SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.23
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO CREDIT
AGREEMENT ("Second
Amendment") is made as of
the 30th day
of June, 2007, 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 (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
11
NEGATIVE
COVENANTS
Section
11.1. Debt. Section
11.1 of the Agreement is hereby
amended by substituting the following new Section 11.1(b) in lieu of the
existing Section 11.1(b):
(b)
Debt secured by Liens permitted by Section
11.2(d), and
extensions, renewals and refinancings thereof; provided
that
the aggregate amount of all such Debt at any time
outstanding shall not exceed $80,000,000;
PART
II. 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 Second Amendment; provided,
however, in the event of any irreconcilable inconsistency, this Second Amendment
shall control;
(b) The
representations and warranties
contained in the Agreement shall survive this Second Amendment in their original
form as continuing representations and warranties of Borrowers;
and
(c)
Capitalized terms used in this
Second Amendment, and not specifically herein defined, shall have the meanings
ascribed to them in the Agreement.
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
Second Amendment, there does not exist any Event of Default or Unmatured Event
of Default; and
(dd) After
giving effect to this Second
Amendment and any transactions contemplated hereby, no Event of Default or
Unmatured Event of Default is or will be occasioned hereby or
thereby.
PART
III. CONDITIONS
PRECEDENT
Notwithstanding
anything contained in
this Second Amendment to the contrary, the Lenders shall have no obligation
under this Second 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
Second Amendment, duly executed by the Borrowers, the Agent and the Required
Lenders in the form approved by the Agent;
(ii) 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;
(iii) A
Reaffirmation of
Guaranty, in the form prescribed by the Agent, duly executed by the
Guarantors;
(c)
All legal matters incident to
this
Second 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 Second 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 Second
Amendment.
[THIS
SPACE INTENTIONALLY LEFT
BLANK]
IN
WITNESS WHEREOF, the Borrowers, the
Agent and the Lenders have caused this Second 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.
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By:
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/s/ Xxxx Will | |
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Title:
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Treasurer | |
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CELADON
TRUCKING SERVICES,
INC.
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By:
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/s/ Xxxxx X. Xxxx | |
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Title:
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Treasurer | |
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TRUCKERSB2B,
INC.
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By:
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/s/ Xxxxx X. Xxxx | |
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Title:
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Treasurer | |
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CELADON
LOGISTICS SERVICES,
INC.
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By:
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/s/ Xxxxx X. Xxxx | |
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Title:
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Treasurer | |
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LASALLE
BANK NATIONAL ASSOCIATION,
as Administrative Agent, as Swing Line Lender, as Issuing Lender
and as a
Lender
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By:
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/s/ Xxxxx Xxxxxx |
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Title:
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Senior Vice President |
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FIFTH
THIRD BANK, a
Lender
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By:
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/s/ Xxxxx X'Xxxx |
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Title:
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Vice President |
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JPMORGAN
CHASE BANK, N.A., a
Lender
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By:
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/s/ Xxxxx Xxxxxxxx |
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Title:
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Vice President |
