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EXHIBIT 10.27
SIXTH AMENDMENT
SIXTH AMENDMENT, dated as of May 14, 2001 (this "Amendment"),
to the Credit Agreement, dated as of August 11, 1999 (as amended, supplemented
or otherwise modified prior to the date hereof, the "Existing Credit Agreement";
as modified hereby and as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), 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 banks and other financial institutions parties thereto (the
"Lenders"), and ING (U.S.) CAPITAL LLC, as administrative agent (the
"Administrative Agent") and arranger for the Lenders.
RECITALS
The Borrowers have requested that the Administrative Agent and
the Lenders agree to amend certain provisions of the Credit Agreement as set
forth in this Amendment. The Administrative Agent and the Lenders parties hereto
are willing to agree to such amendments, but only 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 Administrative Agent and the Lenders hereby
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
2. Amendments.
(a) Section 1.1 of the Existing Credit Agreement is hereby
amended by deleting the last sentence found at the end of the
definitions of (i) "Consolidated EBIT", (ii) "Consolidated EBITDA",
(iii) "Consolidated EBITDAR", (iv) "Consolidated Fixed Charges",
(v) "Consolidated Funded Debt", (vi) "Consolidated Funded
Obligations", (vii) "Consolidated Interest Expense", (viii)
"Consolidated Net Income" and (ix) "Consolidated Tangible Net
Worth," and substituting in lieu thereof the following new sentence
to read in its entirety as follows:
"Notwithstanding the foregoing, all amounts prior to
and including the date of January 31, 2001 relating to
XxxxxxxxX0X.xxx, Inc. shall be excluded from all calculations,
excluding the calculations for Leverage Ratio, for purposes of
this definition."
(b) Section 8.1 of the Existing Credit Agreement is hereby
amended by adding the following new subsection (d), to read in its
entirety as follows:
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"(d) On the fifteenth and last day of each calendar
month, a schedule showing the estimated weekly cash flows of
each Borrower and its Subsidiaries for the succeeding twelve
(12) week period from such date."
(c) Section 9.1 of the Existing Credit Agreement is hereby
amended by deleting subsection (a), (b) and (c) in their entirety
and substituting in lieu thereof the following new subsections, to
read in their entirety as follows:
(a) Adjusted Leverage Ratio. Permit, for any period
of four consecutive fiscal quarters ending during a period set
forth below, the Adjusted Leverage Ratio to be greater than
the amount set forth opposite such period below:
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Test Period Ratio
--------------------------------------------------------------
Closing Date to December 31, 1999 4.25
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January 1, 2000 to June 30, 2000 4.60
--------------------------------------------------------------
July 1, 2000 to September 30, 2000 4.55
--------------------------------------------------------------
October 1, 2000 to December 31, 2000 4.40
--------------------------------------------------------------
January 1, 2001 to March 31, 2001 4.67
--------------------------------------------------------------
April 1, 2001 to June 30, 2001 4.67
--------------------------------------------------------------
July 1, 2001 to September 30, 2001 4.40
--------------------------------------------------------------
October 1, 2001 to December 31, 2001 4.25
--------------------------------------------------------------
Thereafter 3.25
--------------------------------------------------------------
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(b) Interest Coverage. (i) Permit, for any period of
four consecutive fiscal quarters ending during any period set
forth below, or if less than four consecutive fiscal quarters
have elapsed since the Closing Date, such period of one, two
or three consecutive fiscal quarters following the Closing
Date ending during any period set forth below, the ratio of
(y) Consolidated EBIT for such period to (z) Consolidated
Interest Expense for such period, to be less than the amount
set forth opposite such period below:
--------------------------------------------------------------
Test Period Ratio
--------------------------------------------------------------
Closing Date to December 31, 1999 1.75
--------------------------------------------------------------
January 1, 2000 to March 31, 2000 1.75
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April 1, 2000 to September 30, 2000 1.40
--------------------------------------------------------------
October 1, 2000 to December 31, 2000 1.50
--------------------------------------------------------------
January 1, 2001 to March 31, 2001 0.70
--------------------------------------------------------------
April 1, 2001 to June 30, 2001 0.65
--------------------------------------------------------------
July 1, 2001 to September 30, 2001 0.70
--------------------------------------------------------------
October 1, 2001 to December 31, 2001 0.75
--------------------------------------------------------------
Thereafter 2.50
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(ii) Permit, for any fiscal quarter ending during any
period set forth below, the ratio of (y) Consolidated EBIT for
such period to (z) Consolidated Interest Expense for such
period, to be less than the amount set forth opposite such
period below:
--------------------------------------------------------------
Test Period Ratio
--------------------------------------------------------------
April 1, 2001 to June 30, 2001 1.00
--------------------------------------------------------------
July 1, 2001 to September 30, 2001 1.00
--------------------------------------------------------------
October 1, 2001 to December 31, 2001 1.00
--------------------------------------------------------------
(c) Minimum Fixed Charge Coverage. (i) Permit, for
any period of four consecutive fiscal quarters ending during
any period set forth below, or if less than four consecutive
fiscal quarters have elapsed since the Closing Date, such
period of one, two or three consecutive fiscal quarters
following the Closing Date ending during any period set forth
below, the ratio of (y) Consolidated EBITDAR to (z)
Consolidated Fixed Charges to be less than the ratio set forth
opposite such period below:
--------------------------------------------------------------
Test Period Ratio
--------------------------------------------------------------
Closing Date to December 31, 1999 1.15
--------------------------------------------------------------
January 1, 2000 to June 30, 2000 1.00
--------------------------------------------------------------
July 1, 2000 to December 31, 2000 1.05
--------------------------------------------------------------
January 1, 2001 to March 31, 2001 0.84
--------------------------------------------------------------
April 1, 2001 to June 30, 2001 0.80
--------------------------------------------------------------
July 1, 2001 to September 30, 2001 0.80
--------------------------------------------------------------
October 1, 2001 to December 31, 2001 0.80
--------------------------------------------------------------
Thereafter 1.20
--------------------------------------------------------------
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(ii) Permit, for any fiscal quarter ending during any
period set forth below, the ratio of (y) Consolidated EBITDAR
to (z) Consolidated Fixed Charges to be less than the ratio
set forth opposite such period below:
--------------------------------------------------------------
Test Period Ratio
--------------------------------------------------------------
April 1, 2001 to June 30, 2001 1.00
--------------------------------------------------------------
July 1, 2001 to September 30, 2001 1.00
--------------------------------------------------------------
October 1, 2001 to December 31, 2001 1.00"
--------------------------------------------------------------
(d) Section 9.1 of the Existing Credit Agreement is hereby
amended by adding the following new subsection (e), to read in its
entirety as follows:
"(e) Permit, at any time up to and including the date
of December 31, 2001, the sum of (i) all Financing Leases, and
(ii) all obligations of each Borrower or any of its
Subsidiaries in respect of any lease of real or personal
property, including, without limitation, residual payments
required pursuant to terminal rental adjustment clauses set
forth in leases of tractors and trailers the term of which is
more than one year from such time, in respect of which the
Borrower or any of its Subsidiaries is obligated as lessee or
a user, which lease obligations shall be discounted at a rate
equal to the rate set forth in such lease, to exceed the
amount of $143,035,000."
(e) Section 9.7 of the Existing Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu
thereof the following new section, to read in its entirety as
follows:
"9.7 Limitation on Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock
of a Borrower) on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of
any Borrower or any warrants or options to purchase any such
Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of
any Borrower or any Subsidiary in excess of $1,000,000 in the
aggregate during any fiscal year; provided, that no such
dividend, distribution or payment shall be made following the
occurrence and during the continuation of an Event of Default;
provided further, that no repurchase of Capital Stock of any
Borrower shall be permitted if either of the following
conditions apply: (i) the Adjusted Leverage Ratio, for any
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period of four consecutive fiscal quarters most recently
ended, is greater than 3.50; or (ii) the Leverage Ratio, for
any period of four consecutive fiscal quarters most recently
ended, is greater than 3.50."
3. Amendment Fee. On or prior to the Amendment Effective Date
(as defined below), the Borrowers, jointly and severally, shall pay to the
Administrative Agent, for the benefit of each Lender that executes this
Amendment (an "Approving Lender"), an amendment fee (the "Amendment Fee") of
$10,000 for each Approving Lender.
4. Condition Precedent. This Amendment shall become effective
on the date (the "Amendment Effective Date") on which the following conditions
precedent shall have been satisfied:
(a) receipt by the Administrative Agent of this Amendment,
executed and delivered by duly authorized officers of the Required
Lenders and the Borrowers and acknowledged by each of the
Guarantors;
(b) receipt by the Administrative Agent of an Officer's
Certificate from each Borrower, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of such
Borrower, stating that after giving effect to this Amendment, (i)
all the representations and warranties contained in the Credit
Agreement and the other Loan Documents will be true and correct,
(ii) no Default or Event of Default will have occurred and be
continuing, (iii) there has been no change to the certificate of
incorporation and by-laws of such Borrower as of the Closing Date,
(iv) there has been no change in the location of such Borrower's
place of business, inventory, equipment and books or records as of
the Closing Date, and (v) such Borrower has not created any
Subsidiaries without notifying the Administrative Agent as of the
Closing Date;
(c) receipt by the Administrative Agent of the Amendment Fee;
and
(d) receipt by the Administrative Agent of this or any other
documents relating hereto that shall be reasonably requested by the
Administrative Agent.
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5. No Default. On the Amendment Effective Date, (i) the
Borrowers shall be in compliance with all the terms and provisions set forth in
the Loan Documents on its part to be observed or performed, (ii) the
representations and warranties made and restated by each Borrower pursuant to
Section 6 of this Amendment shall be true and complete on and as of such date
with the same force and effect as if made on and as of such date, and (iii) no
Default or Event of Default shall have occurred and be continuing on such date.
6. Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Amendment, the Borrowers
hereby represent and warrant to the Administrative Agent and the Lenders that,
after giving effect to the amendments provided for herein, the representations
and warranties contained in the Credit Agreement and the other Loan Documents
will be true and correct in all material respects as if made on and as of the
date hereof and that no Default or Event of Default will have occurred and be
continuing.
7. 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.
8. Expenses. Each Borrower, jointly and severally, hereby
agrees to pay and reimburse the Administrative Agent for all of the reasonable
and documented out-of-pocket costs and expenses incurred by the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the fees and disbursements of
Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the Administrative Agent.
9. Applicable Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the state of New York.
[SIGNATURE PAGES FOLLOW]
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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/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
CELADON TRUCKING SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
ING (U.S.) CAPITAL LLC,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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The undersigned Lenders hereby consent and agree to the
foregoing Amendment:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
NATIONAL BANK OF CANADA,
as a Lender
By:
--------------------------------------
Name:
Title:
UNION PLANTERS BANK, N.A.,
as a Lender
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice president
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Xxxxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxxx Xxxxxxxx
Title: Vice President
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FIFTH THIRD BANK, INDIANA,
as a Lender
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
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INTERNATIONAL FREIGHT HOLDING CORP.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
JML FREIGHT FORWARDING, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
RIL GROUP, LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
RIL INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
WELLINGMUFT HOLDING CO.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
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The undersigned guarantors hereby consent and agree to the
foregoing Amendment:
CELADON TRUCKING SERVICES OF INDIANA, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
CELADON TRANSPORTATION, LLP
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
CHEETAH BROKERAGE CO.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
CHEETAH TRANSPORTATION CO.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
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CELADON LOGISTICS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
XXXXX EXPRESS, LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
RIL ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
CELADON XXXXX XXXXXX CO.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
ZIPP EXPRESS, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Xxxxxxxxx
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XXXXXXX X-XXXXXXXX, INC.
By: /s/ Xxxx X. Will
--------------------------------------
Name: Xxxx X. Will
Title: Secretary
XXXXXXXXX0X.XXX, INC.
By: /s/ Xxxx X. Will
--------------------------------------
Name: Xxxx X. Will
Title: Secretary
