ffe_8k-ex1001.htm


    Exhibit
      10.1

     

    
      


      SECOND
        AMENDMENT TO

       

      AMENDED
        AND RESTATED CREDIT AGREEMENT

       

      


      THIS
        SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein called
        this
“Amendment”) made as of July 30, 2007 among FFE TRANSPORTATION SERVICES, INC., a
        Delaware corporation (“Borrower”), LASALLE BANK NATIONAL ASSOCIATION, as a Bank,
        Collateral Agent and Syndication Agent (“LaSalle”) and COMERICA BANK, a Michigan
        banking corporation, as a Bank, Issuing Bank and Administrative Agent
        (individually, as “Administrative Agent” and collectively with “LaSalle”, the
“Bank”).

       

      W
        I T N E
        S S E T H:

      


      WHEREAS,
        Borrower and Bank have entered into that certain Amended and Restated Credit
        Agreement dated as of October 12, 2006 (as heretofore amended, the “Original
        Credit Agreement”), for the purposes and consideration therein expressed,
        pursuant to which Bank became obligated to make loans to Borrower as therein
        provided; and

       

      WHEREAS,
        Borrower and Bank desire to amend the Original Credit Agreement as provided
        herein;

       

      NOW,
        THEREFORE, in consideration of the premises and the mutual covenants and
        agreements contained herein and in the Original Credit Agreement, in
        consideration of the loans which may hereafter be made by Bank to Borrower,
        and
        for other good and valuable consideration, the receipt and sufficiency of
        which
        are hereby acknowledged, the parties hereto do hereby agree as
        follows:

       

       

      ARTICLE
        I.

       

      Definitions
        and References

       

      § 1.1.         Terms
        Defined in the Original Credit Agreement.  Unless the context
        otherwise requires or unless otherwise expressly defined herein, the terms
        defined in the Original Credit Agreement shall have the same meanings whenever
        used in this Amendment.

       

      § 1.2.         Other
        Defined Terms.  Unless the context otherwise requires, the
        following terms when used in this Amendment shall have the meanings assigned
        to
        them in this § 1.2.

       

      “Amendment”
        means this Second Amendment to Credit Agreement.

       

      “Amendment
        Documents” means, collectively, this Amendment and the confirmation by
        Guarantor with respect to this Amendment and any other document required
        to be
        delivered by Borrower pursuant to Article III hereof.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      “Credit
        Agreement” means the Original Credit Agreement as amended
        hereby.

       

       

      ARTICLE
        II.

       

      Amendments
        to Original Credit Agreement

       

      § 2.1.       Dividends
        and Distributions.  Subsection 5.2 (e)(i) of the Original Credit
        Agreement is hereby amended in its entirety to read as follows:

       

      “(i)           If
        no Default or Potential Default exists, Parent may declare and pay cash
        dividends and/or redeem its common stock from time to time; provided (A)
        that
        the amount of such dividends and/or such redemption prices declared or paid
        during the period from July 30, 2007 until and including December 31, 2007
        shall
        not exceed an aggregate amount of  $7,500,000; (B) that the amount of
        such dividends and/or such redemption prices declared or paid during any
        fiscal
        quarter of Parent ending after December 31, 2007 shall not exceed 100% of
        the
        positive Net Income of Parent and its consolidated subsidiaries for the
        immediately preceding fiscal quarter; and (C) that Parent and each other
        Company
        would otherwise be in compliance with all other financial covenants contained
        in
        this Agreement if such financial covenants were measured as of the date such
        dividends are paid or such redemptions are made after giving effect to such
        dividends and/or redemptions.”

       

       

      ARTICLE
        III.

       

      Conditions
        of Effectiveness

       

      § 3.1.       Effective
        Date.  This Amendment shall become effective as of the date first
        above written when and only when Bank shall have received, at Bank’s
        office,

       

      (a)           a
        duly executed counterpart of this Amendment,

       

      (b)           a
        duly executed Consent and Agreement from Guarantor in the form of Exhibit
        A
        hereto, and

       

      (c)           each
        other document to be executed and delivered by Borrower pursuant hereto or
        thereto.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      ARTICLE
        IV.

       

      Representations
        and Warranties

       

      § 4.1.       Representations
        and Warranties of Borrower.  In order to induce Bank to enter into
        this Amendment, Borrower represents and warrants to Bank that:

       

      (a)           The
        representations and warranties contained in Article IV of the Original Credit
        Agreement are true and correct at and as of the time of the effectiveness
        hereof;

       

      (b)           Borrower
        is duly authorized to execute and deliver this Amendment and the other Amendment
        Documents and is and will continue to be duly authorized to borrow and to
        perform its obligations under the Credit Agreement.  Borrower has duly
        taken all corporate action necessary to authorize the execution and delivery
        of
        this Amendment and the other Amendment Documents and to authorize the
        performance of the obligations of Borrower hereunder and
        thereunder;

       

      (c)           The
        execution and delivery by Borrower of this Amendment and the other Amendment
        Documents, the performance by Borrower of its obligations hereunder and
        thereunder and the consummation of the transactions contemplated hereby do
        not
        and will not conflict with any provision of law, statute, rule or regulation
        or
        of the articles of incorporation and bylaws of Borrower, or of any material
        agreement, judgment, license, order or permit applicable to or binding upon
        Borrower, or result in the creation of any lien, charge or encumbrance upon
        any
        assets or properties of Borrower.  Except for those which have been
        duly obtained, no consent, approval, authorization or order of any court
        or
        governmental authority or third party is required in connection with the
        execution and delivery by Borrower of this Amendment and the other Amendment
        Documents or to consummate the transactions contemplated hereby and
        thereby;

       

      (d)           When
        duly executed and delivered, each of this Amendment and the other Amendment
        Documents will be a legal and binding instrument and agreement of Borrower,
        enforceable in accordance with its terms, except as limited by bankruptcy,
        insolvency and similar laws applying to creditors’ rights generally and by
        principles of equity applying to creditors’ rights generally; and

       

      (e)           The
        audited annual consolidated financial statements of Borrower dated as of
        December 31, 2006 fairly presents the consolidated financial position at
        such
        date and the consolidated statement of operations and the changes in
        consolidated financial position for the periods ending on such dates for
        Borrower.  Copies of such financial statements have heretofore been
        delivered to Bank.  Since such date no material adverse change has
        occurred in the financial condition or businesses or in the consolidated
        financial condition or businesses of Borrower.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      ARTICLE
        V.

       

      Miscellaneous

       

      §
        5.1.       Ratification of
        Agreement.  The Original Credit Agreement as hereby amended is
        hereby ratified and confirmed in all respects.  Any reference to the
        Credit Agreement in any Loan Document shall be deemed to refer to this Amendment
        also.  The execution, delivery and effectiveness of this Amendment and
        the other Amendment Documents shall not, except as expressly provided herein,
        operate as a waiver of any right, power or remedy of Bank under the Credit
        Agreement or any other Loan Document nor constitute a waiver of any provision
        of
        the Credit Agreement or any other Loan Document.

       

      §
        5.2.       Survival of
        Agreements.  All representations, warranties, covenants and
        agreements of Borrower herein shall survive the execution and delivery of
        this
        Amendment and the performance hereof, and shall further survive until all
        of the
        Obligations are paid in full.  All statements and agreements contained
        in any certificate or instrument delivered by Borrower hereunder or under
        the
        Credit Agreement to Bank shall be deemed to constitute representations and
        warranties by, or agreements and covenants of, Borrower under this Amendment
        and
        under the Credit Agreement.

       

      §
        5.3.       Loan
        Documents.  This Amendment and the other Amendment Documents are
        each a Loan Document, and all provisions in the Credit Agreement pertaining
        to
        Loan Documents apply hereto and thereto.

       

      §
        5.4.       Governing
        Law.  This Amendment shall be governed by and construed in
        accordance with the laws of the State of Texas and any applicable laws of
        the
        United States of America in all respects, including construction, validity
        and
        performance.

       

      §
        5.5.       Counterparts;
        Fax.  This Amendment may be separately executed in counterparts
        and by the different parties hereto in separate counterparts, each of which
        when
        so executed shall be deemed to constitute one and the same
        Amendment.  This Amendment may be duly executed by facsimile or other
        electronic transmission.

       

      THIS
        AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT 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.

       

      


      [The
        remainder of this page is intentionally left blank.]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      IN
        WITNESS WHEREOF, this Amendment is executed as of the date first above
        written.

      


      


      


      FFE
        TRANSPORTATION SERVICES, INC.,

      as
        Borrower

      


      


      


      By:  /s/Thomas
        G. Yetter

       Thomas
        G. Yetter

       Senior
        Vice
        President

      


      


      


      


      COMERICA
        BANK,

      as
        a
        Bank, as Issuing Bank

      and
        as
        Administrative Agent

      


      


      


      By: /s/
        Donald P. Hellman

       Donald
        P. Hellman

       Senior
        Vice
        President

      


      


      


      


      LASALLE
        BANK NATIONAL ASSOCIATION,

      as
        a
        Bank, as Collateral Agent and

      as
        Syndication Agent

       

      
        


        By: /s/
          Christopher L. Hursey

         Christopher
          L.
          Hursey

         Vice
          President

         

      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       EXHIBIT
        A

      


       

      CONSENT
        AND AGREEMENT

       

      Each
        of
        the undersigned Guarantors hereby (i) consents to the provisions of this
        Amendment and the transactions contemplated herein, (ii) ratifies and
        confirms the Amended and Restated Guaranty and Amended and Restated Security
        Agreement, each dated as of October 12, 2006, made by them for the benefit
        of
        Bank pursuant to the Credit Agreement, (iii) ratifies and confirms all
        other Loan Documents made by them for the benefit of Bank, (iv) agrees that
        all of their respective obligations and covenants thereunder shall remain
        unimpaired by the execution and delivery of this Amendment and the other
        documents and instruments executed in connection herewith, and (v) agrees
        that such Guaranty, such Security Agreement and such other Loan Documents
        shall
        remain in full force and effect.

      


      


      


      FROZEN
        FOOD EXPRESS INDUSTRIES, INC.

      


      


      By:  /s/
        Thomas G. Yetter

       
Thomas
        G. Yetter

       
Senior
        Vice
        President

      


      FFE,
        INC.

      


      


      By:  /s/
        Leonard W. Bartholomew

       
Leonard
        W.
        Bartholomew

       
Secretary

      


      


      CONWELL
        CORPORATION

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      FX
        HOLDINGS, INC. (formerly names AIRPRO HOLDINGS, INC.)

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      LISA
        MOTOR LINES, INC.

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      FROZEN
        FOOD EXPRESS, INC.

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      CONWELL
        CARTAGE, INC.

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      MIDDLETON
        TRANSPORTATION COMPANY

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      COMPRESSORS
        PLUS, INC.

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      FFE
        LOGISTICS, INC.

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary

      


      


      CONWELL
        LLC

      


      


      By:
        /s/ Leonard W. Bartholomew

       Leonard
        W.
        Bartholomew

       Secretary