EXHIBIT 10.16
WAIVER AND FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this "Waiver and Amendment"), dated as of January 31, 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 (the "Loan
Agreement"), pursuant to which the Lenders have provided the Borrowers with
certain credit facilities.
B. The Borrowers currently are in default under Sections
10.1.4 and 10.1.5 of the Loan Agreement given the Borrowers' breach of each of
the following provisions of the Loan Agreement and the side letter agreement,
dated September 26, 2002, by and among the parties to the Loan Agreement (the
"Closing Side Letter"):
(i) Section 5.5 of the Loan Agreement, due to
the Borrowers' failure to cause Xxxxxx Xxxxxxx & Co. to enter into an acceptable
securities account control agreement with the Administrative Agent within 30
days after the Closing Date.
(ii) Section 6.2.4 of the Loan Agreement, due to
the failure by the Borrowers to establish, implement and maintain acceptable
Dominion Account arrangements for the direct deposit of payments and other
remittances on Accounts owed by Account Debtors in Canada within forty-five (45)
days after the Closing Date;
(iii) Section 6.2.5 of the Loan Agreement, due to
the deposit by the Borrowers of certain collections on their Accounts into the
Borrowers' operating deposit account at KeyBank National Association rather than
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into the Borrowers' domestic lockbox-related deposit account or a Dominion
Account;
(iv) Section 8.1.13 of the Loan Agreement, due to
the failure by the Borrowers to ensure that the Administrative Agent has a
perfected Lien on each motor vehicle owned by the Borrowers and their
Subsidiaries within sixty (60) days after the Closing Date;
(v) Section 1 of the Closing Side Letter, due to
CTSI's failure to executed and deliver to the Administrative Agent an Indiana
mortgage on the Jonesville Property referred to therein within 90 days after the
Closing Date; and
(vi) Section 4 of the Closing Side Letter, due to
the failure by the Domestic Borrowers to deliver to the Administrative Agent the
original certificate of title for each motor vehicle in which the Administrative
Agent has a first-priority security interest within 30 days after the Closing
Date.
(The foregoing breaches of the Loan Agreement and the Closing Side Letter
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 the Lenders are willing to do so and
to establish new deadlines for the Borrowers' compliance with, or otherwise
modify, the terms of the Loan Agreement and the Closing Side Letter on the terms
and conditions set forth below.
X. XxXxxxx Bank National Association ("LaSalle") has
determined that it cannot act as a Canadian Participating Lender, and Fleet
therefore has agreed to purchase all of LaSalle's interests in the Canadian
Revolving Credit Loans and the Canadian Term Loan in exchange for the sale by
Fleet to LaSalle of a portion of Fleet's interest in the Domestic Term Loan.
E. For the administrative convenience of the
Administrative Agent and the Canadian Agent, the Canadian Agent wishes to
transfer responsibility to the Administrative Agent for certain ministerial loan
and collateral administrative duties under the Loan Documents.
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.
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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 of the other
Loan Documents.
3. Consent to Assignments by LaSalle and Fleet. The Borrowers and
the Lenders hereby consent to the assignment by LaSalle to Fleet of all of
LaSalle's existing pro rata share of each of the Canadian Revolving Loans (i.e.,
$1,090,909.08) and the Canadian Term Loan (i.e., $235,341.82) and to the
assignment by Fleet to LaSalle of $1,326,250.90 of Fleet's existing pro rata
share of the Domestic Term Loan effective as of the Closing Date.
4. Remittance of Interest Payments on Assigned Domestic Term Loan
Commitment. LaSalle hereby acknowledges that the Administrative Agent has held
La Salle's pro rata share of the interest payments made by the Domestic
Borrowers since the Closing Date on the Domestic Term Loan. The Administrative
Agent hereby agrees to remit all such interest payments to LaSalle promptly upon
the effectiveness of this Waiver and Amendment.
5. Amendment to Schedule of Lender Commitments. Exhibit 1.1 to
the Loan Agreement is hereby amended to read in full as set forth on Exhibit 1.1
to this Waiver and Amendment.
6. Deletion of Second Domestic Term Loan Advance. The Borrowers
have offered not to request funding of the Second Domestic Term Loan Advance
described in Section 1.3.1 of the Loan Agreement, and therefore Section 1.3.1 of
the Loan Agreement is hereby amended to read in full as follows:
"1.3.1 Domestic Term Loan Subfacility. On the Closing Date,
each Domestic Lender, severally and not jointly, agrees to make a term loan to
CGI in the aggregate principal amount of such Domestic Lender's Domestic Term
Loan Commitment (collectively, the "Domestic Term Loan"), such that the
aggregate original principal amount of the Domestic Term Loan shall be
$9,593,080. The Domestic Term Loan shall be repayable in accordance with the
terms of the applicable Term Notes and shall be secured by all of the Domestic
Collateral. The Domestic Term Loan shall constitute a subfacility under the
Domestic Revolving Credit Loans facility, and the proceeds of the Domestic Term
Loan shall be used solely for the purposes for which the proceeds of the
Domestic Revolving Credit Loans are authorized to be used."
7. Amendments to Mandatory Prepayments Provision. Notwithstanding
anything to the contrary set forth in Section 3.3.1 of the Loan Agreement:
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(a) if any Borrower exercises a purchase option with
respect to any motor vehicle leased by such Borrower,
and such Borrower thereafter re-sells such vehicle to
the lessor or any other third party, the Borrowers
shall be required to prepay the principal amount of
the applicable Term Loan made on the basis of such
vehicle in an amount equal to the positive difference
between (i) the amount received by such Borrower from
the sale of such vehicle to the lessor and (ii) the
amount paid by such Borrower to the lessor or any
other third party in the exercise of such Borrower's
purchase option under the lease; and
(b) if any Borrower sells any motor vehicle with the
intention of subsequently purchasing a replacement
vehicle, the Borrowers shall forward to the
Administrative Agent all net proceeds of such sale
and the Administrative Agent shall apply such
proceeds to reduce the outstanding Revolving Credit
Loans. The Administrative Agent shall block borrowing
availability under the Revolving Credit Loan facility
in the amount of such payment (the "availability
block"). If the applicable Borrower repurchases a
replacement motor vehicle within 90 days after the
sale of its old vehicle, subject to documentation
acceptable to the Administrative Agent, the
Administrative Agent shall make a Revolving Credit
Loan to the Borrowers in the amount of the
availability block plus, subject to additional
borrowing availability, such additional amount as may
be required to finance such Borrower's payment of the
purchase price of such replacement vehicle. In such
event, the Borrower promptly shall take such actions
as may be necessary to ensure the perfection of the
Administrative Agent's Lien on such replacement
vehicle. If such Borrower fails to purchase a
replacement vehicle by such 90-day deadline, the
Administrative Agent shall make a Revolving Credit
Loan to the Borrowers in the amount of the
availability block and shall apply the proceeds of
such Loan to reduce the outstanding principal balance
of the applicable Term Loan made on the basis of such
sold motor vehicle, in accordance with Section 3.3.1
of the Loan Agreement.
8. Extension of Deadline for Establishment of Canadian Dominion
Account. Notwithstanding anything to the contrary set forth in Section 6.2.4 of
the Loan Agreement, the Borrowers shall establish a Dominion Account with Scotia
Bank, reasonably acceptable to the Administrative Agent, for the direct deposit
of payments and other remittances with respect to Accounts owed to any
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of the Borrowers by Account Debtors located in Canada no later than February 7,
2003.
9. Extension of Deadline for Direct Deposit of U.S. Accounts into
Domestic Lockbox Account. Notwithstanding anything to the contrary set forth in
Section 6.2.5 of the Loan Agreement, the Borrowers, which have caused the
Administrative Agent to achieve less than full dominion over the proceeds of
Accounts owed to the Borrowers by Account Debtors in the U.S. or Mexico, shall
provide the Administrative Agent, until the Administrative Agent advises the
Borrowers that it no longer requires such reports, with daily reports detailing
the amount of deposits and the names of the Account Debtors who have made
payments with respect to all proceeds of Accounts deposited into the Borrowers'
operating deposit account at KeyBank National Association. In addition, the
Borrowers shall cause all amounts so deposited into such operating account to be
transferred on the next business day into the Borrowers' Dominion Account for
domestic and Mexican Accounts. The Borrowers shall continue to use their best
efforts to cause all of their Account Debtors in the United States and Mexico to
remit payments on Accounts directly to the Borrowers' Dominion Account for
domestic and Mexican Accounts.
10. Extension of Deadline for Perfection of Administrative Agent's
Lien on Motor Vehicles. Notwithstanding anything to the contrary set forth in
Section 8.1.13 of the Loan Agreement, the Borrowers shall use their best efforts
to cause the Administrative Agent to have a perfected Lien on each motor vehicle
owned by the Borrowers and their Subsidiaries no later than January 31, 2003. If
despite such efforts, the Borrowers are unable to cause the Administrative Agent
to have a perfected lien on such vehicles by such deadline, the Administrative
Agent shall establish a reserve against borrowing availability under the
Borrowers' Revolving Credit Loans facility in an amount sufficient to ensure
that the Administrative Agent has full collateral security for the Term Loans.
The Administrative Agent from time to time thereafter shall reduce such reserve
as its Lien becomes perfected on additional motor vehicles of the Borrowers.
11. Perfection of Lien on Additional Freightliner Vehicles. The
Borrowers shall take all actions reasonably requested by the Administrative
Agent to ensure that the Administrative Agent has a perfected Lien on each of
the eleven (11) Freightliner vehicles of the Borrowers formerly encumbered in
favor of CitiCapital no later than February 7, 2003.
12. Monthly Statements for Xxxxxx Xxxxxxx Account. Notwithstanding
anything to the contrary set forth in Section 5.5 of the Loan Agreement, the
Borrowers shall not be required to cause Xxxxxx Xxxxxxx & Co. to execute an
acceptable securities account control agreement in favor of the Administrative
Agent or close the Borrowers' existing securities account with Xxxxxx Xxxxxxx &
Co. Instead, the Borrowers shall cause Xxxxxx Xxxxxxx & Co. to send the
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Administrative Agent a copy of each monthly statement of activity sent by Xxxxxx
Xxxxxxx to the Borrowers with respect to such account; provided, however, if
such account at any time hereafter is converted from a hedging account to a cash
account (i.e., an account with cash balances), the Borrowers promptly shall
provide the Administrative Agent with notice of such conversion and shall either
cause Xxxxxx Xxxxxxx & Co. to enter into a control agreement, reasonably
satisfactory to the Administrative Agent, with respect to such account, or close
such account and transfer the funds on deposit in such account to a new account
under the control of the Administrative Agent.
13. Negative Pledge on Jonesville Warehouse. Notwithstanding
anything to the contrary set forth in paragraph 1 of the Closing Side Letter,
CTSI shall not be required to execute and deliver to the Administrative Agent an
acceptable mortgage covering CTSI's warehouse located in Jonesville, Indiana
(the "Jonesville Warehouse"). Instead, on or before the effective date of this
Waiver and Amendment, CTSI shall execute a negative pledge in favor of the
Administrative Agent with respect to the Jonesville Warehouse, which shall be in
recordable form and otherwise reasonably satisfactory to the Administrative
Agent (the "Negative Pledge"); provided, however, if CTSI at any time hereafter
becomes permitted to grant a second mortgage lien with respect to the Jonesville
Warehouse, CTSI promptly shall execute such a mortgage in favor of the
Administrative Agent.
14. Monthly Vehicle Reconciliations. Concurrently with their
delivery of the monthly financial statements required under Section 8.1.3(c) of
the Loan Agreement, the Borrowers shall deliver to the Administrative Agent, the
Canadian Agent and each Lender a reconciliation of the Borrowers' vehicle fleet,
indicating all motor vehicle sales, purchases and accidents or other vehicle
dispositions for the preceding month and otherwise in form and substance
reasonably satisfactory to the Administrative Agent and the Lenders.
15. Periodic Vehicle Audits. The Borrowers acknowledge and agree
that the Administrative Agent shall have the right, not less frequently than
each June and December during the term of the Loan Agreement, to audit the
Borrowers' fleet of motor vehicles at the Borrowers' expense, and the Borrowers
agree to cooperate reasonably with all such audits.
16. Elimination of $100,000 Availability Reserve. On the effective
date of this Waiver and Amendment, the Administrative Agent shall remove its
current reserve against availability under the Domestic Revolving Credit Loan
facility in the amount of $100,000. The removal of such reserve by the
Administrative Agent shall not diminish the right of the Administrative Agent
under Section 1.1.4 of the Loan Agreement to impose additional availability
reserves from time to time under the Domestic Revolving Credit Loan facility in
such amounts as the Administrative Agent shall reasonably deem necessary or
appropriate.
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17. Delegation By Fleet Capital Canada Corporation of Certain
Administrative Functions To Fleet. For the administrative convenience of the
parties and to expedite required administrative action by the Canadian Agent and
the Canadian Lender, (i) Fleet Capital Canada Corporation, in its capacity as
the Canadian Lender, hereby irrevocably delegates to Fleet, in its capacity as
the Canadian Participating Lender, all rights of the Canadian Lender under
Section 11.10 of the Loan Agreement to agree to any amendment, waiver or consent
under the Loan Agreement, and (ii) Fleet Capital Canada Corporation, in its
capacity as the Canadian Agent, hereby irrevocably delegates to Fleet, in its
capacity as the Administrative Agent, all rights of the Canadian Agent (a) under
Section 6 of the Loan Agreement to administer, collect, protect and preserve the
Collateral and (b) under Section 11.10 of the Loan Agreement to agree to any
amendment, waiver or consent under the Loan Agreement.
18. Representation and Warranty Regarding Vehicle Titles. The
Borrowers hereby represent and warrant to the Administrative Agent, the Canadian
Agent and the Lenders that Schedule A attached hereto and incorporated herein by
this reference is an accurate and complete list of all motor vehicles owned by
the Borrowers.
19. Conditions Precedent. The effectiveness of this Waiver and
Amendment shall be subject to the prior satisfaction of each of the following
conditions:
(a) This Waiver and Amendment. The Administrative Agent
shall have received this Waiver and Amendment, duly
executed by the Borrowers, the Lenders, the Canadian
Participating Lenders, the Administrative Agent and
the Canadian Agent;
(b) Commitment Assignments. The Administrative Agent
shall have received Commitment Assignment and
Acceptances, duly executed by LaSalle and Fleet
Capital Corporation and in form and substance
reasonably satisfactory to the Administrative Agent,
with respect to the assignments described in Recital
D and Section 3 to this Waiver and Amendment;
(c) Assignment Fee. The Administrative Agent shall have
received payment from LaSalle of the $3,500
commitment assignment fee payable under Section
11.9.1 of the Loan Agreement for the commitment
assignment by LaSalle referred to in Section 3 above;
(d) New Notes. The Borrowers shall have executed and
delivered to the Administrative Agent, for delivery
to Fleet
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and LaSalle, such promissory notes as Fleet and
LaSalle may reasonably require to evidence their
commitment assignments described in Recital D and
Section 3 to this Waiver and Amendment;
(e) Pay Down of Canadian Term Loan. The Borrowers shall
have made a prepayment of principal on the Canadian
Term Loan in an amount of not less than $361,000 or
delivered to the Administrative Agent additional
collateral satisfactory to the Administrative Agent;
(f) Secretary's Certificate. The Secretary of each of the
Borrowers shall have executed the Certificate of
Resolution attached to this Amendment; and
(g) Negative Pledge. The Administrative Agent shall have
received the Negative Pledge, duly executed by CTSI.
20. 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
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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 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 and the Canadian 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 and the Canadian 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
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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 ARISING IN CONNECTION
WITH THIS WAIVER AND AMENDMENT.
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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, a
Lender, and as a Canadian Participating
Lender
By: /s/Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Senior Vice President
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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/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
FLEET CAPITAL CANADA CORPORATION,
a Canadian corporation, as Canadian Agent
and Canadian Lender
By: /s/ Xxxx XxXxxxxx
----------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President & General Manager
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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 Waiver and
First 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.
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 January 31, 2003.
/s/ Xxxx Will
Xxxx Will
Secretary of Celadon Group, Inc.
Celadon Trucking Services, Inc.,
TruckersB2B, Inc., and
Celadon Canada, Inc.
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