Exhibit 10.03
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of February 22, 2002
(the "Effective Date"), by and among CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware corporation ("Borrower"), the other
Credit Parties signatory to the Credit Agreement described below
(collectively, together with the Borrower, the "Credit Parties")
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("Lender").
W I T N E S S E T H:
WHEREAS, Borrower, the other Credit Parties and Lender
are parties to that certain Credit Agreement, dated as of October
24, 2001 (as amended to the date hereof, the "Credit Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Credit
Agreement), pursuant to which Lender has committed to make
certain loans to Borrower upon the terms and conditions set forth
therein; and
WHEREAS, Borrower, the other Credit Parties and Lender
desire to modify the Credit Agreement in certain respects in
accordance with and subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower, the other Credit Parties and
Lender do hereby agree that all capitalized terms used herein
shall have the meanings ascribed thereto in the Credit Agreement
(except as otherwise expressly defined or limited herein) and do
hereby further agree as follows:
1. Consent, Waiver and Release. Subject to the terms
and conditions of this Amendment, including without limitation
the fulfillment of the conditions to effectiveness specified in
Section 7 below, the Lender hereby (i) consents to the sale of
that certain real property located at 14371 Santa Anna Avenue,
Fontana California (together with any improvements thereon and
any fixtures affixed to such real property, collectively, the
"Fontana Property"), (ii) waives any Default or Event of Default
arising under Section 6.8 of the Credit Agreement solely in
connection with the sale of the Fontana Property, (iii) releases
its Lien on the Fontana property and (iv) waives the requirements
in paragraphs (b) through (e), inclusive, of Annex G to the
Credit Agreement solely in connection with the consummation of
the sale of the Fontana Property. In order to induce Lender to
grant such consent, waiver and release, Borrower hereby agrees
that it shall cause $800,000 of the net sale proceeds to be paid
directly to Lender to be applied to repay the principal amount of
the Loans.
2. Amendments to the Credit Agreement. Subject to
the terms and conditions of this Amendment, including without
limitation the fulfillment of the conditions precedent specified
in Section 7 below, the Credit Agreement is hereby amended as
follows:
(A) Section 1.2(b)(ii) to the Credit Agreement is
hereby amended by deleting such subsection in its
entirety and substituting in lieu thereof the following
amended Section 1.2(b)(ii) to read in its entirety as
follows:
(ii) Immediately upon receipt by any Credit
Party or any Foreign or Domestic Subsidiary of any
Credit Party of: (i) the proceeds of any Asset
Disposition by such Credit Party or such
Subsidiary (excluding (x) proceeds received by CF
Delaware from any sales of accounts receivables
and related rights made prior to an Incipient
Termination Event or a Termination Event by CF
Delaware to the Receivables Subsidiary pursuant to
the Receivables Sale and Contribution Agreement
and (y) proceeds received by one or more of the
SPE Subsidiaries in connection with their
formation and proceeds received by CF Delaware in
connection with the transfer of the Conveyed
Properties by CF Delaware to one or more of the
SPE Subsidiaries), other than (1) the proceeds
from Real Property Asset Dispositions occurring
after the Seventh Amendment Effective Date,
provided that the aggregate amount of net proceeds
from all such Real Property Asset Dispositions
does not at any time exceed $4,100,000, and (2)
the proceeds from any other Asset Dispositions
that individually are not in excess of $100,000;
or (ii) the proceeds of any sale of Stock of any
Credit Party or any Foreign or Domestic Subsidiary
of any Credit Party (excluding any sale of Stock
from the SPE Subsidiaries to any Credit Party in
connection with the formation of the SPE
Subsidiaries), Borrower shall prepay the Loans in
an amount equal to all such proceeds, net of (A)
commissions and other reasonable and customary
transaction costs, fees and expenses properly
attributable to such transaction and payable by
Borrower in connection therewith (in each case,
paid to non-Affiliates), (B) transfer taxes, (C)
amounts payable to holders of senior Liens (to the
extent such Liens constitute Permitted
Encumbrances hereunder), if any, and (D) an
appropriate reserve for income taxes in accordance
with GAAP in connection therewith. Any such
prepayment shall be applied in accordance with
Section 1.2(c) below.
(B) Annex A to the Credit Agreement is hereby
amended by deleting therefrom definitions of "Borrowing
Base" and "Revolving Loan Commitment" in their entirety
and substituting the following amended definitions of
such terms in lieu thereof:
"Borrowing Base" shall mean, as of any date
of determination by Lender, from time to time, an
amount equal to the sum of (a) thirty nine and
twenty-one hundredths percent (39.21%) of the
Appraised Value of Eligible Mortgaged Property
less (b) any and all Reserves established by
Lender at such time including, without limitation,
Reserves for environmental remediation costs,
accrued but unpaid taxes, insurance and other
Charges and expenses pertaining to such Mortgaged
Property. Notwithstanding the foregoing,
irrespective of whether any of the conditions in
Section 2 have been satisfied, the Borrowing Base
shall not at any time exceed an amount equal to
$41,200,000 less the following amounts (x) the
total amount of any mandatory prepayments required
to be made pursuant to Section 1.2(b)(ii) as a
result of the consummation from time to time of
any Asset Dispositions after the Seventh Amendment
Effective Date, (y) the total amount of any
mandatory prepayments required to be made pursuant
to Section 1.2(b)(iii) as a result of any issuance
from time to time of Stock and (z) the total
amount of any mandatory prepayments required to be
made pursuant to Section 1.2(b)(iii) as a result
of the issuance from time to time of any debt
securities or the incurrence from time to time of
any Funded Debt, provided, however, that the
amount in this clause (z) shall be deemed to be
Zero Dollars ($0) if at the time of receipt of the
proceeds from the issuance of such debt securities
or the incurrence of such Funded Debt, the
Revolving Loan Commitment is then equal to or less
than $25,000,000.
"Revolving Loan Commitment" means the
commitment of Lender to make Revolving Credit
Advances, which commitment shall be Forty Nine
Million Two Hundred Thousand Dollars ($49,200,000)
on the Seventh Amendment Effective Date, as such
amount may be adjusted, if at all, from time to
time thereafter in accordance with this Agreement.
(C) Annex A to the Credit Agreement is hereby
further amended by adding in alphabetical order the
following definitions:
"Seventh Amendment Effective Date" shall mean
February 22, 2002.
(D) Annex F to the Credit Agreement is hereby
amended by deleting the reference to the 14371 Santa
Anna Avenue, Fontana, California property from such
annex.
3. No Other Amendments. Except for the covenant,
waiver and release expressly set forth and referred to in Section
1 and the amendments expressly set forth and referred to in
Section 2, the Credit Agreement shall remain unchanged and in
full force and effect. Nothing in this Amendment is intended or
shall be construed to be a novation of any of the Credit
Agreement or to affect, modify or impair the continuity or
perfection of the Lenders Liens under the Collateral Documents.
4. Representations and Warranties. To induce Lender
to enter into this Amendment, Borrower and each of the other
Credit Parties hereby warrant, represent and covenant to Lender
that: (a) this Amendment has been duly authorized, executed and
delivered by Borrower and each other Credit Party signatory
thereto, (b) after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing as of this date,
and (c) after giving effect to this Amendment, all of the
representations and warranties made by Borrower and each other
Credit Party in the Credit Agreement are true and correct in all
material respects on and as of the date of this Amendment (except
to the extent that any such representations or warranties
expressly referred to a specific prior date). Any breach in any
material respect by Borrower or any other Credit Party of any of
its representations and warranties contained in this Section 4
shall be an Event of Default under the Credit Agreement.
5. Ratification and Acknowledgment. Borrower and
each of the other Credit Parties hereby ratify and reaffirm each
and every term, covenant and condition set forth in the Credit
Agreement and all other documents delivered by such company in
connection therewith (including without limitation the other Loan
Documents to which Borrower or any other Credit Party is a
party), effective as of the date hereof.
6. Estoppel. To induce Lender to enter into this
Amendment, Borrower and each of the other Credit Parties hereby
acknowledge and agree that, as of the date hereof, there exists
no right of offset, defense or counterclaim in favor of Borrower
or any Credit Party as against Lender with respect to the
obligations of Borrower or any Credit Party to Lender under the
Credit Agreement or the other Loan Documents, either with or
without giving effect to this Amendment.
7. Conditions to Effectiveness. This Amendment shall
become effective, as of the Effective Date, subject to the prior
or subsequent receipt by the Lender of the following, in each
case, in form and substance satisfactory to Lender:
(a) this Amendment, duly executed, completed and
delivered by Borrower and each other Credit Party.
(b) evidence of the consummation of the sale of the
Fontana Property.
(c) evidence that CF Delaware has received net
proceeds of $902,305.88 in immediately available funds from the
sale of the Fontana Property.
(d) a payment directly from buyer's escrow agent to
Lender of $800,000 in immediately available funds representing a
portion of the sale proceeds in connection with the sale of the
Fontana Property, to be applied to the repayment of the principal
amount of the Loans.
Upon the effective date of this Amendment, all of the waivers set
forth in Section 1 and the amendments set forth in Section 2 of
this Amendment shall become effective as of the effective date of
this Amendment.
8. Reimbursement of Expenses. Borrower and each of
the other Credit Parties hereby agree that Borrower and each of
the other Credit Parties shall reimburse Lender on demand for all
costs and expenses (including without limitation reasonable
attorney's fees) incurred by Lender in connection with the
negotiation, documentation and consummation of this Amendment and
the other documents executed in connection herewith and therewith
and the transactions contemplated hereby and thereby.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID
STATE.
10. Severability of Provisions. Any provision of this
Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law,
Borrower and each of the other Credit Parties hereby waive any
provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
11. Counterparts. This Amendment may be executed in
any number of several counterparts, all of which shall be deemed
to constitute but one original and shall be binding upon all
parties, their successors and permitted assigns.
12. Entire Agreement. The Credit Agreement as amended
by this Amendment embodies the entire agreement between the
parties hereto relating to the subject matter hereof and
supersedes all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
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page]
IN WITNESS WHEREOF, the parties have caused this
Seventh Amendment to Credit Agreement to be duly executed by
their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER:
CONSOLIDATED FREIGHTWAYS CORPORATION
By /s/Robert E. Wrightson
Name: Robert E. Wrightson
Title: Executive Vice President and
Chief Financial Officer
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/Craig Winslow
Name: Craig Winslow
Title: Duly Authorized Signatory
CREDIT PARTIES:
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE
By /s/Robert E. Wrightson
Name: Robert E. Wrightson
Title: Executive Vice President and
Chief Financial Officer
CF AIRFREIGHT CORPORATION
By /s/Robert E. Wrightson
Name: Robert E. Wrightson
Title: Executive Vice President and
Chief Financial Officer
REDWOOD SYSTEMS, INC.
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer
LELAND JAMES SERVICE CORPORATION
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer