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Exhibit 10.1
FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT (this "Amendment") to the Fourth Amended and Restated Loan
Agreement is entered into as of the 5th day of May, 1999, 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., Eck Miller 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 January 15, 1996, the Companies (with the exception of INET
Logistics, Inc.) and the Bank executed a certain Fourth Amended and Restated
Loan Agreement that was amended by a certain (i) First Amendment to Fourth
Amended and Restated Loan Agreement dated as of March 31, 1996, (ii) Second
Amendment to Fourth Amended and Restated Loan Agreement (pursuant to which INET
Logistics became obligated under the terms of the 1996 Loan Agreement) dated as
of March 7, 1997, (iii) Third Amendment to Fourth Amended and Restated Loan
Agreement dated as of March 31, 1998, and (iv) Fourth Amendment to Fourth
Amended and Restated Loan Agreement dated as of February 4, 1999, (collectively,
the "1996 Loan Agreement"), setting forth the terms of certain extensions of
credit to the Companies; and
B. In connection with the 1996 Loan Agreement and predecessor documents
thereto, the Companies executed and delivered to the Bank certain other loan
documents, promissory notes, amendments to open-end mortgages, assignment of
rents and security agreements, consents, assignments, security agreements,
agreements, instruments and financing statements in connection with the
indebtedness referred to in the 1996 Loan Agreement (all of the foregoing,
together with the 1996 Loan Agreement, are hereinafter collectively referred to
as the "1996 Loan Documents") (the 1996 Loan Documents together with the 1988
Loan Documents, the 1989 Loan Documents, the 1991 Loan Documents and the 1993
Loan Documents (as those terms are defined in the 1996 Loan Agreement) are
hereinafter collectively referred to as the "Loan Documents"); and
C. The Companies have requested that the Bank amend and modify certain terms
and covenants in the Loan Agreement to reduce the pricing, extend the maturity
dates and modify the performance pricing of the extensions of credit subject to
the 1996 Loan Agreement, to modify certain financial covenants and to increase
the amount of term indebtedness, and the Bank is willing to do so upon the terms
and conditions contained herein.
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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:
1. Definitions. All capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the 1996 Loan Agreement.
2. Section 1, "Amount of Loan," of the 1996 Loan Agreement is hereby amended
to recite in its entirety as follows:
SECTION 1. AMOUNT OF LOAN.
The Bank agrees to extend credit to the Companies up to the aggregate sum of
$35,000,000.00 in original principal amount (herein collectively referred to as
the "Loan"), subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties contained herein. The Loan
shall be comprised of the credit facilities described in paragraphs 1.1, 1.2,
1.2.1 and 1.3 below.
3. Section 1.1, "Revolving Loan," of the 1996 Loan Agreement is hereby amended
to recite in its entirety as follows:
1.1 Revolving Loan.
The Bank agrees to extend credit to the Companies pursuant to a revolving
credit facility up to the maximum principal amount of $28,000,000.00 (herein
referred to as the "Revolving Loan"), subject to paragraphs 1.3 and 1.4 below
and to the terms and conditions of the Agreement; provided, however, that the
outstanding principal balance of the Revolving Loan, plus the aggregate
outstanding stated amounts of the Letters of Credit (as defined below) shall
never exceed $28,000,000.00. The outstanding principal of the Revolving Loan may
be increased and decreased an unlimited number of times prior to January 1, 2001
(the "Revolving Loan Termination Date"). The Companies' right to obtain advances
pursuant to the Revolving Loan shall terminate on, and the unpaid principal
balance plus all accrued interest on the Revolving Loan shall be due and payable
on, the Revolving Loan Termination Date; provided, however, that the Bank shall
have no obligation to advance or re-advance any sums pursuant to the Revolving
Loan at any time when there exists any set of facts or circumstances that, by
itself, upon the giving of notice, the lapse of time, or any one or more of the
foregoing, would constitute an Event of Default under this Agreement.
4. Section 1.2 "Term Loan," of the 1996 Loan Agreement is hereby amended to
recite in its entirety as follows:
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1.2 Term Loan.
The Bank agrees to extend credit to the Companies pursuant to a term
facility in the principal amount of $2,000,000.00 (herein referred to as the
"Term Loan"), subject to paragraph 1.4 below and to the terms and conditions of
this Agreement. The principal balance of the Term Loan shall be due and payable
in six consecutive quarterly installments of $100,000.00 each, beginning on July
1, 1999, and continuing on each October 1, January 1, April 1 and July 1
thereafter through and including October 1, 2000, and with the final installment
due on December 31, 2000 (the "Term Loan Termination Date").
5. Section 1.2.3, "Terms of Capex Loan," of the 1996 Loan Agreement is hereby
amended to recite in its entirety as follows:
1.2.3 Terms of Capex Loan.
All principal, interest, and other fees outstanding on the Capex Loan shall be
due and payable no later than the Capex Loan Maturity Date. "Capex Loan Maturity
Date" shall mean with respect to any advances under the Capex Loan, December 31,
2000. The Borrower may elect in the same manner as Section 2.4 hereof to have
interest accrue on the Capex Loan at (a) Daily LIBOR plus the Daily LIBOR Margin
or (b) the Prime Commercial Rate.
6. The definition of "Daily LIBOR Margin" in Section 2.3, "Daily LIBOR," of
the 1996 Loan Agreement is hereby amended to recite as follows:
"Daily LIBOR Margin" shall mean 175 basis points (1.75%), subject to the
provisions of Section 2.11 set forth below.
In addition, Section 2.3 is hereby amended to provide that the Companies may
obtain Daily LIBOR Advances under the Term Loan at a rate of interest equal to
Daily LIBOR, plus the applicable Daily LIBOR Margin.
The remainder of Section 2.3, "Daily LIBOR," shall remain as originally written.
7. Section 2.11, "Reduction of Applicable Margins," of the 1996 Loan Agreement
is hereby amended to recite in its entirety as follows:
2.11. Reduction of Applicable Margins.
In respect of the Revolving Loan and the Capex Loan only, the Prime Margin,
the Eurodollar Margin and the Daily LIBOR Margin shall each be reduced by 25
basis points (0.25%) effective on the first day of the month (no sooner than
March 31, 2000) following the Bank's receipt and acceptance of a certificate
signed by the president or
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chief financial officer of the Borrower and delivered pursuant to Section 11 (b)
of this Agreement, certifying (i) the compliance of the Companies with all of
the terms of this Agreement for the fiscal year ending December 31, 1999, and
setting forth the calculation of the financial covenants contained in Section 10
of this Agreement and (ii) the Companies' consolidated Fixed Charge Coverage
Ratio for the fiscal year ending December 31, 1999, is not less than 1.05 to
1.00; provided, however, that no such reduction shall be made if any set of
facts or circumstances exists that, by itself, upon the giving of notice, the
lapse of time, or any one or more of the foregoing, would constitute an Event of
Default hereunder.
8. Section 4, "Prepayment," of the 1996 Loan Agreement is hereby amended to
recite in its entirety as follows:
SECTION 4. PREPAYMENT.
Subject to the terms and conditions of this Agreement, the Companies shall have
the right to prepay at any time and from time to time before maturity any amount
or amounts due to the Bank pursuant to this Agreement or to any notes or
agreements executed pursuant hereto or to seek cancellation of the Letters of
Credit; provided, that if the Companies prepay the Revolving Loan, the Term Loan
and the Capex Loan in full prior to the Revolving Loan Termination Date, the
Companies shall jointly and severally pay to the Bank a prepayment fee equal to
$200,000.00; provided, however, that no such prepayment fee shall be due if the
Revolving Loan, the Term Loan and the Capex Loan are prepaid in full solely as a
result of the refinancing or restructuring of such obligations by the (i) Bank
or by (ii) a lender group arranged by the Bank or an affiliate thereof and for
which the Bank or its affiliates serve as Syndication Agent and Administrative
Agent. If the Bank, in its sole and absolute discretion, determines not to renew
or extend the maturity of the Revolving Loan, then the Term Loan and the Capex
Loan shall be due and payable at the maturity of the Revolving Loan.
9. Section 10.12, "Book Net Worth," of the 1996 Loan Agreement is hereby
amended to recite in its entirety as follows:
10.12 Book Net Worth.
The Companies shall achieve a Book Net Worth of not less than:
the sum of (i) $23,500,000.00 plus (ii) the net cash proceeds resulting from the
issuance by the Borrower on or after January 1, 1999, of any capital stock of
any nature, whether voting or non-voting, common, preferred or otherwise
("Capital Stock") as of June 30, 1999, and
the sum of (i) $25,000,000.00, plus (ii) the net cash proceeds resulting from
the issuance by the Borrower on or after January 1, 1999, of any Capital Stock
as of December 31, 1999, and continuing at all times thereafter.
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10. The first paragraph of Section 10.26, "Fixed Charge Coverage Ratio," of the
1996 Loan Agreement is hereby amended to recite as follows:
The Companies, on a consolidated basis, shall maintain at all times
specified below a ratio of (a) EBITDA plus Historical Operating Lease Payments
to (b) Fixed Charges plus Prospective Operating Lease Payments (the "Fixed
Charge Coverage Ratio") of not less than (i) 1.00 to 1.00 for the period
beginning July 1, 1998, and continuing, through and including December 31, 1999,
and (ii) 1.05 to 1.00 for the period beginning January 1, 2000, and continuing
at all times 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.
The remainder of Section 10.26, "Fixed Charge Coverage Ratio," shall remain as
originally written.
11. Conditions of Effectiveness. This Amendment shall become effective as of
April 30, 1999, upon satisfaction of all of the following conditions precedent:
(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 representations contained in paragraph 12 below shall be true and
accurate.
12. 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 1996 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
1996 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.
13. Amendment to 1996 Loan Agreement. (a) Upon the effectiveness of this
Amendment, each reference in the 1996 Loan Agreement to "Fourth Amended and
Restated Loan Agreement," "Loan and Security Agreement," "Loan Agreement,"
"Agreement," the prefix "herein," "hereof," or words of similar import, and each
reference in the Loan Documents to the 1996 Loan Agreement, shall mean and be a
reference to the 1996 Loan Agreement as amended hereby. (b) Except as modified
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herein, all of the representations, warranties, terms, covenants and conditions
of the 1996 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 1996 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 1996 Loan Agreement and
the Loan Documents and acknowledges that the agreement set forth therein
continue to be legal, valid and binding agreements, and enforceable in
accordance with their respective terms.
14. 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.
15. Counterparts. 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.
16. 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.
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THE BORROWER:
INTRENET, INC.
By: /s/ Roger T. Burbage
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Its: Executive Vice President and
Chief Financial Officer
THE SUBSIDIARIES:
ADVANCED DISTRIBUTION SYSTEM, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
ECK MILLER TRANSPORTATION
CORPORATION
By: /s/ Roger T. Burbage
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Its: Vice President
INET LOGISTICS, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
MID-WESTERN TRANSPORT, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
ROADRUNNER ENTERPRISES, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
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ROADRUNNER TRUCKING, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
ROADRUNNER DISTRIBUTION
SERVICES, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
ROADRUNNER INTERNATIONAL
SERVICES, INC.
By: /s/ Roger T. Burbage
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Its: Vice President
THE BANK:
THE HUNTINGTON NATIONAL BANK
By: /s/ Leonard Amoroso
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Its: Vice President