EXHIBIT 10.1
as of August 17, 2000
CD&L, Inc.
and Subsidiaries
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Re: Loan and Security Agreement dated July 14, 1997
as modified (the "Loan Agreement")
Gentlemen:
This is to confirm our approval, subject to the terms and
conditions set forth herein, of your request for an increase in the maximum
amount of Bank Letters of Credit, and for other modifications to the terms set
forth in the Loan Agreement. Accordingly we have mutually agreed to the
following:
A. Paragraphs 1.3, 1.13, and 1.31 of the Loan Agreement are hereby modified to
read as follows:
1.3 "ADVANCES" means all loans and other financial accommodations,
including without limitation Bank Letters of Credit, by Lender or Bank
or a Lender Affiliate, to or on behalf of Borrower under the revolving
credit facility provided for in paragraph 2.1 of this Agreement.
1.13 "CASH FLOW LEVERAGE RATIO" means at any date the ratio of (A)
Total Funded Debt at said date divided by the EBITDA for the period
ending on said date, provided that with respect to the fiscal quarters
of Borrower ending on September 30, 2000 and through March 31, 2001,
notwithstanding the definition of EBITDA, for the purpose of
calculating the Cash Flow Leverage Ratio the EBITDA shall be calculated
on an annualized basis for the fiscal quarters ending on and after
September 30, 2000; for example,
(i) for the quarter ending September 30, 2000 the EBITDA shall
be calculated based upon the income and expenses of Borrower for said
quarter times 4 rather than for the 12 month period ending September
30, 2000;
(ii) for the quarter ending December 31, 2000 the EBITDA shall
be calculated based upon the income and expenses of Borrower for the
quarters ending September 30, 2000 and December 31, 2000 times 2; and
(iii) for the quarter ending March 31, 2001 the EBITDA shall
be calculated based upon the income and expenses of Borrower for the
quarters ending September 30, 2000 and December 31, 2000 and March 31,
2001 divided by 3 and multiplied by 4.
For the quarter ending June 30, 2001 and each quarter
thereafter the EBITDA shall be calculated on the income and expenses of
Borrower for the 4 quarters ending on such date.
1.31 "FIXED CHARGE COVERAGE RATIO" means at any date the ratio of
(A)(i) the EBITDA minus (ii) all unfunded Capital Expenditures,
dividends, and taxes paid during the 12 months ending on said date
divided by (B) the sum of (i) the current portion of long-term debt
paid or scheduled to be paid during the twelve (12) months ending on
such date plus (ii) the interest expense for the twelve (12) months
ending on said date, provided however that:
(x) for the fiscal quarter ending September 30, 2000 the ratio
shall be calculated as (A)(i) the EBITDA calculated based upon the
income and expenses of Borrower for the three (3) months ending on such
date minus (ii) all unfunded Capital Expenditures, dividends, and taxes
paid during the three (3) months ending on said date divided by (B) the
sum of (i) the current portion of long-term debt paid or scheduled to
be paid during the three (3) months ending on such date plus (ii) the
interest expense for the three (3) months ending on said date;
(y) for the fiscal quarter ending December 31, 2000 the ratio
shall be calculated as (A)(i) the EBITDA calculated based upon the
income and expenses of Borrower for the six (6) months ending on such
date minus (ii) all unfunded Capital Expenditures, dividends, and taxes
paid during the six (6) months ending on said date divided by (B) the
sum of (i) the current portion of long-term debt paid or scheduled to
be paid during the six (6) months ending on such date plus (ii) the
interest expense for the six (6) months ending on said date; and
(z) for the fiscal quarter ending March 31, 2001 the ratio
shall be calculated as (A)(i) the EBITDA calculated based upon the
income and expenses of Borrower for the nine (9) months ending on such
date minus (ii) all unfunded Capital Expenditures, dividends, and taxes
paid during the nine (9) months ending on said date divided by (B) the
sum of (i) the current portion of long-term debt paid or scheduled to
be paid during the nine (9) months ending on such date plus (ii) the
interest expense for the nine (9) months ending on said date.
B. Notwithstanding any terms of the Loan Agreement or other Loan Documents to
the contrary, including without limitation paragraphs 1.48, 1.66, 1.79, 1.96 and
2.2(D) of the Loan Agreement, for the period from August 1, 2000 through and
including March 31, 2001:
(i) the Libor Margin shall be 2.0%;
(ii) the Prime Rate Margin shall be 0.25%,
(iii) the Standby L/C Fee Percentage shall be 2.0%; and
(iv) the Unused Commitment Fee Rate shall be .50%.
C. The first sentence of subparagraph 2.1 (A) of the Loan Agreement is hereby
modified to read as follows:
2.1 REVOLVING CREDIT FACILITY
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(A) Facility. So long as no Default nor Event of Default
exists, Lender shall, from time to time hereafter, through the
Expiration Date, lend to, or make financial accommodations by way of
Bank Letters of Credit on behalf of, Borrower such amounts as the
Borrower may from time to time request, based upon the Eligible Loan
Value of Eligible Accounts Receivable as may exist from time to time,
but not to exceed the Borrowing Base, and as may be reported by
Borrower to Lender on a borrowing base report (the "Borrowing Base
Report") in the form of Exhibit 2.1 which is to be submitted by
Borrower to Lender in accordance with paragraph 6.6 hereof, provided
that the aggregate outstanding amount of Bank Letters of Credit shall
not exceed (i) Three Million Five Hundred Thousand Dollars
($3,500,000.00) through August 10, 2000, (ii) Five Million Eight
Hundred Thousand Dollars ($5,800,000.00) from August 11, 2000 through
June 30, 2001, and (iii) Eight Million Seven Hundred Thousand Dollars
($8,700,000.00) from July 1, 2001 through the Expiration Date.
D. The first sentence of subparagraph 2.4 of the Loan Agreement is hereby
modified to read as follows:
2.4 PREPAYMENT AND EARLY TERMINATION
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(A) If on any day the sum of the aggregate outstanding
principal balance of the Advances under paragraph 2.1 hereof shall
exceed the Borrowing Base, Borrower shall, on such day, prepay such
Advances by an amount equal to such excess.
E. Paragraph 2.7 of the Loan Agreement is hereby modified to add subparagraph
(f) as follows:
(f) Excess Availability. After each proposed Advance (and
after taking into consideration such proposed Advance) Borrower shall
have Excess Availability of at least
(i) One Million Two Hundred Fifty Thousand Dollars
($1,250,000.00) from August 17, 2000 through October 12, 2000;
(ii) One Million Five Hundred Thousand Dollars
($1,500,000.00) from October 13, 2000 through October 26, 2000;
(iii) Two Million Three Hundred Thousand Dollars
($2,300,000.00) from October 27, 2000 through November 30, 2000; and
(iv) Three Million Dollars ($3,000,000.00) from
December 1, 2000 on.
F. Paragraph 6.6 of the Loan Agreement is hereby modified to read as follows:
6.6 REPORTS OF COLLATERAL AND BORROWING BASE REPORT
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(A) Borrower shall, within fifteen (15) days of the end of
each month, deliver to Lender an aging of its Accounts and an aging of
its accounts payable in such form as may be acceptable to Lender and a
duly completed accounts receivable reconciliation report in the form
satisfactory to Lender.
(B) Borrower shall furnish to Lender a Borrowing Base Report
by Friday of each week and as of the close of business of the
preceding Sunday.
G. Lender hereby agrees that, effective as of March 31, 2000, notwithstanding
paragraphs 7.2(B) and 7.2(D) of the Loan Agreement to the contrary:
(i) for the quarter ending March 31, 2000 the Fixed Charge
Coverage Ratio requirement shall be not less than .85 to
1.0;
(ii) for the quarter ending June 30, 2000 the Fixed Charge
Coverage Ratio requirement shall be not less than .75 to
1.0; and
(iii) for the quarter ending June 30, 2000 the Cash Flow
Leverage Ratio requirement shall be not more than 4.2 to
1.0.
H. In consideration of Lender entering into this letter modification agreement,
Borrower shall, contemporaneous with the execution hereof, pay to Lender a fee
of $17,500.00.
I. Borrower represents that the remaining payments due during the calendar
quarter September 30, 2000 under the existing Seller Indebtedness is not in
excess of Three Hundred Thirty Thousand Dollars ($330,000.00) and which Seller
Indebtedness is Subordinated Debt. Borrower hereby covenants and agrees that
notwithstanding any terms of the Loan Agreement or other Loan Documents to the
contrary, Borrower will not make any payments after the date hereof and through
September 30, 2000 on account of the Seller Indebtedness (a) if an Event of
Default exists under the Loan Agreement or would exist if such payment is made,
and (b) in excess of said Three Hundred Thirty Thousand Dollars ($330,000.00)
without furnishing to Lender at least two (2) Business Days prior written notice
thereof.
J. Borrower represents that annexed hereto is a true, accurate and complete copy
of an Amendment and Consent between CD&L, Inc and the holders of the 1999
Subordinated Notes (the "Sub Note Holder Consent"). To the extent required by
paragraph 7.17(ii) of the Loan Agreement, Lender hereby consents to CD&L Inc.'s
entry into the Sub Note Holder Consent, in the form annexed hereto, solely to
the extent that such Sub Note Holder Consent increases the interest rate on the
1999 Subordinated Notes. This consent shall not be deemed a waiver of compliance
by Borrower with any other terms of the Loan Agreement or other Loan Documents,
specifically and without limitation, shall not (i) constitute a consent to the
sale of any assets of the Borrower, without the prior written consent of Lender,
or if Lender consent to a sale, to the use of the proceeds thereof for any
purpose other than to be applied on account of the Obligations of Borrower to
Lender and (ii) constitute a consent to the prepayment of any portion of the
1999 Subordinated Notes.
Our approval as aforesaid shall not constitute a waiver of any Events of
Default, if any so exist, or any future violation of any provisions of the Loan
Agreement or any other Loan Documents.
By your execution hereof Borrower agrees to pay all costs and
expenses, including reasonable attorneys fees and disbursements, incurred by
Lender in connection with the preparation of this letter agreement. Capitalized
terms not defined herein but defined in the Loan Agreement shall have the same
meaning ascribed to such terms in the Loan Agreement. Your execution shall also
act as your representation that the execution of this letter agreement has been
authorized by all required corporate action, that this letter agreement
constitutes the valid and binding obligation of the Borrower, is enforceable in
accordance with its terms, and constitutes one of the Loan Documents, that no
Default or Event of Default exists and that no Material Adverse Change of the
Borrower has occurred since the date of the most recent financial statements of
Borrower furnished to Lender and the Borrower's reaffirmation of its grant to
Lender of a Lien on the Collateral.
Except as herein set forth, the Loan Agreement and all other
Loan Documents shall remain in full force and effect. Our agreement as aforesaid
is subject to your written agreement with the terms hereof by signing and
returning a copy hereof where so indicated below. This letter may be executed in
counterparts.
First Union Commercial Corporation
By:
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name:
title:
Agreed to:
CD&L, Inc.
and other Borrowers under the Loan Agreement
By:
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name:
title: