Exhibit 10.1
SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT AND ELEVENTH AMENDMENT
TO REVOLVING LOAN NOTE
This Sixth Amendment to Amended and Restated Loan Agreement
("Amendment"), dated as of ________________, 2009 is between GULF LINE
TRANSPORT LLC., an Indiana limited liability company, formerly known as
Gulf Line Transport, Inc. ("Gulf Line"); FIVE STAR TRANSPORT, LLC., an
Indiana limited liability company, formerly known as Five Star
Transport, Inc. ("Five Star"); CAM TRANSPORT, INC., an Indiana
corporation ("CAM"); UNITY LOGISTIC SERVICES INC., an Indiana corporation
("Unity"); ERX, INC., an Indiana corporation ("ERX"); FRIENDLY TRANSPORT,
LLC, an Indiana limited liability company, formerly known as Friendly
Transport, Inc. ("Friendly"); TRANSPORT LEASING, INC., an Arkansas
corporation ("Transport Leasing"); KEYSTONE LINES, a California corporation
("Keystone Lines"); HARBOR BRIDGE INTERMODAL, INC., an Indiana corporation
("Harbor"); PATRIOT LOGISTICS, INC., an Indiana corporation ("Patriot");
LIBERTY TRANSPORT, INC., an Indiana corporation ("Liberty"); KEYSTONE LINES
CORP., an Indiana corporation, formerly known as Keystone Lines Corporation
("Keystone"), TC SERVICES, INC., an Indiana corporation ("TC Services");
KEYSTONE LOGISTICS, INC., an Indiana corporation ("Keystone Logistics");
CAROLINA NATIONAL TRANSPORTATION LLC, an Indiana limited liability company
("Carolina National"); CAROLINA NATIONAL LOGISTICS, INC., an Indiana
corporation ("Carolina Logistics"); FREEDOM 1 LLC, an Indiana limited
liability company, formerly known as Freedom Logistics, LLC ("Freedom");
THUNDERBIRD LOGISTICS, LLC, an Indiana limited liability company
("Thunderbird Logistics"); THUNDERBIRD MOTOR EXPRESS, LLC, an Indiana limited
liability company ("Thunderbird Motor"); US 1 LOGISTICS, LLC, an Indiana
limited liability company ("US 1 Logistics") US 1 INDUSTRIES, INC., an
Indiana corporation ("Industries"), ARL TRANSPORT LLC, a Delaware limited
liability company ("ARL") and AFT TRANSPORT LLC, a Delaware limited liability
company ("AFT"). (Gulf Line, Five Star, CAM, Unity, ERX, Friendly,
Transport Leasing, Keystone Lines, Harbor, Patriot, Liberty, Keystone, TC
Services, Keystone Logistics, Carolina National, Carolina Logistics,
Freedom, Thunderbird Logistics, Thunderbird Motor, US 1 Logistics,
Industries, ARL and AFT are hereinafter each referred to each as a "Borrower
Entity", and collectively as the "Borrower"); and U.S. BANK, a national
banking association ("Lender"). Capitalized terms not defined herein have
the meanings ascribed to them in the Existing Loan Agreement, as that term
is defined herein.
PRELIMINARY STATEMENT:
All Borrower Entities have previously entered into an Amended and
Restated Loan Agreement with Lender dated as of March 10, 2005, as amended
by (i) that certain Amendment to Amended and Restated Loan Agreement dated as
of May 5, 2005, (ii) that certain Second Amendment to Amended and Restated
Loan Agreement dated as of September 30, 2005, (iii) that certain Third
Amendment to Amended and Restated Loan Agreement dated July 12, 2007, (iv)
that certain Fourth Amendment to Amended and Restated Loan Agreement dated
March 25, 2008, and (v) that certain Fifth Amendment to Amended and Restated
Loan Agreement dated December 18, 2008 (the Amended and Restated Loan Agreement
as so amended, the "Existing Loan Agreement," and, as amended by this
Amendment, the "Loan Agreement").
Borrower has violated certain financial covenants under the Loan
Agreement, and Lender has agreed to waive the violations in consideration for
the following changes be made to the Loan Facility:
a. a reduction of the Revolving Line of Credit from $22,000,000 to
$17,500,000;
b. the imposition of an unused line fee;
c. restrictions on distributions to minority interest holders to amounts
necessary to pay income tax liability attributable to income of the
Borrower;
d. temporary replacement of certain financial covenants by a minimum
EBITDA covenant;
e. reinstatement of the minimum debt service coverage ratio at a later
date;
f. reinstatement of the ratio of unsubordinated debt to EBITDA at a later
date;
g. a covenant that the Borrower's current maturities of long term
other than debt to the Lender will not exceed $600,000 as of December
31, 2009, and thereafter.
NOW THEREFORE, it is hereby agreed as follows:
1. All capitalized terms used herein but not defined herein shall have
the same meaning as ascribed to such terms in the Loan Agreement.
2. Lender hereby waives Borrower's violation of Section 7.16 and 7.20 as
of March 31, 2009.
3. The following definition in Section 1.1 of the Existing Loan Agreement
is hereby amended and restated in its entirety to read as follows:
"Revolving Loan Commitment": $17,500,000
4. Section 2.8 is hereby added to the Loan Agreement to read as follows:
Unused Line Fee. Borrower shall pay to Lender a fee equal to .30% per
annum on the difference existing from time to time between the Revolving
Loan Commitment and the outstanding balance of the Revolving Loan. The
fee shall be calculated and payable quarterly in arrears commencing
October 15, 2009 (covering the period from the date hereof through
September 30, 2009). Thereafter, each payment shall be due on the 15th
day following the end of each calendar quarter.
5. Section 7.5 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
Dividends and Distributions. Except for dividends to minority
shareholders or members of a Borrower Entity in amounts equal to the
minority interest shareholders' or members' income tax liability relating to
income form Borrower, make any dividends, distributions or other expenditures
with respect to Borrower's capital stock ownership interests or apply any of
its Property to the purchase, redemption or other retirement of, or set apart
any sum for the payment of, or make any other distribution by reduction of
capital or otherwise in respect of, any of the Borrower's capital stock
ownership interest. Notwithstanding the foregoing, the Borrower may proceed
with the reverse stock split described in its Proxy Statement dated November
7, 2008, provided the total value thereof does not exceed $1,000,000.
6. Sections 7.16 of the Loan Agreement shall not be applicable for the
periods ending June 30, 2009, September 30, 2009, and December 31, 2009.
Section 7.16 shall be reinstated and be applicable as of March 31, 2010,
provided the ratio of Unsubordinated Indebtedness to EBITDA shall not exceed
3.50 to 1.0 with EBITDA calculated for the twelve-month period ending
March 31, 2010. The Borrower shall not permit the ratio of Unsubordinated
Indebtedness to EBITDA to exceed 3.0 to 1.0 as of June 30, 2010 for the
twelve-month period ending June 30, 2010. Thereafter, the ratio of
Unsubordinated Indebtedness to EBITDA shall be calculated on a quarterly
rolling twelve-month basis, and shall not exceed 3.0 to 1.0.
7. Section 7.20 of the Loan agreement shall not be applicable for the
periods ending June 30, 2009 ad September 30, 2009. A minimum debt service
ratio for Borrower (on a consolidated basis) will be reinstated to cover the
twelve-month period ending December 31, 2009, with the ratio not to be
less than 1.25 to 1 for the twelve-month period ending December 31, 2009.
Thereafter, the minimum debt service ratio shall be calculated on a
quarterly rolling twelve-month basis, and shall not be less than 1.25 to 1.
8. Section 7.22 is hereby added to the existing Loan Agreement to read in
its entirety as follows:
Fail to achieve a minimum EBITDA of $250,000 for the quarter ending
June 30, 2009 and $750,000 for the quarter ending September 30, 2009.
9. Section 7.23 shall be added to the existing Loan Agreement and to read
in its entirety as follows:
Permit Borrower's current maturities of Indebtedness for Borrowed
Money other than the Revolving Loan to exceed $600,000 as of December
31, 2009, or at any time thereafter.
10. All references in the Revolving Loan to $22,000,000 are hereby
amended to be $17,500,000.
11. Except for the violation of 7.16 and 7.20 of the Loan Agreement,
which have been waived by Lender herein, each Borrower Entity represents and
warrants that no Event of Default or Incipient Default (as defined in the
Loan Agreement) exists or will occur as a result of the execution of and
performance under this Amendment and that each of their representations and
warranties set forth in the Loan Instruments (as the definition of that term
is amended by this Amendment) is true and correct as of the date hereof, except
to the extent that any such representations or warranties speak exclusively
to an earlier date.
12. By their execution hereof, Harold Antonson and Michael Kibler hereby
reaffirm their Limited Guaranties of the Revolving Loan and other obligations
under the Loan Agreement and Note
13. Except as expressly amended hereby, the terms and conditions of
the Loan Agreement as originally set forth therein shall remain in full force
and effect.
14. All references to the "Loan Agreement" and other terms defined in the
Existing Loan Agreement shall be deemed to take account of the Existing Loan
Agreement, as amended by this Amendment.
15. Borrower shall reimburse Lender for all of Lender's out-of-pocket
costs related to the transaction contemplated herein, including, without
limitation, public record searches ordered by Lender or its counsel both prior
and subsequent to the closing of the transactions contemplated herein, as well
as legal fees incurred by Lender in connection with the preparation of
documents, due diligence review or closing regarding the transaction
contemplated herein, or the enforcement of the terms hereof or of any of the
Loan Instruments.
16. From time to time, Borrowers shall execute and deliver to Lender
such additional documents as Lender reasonably may require to carry out the
purposes of this Amendment and the Loan Instruments and to protect Lender's
rights hereunder and thereunder, and shall not take any action inconsistent
with the purposes of the Loan Instruments.
17. Except as expressly amended hereby, the terms and conditions of
the Existing Loan Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned Borrowers and Lender have signed
this Amendment to Amended and Restated Loan Agreement as of the date first
above written.
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CAROLINA NATIONAL LOGISTICS, INC.
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
GULF LINE TRANSPORT LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
FIVE STAR TRANSPORT, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
CAM TRANSPORT, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
UNITY LOGISTIC SERVICES INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
ERX, INC., an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
FRIENDLY TRANSPORT, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
TRANSPORT LEASING, INC.,
an Arkansas corporation
By: _____________________________
Name: ___________________________
Title: __________________________
HARBOR BRIDGE INTERMODAL, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LINES,
a California corporation
By: _____________________________
Name: ___________________________
Title: __________________________
PATRIOT LOGISTICS, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
LIBERTY TRANSPORT, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LINES CORP.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
TC SERVICES, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
KEYSTONE LOGISTICS, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
CAROLINA NATIONAL TRANSPORTATION LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
FREEDOM 1, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
THUNDERBIRD LOGISTICS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
THUNDERBIRD MOTOR EXPRESS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
US 1 LOGISTICS, LLC,
an Indiana limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
US 1 INDUSTRIES, INC.,
an Indiana corporation
By: _____________________________
Name: ___________________________
Title: __________________________
ARL TRASPORT LLC,
a Delaware limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
AFT TRANSPORT LLC,
a Delaware limited liability company
By: _____________________________
Name: ___________________________
Title: __________________________
_________________________________
Harold Antonson
_________________________________
Michael Kibler
U.S. BANK
a national banking association
By: _____________________________
Name: Craig B. Collinson
Title: Senior Vice President