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EXHIBIT 10.8
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made and entered into effective as of July 31, 2000 by and
among DYNAMEX INC. (the "Borrower"), a Delaware corporation, DYNAMEX CANADA INC.
("Dynamex Canada"), a federal Canadian corporation, DYNAMEX OPERATIONS EAST,
INC. ("Dynamex East"), a Delaware corporation (successor in interest by merger
to U.S.C. Management Systems, Inc., and Cannonball, Inc.), DYNAMEX OPERATIONS
WEST, INC. ("Dynamex West"), a Delaware corporation, ROAD RUNNER TRANSPORTATION,
INC. ("Road Runner"), a Minnesota corporation, NEW YORK DOCUMENT EXCHANGE
CORPORATION ("NYDEX"), a New York corporation, DYNAMEX DEDICATED FLEET SERVICES,
INC. ("Fleet Services"), a Delaware corporation, BANK OF AMERICA, NATIONAL
ASSOCIATION (successor by merger to NationsBank, N.A., which entity was
successor by merger to NationsBank of Texas, N.A.) ("Bank of America"), a
national banking association, FLEET NATIONAL BANK (formerly BankBoston, N.A.)
("Fleet"), a national banking association, BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC. (formerly Creditanstalt Corporate Finance, Inc.)
("Creditanstalt"), a Delaware corporation, THE BANK OF NOVA SCOTIA ("Scotia
Bank"), a Canadian banking association, BANK ONE, TEXAS, N.A. ("Bank One"), a
national banking association, BANK OF AMERICA, NATIONAL ASSOCIATION (successor
by merger to NationsBank, N.A., which entity was successor by merger to
NationsBank of Texas, N.A.), as agent for itself and the other Lenders (in such
capacity, together with its successors in such capacity, the "Agent") and FLEET
NATIONAL BANK (formerly BankBoston, N.A.) and BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC. (formerly Creditanstalt Corporate Finance, Inc.), as
co-agents (the "Co-Agents").
RECITALS:
A. Pursuant to that certain Second Amended and Restated Credit
Agreement dated as of August 26, 1997, by and among the Borrower, Dynamex
Canada, Dynamex East, Dynamex West, Parcelway Courier Systems (B.C.) Ltd. (a
British Columbia corporation that has now been dissolved), Road Runner, Bank of
America, Fleet, Creditanstalt, Scotia Bank, the Agent and the Co-Agents (as the
same has been and may be amended, renewed, extended, restated or otherwise
modified from time to time, the "Credit Agreement"), the Lenders agreed to
provide to the Borrower a senior secured revolving credit and letter of credit
facility (the "Credit Facility") in the maximum aggregate principal amount of
$75,000,000.
B. Pursuant to that certain First Amendment to Second Amended and
Restated Credit Agreement dated as of May 5, 1998, the parties to the Credit
Agreement
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amended the Credit Agreement to increase the maximum aggregate principal amount
of the Credit Facility to $115,000,000 and in certain other respects.
C. Pursuant to that certain Second Amendment to Second Amended and
Restated Credit Agreement dated as of January 31, 1999, the parties to the
Credit Agreement amended the Credit Agreement to decrease the maximum aggregate
principal amount of the Credit Facility to $65,000,000 and in certain other
respects.
D. Pursuant to that certain Third Amendment to Second Amended and
Restated Credit Agreement dated as of June 28, 2000, the parties to the Credit
Agreement amended the Credit Agreement to decrease the maximum aggregate
principal amount of the Credit Facility to $51,734,000 and in certain other
respects.
E. The Borrower and its Subsidiaries, the Agent, the Co-Agents and the
Lenders have agreed, subject to the terms and conditions of this Amendment, to
further amend the Credit Agreement in certain respects as provided in this
Amendment.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows; provided, however, that this Amendment shall be, ipso
facto, null and void and of no force or effect if any of the conditions
precedent set forth in Paragraph 3 hereof are not fully and timely satisfied on
or before October 30, 2000 or if the condition subsequent set forth in Paragraph
4 hereof is not fully and timely satisfied on or before November 10, 2000:
1. Terms Defined. Unless otherwise defined or stated in this Amendment,
each capitalized term used in this Amendment has the meaning given to such term
in the Credit Agreement (as amended by this Amendment).
2. Amendments to the Credit Agreement.
(a) Amendments to Certain Definitions. The definition of 'Swingline
Advances' is hereby deleted from Section 1.1 of the Credit Agreement and the
following terms and definitions set forth in Section 1.1 of the Credit Agreement
are hereby amended and restated to read in their entirety as follows:
"'Applicable Margin' means, for the period commencing with the
Closing Date, the rate per annum set forth in the table below that
corresponds to the ratio of (i) Funded Debt as of the date of the
relevant financial statements referred to below to (ii) EBITDA for the
four fiscal quarters of the Borrower and its Subsidiaries then most
recently ended as
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of the date of such financial statements, calculated in accordance with
Section 1.4:
<TABLE>
<CAPTION>
Applicable Margins for
----------------------
Ratio of
Funded Debt to EBITDA ABR Loans Eurodollar Loans
--------------------- --------- ----------------
<S> <C> <C>
Less than 1.50 to 1.00 0.00% 3.00%
Less than 2.00 to 1.00 but greater
than or equal to 1.50 to 1.00 0.25% 3.25%
Less than 2.50 to 1.00 but greater
than or equal to 2.00 to 1.00 0.50% 3.50%
Less than 3.00 to 1.00 but greater
than or equal to 2.50 to 1.00 0.75% 3.75%
Greater than or equal to 3.00 to 1.00 1.00% 4.00%
</TABLE>
For purposes hereof and notwithstanding the preceding sentence, the
Applicable Margin for the period from the Fourth Amendment Effective
Date to the first Calculation Date thereafter shall be deemed to be
0.75% for ABR Loans and 3.75% for Eurodollar Loans and shall thereafter
be calculated on each Calculation Date based upon the preceding table
and the financial statements delivered by the Borrower pursuant to
Section 8.1(b) and the certificate delivered by the Borrower pursuant
to Section 8.1(d); provided that if the Borrower fails to deliver to
the Agent such financial statements or certificate on or before the
relevant Calculation Date, the Applicable Margin shall be deemed to be
the percentage reflected in the preceding table as if the ratio of
Funded Debt to EBITDA were greater than 3.00 to 1.00 until the date
such statements and certificate are received by the Agent, after which
the Applicable Margin shall be determined as otherwise provided
herein."
"'Commitment' means, as to any Lender, the obligation of such
Lender to make Loans under the Revolving Loan Portion of the Loans and
incur or participate in Letter of Credit Liabilities hereunder in an
aggregate principal amount at any one time outstanding up to but not
exceeding the amount set forth opposite the name of such Lender on the
signature pages hereto (or any amendment hereto) under the heading
'Commitment' or, if such Lender is a party to an Assignment and
Acceptance, the amount of the 'Commitment set forth in the most recent
Assignment and
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Acceptance of such Lender, as the same may be reduced or terminated
pursuant to Section 2.12 or 11.2, and 'Commitments' means such
obligations of all Lenders. As of the Fourth Amendment Effective Date,
the aggregate principal amount of the Commitments is $19,500,000."
"'EBITDA' means, for any period, without duplication, the sum
of the following for the Borrower and its Subsidiaries (or other
applicable Person) for such period determined on a consolidated basis
in accordance with GAAP: (a) Net Income, plus (b) Interest Expense,
plus (c) income and franchise taxes to the extent deducted in
determining Net Income, plus (d) depreciation and amortization expense,
plus (e)other non-cash items to the extent deducted in determining Net
Income, minus (f) non-cash income to the extent included in determining
Net Income, plus (g) for any calculations that include the fiscal
quarter ended (i) October 31, 1999, $241,900, (ii) January 31, 2000,
$199,000, (iii) April 30, 2000, $259,200, or (iv) July 31, 2000,
$290,700 (which amounts referred to in this clause (g) relate to
extraordinary legal and accounting fees paid by the Borrower during
such quarters) plus (h) for any calculation that includes any fiscal
quarter or quarters ended during the fiscal year ending July 31, 2001,
the actual amount of the extraordinary legal fees paid during such
fiscal quarter or quarters; provided that the aggregate amount of the
legal fees that may be added to the EBITDA calculation for the fiscal
year ending July 31, 2001, shall not be greater than $350,000 plus (i)
for any calculation that includes the fiscal quarter ending July 31,
2000, $1,000,000 (which amount is the cash portion of the settlement
described in Fourth Amendment Schedule 1 attached hereto)."
"'Fixed Charge Coverage Ratio' means, for any period, the
ratio of (a) the sum of the following (without duplication) for the
Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP: (i) Net Income, plus (ii)
Interest Expense, plus (iii) income and franchise taxes to the extent
deducted in determining Net Income, plus (iv) depreciation and
amortization expense and other non-cash items to the extent deducted in
determining Net Income, minus (v) non-cash income to the extent
included in determining Net Income, plus (vi) Lease Expense, minus
(vii) Capital Expenditures, plus (viii) for any calculations that
include the fiscal quarter ended (A) October 31, 1999, $241,900, (B)
January 31, 2000, $199,000, (C) April 30, 2000, $259,200, or (D) July
31, 2000, $290,000 (which amounts referred to in this clause (viii)
relate to extraordinary legal and accounting fees paid by the Borrower
during such quarters) plus (ix) for any calculation that includes any
fiscal quarter or quarters ended during the fiscal year ending July 31,
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2001, the actual amount of the extraordinary legal fees paid during
such fiscal quarter or quarters; provided that the aggregate amount of
the legal fees that may be added to the Fixed Charge Coverage Ratio
calculation for the fiscal year ending July 31, 2001, shall not be
greater than $350,000 plus (x) for any calculation that includes the
fiscal quarter ending July 31, 2000, $1,000,000 (which amount is the
cash portion of the settlement described in Fourth Amendment Schedule 1
attached hereto) to (b) the Fixed Charges of the Borrower and its
Subsidiaries for such period."
"'Interest Period' means, with respect to any Eurodollar Loan,
each period commencing on the date such Loan is made or Converted from
an ABR Loan or (if Continued) the last day of the next preceding
Interest Period with respect to such Loan, and ending on the
numerically corresponding day in the first calendar month thereafter,
except that each such Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the subsequent calendar month) shall
end on the last Business Day of the subsequent calendar month.
Notwithstanding the foregoing: (a) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the
next succeeding Business Day (or, if such succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business
Day); (b) any Interest Period which would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; (c) no more than five
Interest Periods for Eurodollar Loans shall be in effect at the same
time; (d) no Interest Period shall have a duration of less than one
month and, if the Interest Period for any Eurodollar Loans would
otherwise be a shorter period, such Loans shall not be available
hereunder; and (e) no Interest Period for a Loan may commence before
and end after any principal repayment date unless, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans having
Interest Periods that end after such principal payment date shall be
equal to or less than the amount of the applicable Loans scheduled to
be outstanding hereunder after such principal payment date."
"'Maturity Date' means November 30, 2001."
"'Outstanding Credit' means, at any particular time, the sum
of (a) the aggregate outstanding principal amount of the Loans plus (b)
the Letter of Credit Liabilities."
"'Revolving Period Termination Date' means the Maturity Date."
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(b) Addition of Definitions. Section 1.1 of the Credit Agreement is
hereby amended to add the following new terms and definitions, which shall
appear in alphabetical order in such Section 1.1:
"'Amortizing Loan Portion' means that portion of the principal
amount of the Loans outstanding as of the Fourth Amendment Effective
Date in an amount equal to $32,234,000."
"'Borrowing Base' means, at any date of determination, an
amount equal to 80% of Eligible Receivables (in Dollars) of the
Borrower and its Subsidiaries; provided, however, that, notwithstanding
anything to the contrary contained in this Agreement, if any of the
Agent or any Lender shall have received written notice from any Loan
Party purportedly sent to terminate, limit or restrict (or to attempt
to terminate, limit or restrict) future advances or future Obligations
or the operation of any Security Document as security for future
advances or future Obligations, whether or not such notice is
effective, the Borrowing Base shall be further reduced by an amount
equal to the aggregate value of the Eligible Receivables to which such
notice relates, as such value is determined by the Agent in good
faith."
"'Borrowing Base Report' means a report in substantially the
form of Exhibit G attached hereto and completed and certified by a
Responsible Officer of the Borrower relating to the determination of
the Borrowing Base."
"'Eligible Receivables' means, at any date of determination,
without duplication, the aggregate of each Receivable owned by the
Borrower or any Subsidiary of the Borrower, created in the ordinary
course of business which satisfies each of the following conditions:
(a) Such Receivable complies with all applicable
Governmental Requirements, including, without limitation to
the extent applicable, usury laws, the Federal Truth in
Lending Act and Regulation Z of the Board of Governors of the
Federal Reserve System and similar Canadian laws;
(b) Such Receivable, at the date of issuance of its
invoice, (i) was payable not more than 30 days after the
original date of issuance of the invoice therefor or (ii) was
payable more than 30 days and not more than 60 days after the
original date of issuance of the invoice therefor and was
payable by an account debtor and pursuant to terms approved by
the Agent in writing;
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(c) Such Receivable has not been outstanding for more
than 60 days past the original date of invoice;
(d) Such Receivable represents a legal, valid and
binding payment obligation of the account debtor enforceable
in accordance with its terms and arising from an enforceable
contract, the performance of which contract, insofar as it
relates to such Receivable, has been completed by the Borrower
or one of its Subsidiaries (as applicable);
(e) Such Receivable does not arise from the sale of
any Inventory on a bill-and hold, guaranteed sale,
sale-or-return, sale on approval, consignment or any other
repurchase or return basis;
(f) The Borrower or one of its Subsidiaries (as
applicable) has good and indefeasible title to such
Receivable, the Agent holds a perfected first priority Lien on
such Receivable pursuant to the Security Documents (unless
such Receivable is owned by a Subsidiary organized under the
laws of Canada or a province thereof), and such Receivable is
not subject to any Liens except Liens in favor of the Agent
pursuant to the Loan Documents;
(g) Such Receivable does not arise out of a contract
with, or an order from, an account debtor that, by its terms
(other than terms which are invalid under applicable law),
prohibits or makes void or unenforceable the grant of a
security interest to the Agent in and to such Receivable;
(h) The amount of such Receivable included in
Eligible Receivables is not subject to any setoff,
counterclaim, defense, dispute, recoupment or adjustment other
than normal discounts for prompt payment offered in the
ordinary course of business, and control over collection of
such Receivable has not been contractually relinquished to an
attorney, collection agency or other third party;
(i) The account debtor with respect to such
Receivable is not (i) in the judgment of the Agent in the
exercise of its discretion in good faith, unable to pay such
Receivable due to such account debtor's financial condition or
performance and (ii) is not insolvent or the subject of any
bankruptcy or insolvency proceeding and has not made an
assignment for the benefit of creditors, suspended normal
business operations, dissolved,
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liquidated, terminated its existence, ceased to pay its debts
as they become due or suffered a receiver or trustee to be
appointed for any of its assets or affairs;
(j) Such Receivable is not evidenced by chattel paper
or instruments unless the Lien on such chattel paper or
instrument is a perfected first priority Lien on such chattel
paper or instrument in favor of the Agent pursuant to the
Security Documents;
(k) The account debtor has not returned or refused to
retain, or otherwise notified such Borrower or any other Loan
Party of any dispute concerning, or claimed nonconformity of,
any of the Inventory or services relating to such Receivable;
(l) Such Receivable is not owed by an Affiliate of
any Borrower or one of its Subsidiaries (as applicable);
(m) Such Receivable is payable in Dollars or Cdn.
Dollars by the account debtor;
(n) The account debtor with respect to such
Receivable is not domiciled in or organized under the laws of
any country other than the U.S. or Canada;
(o) Such Receivable is not owed by an account debtor
as to which more than ten percent of the aggregate balances
then outstanding on all Receivables owed by such account
debtor thereon and/or its Affiliates to the Borrower or one of
its Subsidiaries (as applicable) are more than 90 days past
the original date of invoice; provided, that if a single
invoice causes the outstanding Receivables from an account
debtor that are 90 days past due to be greater than ten
percent of the aggregate Receivables owed by such account
debtor, but such Receivables from such invoice otherwise are
"Eligible Receivables" but for this clause (o) or clause (c)
of this definition, then only such Receivables from such
invoice will be excluded in determining "Eligible
Receivables";
(p) The account debtor with respect to such
Receivable is not the U.S. or any state thereof, Canada or any
province thereof or any department, agency or instrumentality
of any of the foregoing, unless, with respect to the Lien on
such Receivable in favor of the Agent, the Federal Assignment
of Claims Act of 1940, as amended, or the state equivalent
thereof (with respect to the
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
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U.S. or any state thereof or any department, agency or
instrumentality thereof) or the Financial Administration Act
(Canada), as amended, or the Canadian provincial equivalent
thereof (with respect to Canada or any province thereof or any
department, agency or instrumentality thereof), as amended and
as may be applicable, shall have been complied with as the
same relates to such Receivable;
(q) The account debtor with respect to such
Receivable is not located in New Jersey, Minnesota, West
Virginia or any other state or province denying creditors
access to its courts in the absence of a notice of business
activities report or other similar filing, unless Borrower or
one of its Subsidiaries (as applicable) has either qualified
as a foreign corporation authorized to transact business in
such state or province or has filed a notice of business
activities report or similar appropriate filing with the
applicable state agency for the then-current year;
(r) Such Receivable is not owed by an account debtor
as to which the aggregate of all Receivables owing by such
account debtor or an Affiliate of such account debtor exceeds
ten percent of the aggregate of all Receivables at such date,
provided that an amount of Receivables owing by such account
debtor that do not exceed ten percent of the aggregate of all
Receivables at such date shall not be excluded pursuant to
this clause (r); and
(s) Such Receivable is not otherwise deemed
'ineligible' for borrowing purposes by the Agent in the
exercise of its reasonable discretion in good faith.
The amount of the Eligible Receivables owed by an
account debtor to the Borrower or one of its Subsidiaries (as
applicable) shall be net of, and shall be reduced by (if and
to the extent not already so reduced by virtue of the
preceding clauses of this definition), the amount of all
contra accounts, reserves, credits, rebates and (subject to
the proviso below) other indebtedness, liabilities or
obligations owed by the Borrower or one of its Subsidiaries
(as applicable) to such account debtor; provided, however,
that the existence of any such other indebtedness, liabilities
or obligations owed by such Borrower to such account debtor
shall not, in and of itself, reduce the amount of Eligible
Receivables owed by such account debtor by the amount of such
other indebtedness, liabilities or obligations (for purposes
of this sentence or clause (h) preceding of this definition)
except to the
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extent that such other indebtedness, liabilities or
obligations are then due."
"'Excess Cash Flow' means, for any fiscal year, and without
duplication, the positive remainder (if any) of (a) EBITDA for such
fiscal year minus (b) the sum of (i) taxes payable by Borrower and its
Subsidiaries in cash for such fiscal year, plus (ii) all principal and
cash interest payments on Debt made by Borrower or its Subsidiaries
during such fiscal year, whether optional, mandatory or scheduled
payments, plus (iii) the lesser of (A) actual Capital Expenditures paid
in cash during such fiscal year or (B) $4,000,000, minus (iv) any
increase in working investment (i.e., the remainder of (A) the sum of
Receivables plus "prepaids and other current assets" as set forth in
the Borrower's financial statements delivered pursuant to Section 8.1)
during such fiscal year, minus (B) "accounts payable and accrued
liabilities" as set forth in the Borrower's financial statements
delivered pursuant to Section 8.1), plus (v) any decrease in working
investment (i.e., the remainder of (A) accounts payable and accrued
liabilities minus (B) the sum of Receivables plus prepaids and other
current assets) during such fiscal year."
"'Fourth Amendment Effective Date' means July 31, 2000."
"'Loans' means as specified in Section 2.1, and 'Loan' means
any of such Loans. Without limiting the generality of the foregoing,
the term 'Loans' includes both the Revolving Loan Portion and the
Amortizing Loan Portion."
"'Monthly Date' means the last day of each month of each year,
the first of which shall be October 31, 2000."
"'Reliance Letter of Credit' means the letter of credit in the
face amount of $794,000 issued by Bank of America in favor of Reliance
National as beneficiary for the account of the Borrower, which expires
June 20, 2001."
"'Revolving Loan Portion' means (a) that portion of the
principal of the Loans outstanding as of the Fourth Amendment Effective
Date that is not a part of the Amortizing Loan Portion of the Loans and
(b) any other Loans made on or after the Fourth Amendment Effective
Date under Section 2.1(a)."
(c) Amendment to Section 2.1(a). Section 2.1(a) of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
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(a) Loans. Subject to the terms and conditions of this
Agreement (including, without limitation, Section 2.12), each Lender
severally agrees to make one or more loans to the Borrower from time to
time from and including the Closing Date to but excluding the Revolving
Period Termination Date up to but not exceeding the positive remainder
of (i) the amount of such Lender's Commitment as then in effect, minus
(ii) such Lender's Commitment Percentage of the Letter of Credit
Liabilities then outstanding. (The loans at any time made by any one or
more of the Lenders to the Borrower pursuant to the Original Agreement,
the Existing Agreement or this Agreement are herein collectively called
the 'Loans'). Subject to the foregoing limitations and the other terms
and conditions of this Agreement, the Borrower may borrow, repay and
reborrow the Revolving Loan Portion of the Loans during (but not after)
the Revolving Period; provided, however, that the aggregate amount of
the outstanding Revolving Loan Portion of the Loans plus the Letter of
Credit Liabilities shall not at any time exceed the Borrowing Base. The
Borrower may not repay and reborrow the Amortizing Loan Portion of the
Loans. The Borrowing Base shall be determined in good faith by the
Agent as of the Fourth Amendment Effective Date and shall be
redetermined in good faith by the Agent monthly thereafter concurrently
with the delivery, or required date of delivery, of the Borrowing Base
Report to be delivered in accordance with Section 8.1(e). In addition,
the Borrowing Base may be redetermined at any time and from time to
time by the Agent in good faith upon the occurrence and during the
continuation of a Default."
(d) Amendment to Section 2.3. Section 2.3 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 2.3 Repayment of Loans. The Borrower shall pay to the
Agent for the account of each applicable Lender the principal of the
Loans (including the Amortizing Loan Portion of the Loans) outstanding
as of the Maturity Date (and the principal of the Loans outstanding as
of the Maturity Date shall be due and payable) in full on the Maturity
Date. In addition to the foregoing, the Borrower shall pay to the Agent
for the account of each applicable Lender the outstanding principal of
the Amortizing Loan Portion of the Loans in eight installments, as
follows:
<TABLE>
<CAPTION>
Payment Date Payment Amount
------------ --------------
<S> <C> <C>
November 15, 2000 $794,000
January 31, 2001 $875,000
April 30, 2001 $875,000
July 31, 2001 $875,000
October 31, 2001 $1,375,000
</TABLE>
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(e) Amendment to Section 2.4. Section 2.4 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"Section 2.4 Interest.
(a) Interest Rate. The Borrower shall pay to the Agent for the
account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender (or deemed made by such Lender with respect to
a Loan assigned to such Lender after the making of such Loan) to the
Borrower for the period commencing on the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following
rates per annum:
(i) during the periods such Loan is an ABR Loan, the
lesser of (A) the ABR plus the Applicable Margin or (B) the
Maximum Rate; and
(ii) during the periods such Loan is a Eurodollar
Loan, the lesser of (A) the Eurodollar Rate plus the
Applicable Margin or (B) the Maximum Rate.
(b) Payment Dates. Accrued interest on the Loans shall be due
and payable as follows:
(i) in the case of ABR Loans, on each Monthly Date;
(ii) in the case of each Eurodollar Loan, on the last
day of the Interest Period with respect thereto;
(iii) upon the payment or prepayment (whether
mandatory or optional) of any Loan or the Conversion of any
Loan to a Loan of the other Type (but only on the principal
amount so paid, prepaid or Converted); and
(iv) on the Maturity Date."
(f) Amendment to Section 2.6. Section 2.6 of the Credit Agreement is
hereby amended by (i) deleting the phrase "(other than a Swingline Advance)" and
(ii) restating clause (d) to read as follows:
"(d) optional prepayments of the Loans shall be applied first to the
outstanding principal of the Revolving Loan Portion of the Loans and
then to the installments due under the Amortizing Loan Portion of the
Loans in the inverse order of the maturities of such installments."
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(g) Amendment to Section 2.7. Section 2.7 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"Section 2.7. Minimum Amounts. Except for Conversions and
prepayments pursuant to Article 4, each borrowing, each Conversion and
each prepayment of principal of the Loans shall be in an amount at
least equal to $500,000 (borrowings, prepayments or Conversions of or
into Loans of different Types or, in the case of Eurodollar Loans,
having different Interest Periods at the same time hereunder shall be
deemed separate borrowings, prepayments and Conversions for purposes of
the foregoing, one for each Type or Interest Period)."
(h) Amendment to Section 2.8. The entire portion of Section 2.8 of the
Credit Agreement immediately following the table contained in such section
(commencing with the sentence beginning with the phrase "Each such notice") is
hereby amended and restated in its entirety to read as follows:
"Each such notice of termination or reduction shall specify the amount
of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or prepayment shall specify the
Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 2.7 hereof) and Type of the Loans to be borrowed,
Converted, Continued or prepaid (and, in the case of a Conversion, the
Type of Loans to result from such Conversion) and the date of
borrowing, Conversion, Continuation or prepayment (which shall be a
Business Day). Notices of borrowings, Conversions, Continuations or
prepayments shall be in the form of Exhibit C hereto, appropriately
completed as applicable. Each such notice which includes reference to
the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Agent shall promptly notify the
Lenders of the contents of each such notice. In the event the Borrower
fails to select the Type of Loan within the time period and otherwise
as provided in this Section 2.8, such Loan (if outstanding as a
Eurodollar Loan) will be automatically Converted into an ABR Loan on
the last day of the preceding Interest Period for such Loan or (if
outstanding as an ABR Loan) will remain as, or (if not then
outstanding) will be made as, an ABR Loan. The Borrower may not borrow
any Eurodollar Loans, Convert any Loans into Eurodollar Loans or
Continue any Loans as Eurodollar Loans if the interest rate for such
Eurodollar Loans would exceed the Maximum Rate."
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 13
<PAGE> 14
(i) Amendment to Sections 2.10(a) and 2.12. Section 2.10(a) of the
Credit Agreement is hereby amended by deleting the last sentence thereof in its
entirety, and Section 2.12(a) of the Credit Agreement is hereby amended by
deleting clause (a) therein in its entirety.
(j) Amendment to Section 2.13(a). Section 2.13(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"(a) Subject to the terms and conditions of this Agreement,
the Borrower may utilize the Commitments by requesting that the Issuing
Bank issue Letters of Credit; provided, that the aggregate amount of
outstanding Letter of Credit Liabilities shall not at any time exceed
$4,000,000. Upon the date of issue of each Letter of Credit, the
Issuing Bank shall be deemed, without further action by any party
hereto, to have sold to each Lender, and each Lender shall be deemed,
without further action by any party hereto, to have purchased from the
Issuing Bank, a participation to the extent of such Lender's Commitment
Percentage in such Letter of Credit."
(k) Addition of Section 2.14. The Credit Agreement is hereby amended to
add the following Section 2.14 to the end of Article 2 of the Credit Agreement.
"Section 2.14 Mandatory Prepayments; Excess Cash Flow.
(a) If at any time the sum of the aggregate outstanding
principal amount of the Revolving Loan Portion of the Loans plus the
Letter of Credit Liabilities exceeds an amount equal to the lesser of
(i) the Borrowing Base or (ii) the Commitment at such time, within one
Business Day immediately after each occurrence thereof the Borrower
shall pay to the Agent the amount of such excess as a prepayment of the
Revolving Loan Portion of the Loans.
(b) The Borrower shall on October 30, 2001, pay (or cause to
be paid) to the Agent, as a prepayment of the Loans and other
Obligations then outstanding, an aggregate amount equal to fifty
percent (50%) of the Excess Cash Flow for the fiscal year ended July
31, 2001.
(c) Prepayments from Asset Dispositions. The Borrower shall,
within five (5) days of receipt of Net Proceeds related to an Asset
Disposition prepay the outstanding Loans as of such date in an
aggregate amount equal to the Net Proceeds of such Asset Disposition.
For purposes of this Agreement the following terms shall have the
following meanings:
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 14
<PAGE> 15
"Asset Disposition" means the disposition whether by
sale, lease, transfer, loss, damage, destruction, condemnation
or otherwise of any assets of Borrower or any of its
Subsidiaries other than sales of assets permitted under
Section 9.8.
"Net Proceeds" means cash proceeds (including
casualty insurance proceeds paid with respect to damage to
property) received by any Borrower or any of the Subsidiaries
from any Asset Disposition (including payments under notes or
other debt securities received in connection with any Asset
Disposition and insurance proceeds and awards of
condemnation), net of (a) the costs of such sale, lease,
transfer or other disposition (including professional fees and
expenses and taxes attributable to such sale, lease or
transfer which are actually expected to be paid) and (b)
amounts applied to repayment of Debt (other than the
Obligations) secured by a Lien on the asset disposed.
(d) Prepayment from Securities Offerings. In the event that
Borrower or any of its Subsidiaries issues any Securities (as defined
below), no later than the third (3rd) Business Day following the date
of receipt of the proceeds from any such issuance, the Borrower shall
prepay the outstanding Loans in an amount equal to the proceeds of such
issuance, net of underwriting discounts and commissions and other
reasonable costs associated therewith. "Securities" means any stock,
shares, options, warrants, voting trust certificates, or other
instruments evidencing an ownership interest or a right to acquire an
ownership interest in a Person or any bonds, debentures, notes or other
evidences of indebtedness, secured or unsecured.
(e) Application of Prepayments. Each prepayment under this
Section 2.14 shall be accompanied with accrued and unpaid interest on
the amount prepaid to the date of prepayment and any amounts payable
under Section 4.5(a) and shall first be applied to the installments of
principal due under the Amortizing Loan Portion of the Loans in the
inverse order of the maturities of such installments and, thereafter,
to any outstanding Revolving Loan Portion of the Loans.
(l) Amendment to Section 3.1. Section 3.1 of the Credit Agreement is
hereby amended by deleting in their entireties each of the two clauses that
begin "provided, however," and end "paid in full".
(m) Amendment to Section 3.2. Section 3.2 of the Credit Agreement is
hereby amended to add the following language to the end of Section 3.2:
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 15
<PAGE> 16
"The principal amount of the Revolving Loan Portion and the Amortizing
Loan Portion of the Loans outstanding as of the Fourth Amendment
Effective Date shall be allocated to and held by the Lenders pro rata
based upon the respective amounts of their Commitments."
(n) Addition of Section 5.9. The Credit Agreement is hereby amended to
add the following Section 5.9 to the end of Article 5 of the Credit Agreement.
"Section 5.9 Release of Liens securing Reliance Letter of
Credit. The Lenders hereby authorize the Agent to, concurrently with
the Borrower's paying the principal payment of the Amortizing Loan
Portion of the Loans on November 15, 2000, release its Liens affecting
$794,000 in cash collateral securing the Letter of Credit Liabilities
relating to the Reliance Letter of Credit which were previously granted
by the Borrower. The Lenders hereby further authorize the Agent to
execute and deliver and to file or record (or to allow or cause to be
filed or recorded), as appropriate, such agreements, documents and
instruments as Agent, in its sole discretion, shall deem necessary or
appropriate to effectuate such release."
(o) Amendment to Section 8.1(a). Section 8.1(a) of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
"(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the end of each fiscal year of the
Borrower, beginning with the fiscal year ending July 31, 2001, (i) a
copy of the annual audit report of the Borrower and its consolidated
Subsidiaries as of the end of and for such fiscal year then ended
containing, on a consolidated basis and with unaudited consolidating
schedules attached, balance sheets and statements of income, retained
earnings and cash flow, in each case setting forth in comparative form
the figures for the preceding fiscal year, all in reasonable detail and
audited and certified by BDO Seidman, LLP or other independent
certified public accountants of recognized standing acceptable to the
Agent and containing no qualification thereto except as may be
reasonably acceptable to the Agent, to the effect that such report has
been prepared in accordance with GAAP and (ii) a certificate of such
independent certified public accountants to the Agent confirming the
calculations set forth in the officer's certificate referred to in
Section 8.1(d) delivered concurrently therewith;"
(p) Amendment to Section 8.1(e). Section 8.1(e) of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 16
<PAGE> 17
"(e) Borrowing Base Reports and Agings. As soon as available
and in any event within 20 days after the end of each month, and, in
any event from time to time upon the request of the Agent or the
Required Lenders, (i) a Borrowing Base Report duly completed and (ii)
an aged trial balance of all then-existing Receivables and all
then-existing accounts payable of the Borrower and its Subsidiaries;"
(q) Amendment to Section 8.6. Section 8.6 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 8.6 Inspection Rights. Each of the Loan Parties will,
and will cause each of its Subsidiaries to, permit representatives and
agents of the Agent and each Lender, during normal business hours and
upon reasonable notice to the Borrower, to examine, copy and make
extracts from its books and records, to visit and inspect its
Properties and to discuss its business, operations and financial
condition with its officers and independent certified public
accountants. The Borrower will authorize its accountants in writing
(with a copy to the Agent) to comply with this Section 8.6. The Agent
or its representatives may, at any time and from time to time at the
Borrower's expense, conduct field exams or other inspections to verify
the Borrowing Base and for such other purposes as the Agent may
reasonably request; provided, however, that, prior to the occurrence of
a Default, no more than three such field exams during any fiscal year
shall be at the Borrower's expense."
(r) Amendment to Section 10.2. Section 10.2 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 10.2 Minimum Net Worth. The Borrower and its
consolidated Subsidiaries will (i) as of July 31, 2000, $59,000,000,
(ii) at all times after July 31, 2000, until such date that the capital
stock issued pursuant to the settlement described in Fourth Amendment
Schedule 1 attached hereto is deemed "stockholder's equity" pursuant to
GAAP, maintain Net Worth in an amount equal to or greater than
$57,700,000 and (ii) at all times on and after the date that such
capital stock is deemed "stockholders equity" pursuant to GAAP,
maintain Net Worth in an amount equal to or greater than $59,000,000."
(s) Amendment to Section 10.3. Section 10.3 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 10.3 Minimum Fixed Charge Coverage Ratio. The
Borrower and its consolidated Subsidiaries will not permit the Fixed
Charge Coverage Ratio calculated as of the end of each fiscal quarter
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 17
<PAGE> 18
identified below and for the four fiscal quarters then ended to be less
than the ratio set forth below for the applicable fiscal quarter end":
<TABLE>
<CAPTION>
FISCAL QUARTER ENDED MINIMUM RATIO
-------------------- -------------
<S> <C>
July 31, 2000, October 31, 2000 and 1.10 to 1.00
January 31, 2001
April 30, 2001 and each fiscal quarter 1.00 to 1.00
end thereafter
</TABLE>
(t) Amendment to Section 10.4. Section 10.4 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 10.4 Capital Expenditures. The Borrower and its
Subsidiaries (a) will not permit the aggregate Capital Expenditures of
the Borrower and its Subsidiaries during the period from February 1,
1999 through and including January 31, 2000 (exclusive of any purchase
or acquisition of Capital Stock or assets permitted by clause (ii) of
Section 9.3) to exceed $3,500,000, (b) will not permit the aggregate
Capital Expenditures of the Borrower and its Subsidiaries during any
period of four consecutive fiscal quarters ended during the period from
April 30, 2000 through and including July 31, 2000 (exclusive of any
purchase or acquisition of Capital Stock or assets permitted by clause
(ii) of Section 9.3) to exceed $3,000,000, and (c) will not permit the
aggregate Capital Expenditures of the Borrower and its Subsidiaries
during any period of four consecutive fiscal quarters ended on or after
October 31, 2000 (exclusive of any purchase or acquisition of Capital
Stock or assets permitted by clause (ii) of Section 9.3) to exceed
$4,000,000."
(u) Amendment to Section 13.11. Section 13.11 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
"Section 13.11 Amendments. No amendment or waiver of any
provision of this Agreement, the Notes or any other Loan Document to
which any Loan Party is a party, nor any consent to any departure by
such Loan Party therefrom, shall in any event be effective unless the
same shall be agreed or consented to by the Required Lenders and the
applicable Loan Party or Loan Parties in writing, and each such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all of the
Lenders and the applicable Loan Party or Loan Parties, do any of the
following: (a) increase the Commitments of the Lenders or subject the
Lenders to any
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 18
<PAGE> 19
additional obligations; (b) reduce the principal of, or interest on,
the Loans or any fees or other amounts payable hereunder; (c) postpone
any date fixed for any payment (including, without limitation, any
mandatory prepayment) of principal of, or interest on, the Loans or any
fees or other amounts payable hereunder; (d) waive any of the
conditions precedent specified in Article 6; (e) change the Commitment
Percentages or the aggregate unpaid principal amount of the Loans or
the number or interests of the Lenders which shall be required for the
Lenders or any of them to take any action under this Agreement; (f)
change any provision contained in Section 3.2, Section 9.13 or this
Section 13.11 or modify the definition of "Borrowing Base", "Eligible
Receivables" or "Required Lenders" contained in Section 1.1; or (g)
except as expressly authorized by this Agreement, release any
Collateral from any of the Liens created by the Security Documents or
release any guaranty of all or any portion of the Obligations; and
provided further, however, that no amendment, waiver or consent
relating to Sections 12.1, 12.2, 12.3, 12.4 or 12.5 shall require the
agreement of any Loan Party. Notwithstanding anything to the contrary
contained in this Section 13.11, no amendment, waiver or consent shall
be made with respect to Article 12 hereof without the prior written
consent of the Agent."
(v) Deletion of Section 13.26. Section 13.26 of the Credit Agreement is
hereby deleted in its entirety from the Credit Agreement.
(w) Addition of Exhibit G. Exhibit G, as attached hereto as Fourth
Amendment Exhibit G, is added to the Credit Agreement.
3. Conditions Precedent. The effectiveness of this Amendment is subject
to the satisfaction of each of the following conditions precedent, all of which
conditions precedent must be satisfied on or before October 30, 2000:
(a) The Agent shall have received all of the following in form and
substance satisfactory to the Agent:
(i) Amendment Documents. This Amendment as executed by the
parties hereto and any other agreement, document, instrument or
certificate reasonably required by the Agent or the Lenders to be
executed or delivered by the Borrower or any other Loan Party in
connection with this Amendment, each duly executed by each of the
parties thereto (collectively, the "Amendment Documents");
(ii) Resolutions. Resolutions of the Board of Directors of the
Borrower and the other Loan Parties certified by its Secretary or an
Assistant Secretary which authorize the execution, delivery and
performance by the
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 19
<PAGE> 20
Borrower and the other Loan Parties of this Amendment and the other
Amendment Documents to which the Borrower or such Loan Party is or is
to be a party;
(iii) Extension Fee. The extension fee referred to in
Paragraph 15 of this Amendment;
(iv) Fees, Costs and Expenses. All fees, costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred
by the Agent incident to this Amendment or required to be paid in
accordance with Section 13.1 of the Credit Agreement, to the extent
incurred and submitted to the Borrower, shall have been paid in full by
the Borrower; and
(v) Additional Information. The Agent shall have received such
additional agreements, documents, instruments and information as the
Agent or its legal counsel, Jenkens & Gilchrist, a Professional
Corporation, may reasonably request to effect the transactions
contemplated hereby;
(b) The representations and warranties contained herein and in all
other Loan Documents, as amended hereby, shall be true and correct as of the
date hereof as if made again on and as of the date hereof (except if and to the
extent that such representations and warranties are or were expressly made only
as of another specific date);
(c) All corporate proceedings taken in connection with this Amendment
and the other Amendment Documents, and all legal matters incident thereto, shall
be reasonably satisfactory to the Agent and its legal counsel, Jenkens &
Gilchrist, a Professional Corporation; and
(d) No Default or Event of Default shall have occurred and be
continuing (after giving effect to this Amendment).
4. Condition Subsequent. The effectiveness of this Amendment is subject
to the condition subsequent that the Borrower shall have delivered to the Agent
and the Lenders, on or before November 10, 2000, the annual audit report of the
Borrower and its consolidated Subsidiaries as of and for the fiscal year ended
July 31, 2000 and all other financial statements, reports, certificates and
other information required to be delivered in accordance with Section 8.1(a), in
each case strictly in accordance with and as required by Section 8.1(a). In the
event that the condition subsequent set forth in this Paragraph 4 has not been
fully and timely satisfied on or before November 10, 2000, this Amendment shall
be, ipso facto, null and void and of no force or effect.
5. Representations and Warranties. Each of the Borrower and the other
Loan Parties hereby jointly and severally represent and warrant to, and agrees
with, the Agent and the Lenders that, as of the date of and after giving effect
to this Amendment, (a) the
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 20
<PAGE> 21
execution, delivery and performance of this Amendment and any and all other
Amendment Documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of the Borrower and the
other Loan Parties and will not violate the Borrower's or any Loan Party's
corporate charter or bylaws; (b) the term Loan Documents as defined in the
Credit Agreement and as used in any of the Loan Documents includes, without
limitation, the Amendment Documents; (c) all representations and warranties set
forth in the Credit Agreement and in the Security Documents are true and correct
as if made again on and as of such date (except if and to the extent that such
representations and warranties were expressly made only as of another specific
date); (d) no Default or Event of Default has occurred and is continuing (after
giving effect to this Amendment); (e) the Credit Agreement, the Notes, the
Guaranties, the Security Documents and the other Loan Documents (as amended by
this Amendment) are and remain legal, valid, binding and enforceable obligations
of the Borrower and the other Loan Parties (as applicable) which are parties
thereto in accordance with their terms; and (f) Fourth Amendment Schedule 1
attached hereto contains an accurate and reasonably complete summary of the
present status of the shareholder litigation as to which the Borrower is
defendant.
6. Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND APPLICABLE LAWS OF THE U.S.
7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any such
counterpart.
8. No Oral Agreements. THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENT THE FINAL
AGREEMENTS BETWEEN AND AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN (A) THE BORROWER OR ANY OTHER
LOAN PARTY AND (B) THE AGENT OR ANY LENDER.
9. Agreement Remains in Effect; No Waiver. Except as expressly provided
herein, all terms and provisions of the Credit Agreement and the other the Loan
Documents shall remain unchanged and in full force and effect and are hereby
ratified and confirmed. No waiver by the Agent or any Lender of any Default or
Event of Default shall be deemed to be a waiver of any other Default or Event of
Default. No delay or omission by the Agent or any Lender in exercising any
power, right or remedy shall impair such power, right or remedy or be construed
as a waiver thereof or an
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 21
<PAGE> 22
acquiescence therein, and no single or partial exercise of any such power, right
or remedy shall preclude other or further exercise thereof or the exercise of
any other power, right or remedy under the Agreement, the Loan Documents or
otherwise.
10. Survival of Representations and Warranties. All representations and
warranties made in this Amendment or any other Loan Document shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by the Agent or any Lender or any closing shall affect the
representations and warranties or the right of the Agent and the Lenders to rely
upon such representations and warranties.
11. Reference to Credit Agreement. This Amendment shall constitute a
Loan Document. Each of the Loan Documents, including the Credit Agreement, the
Amendment Documents and any and all other agreements, documents or instruments
now or hereafter executed and/or delivered pursuant to the terms hereof or
pursuant to the terms of the Credit Agreement as amended hereby, are (if and to
the extent necessary) 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.
12. 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.
13. Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of the Agent, the Lenders, the Borrower and the other Loan
Parties and their respective successors and assigns; provided, however, that
neither the Borrower nor any of the other Loan Parties may assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Lenders.
14. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
15. Extension Fee. The Borrower shall pay to the Agent, on or before
the Fourth Amendment Effective Date, an extension fee in the amount of $258,670,
which extension fee shall be divided pro rata amongst the Lenders based upon
their respective Commitments.
16. Release. In consideration of the agreements of the Agent and the
Lenders set forth in this Amendment, each of the Borrower, the other Loan
Parties and all of Borrower's and the other Loan Parties' heirs, personal
representatives, predecessors, successors and assigns (the "Releasors") hereby
fully releases, remises and forever discharges the Agent, the Lenders and each
of their respective parents and each of their
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 22
<PAGE> 23
other affiliates and predecessors, and each and every one of their past and
present officers, directors, agents, employees, servants, partners,
shareholders, attorneys and managers, and all of their respective heirs,
personal representatives, predecessors, successors and assigns (collectively,
the "Lender-Related Parties") for, from and against any and all claims, liens,
demands, causes of action, controversies, offsets, obligations, losses, damages
and liabilities of every kind and character whatsoever, including, without
limitation, any action, omission, misrepresentation or other basis of liability
founded either in tort, contract or equity and the duties arising thereunder
(collectively, the "Claims") that the Releasors, or any of them, has had in the
past, or now has, whether known or unknown, whether asserted or unasserted, by
reason of any matter, cause or thing set forth in, relating to or arising out
of, or in any way connected with or resulting from, the Obligations, the Loan
Documents or any real or personal property now or at any time securing the
Obligations. It is the express intent of the Agent, the Lenders and the
Releasors that the release and discharge set forth in this Paragraph 16 be
construed as broadly as possible in favor of the Lender-Related Parties so as to
foreclose forever the assertion by any of the Releasors of any Claims, as
defined above, against the Lender-Related Parties or any of them.
17. Borrower, Agent and each of the Banks agrees that the aggregate
amount of each Bank's Loans included in the Amortizing Loan Portion of the Loans
is as follows: Bank of America, National Association $12,613,304.38; Fleet
National Bank $7,007,391.30; Bank Austria Creditanstalt Corporate Finance, Inc.
$4,204,434.78; The Bank of Nova Scotia $4,204,434.78; and Bank One, Texas, N.A.
$4,204,434.76.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers effective as of the day
and year first above written.
THE BORROWER AND ITS SUBSIDIARIES:
DYNAMEX INC.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
DYNAMEX OPERATIONS EAST, INC. (successor by
merger to U.S.C. Management Systems, Inc.
and Cannonball, Inc.)
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 23
<PAGE> 24
DYNAMEX OPERATIONS WEST, INC.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
ROAD RUNNER TRANSPORTATION, INC.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
NEW YORK DOCUMENT EXCHANGE
CORPORATION
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
DYNAMEX DEDICATED FLEET SERVICES, INC.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
DYNAMEX CANADA INC.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 24
<PAGE> 25
THE AGENT AND A LENDER:
Commitment: $7,630,434.80 BANK OF AMERICA, NATIONAL ASSOCIATION,
individually and as the Agent
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
THE CO-AGENTS AND LENDERS:
Commitment: $4,239,130.43 FLEET NATIONAL BANK,
individually and as a Co-Agent
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
Commitment: $2,543,478.26 BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.,
individually and as a Co-Agent
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
ADDITIONAL LENDERS:
Commitment: $2,543,478.26 THE BANK OF NOVA SCOTIA
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
Commitment: $2,543,478.25 BANK ONE, TEXAS, N.A.
By:
------------------------------
Name:
-----------------------------
Title:
-----------------------------
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT - Page 25
<PAGE> 26
FOURTH AMENDMENT EXHIBIT G
Exhibit G to the Credit Agreement
Form of Borrowing Base Report
FORM OF BORROWING BASE REPORT - Solo Page
<PAGE> 27
FOURTH AMENDMENT SCHEDULE 1
Status of Shareholder Litigation
FOURTH AMENDMENT SCHEDULE 1 - Solo Page
