Exhibit 99.1
FIRST AMENDMENT TO CREDIT AGREEMENT
AND WAIVER AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER AGREEMENT (this "First
Amendment") is entered into as of August 31, 1999 among DISPATCH MANAGEMENT
SERVICES CORP., a Delaware corporation (the "Borrower"), each of the Borrower's
Material Subsidiaries (individually a "Guarantor" and collectively the
"Guarantors"), the Lenders party to the Credit Agreement defined below (the
"Lenders") and BANK OF AMERICA, N.A., formerly NationsBank, N.A., as
Administrative Agent (the "Administrative Agent") for the Lenders. Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings given to them in the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Amended and Restated Credit Agreement dated
as of April 8, 1999 (as amended, modified, supplemented, extended or restated
from time to time, the "Credit Agreement");
WHEREAS, an Event of Default currently exists under the Credit Agreement
(the "Existing Event of Default") due to the failure of the Borrower to deliver
to the Lenders the schedule of accounts receivable required pursuant to Section
7.16(a) of the Credit Agreement within 30 days after the Closing Date;
WHEREAS, the Credit Parties have requested that the Lenders waive the
Existing Event of Default and that the Lenders agree to amend certain terms of
the Credit Agreement; and
WHEREAS, the Administrative Agent and Lenders have agreed to such waiver
and to such amendments, subject to the conditions and as more fully set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Waiver.
(a) The Credit Parties acknowledge and confirm the existence of the
Existing Event of Default.
(b) Subject to the amendment of Section 7.16(a) of the Credit
Agreement as set forth below and compliance by the Credit Parties with the
terms of this First Amendment, the Lenders and the Administrative Agent
agree to waive the Existing Event of Default.
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(c) The Credit Parties acknowledge and confirm that the agreement by
the Lenders and the Administrative Agent to waive the Existing Event of
Default shall in no way modify or affect the Credit Parties' obligations
to comply fully with each and every term and condition of the Credit
Agreement (including, but not limited to, those contained in the amended
and restated Section 7.16(a) thereto), as amended hereby, and the other
Credit Documents.
(d) The Credit Parties acknowledge and confirm that failure to
comply with the terms of Section 7.16(a) of the Credit Agreement, as
amended hereby, shall constitute an Event of Default.
(e) The waiver set forth in this First Amendment shall be effective
only in the specific circumstances provided for above and only for the
purposes for which given.
2. Amendments to Credit Agreement.
(a) The definition of "Maturity Date" set forth in Section 1.1 of
the Credit Agreement is amended and restated in its entirety to read as
follows:
"Maturity Date" means October 15, 2000.
(b) The definition of "NMS" set forth in Section 1.1 of the Credit
Agreement is deleted in its entirety and replaced with the following
definition in the appropriate alphabetical order:
"BAS" means Banc of America Securities LLC.
(c) All references in the Credit Documents to "NationsBank, N.A.,"
"NationsBanc Montgomery Securities LLC" and to "NMS" shall hereafter refer
to "Bank of America, N.A.," "Banc of America Securities LLC" and "BAS,"
respectively.
(d) Section 7.16(a) of the Credit Agreement is amended and restated
in its entirely to read as follows:
7.16 Post Closing Requirements.
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(a) On or prior to September 30, 1999, the Borrower
shall deliver to the Lenders a schedule of accounts receivable
which will be sent to an independent collection agency
pursuant to the commercially reasonable contract.
3. Conditions Precedent.
The effectiveness of this First Amendment is subject to the satisfaction
of each of the following conditions:
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(a) The Administrative Agent shall have received copies of this
First Amendment duly executed by the Credit Parties and the Lenders.
(b) The Administrative Agent shall have received copies of
resolutions of the Board of Directors of each Credit Party approving and
adopting this First Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct and in
full force and effect as of the date hereof.
(c) The Administrative Agent shall have received an opinion of
counsel to the Credit Parties in form and substance satisfactory to the
Administrative Agent.
(d) The Administrative Agent shall have received such other
documents and information as it reasonably deems necessary.
4. Miscellaneous.
(a) The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this
First Amendment. Except as herein specifically agreed, the Credit
Agreement, and the obligations of the Credit Parties thereunder and under
the other Credit Documents, are hereby ratified and confirmed and shall
remain in full force and effect according to their terms, including,
without limitation, (i) the liens and security interests granted under the
Credit Documents and (ii) the obligations of the Guarantors under the
Credit Documents. Without limiting the foregoing, the Guarantors hereby
reaffirm their obligations under the Credit Documents and agree that their
obligations thereunder are not amended, modified or reduced by the terms
of this First Amendment.
(b) Each of the Credit Parties represents and warrants as follows:
(i) It has taken all necessary action to authorize the
execution, delivery and performance of this First Amendment.
(ii) This First Amendment has been duly executed and delivered
by such Credit Party and constitutes such Credit Party's legal,
valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or
in equity).
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
governmental authority or third party is required in connection with
the execution, delivery or performance by such Credit Party of this
First Amendment.
(iv) The representations and warranties of such Credit Party
set forth in Section 6 of the Credit Agreement are true and correct
as of the date hereof.
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(v) No event has occurred and is continuing (other than the
Existing Event of Default) which constitutes a Default or an Event
of Default.
(c) In consideration of the Administrative Agent and the Lenders
entering this First Amendment, each of the Credit Parties hereby releases
the Administrative Agent, the Lenders, and the Administrative Agent's and
the Lenders' respective officers, employees, representatives, agents,
counsel and directors from any and all actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in
equity, now known or unknown, suspected or unsuspected to the extent that
any of the foregoing arises from any action or failure to act on or prior
to the date hereof.
(d) This First Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of an executed counterpart of this First Amendment by telecopy
shall be effective as an original and shall constitute a representation
that an executed original shall be delivered.
(e) THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
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Each of the parties hereto has caused a counterpart of this First
Amendment to be duly executed and delivered as of the date first above written.
BORROWER: DISPATCH MANAGEMENT SERVICES CORP.,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
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GUARANTORS: DISPATCH MANAGEMENT SERVICES ACQUSITION
CORP., a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
DISPATCH MANAGEMENT SERVICES
SAN FRANCISCO CORP., a New York
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
DISPATCH MANAGEMENT SERVICES NEW YORK
CORP., a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
ROAD MANAGEMENT SERVICES CORPORATION,
a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
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DISPATCH MANAGEMENT SERVICES
(EUROPE) LTD., a company
formed under the laws of England and
Wales
By:_____________________________________
Name:___________________________________
Title:__________________________________
BRIDGE WHARF INVESTMENTS LIMITED,
a company formed under the laws of
England and Wales
By:_____________________________________
Name:___________________________________
Title:__________________________________
SECURITY BUSINESS SERVICES LIMITED,
a company formed under the laws of
England and Wales
By:_____________________________________
Name:___________________________________
Title:__________________________________
DISPATCH MANAGEMENT SERVICES (UK)
LIMITED f/k/a Delta Air & Road Transport
Limited, a company formed under the laws
of England and Wales
By:_____________________________________
Name:___________________________________
Title:__________________________________
SECURITY DISPATCH LIMITED,
a company formed under the laws of
England and Wales
By:_____________________________________
Name:___________________________________
Title:__________________________________
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LENDERS:
BANK OF AMERICA, N.A., formerly
NationsBank, N.A., individually in its
capacity as a Lender and in its capacity
as Administrative Agent and Collateral
Agent
By:_____________________________________
Name:___________________________________
Title:__________________________________
FIRST UNION NATIONAL BANK
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANKBOSTON, N.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
CIBC, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
FLEET BANK, N.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
