THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.24
THIRD
AMENDMENT TO
THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (“Third Amendment”) is made as
of the 22nd day of January, 2008, among CELADON GROUP, INC., CELADON TRUCKING
SERVICES, INC., TRUCKERSB2B, INC., and CELADON LOGISTICS SERVICES, INC.
(collectively, the “Borrowers”), the financial
institutions that are parties hereto (the “Lenders”) and LASALLE BANK
NATIONAL ASSOCIATION (in its individual capacity, “LaSalle”), as Administrative
Agent for the Lenders, and as Swing Line Lender and Issuing Lender.
WITNESSETH:
WHEREAS,
as of September 26, 2005, the parties hereto entered into a certain Credit
Agreement, as amended December 23, 2005 and June 30, 2007 (as amended, the
“Agreement”);
and
WHEREAS,
the parties desire to further amend the Agreement as herein
provided;
Now,
THEREFORE, in consideration of the premises, and the mutual promises herein
contained, the parties agree that the Agreement shall be, and it hereby is,
amended as provided herein and the parties further agree as
follows:
PART I. AMENDATORY
PROVISIONS
SECTION
1
DEFINITIONS
Section
1.1. Definitions.
(a) Section
1.1 of the Agreement is hereby amended by substituting the following new
definitions in lieu of the existing like definitions:
“Revolving Commitment”
means $70,000,000, as reduced from time to time pursuant to Section 6.1 or
increased from time to time pursuant to Section 6.4, and
means, as to any Lender, such Lender’s commitment to make Revolving Loans, and
to issue or participate in Letters of Credit, under this Agreement as set forth
on Annex
A.
“Termination Date”
means the earlier to occur of (a) January 22, 2013 or (b) such other date on
which the Commitments terminate pursuant to Section 6 or Section
13.
1
SECTION
6
REDUCTION OR TERMINATION OF
THE REVOLVING COMMITMENT; PREPAYMENTS; INCREASE IN
REVOLVING COMMITMENT.
6.4 Increase in Revolving Commitment.
Section 6.4 of the Agreement is hereby amended by substituting the
following new paragraph (iii) within Section 6.4 in lieu of the existing
paragraph (iii):
(iii) the
Revolving Commitment shall at no time exceed $90,000,000,
Section 6
of the Agreement is hereby amended by adding a new Section 6.5 thereto as
follows:
6.5 Mandatory
Prepayments.
The
Borrowers shall make a prepayment of the Revolving Loans in a minimum amount of
$250,000 or a higher integral multiple of $10,000 upon a Loan Party’s receipt of
any proceeds from the sale or disposition of any trucks, truck-tractors,
trailers or semi-trailers, net of commissions and net of other reasonable and
customary transaction costs, fees and expenses attributable to such sale or
disposition. Any prepayment of a LIBOR Loan on a day other than the last day of
an Interest Period therefor shall include interest on the principal amount being
repaid and shall be subject to Section 8.4.
PART II. ANNEX A
The
Agreement is hereby amended by substituting Annex A to this Third Amendment in
lieu of Annex A to the Agreement.
PART III. CONTINUING
EFFECT
Except as
expressly modified herein:
(a) All
terms, conditions, representations, warranties and covenants contained in the
Agreement shall remain the same and shall continue in full force and effect,
interpreted, wherever possible, in a manner consistent with this Third
Amendment; provided, however,
in the event of any irreconcilable inconsistency, this Third Amendment
shall control;
(b) The
representations and warranties contained in the Agreement shall survive this
Third Amendment in their original form as continuing representations and
warranties of Borrowers; and
(c) Capitalized
terms used in this Third Amendment, and not specifically herein defined, shall
have the meanings ascribed to them in the Agreement.
2
In
consideration hereof, each Borrower represents, warrants, covenants and agrees
that:
(aa) Each
representation and warranty set forth in the Agreement, as hereby amended,
remains true and correct as of the date hereof in all material respects, except
to the extent that such representation and warranty is expressly intended to
apply solely to an earlier date and except changes reflecting transactions
permitted by the Agreement;
(bb) There
currently exist no offsets, counterclaims or defenses to the performance of the
Obligations (such offsets, counterclaims or defenses, if any, being hereby
expressly waived);
(cc) Except
as expressly waived in this Third Amendment, there does not exist any Event of
Default or Unmatured Event of Default; and
(dd) After
giving effect to this Third Amendment and any transactions contemplated hereby,
no Event of Default or Unmatured Event of Default is or will be occasioned
hereby or thereby.
PART IV. CONDITIONS
PRECEDENT
Notwithstanding
anything contained in this Third Amendment to the contrary, the Lenders shall
have no obligation under this Third Amendment until each of the following
conditions precedent have been fulfilled to the satisfaction of the
Lenders:
(a) Each
of the conditions set forth in Section 12.2 of the Agreement shall have been
satisfied;
(b) The
Agent shall have received each of the following, in form and substance
satisfactory to the Agent:
(i) This
Third Amendment, duly executed by the Borrowers, the Agent and the Lenders in
the form approved by the Agent;
(ii) Replacement
Notes payable to each of the Lenders, duly executed by the Borrowers in the form
prescribed by the Agent;
(iii) A
duly executed certificate of the Secretary or any Assistant Secretary of each
Borrower (A) certifying as to attached copies of resolutions of such Borrower
authorizing the execution, delivery and performance, respectively, of the
documents referenced in the immediately preceding subparagraph, and (B)
certifying as complete and correct as to attached copies of the Articles of
Incorporation and By-Laws, or certifying that such Articles of Incorporation or
By-Laws, have not been amended (except as shown) since the previous delivery
thereof to the Lenders;
(iv) A
Reaffirmation of Guaranty, in the form prescribed by the Agent, duly executed by
the Guarantors;
3
(v) An
opinion of the Borrowers’ counsel, in form and substance acceptable to the
Agent;
(c) All
legal matters incident to this Third Amendment shall be reasonably satisfactory
to the Lenders and their counsel.
PART IV. INDEPENDENT CREDIT
DECISION
Each
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender, based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Third Amendment.
PART
V. EXPENSES
The
Borrowers agree to pay or reimburse the Agent for all reasonable expenses of the
Agent (including, without limitation, reasonable attorneys’ fees) incurred in
connection with this Third Amendment.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the
Borrowers, the Agent and the Lenders have caused this Third Amendment to be
executed by their respective officers duly authorized as of the date first above
written.
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“BORROWERS”
|
||
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CELADON
GROUP, INC.
|
||
|
By:
|
/s/ Xxxx Will | |
|
Title:
|
Treasurer | |
|
CELADON
TRUCKING SERVICES, INC.
|
||
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By:
|
/s/ Xxxxx Xxxx | |
|
Title:
|
Treasurer | |
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TRUCKERSB2B,
INC.
|
||
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By:
|
/s/ Xxxxx Xxxx | |
|
Title:
|
Treasurer | |
|
CELADON
LOGISTICS SERVICES, INC.
|
||
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By:
|
/s/ Xxxxx Xxxx | |
|
Title:
|
Treasurer | |
5
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LASALLE BANK NATIONAL
ASSOCIATION, as Administrative Agent, as Swing Line Lender, as
Issuing Lender and as a Lender
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Title:
|
Senior Vice President | |
6
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FIFTH THIRD BANK, a
Lender
|
||
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By:
|
/s/ Xxxxx X'Xxxx | |
|
Title:
|
Vice President | |
7
|
JPMORGAN CHASE BANK,
N.A.,
a
Lender
|
||
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By:
|
/s/ Xxxxx Xxxxxxxx | |
|
Title:
|
Vice President | |
8
ANNEX
A
LENDERS
AND PRO RATA SHARES
|
Lender
|
Revolving
Commitment
Amount
|
Pro
Rata
Share*/
|
|
LaSalle
Bank
National
Association
|
$31,500,000**
|
45.000000000%
|
|
Fifth
Third Bank
(Central
Indiana)
|
$21,000,000
|
30.000000000%
|
|
JPMorgan
Chase
Bank,
N.A.
|
$17,500,000
|
25.000000000%
|
|
TOTALS
|
$70,000,000
|
100%
|
|
*/
|
Carry
out to nine decimal places.
|
|
**/
|
Includes
Swing Line Commitment Amount of
$5,000,000.
|
9
