Exhibit 10.36
WAIVER
WAIVER (this “
Agreement ”), dated as of October 14, 2008, to
the Credit Agreement, dated as of December 22, 2006 (as
amended, restated, supplemented or otherwise modified from time to
time, including all schedules thereto, the “ Credit
Agreement ”), by and among the lenders identified on the
signature pages thereof (such lenders, together with their
respective successors and permitted assigns, are referred to
hereinafter each individually as a “ Lender ”
and collectively as the “ Lenders ”), Wells
Fargo Foothill, Inc . , a California corporation, as the
arranger and administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such
capacity, the “ Agent ”), Velocity Express
Corporation, a Delaware corporation (the “ Parent
”), each of the Parent’s Subsidiaries identified on the
signature pages thereof as a Borrower (such Subsidiaries are
referred to hereinafter each individually as a “
Borrower ”, and individually and collectively, jointly
and severally, as the “ Borrowers ”), and each
of Parent’s Subsidiaries identified on the signature pages
thereof as a Guarantor (such Subsidiaries, together with the
Parent, are referred to hereinafter each individually as a “
Guarantor ”, and individually and collectively,
jointly and severally, as the “ Guarantors ”).
Capitalized terms used in this Agreement and not defined herein
shall have the applicable meanings given to such terms in the
Credit Agreement.
WITNESSETH:
WHEREAS, one or more Events of
Default have occurred and are continuing under
Section 7.2(a) of the Credit Agreement as a result of
the noncompliance by the Parent and its Subsidiaries with (a)
Section 5.3 of the Credit Agreement as a result of the
Loan Parties failure to deliver consolidated and consolidating
financial statements of the Parent and its Subsidiaries for the
2008 fiscal year without a “going concern”
qualification from an independent certified public accountant and
(b) the driver pay covenant set forth in
Section 6.16(c) of the Credit Agreement for the three
week periods ending May 16, 2008, June 13,
2008, July 11, 2008, August 15, 2008 and
September 12, 2008 (collectively, the “ Specified
Defaults ”);
WHEREAS, the Borrowers have
requested that the Agent and the Required Lenders agree and,
subject to the terms and conditions of this Agreement, the Agent
and the Required Lenders have agreed to waive the Specified
Defaults commencing on the Waiver Effective Date (as defined
below).
NOW, THEREFORE, the Agent, the
Required Lenders and the Loan Parties hereby agree as
follows:
1. Loan Parties
Acknowledgments . The Loan Parties hereby acknowledge, confirm
and agree that:
(a) As of the close of business on
October 13, 2008, (i) the aggregate outstanding principal
amount of the Advances (not including amounts accrued but not yet
charged to the Loan Account) is $7,867,778.00 and the aggregate
stated amount of all outstanding Letters of Credit is
$2,743,651.00, and (ii) the Borrowers are unconditionally
indebted and liable for the repayment in full of the outstanding
principal amount of all Advances, all contingent reimbursement
obligations with respect to outstanding Letters of Credit and all
other Obligations, including, without limitation, the Applicable
Prepayment Premium, the fees set forth in the Fee Letter and the
fees and expenses of legal counsel to the Agent, without offset,
defense or counterclaim of any kind, nature or
description.
(b) All Obligations are secured by
valid, enforceable and perfected first priority Liens (except as
otherwise expressly provided in the Loan Documents) in all of the
Collateral, which Liens are enforceable without offset, defense or
counterclaim.
(c) (i) Each of the Loan
Documents to which the Loan Parties are a party has been duly
executed and delivered to the Agent and each is in full force and
effect as of the date hereof, (ii) the agreements and
obligations of the Loan Parties contained in the Loan Documents to
which they are a party constitute the legal, valid and binding
obligations of the Loan Parties, enforceable against them in
accordance with their terms, and the Loan Parties have no offset,
defense or counterclaim to the enforcement of such Obligations, and
(iii) the Agent and the other members of the Lender Group are
and shall be entitled to the rights, remedies and benefits provided
for in the Loan Documents, subject to the terms of this
Agreement.
(d) The Agent’s and the
Lenders’ execution of this Agreement shall not constitute a
novation, refinancing, discharge, extinguishment or refunding nor
is it to be construed as a release, waiver or modification of any
of the terms, conditions, representations, warranties, covenants,
rights or remedies set forth in the Credit Agreement or any of the
other Loan Documents, except as expressly provided
herein.
(e) (i) Neither the Loan Parties nor
any of their Subsidiaries or Affiliates has any claim or cause of
action against the Agent, any Agent-Related Person, any Lender or
any Lender-Related Person (or any of the directors, officers,
employees, agents, Affiliates or attorneys of the foregoing), and
(ii) the Lender Group has heretofore properly performed and
satisfied in a timely manner all of its obligations to the Loan
Parties and all of their Subsidiaries and Affiliates (if any) under
the Credit Agreement and the other Loan Documents. Notwithstanding
the foregoing, Loan Parties wish (and the Agent and Lenders agree)
to eliminate any possibility that any past conditions, acts,
omissions, events or circumstances would impair or otherwise
adversely affect the Agent or any Lenders’ rights, interests,
security and/or remedies under the Credit Agreement and the other
Loan Documents. Accordingly, for and
in consideration of the agreements contained in
this Agreement and other good and valuable consideration, the Loan
Parties for themselves and their Affiliates and the successors,
assigns, heirs and representatives of each of the foregoing)
(collectively, the “ Releasors ”) does hereby
fully, finally, unconditionally and irrevocably release, waive and
forever discharge the Agent, any Agent-Related Person, any Lender
or any Lender-Related Person, together with their respective
successors, assigns, subsidiaries, affiliates, agents and attorneys
(collectively, the “ Released Parties ”) from:
(x) any and all liabilities, obligations, duties,
responsibilities, promises or indebtedness of any kind of the
Released Parties to the Releasors or any of them and (y) all
claims, demands, disputes, offsets, causes of action (whether at
law or equity), suits or defenses of any kind whatsoever (if any),
which the Releasors or any of them had from the beginning of the
world, now has or might hereafter have against the Released Parties
or any of them, in either case of clauses (x) or (y) on
account of any condition, act, omission, event, contract,
liability, obligation, indebtedness, claim, cause of action,
defense, circumstance or matter of any kind (1) that existed,
arose or occurred at any time from the beginning of the world to
the execution of this Agreement or (2) that could hereafter
arise as a result, directly or indirectly, of the execution of (or
the observance of the terms of) this Agreement, the Credit
Agreement or any of the other Loan Documents. For purposes of the
release contained in this clause (e), any reference to any Releasor
shall mean and include, as applicable, such Person’s
successors and assigns, including, without limitation, any
receiver, trustee or debtor-in-possession, acting on behalf of such
Person. As to each and every claim released hereunder, the Loan
Parties hereby represent that they have received the advice of
legal counsel with regard to the releases contained herein and
agrees that no such common law or statutory rule or principle shall
affect the validity or scope or any other aspect of such
release.
2. Waiver .
(a) Pursuant to the request of the
Loan Parties and in accordance with Section 14.1 of the
Credit Agreement, the Agent and Required Lenders hereby waive the
Specified Defaults.
(b) The waiver in this
Section 2 shall be effective only for the Specified Defaults
and does not allow for any other or further departure from the
terms and conditions of the Credit Agreement or any other Loan
Document, which terms and conditions shall otherw
