FIFTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of May 20, 2004, 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, the
Waiver and Second Amendment to Loan and Security Agreement, dated as of April
24, 2003, the Third Amendment to Loan and Security Agreement, dated as of August
21, 2003, and the Fourth Amendment to Loan and Security Agreement, dated as of
January 16, 2004 (collectively, the "Loan Agreement"), pursuant to which the
Lenders have provided the Borrowers with certain credit facilities.
B. CGI proposes to issue additional shares of its common stock (the "Equity
Offering") and requests the Lenders' consent to CGI's use of the net proceeds of
the Equity Offering for purposes other than those required by the Loan
Agreement.
C. The Lenders are willing to issue such consent and to make certain other
modifications to the Loan Agreement, all 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
Amendment without definition shall have the respective meanings specified in the
Loan Agreement.
2. Consent to Requested Use of Proceeds of Equity Offering. The Lenders
hereby agree that, notwithstanding anything to the contrary set forth in Section
3.3.4, the second sentence of Section 3.3.1, Section 8.2.6(a), or any other
provision of the Loan Agreement, CGI shall have no obligation to use the net
proceeds realized by CGI from the Equity Offering (the "Net Proceeds") to repay
principal outstanding under the Domestic Term Loan and instead may use the Net
Proceeds for each of the following purposes, in such order as CGI may elect:
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(i) CGI may use the Net Proceeds to repay all of the outstanding
indebtedness of CTSI to Highway Express, Inc. under the CTSI-Seller Note
referred to in the Third Amendment to the Loan Agreement;
(ii) CGI may apply up to $8,000,000 of the Net Proceeds to repay
equipment notes or operating lease obligations of any of the Borrowers; and
(iii) CGI may use part or all of the Net Proceeds to reduce the
obligations of the Borrowers under the Revolving Credit Loans facility.
3. Amendment to Capital Expenditures Covenant. Section 8.2.8 of the Loan
Agreement is hereby amended by deleting the reference therein to "$3,000,000"
(which reference was added by the Second Amendment to the Loan Agreement) and
substituting therefor a reference to "$12,000,000".
4. 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 benefit
of the Lenders, a one-time amendment fee in the amount of $10,000 (the
"Amendment Fee"), which the Administrative Agent shall distribute to, and divide
equally among, the Lenders. The Borrowers acknowledge and agree that the
Administrative Agent shall effect payment of the Amendment Fee by charging the
full amount thereof to the Domestic Loan Account as a Domestic Revolving Credit
Loan.
5. Conditions Precedent. The effectiveness of this Amendment shall be
subject to the prior satisfaction of each of the following conditions:
(a) This Amendment. The Administrative Agent shall have received this
Amendment, duly executed by the Borrowers, Majority Lenders and the
Administrative Agent;
(b) Secretary's Certificate. The Secretary of each of the Borrowers
shall have executed the Certificate of Resolution attached to this
Amendment.
6. 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 Amendment, shall survive the
execution and delivery of this 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
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amended so that any reference therein to the Loan Agreement shall mean a
reference to the Loan Agreement as amended by this 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 their agreements and covenants contained therein. The Borrowers
hereby confirm that no Event of Default or Default exists as of the date of
this Amendment.
(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 Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
(f) Counterparts. This 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
Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
(h) Expenses of the Administrative Agent. 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
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 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 AMENDMENT,
ITS CONSTRUCTION,
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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 AMENDMENT HEREBY WAIVE THEIR RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING IN CONNECTION WITH THIS
AMENDMENT.
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IN WITNESS WHEREOF, the parties have entered into this Amendment by their
respective duly authorized officers as of the date first above written.
CELADON GROUP, INC.,
a Delaware corporation
By: /s/ Xxxx Will
---------------------------
Xxxx Will
Secretary
CELADON TRUCKING SERVICES, INC.,
a New Jersey corporation
By: /s/ Xxxx Will
---------------------------
Xxxx Will
Secretary
TRUCKERSB2B, INC.,
a Delaware corporation
By: /s/ Xxxx Will
---------------------------
Xxxx Will
Secretary
CELADON CANADA, INC.,
an Ontario corporation
By: /s/ Xxxx Will
---------------------------
Xxxx Will
Secretary
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FLEET CAPITAL CORPORATION, a Rhode
Island corporation, as Administrative
Agent and a Lender
By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President
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/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
FLEET CAPITAL CANADA CORPORATION,
as Canadian Agent and Canadian Lender
By: Fleet Capital Corporation
Its: Attorney-in-Fact
By: /s/ Xxxxxxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President
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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 Fifth Amendment to Loan and Security
Agreement among this corporation and the other Borrowers party thereto, the
financial institutions which are signatories thereto, Fleet Capital
Corporation, as Administrative Agent (the 'Agent'), and Fleet Capital
Canada Corporation, as Canadian 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.
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IN WITNESS WHEREOF, I have set my hand and the seal of the corporation as
of May 20, 2004.
/s/ Xxxx Will
-------------------------------
Xxxx Will
Secretary of Celadon Group, Inc.
Celadon Trucking Services, Inc.,
TruckersB2B, Inc., and
Celadon Canada, Inc.
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