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EXHIBIT 10.1
SIXTH AMENDMENT TO FOURTH AMENDED AND
RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT (this "Amendment") to the Fourth Amended and Restated Loan
Agreement is entered into as of the 17th day of August, 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, (iv) Fourth Amendment to Fourth Amended
and Restated Loan Agreement dated as of February 4, 1999, and (v) Fifth
Amendment to Fourth Amended and Restated Loan Agreement dated as of May 7, 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 modify certain financial covenants 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 1996 Loan Agreement.
2. Section 1.2.1, "The Capex Loan," of the 1996 Loan Agreement is hereby
amended to recite in its entirety as follows:
1.2.1 The Capex Loan.
The Bank, subject to the terms and conditions hereof, will extend credit
and advance funds to the Companies in the form of time notes up to the aggregate
original principal sum outstanding at any time of $5,000,000.00 (the "Capex
Loan") to enable any of the Companies to purchase certain designated trucks,
tractors and trailers (the "Eligible Trucks and Trailers") in connection with
the acquisition by any Company, which has been approved prior thereto in writing
by the Bank; provided that, notwithstanding the foregoing, no extension of
credit under the Capex Loan shall be made unless and until (i) the Bank shall
have received the results of a collateral audit of the Companies conducted after
the execution of that certain Sixth Amendment to Fourth Amended and Restated
Loan and Security Agreement between the Companies and the Bank (the "Sixth
Amendment") and shall have determined in its sole good faith discretion that
such results are satisfactory, and (ii) the Bank shall have determined, based
upon the financial statements, certificates and reports furnished to the Bank by
the Companies pursuant to Section 11 below, and the Bank's acceptance of the
calculations contained therein, that the Companies have achieved a Fixed Charge
Coverage Ratio (calculated in accordance with the provisions of Section 10.26
below) of at least 1.00 to 1.00 for three consecutive monthly periods ending
after the date of execution of the Sixth Amendment. The term "Eligible Trucks
and Trailers" means that portion of any Company's equipment of trucks, tractors
and trailers that the Bank determines from time to time based upon credit
policies, market conditions, the Company's business and other matters is
eligible. For such purpose, no trucks, tractors or trailers shall be Eligible
Trucks or Trailers unless, at a minimum, (a) such item of equipment is owned
solely by the Company, (b) the Bank has a first and exclusive perfected security
interest with respect to such item of equipment, and (c) the Bank is lender loss
payee with respect to such equipment. Each draw under the Capex Loan shall be
evidenced by a promissory note or notes, which shall be in the form of Exhibit
B-1 attached to a certain Fourth Amendment to Fourth Amended and Restated Loan
Agreement, or by one or more notes subsequently executed in substitution
therefor, interest due on the principal sum thereof shall be due and payable
monthly and the principal sum thereof shall be due and payable not later than
six (6) months from the date of any such advance, provided, however, no note
shall have a maturity date which is later than the Capex Loan Maturity Date.
3. 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 maintain at all times a Book Net Worth of not less
than:
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(a) for the period beginning June 30, 1999, and continuing through and including
December 30, 1999, the sum of (i) $20,500,000.00, 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"), plus (iii) the difference (if greater
than zero) (hereinafter the "Extraordinary Charge Adjustment") between (A)
$3,000,000.00, and (B) the sum of (x) up to the sum of $2,500,000.00 in certain
reported "non-recurring" expenses charged against Net Income during the period
beginning on June 1, 1999 and ending on the earlier of the date of calculation
of Book Net Worth or December 31, 1999, which expenses relate to payments
actually made by the Companies, or any of them, to the Central States Southeast
and Southwest Areas Pension Fund, plus (y) up to the sum of $600,000.00 in
certain reported "non-recurring" expenses charged by the Companies against Net
Income during the period beginning on June 1, 1999 and ending on the earlier of
the date of calculation of Book Net Worth or December 31, 1999, which expenses
relate to severance payments made (or to be made) by the Companies, or any of
them, to John P. Delavan or Roger T. Burbage.
(b) for the period beginning December 31, 1999, and continuing through and
including June 29, 2000, the sum of (i) $22,000,000.00, plus (ii) the net cash
proceeds resulting from the issuance by the Borrower on or after January 1,
1999, of any Capital Stock, plus the Extraordinary Charge Adjustment; and
(c) for the period beginning June 30, 2000, and continuing at all times
thereafter, the sum of (i) $23,000,000.00, plus (ii) the net cash proceeds
resulting from the issuance by the Borrower on or after January 1, 1999, of any
Capital Stock, plus (iii) the Extraordinary Charge Adjustment.
4. The first two paragraphs 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
plus Non-Recurring Expenses to (b) Fixed Charges plus Prospective Operating
Lease Payments (the "Fixed Charge Coverage Ratio") of not less than (i) 0.90 to
1.00 for the period beginning June 1, 1999, and continuing, through and
including May 31, 2000, and (ii) 1.00 to 1.00 for the period beginning June 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.
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
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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.
In addition, the following definition of "Non-Recurring Expenses" is hereby
added to Section 10.26, "Fixed Charge Coverage Ratio":
"Non-Recurring Expenses" means, (a) for purposes of the calculation of the
Fixed Charge Coverage Ratio for any period ending after June 30, 2000, zero, and
(b) for purposes of the calculation of the Fixed Charge Coverage Ratio for any
period ending on or before June 30, 2000, on a consolidated basis for the
Companies, (i) up to the sum of $2,500,000.00 in certain reported
"non-recurring" expenses charged against Net Income during such period relating
to payments actually made by the Companies to the Central States Southeast and
Southwest Areas Pension Fund, plus (ii) up to the sum of $600,000.00 in certain
reported "non-recurring" expenses charged against Net Income during such period
relating to severance payments made (or to be made) by the Companies, or any of
them, to John P. Delavan or Roger T. Burbage.
The remainder of Section 10.26, "Fixed Charge Coverage Ratio," shall remain as
originally written.
5. Conditions of Effectiveness. This Amendment shall become effective as of
June 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 Bank shall have received an amendment fee in the amount of $15,000.00;
and
(c) The representations contained in paragraph 6 below shall be true and
accurate.
6. 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.
7. 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
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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 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.
8. 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.
9. 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.
10. 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:
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INTRENET, INC.
By:
Its:
THE SUBSIDIARIES:
ADVANCED DISTRIBUTION SYSTEM, INC.
By:
Its:
ECK MILLER TRANSPORTATION
CORPORATION
By:
Its:
INET LOGISTICS, INC.
By:
Its:
MID-WESTERN TRANSPORT, INC.
By:
Its:
ROADRUNNER ENTERPRISES, INC.
By:
Its:
ROADRUNNER TRUCKING, INC.
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By:
Its:
ROADRUNNER DISTRIBUTION
SERVICES, INC.
By:
Its:
ROADRUNNER INTERNATIONAL
SERVICES, INC.
By:
Its:
THE BANK:
THE HUNTINGTON NATIONAL BANK
By:
Its:
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