THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Third Amendment"), dated as of May 31, 1996, is entered into
among AMERICAN FREIGHTWAYS CORPORATION, an Arkansas corporation
("AFC"), AMERICAN FREIGHTWAYS, INC., an Arkansas corporation
("AFI"; AFC and AFI are referred to collectively as the "Companies"
and individually as a "Company"), the banks listed on the signature
pages hereof (the "Lenders"), NATIONSBANK OF TEXAS, N.A., in its
capacity as agent (in said capacity, the "Agent").
BACKGROUND
A. Companies, Lenders and Agent heretofore entered into that
certain Amended and Restated Credit Agreement, dated as of
October 20, 1994, as amended by that certain First Amendment to
Amended and Restated Credit Agreement, dated as of May 31, 1995,
and that certain Second Amendment to Amended and Restated Credit
Agreement, dated as of March 26, 1996 (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. Companies, Lenders and Agent desire to amend the Credit
Agreement to (i) add ABN-AMRO Bank N.V., Houston Agency ("ABN-
AMRO"), Credit Lyonnais New York Branch ("Credit Lyonnais"), and
The First National Bank of Chicago ("First Chicago") as Lenders
thereto, (ii) increase the Commitment, (iii) extend the Maturity
Date and (iv) make certain other changes therein.
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, Companies, Lenders and Agent covenant and agree as
follows:
1. AMENDMENTS.
(a) The amount of "$125,000,000" set forth in the
introductory paragraph of the Credit Agreement is hereby amended to
be "$175,000,000".
(b) The definition of "Commitment" set forth in Article I of
the Credit Agreement is hereby amended to read as follows:
(c) "'Commitment' means $175,000,000, as reduced
from time to time pursuant to Section 2.04 hereof."
(d) The definition of "Maturity Date" set forth in Article I
of the Credit Agreement is hereby amended to read as follows:
"'Maturity Date' means April 1, 2001, or such
earlier date the Obligation becomes due and payable
(whether by acceleration, prepayment in full or
otherwise) or such later date as extended pursuant to
Section 2.12."
(e) Section 2.02(a) of the Credit Agreement is hereby amended
by deleting the word "two" on the last line thereof on page 13 of
the Credit Agreement and inserting the word "three" in lieu
thereof.
(f) Section 6.01(c) of the Credit Agreement is hereby amended
by amending the parenthetical clause that begins on the third line
thereof to read as follows:
"(or any obligation in respect of a letter of
credit, any Capitalized Lease Obligation, any obligation
under a conditional sale or other title retention
agreement, any obligation issued or assumed as full or
partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of
credit)"
(g) The Specified Percentage of (i) ABN-AMRO is
indicated beside its name on the signature pages hereof,
(ii) Credit Lyonnais is indicated beside its name on the
signature pages hereof, (iii) First Chicago is indicated
beside its name on the signature pages hereof and (iv) each
other Lender is amended to be the percentage beside each such
Lender's name on the signature pages hereof.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, each Company represents and
warrants that, as of the date hereof and after giving effect to the
amendments contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the
Credit Agreement 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) each Company has full power and authority to execute and
deliver this Third Amendment, the $50,000,000 replacement
Promissory Note payable to the order of NationsBank of Texas, N.A.
(the "NationsBank Note"), the $35,000,000 replacement Promissory
Note payable to the order of Texas Commerce Bank National
Association (the "Texas Commerce Note"), the $25,000,000
replacement Promissory Note payable to the order of Wachovia Bank
of Georgia, N.A. (the "Wachovia Note"), the $25,000,000 Promissory
Note payable to the order of ABN-AMRO (the "ABN-AMRO Note"), the
$15,000,000 Promissory Note payable to the order of Credit Lyonnais
(the "Credit Lyonnais Note") and the $25,000,000 Promissory Note
payable to the order of First Chicago (the "First Chicago Note")
(the NationsBank Note, the Texas Commerce Note, the Wachovia Note,
the ABN-AMRO Note, the Credit Lyonnais Note and the First Chicago
Note being collectively the "Notes"), and this Third Amendment and
the Credit Agreement, as amended hereby, and the Notes constitute
the legal, valid and binding obligations of such Company,
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally 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; and
(d) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other
Person (including, but not limited to, with respect to the
Prudential Debt), other than the Board of Directors of the
Companies is required for the execution, delivery or performance by
each Company of this Third Amendment or the Notes.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall
be effective as of May 31, 1996, subject to the following:
(a) Agent shall have received counterparts of this Third
Amendment executed by each Lender;
(b) Agent shall have received counterparts of this Third
Amendment executed by each Company;
(c) NationsBank of Texas, N.A. shall have received the
NationsBank Note duly executed by the Companies;
(d) Texas Commerce Bank National Association shall have
received the Texas Commerce Note duly executed by the Companies;
(e) Wachovia Bank of Georgia, N.A. shall have received the
Wachovia Note duly executed by the Companies;
(f) ABN-AMRO shall have received the ABN-AMRO Note duly
executed by the Companies;
(g) Credit Lyonnais shall have received the Credit Lyonnais
Note duly executed by the Companies;
(h) First Chicago shall have received the First Chicago Note
duly executed by the Companies;
(i) Agent shall have received certified copies of resolutions
of each Company authorizing execution, delivery and performance of
this Third Amendment and the Notes; and
(j) Agent shall have received, in form and substance
satisfactory to Agent and its counsel, such other documents,
certificates and instruments as Agent shall require.
4. PRIOR NOTE. Upon satisfaction of the conditions set
forth in Section 3 of this Third Amendment, each Promissory Note
dated May 31, 1995 executed the Companies and payable to the order
of each Lender (other than ABN-AMRO, Credit Lyonnais and First
Chicago), shall be marked "RENEWED" by each such Lender and
delivered to the Companies.
5. SECTION 8.04. The parties hereto agree that (i) the
provisions of Section 8.04 of the Credit Agreement shall not be
required to be complied with for the purpose of making ABN-AMRO,
Credit Lyonnais and First Chicago Lenders under the Credit
Agreement pursuant to this Third Amendment and (ii) by signing
below, ABN-AMRO, Credit Lyonnais and First Chicago shall be Lenders
under the Credit Agreement and shall have all rights and
obligations of Lenders thereunder.
6. PURCHASE BY LENDERS. Simultaneously with the
satisfaction of the Conditions of Effectiveness set forth in
Section 3 hereof, each Lender shall be deemed to have purchased
without recourse an amount of each other Lender's outstanding
Advances such that after giving effect to this Third Amendment, the
percentage of each Lender's Commitment which has been utilized will
be equal.
7. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third 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 and amended hereby.
(b) The Credit Agreement, as amended by the amendments
referred to above, shall remain in full force and effect and is
hereby ratified and confirmed.
8. COSTS, EXPENSES AND TAXES. The Companies, jointly and
severally, agree to pay on demand all costs and expenses of Agent
in connection with the preparation, reproduction, execution and
delivery of this Third Amendment and the other instruments and
documents to be delivered hereunder (including the reasonable fees
and out-of-pocket expenses of counsel for Agent with respect
thereto and with respect to advising Agent as to its rights and
responsibilities under the Credit Agreement, as hereby amended).
9. EXECUTION IN COUNTERPARTS. This Third 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.
10. GOVERNING LAW: BINDING EFFECT. This Third Amendment
shall be governed by and construed in accordance with the laws of
the State of Texas and shall be binding upon each Company and each
Lender and their respective successors and assigns.
11. HEADINGS. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Third Amendment for any other purpose.
12. JOINT AND SEVERAL OBLIGATIONS. The Companies acknowledge
and agree that their obligations and duties under the Credit
Agreement and the other Loan Papers are joint and several in all
instances.
13. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY
THIS THIRD AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment as the date first above written.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Frank Conner
Name:
Name:Frank Conner
Title:Executive VP-Accounting &
Finance
AMERICAN FREIGHTWAYS, INC.
By: /s/Frank Conner
Name:Frank Conner
Title:Executive VP-Accounting &
Finance
NATIONSBANK OF TEXAS, N.A.
as Agent and as a Lender
Specified Percentage:
28.5714285740%
By: s/sBianca Hemmen
Name:Bianca Hemmen
Title:Senior Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
Specified Percentage:
20.0000000000%
By: /s/Michael Lister
Name:Michael Lister
Title:Vice President
WACHOVIA BANK OF GEORGIA, N.A.
Specified Percentage:
14.2857142850%
By: /s/John B. Tibe
Name:John B. Tibe
Title:Corporate Banking Officer
ABN-AMRO BANK
N.V., HOUSTON AGENCY
Specified Percentage:
14.2857142850% By: ABN-
AMRO NORTH AMERICA, INC., as
agent
By: /s/David P. Orr
Name:David P. Orr
Title:Vice President and
Director
By: /s/Laurie C. Tuzo
Name:Laurie C. Tuzo
Title:Vice President and
Director
CREDIT LYONNAIS NEW YORK BRANCH
Specified Percentage:
8.5714285710%
By: /s/Robert Ivosevich
Name:Robert Ivosevich
Title:Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
Specified Percentage:
14.2857142850%
By: /s/David G. Dixon
Name:David G. Dixon
Title:Authorized Agent