Nevada
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333-60608
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86-1005291
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading symbol
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Name of each exchange on which registered
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N/A
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N/A
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N/A
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Item 1.01. |
Entry into a Material Definitive Agreement.
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Item 9.01. |
Financial Statements and Exhibits.
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(c) |
Exhibits
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Exhibit No. | Description | |
Purchase and Sale Agreement dated February 4, 2020 by and between 4040 Earnings Way, LLC, and Indco, Inc.
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Third Amendment to Loan and Security Agreement dated March 4, 2020 by and between Santander Bank, N.A., Janel Group, Inc., Honor Worldwide Logistics LLC and Janel Corporation
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JANEL CORPORATION
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(Registrant)
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Date: March 4, 2020
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By:
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/s/ Dominique Schulte
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Dominique Schulte
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Chief Executive Officer
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1. |
AGREEMENT OF SALE AND PURCHASE
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2. |
PURCHASE PRICE; DEPOSIT
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3. |
STUDY PERIOD
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4. |
TITLE
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5. |
REPRESENTATIONS AND WARRANTIES
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6. |
SELLER’S COVENANTS
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7. |
CONDITIONS PRECEDENT
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8. |
SETTLEMENT
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9. |
ADJUSTMENTS; COSTS
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10. |
DEFAULT
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11. |
CASUALTY; CONDEMNATION
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12. |
BROKERAGE
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13. |
NOTICES
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If to Seller:
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4040 Earnings Way, LLC
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6412 Paintbrush Lane
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Louisville, KY 40059
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Attn: JT Sims, Managing Member
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jtsimsjr@gmail.com
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If to Purchaser:
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c/o Indco, Inc.
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4040 Earnings Way
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New Albany, IN 47150
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Attn: C. Mark Hennis
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Hennis@indco.com
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with a copy to:
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Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
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1 South Street, 27th Floor
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Baltimore, MD 21202
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Attn: Hillel Tendler, Esq.
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ht@nqgrg.com
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14. |
MISCELLANEOUS
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WITNESS:
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SELLER:
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4040 EARNINGS WAY, LLC, a Kentucky
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limited liability company
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/s/ Sherry Sims
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By:
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/s/ JT Sims
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Sherry Sims |
JT Sims
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Managing Member
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PURCHASER:
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INDCO, INC., a Tennessee corporation
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/s/ Kristina Wilberding
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By:
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/s/ C. Mark Hennis
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Kristina Wilberding |
Name: C. Mark Hennis
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Title: President
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ESCROW AGENT:
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FIRST AMERICAN TITLE
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INSURANCE COMPANY
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By:
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/s/ Andrew Eyster | ||
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Name: Andrew Eyster
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Title: Escrow Officer
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1.
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Capitalized Terms. All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Agreement.
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2.
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Amendments to Agreement.
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a.
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Section 2.6 of the Agreement (LIBOR Option) is hereby amended by adding the following as a new subparagraph (f):
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b. |
The following is hereby added as new Section 2.9 to the Agreement:
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c. |
Schedule A (Description of Terms) is hereby amended as follows:
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i.
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Row 2(a) (Base Rate Loans) is hereby restated in its entirety as follows:
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(a) Base Rate Loans:
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Base Rate (for avoidance of doubt, the applicable margin is found in the definition of “Base Rate”).
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ii. |
Row 4 (Maturity Date), is hereby amended by deleting the reference to “October 17, 2020” and substituting “October 17, 2022” in its stead.
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d. |
Schedule B (Definitions) is hereby amended as follows:
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i.
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The definition of “Base Rate” is hereby restated in its entirety as follows:
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ii. |
The definition of “Debt Service Coverage Ratio” is hereby restated in its entirety as follows:
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iii. |
The definition of “Debt Service Coverage Ratio (Borrower Group)” is hereby restated in its entirety as follows:
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iv. |
The definition of “EBITDA” is hereby restated in its entirety as follows:
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v. |
The definition of “LIBOR Rate Margin” is hereby restated in its entirety as follows:
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vi. |
The definition of “Permitted Dividends” is hereby restated in its entirety as follows:
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vii. |
By inserting the following new definitions in their correct alphabetical order:
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A)
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““Base Rate Option” has the meaning set forth in Section 2.9.”
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B)
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““Daily One Month LIBOR” means, for any date of determination, the rate per annum for United States dollar deposits with a maturity of one (1) month
as reported on Reuters Screen LIBOR01 (or any successor page) at approximately 11:00 am London time on such date of determination or, if such day is not a London business day, then on the immediately preceding London business day. When
interest or any fee hereunder is determined in relation to Daily One Month LIBOR, each change in such interest rate or fee shall become effective each Business Day that Lender determines that Daily One Month LIBOR has changed.
Notwithstanding the foregoing, if the interest rate determined pursuant to the foregoing provisions is less than .75%, then the Daily One Month LIBOR shall be .75%.”
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C)
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“”M&A Addback” mean the fees and expenses actually incurred and paid by (i) Loan Parties and their Subsidiaries, and (ii) Borrower and its
Subsidiaries, respectively, in connection with acquisitions of assets or equity interests of any Person. Upon the Lender’s request, Loan Parties shall provide the Lender with reasonable documentation to evidence the foregoing.”
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D)
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“” Specified 2020 Distributions” means dividends or distributions on any Loan Party’s stock or other equity in an aggregate amount not to exceed
$500,000 for the Loan Parties’ fiscal year ending September 30, 2020.”
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E)
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“” Specified 2020 Distributions Conditions” means, at the date of determination with respect to any specified payment contemplated by Section
5.27(i), that (a) no Default or Event of Default shall exist immediately before and after giving effect to such payment, (b) the Loan Party Obligors shall be in compliance with the financial covenants set forth in Section 5.28 both before
and after (calculated on a pro forma basis after giving to such transaction), (c) Excess Availability (i) for each of the thirty (30) days immediately preceding the payment of such distribution, and (ii) immediately following such
transaction (calculated on a pro forma basis after giving effect to such transaction), is not less than $1,000,000, (d) Borrower shall have provided Lender with evidence, reasonably satisfactory to Lender, that that all accounts payable are
being paid in the ordinary course of Borrower’s business, and (e) prior to making such payment, Administrative Borrower shall certify to the Lender in writing that the foregoing conditions have and will be satisfied after the making of
such payment.”
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F)
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““Third Amendment” means that certain Third Amendment to Loan and Security Agreement dated as of the Third Amendment Effective Date by and among the
Lender and the Borrowers and the Parent.”
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G)
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““Third Amendment Effective Date” means March 4, 2020.”
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e.
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Schedule D (Fees) is hereby amended as follows:
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i.
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Subparagraph (b) (Collateral Monitoring Fee) is hereby restated in its entirety as follows:
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f. |
The Disclosure Schedule is hereby amended and restated as set forth on the Disclosure Schedule attached hereto.
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3. |
Acknowledgement of Mergers of Certain Borrowers. The Loan Parties hereby warrant and represent to the Lender that prior to the Third Amendment Effective Date (i) each of (a) Global Trading
Resources, Inc., and (b) the Janel Group of Georgia Inc., have merged with Janel, with the surviving company being Janel (the “Janel Merger”) and that HWL Brokerage LLC has
merged with Honor WW, the surviving company being Honor WW (the “Honor Merger”, and together with the Janel Merger, collectively, the “Mergers”), as permitted by Section 5.27(a)(i) of the Agreement, (ii) such Mergers have been completed in compliance with all applicable laws, and (iii) the Loan Parties have provided the Lender with true and complete
copies of the documents evidencing such mergers, including such documents filed with the applicable Governmental Authorities.
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4. |
Ratification of Loan Documents/Waiver. Except as provided for herein, all terms and conditions of the Agreement or the other Loan Documents remain in full force and effect. Each Loan Party Obligor
each hereby ratifies, confirms, and reaffirms all representations, warranties, and covenants contained therein and acknowledges and agrees that the Obligations, as amended hereby, are and continue to be secured by the Collateral. Each
Loan Party Obligor acknowledges and agrees that each such Loan Party Obligor does not have any offsets, defenses, or counterclaims against the Lender arising out of the Agreement or the other Loan Documents, and to the extent that any
such offsets, defenses, or counterclaims arising out of the Agreement or the other Loan Documents may exist, each such Loan Party Obligor hereby WAIVES and RELEASES the Lender therefrom.
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5. |
Conditions to Effectiveness. This Third Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Lender:
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a.
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This Third Amendment shall have been duly executed and delivered by the respective parties hereto and, shall be in full force and effect and shall be in form and substance satisfactory to the Lender.
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b.
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Loan Party Obligors shall have executed and delivered such documents and agreements set forth on the Closing Checklist as required by Lender.
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c.
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The Borrower shall have paid to the Lender all other fees and expenses then due and owing pursuant to the Agreement and this Third Amendment.
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d.
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No Default or Event of Default shall exist.
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6.
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Miscellaneous.
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a.
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This Third Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall
constitute one instrument.
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b.
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The provisions of Section 10.15 (Governing Law) and 10.16 (Consent to Jurisdiction; Waiver of Jury Trial) are specifically
incorporated herein by reference.
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c.
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This Third Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.
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d.
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Any determination that any provision of this Third Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Third Amendment.
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e.
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The Borrower shall pay on demand all costs and expenses of the Lender, including, without limitation, reasonable attorneys’ fees in connection with the preparation, negotiation, execution and delivery of this
Third Amendment.
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f.
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The Loan Party Obligors each warrants and represents that such Person has consulted with independent legal counsel of such Person’s selection in connection with this Third Amendment and is not relying on any
representations or warranties of the Lender or its counsel in entering into this Third Amendment.
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LENDER
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Witnessed by:
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SANTANDER BANK, N.A.
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/s/ Michael Jantzer |
By:
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/s/ John P. Nuzzo
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Print Name: Michael Jantzer
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Name: John P. Nuzzo
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Its: Senior Vice President
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/s/ Pierre Desbiens |
By:
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/s/
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Print Name: Pierre Desbiens
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Name:
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Its:
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BORROWER
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Witnessed by:
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JANEL GROUP, INC., a New York corporation
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/s/ Brendan J. Killackey |
By:
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/s/ Dominique Schulte
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Print Name: Brendan J. Killackey
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Name: Dominique Schulte
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Its: Vice President
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Print Name:
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Witnessed by:
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HONOR WORLDWIDE LOGISTICS LLC, a Texas limited liability company
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/s/ Brendan J. Killackey |
By:
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/s/ Dominique Schulte
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Print Name: Brendan J. Killackey
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Name: Dominique Schulte
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Its: Vice President
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LOAN PARTY OBLIGOR
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Witnessed by:
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JANEL CORPORATION, a Nevada corporation
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/s/ Brendan J. Killackey |
By:
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/s/ Dominique Schulte
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Print Name: Brendan J. Killackey
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Name: Dominique Schulte
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Its: President and CEO
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