EXHIBIT 10.6
MARCH 2002 MODIFICATION AGREEMENT
THIS MARCH 2002 MODIFICATION AGREEMENT (the "Modification Agreement"),
dated as of March 31, 2002 by and between FIRST UNION COMMERCIAL CORPORATION,
with a place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 (hereinafter called "Lender") and CD&L, Inc., XXXXXXX/NATIONAL
COURIER SYSTEMS, INC., CLICK MESSENGER SERVICE, INC., OLYMPIC COURIER SYSTEMS,
INC., SECURITIES COURIER CORPORATION, SILVER STAR EXPRESS, INC., KBD SERVICES,
INC., LIBERTY TRANSFER CORP., and CD&L AIR FREIGHT, INC. (hereinafter sometimes
individually and collectively called "Borrower").
BACKGROUND
A. The Lender and the Borrower are parties to that certain Loan and
Security Agreement dated July 14, 1997 (as amended from time to time, the "Loan
Agreement").
B. As of the date hereof, defaults (collectively, the "Existing Events
of Default") have occurred and are continuing under the Loan Agreement as a
result of the failure of the Borrower to observe the standards set forth in the
Loan Agreement with regard to its Shareholders Equity, Minimum EBITDA, and
Maximum Cash Flow Leverage Ratio for the measurement period ending December 31,
2001.
C. As of the date hereof, the Lender, at the Borrower's request, has
agreed to waive the Existing Events of Default and to modify the provisions of
the Loan Agreement and the other Loan Documents as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto adopt the above recitals and agree as
follows:
1. Capitalized terms not defined herein but defined in the Loan
Agreement shall have the same meanings ascribed to such terms in the Loan
Agreement.
2. The definition of "Expiration Date" as set forth in Section 1.29 of
the Loan Agreement is hereby amended and restated in its entirety as follows:
1.29 "Expiration Date" means the earlier to occur of (a)
the date upon which the Lender shall declare an Event
of Default under the Obligations and accelerate the
same in accordance with this Agreement; or (b)
January 31, 2003.
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3. Section 2.1 (A) is hereby amended by adding at the conclusion
thereof the following sentence: "Notwithstanding anything contained in this
paragraph with respect to fees charged for the issuance of Bank Letters of
Credit, effective as of June 1, 2002, for each Bank Letter of Credit which is a
standby letter of credit Borrower shall pay to Lender an issuance fee of 2.25 %,
on a per annum basis, of the face amount of such standby letter of credit."
4. Section 7.2(B) is hereby amended and restated in its entirety as
follows:
(B) Cash Flow Leverage Ratio. Borrower, on a
consolidated basis, will not allow its Cash Flow Leverage
Ratio, calculated at the end of each fiscal quarter, to be
more than:
(i) 5.00 to 1.0 for the reporting period ending
March 31, 2002;
(ii) 5.55 to 1.0 for the reporting period ending
June 30, 2002;
(iii) 5.00 to 1.0 for the reporting period ending
September 30, 2002; and
(iv) 4.25 to 1.0 for the reporting period ending
December 31, 2002.
5. Section 7.2(C) is hereby amended and restated in its entirety as
follows:
(C) Capital Expenditures. Borrower, on a
consolidated basis, will not make Capital
Expenditures in excess of One Million Dollars in the
aggregate in the fiscal year ending December 31, 2002
or in any fiscal year thereafter.
6. Section 7.2(D) is hereby amended and restated in its entirety as
follows:
(D) Fixed Charge Coverage. Borrower, on a
consolidated basis, will not allow its Fixed Charge
Coverage Ratio, calculated at the end of each fiscal
quarter, to be less than:
(i) .70 to 1.0 for the twelve-month
reporting period ending March 31,
2002;
(ii) .80 to 1.0 for the twelve-month
reporting period ending June 30,
2002;
(iii) .80 to 1.0 for the twelve-month
reporting period ending September
30, 2002; and
(iv) 1.00 to 1.0 for the twelve-month
reporting period ending December
31, 2002.
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7. Section 7.2(E) is hereby amended and restated in its entirety as
follows:
(E) Shareholders Equity. Borrower, on a
consolidated basis, will not allow its Shareholders
Equity as at the end of the designated three-month
period to be less than the designated amount for each
period:
(i) $3,450,000 for the three-month
period ending March 31, 2002;
(ii) $3,750,000 for the three-month
period ending June 30, 2002;
(iii) $4,150,000 for the three-month
period ending September 30, 2002;
and
(iv) $4,850,000 for the three-month
period ending December 31, 2002.
8. Section 7.2A is hereby amended and restated in its entirety as
follows:
7.2A Minimum EBITDA. Borrower, on a consolidated basis, will
not allow its EBITDA calculated at the end of each fiscal quarter, to
be less than:
(i) $850,000 for the three-month period ending
March 31, 2002;
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(ii) $1,400,000 for the three-month period ending
June 30, 2002;
(iii) $1,600,000 for the three-month period ending
September 30, 2002; and
(iv) $1,900,000 for the three-month period ending
December 31, 2002.
9. Section 7.2B is amended and restated in its entirety as follows:
7.2B Minimum Four Quarter EBITDA. On a consolidated basis,
Borrower will not allow its cumulative four-quarter EBITDA calculated
at the end of each fiscal quarter, to be less than the following:
(i) $5,300,000 for the cumulative
four-quarter period ending March 31, 2002;
(ii) $4,900,000 for the cumulative
four-quarter period ending June 30, 2002;
(iii) $5,000,000 for the cumulative
four-quarter period ending September 30, 2002; and
(iv) $5,700,000 for the cumulative
four-quarter period ending December 31, 2002.
Such compliance shall be calculated on a rolling four quarter
basis. Borrower will certify compliance with the Minimum Four
Quarter EBITDA requirements set forth above within forty five
(45) days of each fiscal quarter end.
10. Upon the effective date of this Modification Agreement, the Lender
shall be deemed to have waived the Existing Events of Default (and only the
Existing Events of Default).
11. In consideration of the Lender's agreement to amend and modify the
Loan Documents as set forth herein, as of the date hereof a non-refundable fee
in the amount of $62,500 (the "March 2002 Modification and Waiver Fee") has
accrued and shall be payable in two installments as follows: (a) $17,500 on the
effective date of this Modification Agreement; and (b) $45,000 on the Expiration
Date (the "Second Installment"). If the Obligations are paid and satisfied in
full on or prior to June 15, 2002 and no Event of Default has occurred and is
continuing, then the Borrower's obligation to pay the Second Installment fee
shall be waived by the Lender. Nothing set forth herein nor in any of the other
Loan Documents shall constitute a waiver of any other fees due to the Lender
including, without limitation, any and all applicable prepayment penalties.
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12. The effectiveness of this Modification Agreement is expressly
conditioned upon the Borrower's satisfaction of each of the following conditions
precedent:
(a) the Borrower shall have paid to the Lender the first installment of
the March 2002 Modification and Waiver Fee of $ 17,500; and
(b) the Borrower shall have paid and/or reimbursed the Lender for the
amount of any counsel, audit, or related fees and expenses accrued by the Lender
on or prior to the date the Borrower executes this Modification Agreement.
13. Prior to the date hereof, the Borrowers have provided to the Lender
their management-prepared financial statements dated (the "Management
Statements") which Management Statements are attached hereto and incorporated by
reference herein as Exhibit "A." The Borrower covenants and agrees that its
audited financial statements delivered for the same time period will not: (a)
show actual results for EBITDA that are less than ten percent (10%) of the
amount indicated for EBITDA on the Management Statements; and (b) show actual
reduction of more that $250,000 in the Borrower's availability to draw Advances
due to the write-off (or write-down) of Accounts Receivable as at the fiscal
year ending December 31, 2001. Any deviation with respect to items (a) and/or
(b) above shall constitute an immediate Event of Default under the Loan
Documents.
14. Release. Each of the Borrowers (collectively, jointly, and
severally, the "CDL Group"), on behalf of themselves, and all persons and
entities claiming by, through, or under any one or more of them, hereby release,
waive and forever discharge the Lender and all of the Lender's officers,
directors, attorneys, agents, affiliates, employees and successors and assigns
(collectively, the "Bank Group"), of, from, and with respect to any and all
manner of action and actions, cause and causes of actions, suits, disputes,
claims, counterclaims and/or liabilities, cross claims, defenses, and any claims
for avoidance or other remedies available to a debtor, its estate or any trustee
or representatives thereof, whether now known or unknown, suspected or
unsuspected, past or present, asserted or unasserted, contingent or liquidated,
whether or not well founded in fact or law, whether in contract, in tort or
otherwise, at law or in equity, which the CDL Group had or now has, claims to
have had, now claims to have or hereafter can, shall or may claim to have
against the Bank Group, for or by reason of any cause, matter, or thing
whatsoever , including any claims based upon, relating to or arising out of any
and all transactions, relationships or dealings with or loans made to the
Borrower prior to the date hereof. This provision shall survive any termination
of this Modification Agreement.
15. Borrower represents that:
(a) each and every representation heretofore made by Borrower in the
Loan Agreement and the other Loan Documents is true and correct as of the date
of this Modification Agreement, except that the representations as to the
financial condition of the Borrower are deemed to be updated to reflect the
financial condition of Borrower as of the date of the most recent financial
statements furnished to Lender;
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(b) no consent or approval of, or exemption by any Person is required
to authorize, or is otherwise required in connection with the execution and
delivery of this Modification Agreement and the other Loan Documents provided
for herein, which has not been obtained and which remains in full force and
effect;
(c) Borrower has the power to execute, deliver and carry out this
Modification Agreement and all documents executed in connection herewith, and
this Modification Agreement and such documents are valid, binding and
enforceable as against Borrower in accordance with their terms; and
(d) to the best of the knowledge of the Borrower and its senior
management, no material adverse change in the financial condition of Borrower
has occurred since the date of the most recent financial statements of Borrower
submitted to Lender, and the information contained in said statements and
reports is true and correctly reflects the financial condition of Borrower as of
the dates of the statements and reports, and such statements and reports have
been prepared in accordance with GAAP and do not contain any material
misstatement of fact or omit to state any facts necessary to make the statements
contained therein not misleading.
(e) all entities comprising the Borrower, their respective states of
incorporation, and the respective addresses of their principal places of
business are set forth on Exhibit "B" attached hereto and incorporated herein by
reference.
16. Each entity comprising the Borrower hereby affirms and reaffirms
its grant to the Lender of a first-priority security interest and lien in and to
all assets of such entity as more fully described on Exhibit "C" attached hereto
and by reference made a part herein, and that such liens and security are
security for its Obligations to Lender. Each of the entities compromising the
Borrower as defined herein hereby affirms and/or reaffirms that it is liable to
the Lender for all of the Obligations and other liabilities of a Borrower under
the Loan Documents (including all security agreements and related documents)
whether or not such entity was an original signatory to the Loan Documents. Each
such entity hereby agrees with the Lender that it shall perform, comply with and
be subject to and be bound by, jointly and severally with the other entities
comprising the Borrower, each of the terms, provisions and conditions of the
Credit Agreement, including, without limitation, the monetary payment
provisions, and each other Loan Documents to which it is deemed to be a party by
virtue of this Modification Agreement or otherwise. Each of the entities
comprising the Borrower hereby covenant and agree that the Lender may at any
time and from time to time, file financing statements, continuation statements
and amendments thereto that describe the collateral in particular or as all
assets of the Borrower or words of similar effect and which contain any other
information required by the Uniform Commercial Code for the sufficiency or
filing office acceptance of any financing statement, continuation statement or
amendment, including whether such entity is an organization, the type of
organization and any organization identification number issued to such entity.
The Borrower agrees to furnish any such information to the Lender promptly upon
request. Any such financing statements, continuation statements or amendments
may be signed by the Lender on behalf of the Borrower, and may be filed at any
time in any jurisdiction whether or not Revised Article 9 of the Uniform
Commercial Code is then in effect in that jurisdiction.
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17. Borrower agrees to pay any and all expenses, including reasonable
counsel fees and disbursements, incurred by Lender in connection with the
preparation, negotiation and execution of this Modification Agreement and all
other Loan Documents provided for herein.
18. This Modification Agreement is intended to supplement and modify
the Loan Agreement as modified between Lender and Borrower and the rights and
obligations of the parties under the Loan Agreement shall not in any way be
vacated, modified or terminated except as herein provided. All terms and
conditions contained in each and every agreement or promissory note or other
evidence of indebtedness of Borrower to Lender are incorporated herein by
reference. If there is a conflict between any of the provisions heretofore
entered into and provisions of this Modification Agreement, then the provisions
of this Modification Agreement shall govern.
19. This Modification Agreement shall be construed in accordance with
the substantive laws of the State of New Jersey without regard to conflicts of
laws.
20. This Modification Agreement may be executed by one or more of the
parties on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Modification
Agreement to be executed and delivered by their duly authorized officers as of
the day and year first-above written.
CD& L, INC.
By:
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Name:
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Title:
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XXXXXXX/NATIONAL COURIER
SYSTEMS, INC.
By:
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Name:
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Title:
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CLICK MESSENGER SERVICE, INC.
By:
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Name:
-----------------------------------------
Title:
----------------------------------------
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OLYMPIC COURIER SYSTEMS, INC.
By:
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Name:
------------------------------------------
Title:
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SECURITIES COURIER CORPORATION
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
SILVER STAR EXPRESS, INC.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
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KBD SERVICES, INC.
By:
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Name:
-----------------------------------------
Title:
----------------------------------------
LIBERTY TRANSFER CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CD&L AIR FREIGHT, INC
By:
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Name:
-----------------------------------------
Title:
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FIRST UNION COMMERCIAL CORPORATION
By:
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Name:
-----------------------------------------
Title:
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