Exhibit 10.02
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of April 15, 2002 (the
"Effective Date"), by and among CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware corporation ("Borrower"), the other
Credit Parties signatory to the Credit Agreement described below
(collectively, together with the Borrower, the "Credit Parties")
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("Lender").
W I T N E S S E T H:
WHEREAS, Borrower, the other Credit Parties and Lender
are parties to that certain Credit Agreement, dated as of October
24, 2001 (as amended to the date hereof, the "Credit Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Credit
Agreement), pursuant to which Lender has committed to make
certain loans to Borrower upon the terms and conditions set forth
therein; and
WHEREAS, Borrower, the other Credit Parties and Lender
desire to modify the Credit Agreement in certain respects 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, Borrower, the other Credit Parties and
Lender 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, Lender
hereby waives any Default or Event of Default that has occurred
as a result of (i) the violation by the Borrower of Section
6.8(i) of the 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 under
Section 6.8(i) (as in effect immediately prior to the date of
this Amendment) and (ii) the failure by the Borrower 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
C, provided, however, that if the Financial Statements and all
related reports and certificates as required by paragraph (a) of
Annex C are not delivered by Borrower to Lender on or prior to
April 19, 2002, the waiver of the default as provided for above
in this clause (ii) will automatically terminate and be null and
void without notice to, or any other action by, Borrower, Lender
or any other Person.
2. Amendments to the Credit Agreement. Subject to the terms
and conditions of this Amendment, including without limitation
the fulfillment of the conditions precedent specified in Section
8 below, the Credit Agreement is hereby amended as follows:
A. Section 6.8 to the 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" or the "Receivables" (as such terms are
defined in the Letter of Credit Agreement)), 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" or the "Receivables" (as
such terms are defined in the Letter of Credit
Agreement)) 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 Ninth Amendment, and (c) the proceeds
received by CF Delaware from CFCD 2002 LLC in
connection with such transfer made (i) on the Sixth
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 Sixth Amendment Effective Date, to be used by
CF Delaware for working capital and general corporate
purposes.
B. Annex A to the 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 Ninth 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.
"Ninth Amendment" means that certain Ninth
Amendment to Credit Agreement dated as of April 15,
2002 by and among the Credit Parties and Lender.
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, Borrower 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 (as such term
is defined in the Letter of Credit Agreement). On a monthly
basis on or prior to each Distribution Date, Borrower will
execute and deliver to Lender an officer's certificate, in form
and substance reasonably satisfactory to Lender, showing the
computations of the Excess Amount for the relevant monthly
period. Borrower further agrees to promptly (and in any event
within two Business Days) after request provide Lender with any
information or detail as to the calculation of the Excess Amount
or any component thereof that Lender may reasonably request. The
failure by any Credit Party to perform timely, 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 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 Credit
Agreement or to affect, modify or impair the continuity or
perfection of the Lenders Liens under the Collateral Documents.
5. Representations and Warranties. To induce Lender to enter
into this Amendment, Borrower and each of the other Credit
Parties hereby warrant, represent and covenant to Lender that:
(a) this Amendment has been duly authorized, executed and
delivered by Borrower and each other 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 Borrower and each other
Credit Party in the 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 Borrower or any other Credit Party of any of
its representations and warranties contained in this Section 5
shall be an Event of Default under the Credit Agreement.
6. Ratification and Acknowledgment. Borrower and each of the
other Credit Parties hereby ratify and reaffirm each and every
term, covenant and condition set forth in the Credit Agreement
and all other documents delivered by such company in connection
therewith (including without limitation the other Loan Documents
to which Borrower or any other Credit Party is a party),
effective as of the date hereof.
7. Estoppel. To induce Lender to enter into this Amendment,
Borrower 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 Borrower or any
Credit Party as against Lender with respect to the obligations of
Borrower or any Credit Party to Lender under the Credit Agreement
or the other Loan Documents, either with or without giving effect
to this Amendment.
8. Conditions to Effectiveness. This Amendment shall become
effective, as of the Effective Date, upon receipt by the Lender
of this Amendment, duly executed, completed and delivered by
Borrower and each other Credit Party, in form and substance
satisfactory to Lender. 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,
shall become effective as of the effective date of this
Amendment.
9. Reimbursement of Expenses. Borrower and each of the other
Credit Parties hereby agree that Borrower and each of the other
Credit Parties shall reimburse Lender on demand for all costs and
expenses (including without limitation reasonable attorney's
fees) incurred by Lender 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, Borrower 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 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 Ninth
Amendment to Credit Agreement to be duly executed by their
respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
CONSOLIDATED FREIGHTWAYS CORPORATION
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its Duly Authorized Signatory
CREDIT PARTIES:
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CF AIRFREIGHT CORPORATION
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
REDWOOD SYSTEMS, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
CF ▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Schedule 1 --Fixed Rent Amount
Address City Sta Fixed Rent
te Amount
1. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ $35,400
Ave.
2. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $33,600
3. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $44,400
Blvd.
4. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $12,800
5. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ $32,450
6. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $13,600
7. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $15,500
Valley
8. ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ $25,500
Street
9. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $61,425
Vineland Rd.
10. ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $18,800
Avenue
11. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ $47,200
West
12. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $18,700
13. 401 & ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ $35,000
▇▇▇▇▇▇ Ave.
14. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ $24,800
Drive
Address City Sta Fixed Rent
te Amount
1. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ $50,400
2. ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ $16,200
3. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ $56,400
4. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ $63,525
5. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $32,400
6. ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ $88,800
7. 5025 & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ $34,500
Rd.
8. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ $11,550
Way
9. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ ▇▇ $23,800
10. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $59,000
Way
11. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ $27,225
12. ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $9,430
13. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ $8,514
14. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ $16,200
15. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $15,400
16. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ $47,000
17. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $10,800
18. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ $17,850
19. ▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ $18,300
20. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ $13,490
21. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ $25,850
22. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ $31,500
23. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ $15,375
Ave.
24. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ $10,260
25. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ $13,750
Ave.