EXHIBIT 10.17
WAIVER AND SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO LOAN AND SECURITY
AGREEMENT (this "Waiver and Amendment"), dated as of April 24, 2003, is entered
into by and among Fleet Capital Corporation, as Administrative Agent (the
"Administrative Agent"), Fleet Capital Canada Corporation, as Canadian Agent
(the "Canadian Agent"), the Lenders and Canadian Participating Lenders party to
the Loan Agreement (as defined below), Celadon Group, Inc., a Delaware
corporation ("CGI"), Celadon Trucking Services, Inc., a New Jersey corporation
("CTSI"), TruckersB2B, Inc., a Delaware corporation ("TB2B"), and Celadon
Canada, Inc., an Ontario corporation ("CCI" and together with CGI, CTSI and
TB2B, collectively, the "Borrowers"), with reference to the following facts:
RECITALS
A. The Administrative Agent, the Canadian Agent, the
Lenders, the Canadian Participating Lenders and the Borrowers are parties to the
Loan and Security Agreement, dated as of September 26, 2002, as amended by the
Waiver and First Amendment to Loan and Security Agreement, dated as of January
31, 2003 (collectively, the "Loan Agreement"), pursuant to which the Lenders
have provided the Borrowers with certain credit facilities.
B. The Borrowers currently are in default under Section
10.1.3 of the Loan Agreement given the Borrowers' breach of each of the
following provisions of the Loan Agreement:
(i) Section 5.2.2 of the Loan Agreement, due to
the Borrowers' failure to notify the Administrative Agent of their establishment
of the following two new deposit accounts with Key Bank, National Association:
account no. 19-099-3-50202-9, as to which CTSI is the account party; and account
no. 19-099-3-50201-1, as to which TB2B is the account party; and
(ii) Section 8.2.8 of the Loan Agreement, due to
the failure of the Borrowers to comply with the maximum unfinanced Capital
Expenditures limit of $1,000,000 as of March 31, 2003 during the fiscal year of
CGI ending June 30, 2003.
(The foregoing breaches of the Loan Agreement hereinafter are referred to
collectively as the "Existing Events of Default".)
C. The Borrowers have requested that the Lenders waive
each of the Existing Events of Default and amend the maximum annual unfinanced
1
Capital Expenditures covenant set forth in Section 8.2.8 of the Loan Agreement
and the maximum operating lease obligations and Capital Lease Obligations
covenant set forth in Section 8.2.9 of the Loan Agreement.
D. The Lenders are willing to grant such accommodations
to the Borrower on the terms and conditions set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. Defined Terms. Any and all initially capitalized terms used in
this Waiver and Amendment (including, without limitation, in the recitals
hereto) without definition shall have the respective meanings specified in the
Loan Agreement.
2. Waiver of Existing Events of Default. The Lenders hereby waive
each of the Existing Events of Default. Such waiver by the Lenders shall
constitute a waiver of only the Existing Events of Default and not a waiver of
any future breach of any provision of the Loan Agreement or any other Loan
Document.
3. Amendment to Capital Expenditures Covenant. Section 8.2.8 of
the Loan Agreement is hereby amended by deleting the reference therein to
"$1,000,000" and substituting therefor a reference to "$3,000,000".
4. Amendment to Operating Leases and Capitalized Lease Obligation
Covenant. Section 8.2.9 of the Loan Agreement is hereby amended by: (a) deleting
the reference to "$45,000,000" set forth in clause (i) thereof and substituting
therefor a reference to "$43,000,000"; (b) deleting the reference to
"$50,000,000" set forth in clause (ii) thereof and substituting therefor a
reference to "$48,000,000"; and (c) deleting the reference to "$55,000,000" set
forth in clause (iii) thereof and substituting therefor a reference to
"$53,000,000".
5. Amendment Fee. In consideration of the agreement of the
Lenders to amend the Loan Agreement as set forth in this Amendment, on the
effective date of this Amendment, the Borrowers shall pay to the Administrative
Agent, for the ratable benefit of the Lenders, a one-time amendment fee in the
amount of $10,000 (the "Amendment Fee"). The Borrowers acknowledge and agree
that the Administrative Agent shall effect payment of the Amendment Fee by
charging the full amount thereof to the Borrower's Domestic Loan Account.
6. Conditions Precedent. The effectiveness of this Waiver and
Amendment shall be subject to the prior satisfaction of each of the following
conditions:
(a) Waiver and Amendment. The Administrative Agent shall
have received this Waiver and Amendment, duly
executed by
2
the Borrowers, the Majority Lenders and the
Administrative Agent;
(b) Amendment Fee. The Administrative Agent shall have
received payment of the Amendment Fee; and
(c) Secretary's Certificate. The Secretary of each of the
Borrowers shall have executed the Certificate of
Resolution attached to this Amendment.
7. Miscellaneous.
(a) Survival of Representations and Warranties. All
representations and warranties made in the Loan
Agreement or in any other document or documents
relating thereto, including, without limitation, any
Loan Document furnished in connection with this
Waiver and Amendment, shall survive the execution and
delivery of this Waiver and Amendment.
(b) Reference to Loan Agreement. The Loan Agreement, each
of the other Loan Documents, and any and all other
agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof,
or pursuant to the terms of the Loan Agreement as
amended hereby, are hereby amended so that any
reference therein to the Loan Agreement shall mean a
reference to the Loan Agreement as amended by this
Waiver and Amendment.
(c) Loan Agreement Remains in Effect. The Loan Agreement
and the other Loan Documents remain in full force and
effect and the Borrowers ratify and confirm its
agreements and covenants contained therein. The
Borrowers hereby confirm that, after giving effect to
this Waiver and Amendment, no Event of Default or
Default exists as of such date.
(d) Reaffirmation of Obligations. The Borrowers hereby
reaffirm, ratify and confirm their Obligations under
the Loan Agreement, acknowledge that they have no
offset rights or defenses to the payment of such
Obligations, and acknowledge that all of the terms
and provisions of the Loan Agreement and the other
Loan Documents (except as amended hereby) remain in
full force and effect.
(e) Severability. Any provision of this Waiver and
Amendment held by a court of competent jurisdiction
to be invalid or unenforceable shall not impair or
invalidate the remainder of
3
this Waiver and Amendment and the effect thereof
shall be confined to the provision so held to be
invalid or unenforceable.
(f) Counterparts. This Waiver and Amendment may be
executed in one or more counterparts, each of which
when so executed shall be deemed to be an original,
but all of which when taken together shall constitute
one and the same instrument.
(g) Headings. The headings, captions and arrangements
used in this Waiver and Amendment are for convenience
only and shall not affect the interpretation of this
Waiver and Amendment.
(h) Expenses of The Agents. Borrowers agree to pay on
demand all costs and expenses reasonably incurred by
the Administrative Agent in connection with the
preparation, negotiation and execution of this Waiver
and Amendment and the other Loan Documents executed
pursuant hereto, and any and all subsequent
amendments, modifications, and supplements hereto or
thereto, including, without limitation, the costs and
fees of legal counsel to the Administrative Agent.
(i) NO ORAL AGREEMENTS. THIS WAIVER AND AMENDMENT,
TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
(j) GOVERNING LAW; JURY TRIAL WAIVER. THE VALIDITY OF
THIS WAIVER AND AMENDMENT, ITS CONSTRUCTION,
INTERPRETATION AND ENFORCEMENT, AND THE RIGHTS OF THE
PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE PARTIES TO THIS WAIVER AND
AMENDMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING
4
ARISING IN CONNECTION WITH THIS WAIVER AND AMENDMENT.
IN WITNESS WHEREOF, the parties have entered into this Waiver
and Amendment by their respective duly authorized officers as of the date first
above written.
CELADON GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
CELADON TRUCKING SERVICES, INC.,
a New Jersey corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
TRUCKERSB2B, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
CELADON CANADA, INC.,
an Ontario corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
FLEET CAPITAL CORPORATION, a Rhode Island
corporation, as Administrative Agent and a
Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
Senior Vice President
5
FIFTH THIRD BANK,
as a Lender
By: /s/Xxxxx X. X'Xxxx
----------------------------------
Name: Xxxxx X. X'Xxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
6
CERTIFICATE OF RESOLUTION
I, Xxxx Will, hereby certify that:
I am the duly qualified and acting Secretary
of each of Celadon Group, Inc., a Delaware corporation, Celadon Trucking
Services, Inc., a New Jersey corporation, TruckersB2B, Inc., a Delaware
corporation, and Celadon Canada, Inc., an Ontario corporation (collectively, the
"Borrowers").
The following is a true copy of identical
resolutions duly adopted by the respective boards of directors of each of the
Borrowers by either a special meeting or by unanimous written consent in lieu of
a meeting:
"RESOLVED that the terms of the Waiver and
Second Amendment to Loan and Security Agreement among this
corporation and the other Borrowers party thereto, the
financial institutions which are signatories thereto and Fleet
Capital Corporation, as Administrative Agent (the 'Agent'),
are hereby approved and ratified; and
FURTHER RESOLVED, that any one officer of
this corporation is hereby authorized and directed, on behalf
of this corporation, to make, execute, and deliver to the
Agent any and all documents and to do any and all acts
necessary or desirable to effectuate the foregoing
resolution."
These resolutions are in conformity with the
respective articles or certificate of incorporation and bylaws of the Borrowers,
have never been modified or repealed, and are now in full force and effect.
7
IN WITNESS WHEREOF, I have set my hand and
the seal of the corporation as of April 30, 2003.
/s/Xxxx Will
--------------------------------------
Xxxx Will
Secretary of Celadon Group, Inc.
Celadon Trucking Services, Inc.,
TruckersB2B, Inc., and
Celadon Canada, Inc.
8
