FOURTH AMENDMENT AND CONSENT
FOURTH AMENDMENT AND CONSENT (this "Amendment"), dated as of May 31,
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, the Borrower desires to sell all of the issued and
outstanding shares of stock of National Express Company, Inc., a Missouri
corporation and a Wholly-Owned Subsidiary of the Borrower ("National"), to
Executive Express, Inc., a Missouri corporation (the "National Purchaser"),
pursuant to, and in accordance with the terms of, that certain Stock Purchase
Agreement, dated as of May 31, 2001, among the Borrower, National, the National
Purchaser and Charles Walch (as in effect on the date hereof, the "National
Stock Purchase Agreement") (with such sale on the basis set forth above being
herein called the "National Sale"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend, and the Lenders party hereto wish to grant certain
consents 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) the Borrower shall be permitted to consummate
the National Sale pursuant to, and in accordance with the terms of, the National
Stock Purchase Agreement, so long as (x) the Borrower receives as consideration
in connection with the National Sale (I) a cash payment equal to at least
$[941,000] (as the same may be adjusted pursuant to Sections 1.2(b) and
1.2(d)(ii) of the National Stock Purchase Agreement), (II) a promissory note
issued by it from Charles Walch in an aggregate principal amount of $559,000 and
promptly cancels the same upon receipt thereof and (III) the promissory
installment note of the National Purchaser in an aggregate principal amount of
$[1,750,000] (as reduced from time to time by repayments of principal
thereunder) referred to in Section 1.2(d)(iii) of the National Stock Purchase
Agreement (the "National Note") and (ii) the Borrower shall be permitted to hold
the National Note and 100% of the stock of the National Purchaser owned by
Charles Walch (pledged as collateral for the obligations of the National
Purchaser under the National Note).
2. The definition of "Consolidated EBITDA" appearing in Section 8.01
of the Loan Agreement is hereby amended by deleting the text "Sections 6.07 and
6.08 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 therein or elsewhere in this Agreement)" appearing in said definition and
inserting the text "Sections 6.07 and 6.08 and any determination of compliance
with said Sections pursuant to clause (x) of the definition of Financial
Covenant Compliance Date" in lieu thereof.
3. The definition of "Financial Covenant Compliance Date" appearing
in Section 8.01 of the Loan Agreement is hereby amended by deleting the text
"Sections 5, 6, 7, 8 and 9 of the Third Amendment were not effective" appearing
in said definition and inserting the text "Sections 7, 8, 9, 10, 11 [and 12] of
the Third Amendment were not effective" in lieu thereof.
4. The definition of "Pro Forma Basis" appearing in Section 8.01 of
the Loan Agreement is hereby amended by deleting the text "excluding
calculations pursuant to Section 6.09(b) and pursuant to the definition of
Financial Covenant Compliance Date" appearing in clause (ii) of said definition
and inserting the text "excluding calculations of compliance with Section
6.09(b) (including pursuant to clause (x) of the definition of Financial
Covenant Compliance Date) and calculations pursuant to clause (y) of the
definition of Financial Covenant Compliance Date" in lieu thereof.
5. Section 10.07(a) of the Loan Agreement is hereby amended by
deleting the text "Sections 6.07 and 6.08" appearing in said Section and
inserting the text "Sections 6.07 and 6.08 and any determination of compliance
with said Sections pursuant to clause (x) of the definition of Financial
Covenant Compliance Date" in lieu thereof.
6. 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.
7. 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.
8. 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.
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9. This Amendment shall become effective on the date (the "Fourth
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 and (ii) the Lenders shall have received a
consent to the Credit Agreement which shall (x) permit the National Sale and (y)
otherwise be in form and substance satisfactory to the Lenders.1
10. 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 Fourth Amendment Effective Date, after giving effect to this
Amendment, and (ii) on the Fourth 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).
11. From and after the Fourth 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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1 Paribas to confirm that amendment to Credit Agreement was received by
April 7, 2001 on the basis contemplated by the Third Amendment.
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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:
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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:
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