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Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT TO FIFTH AMENDED AND
RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") to the Fifth Amended and
Restated Loan Agreement is entered into as of the 13TH day of APRIL , 2000, by
and between The Huntington National Bank (the "Bank") as lender, and Intrenet,
Inc. (the "Borrower"), and its wholly owned subsidiaries Advanced Distribution
System, Inc., Xxx Xxxxxx Transportation Corporation, INET Logistics, Inc.,
Mid-Western Transport, Inc., Roadrunner Enterprises, Inc., Roadrunner Trucking,
Inc., Roadrunner Distribution Services, Inc. and Roadrunner International
Services, Inc. (collectively the "Subsidiaries") as borrowers. The Borrower and
the Subsidiaries are herein collectively referred to as the "Companies" and
separately as a "Company").
RECITALS:
A. On or about February 4, 2000, the Bank and the Companies executed a
certain Fifth Amended and Restated Loan Agreement, as amended from time to time
(the "2000 Loan Agreement"), which sets forth the terms and conditions of
certain loans and extensions of credit; and
B. From time to time prior to the date of the 2000 Loan Agreement, each
of the Companies executed and delivered to the Bank the Existing Closing
Documents and the 1996 Closing Documents (as such terms are defined in the 2000
Loan Agreement); and
C. On or about February 4, 2000, and at such other times as the
Companies have entered into amendments or consents, in connection with the 2000
Loan Agreement, the Companies executed and delivered to the Bank certain other
loan and security documents, including without limitation, an Amended and
Restated Revolving Note, an Amended and Restated Term Note, an Amended and
Restated Standby Letter of Credit Reimbursement AGREEMENT, an Amended and
Restated Master Fund Management Agreement, UCC-1 financing statements, UCC-3
amendments, mortgage modification agreements, and related documents (herein,
together with the Existing Closing Documents and the 1996 Closing Documents,
collectively the "Loan Documents") ; and
D. The Companies have requested that the Bank amend and modify certain
terms and covenants in the Loan Agreement and the Bank is willing to do so upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto for
themselves and their successors and assigns do hereby agree, represent and
warrant as follows:
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1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the 2000 Loan Agreement.
2. The definition of "Eligible Unbilled Accounts" set forth in Section
1.8, "LENDING FORMULA," of the 2000 Loan Agreement is hereby amended to recite
in its entirety as follows:
"Eligible Unbilled Accounts" means the portion of the accounts
of any of the Companies that the Bank determines in good faith from
time to time, based on credit policies, market conditions, such
Company's business or the creditworthiness of such Account Debtor, is
eligible for use in calculating the Borrowing Base. Without limiting
the Bank's right to determine which accounts are Eligible Unbilled
Accounts, no account will be eligible for use in calculating the
Borrowing Base, unless, at a minimum, such account is an account in
accordance with GAAP and arises in the ordinary course of one of the
Companies' businesses from a customer (an "Account Debtor"), an invoice
has been created to evidence such account, but such invoice has not
been mailed to the Account Debtor, and such account meets all the
following requirements: (a) the account arises from one of the
Companies' completed performance of services to an Account Debtor; (b)
not more than 15 days (7 days on and after December 31, 2000) have
elapsed from the dispatch date, as indicated in the unprinted freight
xxxx report or other report satisfactory to the Bank; (c) the account
is not subject to any prior assignment, claim, lien, security interest,
setoff, credit, contra account, allowance, adjustment, levy, return of
goods, or discount; (d) the account does not arise from a transaction
with a person, corporation or entity affiliated with one of the
Companies; (e) no Company has received notice of bankruptcy or
insolvency of the Account Debtor; (f) the account is not evidenced by
any chattel paper, promissory note, payment instrument or written
agreement; (g) the account arises from a sale to an Account Debtor in
the United States or one of the Canadian provinces other than Quebec;
(h) the account does not arise from any government or agency thereof
(provided, however, such account will be considered for eligibility if
such Company has complied in all respects with the Federal Assignment
of Claims Act and such account is satisfactory to the Bank) or from a
consumer; (i) the account does not arise from an Account Debtor who has
more than 25% of its accounts with any Company unpaid more than 90 days
from the original invoice therefor; (j) the account does not arise from
an Account Debtor to whom any Company has determined to ship goods on a
"cash on delivery" or C.O.D. basis; and (k) the Bank has not notified
the Borrower that the account or the Account Debtor is unsatisfactory
or unacceptable (although the Bank reserves the right to do so in good
faith and in its sole discretion at any time).
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The remainder of Section 1.8 shall remain as originally written.
3. Subparagraphs (w) and (x) and the Pricing Grid Table, all of which are a part
of the definition of "Prime Margin" set forth in Section 2.1, "PAYMENT OF
INTEREST PRIME COMMERCIAL RATE," of the 2000 Loan Agreement are hereby amended
to recite as follows:
(w) Upon the date that the First Amendment to Fifth Amended and
Restated Loan Agreement between the Companies and the Bank (the "First
Amendment") becomes effective, until changed hereunder in accordance
with the following provisions, the Prime Margin will be 75 basis points
(0.75%) per annum.
(x) Commencing as of March 31, 2000, and continuing as of the last day
of each month thereafter, the Bank will determine the Prime Margin for
each Loan in accordance with the Pricing Grid Table set forth below,
based on the Companies' Cash Flow Leverage Ratio and Fixed Charge
Coverage Ratio as of the end of such month; provided however, that if,
pursuant to the terms of this Agreement, the Bank, in its discretion,
notifies the Companies that the Cash Flow Leverage Ratio and the Fixed
Charge Coverage Ratio shall be determined on a quarterly basis, then
such determination of the Prime Margin shall be made as of the end of
each fiscal quarter. Changes in the Prime Margin based upon changes in
the Cash Flow Leverage Ratio and the Fixed Charge Coverage Ratio as of
the end of any month (or quarter, as the case may be) shall become
effective on the first day of the month following the receipt and
acceptance by the Bank pursuant to Section 11 of this Agreement of the
financial statements of the Borrower for such month (or quarter, as the
case may be), accompanied by such supporting documentation as may be
reasonably required by the Bank and by the certificate and calculations
referred to in Section 11 of this Agreement demonstrating the
computation of the Cash Flow Leverage Ratio and Fixed Charge Coverage
Ratio. No reduction in the Prime Margin shall occur unless the
Companies shall have achieved BOTH the Fixed Charge Coverage Ratio
requirement and the Cash Flow Leverage Ratio requirement associated
with a specified margin.
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PRICING GRID TABLE
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FIXED CHARGE COVERAGE RATIO CASH FLOW LEVERAGE RATIO PRIME MARGIN
(expressed in basis points per annum)
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less than 1.00 to 1.00 or greater than 4.50 to 1.00 75 (0.75%)
greater than minimum ratio
required by Section 10.24
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greater than or equal to 1.00 to 1.00 less than or equal to 4.50 to 1.00 and 75 (0.75%)
and greater than or equal to minimum ratio less than or equal to maximum ratio
required by Section 10.24 permitted by Section 10.25
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greater than or equal to 1.00 to 1.00 and less than or equal to 4.00 to 1.00 75 (0.75%)
greater than or equal to minimum ratio
required by Section 10.24
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greater than or equal to 1.05 to 1.00 less than or equal to 3.75 to 1.00 75 (0.75%)
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greater than or equal to 1.15 to 1.00 less than or equal to 3.00 to 1.00 75 (0.75%)
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The remainder of Section 2.1 shall remain as originally written.
4. Subparagraphs (w) and (x) and the Pricing Grid Table, all of which
are a part of the definition of "Daily LIBOR Margin" set forth in Section 2.2,
"DAILY LIBOR," of the 2000 Loan Agreement are hereby amended to recite as
follows:
(w) Upon the date that the First Amendment becomes effective,
until changed hereunder in accordance with the following
provisions, the Daily LIBOR Margin will be 300 basis points
per annum.
(x) Commencing as of March 31, 2000, and continuing as of the
last day of each month thereafter, the Bank will determine the
Daily LIBOR Margin for each Loan in accordance with the
Pricing Grid Table set forth below, based on the Companies'
Cash Flow Leverage Ratio and Fixed Charge Coverage Ratio as of
the end of such month; provided however, that if, pursuant to
the terms of this Agreement, the Bank, in its discretion,
notifies the Companies that the Cash Flow Leverage Ratio and
the Fixed Charge Coverage Ratio shall be determined on a
quarterly basis, then such determination of the Prime Margin
shall be made as of the end of each fiscal quarter. Changes in
the Daily LIBOR Margin based upon changes in the Cash Flow
Leverage Ratio and the Fixed Charge Coverage Ratio as of the
end of any month (or quarter, as the case may be) shall become
effective on the first day of the month following the receipt
and acceptance by the Bank pursuant to Section 11 of this
Agreement of the financial statements of the Borrower for such
month (or quarter, as the case may be), accompanied by such
supporting documentation as may be reasonably required by the
Bank and by the certificate and calculations referred to in
Section 11 of this Agreement demonstrating the computation of
the Cash Flow Leverage Ratio and Fixed Charge Coverage Ratio.
No reduction in the Daily LIBOR Margin shall occur unless the
Companies shall have achieved both the Fixed Charge Coverage
Ratio requirement and the Cash Flow Leverage Ratio requirement
associated with a specified margin.
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PRICING GRID TABLE
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FIXED CHARGE COVERAGE RATIO CASH FLOW LEVERAGE RATIO DAILY LIBOR MARGIN
(expressed in basis points per annum)
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less than 1.00 to 1.00 or greater than 4.50 to 1.00 300 (3.00%)
greater than minimum required
ratio for Section 10.24
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greater than or equal to 1.00 to 1.00 less than or equal to 4.50 to 1.00 275 (2.75%)
and greater than or equal to minimum less than or equal to maximum ratio
required ratio for Section 10.24 permitted by Section 10.25 financial
covenant
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greater than or equal 1.00 to 1.00 and less than or equal to 4.00 to 1.00 250 (2.50%)
greater than or equal to minimum
required ratio for Section 10.24
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greater than or equal to 1.05 to 1.00 less than or equal to 3.75 to 1.00 225 (2.25%)
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greater than or equal to 1.15 to 1.00 less than or equal to 3.00 to 1.00 200 (2.00%)
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The remainder of Section 2.2 shall remain as originally written.
5. Section 6.2, " LETTER OF CREDIT FEES," of the 2000 Loan Agreement is
hereby amended to recite in its entirety as follows:
6.2 Letter of Credit Fees.
The Companies shall jointly and severally pay to the
Bank a fee in respect of the Letters of Credit in the amount
of one-and-three-eighths percent (1.375%) per annum of the
stated amount of each Letter of Credit issued or renewed and
outstanding during such year, which fee shall be paid to the
Bank upon the issuance or renewal of each Letter of Credit.
The Companies shall also pay any and all other fees, costs and
expenses as may be provided for in the Standby Letter of
Credit Reimbursement Agreement.
6. Section 6.3, "CLOSING FEE," of the 2000 Loan Agreement is hereby
redesignated "CLOSING FEE AND AMENDMENT FEE," and is amended to recite in its
entirety as follows:
6.3 Closing Fee and Amendment Fee.
The Companies shall jointly and severally pay to the
Bank a closing fee in respect of the Loan in the amount of
$75,000.00, which fee shall be fully earned as of the date of
this Agreement, but shall be payable in the following
installments: $25,000.00 on or before the date of this
Agreement, $25,000.00 on March 31, 2000, and $25,000.00 on or
before the date of execution of the First Amendment. In
addition, in respect of the First Amendment, the Companies
shall jointly and severally pay to the Bank an amendment fee
in the amount of $75,000.00, which fee shall be fully earned
as of the earlier of (i) the date of the Companies' acceptance
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of the Bank's commitment letter with respect to the First
Amendment or (ii) the date of execution of the First
Amendment, but shall be payable upon the earlier of (a) June
30, 2000; (b) the prepayment in full of the Revolving Loan,
the Term Loan and the Capex Loan; or (c) the occurrence of an
Event of Default hereunder.
7. Section 6.7, "COLLATERAL AUDITS," of the 2000 Loan Agreement is
hereby amended to recite in its entirety as follows:
6.7 Collateral Audits.
The Bank shall have the right, in its sole
discretion, to conduct full audits of each of the Companies up
to four times a year, provided, however, that during (i) the
occurrence of an Event of Default, or (ii) if the Bank deems
necessary in its sole discretion after reviewing the results
of scheduled audits, the Bank shall have the right in its sole
discretion to conduct audits more frequently. The scope of
such audits shall be determined by the Bank in its sole and
absolute discretion. In connection therewith, the Companies
will provide access to all of its books and records and such
other information which the Bank deems necessary to evaluate
the status of the Loan, of the collateral security therefor,
or any other matter pertaining to, or referred to in, this
Agreement or the documents executed in connection herewith.
8. Section 8.3, "FINANCIAL STATEMENTS; FULL DISCLOSURE," of the 2000
Loan Agreement is hereby amended to recite in its entirety as follows:
8.3 Financial Statements; Full Disclosure.
The financial statements for the fiscal year ending
December 31, 1998, and the fiscal period ending November 30,
1999, which have been supplied to the Bank have been prepared
in accordance with GAAP and fairly represent the Companies'
financial condition as of such date. No material adverse
change in the Companies' financial condition has occurred
since November 30, 1999, other than the Companies'
consolidated operating loss in the amount of $1,525,000 in
December, 1999. In addition, the financial analyses, reports,
business plans, projections, and pro forma financial
statements, dated March 22, 2000, and covering fiscal periods
ending December 31, 2000, which have been supplied to the
Bank, have been prepared in accordance with GAAP and are based
on reasonable, good faith assumptions about the Company's
financial condition and projected financial condition as of
the dates of such financial information or projections.
Furthermore, based upon the
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financial projections provided to the Bank from time to time
pursuant to Section 11 hereof, no set of facts or
circumstances is projected to exist during the period or
periods covered by such projections that, upon the giving of
notice, the lapse of time, or any one or more of the
foregoing, would constitute an Event of Default. The financial
statements and the financial analyses, reports, business
plans, projections and information referred to in this
paragraph do not, nor does this Agreement or any written
statement furnished by the Companies to the Bank in connection
with obtaining the Loan, contain any untrue statement of a
material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading. The
Companies have disclosed to the Bank in writing or orally all
facts which materially affect the properties, business,
prospects, profits or condition (financial or otherwise) of
the Companies or the ability of the Companies to perform this
Agreement.
9. Section 9.3, "WARRANTIES AND REPRESENTATIONS," of the 2000 Loan
Agreement is hereby amended to recite in its entirety as follows:
9.3 Warranties and Representations.
On the date of each advance pursuant to the Loan the
warranties and representations set forth in Section 8 hereof
(except for and excluding the warranties and representations
set forth in the second sentence of Section 8.3 hereof) shall
be true and correct on and as of such date with the same
effect as though such warranties and representations had been
made on and as of such date, except to the extent that such
warranties and representations expressly relate to an earlier
date.
10. Section 10.10, "MINIMUM SECURITY," of the 2000 Loan Agreement is
hereby amended to recite in its entirety as follows:
10.10 Minimum Security.
The Companies shall maintain, as minimum security for
the Revolving Loan and Letters of Credit, Eligible Accounts,
Eligible Unbilled Accounts and Eligible Incomplete Booked
Accounts having an aggregate value such that the aggregate
stated amount of the Letters of Credit plus the outstanding
principal balance of the Revolving Loan shall not exceed the
difference of (i) the Borrowing Base, MINUS $2,000,000.00.
11. Section 10.14, "CURRENT RATIO," of the 2000 Loan Agreement is
hereby amended to recite in its entirety as follows:
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10.14 Current Ratio.
The Companies, on a combined and consolidated basis,
shall maintain a ratio of current assets to current
liabilities of not less than 1.00 to 1.00 as of the end of
each fiscal year. For purposes of this Section 10.14, the Loan
shall be considered to be a long-term liability.
12. The first two paragraphs of Section 10.24, "FIXED CHARGE COVERAGE
RATIO," of the 2000 Loan Agreement are hereby amended to recite in their
entirety as follows:
10.24 Fixed Charge Coverage Ratio.
The Companies, on a consolidated basis, shall
maintain at all times specified below a ratio of (a) EBITDA
PLUS Historical Operating Lease Payments PLUS Non-Recurring
Expenses to (b) Fixed Charges PLUS Prospective Operating Lease
Payments (the "Fixed Charge Coverage Ratio") of not less than
(i) 0.80 to 1.00 for the period beginning with the date of this
Agreement and continuing through and including December 31,
2000, (ii) 0.95 to 1.00 for the period beginning January 1,
2001, and continuing through and including Xxxxx 00, 0000,
(xxx) 1.00 to 1.00 for the period beginning on March 31, 2001,
and continuing through and including June 29, 2001; and (iv)
1.05 to 1.00 for the period beginning on June 30, 2001, and
continuing at all time thereafter. If the Companies or their
auditors make any adjustment in EBITDA, the Companies shall
immediately (i) provide notice of such adjustment to the Bank,
(ii) reflect such adjustment in the calculation of the Fixed
Charge Coverage Ratio, and (iii) provide financial statements
to the Bank reflecting such adjustments for all periods to
which the adjustments relate.
In determining the numerator of the Fixed Charge
Coverage Ratio, (i) EBITDA, Historical Operating Lease Payments
and Non-Recurring Expenses shall each be determined as of the
last day of each month for the twelve month period ending on
such date. In determining the denominator of the Fixed Charge
Coverage Ratio, (i) Consolidated Taxes, (ii) Consolidated
Interest Expense, and (iii) Net Investment in Fixed Assets (and
each component thereof) shall each be determined as of the last
day of each month for the twelve month period ending on such
date; and (iv) Prospective CMLTD, and (v) Prospective Operating
Lease Payments shall each be determined by calculating the
scheduled payments due and to become due during the twelve
month period beginning on such date. Provided, however, that if
(w) as of the date of the Bank's notification to the Companies
as contemplated in this sentence, no set of facts or
circumstances exists that, upon the giving of notice, the lapse
of time, or one or more of the foregoing, would constitute an
Event of Default, and (x)
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if the Bank, in its sole and absolute discretion, is satisfied
with the results of its audits of each of the Companies that
are conducted after the date of execution of the First
Amendment and prior to September 30, 2000, and has notified the
Companies in writing of such determination and that the Fixed
Charge Coverage Ratio is to be henceforth determined on a
quarterly basis, then, from and after September 30, 2000, (y)
in determining the numerator of the Fixed Charge Coverage
Ratio, (i) EBITDA, (ii) Historical Operating Lease Payments and
(iii) Non-Recurring Expenses shall each be determined as of the
last day of each calendar quarter for the twelve month period
ending on such date, and (z) in determining the denominator of
the Fixed Charge Coverage Ratio, (i) Consolidated Taxes, (ii)
Consolidated Interest Expense, and (iii) Net Investment in
Fixed Assets (and each component thereof) shall each be
determined as of the last day of each calendar quarter for the
twelve month period ending on such date, and (iv) Prospective
CMLTD and (v) Prospective Operating Lease Payments shall each
be determined by calculating the scheduled payments due and to
become due during the twelve month period beginning on such
date.
The remainder of Section 10.24 shall remain as originally written.
13. The first two paragraphs of Section 10.25, "CASH FLOW LEVERAGE," of
the 2000 Loan Agreement are hereby amended to recite in their entirety as
follows:
10.25 Cash Flow Leverage.
The Companies, on a consolidated basis, shall
maintain at all times specified below a ratio of (a) Funded
Debt to (b) EBITDA PLUS Non-Recurring Expenses (the "Cash Flow
Leverage Ratio") of not greater than (a) 9.00 to 1.00 for the
period beginning with the date of this Agreement and
continuing through and including Xxxxx 00, 0000, (x) 9.50 to
1.00 for the period beginning March 31, 2000 and continuing
through and including April 29, 2000, (c) 10.25 to 1.00 for
the period beginning April 30, 2000 and continuing through and
including May 30, 2000, (d) 10.50 to 1.00 for the period
beginning May 31, 2000 and continuing through and including
June 29, 2000, (e) 10.00 to 1.00 for the period beginning June
30, 2000 and continuing through and including August 30, 2000,
(f) 9.50 to 1.00 for the period beginning August 31, 2000 and
continuing through and including September 29, 2000, (g) 9.00
to 1.00 for the period beginning September 30, 2000 and
continuing through and including October 30, 2000, (h) 8.00 to
1.00 for the period beginning October 31, 2000 and continuing
through and including November 29, 2000, (i) 6.50 to 1.00 for
the period beginning November 30, 2000 and continuing through
and including December 30, 2000, (j) 5.50 to 1.00 for the
period beginning December 31, 2000 and continuing through and
including January 30,
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2001, (k) 4.75 to 1.00 for the period beginning January
31,2001 and continuing through and including June 29, 2001,
and (l) 4.25 to 1.00 for the period beginning June 30, 2001
and continuing at all times thereafter.
For the purposes of calculating the Cash Flow
Leverage Ratio EBITDA and Non-Recurring Expenses shall be
determined as of the last day of each month, beginning January
31, 2000, for the twelve month period ending on such date, and
Funded Debt shall be determined as of the last day of such
month. Provided, however, that if (x) as of the date of the
Bank's notification to the Companies as contemplated in this
sentence, no set of facts or circumstances exists that, upon
the giving of notice, the lapse of time, or one or more of the
foregoing, would constitute an Event of Default, and (y) the
Bank, in its sole and absolute discretion, is satisfied with
the results of its audits of each of the Companies that are
conducted after the date of the First Amendment and prior to
September 30, 2000, and has notified the Companies in writing
of such determination and that the Cash Flow Leverage Ratio is
to be henceforth determined on a quarterly basis, then, (z)
from and after September 30, 2000, for purposes of calculating
the Cash Flow Leverage Ratio, (i) EBITDA and Non-Recurring
Expenses shall be determined as of the last day of each
calendar quarter, beginning September 30, 2000, for the twelve
month period ending on such date, and (ii) Funded Debt shall
be determined as of the last day of such calendar quarter.
The remainder of Section 10.25 shall remain as originally written.
14. A new Section 10.29, "MINIMUM PROJECTED AVAILABILITY," is hereby
added to the 2000 Loan Agreement and shall recite in its entirety as follows:
10.29 Minimum Projected Availability
The financial projections provided to the Bank from
time to time pursuant to Section 11(m) hereof shall
demonstrate to the satisfaction of the Bank that the
Companies, on a projected basis, will maintain at all times
during the period or periods covered by such projections, as
minimum security for the Revolving Loan and Letters of Credit,
Eligible Accounts, Eligible Unbilled Accounts and Eligible
Incomplete Booked Accounts having an aggregate value such that
the aggregate stated amount of the Letters of Credit plus the
outstanding principal balance of the Revolving Loan shall not
exceed the difference of (i) the Borrowing Base, MINUS (ii)
$2,000,000.00.
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15. Subparagraph (b) of Section 11, "INFORMATION AS TO THE COMPANIES,"
of the 2000 Loan Agreement is hereby amended to recite in its entirety as
follows:
(b) within 30 days after the end of each month,
statements, in form satisfactory to the Bank, signed by a
president or chief financial officer of the Borrower
certifying the compliance of the Companies with the terms of
this Agreement and the calculation of the financial covenants
contained in Section 10 above and accompanied by such
supporting documentation as the Bank may reasonably request;
provided, however, that if (x) as of the date of the Bank's
notification to the Companies as contemplated in this
subparagraph (b), no set of facts or circumstances exists
that, upon the giving of notice, the lapse of time, or one or
more of the foregoing, would constitute an Event of Default,
and (y) the Bank, in its sole and absolute discretion, is
satisfied with the results of its audits of each of the
Companies that are conducted after the date of the First
Amendment and prior to September 30, 2000, and has notified
the Companies in writing of such determination and that the
statements regarding calculation of financial covenants
required by this subparagraph may be submitted on a quarterly
basis, then, (z) from and after September 30, 2000, the
statements and supporting documentation required by this
subparagraph (b) shall be delivered to the Bank within thirty
days of the end of each month, except that statements and
supporting documentation as to the calculation of the
financial covenants contained in Section 10 above shall be
delivered to the Bank within thirty days of the end of each
calendar quarter;
Except as otherwise modified herein, the remainder of Section 11 shall remain as
originally written.
16. Subparagraph (d) of Section 11, "INFORMATION AS TO THE COMPANIES,"
of the 2000 Loan Agreement is hereby amended to recite in its entirety as
follows:
(d) within 120 days of the end of the fiscal year
ending December 31, 1999, and within 90 days of the end of
each fiscal year thereafter, unqualified, audited financial
statements prepared on a consolidated basis in accordance with
GAAP and certified by independent public accountants
satisfactory to the Bank, containing a balance sheet,
statements of income and surplus, statements of cash flows and
reconciliation of capital accounts, along with (1) any
management letters written by such accountants, and (2) a
lender reliance letter from such accountants authorizing the
Bank to rely on such accountants' certifications;
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Except as otherwise modified herein, the remainder of Section 11 shall remain as
originally written.
17. Subparagraph (f) of Section 11, "INFORMATION AS TO THE COMPANIES,"
of the 2000 Loan Agreement is hereby amended to recite in its entirety as
follows:
(f) within 120 days of the end of the fiscal year
ending December 31, 1999, and within 90 days of the end of
each fiscal year thereafter, a statement or letter signed by
the Companies' independent public accountants certifying that
upon the basis of the procedures described in such statement
or letter, nothing has come to their attention that would lead
them to believe that the Companies are in violation of the
terms of this Agreement;
Except as otherwise modified herein, the remainder of Section 11 shall remain as
originally written.
18. Subparagraph (m) of Section 11, "INFORMATION AS TO THE COMPANIES,"
of the 2000 Loan Agreement is hereby amended to recite in its entirety as
follows:
(m) within 25 days after the end of each month,
financial projections, in form and content satisfactory to the
Bank, as to the Companies' cash flow for the 90-day period
beginning the day after such month end, which projections
shall include pro forma calculations, made with respect to the
last day of each month during such 90-day period, of each of
the financial covenants set forth in Section 10 above;
Except as otherwise modified herein, the remainder of Section 11 shall remain as
originally written.
19. Subparagraph (b) of Section 12, "EVENTS OF DEFAULT," OF THE 2000
Loan Agreement is hereby amended to recite in its entirety as follows:
(b) any of the Companies fail to perform or observe any
covenant contained in Sections 5, 7, 10.1, 10.22 or 10.29 of
the Agreement;
The remainder of Section 12 shall remain as originally written.
20. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
as of _____APRIL 13__________, 2000, upon satisfaction of all of the following
conditions precedent:
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(a) The Bank shall have received two duly executed copies of this
Amendment and such other certificates, instruments, documents, agreements, and
opinions of counsel as may be required by the Bank, each of which shall be in
form and substance satisfactory to the Bank and its counsel;
(b) The Bank shall have received the remaining installment of the
closing fee provided for in Section 6.3 of the 2000 Loan Agreement in the amount
of $25,000.00;
(c) Xxxxxx Xxxxxxxx shall have issued to the Companies its unqualified
opinion regarding the audited financial statements of the Companies for the
fiscal year ending December 31, 1999, and the Companies shall have provided
evidence satisfactory to the Bank of the same; and
(d) The representations contained in the immediately following
paragraph shall be true and accurate.
21. REPRESENTATIONS. Each of the Companies represents and warrants that
after giving effect to this Amendment (a) each and every one of the
representations and warranties made by or on behalf of each of the Companies in
the 2000 Loan Agreement or the Loan Documents is true and correct in all
respects on and as of the date hereof, except to the extent that any of such
representations and warranties related, by the expressed terms thereof, solely
to a date prior hereto; (b) each of the Companies has duly and properly
performed, complied with and observed each of its covenants, agreements and
obligations contained in the 2000 Loan Agreement and the Loan Documents; and (c)
no event has occurred or is continuing, and no condition exists which would
constitute an Event of Default.
22. AMENDMENT TO 2000 LOAN AGREEMENT. (a) Upon the effectiveness of
this Amendment, each reference in the 2000 Loan Agreement to "Fifth Amended and
Restated Loan Agreement," "Loan and Security Agreement," "Loan Agreement,"
"Agreement," the prefix "herein," "hereof," or words of similar import, and each
reference or deemed reference in the Loan Documents to the 2000 Loan Agreement,
shall mean and be a reference to the 2000 Loan Agreement, as amended hereby. (b)
Except as modified herein, all of the representations, warranties, terms,
covenants and conditions of the 2000 Loan Agreement, the Loan Documents and all
other agreements executed in connection therewith shall remain as written
originally and in full force and effect in accordance with their respective
terms, and nothing herein shall affect, modify, limit or impair any of the
rights and powers which the Bank may have thereunder. The amendment set forth
herein shall be limited precisely as provided for herein, and shall not be
deemed to be a waiver of, amendment of, consent to or modification of any of the
Bank's rights under or of any other term or provisions of the 2000 Loan
Agreement, any Loan Document, or other agreement executed in connection
therewith, or of any term or provision of any other instrument referred to
therein or herein or of any transaction or future action on the part of the
Companies which would require the consent of the Bank, including, without
limitation, waivers of Events of Default which may exist after giving effect
hereto. Each of the Companies ratifies and confirms each term, provision,
condition and covenant set forth in the 2000 Loan Agreement
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and the Loan Documents and acknowledges that the agreements set forth therein
continue to be legal, valid and binding agreements, and enforceable in
accordance with their respective terms.
23. AUTHORITY. Each of the Companies hereby represents and warrants to
the Bank that as to such Company (a) such Company has legal power and authority
to execute and deliver the within Amendment; (b) the officer executing the
within Amendment on behalf of such Company has been duly authorized to execute
and deliver the same and bind such Company with respect to the provisions
provided for herein; (c) the execution and delivery hereof by such Company and
the performance and observance by such Company of the provisions hereof do not
violate or conflict with the articles of incorporation, regulations or by-laws
of such Company or any law applicable to such Company or result in the breach of
any provision of or constitute a default under any agreement, instrument or
document binding upon or enforceable against such Company; and (d) this
Amendment constitutes a valid and legally binding obligation upon such Company
in every respect.
24. COUNTERPARTS; FACSIMILE TRANSMISSION. This Amendment may be
executed in two or more counterparts, each of which, when so executed and
delivered, shall be an original, but all of which together shall constitute one
and the same document. Separate counterparts may be executed with the same
effect as if all parties had executed the same counterparts. The facsimile or
other electronically transmitted copy of this Amendment shall be treated the
same as an originally executed copy hereof.
25. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the law of the State of Ohio.
IN WITNESS WHEREOF, each of the Companies and the Bank have
hereunto set their hands as of the date first set forth above.
THE BORROWER:
INTRENET, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Its: Executive Vice President, Chief Operating
Officer
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THE SUBSIDIARIES:
ADVANCED DISTRIBUTION SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
XXX XXXXXX TRANSPORTATION
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
INET LOGISTICS, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Its: Vice President, Treasurer and Secretary
MID-WESTERN TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President, Treasurer and Secretary
ROADRUNNER ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
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ROADRUNNER TRUCKING, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
ROADRUNNER DISTRIBUTION
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
ROADRUNNER INTERNATIONAL
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Its: Vice President and Assistant Secretary
THE BANK:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Its: Vice President
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