Exhibit 10.2(a)
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as
of December 11, 2003, is among FFE TRANSPORTATION SERVICES, INC. (the
"BORROWER"), each of the banks or other lending institutions which is or may
from time to time become a party to the Agreement (hereinafter defined) (each a
"BANK" and collectively, the "BANKS"), COMERICA BANK, successor-by-merger with
Comerica Bank-Texas ("COMERICA"), as administrative agent for the Banks (in such
capacity, together with its successors in such capacity, the "ADMINISTRATIVE
AGENT"), and as issuer of Letters of Credit under the Agreement (in such
capacity, together with its successors in such capacity, the "ISSUING BANK"),
and LASALLE BANK NATIONAL ASSOCIATION, a national banking association
("LASALLE"), as Syndication Agent (in such capacity, together with its
successors in such capacity, the "SYNDICATION AGENT"), and as Collateral Agent
(in such capacity, together with its successors in such capacity, the
"COLLATERAL AGENT").
RECITALS:
A. The Borrower, the Banks, the Issuing Bank and the Administrative
Agent have entered into that certain Credit Agreement dated as of May 30, 2002
(the "CREDIT AGREEMENT").
B. The parties hereto now desire to amend the Agreement as provided
herein.
AGREEMENTS:
In consideration of the premises and the mutual agreements herein set
forth, Borrower and Administrative Agent hereby agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
SECTION 1.1. CAPITAL EXPENDITURES. Effective as of the date hereof,
Section 5.2(h) of the Credit Agreement is hereby amended to read in its entirety
as follows:
(h) CAPITAL EXPENDITURES. Permit the aggregate amount of all Capital
Expenditures made by the Companies, during any, twelve (12) month
period (net of the proceeds of the sale or exchange of any fixed
assets), to exceed $25,000,000.
SECTION 1.2. COMPLIANCE CERTIFICATE. Effective as of the date hereof,
EXHIBIT D to the Agreement is hereby amended to read in its entirety as set
forth on Annex 1 hereto.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.1. CONDITIONS PRECEDENT. The effectiveness of this Amendment
and the agreement by the Administrative Agent to modify the Credit Agreement as
herein provided are subject to satisfaction of the following conditions
precedent, unless waived in writing by the Administrative Agent:
(a) The representations and warranties contained herein or in any Loan
Documents shall be true and correct as of the date hereof and thereof, as if
made on the date hereof.
(b) No Event of Default shall have occurred and be continuing and no
Default shall exist, unless such Event of Default or Default has been
specifically waived in writing by Administrative Agent.
(c) Borrower shall have delivered, or cause to be delivered to
Administrative Agent an executed counterpart of this Amendment.
(d) Borrower shall have delivered, or cause to be delivered to
Administrative Agent such other documents relating to the transactions
contemplated under this Amendment as Administrative Agent may reasonably
request.
ARTICLE III
DEFINED TERMS
SECTION 3.1. DEFINED TERMS. Each capitalized term not otherwise defined
herein shall have the meaning assigned to such term in the Credit Agreement.
ARTICLE IV
RATIFICATION, REPRESENTATIONS AND WARRANTIES
SECTION 4.1. 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 any other Loan Document, and except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Credit Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. Borrower and Administrative Agent agree
that the Credit Agreement, as amended hereby, and the other Loan Documents shall
continue to be legal, valid, binding and enforceable in accordance with their
respective terms. The Liens are hereby ratified and confirmed as continuing to
secure payment of the Notes. Nothing herein shall in any manner diminish, impair
or extinguish the Notes, any of the Indebtedness evidenced thereby, any of the
other Loan Documents or the Liens.
SECTION 4.2. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents
and warrants to Administrative Agent that (i) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate action on the part of Borrower and will not violate any organizational
document of Borrower, (ii) the representations and warranties contained in the
Credit Agreement, as amended hereby, and any other Loan Document are true and
correct on and as of the date hereof as though made on and as of the date
hereof, except to the extent such representations and warranties relate to an
earlier date and (iii) Borrower is in full compliance with all covenants and
agreements contained in the Credit Agreement, as amended hereby.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Credit Agreement or any other
document or documents relating thereto, including, without limitation, any Loan
Document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by Administrative Agent or any closing shall affect the
representations and warranties or the right of Administrative Agent to rely upon
them.
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SECTION 5.2. REFERENCE TO CREDIT AGREEMENT. Each of the Loan Documents,
including the Credit Agreement 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 such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement, as amended hereby.
SECTION 5.3. EXPENSES OF ADMINISTRATIVE AGENT. As provided in the
Credit Agreement, Borrower agrees to pay on demand all reasonable costs and
expenses incurred by Administrative Agent in connection with the preparation,
negotiation and execution of this Amendment and the other Loan Documents
executed pursuant hereto and any and all amendments, modifications, and
supplements thereto, including, without limitation, the reasonable costs and
fees of Administrative Agent's legal counsel, and all reasonable costs and
expenses incurred by Administrative Agent in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby, or any
other Loan Document, including, without limitation, the reasonable costs and
fees of Administrative Agent's legal counsel.
SECTION 5.4. 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 5.5. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
SECTION 5.6. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of Administrative Agent and Borrower and their
respective successors and assigns, except Borrower may not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
Administrative Agent.
SECTION 5.7. 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 5.8. EFFECT OF WAIVER. No consent or waiver, express or
implied, by Administrative Agent to or for any breach of or deviation from any
covenant or condition of the Credit Agreement shall be deemed a consent or
waiver to or of any other breach of the same or any other covenant, condition or
duty.
SECTION 5.9. HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
SECTION 5.10. RELEASE. BORROWER AND GUARANTORS, ON BEHALF OF THEMSELVES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY AND INDIVIDUALLY,
"BORROWER PARTIES"), HEREBY FULLY, FINALLY AND COMPLETELY RELEASE AND FOREVER
DISCHARGE ADMINISTRATIVE AGENT, THE LENDERS AND THEIR RESPECTIVE SUCCESSORS,
ASSIGNS, AFFILIATES, SUBSIDIARIES, PARENTS, OFFICERS, SHAREHOLDERS, DIRECTORS,
EMPLOYEES, ATTORNEYS, AGENTS AND PROPERTIES, PAST, PRESENT AND FUTURE, AND THEIR
RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS (COLLECTIVELY AND INDIVIDUALLY, "BANK
PARTIES"), OF AND FROM ANY AND ALL CLAIMS, CONTROVERSIES, DISPUTES, LIABILITIES,
OBLIGATIONS, DEMANDS, DAMAGES, DEBTS, LIENS, ACTIONS AND CAUSES OF ACTION OF ANY
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AND EVERY NATURE WHATSOEVER, KNOWN OR UNKNOWN, WHETHER AT LAW, BY STATUTE OR IN
EQUITY, IN CONTRACT OR IN TORT, UNDER STATE OR FEDERAL JURISDICTION, AND WHETHER
OR NOT THE ECONOMIC EFFECTS OF SUCH ALLEGED MATTERS ARISE OR ARE DISCOVERED IN
THE FUTURE, WHICH BORROWER PARTIES HAVE AS OF THE DATE BORROWER EXECUTES THIS
AGREEMENT ("BORROWER'S EXECUTION DATE") OR MAY CLAIM TO HAVE AGAINST BANK
PARTIES ARISING OUT OF OR WITH RESPECT TO ANY AND ALL TRANSACTIONS RELATING TO
THE LOAN OR THE LOAN DOCUMENTS OCCURRING ON OR BEFORE THE BORROWER'S EXECUTION
DATE, INCLUDING ANY LOSS, COST OR DAMAGE OF ANY KIND OR CHARACTER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH OR IN ANY WAY RESULTING FROM THE ACTS, ACTIONS OR
OMISSIONS OF BANK PARTIES OCCURRING ON OR BEFORE THE BORROWER'S EXECUTION DATE.
THE FOREGOING RELEASE IS INTENDED TO BE, AND IS, A FULL, COMPLETE AND GENERAL
RELEASE IN FAVOR OF BANK PARTIES WITH RESPECT TO ALL CLAIMS, DEMANDS, ACTIONS,
CAUSES OF ACTION AND OTHER MATTERS DESCRIBED THEREIN, INCLUDING SPECIFICALLY,
WITHOUT LIMITATION, ANY CLAIMS, DEMANDS OR CAUSES OF ACTION BASED UPON
ALLEGATIONS OF BREACH OF FIDUCIARY DUTY, BREACH OF ANY ALLEGED DUTY OF FAIR
DEALING IN GOOD FAITH, ECONOMIC COERCION, USURY, OR ANY OTHER THEORY, CAUSE OF
ACTION, OCCURRENCE, MATTER OR THING WHICH MIGHT RESULT IN LIABILITY UPON BANK
PARTIES ARISING OR OCCURRING ON OR BEFORE THE BORROWER'S EXECUTION DATE.
BORROWER PARTIES UNDERSTAND AND AGREE THAT THE FOREGOING GENERAL RELEASE IS IN
CONSIDERATION FOR THE AGREEMENTS OF BANK CONTAINED HEREIN AND THAT THEY WILL
RECEIVE NO FURTHER CONSIDERATION FOR SUCH RELEASE.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SS.26.02
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE
PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION
HEREOF, INCLUDING THE GUARANTY, TOGETHER CONSTITUTE A WRITTEN LOAN
AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN 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.
[SIGNATURE PAGES TO FOLLOW]
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EXECUTED to be effective as of the date first set forth above.
Comerica Bank, successor-by-merger with
Comerica Bank-Texas, as a Bank, as
Administrative Agent, and as Issuing Bank
By: /S/ DEBORAH T. PURVIN
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Name: DEBORAH T. PURVIN
Title: VICE PRESIDENT
LASALLE BANK NATIONAL ASSOCIATION, as a
Bank, as Syndication Agent, and as
Collateral Agent
By: /S/ STEFAN LOEB
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Name: STEFAN R. LOEB
Title: CORPORATE BANKING OFFICER
FFE TRANSPORTATION SERVICES, INC., as
Borrower
By: /S/ T. G. YETTER
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T.G. Yetter, Vice President
Each of the undersigned Guarantors hereby (a) consents and agrees to this
Amendment, and (b) agrees that its Guaranty shall continue to be the legal,
valid and binding obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By: /S/ THOMAS G. YETTER
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T.G. Yetter, Treasurer
FFE, INC.
By: /S/ THOMAS G. YETTER
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T.G. Yetter, Vice President
CONWELL CORPORATION
By: /S/ THOMAS G. YETTER
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T.G. Yetter, Vice President
AIRPRO HOLDINGS, INC.
By: /S/ F. DIXON MCELWEE, JR.
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F. Dixon McElwee, Jr.
Senior Vice President
LISA MOTOR LINES, INC.
By: /S/ LEONARD W. BARTHOLOMEW
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Leonard W. Bartholomew, Secretary
FROZEN FOOD EXPRESS, INC.
By: /S/ F. DIXON MCELWEE, JR.
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F. Dixon McElwee, Jr.
Senior Vice President
CONWELL CARTAGE, INC.
By:/S/ LEONARD W. BARTHOLOMEW
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Leonard W. Bartholomew, Secretary
MIDDLETON TRANSPORTATION COMPANY
By: /S/ F. DIXON MCELWEE, JR.
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F. Dixon McElwee, Jr.
Senior Vice President
COMPRESSORS PLUS, INC.
By: /S/ LEONARD W. BARTHOLOMEW
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Leonard W. Bartholomew, Secretary
FFE LOGISTICS, INC.
By: /S/ LEONARD W. BARTHOLOMEW
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Leonard W. Bartholomew, Secretary
CONWELL, LLC,
By: /S/ LEONARD W. BARTHOLOMEW
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Leonard W. Bartholomew, Secretary