AMENDMENT AGREEMENT NO. 1
to that certain
REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of January 28, 1999
This AMENDMENT AGREEMENT NO. 1 (the "Amendment"), dated as March 31,
2000, among Morgan Drive Away, Inc., TDI, Inc. and Morgan Finance, Inc.
(collectively, the "Borrowers"), The Morgan Group, Inc. (the "Parent", and
together with the Borrowers, the "Obligors"), Fleet National Bank (formerly
known as BankBoston, N.A.), and Fleet National Bank (formerly known as
BankBoston, N.A.), as agent for the Banks (the "Agent").
WHEREAS, the Obligors, the Banks and the Agent are parties to that
certain Revolving Credit and Term Loan Agreement, dated as of January 28, 1999,
as amended (as so amended, the "Credit Agreement"); and
WHEREAS, the Obligors have requested that the Banks and the Agent
agree, and the Banks and the Agent have agreed, on the terms and subject to the
conditions set forth herein, to amend certain provisions of the Credit
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ss.1. Defined Terms. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
ss.2. Amendment of Credit Agreement. The Credit Agreement shall be
amended as follows:
(a) The definition of "Applicable Overadvance Amount" in ss.1.1 of the
Credit Agreement is hereby amended by inserting the following new sentence at
the end thereof:
"Notwithstanding the foregoing, at all times from and after March 31,
2000, the Applicable Overadvance Amount shall be equal to $0."
(b) The definition of "Consolidated EBITDA" shall be amended by
inserting at the end of such definition immediately preceding the period, the
following clause:
"plus, in the case of expense, and minus, in the case of income, (g)
noncash income or expense for such period in respect of compensatory
stock options."
(c) The definition of "Pricing Table" in ss.1.1 of the Credit Agreement
is hereby amended by deleting said definition in its entirety and substituting
therefor the following new definition:
"Pricing Table... For each period commencing on an Adjustment
Date through the date immediately preceding the next Adjustment Date
(each a "Rate Adjustment Period"), the applicable margin shall be the
applicable percentage set forth below with respect to the Obligors'
Leverage Ratio, as determined at the end of the fiscal quarter of the
Obligors and their Subsidiaries ending immediately prior to the
applicable Rate Adjustment Period:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
Level Leverage Ratio Applicable Applicable Base Commitment Fee
Eurodollar Rate Rate Margin
Margin
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
I Greater than or equal to 3.00 2.250% 0.750% 0.625%
to 1.00
------------------------------------------------------------------------------------------------------
II Less than 3.00 to 1.00 and 2.000% 0.500% 0.625%
greater than or equal to 2.25
to 1.00
------------------------------------------------------------------------------------------------------
III Less than 2.25 to 1.00 and 1.750% 0.250% 0.500%
greater than or equal to 1.50
to 1.00
------------------------------------------------------------------------------------------------------
IV Less than 1.50 to 1.00 and 1.500% 0.250% 0.500%
greater than or equal to 1.00
to 1.00
------------------------------------------------------------------------------------------------------
V Less than 1.00 to 1.00 1.250% 0.250% 0.500%
------------------------------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, (a) for the period commencing
on the Closing Date through the end of the month in which the quarterly
compliance certificate for the fiscal quarter ending March 31, 1999 is
delivered pursuant to ss.9.4(d) hereof, the applicable margin for Loans
shall be that percentage corresponding to Level II in the table above,
and (b) if the Obligors fail to deliver any Compliance Certificate
pursuant to ss.9.4(d) hereof, then for the period commencing on the
first day of the month immediately following the date such Compliance
Certificate was due through the date immediately preceding the
Adjustment Date that occurs immediately following the date on which
such Compliance Certificate is delivered, the applicable margin for
Loans shall be that percentage corresponding to Level I in the table
above."
(d) The following new definition shall be inserted in Section 1 in
appropriate alphabetical sequence:
"Reference Period. A period of twelve consecutive calendar months
ending on the relevant date of calculation, or such smaller number of
months as shall have elapsed from April 1, 2000 to such date."
(e) Section 9.4(d) of the Credit Agreement is hereby amended by
inserting after the words "referred to in subsections (a) and (b) above", the
words "and, for each calendar month ending during the period of June 30, 2000
through December 31, 2000, within fifteen (15) days after the end of each
calendar month".
(f) Section 10.4 of the Credit Agreement is hereby amended by (i)
replacing the number "200,000" with the number "$120,000" in subclause (b)(i),
and (ii) by deleting subclauses (b)(ii) and (b)(iii) in their entirety.
(g) Section 11.2 of the Credit Agreement is amended by deleting said
Section 11.2 in its entirety and substituting therefor the following new Section
11.2:
"11.2. Cash Flow Coverage Ratio.
(a) The Obligors and their Subsidiaries will not permit, as at
the end of any calendar quarter of the Obligors ending during any
period described in the table set forth below, the ratio of (1)
Consolidated EBITDA for the period of twelve consecutive calendar
months then ending to (2) the sum of (A) Consolidated Total Interest
Expense for such period plus (B) scheduled principal payments with
respect to Consolidated Funded Debt (including capitalized lease
payments) due and payable during such period to be less than the ratio
set forth opposite such period in such table:
-----------------------------------------------------------------------
Fiscal Period Ratio
-----------------------------------------------------------------------
Closing Date - 6/30/99 1.20:1.00
-----------------------------------------------------------------------
7/1/99 - 12/31/99 1.50:1.00
-----------------------------------------------------------------------
provided, that, scheduled principal payments with respect to
Consolidated Funded Debt shall be deemed to include an amount equal to
twenty percent (20%) of the sum of (A) outstanding Revolving Credit
Loans plus (B) Unpaid Reimbursement Obligations as at the end of such
fiscal month.
(b) The Obligors and their Subsidiaries will not permit, as at
the end of any calendar month of the Obligors commencing with the
calendar month ended April 30, 2000, the ratio of (a) Consolidated
EBITDA for the Reference Period then ending to (b) the sum of (1)
Consolidated Total Interest Expense for such period plus (2) scheduled
principal payments with respect to Consolidated Funded Debt (including
capitalized lease payments) due and payable during such period to be
less than 1.50:1.00; provided, that, scheduled principal payments with
respect to Consolidated Funded Debt shall be deemed to include an
amount equal to twenty percent 20% of the result of (X) the sum of (A)
outstanding Revolving Credit Loans plus (B) Unpaid Reimbursement
Obligations as at the end of such fiscal quarter times (Y) a fraction
equal to (C) the number of months in such Reference Period divided by
(D) 12."
(h) Section 11.3 of the Credit Agreement is hereby amended by deleting
said Section 11.3 in its entirety and substituting therefor the following new
Section 11.3:
"11.3. Interest Coverage Ratio.
(a) The Obligors and their Subsidiaries will not permit, as at
the end of any fiscal quarter of the Obligors ending during any period
described in the table set forth below, the ratio of (a) Consolidated
EBITDA for four consecutive fiscal quarters then ending to (b)
Consolidated Total Interest Expense for such period to be less than the
ratio set forth opposite such period in such table:
-----------------------------------------------------------------------
Period Ratio
-----------------------------------------------------------------------
Closing Date - 6/30/99 3.00:1.00
-----------------------------------------------------------------------
7/1/99 - 12/31/99 4.00:1.00
-----------------------------------------------------------------------
(b) The Obligors and their Subsidiaries will not permit, as at
the end of any calendar month the Obligors commencing with the fiscal
quarter ending April 30, 2000, the ratio of (a) Consolidated EBITDA for
the Reference Period then ending to (b) Consolidated Total Interest
Expense for such period to be less than 4.00:1.00."
(i) Section 11 of the Credit Agreement is hereby amended by inserting
the following newss.11.6:
"ss.11.6. Minimum Net Income.. The Obligors will not permit,
for any fiscal quarter commencing with the fiscal quarter ending June
30, 2000, Consolidated Net Income to be less than $1.00 for such fiscal
quarter."
ss.3. Representations and Warranties. The Obligors hereby jointly and
severally represent and warrant to the Banks as follows:
(a) The execution and delivery by the Obligors of this Amendment and
all other instruments and agreements required to be executed and delivered by
the Obligors in connection with the transactions contemplated hereby or referred
to herein (collectively, the "Amendment Documents"), and the performance by the
Obligors of their obligations and agreements under the Amendment Documents and
the Credit Agreement as amended hereby, are within the corporate authority of
the each of the Obligors, have been authorized by all necessary corporate
proceedings on behalf of each of such Persons, and do not and will not
contravene any provision of law or any of such Persons' charter, other
incorporation papers, by-laws or any stock provision or any amendment thereof or
of any indenture, agreement, instrument or undertaking binding upon any of such
Persons.
(b) The Amendment Documents and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Obligors, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by the Obligors of the Amendment Documents or the Credit
Agreement as amended hereby, or the consummation by the Obligors of the
transactions among the parties contemplated hereby and thereby or referred to
herein.
(d) The representations and warranties contained in ss.8 of the Credit
Agreement were correct at and as of the date made. Except to the extent that the
facts upon which such representations and warranties were based have changed in
the ordinary course of business (which changes, either singly or in the
aggregate, have not been materially adverse), such representations and
warranties also are correct at and as of the date hereof.
(e) The Obligors have performed and complied in all material respects
with all terms and conditions herein required to be performed or complied with
by them prior to or at the time hereof, and as of the date hereof, after giving
effect to the provisions hereof, there exists no Default or Event of Default or
condition which, with either or both the giving of notice or the lapse of time,
would result in a Default or an Event of Default upon the execution and delivery
of the Amendment Documents or otherwise.
ss.4. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof upon satisfaction of each of the conditions
precedent set forth in thisss.4:
(a) Delivery. The Obligors, the Banks and the Agent shall have executed
and delivered this
Amendment.
(b) Amendment Fee.. The Obligors shall have paid an amendment fee in
the amount of $25,000 to the Agent for the benefit of the Banks.
(c) Proceedings and Documents... All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident thereto
shall be reasonably satisfactory in substance and form to the Agent, and the
Agent shall have received copies of all final documents relating to the
Leaseback Transaction, and all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably request.
ss.5. Miscellaneous Provisions. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) This Amendment is intended to take effect as an agreement under
seal and shall be construed according to and governed by the laws of the
Commonwealth of Massachusetts.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) The Obligors hereby agree to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including
reasonable legal fees and expenses).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
MORGAN DRIVE AWAY, INC.
By:/s/ Dennis R. Duerksen
-----------------------------------
Title: Vice President
TDI, INC.
By:/s/ Dennis R. Duerksen
-----------------------------------
Title: Vice President
MORGAN FINANCE, INC.
By:/s/ Dennis R. Duerksen
-----------------------------------
Title: Vice President
THE MORGAN GROUP, INC.
By:/s/ Dennis R. Duerksen
-----------------------------------
Title: Vice President
FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.),
individually and as Agent
By:/s/ Katherine A. Brand
-----------------------------------
Title: Vice President
