1
EXHIBIT 10.13
AMENDMENT NO. 3
This Amendment No. 3 dated as of September 30, 2000 ("Amendment")
amends the Credit Agreement dated as of June 12, 1998 among Arkansas Best
Corporation, a Delaware corporation (the "Borrower"), the Banks party thereto,
Wells Fargo Bank (Texas), N.A., as Administrative Agent (the "Agent"), and Bank
of America National Trust and Savings Association and Wells Fargo Bank (Texas),
N.A., as Co-Documentation Agents, as amended by Amendment No. 1 and Consent and
Waiver dated as of February 12, 1999, Amendment to Amendment No. 1 and Consent
and Waiver dated as of March 15, 1999 and Amendment No. 2 dated as of August 2,
2000 (as amended, the "Credit Agreement"). Capitalized terms defined in the
Credit Agreement and not otherwise defined or redefined herein are used herein
with the meanings so defined.
WHEREAS the Borrower has requested that the Credit Agreement be amended
(a) to permit the Borrower to transfer substantially all of the assets of
Treadco to a newly formed joint venture and to sell certain other Subsidiaries
of the Borrower, (b) to amend Sections 6.1, 6.3, 6.4, 6.5, 6.6, 6.9, 6.15 and
6.16 and (c) to make certain other amendments to the Credit Agreement; and
WHEREAS the Banks have agreed to so amend the Credit Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1.
(i) The definition of "Applicable Margin" is amended by
replacing the first and second tables in their entirety with the following
tables, respectively, and adding a new paragraph at the end thereof as set forth
below:
Eurodollar Letter of
Tier Leverage Rate Prime Rate Commitment Credit
Level Ratio Advances Advances Fees Fees
- ------------ ------------------------ ---------------- ----------------- -------------------- ---------------
I > or = to 3.25 1.375% 0.250% 0.425% 1.250%
II > or = to 2.75 and <3.25 1.125% 0.125% 0.425% 1.000%
III > or = to 2.25 and <2.75 0.950% 0.000% 0.300% 0.825%
IV > or = to 2.00 and <2.25 0.825% 0.000% 0.300% 0.700%
V > or = to 1.50 and <2.00 0.750% 0.000% 0.250% 0.625%
VI > or = to 1.25 and <1.50 0.625% 0.000% 0.250% 0.500%
VII Less than 1.25 0.550% 0.000% 0.250% 0.425%
2
Senior
Debt Rating Eurodollar Letter of
Tier ----------- Rate Prime Rate Commitment Credit
Level S&P Moody's Advances Advances Fees Fees
----- ---------- ----------- ---------- ---------- ---------- ---------
I BBB+ Baa1 0.525% 0.000% 0.125% 0.400%
or or
Higher Higher
II BBB Baa2 0.575% 0.000% 0.150% 0.450%
III BBB- Baa3 0.625% 0.000% 0.200% 0.500%
IV BB+ Ba1 0.850% 0.000% 0.250% 0.725%
At any time, the Borrower may elect to either (i) determine its rating for
Senior Debt solely from the ratings established by S&P or (ii) select a
substitute nationally recognized statistical rating agency to replace Moody's.
However, notwithstanding the foregoing, if the Borrower elects to replace
Moody's with a substitute nationally recognized statistical rating agency and
such agency's ratings of the Borrower's Senior Debt are higher than S&P's, then
the Applicable Margin shall be determined by reference to the rating established
for the Borrower's Senior Debt by S&P.
(ii) The definitions of "TAC", "Treadco Merger", and "Treadco
Credit Agreement" are hereby deleted in their entirety.
(b) Section 6.1. Section 6.1 is amended by adding "and" at the end of
clause (l), adding a period at the end of clause (m) and deleting clauses (n)
and (o).
(c) Section 6.3. Section 6.3 is modified in its entirety as follows:
Section 6.3. Agreements Restricting Distributions From
Subsidiaries. The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any agreement (other than a Credit
Document) which limits distributions to or any advance by any of the
Borrower's Subsidiaries to the Borrower.
(d) Section 6.4(iv). Section 6.4(iv) is amended in its entirety as
follows:
2
3
(iv) sales, transfers or other dispositions of all of the assets or
capital stock of Treadco (including any ownership rights), on
substantially the same terms and conditions outlined in that certain
agreement by and among The Goodyear Tire & Rubber Company, the Borrower
and Treadco (the "Goodyear Agreement") dated September 13, 2000, G.I.
Trucking Company, Agricultural Express of America, Inc., Agile Freight
System, Inc. and Clipper Exxpress Company and\or any other company in
which Clipper Exxpress Company has made an investment and which is
engaged in a similar line of business.
(e) Section 6.5. Section 6.5 is amended in its entirety as follows:
Section 6.5 Restricted Payments. The Borrower will not, and
will not permit any of its Subsidiaries to, make any Restricted
Payment, except that
(a) a wholly-owned Subsidiary of the Borrower may make a
Restricted Payment to the Borrower or another wholly-owned Subsidiary
of the Borrower,
(b) provided no Default has occurred and is continuing or
would result therefrom, the Borrower may pay, prepay, redeem or
purchase the Subordinated Debentures, provided further that if the
Borrower pays, prepays, redeems or purchases Subordinated Debentures
and the aggregate amount paid exceeds $25,000,000, the Borrower's
Leverage Ratio calculated as of such day must be less than or equal to
3.00 to 1.00, and
(c) provided no Default has occurred and is continuing or
would result therefrom, the Borrower or any Subsidiary may make
Restricted Payments of the kind described in clause (b) of the
definition of the term "Restricted Payments" in an aggregate amount not
to exceed $9,000,000 in any fiscal year, provided further that if the
Borrower's Senior Debt is rated BBB- or higher by S&P or Baa3 or higher
by Moody's, then the Borrower or any Subsidiary may make Restricted
Payments of the kind described in clause (b) of the definition of the
term "Restricted Payments" in an aggregate amount not to exceed
$25,000,000 in any fiscal year and not to exceed $60,000,000 from the
date hereof until the Maturity Date, excluding those dividends
currently paid by the Borrower on its existing issuance of preferred
stock, and provided further that if the Borrower or any Subsidiary
makes Restricted Payments of the kind described in clause (b) of the
definition of the term "Restricted Payments" in an aggregate amount
equal to or exceeding $25,000,000, the Borrower's Leverage Ratio
calculated as of the day of the making of such Restricted Payment must
be less than or equal to 3.00 to 1.00.
(f) Section 6.6(d)(iii). Section 6.6(d)(iii) is amended in its entirety
as follows:
3
4
(iii) the aggregate consideration paid for such contributions
or investments shall not exceed $80,000,000; provided that if the
aggregate consideration paid for such contributions or investments
exceeds $25,000,000, the Borrower's Leverage Ratio calculated as of the
day of such contribution or investment must be less than or equal to
3.00 to 1.00;
(g) Section 6.6. Section 6.6 is amended by adding an "and" after
subsection (e) and adding the following new subsection (f):
(f) capital contributions made by Treadco to the joint venture
formed pursuant to the Goodyear Agreement.
(h) Section 6.9. The introduction exception of Section 6.9 is modified
to read as follows:
Except as set forth in agreements and documentation governing
Indebtedness of the Borrower or any of its Subsidiaries existing on the
Effective Date,
(i) The first sentence of Section 6.14 of the Credit Agreement is
amended in its entirety as follows:
The Borrower may make or permit any of its Subsidiaries to make or
commit to make any Capital Expenditure; provided, however, that Capital
Expenditures of the Borrower and its Subsidiaries may not exceed
$85,000,000 in an aggregate amount per fiscal year so long as the
Borrower's Senior Debt is not rated either BBB- or higher by S&P or
Baa3 or greater by Moody's.
(j) Section 6.15. Section 6.15 is amended by amending clauses (f) and
(g) in their entirety as follows:
(f) [Intentionally deleted];
(g) [Intentionally deleted]; and
(k) Section 6.16. Section 6.16 is amended in its entirety as follows:
Section 6.16. Acquisition Expenditures. The Borrower shall not
and shall not permit any of its Subsidiaries to make any Acquisition
Expenditure, unless (a) such Acquisition Expenditure is made in
substantially the same or complementary lines of business of the
Borrower and does not violate any other provision of this Agreement;
(b) the aggregate amount of the Net Purchase Prices and consideration
paid in common stock for all Acquisition Expenditures made does not
exceed $80,000,000; (c) at the time of such Acquisition Expenditure no
Default has occurred and is continuing or would occur upon the
consummation of such acquisition and, if such Acquisition
4
5
Expenditures exceed $25,000,000, the Agent shall have received a
Compliance Certificate demonstrating pro forma financial covenant
compliance, provided that the Borrower's Leverage Ratio calculated as
of the time of such Acquisition Expenditure must be less than or equal
to 3.00 to 1.00; and (d) immediately following the making of such
Acquisition Expenditure, the lesser of (i) the aggregate amount of the
Commitments or (ii) the Borrowing Base exceeds the aggregate
outstanding principal amount of the Advances and the Letter of Credit
Exposure by at least $20,000,000.
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Banks that, after giving effect
hereto:
(a) the representations and warranties of the Borrower set forth in the
Credit Agreement and in the other Credit Documents are true and correct in all
material respects as of the date of this Amendment, except those that by their
terms relate only to a specific date;
(b) (i) the execution, delivery, and performance of this Amendment are
within the corporate power and authority of the Borrower and have been duly
authorized by appropriate proceedings, and (ii) this Amendment constitutes a
legal, valid, and binding obligation of the Borrower enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity; and
(c) as of the effectiveness of this Amendment, no Default or Event of
Default has occurred and is continuing.
Section 3. Effectiveness of Amendment. This Amendment shall become
effective upon (i) the Agent receiving counterparts of this Amendment executed
by the Borrower and the Majority Banks, (ii) the payment by the Borrower of all
reasonable legal fees and expenses associated with the Amendment and (iii) the
consummation of the Joint Venture under the Goodyear Agreement on or before
December 31, 2000.
Section 4. Effect on Loan Documents.
(a) Except as amended herein, the Credit Agreement and the Credit
Documents remain in full force and effect as originally executed. Nothing herein
shall act as a waiver of any of the Agent's or any of the Bank's rights under
the Credit Documents, as amended, including the waiver of any Default or Event
of Default, however denominated.
(b) This Amendment is a Credit Document for the purposes of the
provisions of the other Credit Documents. Without limiting the foregoing, any
breach of representations, warranties, and covenants under this Amendment may be
a Default or Event of Default under other Credit Documents.
Section 5. Counterparts. This Amendment may be executed in any number
of counterparts which together shall constitute an instrument.
5
6
Section 6. Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas.
PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, A
CREDIT AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE CREDIT AGREEMENT EXCEEDS
$50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE CREDIT AGREEMENT IS IN WRITING
AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S AUTHORIZED REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO
THE PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN CREDIT
AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY
AND MERGED INTO THE CREDIT AGREEMENT. THIS WRITTEN AMENDMENT AND THE CREDIT
DOCUMENTS, AS DEFINED IN THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT AMONG 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.
[Remainder of page left intentionally blank]
6
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers duly authorized as of the date first
written above.
BORROWER:
ARKANSAS BEST CORPORATION
By:
-------------------------------------------
David E. Loeffler
Vice President - Chief Financial Officer
ADMINISTRATIVE AGENT:
WELLS FARGO BANK (TEXAS), N.A.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CO-DOCUMENTATION AGENTS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
WELLS FARGO BANK (TEXAS), N.A.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
7
8
BANKS:
WELLS FARGO BANK (TEXAS), N.A.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
SOCIETE GENERALE
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
AMSOUTH BANK
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
BANK ONE, NA
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
8
9
ABN AMRO BANK N.V.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
SUNTRUST BANK
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
9