EXHIBIT 10.62
FIRST AMENDMENT TO CREDIT AGREEMENT
AMENDMENT, dated as of November 5, 1999 (this "Amendment"), to
the Credit Agreement referenced below, among CELADON GROUP, INC., a Delaware
corporation ("Group") and CELADON TRUCKING SERVICES, INC., a New Jersey
corporation ("Trucking", together with Group, each a "Borrower," collectively,
the "Borrowers") the lenders from time to time parties to the Credit Agreement
referenced below (the "Lenders"), and ING (U.S.) CAPITAL, LLC, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
RECITALS
Reference is made to the Credit Agreement, dated as of August
11, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Credit Agreement"), among the Borrowers, the Lenders and the
Administrative Agent.
Prior to the Amendment Effective Date (as defined in this
Amendment), ING (U.S.) Capital LLC and KeyBank National Association are the sole
Lenders under the Credit Agreement (in such capacity, the "Assignors"). The
Borrowers, the Assignors and the Administrative Agent desire to amend the Credit
Agreement to provide for the assignment of certain interests in the rights of
the Assignors under the Credit Agreement and the other Loan Documents (as
defined in the Credit Agreement) to banks and other financial institutions
listed as "Assignees" on Schedule A to this Amendment (the "Assignees") and to
amend certain other provisions of the Credit Agreement, as set forth in this
Amendment and on the terms and subject to the conditions set forth in this
Amendment.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrowers, the Assignors, the Assignees and the Administrative
Agent hereby agree as follows:
Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
Assignment.
Each Assignor hereby irrevocably sells and assigns to the Assignees, without
recourse to such Assignor, and each Assignee hereby irrevocably purchases and
assumes from the Assignors without recourse to the Assignors, an interest in
and to the Assignors' rights and obligations under the Credit Agreement and the
other Loan Documents as of the date hereof such that, after giving effect to
such sale and assignment, the percentage interest owned by each of the
Assignors and Assignees of all outstanding rights and obligations under the
Credit Agreement and the other Loan Documents, the Commitment of each Assignor
and Assignee and the amount of the percentage of Loans owing to each Assignor
and Assignee, will be as set forth on Schedule A (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities").
Each Assignor (i) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such an interest
is free and clear of any adverse claim (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Loan Documents or any other
instrument or document furnished pursuant thereto, other than that it has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of, the Borrowers or any Subsidiary or any other obligor or
the performance or observance by, the Borrowers or any Subsidiary or any obligor
of any of their respective obligations under the Credit Agreement or any other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; and (iv) will deliver the Notes held by such assignor to the
Administrative Agent and requests that the Administrative Agent exchange such
Notes for new Notes payable in amounts equal to the Commitment assumed by each
such Assignee pursuant hereto, and to each Assignor in amounts equal to the
Commitment retained by such Assignor pursuant hereto, in each case as specified
on Schedule A.
Each Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 8.1
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Amendment and to
assume the assignment provided hereby; (ii) agrees that it will, independently
and without reliance upon the Administrative Agent, the assignors or any other
assignee or other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (iii)
appoints and authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers and discretion under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(iv) agrees that it will be bound by the provisions of the Credit Agreement and
will perform in accordance with its terms all the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligation pursuant to subsection 5.11(b) of the Credit
Agreement.
Upon the Amendment Effective Date, (i) each Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Amendment, have the
rights and obligations of a Lender thereunder and (ii) each Assignor shall, to
the extent provided in this Amendment, relinquish its rights and be released
from its obligations under the Credit Agreement.
From and after the Amendment Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes, in respect of the
Assigned Facilities assigned hereby (including all payments of principal,
interest and commitment fees with respect thereto) to the Assignees as their
interests may appear whether such amounts have accrued prior to the Amendment
Effective Date or accrue subsequent to the Amendment Effective Date. The
Assignors and Assignees shall make appropriate adjustments in payments by the
Administrative Agent for periods prior to the Amendment Effective Date or with
respect to the making of this assignment directly between themselves.
Amendments to Credit Agreement.
Schedule 1.1 to the Credit Agreement is hereby amended by deleting such Schedule
in its entirety and substituting in lieu thereof a new Schedule 1.1 attached to
this Amendment. Schedule 6.19 to the Credit Agreement is hereby amended by
adding the following words at the end of the existing schedule 6.19:
"COMMERCIAL PACKAGE
Insurer: Crumb and Forester
Policy No.: 000-00-00000
Policy Period: June 1999 - June 2000
Broker: Emar Group, Inc.
Premium: $54,000
Coverage: Buildings, building contents, business
interruption, nuclear disaster,
computer related losses, etc."
The first paragraph of the Recitals to the Credit Agreement is hereby amended by
deleting the number "$30,000,000" from subclause (b) thereof, and by
substituting the number "$35,000,000" in lieu thereof.
The definition of Borrowing Base in Section 1 of the Credit Agreement is hereby
amended by adding the words "; provided, that in no event shall the collateral
value of Eligible Canadian Accounts included in the Borrowing Base at any time
exceed $6,000,000," after the words "Eligible Canadian Accounts" in subclause
(c) of such definition.
Section 9.2 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of clause (f)
thereof;
(ii) deleting the period following the number "$2,500,000" in
clause (g) thereof and adding the word "; and" in lieu
thereof;
(iii) adding the following new clause (h) immediately
following clause (g) thereof:
"(h) overdraft protection facilities for Xxxxx in an
aggregate amount not to exceed $400,000."
Revolving Credit Commitments: Upon the Amendment Effective Date, the aggregate
Revolving Credit Commitments shall increase to $35,000,000.
Effectiveness. This Amendment shall become effective (the date of such
effectiveness, the "Amendment Effective Date") upon:
(i) receipt by the Administrative Agent of evidence
satisfactory to the Administrative Agent that this Amendment has been executed
and delivered by each of the Borrowers, the Assignors, the Assignees and the
Administrative Agent;
(ii) the receipt by the Administrative Agent, for the ratable
account of the Assignors, of an amount equal to the aggregate principal amount
of the outstanding Loans being assigned to such Assignee hereunder as of the
Amendment Effective Date; and
(iii) the recordation by the Administrative Agent of the
assignments provided for hereunder in the Register pursuant to Section 12.6(d)
of the Credit Agreement. Additional Covenant. The Borrowers hereby agree to
deliver to the Administrative Agent immediately upon the Amendment Effective
Date all such new Notes as may be necessary to evidence the assignment of the
interests in the Credit Agreement and the other Loan Documents provided for
hereunder, duly executed on behalf of the Borrowers.
No Other Amendments. Except as expressly amended hereby, the Credit Agreement,
the Notes and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms, without any waiver, amendment or
modification of any provision thereof.
Counterparts. This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
First Amendment to Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
CELADON GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CELADON TRUCKING SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
ING (U.S.) CAPITAL LLC, as Administrative Agent,
Arranger and as an Assignor
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as an Assignor
By: /s/ Xxxxxx X. Rohs
-----------------------------
Name: Xxxxxx X. Rohs
Title: Vice President
First Amendment to Credit Agreement
NATIONAL BANK OF CANADA,
as an Assignee
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
UNION PLANTERS BANK, N.A.,
as an Assignee
By: /s/ Xxxxx X. X'Xxxx
------------------------------
Name: Xxxxx X. X'Xxxx
Title: Vice President
THE NORTHERN TRUST COMPANY,
as an Assignee
By: /s/Xxxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, INDIANA,
as an Assignee
By: /s/Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
First Amendment to Credit Agreement
ACKNOWLEDGED AND CONSENTED TO:
CELADON TRUCKING SERVICES OF INDIANA, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CELADON TRANSPORTATION, LLP
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CHEETAH BROKERAGE CO.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CHEETAH TRANSPORTATION CO.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
First Amendment to Credit Agreement
INTERNATIONAL FREIGHT HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
JML FREIGHT FORWARDING, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
RIL GROUP, LTD.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
RIL, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CELADON LOGISTICS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
First Amendment to Credit Agreement
XXXXX EXPRESS, LTD.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
RIL ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
CELADON XXXXX XXXXXX CO.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
ZIPP EXPRESS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
First Amendment to Credit Agreement
SCHEDULE A
PERCENTAGE
INTEREST OWNED
AFTER GIVING
EFFECT TO THIS REVOLVING CREDIT
AMENDMENT COMMITMENT TERM LOAN COMMITMENT
ASSIGNORS:
ING (U.S.) Capital Corporation 18.489% $ 7,226,562.50 $ 4,606,770.83
KeyBank National Association 30.729% 10,000,000.00 9,666,666.67
ASSIGNEES:
National Bank of Canada 15.625% $ 5,468,750.00 $ 4,531,250.00
Union Planters Bank, N.A. 15.625% 5,468,750.00 4,531.250.00
The Northern Trust Company 11.719% 4,101,562.50 3,398,437.50
Fifth Third Bank, Indiana 7.813% 2,734,375.00 2,265,625.00
TOTALS 100% $35,000,000.00 $29,000,000.00
0 0
============== ==============
First Amendment to Credit Agreement
SCHEDULE 1.1
LENDERS, COMMITMENTS AND APPLICABLE LENDING OFFICES
-------------------------------------- -------------------- --------------------
Lender and Lending Offices Term Loan Revolving Credit
Commitment Commitment
-------------------------------------- -------------------- --------------------
ING (U.S.) CAPITAL LLC $4,606,770.83 $7,226,562.50
Applicable Lending Offices:
Base Rate Loans and Eurodollar
Loans:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-------------------------------------- -------------------- --------------------
KEY BANK NATIONAL ASSOCIATION $9,666,666.67 $10,000,000.00
Applicable Lending Offices:
Base Rate Loans and Eurodollar
Loans:
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-------------------------------------- -------------------- --------------------
NATIONAL BANK OF CANADA $4,531,250.00 $5,468,750.00
Applicable Lending Offices:
Base Rate and Loans and
Eurodollar Loans
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-------------------------------------- -------------------- --------------------
First Amendment to Credit Agreement
-------------------------------------- -------------------- --------------------
Lender and Lending Offices Term Loan Revolving Credit
Commitment Commitment
-------------------------------------- -------------------- --------------------
UNION PLANTERS BANK, N.A. $4,531,250.00 $5,468,750.00
Applicable Lending Offices:
Base Rate and Loans and
Eurodollar
Loans:
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-------------------------------------- -------------------- --------------------
THE NORTHERN TRUST COMPANY $3,398,437.50 $4,101,562.50
Applicable Lending Offices:
Base Rate and Loans and
Eurodollar
Loans:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 312-630-1566
-------------------------------------- -------------------- --------------------
FIFTH THIRD BANK, INDIANA $2,265,625.00 $2,734,375.00
Applicable Lending Offices:
Base Rate Loans and Eurodollar
Loans:
000 X. Xxxxxxxx Xxxxxx, Xxxxx
0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
-------------------------------------- -------------------- --------------------
TOTAL: $29,000,000.00 $35,000,000.00
============== ==============
-------------------------------------- -------------------- --------------------
