FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Fifth Amendment"), dated as of May 15, 1998, 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 are parties to 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, that certain
Second Amendment to Amended and Restated Credit Agreement, dated as
of March 26, 1996, that certain Third Amendment to Amended and
Restated Credit Agreement, dated as of May 31, 1996, and that
Fourth Amendment to Amended and Restated Credit Agreement, dated as
of March 31, 1997 (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) remove Credit Lyonnais New York Branch ("Credit
Lyonnais") as a Lender, (ii) decrease the Commitment, and
(iii) extend the Maturity Date.
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 "$175,000,000" set forth in the
introductory paragraph of the Credit Agreement is hereby
amended to be "$160,000,000".
(b) The definition of "Commitment" set forth in
Article I of the Credit Agreement is hereby amended to read as
follows:
"'Commitment' means $160,000,000, as reduced
from time to time pursuant to Section 2.04 hereof."
(c) 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, 2003, 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."
(d) The Specified Percentage of each Lender is hereby
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 Fifth Amendment, and this Fifth Amendment and
the Credit Agreement, as amended hereby, 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 Fifth Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Fifth Amendment shall
be effective as of May 15, 1998, subject to the following:
(a) Agent shall have received counterparts of this Fifth
Amendment executed by each Lender;
(b) Agent shall have received counterparts of this Fifth
Amendment executed by each Company;
(c) Agent shall have received certified copies of
resolutions of each Company authorizing execution, delivery
and performance of this Fifth Amendment; and
(d) Credit Lyonnais shall have received payment in full
of all amounts due and owing to it under the Credit Agreement;
and
(e) 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. CREDIT LYONNAIS. Upon satisfaction of the conditions set
forth in Section 3 of this Fifth Amendment, Credit Lyonnais shall
(a) not be a Lender under the Credit Agreement and shall no longer
have any rights or obligations with respect thereunder, except for
those which expressly survive termination of the Credit Agreement
or termination of any commitment thereunder, and (b) mark its Note
"PAID IN FULL" and return its Note to the Companies.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Fifth 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.
6. 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 Fifth 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).
7. EXECUTION IN COUNTERPARTS. This Fifth 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.
8. GOVERNING LAW: BINDING EFFECT. This Fifth 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.
9. HEADINGS. Section headings in this Fifth Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Fifth Amendment for any other purpose.
10. 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.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY
THIS FIFTH 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
Fifth Amendment as the date first above written.
AMERICAN FREIGHTWAYS CORPORATION
By: /s/Frank Conner
Name: Frank Conner
Title:Executive Vice President
AMERICAN FREIGHTWAYS, INC.
By: /s/Frank Conner
Name: Frank Conner
Title:Executive Vice President
NATIONSBANK OF TEXAS, N.A.
as Agent and as a Lender
SPECIFIED PERCENTAGE:
31.250%
By: /s/Dan Killian
Name: Dan Killian
Title: Vice President
CHASE BANK
OF TEXAS, NATIONAL ASSOCIATION
(formerly Texas Commerce Bank
National Association
SPECIFIED PERCENTAGE:
21.875%
By: /s/Ana Moreira
Name: Ana Moreira
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
SPECIFIED PERCENTAGE:
15.625%
By: /s/Kenneth Washington
Name: Kenneth Washington
Title: Vice President
ABN-AMRO
BANK N.V.
SPECIFIED PERCENTAGE:
15.625%
By: /s/David J. Thomas
Name: David J. Thomas
Title: Vice President
By: /s/Gerald F. Mackin
Name: Gerald F. Mackin
Title: Vice President
THE FIRST
NATIONAL BANK OF CHICAGO
SPECIFIED PERCENTAGE:
15.625%
By: /s/Michael J. Johnson
Name: Michael J. Johnson
Title: Authorized Agent
ACKNOWLEDGED AND AGREED
(For purposes of Section 4 of
this Fifth Amendment):
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/Alain Papiasse
Name: Alain Papiasse
Title: Executive Vice President