Exhibit 10.17
AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 3 to Loan and Security
Agreement is made as of November 1, 1997 by and among each
of the undersigned and amends that certain Loan and Security
Agreement, dated as of November 27, 1996 (as amended by
Amendment No. 1 dated as of February 28, 1997 and Amendment
No. 2 dated as of June 27, 1997, the "Loan Agreement"),
among the financial institutions listed on the signature
pages thereof as lenders (such financial institutions,
together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and
collectively as the "Lenders"), BankAmerica Business Credit,
Inc., a Delaware corporation, as agent for the Lenders (in
its capacity as agent, the "Agent"), NationsBank of Texas,
N.A., as the L/C Issuer and as co-syndication agent for the
Lenders, Caisse Nationale De Credit Agricole, as co-agent
for the Lenders, Consolidated Freightways Corporation of
Delaware, a Delaware corporation, (the "Borrower"),
Consolidated Freightways Corporation (the "Parent"), ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation ("▇▇▇▇▇▇") and Redwood Systems,
Inc. ("Redwood"). Capitalized terms used herein without
definition have the meanings assigned thereto in the Loan
Agreement.
RECITALS
A. The Borrower has requested that certain provisions
of the Loan Agreement be amended as more fully described
below.
B. On the terms and subject to the conditions set
forth in this Amendment, the parties to the Loan Agreement
have agreed to the amendments to the Loan Agreement as set
forth below.
AGREEMENT
In consideration of the foregoing, and for good and
valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby agree as follows:
ARTICLE 1
AMENDMENTS TO LOAN AND SECURITY AGREEMENT
1.1 Amendment to the Definition of "Adjusted Net
Earnings". The definition of "Adjusted Net Earnings" set
forth in Section 1.1 of the Loan Agreement is hereby amended
and restated to read in its entirety as follows:
"Adjusted Net Earnings" means with respect to any
fiscal period of the Borrower, the Adjusted Net
Earnings from Operations for such fiscal period plus
the sum of the following to the extent deducted in
computing Adjusted Net Earnings from Operations: (a)
interest expense, (b) accrued income taxes, (c)
depreciation and amortization expense, (d) the non-cash
expense related to the Consolidated Freightways
Corporation 1996 Stock Option and Incentive Plan
(commonly referred to as the Restricted Stock Awards
Program), as amended from time to time, and (e)
miscellaneous expenses (including Letter of Credit
Fees) less miscellaneous income for such period."
1.2 Amendment to the Definition of "Applicable
Margin". The definition of "Applicable Margin" set forth in
Section 1.1 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"Applicable Margin" means
(i) with respect to Base Rate Revolving
Loans and all other Obligations (other than LIBOR
Revolving Loans), one-quarter percent (0.25%); and
(ii) with respect to LIBOR Revolving
Loans, one and one-quarter percent (1.25%)."
1.3 Amendment to the Definition of "Default Rate".
The definition of "Default Rate" set forth in Section 1.1 of
the Loan Agreement is hereby amended and restated to read in
its entirety as follows:
"Default Rate" means a fluctuating per annum
interest rate at all times equal to the sum of (a) the
otherwise applicable Interest Rate, plus (b) two
percent (2.0%). Each Default Rate shall be adjusted
simultaneously with any change in the applicable
Interest Rate. In addition, with respect to Letters of
Credit, the Default Rate shall mean an increase in the
Letter of Credit Fee by two (2) percentage points."
1.4 Amendment to the Definition of "Triggering
Event". The definition of "Triggering Event" set forth in
Section 1.1 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"Triggering Event" means the occurrence of any
one of the following events: (a) an Event of
Default, (b) Availability is $50,000,000 or less, (c) the
average daily Dollar amount of Revolving Loans outstanding
for the immediately preceding thirty (30) day period
exceeds $40,000,000, or (d) the aggregate Dollar
amount of Revolving Loans outstanding on any date exceeds
$50,000,000."
1.5 Amendment to Section 3.1(a). The fourth
sentence of Section 3.1(a) of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"Except as otherwise provided herein, the
outstanding Obligations shall bear interest as follows:
(i) for all Base Rate Revolving Loans and other
Obligations (other than LIBOR Revolving Loans) at a
fluctuating per annum rate equal to the Base Rate plus
the Applicable Margin, and (ii) for all LIBOR Revolving
Loans at a per annum rate equal to the LIBOR Rate plus
the Applicable Margin; provided, however, that if the
sum of outstanding Letters of Credit and outstanding
Revolving Loans exceeds $150,000,000, the amount by
which the Revolving Loans, when added to the
outstanding Letters of Credit, exceeds $150,000,000
shall bear interest at the Interest Rate otherwise
applicable to such Revolving Loans plus one-quarter of
one percent (0.25%)."
1.6 Amendment to Section 3.6. Section 3.6 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"3.6 Letter of Credit Fee. The Borrower agrees to
pay to the Agent, for the ratable account of the
Lenders, for each Letter of Credit, a fee (the "Letter of
Credit Fee") equal to one and one-eighths percent (1.125%)
per annum of the undrawn face amount of each Letter
of Credit issued for the Borrower's account at the
Borrower's request, plus all out-of-pocket costs, fees and
expenses incurred by the Agent in connection with the
application for, issuance of, or amendment to any
Letter of Credit. The Letter of Credit Fee shall be payable
monthly in arrears on the first day of each month
following any month in which a Letter of Credit was
issued and/or in which a Letter of Credit remains
outstanding. The Letter of Credit Fee shall be
computed on the basis of a 360-day year for the actual
number of days elapsed."
1.7 Amendment to Section 8.9. Section 8.9 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"8.9 Debt For Borrowed Money. After giving effect
to the making of the Revolving Loans to be made on the
Initial Funding Date, the Loan Parties and their
Subsidiaries have no Debt For Borrowed Money, except
(a) the Obligations, (b) Debt For Borrowed Money
described on Schedule 8.9, and (c) trade payables and
other contractual obligations arising in the ordinary
course of business."
1.8 Amendment to Section 9.12. Section 9.12 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"9.12 Debt. None of the Loan Parties shall
incur or maintain any Debt For Borrowed Money, other
than: (a) the Obligations; (b) provided that no Event
of Default has occurred and is continuing or would
result from such action, Debt For Borrowed Money of the
Parent and the Borrower in an aggregate amount
outstanding at any time not to exceed $25,000,000,
excluding Debt For Borrowed Money incurred to finance
Capital Expenditures permitted under Section 9.21; and
(c) other Debt For Borrowed Money existing on the
Closing Date and reflected in the Financial Statements
attached hereto as Exhibit F or listed on Schedule 8.9.
The terms and conditions of any agreement (including
amendments, modifications, waivers and restatements of
existing agreements) entered into by the Borrower
relating to Synthetic Leases shall not contain any
financial covenants which are more restrictive on the
Borrower than the financial covenants set forth in
Sections 9.22, 9.23 and 9.24 of this Agreement and any
amendments or modifications to the interest rate or the
amortization shall be acceptable to the Agent."
1.9 Amendment to Section 9.21. Section 9.21 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"9.21 Capital Expenditures. None of the Loan
Parties shall make or incur any Capital Expenditure
if, after giving effect thereto, the aggregate amount
of all Capital Expenditures (net of proceeds from sales of
fixed assets) by the Loan Parties on a consolidated
basis would exceed $30,000,000 for Fiscal Year 1997,
$70,000,000 for Fiscal Year 1998 and $100,000,000 for each
Fiscal Year thereafter until the Stated Termination
Date; provided, however, that up to $15,000,000
of unused permitted Capital Expenditures in a given Fiscal
Year may be carried over to the following Fiscal Year."
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Each Loan Party warrants and represents to the Agent
and the Lenders that:
2.1 Representations and Warranties True and
Correct. The representations and warranties contained in
the Agreement and the other Loan Documents are correct in
all material respects on and as of the date hereof except to
the extent the Agent and the Lenders have been notified by
the Borrower that any representation or warranty is not
correct and the Majority Lenders have explicitly waived in
writing compliance with such representation or warranty; and
except with respect to Schedules 8.3, 8.5, 8.9, 8.15, 8.17,
8.18, 8.29 and 8.32 to the Loan Agreement to the extent that
the Borrower has submitted to the Agent, the L/C Issuer and
each Lender an update thereto.
2.2 No Default or Event of Default. No event has
occurred and is continuing which constitutes a Default or an
Event of Default.
ARTICLE 3
MISCELLANEOUS
3.1 Effective Date. This Amendment shall be
effective as of the date when the Agent has received a duly
executed counterpart of this Amendment from each of the
parties to the Loan Agreement.
3.2 Governing Law. This Amendment shall be
interpreted and the rights and liabilities of the parties
hereto determined in accordance with the internal laws (as
opposed to the conflict of laws provisions) of the State of
California.
3.3 Counterparts. This Amendment may be executed
in any number of counterparts, and by the Agent, each
Lender, the Borrower, Parent, ▇▇▇▇▇▇ and Redwood in separate
counterparts, each of which shall be an original, but all of
which shall together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have entered into
this Amendment on the date first above written.
"BORROWER"
Consolidated Freightways
Corporation of Delaware, a
Delaware corporation
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Executive Vice President and
Chief Financial Officer
"PARENT"
Consolidated Freightways
Corporation, a Delaware
corporation
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Executive Vice President and
Chief Financial Officer
"▇▇▇▇▇▇"
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation, a Delaware
corporation
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Executive Vice President and
Chief Financial Officer
"REDWOOD"
Redwood Systems, Inc., a Delaware
corporation
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Executive Vice President and
Chief Financial Officer
"AGENT"
BankAmerica Business Credit,
Inc., as the Agent
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President
"LENDERS"
Commitment: $75,000,000 BankAmerica Business Credit,
Inc., as a Lender
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President
Commitment: $35,000,000 NationsBank of Texas, N.A., as a
Lender
By:/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Assistant Vice President
Commitment: $20,000,000 Caisse Nationale De Credit
Agricole, as a Lender
By:/s/▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇
Title:Senior Vice President
Commitment: $35,000,000 Transamerica Business Credit
Corporation, as a Lender
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇
Title:Senior Vice President
Commitment: $25,000,000 Congress Financial Corporation
(Western), as a Lender
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
Commitment: $20,000,000 The CIT Group/Business Credit,
Inc., as a Lender
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Assistant Vice President
Commitment: $15,000,000 BTM Capital Corporation, as a
Lender
By:/s/▇▇▇▇▇▇▇ ▇. York
Name:▇▇▇▇▇▇▇ ▇. York
Title:Vice President
"L/C ISSUER"
NationsBank of Texas, N.A., as
L/C Issuer
By:/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Assistant Vice President