EXHIBIT 10.23
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (this
"Amendment"), is made and entered into effective as of the 13th day of November,
1997 by and between FINOVA CAPITAL CORPORATION, a Delaware corporation
("Lender") and AMERITRUCK DISTRIBUTION CORP., a Delaware corporation
("Borrower"). This Amendment modifies and amends that certain Loan and Security
Agreement, dated May 5, 1997, between Lender and Borrower (the "Agreement"). All
terms used herein with initial capital letters, unless otherwise specifically
defined herein, shall have the same meanings as set forth in the Agreement. All
references to the Agreement shall include the Schedule.
RECITALS:
WHEREAS, Borrower has informed Lender that Borrower is attempting to
obtain Twenty Million Dollars ($20,000,000) in connection with a private
placement of its capital stock;
WHEREAS, in connection therewith, Borrower and Lender desire to amend
the Agreement in certain respects;
NOW, THEREFORE, in consideration of the foregoing premises and other
valuable consideration, the parties hereto agree as follows:
1. Amendment to Schedule. Subject to the terms and conditions of
Section 2 below, the Agreement is amended as follows:
(a) Section 18.1 of the Agreement shall be amended to add the
following definitions in the appropriate alphabetical order:
"Additional Availability Period" means the 120 day period commencing
on November 13, 1997 and ending on the earliest of (A) Xxxxx 00, 0000, (X)
the date a Qualified Private Placement is consummated and (C) the date
Borrower notifies Lender in writing of its desire to terminate the
Additional Availability Period.
"Qualified Private Placement" means any non-public sale of shares of
any class of the Company's capital stock yielding gross proceeds to the
Company of at least $10,000,000.
"Special Advances" means the portion of the Revolving Loans that
exceed $60,000,000 and/or are attributable to advances against clauses (iv)
and/or (v) of Section 1.2 of the Schedule to the Agreement. For purposes
hereof, Revolving Loans shall be deemed made first, against clauses (i),
(ii) and (iii) of Section 1.2 of the Schedule and then against clauses (iv)
and (v), and
payments shall be deemed to be made first against Special Advances and then
against the other Revolving Loans.
"Subordinated Debt" means the Indebtedness of up to $1,000,000
evidenced by the documents substantially in the form attached as Exhibit A
to that certain Third Amendment to Loan and Security Agreement dated as of
November 13, 1997 between Borrower and Lender.
(b) Clause (vi) of the definition of "Eligible Receivables" in
Section 18.1 of the Agreement is amended and restated in its entirety as
follows:
(vi) the account debtor is the United States or any department,
agency or instrumentality thereof or any State, city or municipality of the
United States, unless the applicable Loan Party with respect thereto has
complied with the Federal Assignment of Claims Act or the applicable state
statute, if any; provided, that so long as no Event of Default exists, if
the applicable Loan Party has failed to comply with the Federal Assignment
of Claims Act, (A) at all times on or prior to December 13, 1997,
Receivables owing by the United States that otherwise satisfy the
definition of Eligible Receivables shall be Eligible Receivables, except
for the aggregate portion thereof that exceeds fifteen percent (15%) of all
Eligible Receivables (or with respect to the United States Postal Service,
the portion thereof that exceeds ten percent (10%) of all Eligible
Receivables) and (B) at all times after December 13, 1997, Receivables
owing by the United States that otherwise satisfy the definition of
Eligible Receivables shall be Eligible Receivables, except for the
aggregate portion thereof that exceeds One Million Dollars ($1,000,000);
(c) The definition of "Net Worth" in Section 18.1 of the Agreement is
amended and restated in its entirety as follows:
"Net Worth" at any date means Borrower's net worth as determined on a
consolidated basis in accordance with generally accepted accounting
principles, consistently applied, excluding the effect of Restructuring
Charges, but plus the Subordinated Debt.
(d) The definition of "Senior Contractual Debt Service" in Section
18.1 of the Agreement is amended and restated in its entirety as follows:
"Senior Contractual Debt Service" means, for any period, Total
Contractual Debt Service (excluding the sum of payments under or required
to be made by the Loan Parties during such period for scheduled principal
payments due with respect to the Subordinated Debt and under the Indenture
(and any notes issued pursuant thereto) and accrued interest (whether or
not paid) during such period on all such Indebtedness with respect to the
Subordinated Debt and the Indenture (and any notes issued pursuant
thereto)).
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(e) Section 1.1 of the Schedule to the Agreement is amended and
restated in its entirety as follows:
TOTAL FACILITY (Section 1.1): $60,000,000; provided, that during the
Additional Availability Period, the Total
Facility shall be $64,000,000
(f) Section 1.2 of the Schedule to the Agreement is amended and
restated in its entirety as follows:
LOANS (SECTION 1.2):
Revolving Loans: A revolving line of credit
(the "Revolving Loans") consisting of loans
against Eligible Receivables and against
Eligible Equipment in an aggregate
outstanding principal amount not to exceed
the lesser of:
(a) Total Facility
(b) the sum of:
(i) an amount equal to eighty-five
percent (85%) of the net amount
of the Eligible Receivables
that are billed; plus
(ii) an amount (not to exceed the
lesser of (A) Four Million
Dollars ($4,000,000) and (B) an
amount equal to three (3)
working days' revenue (based on
the most recent monthly
financials)) equal to seventy
(70%) of Eligible Receivables
that are unbilled less than
five (5) Business Days; plus
(iii) an amount equal to the
Equipment Advance Rate
multiplied by the Orderly
Liquidation Value of the
Eligible Equipment; plus
(iv) during the Additional
Availability Period only, an
amount equal to five percent
(5%) of the net amount of the
Eligible Receivables that are
billed; plus
(v) during the Additional
Availability Period only, an
amount equal to the
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product of (A) the amount by
which eighty percent (80%)
exceeds the Equipment Advance
Rate multiplied by (B) the
Orderly Liquidation Value of
the Eligible Equipment; less
(vi) the aggregate undrawn face
amount of all Letters of
Credit issued under Section
1.4 of this Agreement; less
(vii) the amount of the Landlord
Reserve and such other
reserves as Lender, in its
reasonable credit judgment,
deems proper from time to
time based on the results of
its examinations, Appraisals
or other credit or collateral
considerations which indicate
a deterioration in Eligible
Receivables or Eligible
Equipment from the date
hereof, such that additional
reserves for Eligible
Receivables and/or Eligible
Equipment are warranted.
Notwithstanding the foregoing, (A) the loans
against Eligible Equipment shall not exceed
$35,000,000 at any time, (B) the loans
against the availability described in
clauses (iv) and (v) shall not exceed Six
Million Dollars ($6,000,000) and (C) the
availability described in clauses (iv) and
(v) above shall not be available at any time
other than during the Additional
Availability Period. The Revolving Loans
shall be segregated into two tranches:
revolving loans under tranche A (the
"Revolving A Loans") and revolving loans
under tranche B (the "Revolving B Loans").
The maximum outstanding principal amount of
Revolving A Loans is Thirty Million Dollars
($30,000,000) and the maximum outstanding
principal amount of Revolving B Loans is
Thirty Million Dollars ($30,000,000);
provided, that during the Additional
Availability Period, the maximum outstanding
principal amount of Revolving B Loans shall
be Thirty-Four Million Dollars
($34,000,000). With respect to each request
for a Revolving Loan or Letter of Credit,
Borrower shall designate whether such
request is for a Revolving A Loan (or under
the tranche for Revolving A Loans in the
case of Letters of Credit) or a Revolving B
Loan (or under the tranche for Revolving B
Loans in the case of Letters
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of Credit). With each request for a
Revolving B Loan (or a Letter of Credit to
be issued under the tranche for Revolving B
Loans), Borrower shall provide Lender with a
certificate of the chief financial officer
of Borrower, in form and substance
satisfactory to Lender that such Revolving B
Loan or Letter of Credit, as applicable,
will not result in a breach or violation of
the Indenture, and at the request of Lender,
with an opinion of Borrower's counsel that
such Revolving B Loan or Letter of Credit,
as applicable, will not result in a breach
or violation of the Indenture.
(g) The first section of Section 3.1(A) of the Schedule to the
Agreement is amended and restated in its entirety as follows:
INTEREST AND FEES (SECTION 3.1):
A. Interest.
(i) The Revolving Loans shall bear
interest on the unpaid principal
amount thereof from the date such
Revolving Loans are made and until
paid in full at one of the following
rates, as selected by Borrower from
time to time as provided in this
Section 3.1:
(a) Base Rate Option. That
portion of the outstanding
principal balance of the
Revolving Loan subject to
this option shall bear
interest at a fluctuating
rate per annum equal to (A)
if the Additional
Availability Period has not
ended, the Base Rate plus one
and three-quarters percent
(1.75%) during the period
commencing January 12, 1998
and ending on the last day of
the Additional Availability
Period and (B) the Base Rate
plus three-quarters of one
percent (0.75%) at all other
times; and
(b) LIBOR Rate Option. That
portion of the outstanding
principal balance of the
Revolving Loan subject to
this option shall bear
interest at a fixed rate per
annum equal to (A) if the
Additional Availability
Period has
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not ended, the LIBOR Rate
applicable to such LIBOR Rate
Portion plus three and three-
quarters percent (3.75%)
during the period commencing
January 12, 1998 and ending
on the last day of the
Additional Availability
Period and (B) the LIBOR Rate
applicable to such LIBOR Rate
Portion plus two and three-
quarters percent (2.75%) at
all other times.
; provided, that during the period
November 13, 1997 and ending January
11, 1998, the Special Advances shall
bear interest on the unpaid principal
amount thereof from the date such
Special Advances are made and until
paid in full at a rate per annum equal
to eleven percent (11%).
(h) A new Section 3.1(E) is added to the Schedule to the Agreement as
follows:
E. Fees for Additional Availability
Period. Borrower shall pay to Lender
an Additional Availability Facility
Fee equal to One Hundred Fifty
Thousand Dollars ($150,000) which
shall be payable on the first day of
the Additional Availability Period
and, if the Additional Availability
Period has not yet ended, another
Additional Availability Facility Fee
equal to One Hundred Eighty Thousand
Dollars ($180,000) which shall be
payable on January 12, 1998.
(i) Exhibit E to the Agreement is replaced with the Exhibit E
attached hereto.
(j) Exhibit H to the Agreement is replaced with the Exhibit H
attached hereto.
2. Conditions to Effectiveness. As a condition precedent to the
effectiveness of this Amendment, Lender shall have received evidence that
Borrower has received proceeds of at least Eight Hundred Seventy-Four Thousand
Dollars ($874,000) of Subordinated Debt (as defined below).
3. Other Agreements. Borrower agrees that, in addition to its rights
to obtain Appraisals under Section 5.3 of the Agreement, Lender may obtain, at
the expense of Borrower, an Appraisal of the Equipment and that such Appraisal
shall not be subject to any
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of the limitations set forth in Section 5.3 of the Agreement. In
addition, Borrower agrees to pay to Lender a fee equal to Thirty Thousand
Dollars ($30,000) on the date hereof, regardless of whether this Amendment
becomes effective. Within ten (10) days of the date hereof, Borrower agrees to
enter into, and to cause of its operating subsidiaries to enter into, blocked
account and lockbox agreements, each in form and substance reasonably
satisfactory to Lender, and consistent with drafts previously reviewed and
approved by Borrower, with Lender and NationsBank of Texas, N.A. Borrower also
agrees to obtain, on or before November 30, 1997, an additional One Hundred
Twenty-Six Thousand Dollars ($126,000) of subordinated debt substantially on the
terms set forth in the agreements attached hereto as Exhibit A (such
subordinated debt, together with the subordinated debt referred to in Section 2
above, the "Subordinated Debt"); provided, that Borrower agrees that such
Subordinated Debt may not be repaid unless the Additional Availability Period
has ended and no Event of Default exists. Failure of Borrower to comply with
any of the terms set forth in this Section 3 shall constitute an Event of
Default. Pursuant to Sections 14(k) and 14(l) of the Agreement, Lender consents
to the incurrence of the Subordinated Debt and the execution, delivery and
performance of the documents attached hereto as Exhibit A. Pursuant to Sections
14(k) and 14(l) of the Agreement, Lender also consents to the execution,
delivery and performance of the Management Fee Agreement attached hereto as
Exhibit B; provided, that Borrower agrees that no payments may be made under
such agreement if an Event of Default shall be continuing.
4. Confirmation of Liens. This Amendment in no way acts as a release
or relinquishment of any of the liens, security interests, rights or remedies
securing payment of the Loans or of the enforcement thereof. Such liens,
security interests, rights and remedies are hereby ratified, confirmed,
preserved, renewed and extended by Borrower in all respects.
5. Events of Default. The Events of Default specified in the Agreement
and the other Loan Documents shall continue to be the Events of Default under
the Loans except as otherwise specifically agreed herein to the contrary.
Lender's remedies with respect to the occurrence of an Event of Default shall
continue to be as set forth in the Loan Documents.
6. Reaffirmation of the Loan Documents. All terms, conditions and
provisions of the Agreement and the other Loan Documents are hereby reaffirmed
and continued in full force and effect and shall remain unaffected and unchanged
except as specifically amended hereby.
7. Representations and Warranties. Borrower represents and warrants to
Lender that the execution and delivery by Borrower of this Amendment has been
duly and properly made and authorized. The Loan Documents and this Amendment
each constitute valid and binding obligations of Borrower, enforceable in
accordance with their respective terms.
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8. Benefit of the Amendment. The terms and provisions of this
Amendment and the other Loan Documents shall be binding upon and inure to the
benefit of Lender and Borrower and their respective successors and assigns,
except that Borrower shall not have any right to assign its rights under this
Amendment or any of the Loan Documents or any interest therein without the prior
written consent of Lender.
9. Choice of Law. The Loan Documents and this Amendment shall be
performed and construed in accordance with the laws of the State of Arizona.
10. Entire Agreement. Except as modified by this Amendment, the Loan
Documents remain in full force and effect. The Loan Documents, as modified by
this Amendment, embody the entire agreement and understanding between Borrower
and Lender, and supersede all prior agreements and understandings between said
parties relating to the subject matter thereof.
11. Counterparts; Telecopy Execution. This Amendment may be executed
in any number of separate counterparts, each of which, when taken together,
shall constitute one and the same agreement, admissible into evidence,
notwithstanding the fact that all parties have not signed the same counterpart.
Delivery of an executed counterpart of this Amendment by telefacsimile shall be
equally as effective as delivery of a manually executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment by
telefacsimile shall also deliver a manually executed counterpart of this
Amendment, but the failure to deliver a manually executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the day, month, and year first above written.
FINOVA CAPITAL CORPORATION, a Delaware
corporation
By
------------------------------------
Name
----------------------------------
Title
---------------------------------
AMERITRUCK DISTRIBUTION CORP., a
Delaware corporation
By
------------------------------------
Name
----------------------------------
Title
---------------------------------
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REAFFIRMATION OF GUARANTORS
Dated November 13, 1997
Each of the undersigned hereby (i) confirms that it has read the
foregoing Consent and First Amendment Agreement, and (ii) reaffirms its
obligations under the Continuing Guaranty that it executed in favor of FINOVA
Capital Corporation.
AMERITRUCK EQUIPMENT CORP.
AMERITRUCK LOGISTICS SERVICES, INC.
AMERITRUCK REFRIGERATED TRANSPORT, INC.
X.X. XXXXXXXXX & SONS, INC.
CMS TRANSPORTATION SERVICES, INC.
KTL, INC.
SCALES TRANSPORTATION CORPORATION
SCALES LEASING COMPANY, INC.
XXXXXXXX BROS., INC.
W&L SERVICES CORP.
W&L MOTOR LINES, INC.
AMERITRUCK OPERATIONS SERVICES, INC.
BEST WAY MOTOR LINES, INC.
XXXXXXXX TRUCKING CORPORATION
BLS INVESTMENTS, INC.
CAS SERVICE COMPANY
CAS TRANSPORTATION, INC.
FRONTIER FREIGHT, INC.
XXXXXXX TRANSPORTATION COMPANY
XXXX TRANSPORTATION CO.
TRANS-STAR, INC.
PRO-TRANS SERVICES, INC.
By
-------------------------------------
Name
-----------------------------------
Title of each Guarantor
-----------------
EXHIBIT A
See Attached
EXHIBIT B
See Attached
EXHIBIT E
Such Account Debtors as are mutually agreed to by Borrower and Lender
on or before December 15, 1997
EXHIBIT H
None
