EXHIBIT 10.10
SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
April 12, 2002, among CD&L, INC. (f/k/a Consolidated Delivery & Logistics,
Inc.), a Delaware corporation (the "Borrower"), and the financial institutions
party to the Loan Agreement referred to below (the "Lenders"). All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Loan Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower and the Lenders are parties to the Loan
Agreement, dated as of January 29, 1999 (as amended, modified and/or
supplemented through, but not including, the date hereof, the "Loan Agreement");
and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Loan Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 1.04(a) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 1.04(a) in
lieu thereof:
"(a) The Borrower's obligation to pay the principal of, and
interest on, the Loan made to it by each Lender, shall be evidenced by
a promissory note substantially in the form of Exhibit A, with blanks
appropriately completed in conformity herewith (each, a "Note" and,
collectively, the "Notes").".
2. Section 1.04 of the Loan Agreement is hereby further amended by (i)
deleting the text "Non-PIK Note" appearing in clause (b) of said Section and
inserting the text "Note" in lieu thereof, (ii) deleting clause (c) of said
Section in its entirety and (iii) redesignating clause (d) of said Section as
clause (c) of said Section.
3. Section 1.05(a) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 1.05(a) in
lieu thereof:
"(a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Loan from the date such Loan is made
until the maturity thereof (whether by acceleration or otherwise) at a
rate which shall at all times be equal to 12.0% per annum; provided
that notwithstanding the foregoing, in the event that the Senior Debt
Refinancing Date shall not have occurred on or prior to June 15, 2002,
during the period commencing on March 30, 2002 and ending on the Senior
Debt Refinancing Date, the Borrower agrees to (and shall) pay to each
Lender interest in respect of the unpaid principal amount of each such
Loan made by such Lender at a rate equal to 15.0% per annum.".
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4. The Lenders hereby (i) waive any Event of Default that may have
arisen under Section 7.01 of the Loan Agreement solely as a result of the
Borrower's failure to pay the incremental interest on the Loans required to be
paid as a result of the application of the proviso to Section 1.05(a)(I) of the
Loan Agreement (as in effect immediately prior to the Seventh Amendment
Effective Date referred to below) (i.e., 3.0% per annum) and (ii) agree that,
notwithstanding anything to the contrary contained in said Section 1.05(a)(I),
during (and only during) the period commencing on January 15, 2002 and ending on
the Seventh Amendment Effective Date, the unpaid principal amount of each Loan
shall (subject to the immediately succeeding proviso) be deemed to have borne
interest at a rate equal to 12.0% per annum; provided however, that during the
period commencing on March 30, 2002 and ending on the Seventh Amendment
Effective Date, the unpaid principal amount of each Loan may bear interest at a
rate equal to 15.0% per annum as, and to the extent, required by the proviso to
Section 1.05(a) of the Loan Agreement (as amended by this Amendment).
5. Section 1.05(b) of the Loan Agreement is hereby amended by deleting
each reference in said Section to the text "1.05(a)(I)" and inserting the text
"1.05(a)" in lieu thereof.
6. Section 1.05(c) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 1.05(c) in
lieu thereof:
"(c) Accrued and unpaid interest shall be payable (i) monthly
in arrears on the last Business Day of each month (or, in the case of
the increased portion of accrued and unpaid interest accruing during
(and only during) the period commencing on March 30, 2002 and ending on
June 28, 2002 as a result of the application of the proviso appearing
in Section 1.05(a) (i.e., 3.0% per annum on the unpaid principal amount
of each Loan during such period), June 28, 2002), (ii) on any repayment
(on the amount repaid), (iii) at maturity (whether by acceleration or
otherwise) and (iv) after such maturity, on demand.".
7. Section 2.02(f) of the Loan Agreement is hereby amended by deleting
the table appearing in said Section in its entirety and inserting the following
new table in lieu thereof:
"Scheduled Repayment Date Amount
------------------------ ------
May 15, 2002 $250,000
August 15, 2002 $250,000".
8. Notwithstanding anything to the contrary contained in Section 5.13
or 6.02 of the Loan Agreement, neither the Borrower nor any of its Subsidiaries
shall be permitted to consummate a Permitted Acquisition (it being understood
and agreed by the parties hereto that this Section 8 shall replace and supersede
in all respects Section 4 of the Sixth Amendment and Waiver, dated as of
November 19, 2001, among the Borrower and the Lenders, with such previous
Section 4 to have no force and effect on and after the Seventh Amendment
Effective Date (as defined herein)).
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9. Section 6.07 of the Loan Agreement is hereby amended by deleting the
table set forth in said Section in its entirety and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2002 5.50:1.0
June 30, 2002 5.85:1.0
September 30, 2002 5.50:1.0
December 31, 2002 4.75:1.0
March 31, 2003 3.25:1.0
June 30, 2003 3.25:1.0
September 30, 2003 3.25:1.0
December 31, 2003 3.25:1.0
March 31, 2004 3.00:1.0
June 30, 2004 3.00:1.0
September 30, 2004 3.00:1.0
December 31, 2004 3.00:1.0
March 31, 2005 3.00:1.0
June 30, 2005 3.00:1.0
September 30, 2005 3.00:1.0
December 31, 2005 3.00:1.0".
10. Section 6.08 of the Loan Agreement is hereby amended by deleting
the table set forth in said Section in its entirety and inserting the following
new table in lieu thereof:
"Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2002 0.65:1.0
June 30, 2002 0.75:1.0
September 30, 2002 0.75:1.0
December 31, 2002 0.95:1.0
March 31, 2003 1.25:1.0
June 30, 2003 1.25:1.0
September 30, 2003 1.25:1.0
December 31, 2003 1.25:1.0
March 31, 2004 1.25:1.0
June 30, 2004 1.25:1.0
September 30, 2004 1.25:1.0
December 31, 2004 1.25:1.0
March 31, 2005 1.25:1.0
June 30, 2005 1.25:1.0
September 30, 2005 1.25:1.0
December 31, 2005 1.25:1.0".
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11. Section 6.09(b) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 6.09(b) in
lieu thereof:
"(b) The Borrower will not permit the amount of Consolidated
EBITDA for any period of four consecutive fiscal quarters (in each
case, taken as one accounting period) ending on a date set forth below
to be less than the amount set forth opposite such date below:
Fiscal Quarter Ended Amount
-------------------- ------
March 31, 2002 $5,250,000
June 30, 2002 $4,850,000
September 30, 2002 $5,150,000
December 31, 2002 $5,900,000
Last day of each fiscal quarter of the Borrower ended $6,200,000".
after December 31, 2002
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12. The definition of "Consolidated EBITDA" appearing in Section 8.01
of the Loan Agreement is hereby amended by deleting the text "Sections 6.07 and
6.08" appearing in said definition and inserting the text "Sections 6.07, 6.08
and 6.09(b)" in lieu thereof.
13. The definition of "Loan" appearing in Section 8.01 of the Loan
Agreement is hereby amended by (x) deleting the text "(i)" appearing in said
definition and (y) deleting clause (ii) appearing in said definition in its
entirety.
14. The definition of "Pro Forma Basis" appearing in Section 8.01 of
the Loan Agreement is hereby amended by deleting the text "excluding
calculations of compliance with Section 6.09(b)" appearing in said definition.
15. Section 8.01 of the Loan Agreement is hereby further amended by (x)
deleting the definitions of "Final Compliance Date," "Financial Covenant
Compliance Date," "Minimum Consolidated Net Worth", "Note," "Non-PIK Note," "PIK
Portion," "Quarterly Payment Date" and "Subsequent Loan PIK Note" appearing in
said Section and (y) inserting the following new definitions in alphabetical
order:
"Cash Availability" shall mean, as at any date of
determination, the sum of (i) the cash and Cash Equivalents held by the
Borrower and its Subsidiaries on such date plus (ii) the aggregate
amount of unutilized commitments actually available under the Credit
Agreement (or any successor agreement thereto permitted hereunder) on
such date (for such purposes, determined after giving effect to any
default or event of default thereunder (and any other provision
therein) which may limit the availability of such commitments to the
Borrower).
"Minimum Consolidated Net Worth" shall mean (I) as at any date
of determination on or prior to December 31, 2002, $3,400,000 and (II)
as at any date of determination after December 31, 2002, an amount
equal to the sum of (i) 70% of the Shareholders' Equity as at September
30, 1998 plus (ii) 50% of Cumulative Consolidated Net Income at such
date plus (iii) the aggregate cash proceeds (net of underwriting
discounts and commissions) received by the Borrower after the Effective
Date from issuances of equity of the Borrower less (iv) any dividends
on the capital stock of the Borrower theretofore declared but not yet
paid, but only to the extent not already deducted when determining the
amount specified in clause (i) above.
"Note" shall have the meaning provided in Section 1.04(a).
"Senior Debt Refinancing Date" shall mean the date upon which
the Credit Agreement (including any successor Credit Agreement entered
into pursuant to a Permitted Refinancing) shall have been amended to
permit, and this Agreement shall have been amended on terms
satisfactory to the Lenders to provide for, (i) a repayment of Loans
hereunder in an aggregate principal amount of $1,000,000 on the date of
such amendment and (ii) additional mandatory repayments of Loans
hereunder on the last Business Day of March, June, September and
December for the fiscal years of the Borrower ended December 31, 2003,
December 31, 2004 and December 31, 2005 in an amount equal to the
Scheduled Repayment Amount determined at the respective date of
repayment.
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"Scheduled Repayment Amount" shall mean, at any time, (i) in
the event the Cash Availability at such time is less than $2,000,000,
$187,500, (ii) in the event the Cash Availability at such time is equal
to or greater than $2,000,000 but less than $4,000,000, $250,000 and
(iii) in the event the Cash Availability at such time is equal to or
greater than $4,000,000, $312,500.
16. Section 10.07(a) of the Loan Agreement is hereby amended by
deleting the text "Sections 6.07 and 6.08" appearing in said Section and
inserting the text "Sections 6.07, 6.08 and 6.09(b)" in lieu thereof.
17. The Loan Agreement is hereby amended by (x) redesignating Exhibit
A-1 thereto as "Exhibit A" and (y) deleting Exhibit A-2 thereto in its entirety.
18. The Borrower, for its part, acknowledges and agrees that any
failure by it to make a payment in accordance with the requirements of Section
2.02(f) of the Loan Agreement shall give rise to an Event of Default under
Section 7.01 of the Loan Agreement, notwithstanding any prohibition on such
payment contained in the Credit Agreement (whether as a result of an "event of
default" under the Credit Agreement or otherwise).
19. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Loan Agreement
or any other Loan Document.
20. In order to induce the Lenders to enter into this Amendment, each
Loan Party hereby remises, releases and forever discharges, and by these
presents do for their Subsidiaries (direct or indirect), and for themselves and
their predecessors, successors, affiliates and assigns (each, a "Releasor"),
remise, release and forever discharge, each Lender, and their predecessors,
affiliates, subsidiaries (direct or indirect), successors, assigns,
participants, officers, directors, shareholders, partners, employees or agents,
of and from all manner of actions at law or equity, all causes of action for
damages, costs, debts, sums of money, accounts, bills, rights of indemnity,
breach of contract, provision of labor or materials, loss of use, loss of
services, expenses, compensation, consequential or punitive damages, equitable
subordination, avoidance of preferential or fraudulent transfers, or any other
thing whatever, arising by virtue of actions taken, actions omitted to be taken
or the occurrence of any other event on or prior to the Seventh Amendment
Effective Date, relating in any way to (i) this Amendment, the Loan Agreement,
the Obligations or any other Loan Document, (ii) any claims (including, without
limitation, for contribution or indemnification) which have or could have arisen
out of any of the transactions contemplated by this Amendment or the Loan
Documents or any other proceedings that have been brought or may be brought by
any party hereto or to any Loan Document or any third party relating to the Loan
Documents or the transactions contemplated thereby, (iii) any acts, transactions
or events that are the subject matter of this Amendment or the Loan Documents or
(iv) the prosecution of any claims or any settlement negotiations which such
Releasor ever had, now or which it, its Subsidiaries (direct or indirect), or
its successors or assigns hereafter can, shall or may have against any Lender,
and their predecessors, affiliates, Subsidiaries (direct or indirect),
successors, assigns, participants, officers, directors, shareholders, partners,
employees or agents, by reason of (with respect to each of clauses (i)-(iv)
above) any matter, cause or thing whatsoever on or prior to the Seventh
Amendment Effective Date relating to this Amendment or the Loan Documents;
provided, however, that nothing herein shall be construed or deemed to release
any covenants or agreements contained herein or in any Loan Document so long as
such Loan Document shall remain in full force and effect.
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21. Each Loan Party hereby acknowledges and agrees that the Obligations
are not subject to avoidance, defense, objection, action, counterclaim or
setoff, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally. The Obligations constitute
legal, valid and binding obligations of each Loan Party, enforceable in
accordance with the terms of the Loan Documents and pursuant to applicable law,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, and subject to the limitations imposed by
general equitable principles (regardless whether such enforceability is
considered in a proceeding at law or in equity). Furthermore, no Loan Party will
use any of its cash or other assets to object to or contest in any manner, or
raise any objections, counterclaims or defenses to, the validity or
enforceability of the claims of the Lenders, or to investigate or assert any
claims or causes of action arising on or prior to the Seventh Amendment
Effective Date against the Lenders.
22. Except as expressly set forth in this Amendment, each of the
undersigned hereby acknowledges and agrees that the execution and delivery by
the Lenders of this Amendment shall not be deemed (i) to create a course of
dealing or otherwise obligate the Lenders to forbear or execute similar
agreements under the same or similar circumstances in the future, (ii) to
modify, relinquish or impair any right of the Lenders to receive any indemnity
or similar payment from any Person or entity as a result of any matter arising
from or relating to this Amendment, (iii) to waive any right of the Lenders to
receive interest at an increased rate as a result of any Events of Default that
may occur under the Loan Agreement, (iv) to obligate the Lenders to make or
agree to make any extension of credit, (v) to obligate the Lenders in any way to
forbear from individually or collectively enforcing remedies under the Loan
Agreement or any other Loan Document in any manner or (vi) a commitment from any
of the Lender to forbear or "stand still". Except as expressly set forth in this
Amendment, no past or future forbearance on the part of any of the Lenders
should be viewed as a limitation upon or waiver of the absolute right and
privilege of the Lenders in exercising rights and remedies that currently exist
or may exist after the Seventh Amendment Effective Date.
23. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Lenders.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
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24. This Amendment shall become effective on the date (the "Seventh
Amendment Effective Date") when (i) the Borrower and each of the Lenders shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Lenders at the Notice Office and (ii) the Borrower shall have paid all of
the outstanding legal fees and expenses of White & Case LLP, counsel to the
Lenders.
25. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) no Default or Event of Default
exists as of the Seventh Amendment Effective Date, immediately after giving
effect to this Amendment, and (ii) on the Seventh Amendment Effective Date,
after giving effect to this Amendment, all representations and warranties
contained in the Loan Agreement and in the other Loan Documents are true and
correct in all material respects (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be true and correct in all material respects only as of such specified
date).
26. From and after the Seventh Amendment Effective Date, all references
in the Loan Agreement and each of the Loan Documents to the Loan Agreement shall
be deemed to be references to the Loan Agreement as modified hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
CD&L, INC.
By:
-----------------------------------------
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:
-----------------------------------------
Name:
Title:
20
EXETER VENTURE LENDERS L.P.
By: Exeter Venture Advisors, Inc., as its
general partner
By:
------------------------------------------
Name:
Title:
EXETER CAPITAL PARTNERS IV, L.P.
By: Exeter IV Advisors, L.P., as its general
partner
By: Exeter IV Advisors, Inc. as its general
partner
By:
-----------------------------------------
Name:
Title:
21
Each of the undersigned, each being a Subordinated Guarantor (as defined in the
Loan Agreement referenced in the foregoing Amendment) under the Loan Agreement
referenced in the foregoing Amendment, hereby consents to the entering into of
the Amendment and agrees to the provisions thereof and makes the
representations, agreements and acknowledgments set forth therein (including,
without limitation, those set forth in Sections 20, 21 and 22 thereof).
CLICK MESSENGER SERVICE, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
KBD SERVICES, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
OLYMPIC COURIER SYSTEMS, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
SECURITIES COURIER CORPORATION,
as a Guarantor
By:
--------------------------------------
Name:
Title:
SILVER STAR EXPRESS, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
CD&L AIR FREIGHT, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
22
CLAYTOM/NATIONAL COURIER SYSTEMS, INC.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
LIBERTY TRANSFER CORP.,
as a Guarantor
By:
--------------------------------------
Name:
Title:
23
