the case of a Default, when such
Default has been cured to the satisfaction of the Agent or waived
by the Required Banks.
(d) Miscellaneous, etc. If any payment of principal becomes
due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day and interest shall
be payable at the then applicable rate during such extension.
Notwithstanding anything to the contrary, including without limitation,
the effectiveness (if at all) of the Extended Repayment Notice and
Section 2.3(b), the Commitments of the Banks to make Loans and make or
participate in Letter of Credit Liabilities shall terminate on the
Revolving Credit Commitment Termination Date.
Section 2.3 Amendment to Section 2.4(b). The chart that is part of
Section 2.4(b) and the text following such chart in Section 2.4(b) is amended
and restated to read in its entirety as follows:
Base Rate LIBOR Rate Commitment
Funded Debt to EBITDAR Ratio Margin Margin Fee Rate
- ----------------------------- --------- ---------- ----------
Greater than or equal to 2.75 1.50% 2.75% 0.50%
Greater than or equal to 2.25 but
less than 2.75 1.25% 2.50% 0.35%
Greater than or equal to 1.75 but
less than 2.25 1.00% 2.25% 0.25%
Greater than or equal to 1.25 but
less than 1.75 0.50% 2.00% 0.25%
Less than 1.25 0.00% 1.50% 0.20%
Upon delivery of each Quarterly Report pursuant to this
Agreement, commencing with such Quarterly Report delivered as of
the period ending on December 31, 1999, the LIBOR Rate Margin
(for Interest Periods commencing after the applicable Adjustment
Date), the Base Rate Margin and the Commitment Fee Rate shall
automatically be adjusted in accordance with the Funded Debt to
EBITDAR Ratio set forth therein and the table set forth above,
such automatic adjustment to take effect as of the first Business
Day after the receipt by the Agent of the related Quarterly Report
(each such Business Day when such margins or fees change pursuant
to this sentence or the next following sentence, herein an
"Adjustment Date"). If Parent fails to deliver such Quarterly Report
which so sets forth the Funded Debt to EBITDAR Ratio within the period
of time required by this Agreement or if a Default exists and the Agent
provides notice of the Default to Parent: (i) the LIBOR Rate Margin
(for Interest Periods commencing after the applicable Adjustment Date)
shall automatically be adjusted to two and three-quarters percent
(2.75%) per annum; (ii) the Base Rate Margin shall automatically be
adjusted to one and one-half percent (1.50%); and (iii) the Commitment
Fee Rate shall automatically be adjusted to one-half of one percent
(.50%), such automatic adjustments to take effect as of the first
Business Day after the last day on which Parent was required to deliver
the applicable Quarterly Report in accordance with this Agreement or,
in the case of a Default, on the date the written notice is given to
Parent and to remain in effect until subsequently adjusted in accordance
herewith upon the delivery of such Quarterly Report or, in the case of
a Default, when such Default has been cured to the satisfaction of the
Agent or waived by the Required Banks.
Section 2.4 Amendment to Section 4.8. Section 4.8 of the Credit
Agreement is amended and restated to read in its entirety as follows:
Section 4.8 Ownership of the Companies. (i) Parent owns all
of the issued and outstanding capital stock of FFE, Express, Cartage and
Middleton, (ii) FFE owns all of the issued and outstanding capital stock
of Borrower, Conwell, W&B, AEL and Lisa, (iii) W&B owns 19.9% of the
partnership interests of W&B Newco, L.P. a Texas limited partnership,
and is a limited partner of such company, (iv) W&B owns all of the
issued and outstanding capital stock of CPI, and (v) except as
provided in this Section 4.8, none of the Companies has any
Other Subsidiary.
Section 2.5 Amendment to Section 5.2. Section 5.2(a) of the Credit
Agreement is amended and restated to read in its entirety as follows:
(a) Minimum Tangible Net Worth. Permit, as of the last day of
any fiscal quarter, Parent's Consolidated Tangible Net Worth to be less
than the sum of (i) $79,500,000, plus (ii) eighty-five percent (85%) of
its positive, consolidated net income for each fiscal quarter after
December 31, 1999 (i.e., any negative net income for a fiscal quarter
shall not reduce the minimum Consolidated Tangible Net Worth), plus
(iii) one hundred percent (100%) of the net proceeds from any issuances
of equity securities by Parent or other contributions to the capital
equity of Parent, minus (iv) one hundred percent (100%) of the
outstanding principal amount under the "Asset Sale Note" as such
term is defined in the Third Amendment to Second Amended and Restated
Credit Agreement and Limited Consent dated effective as of December__,
2001, by and among the Companies, the Agent and the Banks.
Section 2.6 Amendment to Schedules. Schedules 1.1, 4.3, 4.9 and 4.11
of the Credit Agreement are amended and restated to read in their respective
entireties as set forth on Schedules 1.1, 4.3, 4.9 and 4.11 to this Amendment.
Section 2.7 Amendment to Exhibit E. Exhibit E of the Credit Agreement
is amended and restated to read in its entirety as set forth in Exhibit "E"
to this Amendment.
ARTICLE 3
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Limited Consent and Release
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Section 3.1 Consent. Subject to the terms of this Amendment,
including without limitation, the satisfaction of the conditions precedent
set forth in Article 4, the Banks hereby consent to (a) W&B changing its name
to AirPro Holdings, Inc., a Delaware corporation, subsequent to the effective
date of this Amendment and AEL having changed its name to FFE Logistics, Inc.,
a Delaware corporation, prior to the effective date of this Amendment
(together, the "Name Changes") provided that, W&B and AEL shall promptly take
all action reasonably deemed necessary or desirable by Agent to protect
Agent's Liens with the perfection and priority thereof required by the Loan
Papers, and (b) the Asset Sale in accordance with the terms of the Asset Sale
Agreement, provided, that (i) the Asset Sale Agreement must be in form and
substance reasonably satisfactory to the Agent, (ii) the Asset Sale must be
completed on terms satisfactory to Agent in its sole discretion, including
without limitation, for an aggregate consideration in an amount no less than
the greater of (A) $11,000,000 or (B) the book value of the Assets; (iii) the
Asset Sale must be completed by no later than January 15, 2002, (iv) the
Asset Sale Payment must not be less than Six Million Dollars ($6,000,000),
(v) upon consummation of the Asset Sale and at all times thereafter, (A) W&B
must own and continue to own all of the issued and outstanding capital stock
of CPI, (B) Borrower must own and continue to own all of the issued and
outstanding capital stock of W&B, and (C) W&B must own and continue to own
no less than 19.9% of the partnership interests of the Purchaser and must be
a limited partner of such company. The consents given in this Section 3.1
are given only to the limited extent necessary to consent to and permit the
Name Changes and the Asset Sale upon the terms and conditions set forth herein.
Section 3.2 Limitation of Consent. Each consent granted in Section 3.1
of this Amendment shall be limited strictly as written and shall not be deemed
to constitute a waiver of, or any consent to noncompliance with, any term or
provision of any Loan Paper except as expressly set forth herein. Further,
neither consent granted in Section 3.1 of this Amendment shall constitute a
waiver of any Default arising as a result of the violation of any other term
or provision of any Loan Paper, or a waiver of any rights or remedies arising
as a result of any such Default.
Section 3.3 Release. Subject to terms of this Amendment, including
without limitation, the satisfaction of the conditions precedent set forth in
Article 4 and the following proviso, Agent and the Banks hereby release their
Liens against the Assets; provided, however, that Agent and the Banks do not
hereby release their Liens on any proceeds (including, without limitation,
the Asset Sale Payment, the Asset Sale Note and any other cash or non-cash
proceeds) of the Assets received by any Company in connection with the Asset
Sale or otherwise. In connection therewith, Agent and each of the Banks
agrees to execute such UCC-3 partial releases or other release agreements as
may be reasonably requested by Borrower or W&B as necessary to further
evidence such Lien release under this Agreement.
ARTICLE 4
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Conditions Precedent
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Section 4.1 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 reasonably satisfactory to Agent and the Banks:
(i) Resolutions. Resolutions of the Board of Directors
(or other similar authorizing documents) of Borrower and each
other Company certified by its Secretary, an Assistant Secretary,
or another authorized Person which authorize its execution,
delivery, and performance of this Amendment and the Loan Papers
to which it is or is to be a party hereunder;
(ii) Incumbency Certificate. A certificate of incumbency
certified by the Secretary, an Assistant Secretary or other
authorized Person of Borrower and each other Company certifying
the names of its representatives who are authorized to sign this
Amendment and the Loan Papers to which it is or is to be a party
hereunder (including the certificates contemplated herein)
together with specimen signatures of each such officers;
(iii) Articles of Incorporation. The articles of
incorporation, articles of organization, certificate of limited
partnership or similar governing document, as applicable of the
Borrower and each other Company certified by the Secretary of
State of the State of its incorporation or organization (or the
other appropriate governmental officials of its jurisdiction of
organization) and dated a current date;
(iv) Bylaws. The bylaws of Borrower and each other Company
certified by its Secretary or an Assistant Secretary;
(v) Governmental Certificates. Certificates of the
appropriate government officials of the state of incorporation
of Borrower and each other Company as to its existence and good
standing;
(vi) Amendment. An original counterpart of this Amendment;
(vii) Asset Sale Note. The original Asset Sale Note
endorsed by W&B in favor of Agent;
(viii) Completion of Asset Sale. Evidence of the
completion of the Asset Sale on terms satisfactory to Agent in
its sole discretion, including without limitation, for an
aggregate consideration in an amount equal to the greater of
(A) $11,000,000 or (B) the book value of the Assets;
(ix) Amendment to Security Agreements. An Amendment to
that certain Amended and Restated Security Agreement dated as
of April 6, 2001, by and among Agent and the Companies, in form
and substance satisfactory to Agent, evidencing, among other
things, a Lien granted by W&B to Agent and the Banks in and to
the Asset Sale Note;
(x) Asset Sale Agreement. A copy of the Asset Sale
Agreement in form and substance reasonably satisfactory to Agent;
(xi) Asset Sale Payment. Evidence of the irrevocable payment
in full by the Purchaser to W&B of the Asset Sale Payment;
(xii)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 and the Banks shall have received all fees and
expenses payable to them under Section 6.3 of this Amendment and all
other fees and expenses payable to Agent and the Banks on or before the
date of this Amendment, including without limitation, (i) an amendment
and consent fee to each Bank party to this Amendment in an amount equal
to its pro rata portion (based on the Commitments of such Banks) of
$50,000, and (ii) the reasonable fees, costs and expenses of the Agent's
legal counsel, Jenkens & Gilchrist, a Professional corporation;
(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 5
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Ratifications; Representations and Warranties
---------------------------------------------
Section 5.1 General Ratification. 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 Further Consent, Ratification and Reaffirmation.
Notwithstanding anything to the contrary contained in any Loan Paper, including
without limitation, in any Security Agreement or Guaranty Agreement, each of
the Companies, jointly and severally, hereby (a) consents to and approves of
the terms of this Amendment, (b) reaffirms that, after giving effect to the
Amendment, all of its representations and warranties made in the Loan Papers
to which it is a party remain true and correct as of the date of this
Amendment (except to the extent that any such representations or warranties
are expressly made only as of another specific date), (c) confirms, ratifies
and reaffirms all of its covenants, agreements, indebtedness, liabilities
and obligations under the Loan Papers to which it is a party, which include,
without limitation, the grant of Liens in all of such party's interests in the
Collateral owned by it as security for the payment and performance of the
Obligations, (d) agrees that the Loan Papers to which it is a party shall and
do remain in full force and effect, (e) reaffirms all of the other terms of
the Loan Papers to which it is a party, (f) agrees that the Loan Papers to
which it is a party shall and do continue to constitute the legal, valid and
binding obligations of such party, enforceable against it in accordance with
the terms of such Loan Papers and that such obligations shall not be and have
not been discharged, diminished or affected by any modification, extension,
forbearance, renewal or amendment of the terms of the Credit Agreement or the
other Loan Papers (including, without limitation, the release by Agent and the
Banks of their Liens on the Assets as set forth in Section 3.3) except as
specifically set forth therein, and (g) agrees and acknowledges that there are
no defenses, counterclaims or set-offs to the Loan Papers to which it is a
party or its covenants, agreements, indebtedness, liabilities and obligations
under such Loan Papers, and agrees that any (if any) such defenses,
counterclaims or set-offs are hereby expressly waived, and (h) agrees and
acknowledges that no consent by such party is required for the effectiveness
of any future modification, extension, forbearance, renewal or amendment or
any other action with respect to the Loans, the Collateral, the Credit
Agreement or any of the other Loan Papers.
Section 5.3 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 6
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Miscellaneous Provisions
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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 shall 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 Consent or 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 of Claims. EACH COMPANY HEREBY ACKNOWLEDGES
THAT AT THIS TIME 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 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" thereto, 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, the parties hereto have executed and delivered this
Amendment effective as of the date first written above.
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/ T. G. Yetter
---------------------------------------
Name: T. G. Yetter
------------------------------------
Title: Vice President
------------------------------------
OTHER BANKS:
------------
COMERICA BANK - TEXAS
By: /s/ Donald P. Hellman
----------------------------------------
Name: Donald P. Hellman
-------------------------------------
Title: Senior Vice President
-------------------------------------
FLEET NATIONAL BANK
By: /s/ Jeffrey G. Millman
----------------------------------------
Name: Jeffrey G. Millman
-------------------------------------
Title: Director
-------------------------------------
OTHER COMPANIES:
----------------
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By: /s/ T. G. Yetter
---------------------------------------
Name: T. G. Yetter
------------------------------------
Title: Treasurer
------------------------------------
FFE, INC.
By: /s/ T. G. Yetter
---------------------------------------
Name: T. G. Yetter
------------------------------------
Title: Vice President
------------------------------------
CONWELL CORPORATION
By: /s/ T. G. Yetter
---------------------------------------
Name: T. 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/ Leonard W. Bartholomew
---------------------------------------
Name: Leonard W. Bartholomew
------------------------------------
Title: Secretary
-----------------------------------
FROZEN FOOD EXPRESS, INC.
By: /s/ F. D. McElwee, Jr.
-------------------------------------
Name: F. D. McElwee, Jr.
----------------------------------
Title: Vice President
----------------------------------
CONWELL CARTAGE, INC.
By: /s/ Leonard W. Bartholomew
----------------------------------------
Name: Leonard 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/ Leonard W. Bartholomew
----------------------------------------
Name: Leonard W. Bartholomew
------------------------------------
Title: Secretary
------------------------------------
FFE LOGISTICS, INC.,
formerly known as AEL Transports, Inc.
By: /s/ Leonard W. Bartholomew
----------------------------------------
Name: Leonard W. Bartholomew
------------------------------------
Title: Secretary
------------------------------------