Exhibit 10.2
EXECUTION COPY
EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
June 28, 2002, 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");
and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Loan Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 1.05(a) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 1.05(a) in
lieu thereof:
"(a) 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 12.0% per annum; provided
that in the event that the Voluntary Prepayment Date shall have
occurred and so long as no Default or Event of Default is then in
existence, interest in respect of the Amortizable Portion of the unpaid
principal amount of each outstanding Loan shall bear interest from time
to time at a rate equal to 10% per annum."
2. Section 1.05(c) of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 1.05(c) in
lieu thereof:
"(c) Accrued and unpaid interest shall be payable (i) monthly
in arrears on the last Business Day of each month, (ii) on any
repayment (on the amount repaid), (iii) at maturity (whether by
acceleration or otherwise) and (iv) after such maturity, on demand.".
3. Section 2.02(f) of the Loan Agreement is hereby amended by deleting
the table appearing in said Section in its entirety and inserting the following
new table in lieu thereof:
"Scheduled Repayment Date Amount
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June 28, 2002 $1,250,000
Last Business Day of each of March, June, September and Scheduled Repayment Amount then in effect".
December for each of the calendar years 2003, 2004 and
2005
4. Section 5.01(j) of the Loan Agreement is hereby amended by deleting
the text "Article VI of" appearing in said Section.
5. Section 6.04 of the Loan Agreement is hereby amended by (i) deleting
Section 6.04(viii) in its entirety and inserting the text "(viii) Intentionally
Deleted; and" in lieu thereof and (ii) deleting the text "$5,000,000" appearing
in Section 6.04(ix) and inserting the text "$3,000,000" in lieu thereof.
6. Section 6.07 of the Loan Agreement is hereby amended by deleting the
table set forth in said Section in its entirety and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ended Ratio
--------------------- --------
March 31, 2002 5.50:1.0
June 30, 2002 5.85:1.0
September 30, 2002 5.50:1.0
December 31, 2002 4.75:1.0
March 31, 2003 4.25:1.0
June 30, 2003 4.10:1.0
September 30, 2003 4.10:1.0
December 31, 2003 4.00:1.0
March 31, 2004 3.70:1.0
June 30, 2004 3.70:1.0
September 30, 2004 3.50:1.0
December 31, 2004 3.40:1.0
March 31, 2005 3.15:1.0
June 30, 2005 3.10:1.0
September 30, 2005 3.05:1.0
December 31, 2005 3.00:1.0".
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7. Section 6.08 of the Loan Agreement is hereby amended by deleting the
table set forth in said Section in its entirety and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ended Ratio
-------------------- --------
March 31, 2002 0.65:1.0
June 30, 2002 0.65:1.0
September 30, 2002 0.65:1.0
December 31, 2002 0.70:1.0
March 31, 2003 0.70:1.0
June 30, 2003 0.90:1.0
September 30, 2003 0.90:1.0
December 31, 2003 0.90:1.0
March 31, 2004 0.80:1.0
June 30, 2004 0.85:1.0
September 30, 2004 0.90:1.0
December 31, 2004 0.95:1.0
March 31, 2005 1.10:1.0
June 30, 2005 1.10:1.0
September 30, 2005 1.15:1.0
December 31, 2005 1.15:1.0".
8. Section 6.09(b) of the Loan Agreement is hereby amended by deleting
the table set forth in said Section in its entirety and inserting the following
new table in lieu thereof:
"Fiscal Quarter Ended Amount
-------------------- ------
March 31, 2002 $5,250,000
June 30, 2002 $4,850,000
September 30, 2002 $5,150,000
December 31, 2002 $5,800,000
March 31, 2003 $6,000,000
June 30, 2003 $6,250,000
September 30, 2003 $6,250,000
December 31, 2003 $6,250,000
March 31, 2004 $6,350,000
June 30, 2004 $6,350,000
September 30, 2004 $6,350,000
December 31, 2004 $6,350,000
March 31, 2005 $6,500,000
June 30, 2005 $6,500,000
September 30, 2005 $6,500,000
December 31, 2005 $6,500,000".
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9. Section 6.17 of the Loan Agreement is hereby amended by deleting
said Section in its entirety and inserting the text "6.17 Intentionally
Deleted." in lieu thereof.
10. Section 6.18 of the Loan Agreement is hereby amended by deleting
said Section in its entirety.
11. The definition of "Indebtedness" appearing in Section 8.01 of the
Loan Agreement is hereby amended by deleting clause (vii) appearing in said
definition in its entirety and inserting the text "(vii) any Financial
Undertaking (as such term was defined in the Credit Agreement in effect as of
January 29, 1999) (or the equivalent thereof) of such Person" in lieu thereof.
12. Section 8.01 of the Loan Agreement is hereby further amended by (i)
deleting the definitions of "Bank," "Credit Agreement," "First Union," "Minimum
Consolidated Net Worth," "Scheduled Repayment Amount," "Senior Debt" and "Senior
Indebtedness" appearing in said Section and (ii) inserting the following new
definitions in alphabetical order:
"Amortizable Portion" of the unpaid principal amount of any
Loan shall mean, at any time, the portion of the unpaid principal
amount of such Loan at such time equal to the Amortizing Percentage of
the unpaid principal amount of such Loan at such time.
"Amortizing Percentage" shall mean, at any time, a fraction
(expressed as a percentage), (x) the numerator of which is the sum of
the aggregate Minimum Scheduled Repayments at such time (before giving
effect to any repayment pursuant to Section 2.02(f) if the
determination hereof is made on the date of any such required
repayment) and (y) the denominator of which is the unpaid principal
amount of all Loans at such time (before giving effect to any repayment
pursuant to Section 2.02(f) if the determination hereof is made on the
date of any such required repayment).
"Bank" shall mean (x) at any time prior to the Eighth
Amendment Effective Date, First Union Commercial Corporation and (y) at
any time on and after the Eighth Amendment Effective Date, Fleet and,
in each case, any other institution which becomes a "Lender" under the
Credit Agreement pursuant to the terms thereof after the Funding Date
or Eighth Amendment Effective Date, as applicable.
"Credit Agreement" shall mean (x) at any time prior to the
Eighth Amendment Effective Date, the Loan and Security Agreement, dated
as of July 14, 1997, among the Borrower, certain of its Subsidiaries
and First Union Commercial Corporation, as amended prior to the Funding
Date (including by the Modification Agreement) and (y) at any time on
and after the Eighth Amendment Effective Date, the Loan and Security
Agreement, dated as of June 27, 2002, among the Borrower, certain of
its Subsidiaries and Fleet and as each such agreement, as applicable,
may be further amended, restated, extended, replaced, supplemented,
restructured or otherwise modified or refinanced pursuant to a
Permitted Refinancing from time to time (in whole or in part without
limitation (except as provided in this Agreement) as to terms,
extensions of maturities, increasing the amount of borrowings or other
conditions or covenants), including all related notes, collateral
documents, guarantees, Interest Rate Contracts, instruments and
agreements entered into in connection therewith, as the same may be
amended, modified, supplemented, restated, restructured, replaced or
refinanced pursuant to a Permitted Refinancing from time to time.
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"Eighth Amendment" shall mean the Eighth Amendment to this
Agreement, dated as of June 28, 2002.
"Eighth Amendment Effective Date" have the meaning provided in
the Eighth Amendment.
"Fleet" shall mean Summit Business Capital Corp. (a company
doing business as Fleet Capital-Business Finance Division) or any
successor thereto by merger or consolidation.
"Minimum Consolidated Net Worth" shall mean (I) as at any date
of determination on or prior to December 31, 2002, $3,600,000, (II) as
at any date of determination on or prior to December 31, 2003,
$4,000,000, (III) as at any date of determination on or prior to
December 31, 2004, $5,000,000 and (IV) as at any date of determination
on or prior to December 31, 2005, $6,000,000.
"Minimum Scheduled Repayment" shall mean, at any time any
payment required to be made pursuant to Section 2.02(f) at such time,
it being understood and agreed that for purposes of any such payment
required after December 31, 2002, such required payment shall be deemed
to be $250,000.
"Scheduled Repayment Amount" shall mean, at any time any
payment is required to be made pursuant to Section 2.2(f) hereof, (i)
in the event that the Cash Availability at such time is less than
$4,000,000, $250,000 and (ii) in the event that the Cash Availability
at such time is equal to or greater than $4,000,000, $312,500.
"Senior Debt" shall mean all payment and performance
obligations now or hereafter incurred pursuant to and in accordance
with the terms of the Credit Agreement and the other Credit Documents
(including without limitation all principal, interest (including,
without limitation, any post-petition interest on such obligations at
the rate set forth in the Credit Agreement, accruing whether or not
granted or permitted in connection with an event of the type referred
to in Section 7.05 hereof), premium, penalties, fees, expenses,
indemnification, reimbursements, damages and other liabilities payable
under the Credit Agreement and the other Credit Documents) and any
Interest Rate Contract; provided, that in no event shall the principal
amount of Senior Debt (exclusive of interest rate protection
obligations) exceed $15,000,000 plus any additional amounts permitted
to be incurred pursuant to Section 6.04(ix) less (x) the amount of any
permanent reduction of commitments thereunder, (y) any repayment of
loans thereunder (other than loans which can be reborrowed) and (z) any
other repayment accompanied by a permanent reduction of commitments
thereunder (other than any repayments and/or permanent reductions of
commitments under Senior Debt in connection with a refinancing of such
Senior Debt which does not result in an increase in the aggregate
outstanding principal amount of loans and the aggregate available
commitments thereunder from those amounts outstanding and/or available
immediately prior to such refinancing, except to the extent any such
increase is attributable to an incurrence of additional Indebtedness
permitted pursuant to Section 6.04(ix)). Senior Debt outstanding under
the Credit Agreement shall continue to constitute Senior Debt for all
purposes hereof, notwithstanding that such Senior Debt or any claim in
respect thereof may be disallowed, avoided or subordinated pursuant to
any insolvency law, the Bankruptcy Code or any similar federal or state
law for the relief of debtors or other applicable insolvency law or
equitable principles as a claim for unmatured interest.
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"Senior Indebtedness" shall mean collectively, with respect to
the Borrower and its Subsidiaries, (a) the Senior Debt and (b) any
additional Indebtedness of the Borrower and its Subsidiaries for
borrowed money which is either secured or not subordinated to the
payment of the Obligations, to the extent such additional Indebtedness
is permitted to be incurred pursuant to Section 6.04(ix), which
additional Indebtedness shall be incurred pursuant to the Credit
Agreement. Senior Indebtedness outstanding under the Credit Agreement
shall continue to constitute Senior Indebtedness for all purposes
hereof, notwithstanding that such Senior Indebtedness or any claim in
respect thereof may be disallowed, avoided or subordinated pursuant to
any insolvency law, the Bankruptcy Code or any similar federal or state
law for relief of debtors or other applicable insolvency law or
equitable principles as a claim for unmatured interest.
"Voluntary Prepayment Date" shall mean the date (following the
Eighth Amendment Effective Date) upon which the Borrower shall have
made a voluntary prepayment (or prepayments) of Loans in an aggregate
amount equal to or in excess of $750,000 (excluding, for purposes of
this definition, any mandatory prepayments required to be made by the
Borrower pursuant to Section 2.02 (including, without limitation,
Section 2.02(f)).
13. The Borrower, for its part, acknowledges and agrees that any
failure by it to make a payment a payment in accordance with the requirements of
Section 2.02(f) of the Loan Agreement shall give rise to an Event of Default
under Section 7.01 of the Loan Agreement, notwithstanding any prohibition on
such payment contained in the Credit Agreement (whether as a result of an "event
of default" under the Credit Agreement or otherwise).
14. 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.
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15. In order to induce the Lenders to enter into this Amendment, each
Loan Party hereby remises, releases and forever discharges, and by these
presents do for their Subsidiaries (direct or indirect), and for themselves and
their predecessors, successors, affiliates and assigns (each, a "Releasor"),
remise, release and forever discharge, each Lender, and their predecessors,
affiliates, subsidiaries (direct or indirect), successors, assigns,
participants, officers, directors, shareholders, partners, employees or agents,
of and from all manner of actions at law or equity, all causes of action for
damages, costs, debts, sums of money, accounts, bills, rights of indemnity,
breach of contract, provision of labor or materials, loss of use, loss of
services, expenses, compensation, consequential or punitive damages, equitable
subordination, avoidance of preferential or fraudulent transfers, or any other
thing whatever, arising by virtue of actions taken, actions omitted to be taken
or the occurrence of any other event on or prior to the Eighth Amendment
Effective Date, relating in any way to (i) this Amendment, the Loan Agreement,
the Obligations or any other Loan Document, (ii) any claims (including, without
limitation, for contribution or indemnification) which have or could have arisen
out of any of the transactions contemplated by this Amendment or the Loan
Documents or any other proceedings that have been brought or may be brought by
any party hereto or to any Loan Document or any third party relating to the Loan
Documents or the transactions contemplated thereby, (iii) any acts, transactions
or events that are the subject matter of this Amendment or the Loan Documents or
(iv) the prosecution of any claims or any settlement negotiations which such
Releasor ever had, now or which it, its Subsidiaries (direct or indirect), or
its successors or assigns hereafter can, shall or may have against any Lender,
and their predecessors, affiliates, Subsidiaries (direct or indirect),
successors, assigns, participants, officers, directors, shareholders, partners,
employees or agents, by reason of (with respect to each of clauses (i)-(iv)
above) any matter, cause or thing whatsoever on or prior to the Eighth Amendment
Effective Date relating to this Amendment or the Loan Documents; provided,
however, that nothing herein shall be construed or deemed to release any
covenants or agreements contained herein or in any Loan Document so long as such
Loan Document shall remain in full force and effect.
16. Each Loan Party hereby acknowledges and agrees that the Obligations
are not subject to avoidance, defense, objection, action, counterclaim or
setoff, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally. The Obligations constitute
legal, valid and binding obligations of each Loan Party, enforceable in
accordance with the terms of the Loan Documents and pursuant to applicable law,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, and subject to the limitations imposed by
general equitable principles (regardless whether such enforceability is
considered in a proceeding at law or in equity). Furthermore, no Loan Party will
use any of its cash or other assets to object to or contest in any manner, or
raise any objections, counterclaims or defenses to, the validity or
enforceability of the claims of the Lenders, or to investigate or assert any
claims or causes of action arising on or prior to the Eighth Amendment Effective
Date against the Lenders.
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17. Except as expressly set forth in this Amendment, each of the
undersigned hereby acknowledges and agrees that the execution and delivery by
the Lenders of this Amendment shall not be deemed (i) to create a course of
dealing or otherwise obligate the Lenders to forbear or execute similar
agreements under the same or similar circumstances in the future, (ii) to
modify, relinquish or impair any right of the Lenders to receive any indemnity
or similar payment from any Person or entity as a result of any matter arising
from or relating to this Amendment, (iii) to waive any right of the Lenders to
receive interest at an increased rate as a result of any Events of Default that
may occur under the Loan Agreement, (iv) to obligate the Lenders to make or
agree to make any extension of credit, (v) to obligate the Lenders in any way to
forbear from individually or collectively enforcing remedies under the Loan
Agreement or any other Loan Document in any manner or (vi) a commitment from any
of the Lender to forbear or "stand still". Except as expressly set forth in this
Amendment, no past or future forbearance on the part of any of the Lenders
should be viewed as a limitation upon or waiver of the absolute right and
privilege of the Lenders in exercising rights and remedies that currently exist
or may exist after the Eighth Amendment Effective Date.
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.
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 "Eighth
Amendment Effective Date") when (i) the Borrower and each of the 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 Borrower shall have made the
repayment of $1,250,000 required to be made to the Lenders pursuant to Section
2.02(f) of the Loan Agreement on June 28, 2002 and (iii) the Borrower shall have
paid all of the outstanding legal fees and expenses of White & Case LLP, counsel
to the Lenders.
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 Eighth Amendment Effective Date, both immediately before and
immediately after giving effect to this Amendment, and (ii) on the Eighth
Amendment Effective Date, both immediately before and immediately 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 Eighth 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:
Each of the undersigned, each being a Subordinated Guarantor (as defined in the
Loan Agreement referenced in the foregoing Amendment) under the Loan Agreement
referenced in the foregoing Amendment, hereby consents to the entering into of
the Amendment and agrees to the provisions thereof and makes the
representations, agreements and acknowledgments set forth therein (including,
without limitation, those set forth in Sections 11, 12 and 13 thereof).
CLICK MESSENGER SERVICE, INC.,
as a Guarantor
By:
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Name:
Title:
KBD SERVICES, INC.,
as a Guarantor
By:
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Name:
Title:
OLYMPIC COURIER SYSTEMS, INC.,
as a Guarantor
By:
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Name:
Title:
SECURITIES COURIER CORPORATION,
as a Guarantor
By:
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Name:
Title:
SILVER STAR EXPRESS, INC.,
as a Guarantor
By:
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Name:
Title:
CD&L AIR FREIGHT, INC.,
as a Guarantor
By:
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Name:
Title:
CLAYTOM/NATIONAL COURIER SYSTEMS, INC.,
as a Guarantor
By:
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Name:
Title:
LIBERTY TRANSFER CORP.,
as a Guarantor
By:
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Name:
Title: