Exhibit 10.04
TENTH AMENDMENT TO LETTER OF CREDIT AGREEMENTS
THIS TENTH AMENDMENT TO LETTER OF CREDIT AGREEMENTS
(this "Amendment"), is made and entered into as of April 15, 2002
(the "Effective Date"), by and among CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware corporation ("Debtor"), the other Credit
Parties signatory to the Letter of Credit Agreement described
below (collectively, together with the Debtor, the "Credit
Parties") and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("GE Capital").
W I T N E S S E T H:
WHEREAS, Debtor and GE Capital are parties to that
certain Letter of Credit Agreement, dated as of April 27, 2001
(as amended to the date hereof, the "Letter of Credit Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Letter of Credit
Agreement), and
WHEREAS, Debtor, the other Credit Parties and GE
Capital desire to modify the Letter of Credit Agreement in
certain respects, all 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, the Debtor, the other Credit Parties and GE
Capital do hereby agree as follows:
1. Waivers. Subject to the terms and conditions of this
Amendment, including without limitation the fulfillment of the
conditions to effectiveness specified in Section 8 below, GE
Capital hereby waives any Default or Event of Default that has
occurred as a result of (i) the violation by the Debtor of
Section 6.8(i) of the Letter of Credit Agreement (as in effect
immediately prior to the date of this Amendment) due to the
payment by CF Delaware to CFCD 2002 LLC of monthly rent in the
amount of approximately $331,000 on or about February 19, 2002,
approximately $240,000 on or about March 1, 2002 and
approximately $240,000 on or about April 1, 2002, in each case,
to the extent that such payments were in excess of the amount of
rent permitted to be paid by CF Delaware under Section 6.8(i) (as
in effect immediately prior to the date of this Amendment) and
(ii) the failure by the Debtor to deliver in a timely manner its
annual audited financial statements for fiscal year 2001 (the
"Financial Statements") and related reports and certificates as
required pursuant to paragraph (a) of Annex E, provided, however,
that if the Financial Statements and related reports and
certificates as required by paragraph (a) of Annex E are not
delivered by Debtor to Creditor on or prior to April 19, 2002,
the foregoing waiver in clause (ii) of this Section 1 will
automatically terminate and be null and void without notice to,
or any other action by, Debtor, GE Capital or any other Person.
2. Amendment of the Letter of Credit Agreements. Subject to
the terms and conditions of this Amendment, including without
limitation the fulfillment of the conditions precedent specified
in Section 8 below, the Letter of Credit Agreement is hereby
amended as follows:
A. Section 6.8 to the Letter of Credit Agreement is
hereby amended by deleting clause (i) thereof and substituting in
lieu thereof a new clause (i) to read in its entirety as follows:
(i) the transfer of the Conveyed Properties or
any other real property (provided that such real
property does not constitute any of the Collateral, the
"Collateral" (as such term is defined in the Revolving
Credit Agreement) or the Receivables), by CF Delaware
to CFCD 2002 LLC, a Delaware limited liability company
("CFCD 2002 LLC"), and the lease-back of such Conveyed
Properties or other real property (provided that such
real property does not constitute any of the
Collateral, the "Collateral" (as such term is defined
in the Revolving Credit Agreement) or the Receivables)
by CFCD 2002 LLC to CF Delaware (the "Lease-back
Transactions"), provided that (a) the aggregate monthly
rent paid or payable by CF Delaware from time to time
in connection with such Lease-back Transactions does
not at any time exceed the Maximum Monthly Rental
Amount, (b) all such rent shall be used by the SPE
Subsidiaries to pay such principal and interest when
due, to make required tax and insurance payments (into
escrow or otherwise) and to make the capital
contributions to CF Delaware required pursuant to
Section 3 of the Tenth Amendment, and (c) the proceeds
received by CF Delaware from CFCD 2002 LLC in
connection with such transfer made (i) on the Eighth
Amendment Effective Date, shall be used by CF Delaware
to create additional Net Availability under and as
defined in the Letter of Credit Agreement, and (ii)
after the Eighth Amendment Effective Date, to be used
by CF Delaware for working capital and general
corporate purposes.
B. Annex A to the Letter of Credit Agreement is
hereby amended by adding in alphabetical order the following
definitions:
"CFCD 2002 LLC Debt Service Amount" means, for any
monthly period commencing on and after February 1,
2002, an amount equal to the sum of (i) the aggregate
fixed monthly payment of principal and interest under
all of the Bayview Indebtedness to the extent expressly
permitted under Section 6.3(o), plus (ii) an amount
equal to one-twelfth (1/12) of the amount of annual
costs for taxes and insurance payments estimated to be
due as required under the CFCD 2002 LLC Leases or under
the mortgages, in each case, as in effect on the date
hereof securing the Bayview Indebtedness.
"CFCD 2002 LLC Leases" means, collectively, the
leases between CF Delaware and CFCD 2002 LLC entered
into in connection with the Lease-back Transactions, as
in effect on the date of this Amendment.
"Excess Amount" means, for any monthly period
commencing on and after February 1, 2002, the lesser of
(a) $540,000, subject to adjustments applicable to such
monthly period based on changes in the consumer price
index as applied to the gross monthly rent under the
CFCD 2002 LLC Leases to the extent such adjustments are
required under the terms of the CFCD 2002 LLC Leases
(but in any event to be limited to an amount not to
exceed $750,000 after giving effect to any such
adjustments), and (b) an amount equal to (i) the Fixed
Rent Amount for such period, subject to adjustments
applicable to such monthly period based on changes in
the consumer price index to the extent such adjustments
are required under the terms of the CFCD 2002 LLC
Leases, less (ii) an amount equal to the CFCD 2002 LLC
Debt Service Amount, for such period.
"Fixed Rent Amount" means, for any monthly period
commencing on and after February 1, 2002, the amounts
set forth on Schedule 1 attached to the Tenth Amendment
for such period, representing the aggregate monthly
rent payable by CF Delaware, as lessee, under the CFCD
2002 LLC Leases for such period (without any
adjustments based on changes in the consumer price
index or otherwise).
"Maximum Monthly Rental Amount" means, for any
monthly period commencing on and after February 1,
2002, an amount equal to the sum of (a) CFCD 2002 LLC
Debt Service Amount for such period, plus (b) the
Excess Amount for such period.
"Tenth Amendment" means that certain Tenth
Amendment to the Letter of Credit Agreements dated as
of April 15, 2002 by and among the Credit Parties and
Creditor
3. Covenants. By no later than the earlier of (i) the last
Business Day of each calendar month on and after the date of this
Amendment and (ii) the Distribution Date, Debtor shall cause
CFCD 2002 LLC to distribute to CF Delaware as a cash dividend an
amount equal to the Excess Amount as defined above in this
Amendment. The Excess Amount required to be distributed by CFCD
2002 LLC to CF Delaware on each Distribution Date pursuant to the
immediately preceding sentence shall be sent by wire transfer in
immediately available funds to the Blocked Account. On a monthly
basis on or prior to each Distribution Date Debtor will execute
and deliver to GE Capital an officer's certificate, in form and
substance reasonably satisfactory to GE Capital, showing the
computations of the Excess Amount for the relevant monthly
period. Debtor further agrees to promptly (and in any event
within two Business Days) after request provide GE Capital with
any information or detail as to the calculation of the Excess
Amount or any component thereof that GE Capital may reasonably
request. The failure by any Credit Party to neglect to timely
perform, keep or observe any of foregoing covenants shall
constitute an immediate Event of Default. As used herein, the
term "Distribution Date" means, for each calendar month occurring
on and after the date of this Amendment, the date in each such
month which is the fifth Business Day following the scheduled
date of all monthly payments of principal and interest in respect
of the Bayview Indebtedness required to be made by CFCD 2002 LLC.
4. No Other Amendments. Except for the waivers expressly set
forth and referred to in Section 1, the amendments expressly set
forth and referred to in Section 2, and the covenants set forth
in Section 3, the Letter of 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 Letter of Credit Agreement or to affect, modify or
impair the continuity or perfection of GE Capital's Liens under
the Collateral Documents.
5. Representations and Warranties. To induce GE Capital to
enter into this Amendment, Debtor and each of the other Credit
Parties hereby warrant, represent and covenant to GE Capital
that: (a) this Amendment has been duly authorized, executed and
delivered by Debtor and each 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 Debtor and each Credit Party in the Letter
of 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
Debtor or any Credit Party of any of its representations and
warranties contained in this Section 5 shall be an Event of
Default under the Letter of Credit Agreement.
6. Ratification and Acknowledgment. Debtor and each of the
other Credit Parties hereby ratify and reaffirm each and every
term, covenant and condition set forth in the Letter of Credit
Agreement and all other documents delivered by such company in
connection therewith (including without limitation the other
Letter of Credit Documents to which Debtor or any Credit Party is
a party), effective as of the date hereof.
7. Estoppel. To induce GE Capital to enter into this
Amendment, Debtor 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 Debtor or
any Credit Party as against GE Capital with respect to the
obligations of Debtor or any Credit Party to GE Capital under the
Letter of Credit Agreement or the other Letter of Credit
Agreement Documents, either with or without giving effect to this
Amendment.
8. Conditions to Effectiveness. This Amendment shall become
effective, as of the Effective Date, (a) upon receipt by GE
Capital of this Amendment, duly executed, completed and delivered
by Debtor and each other Credit Party, in form and substance
satisfactory to GE Capital and (b) the Ninth Amendment to Credit
Agreement, dated as of the date hereof, among Debtor and GE
Capital shall have been executed and delivered to GE Capital and
be in full force and effect. Upon the effective date of this
Amendment, the waivers set forth in Section 1, the amendments set
forth in Section 2 and the covenants set forth in Section 3 of
this Amendment shall become effective as of the effective date of
this Amendment.
9. Reimbursement of Expenses. Debtor and each of the other
Credit Parties hereby agree that Debtor and each of the other
Credit Parties shall reimburse GE Capital on demand for all costs
and expenses (including without limitation reasonable attorney's
fees) incurred by GE Capital 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.
10. 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.
11. 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, Debtor and each of the
other Credit Parties hereby waive any provision of law that
renders any provision hereof prohibited or unenforceable in any
respect.
12. 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.
13. Entire Agreement. The Letter of 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.
[Remainder of page intentionally blank; next page is
signature page]
IN WITNESS WHEREOF, the parties have caused
this Tenth Amendment to Letter of Credit Agreements to be duly
executed by their respective officers thereunto duly authorized,
as of the date first above written.
DEBTOR:
CONSOLIDATED FREIGHTWAYS CORPORATION
By Robert E. Wrightson
Name:/s/Robert E. Wrightson
Title: Executive Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/Craig Winslow
Name: Craig Winslow
Its Duly Authorized Signatory
SUBSIDIARY GUARANTORS:
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE
By Robert E. Wrightson
Name:/s/Robert E. Wrightson
Title: Executive Vice President and
Chief Financial Officer
CF AIRFREIGHT CORPORATION
By Robert E. Wrightson
Name:/s/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
CF MOVESU.COM INCORPORATED
By:/s/Kerry K. Morgan
Name: Kerry K. Morgan
Title: Vice President and Treasurer
Schedule 1 --Fixed Rent Amount
Address City Sta Fixed Rent
te Amount
1. 21300 Wilmington Long Beach CA $35,400
Ave.
2. 499 Valley Drive Brisbane CA $33,600
3. 2045 East Washington Los Angeles CA $44,400
Blvd.
4. 9450 Dowdy Drive Miramar CA $12,800
5. 2200 North Batavia Orange CA $32,450
6. 13645 Live Oak Lane Pasadena CA $13,600
7. 12100 Motague Street San Fernando CA $15,500
Valley
8. 3355 N.W. 41st Miami FL $25,500
Street
9. 828 West Taft Orlando FL $61,425
Vineland Rd.
10. 6801 N.E. 82nd Gresham OR $18,800
Avenue
11. 2325 South 3200 Salt Lake City UT $47,200
West
12. 1200 Wright Avenue Richmond CA $18,700
13. 401 & 517 West Milwaukee WI $35,000
Layton Ave.
14. 300 North Clark El Paso TX $24,800
Drive
Address City Sta Fixed Rent
te Amount
1. 4207 Gardner Lane Kansas City MO $50,400
2. 877 Niagra St. Buffalo NY $16,200
3. 1600 S. Warfield St. Philadelphia PA $56,400
4. 3955 E. Shelby Dr. Memphis TN $63,525
5. 192 Sweet Hollow Rd. Old Bethpage NY $32,400
6. 11 West St. Brooklyn NY $88,800
7. 5025 & 5001 Sunset Charlotte NC $34,500
Rd.
8. 7611 South Airport Stockton CA $11,550
Way
9. 390 Commercial St. San Jose CA $23,800
10. 6050 E. Marginal Seattle WA $59,000
Way
11. 6305 E. 58th St. Commerce City CO $27,225
12. 4111 NE Loop 410 San Antonio TX $9,430
13. 835 Gold Street Manchester NH $8,514
14. 1601 Villa Street Elgin IL $16,200
15. 1525 Sams Avenue Harahan LA $15,400
16. 4847 Blaffer St. Houston TX $47,000
17. 130 Woodmont Road Milford CT $10,800
18. 1650 Kleppe Lane Sparks NV $17,850
19. 295 Salem St. Woburn MA $18,300
20. 460 Transport Ct. Lexington KY $13,490
21. 25 Demarest Drive Wayne NJ $25,850
22. 4601 Carey Street Fort Worth TX $31,500
23. 4723 West Hacienda Las Vegas NV $15,375
Ave.
24. 9680 Eagle Ave. Dearborn MI $10,260
25. 606 North Fiske Spokane WA $13,750
Ave.