FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.21
FIRST
AMENDMENT TO
This
First Amendment to Credit Agreement ("First
Amendment") is
made
as of the 23rd day of December, 2005, among Celadon
Group, Inc., Celadon Trucking Services, Inc., Truckersb2b, Inc., Celadon
Logistics Services, Inc. ("Celadon
Logistics"), the
financial institutions that are or may from time to time become parties hereto
(together with their respective successors and assigns, 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 (other than Celadon Logistics) entered
into a certain Credit Agreement (the "Agreement");
Whereas,
Celadon
Logistics has recently been formed as a Wholly-Owned Subsidiary of Celadon
Trucking Services, Inc.;
Whereas,
the
parties hereto desire that Celadon Logistics become a borrower under the
Commitment established under and pursuant to the Agreement; and
Whereas,
the
parties desire to 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 agrees as follows:
PART
I.
AMENDATORY
PROVISIONS
SECTION
I
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:
Borrower
means
any and each of the Company, Celadon Trucking Services, Inc., TruckersB2B,
Inc.
and Celadon Logistics Services, Inc.
Borrowers
means,
jointly and severally, the Company, Celadon Trucking Services, Inc.,
TruckersB2B, Inc. and Celadon Logistics Services, Inc.
Tangible
Net Worth
of any
Person means an amount equal to: (a) Net Worth of such Person; less (b) the
sum
of goodwill, patents, trademarks and other assets that would be classified
as
intangible assets in accordance with GAAP.
SECTION
10
AFFIRMATIVE
COVENANTS
Section
10.1. Reports,
Certificates and Other Information. Section
10.1 of the Agreement is hereby amended by substituting the following new
Sections 10.1.1 and 10.1.2 in lieu of the existing Sections 10.1.1 and
10.1.2:
10.1.1
Annual
Report.
Promptly
when available and in any event within 90 days after the close of each Fiscal
Year: (a) a copy of the annual audit report of the Company and its Subsidiaries
for such Fiscal Year, including therein consolidated balance sheets and
statements of earnings and cash flows of the Company and its Subsidiaries as
at
the end of such Fiscal Year, certified without adverse reference to going
concern value and without qualification by independent auditors of recognized
standing selected by the Company and reasonably acceptable to the Administrative
Agent; and (b) a consolidating balance sheet of the Company and its Subsidiaries
as of the end of such Fiscal Year and consolidating statement of earnings for
the Company and its Subsidiaries for such Fiscal Year, certified by a Senior
Officer of the Company.
10.1.2
Interim
Reports.
Promptly
when available and in any event within 45 days after the end of each Fiscal
Quarter (except the last Fiscal Quarter of each Fiscal Year), consolidated
and
consolidating balance sheets of the Company and its Subsidiaries as of the
end
of such Fiscal Quarter, together with consolidated and consolidating statements
of earnings and consolidated cash flows for such Fiscal Quarter and for the
period beginning with the first day of such Fiscal Year and ending on the last
day of such Fiscal Quarter, certified by a Senior Officer of the
Company.
PART
II.
PROVISIONS
APPLICABLE TO CELADON LOGISTICS
As
of the
date of this First Amendment, all of the provisions of the Agreement shall
be
applicable to, and binding upon, Celadon Logistics to the same extent such
provisions are applicable to, and/or binding upon, the other
Borrowers.
PART
III.
EXHIBITS
AND SCHEDULES
The
Agreement is hereby amended by (a) substituting Exhibit
A to
this
First Amendment in lieu of Exhibit A
to the
Agreement, and (b) by substituting Schedule
9.8 (Subsidiaries)
to this First Amendment in lieu of Schedule
9.8 to
the
Agreement.
PART
IV. 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 First
Amendment; provided,
however, in
the
event of any irreconcilable inconsistency, this First Amendment shall
control;
(b)
The
representations and warranties contained in the Agreement shall survive this
First Amendment in their original form as continuing representations and
warranties of Borrowers; and
(c)
Capitalized
terms used in this First 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 First Amendment, there does not exist any Event of
Default or Unmatured Event of Default; and
(dd) After
giving effect to this First Amendment and any transactions contemplated hereby,
no Event of Default or Unmatured Event of Default is or will be occasioned
hereby or thereby.
PART
V. CONDITIONS
PRECEDENT
Notwithstanding
anything contained in this First Amendment to the contrary, the Lenders shall
have no obligation under this First 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 Lenders:
(i)
This
First Amendment, the Replacement Notes, and such other instruments, documents
and opinions as the Lenders shall reasonably require, all duly executed by
the
parties thereto in the forms 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;
(iv)
A
favorable written opinion of counsel to Celadon Logistics, in form and scope
acceptable to the Lenders;
(c) All
reasonable expenses of the Agent (including, without limitation, reasonable
attorneys' fees), shall have been reimbursed by Borrowers;
(d) All
legal
matters incident to this First Amendment shall be reasonably satisfactory to
the
Lenders and their counsel.
PART
VI. 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
First Amendment.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
Borrowers, the Agent and the Lenders have caused this First 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 X. Xxxxxx
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Title:
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Senior
Vice President
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FIFTH
THIRD BANK (CENTRAL INDIANA),
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 X. Xxxxxxx
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Title:
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Senior
Vice President
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FIRST
AMENDMENT TO CREDIT
AGREEMENT PAGE
8
