Amendment to Loan And Security Agreement
This Amendment to Loan and Security Agreement ("Amendment") is made as
of this 15th day of May, 2003 by and among LASALLE BUSINESS CREDIT, LLC, a
Delaware limited liability company (successor by merger to LASALLE BUSINESS
CREDIT, INC.) ("Lender"), 0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, XX 00000,
and STONEPATH GROUP, INC., a Delaware corporation ("Stonepath"), CONTRACT AIR,
INC., a Minnesota corporation ("Contract Air"), DISTRIBUTION SERVICES, INC., a
Minnesota corporation ("Distribution Services"), GLOBAL CONTAINER LINE, INC., a
Washington corporation ("GLOBAL CONTAINER"), GLOBAL TRANSPORTATION SERVICES,
INC., a Washington corporation ("Global"), M.G.R., INC., d/b/a AIR PLUS LIMITED,
a Minnesota corporation ("Air Plus"), NET VALUE, INC., a Delaware corporation
("Net Value"), STONEPATH LOGISTICS DOMESTIC SERVICES, INC., a Delaware
corporation ("Logistics"), STONEPATH LOGISTICS INTERNATIONAL SERVICES, INC., a
Delaware corporation ("International Services") and STONEPATH OPERATIONS INC., a
Delaware corporation ("Operations") (Stonepath, Contract Air, Distribution
Services, Global, Global Container, Air Plus, Net Value, Logistics,
International Services and Operations are referred to herein collectively as the
"Initial Loan Parties" and each individually as an "Initial Loan Party") and
UNITED AMERICAN ACQUISITIONS AND MANAGEMENT, INC. d/b/a UNITED AMERICAN FREIGHT
SERVICES, INC., a Michigan corporation ("United American") and TRANSPORT
SPECIALISTS, INC., a Virginia corporation ("Transport" and together with United
American, the "New Loan Parties").
BACKGROUND
A. On May 15, 2002, Lender and the Initial Loan Parties entered into a
certain Loan and Security Agreement (which, as previously amended by certain
Joinder Agreements (the "Joinders") is hereinafter referred to as the "Loan
Agreement") to reflect certain financing arrangements between the parties
thereto.
B. The Loan Agreement and all other documents, instruments and
agreements executed in connection therewith are collectively hereinafter
referred to as the "Existing Financing Agreements".
C. Pursuant to the Joinders, United American and Transport joined into
and adopted the Existing Financing Agreements, became Loan Parties and assumed,
along with the Initial Loan Parties, on a joint and several basis, the
obligations and liabilities of the Initial Loan Parties thereunder. The term
"Loan Parties" shall for all purposes refer to the Initial Loan Parties and the
New Loan Parties.
D. The parties have agreed, subject to the terms and conditions of this
Amendment, to modify and amend their financing arrangements.
E. All capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Loan Agreement. In the case
of a direct conflict between the provisions of the Loan Agreement and the
provisions of this Amendment, the provisions hereof shall prevail.
NOW THEREFORE, with the foregoing Background hereinafter deemed
incorporated by reference herein and made part hereof, the parties hereto,
intending to be legally bound, promise and agree as follows:
I. AMENDMENTS
1. The definition of "Capital Expenditures" in Section 1 of the Loan
Agreement is deleted in its entirety and replaced by the following:
"Capital Expenditures" shall mean with respect to any fiscal
measurement period, the aggregate of all cash expenditures not funded as a
result of the creation of a capitalized lease during such fiscal measurement
period that are required by GAAP to be included in or reflected by the property,
plant and equipment or similar fixed asset accounts (or intangible accounts
subject to amortization) on a balance sheet, all calculated on a consolidated
basis for the Loan Party Group in accordance with GAAP. For avoidance of doubt,
no portion of the purchase price of any Permitted Acquisition shall be treated
as a Capital Expenditure.
2. The definition of "Consolidated EDITDA" in Section 1 of the Loan
Agreement is deleted in its entirety and replaced by the following:
"Consolidated EBITDA" shall mean, with respect to any fiscal
measurement period, the sum of (i) Consolidated Net Income for such fiscal
measurement period plus (ii) interest expense, income tax expense, depreciation
and amortization expense for such fiscal measurement period, plus (iii) the
difference (if a positive number) between (A) all cash dividends from a Foreign
Subsidiary to a Domestic Subsidiary and (B) all loans made by a Domestic
Subsidiary to a Foreign Subsidiary, plus (iv) expenses incurred in the ordinary
course of business paid through the issuance of common stock in Stonepath, all
determined on a consolidated basis for the Loan Party Group in accordance with
GAAP.
3. Section 13(b) of the Loan Agreement is deleted in its entirety and
replaced by the following:
(b) Indebtedness.
No Loan Party shall create, incur, assume or become obligated (directly
or indirectly), Indebtedness other than (i) the Loans, (ii) unsecured
Subordinated Debt in an amount not to exceed $25,000,000 in principal
outstanding in the aggregate for all Loan Parties at any one time, provided
that, at all times during which any such Subordinated Debt is outstanding, the
then outstanding principal balance of Revolving Loans outstanding under this
Agreement is at least $5,000,000; (iii) the present indebtedness listed on
Schedule 11(n) hereto; (iv) unsecured indebtedness to trade creditors in the
ordinary course of business on standard terms; and (v) a capital lease entered
into by Stonepath, Logistics and Air Plus with LaSalle National Leasing
Corporation for a term of at least 3 years with a total obligation of
approximately $2,050,000 covering software systems, computers and ancillary
equipment for the business operations of the foregoing co-lessees.
4. Section 12(k) of the Loan Agreement is deleted in its entirety and
replaced by the following:
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(k) Carrier Confirmation Agreements.
Loan Parties shall deliver to Lender no later than December 31, 2003
Carrier Confirmation Agreements from such common carriers whose total business
with the Loan Parties would constitute at least 50% of the aggregate common
carrier business of all Loan Parties conducted with all common carriers during
the period from the Closing Date through December 31, 2003. Loan Parties shall
nevertheless utilize all reasonable efforts to obtain Carrier Confirmation
Agreements from all of its common carriers no later than December 31, 2003.
II. Confirmation of Collateral
Loan Parties hereby confirm that all security interests at any time
granted by them to Lender continue in full force and effect and secure and shall
continue to secure all of the Liabilities and that all assets subject thereto
remain free and clear of any liens or encumbrances other than those in favor of
Lender or as specifically set forth in the Loan Agreement and exhibits thereto.
III. Representations And Warranties
Loan Parties hereby reaffirm all representations and warranties made to
Lender under the Loan Agreement and all of the other Existing Financing
Agreements and confirm that all are true and correct as of the date hereof. Each
Loan Party further represents and warrants that (a) each has the power,
authority and legal right to execute, deliver and carry out the terms of this
Amendment, (b) such actions have been duly authorized by all necessary corporate
action on the part of each Loan Party, (c) the officers executing this Amendment
on its behalf have been similarly authorized and empowered, (d) this Amendment
does not contravene any provisions of its Articles of Incorporation and By-laws,
or of any instrument, contract or agreement to which either is a party or by
which any of its properties is bound, and (e) no Event of Default is outstanding
under the Loan Agreement.
IV. Payment Of Expenses
Loan Parties shall pay or reimburse Lender for its reasonable expenses
in connection with the preparation, negotiation and execution of this Amendment
and the documents provided for herein or related hereto, including, without
limitation, attorneys' fees.
V. Reaffirmation of Existing AgreemenTS
This Amendment shall be deemed incorporated into and made part of the
Loan Agreement. Except as expressly modified by the terms hereof, all of the
terms and conditions of the Loan Agreement, as previously amended, and all other
of the Existing Financing Agreements are hereby reaffirmed and shall continue in
full force and effect as therein written.
VI. Miscellaneous
1. The headings of any paragraph of this Amendment are for convenience
only and shall not be used to interpret any provision hereof.
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2. Loan Parties agree to execute any other documents, instruments and
writings, in form satisfactory to Lender, as Lender may reasonably request, as
further evidence of Loan Parties' obligations hereunder and otherwise to carry
out the intentions of the parties hereunder.
3. No modification hereof or of any agreement referred to herein shall
be binding or enforceable unless in writing and signed on behalf of the party
against whom enforcement is sought.
4. No rights are intended to be created hereunder for the benefit of
any third party donee, creditor or incidental beneficiary.
5. Two or more duplicate originals of this Amendment may be signed by
the parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. Closing shall be deemed to have occurred
hereunder when all parties hereto have executed and delivered to the others this
Amendment or a duplicate original hereof.
[Signatures appear on following page]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
LASALLE BUSINESS CREDIT, LLC. STONEPATH GROUP, INC.
CONTRACT AIR, INC.
DISTRIBUTION SERVICES, INC.
BY: GLOBAL CONTAINER LINE, INC.
---------------------------------- GLOBAL TRANSPORTATION SERVICES, INC.
M.G.R., INC. d/b/a AIR PLUS LIMITED
NET VALUE, INC.
STONEPATH LOGISTICS INTERNATIONAL
SERVICES, INC.
STONEPATH OPERATIONS, INC.
UNITED AMERICAN ACQUISITIONS AND
MANAGEMENT, INC. D/B/A UNITED
AMERICAN FREIGHT SERVICES, INC.
TRANSPORT SPECIALISTS, INC.
BY:
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As Authorized Officer of each
of the above-named Loan Parties
[Signature Page to Amendment]
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