THIRD AMENDMENT, WAIVER AND CONSENT
THIRD AMENDMENT, WAIVER AND CONSENT (this "Amendment"), dated
as of March 30, 2001, 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 :
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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");
WHEREAS, Sureway Air Traffic Corporation, a Wholly-Owned
Subsidiary of the Borrower ("Sureway"), desires to sell certain of its assets
and to assign certain of its liabilities to Sureway Worldwide LLC (the "Sureway
Purchaser"), pursuant to, and in accordance with the terms of, that certain
Asset Purchase Agreement, dated as of March 7, 2001, among the Sureway
Purchaser, Global Delivery Systems, LLC, Sureway and the Borrower (as amended,
modified or supplemented to the date hereof, the "Sureway Asset Purchase
Agreement") (with such sale and assignment on the basis set forth above being
herein called the "Sureway Asset Sale"); and
WHEREAS, subject to the terms and conditions of this
Amendment, the parties hereto wish to amend, and the Lenders wish to grant
certain consents and waivers to the provisions of, the Loan Agreement, in each
case as herein provided;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in
Section 6.02 of the Loan Agreement, (i) Sureway shall be permitted to consummate
the Sureway Asset Sale pursuant to, and in accordance with the terms of, the
Sureway Asset Purchase Agreement, so long as (x) Sureway receives a cash payment
equal to at least $11,300,000 as consideration in connection with the Sureway
Asset Sale and (y) net sale proceeds from the Sureway Asset Sale in an aggregate
amount equal to at least $1,000,000 shall have been applied by the Borrower on
the date of such sale to voluntary prepay a portion of the Loan in a like
principal amount pursuant to, and in accordance with the terms of, Sections
2.02(a) and (c) of the Loan Agreement (as modified pursuant to Section 2 of this
Amendment below) and (ii) the Borrower shall be permitted to hold the Note (as
defined in the Sureway Asset Purchase Agreement) in an aggregate principal
amount equal to not less than $2,000,000 (as reduced from time to time by
repayments of principal thereunder) received as consideration pursuant to the
Sureway Asset Sale.
2. Notwithstanding anything to the contrary contained in
Section 2.02(a) of the Loan Agreement, in connection with any prepayment of a
portion of the Loan as contemplated by clause (i)(y) of Section 1 of this
Amendment, the Borrower shall not be required to repay such portion (and only
such portion) of the Loan at the prepayment price specified in said Section.
3. Section 1.05(a) of the Loan Agreement is hereby amended by
deleting clause (I) of said Section in its entirety and inserting the following
new clause (I) in lieu thereof:
"(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 January 1, 2001
and ending on the earliest to occur of (x) the date of the
delivery (or required delivery) of the financial statements
for the fiscal quarter ended March 31, 2001 pursuant to
Section 5.01(b) (the "March 31, 2001 Financials Delivery
Date") and (y) 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 13.5%, (ii) during the period commencing on the
March 31, 2001 Financials Delivery Date and ending on the
earlier to occur of (x) the date of the delivery (or required
delivery) of the financial statements for the fiscal quarter
ended June 30, 2001 pursuant to Section 5.01(b) (the "June 30,
2001 Financials Delivery Date") and (y) the Final Compliance
Date, the Borrower agrees to (and shall) 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 (A) in the
event that the chief financial officer of the Borrower shall
have delivered to each of the Lenders on the March 31, 2001
Financial Delivery Date an officer's certificate demonstrating
to the satisfaction of the Lenders the Borrower's compliance
with the financial covenant contained in Section 6.08 for the
fiscal quarter ended March 31, 2001 (and attaching financial
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calculations (in reasonable detail) establishing such
compliance), the rate otherwise applicable above in the
absence of this proviso or (B) in the event that the chief
financial officer of the Borrower shall not have delivered to
each of the Lenders on the March 31, 2001 Financials Delivery
Date an officer's certificate demonstrating such compliance,
14% per annum, (iii) during the period commencing on the June
30, 2001 Financials Delivery Date and ending on the earlier to
occur of (x) the date of the delivery (or required delivery)
of the financial statements for the fiscal quarter ended
September 30, 2001 pursuant to Section 5.01(b) (the "September
30, 2001 Financials Delivery Date") and (y) the Final
Compliance Date, the Borrower agrees to (and shall) 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 (A)
in the event that the chief financial officer of the Borrower
shall have delivered to each of the Lenders on the June 30,
2001 Financials Delivery Date an officer's certificate
demonstrating to the satisfaction of the Lenders the
Borrower's compliance with the financial covenant contained in
Section 6.08 for the fiscal quarter ended June 30, 2001 (and
attaching financial calculations (in reasonable detail)
establishing such compliance), the rate applicable to such
Loan (as determined pursuant to this Section 1.05(I))
immediately prior to the June 30, 2001 Financials Delivery
Date or (B) in the event that the chief financial officer of
the Borrower shall not have delivered to each of the Lenders
on the June 30, 2001 Financials Delivery Date an officer's
certificate demonstrating such compliance, the rate applicable
to such Loan (as determined pursuant to this Section 1.05(I))
immediately prior to the June 30, 2001 Financials Delivery
Date plus 1.00%, (iv) during the period commencing on the
September 30, 2001 Financials Delivery Date and ending on the
earlier to occur of (x) the date of the delivery (or required
delivery) of the financial statements for the fiscal year
ended December 31, 2001 pursuant to Section 5.01(c) (the
"December 31, 2001 Financials Delivery Date") and (y) the
Final Compliance Date, the Borrower agrees to (and shall) 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 (A) in the event that the chief financial officer of the
Borrower shall have delivered to each of the Lenders on the
September 30, 2001 Financials Delivery Date an officer's
certificate demonstrating to the satisfaction of the Lenders
the Borrower's compliance with the financial covenant
contained in Section 6.08 for the fiscal quarter ended
September 30, 2001 (and attaching financial calculations (in
reasonable detail) establishing such compliance), the rate
applicable to such Loan (as determined pursuant to this
Section 1.05(I)) immediately prior to the September 30, 2001
Financials Delivery Date or (B) in the event that the chief
financial officer of the Borrower shall not have delivered to
each of the Lenders on the September 30, 2001 Financials
Delivery Date an officer's certificate demonstrating such
compliance, the rate applicable to such Loan (as determined
pursuant to this Section 1.05(I)) immediately prior to the
September 30, 2001 Financials Delivery Date plus 1.00% and (v)
during the period commencing on the December 31, 2001
Financials Delivery Date and ending on the Final Compliance
Date, the Borrower agrees to (and shall) 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 (A) in the
event that the chief financial officer of the Borrower shall
have delivered to each of the Lenders on the December 31, 2001
Financial Delivery Date an officer's certificate demonstrating
to the satisfaction of the Lenders the Borrower's compliance
with the financial covenant contained in Section 6.08 for the
fiscal quarter ended December 31, 2001 (and attaching
financial calculations (in reasonable detail) establishing
such compliance), the rate applicable to such Loan (as
determined pursuant to this Section 1.05(I)) immediately prior
to the December 31, 2001 Financials Delivery Date or (B) in
the event that the chief financial officer of the Borrower
shall not have delivered to each of the Lenders on the
December 31, 2001 Financials Delivery Date an officer's
certificate demonstrating such compliance, the rate applicable
to such Loan (as determined pursuant to this Section 1.05(I))
immediately prior to the December 31, 2001 Financials Delivery
Date plus 1.00%; provided that, notwithstanding the foregoing,
in no event shall the interest rate payable in respect of the
unpaid principal amount of any Loan pursuant to the
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provisions of this Section 1.05(I) above (but not as a result
of the application of any other provisions of this Agreement)
exceed 15.0%.".
4. Section 2.02(c) of the Loan Agreement is hereby amended by
inserting the text "but excluding any scheduled repayments made pursuant to
Section 2.02(f) below" immediately after the text "payments pursuant to Section
2.02(d)" appearing in said Section.
5. Section 2.02 of the Loan Agreement is hereby further
amended by inserting the following new clause (f) at the end of said Section:
"(f) In addition to any other mandatory repayments pursuant to
this Section 2.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Loans, to the extent then outstanding, as is
set forth opposite such date:
Scheduled Repayment Date Amount
- ------------------------ ------
August 15, 2001 $ 250,000
November 15, 2001 $ 250,000
May 15, 2002 $ 250,000
August 15, 2002 $ 250,000".
6. Section 6 of the Loan Agreement is hereby amended by
inserting the following new Section 6.18 at the end of said Section:
"6.18 Minimum Availability Under the Credit
Agreement. The Borrower shall not permit the Excess Available Reserve
under, and as defined in, the Credit Agreement to be less than
$4,500,000 at any time.".
7. The Lenders hereby waive any Event of Default that has
arisen pursuant to Section 7.03 of the Loan Agreement solely as a result of the
failure of the Borrower to comply with the financial covenant contained in
Section 6.07 for (and only for) the fiscal quarter ended December 31, 2001.
8. Section 6.07 of the Loan Agreement is hereby amended by (i)
deleting the ratio "4.70:1.0" appearing in the table in said Section opposite
the fiscal quarter ended March 31, 2001 and inserting the ratio "11:1.0" in lieu
thereof, (ii) deleting the ratio "4.05:1.0" appearing in the table in said
Section opposite the fiscal quarter ended June 30, 2001 and inserting the ratio
"9.35:1.0" in lieu thereof and (iii) deleting the ratio "3.75:1.0" appearing in
the table in said Section opposite the fiscal quarter ended September 30, 2001
and inserting the ratio "6.75:1.0" in lieu thereof and (iv) deleting the ratio
"3.60:1.0" appearing in the table in said Section opposite the fiscal quarter
ended December 31, 2001 and inserting the ratio "3.70:1.0" in lieu thereof.
9. 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 of the Loan Agreement (and only for such purposes), the
Consolidated EBITDA for the fiscal quarter of the Borrower ended
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December 31, 2000 included in Consolidated EBITDA for any period of four
consecutive fiscal quarters ending on a date specified in the table appearing in
such Section shall be deemed to be -$1,045,000.
10. The Lenders hereby waive compliance by the Borrower with
the requirements of Section 6.08 for (and only for) the fiscal quarters ended
September 30, 2001 and December 31, 2001.
11. The Lenders hereby waive compliance by the Borrower with
the requirements of Section 6.09 for (and only for) the fiscal quarter ended
December 31, 2001.
12. Section 6.09(b) of the Loan Agreement is hereby amended by
deleting said Section in its entirety and inserting the following Section
6.09(b) in lieu thereof:
"(b) The Borrower will not permit (i) in the case of the
fiscal quarter ended March 31, 2001, the remainder of (x) the amount of
Consolidated EBITDA for such fiscal quarter (taken as one accounting
period) less (y) the portion of the Divested EBITDA for the Calculation
Period ended on the last day of such fiscal quarter attributable to
such fiscal quarter (as determined by Paribas), to be less than the
amount set forth opposite such fiscal quarter end date below and (ii)
in the case of the any other fiscal quarter ended on a date set forth
below, the amount of Consolidated EBITDA for such fiscal quarter (taken
as one accounting period), to be less than the amount set forth
opposite such fiscal quarter end date below:
Fiscal Quarter
Ended Amount
----- ------
March 31, 2001 $1,350,000
June 30, 2001 $1,700,000
September 30, 2001 $2,000,000
December 31, 2001 $2,300,000".
13. The definition of "Pro Forma Basis" appearing in Section
8.01 of the Loan Agreement is hereby amended by inserting the text "and pursuant
to the definition of Financial Covenant Compliance Date" immediately after the
text "excluding calculations pursuant to Section 6.09(b)" appearing in clause
(ii) of said definition.
14. The definition of "Senior Debt" appearing in Section 8.01
of the Loan Agreement is hereby amended by deleting the amount "$25,000,000"
appearing in said definition and inserting the amount "$15,000,000" in lieu
thereof.
15. Section 8.01 of the Loan Agreement is hereby amended by
(i) deleting the definitions of "Acceptable Credit Agreement Refinancing",
"Acceptable Credit Agreement Refinancing Date", "Final Compliance Date",
"Financial Covenant Compliance Date" and "Permitted Refinancing" appearing in
said Section and (ii) inserting the following new definitions in appropriate
alphabetical order in said Section:
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"Financial Covenant Compliance Date" shall mean the earlier to
occur of (x) 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 to the satisfaction
of the Lenders the Borrower's compliance with Sections 6.07, 6.08 and
6.09 as if Sections 7 and 8 of the First Amendment, Sections 4, 5, 6
and 7 of the Second Amendment and Sections 5, 6, 7, 8 and 9 of the
Third 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 (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 (I) demonstrate to the satisfaction of the Lenders
that the Borrower has achieved Consolidated EBITDA for the period of
four consecutive fiscal quarters (taken as one accounting period) then
last ended which, when Divested EBITDA for the Calculation Period then
last ended is subtracted therefrom, equals at least $7,500,000 and (II)
attach (a) financial calculations (in reasonable detail) establishing
the amount of Consolidated EBITDA for the period of four consecutive
fiscal quarters (taken as one accounting period) then last ended and
(b) in the event a Significant Asset Sale was consummated during the
respective Calculation Period or thereafter and on or prior to the
respective Calculation Date, the financial calculations of a Qualified
Accounting Firm setting forth the amount of the Divested EBITDA for the
Calculation Period then last ended and otherwise be in a form
satisfactory to the Lenders.
"Final Compliance Date" shall mean the Financial Covenant
Compliance Date.
"Permitted Refinancing" means any refinancing of Senior Debt
which has been consented to in writing by the Required Lenders.
"Third Amendment" shall mean the Third Amendment to this
Agreement, dated as of March 30, 2001.
"Third Amendment Effective Date" shall have the meaning
provided in the Third Amendment.
16. Section 10.07(a) of the Loan Agreement is hereby amended
by deleting the text "and any determination pursuant to clause (z) of the
proviso to Section 1.05(a)(I) (and the determination of the Financial Covenant
Compliance Date as used in said Section or elsewhere in this Agreement)"
appearing in said Section.
17. 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.
18. 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.
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19. 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.
20. This Amendment shall become effective on the date (the
"Third 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, (ii) the Lenders
shall have received (A) a consent to the Credit Agreement which shall permit the
repayment of Loans in an aggregate principal amount equal to $1,000,000 and (B)
a letter agreement from the banks party to the Credit Agreement pursuant to
which such banks shall agree to enter into an amendment by April 7, 2001, which
amendment shall (x) provide for an extension of the final maturity of the loans
under the Credit Agreement until July 31, 2002, (y) modify the financial
covenants contained therein on a basis satisfactory to the Required Lenders and
(z) otherwise be in form and substance satisfactory to the Required Lenders and
(iii) concurrently therewith, the Sureway Asset Sale shall have been consummated
in accordance with the requirements of Section 1 of this Amendment.
21. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants that (i) no Default or
Event of Default exists as of the Third Amendment Effective Date, after giving
effect to this Amendment, and (ii) on the Third 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).
22. From and after the Third 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.
* * *
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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: