EXHIBIT 10.2
FIRST AMENDMENT AND CONSENT
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AMENDMENT AND CONSENT (this "Amendment"), dated as of August
17, 2000, 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, the Borrower has requested, and the Lenders have
agreed, to the amendments and consents provided herein, in each case on the
terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 1.01 of the Loan Agreement is hereby amended by
deleting the text "(each, a "Loan" and, collectively, the "Loans")" appearing in
said Section.
2. Section 1.02 of the Loan Agreement is hereby amended by
inserting the text "on such date" immediately after the word "Loans" appearing
in said Section.
3. 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, each Loan made to it by each Lender (other than a Loan evidenced by
a Subsequent Loan PIK Note) shall be evidenced by a promissory note
substantially in the form of Exhibit A-1, with blanks appropriately completed in
conformity herewith (each, a "Non-PIK Note" and, collectively, the "Non-PIK
Notes")."
4. Section 1.04 of the Loan Agreement is hereby further
amended by (i) deleting the word "Note" appearing in Section 1.04(b) of the Loan
Agreement and inserting the text "Non-PIK Note" in lieu thereof, (ii)
redesignating clause (c) of said Section as clause (d) and (iii) inserting the
following new clause (c) immediately after clause (b) appearing in said Section:
"(c) On each date prior to the Final Compliance Date in
respect of which the Borrower has elected pursuant to Section 1.05(a)(II) to pay
a portion (the "PIK Portion") of the interest payable on such date through the
issuance of Subsequent Loan PIK Notes, the Borrower shall execute and deliver to
each Lender with Loans outstanding on such date a promissory note substantially
in the form of Exhibit A-2 hereto in a principal amount equal to such Lender's
pro rata portion of such PIK Portion and with other appropriate insertions
(each, a "Subsequent Loan PIK Note"). Each Subsequent Loan PIK Note shall bear
interest from time to time from the date of its issuance at the same rate borne
by the outstanding Non-PIK Notes, which interest shall be payable on the same
basis as the interest on the outstanding Non-PIK Notes is payable."
5. 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) (I) 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% per annum; provided that notwithstanding the
foregoing, (i) during the period commencing on July 1, 2000 and ending on the
earliest of (w) the maturity of such Loan (whether by acceleration or
otherwise), (x) December 31, 2000, (y) that date on which the Borrower delivers
to each of the Lenders an officer's certificate from the chief financial officer
of the Borrower, which certificate shall demonstrate the Borrower's compliance
with Sections 6.07 and 6.08 as if Sections 7 and 8 of the First Amendment were
not effective on such date, attach financial calculations (in reasonable detail)
establishing such compliance and otherwise be in a form satisfactory to the
Lenders and (z) that date after the effectiveness of the First Amendment upon
which (A) the Borrower and/or any of its Subsidiaries shall have received Net
Sale Proceeds from the sale, transfer and/or other disposition by the Borrower
and/or any of its Subsidiaries to any Person (other than the Borrower or any of
its Subsidiaries) of any assets of the Borrower and/or such Subsidiaries
(including, without limitation, capital stock and securities held by any such
Person but excluding sales, transfers or other dispositions of inventory in the
ordinary course of business) exceeding $12.0 million in the aggregate for all
such sales, transfers and other dispositions, (B) the Borrower shall have
utilized at least $12.0 million of such Net Sale Proceeds to (i) make permanent
repayments of term loans, or permanent reductions of revolving commitments,
under the Credit Agreement and/or (ii) prepay at least 50% of the aggregate
principal amount the Loans outstanding on the date hereof in accordance with the
requirements of Section 2.02 and (C) a senior executive officer of the Borrower
shall have delivered an officer's certificate to the Lenders certifying
compliance with the requirements of clauses (A) and (B) above (with the earlier
of the dates referred to in clauses (y) and (z) above being herein called the
"Asset Sale/Financial Covenant Compliance Date"), the Borrower agrees to 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 13% and (ii) during the period commencing
on January 1, 2001 and ending on the Final Compliance Date, the Borrower agrees
to 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 13% plus (i) at any time during
the fiscal quarter of the Borrower ended March 31, 2001, 0.50%, (ii) at any time
during the fiscal quarter of the Borrower ended June 30, 2001, 1.00%, (iii) at
any time during the fiscal quarter of the Borrower ended September 30, 2001,
1.50% and (iv) at any time thereafter, 2.00%.
(II) To the extent the interest on all Loans determined
according to Section 1.05(a)(I) for any period for which interest is to be paid
as provided in Section 1.05(c) exceeds the interest that would be payable on all
Loans for such period if the applicable rate were 14% per annum, the Borrower
may elect to pay, through the issuance of Subsequent Loan PIK Notes as
contemplated by Section 1.04(c) in an aggregate principal amount equal thereto,
a portion (which may be 100%) of the excess interest that has so accrued as the
Borrower elects by giving written notice (or telephone notice confirmed in
writing) to the Lenders at least one Business Day prior to the applicable
interest payment date. If the Borrower elects to pay all or any portion of such
excess interest through the issuance of Subsequent Loan PIK Notes, each Lender
will receive its pro rata share of Subsequent Loan PIK Notes and cash interest
paid. Notwithstanding the foregoing, all interest due on any past due amounts
pursuant to this Agreement (including interest accruing at the increased rates
provided in Section 1.05(c)) shall be payable only in cash, and no portion
thereof shall be satisfied through the issuance of Subsequent Loan PIK Notes.".
6. Section 1.05(b) of the Loan Agreement is hereby amended by
(i) deleting the text "14%" appearing in said Section and inserting the text
"the rate which is 2.0% in excess of the higher of (x) the rate borne by such
Loan immediately prior to the respective payment default and (y) the rate
applicable to such Loan from time to time as specified in Section 1.05(a)(I)"
and (ii) deleting the text "17%" appearing in said Section and inserting the
text "the rate which is 3.0% in excess of the higher of (x) the rate borne by
such Loan immediately prior to the respective payment default and (y) the rate
applicable to such Loan from time to time as specified in Section 1.05(a)(I)".
7. Notwithstanding anything to the contrary contained in the
definition of Consolidated EBITDA appearing in the Loan Agreement or elsewhere
in the Loan Agreement, for purposes of any determination of compliance with
Section 6.07 or 6.08 of the Loan Agreement, the Consolidated EBITDA for the
fiscal quarter of the Borrower ended March 31, 2000 included in the Consolidated
EBITDA for any period of four consecutive fiscal quarters ending on a date
specified in the tables appearing in either such Section shall be deemed to be
$1,700,000.
8. Notwithstanding anything to the contrary contained in the
definition of Fixed Charge Coverage Ratio or elsewhere in the Loan Agreement,
solely for purposes of any determination of compliance with Section 6.08 of the
Loan Agreement for the period of four consecutive fiscal quarters (taken as one
accounting period) ending on September 30, 2000, there shall be excluded from
the calculation of the Fixed Charge Coverage Ratio for such period any deduction
for taxes paid by the Borrower and any of its Subsidiaries during such period
otherwise required by such definition.
9. Section 8.01 of the Loan Agreement is hereby amended by (i)
deleting the definitions of "Loan" and "Note" appearing in said Section and (ii)
inserting the following new definitions in appropriate alphabetical order in
said Section:
"Asset Sale/Financial Covenant Compliance Date" shall have the
meaning provided in Section 1.05(a).
"Final Compliance Date" shall mean, with respect to any Loan,
the earlier to occur of (i) the maturity of such Loan (whether by acceleration
or otherwise) and (y) the Asset Sale/Financial Covenant Compliance Date.
"First Amendment" shall mean the First Amendment to this
Agreement, dated as of August 17, 2000.
"Loan" shall mean (i) each loan made by a Lender on the
Funding Date pursuant to Section 1.01 and (ii) the initial principal amount of
each Subsequent Loan PIK Note issued hereunder.
"Note" shall mean and include each Non-PIK Note and each
Subsequent Loan PIK Note.
"Non-PIK Note" shall have the meaning provided in Section
1.04(a).
"PIK Portion" shall have the meaning provided in Section
1.04(c).
"Subsequent Loan PIK Note" shall have the meaning provided in
Section 1.04(c).
10. The Loan Agreement is hereby forth amended by (i)
redesignating Exhibit A thereto as "Exhibit A-1" and (ii) adding Exhibit A-2
thereto in the form of Exhibit A-2 attached hereto.
11. 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.
12. 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.
13. 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.
14. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when (i) the Borrower and the Required 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 Lenders
shall have received a consent to the Credit Agreement, which consent shall
modify the financial covenants contained therein on a basis satisfactory to the
Required Lenders and otherwise be in form and substance satisfactory to the
Required Lenders.
15. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby represent and warrant that (i) no Default or
Event of Default exists as of the First Amendment Effective Date, after giving
effect to this Amendment, and (ii) on the First 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).
16. From and after the First 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.
* * *
EXHIBIT A-2
FORM OF SUBSEQUENT LOAN PIK NOTE
$[___________] New York, New York
[----------]
FOR VALUE RECEIVED, CD&L, INC. (f/k/a CONSOLIDATED DELIVERY &
LOGISTICS, INC.), a Delaware corporation (the "Borrower"), hereby promises to
pay to the order of _____________ (the "Lender"), in lawful money of the United
States of America in immediately available funds, at the office of the Lender
located at [______________] on the Maturity Date (as defined in the Agreement
referred to below) the principal sum of _____________ DOLLARS ($_____).
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.05 of the Agreement
referred to below.
This Note is one of the Subsequent Loan PIK Notes referred to
in the Senior Subordinated Loan Agreement, dated as of January 29, 1999, among
the Borrower and the financial institutions from time to time party thereto
(including the Lender) (as amended, modified and/or supplemented from time to
time, the "Agreement") and is entitled to the benefits thereof. This Note is
also entitled to the benefits of the Subordinated Guaranty (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the Maturity Date, in whole or in
part. This Note is subordinated to the "Senior Indebtedness" as defined in the
Agreement and the Borrower agrees, and the Lender agrees by accepting this Note,
to the subordination provided in the Agreement.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
CD&L, INC.
By:
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Title:
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:
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Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:
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Name:
Title:
EXETER VENTURE LENDERS L.P.
By: Exeter Venture Advisors, Inc.,
as its general partner
By:
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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:
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Name:
Title: