EXHIBIT 10.23
THIRD AMENDMENT
THIRD AMENDMENT, dated as of May 11, 2000 (this "Amendment"),
to the Credit Agreement, dated as of August 11, 1999 (as amended, supplemented
or otherwise modified prior to the date hereof, the "Existing Credit Agreement";
as modified hereby and as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among CELADON GROUP, INC., a
Delaware corporation ("Group") and CELADON TRUCKING SERVICES, INC., a New Jersey
corporation ("Trucking"; together with Group, each a "Borrower", collectively,
the "Borrowers") the banks and other financial institutions parties thereto (the
"Lenders"), and ING (U.S.) CAPITAL LLC, as administrative agent (the
"Administrative Agent") and arranger for the Lenders.
RECITALS
The Borrowers have requested that the Administrative Agent and
the Lenders agree to amend certain provisions of the Credit Agreement as set
forth in this Amendment. The Administrative Agent and the Lenders parties hereto
are willing to agree to such amendments, but only on the terms and subject to
the conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrowers, the Administrative Agent and the Lenders hereby
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
2. Amendments.
(a) Section 1.1 of the Existing Credit Agreement is
hereby amended by adding the following language to the end of
the definitions of (i) "Consolidated EBIT", (ii) "Consolidated
EBITDA", (iii) "Consolidated EBITDAR", (iv) "Consolidated
Fixed Charges", (v) "Consolidated Funded Debt", (vi)
"Consolidated Funded Obligations", (vii) "Consolidated
Interest Expense", (viii) "Consolidated Net Income" and (ix)
"Consolidated Tangible Net Worth":
"Notwithstanding the foregoing, all amounts
relating to TruckersB2B.com, Inc. shall be excluded from all
calculations for purposes of this definition."
67
(b) Section 9.1 of the Existing Credit Agreement is
hereby amended in the following manner:
(c) deleting the chart in Section 9.1(a) (Adjusted
Leverage Ratio) in its entirety and substituting in lieu
thereof the following chart:
----------------------------------------------------------------------------------
TEST PERIOD RATIO
----------------------------------------------------------------------------------
Closing Date to December 31, 1999 4.25
----------------------------------------------------------------------------------
January 1, 2000 to June 30, 2000 4.60
----------------------------------------------------------------------------------
July 1, 2000 to September 30, 2000 4.55
----------------------------------------------------------------------------------
October 1, 2000 to December 31, 2000 4.40
----------------------------------------------------------------------------------
January 1, 2001 to March 31, 2001 4.00
----------------------------------------------------------------------------------
April 1, 2001 to June 30, 2002 3.75
----------------------------------------------------------------------------------
July 1, 2002 to March 31, 2004 3.50
----------------------------------------------------------------------------------
Thereafter 3.25
----------------------------------------------------------------------------------
(d) deleting the chart in Section 9.1(b) (Interest
Coverage) in its entirety and substituting in lieu thereof the
following chart:
----------------------------------------------------------------------------------
TEST PERIOD RATIO
----------------------------------------------------------------------------------
Closing Date to December 31, 1999 1.75
----------------------------------------------------------------------------------
January 1, 2000 to March 31, 2000 1.75
----------------------------------------------------------------------------------
April 1, 2000 to September 30, 2000 1.40
----------------------------------------------------------------------------------
October 1, 2000 to December 31, 2000 1.50
----------------------------------------------------------------------------------
January 1, 2001 to March 31, 2001 2.00
----------------------------------------------------------------------------------
April 1, 2001 to March 31, 2003 2.25
----------------------------------------------------------------------------------
Thereafter 2.50
----------------------------------------------------------------------------------
(e) deleting the chart in Section 9.1(c) (Minimum
Fixed Charge Coverage) in its entirety and substituting in
lieu thereof the following chart:
------------------------------------------------------------------------------------
TEST PERIOD RATIO
------------------------------------------------------------------------------------
Closing Date to December 31, 1999 1.15
------------------------------------------------------------------------------------
January 1, 2000 to June 30, 2000 1.00
------------------------------------------------------------------------------------
July 1, 2000 to December 31, 2000 1.05
------------------------------------------------------------------------------------
January 1, 2001 to March 31, 2001 1.15
------------------------------------------------------------------------------------
Thereafter 1.20
------------------------------------------------------------------------------------
3. Amendment Fee. On or prior to the effective date of this
Amendment, the Borrower shall pay to the Administrative Agent, for the benefit
of each Lender, an amendment fee (the "Amendment Fee") equal to .09% of the sum
of such Lender's (i) Revolving Credit
68
Commitment as of the date hereof plus (ii) outstanding principal balance of
such Lender's Term Loans as of the date hereof.
4. Release of TruckersB2B.com, Inc. upon Initial Public
Offering. In connection with the consummation of an initial public offering
(the "IPO") of TruckersB2B.com, the Administrative Agent and each Lender
agree to execute all releases from the Guarantee, Security Agreement and
all other documents evidencing a lien or obligations of TruckersB2B.com, Inc.
as reasonably requested by the Borrowers to facilitate the IPO.
5. Effectiveness. This Amendment shall become effective upon
the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received
evidence satisfactory to the Administrative Agent that this
Amendment has been duly executed and delivered by the
Borrowers, the Lenders and each of the Guarantors;
(b) the Administrative Agent shall have received the
Amendment Fee.
(c) the Administrative Agent shall have received the
Supplement to Guarantee relating to Celadon E-Commerce, Inc.
and TruckersB2B.com, Inc.;
(d) the Administrative Agent shall have received the
Supplement to Security Agreement relating to Celadon
E-Commerce, Inc. and TruckersB2B.com, Inc.;
(e) the Administrative Agent shall have received the
Supplement to Pledge Agreement relating to Celadon E-Commerce,
Inc. and TruckersB2B.com, Inc.;
(f) the Administrative Agent shall have received
original stock certificates and stock powers executed in blank
relating to Celadon E-Commerce, Inc. and TruckersB2B.com,
Inc.;
(g) the Administrative Agent shall have received
UCC-1 Financing Statements relating to Celadon E-Commerce,
Inc. and TruckersB2B.com, Inc.;
(h) the Administrative Agent shall have received
Closing Certificates for Celadon E-Commerce, Inc. and
TruckersB2B.com, Inc.; and
(i) the Administrative Agent shall have received any
other documents relating hereto that shall be reasonably
requested by the Agent.
6. Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Amendment, the Borrowers
hereby represent and warrant to the Administrative Agent and the Lenders that,
after giving effect to the amendments provided for herein, the representations
and warranties contained in the Credit Agreement, as updated by the schedules
attached hereto, and the other Loan Documents will be true and correct in all
material respects as if made on and as of the date hereof and that no Default or
Event of Default will have occurred and be continuing.
69
7. No Other Amendments. Except as expressly amended or
consented to hereby, the Credit Agreement, the Notes and the other Loan
Documents shall remain in full force and effect in accordance with their
respective terms, without any consent, amendment, waiver or modification of any
provision thereof.
8. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. Expenses. The Borrowers agree to pay and reimburse the
Administrative Agent for all of the reasonable and documented out-of-pocket
costs and expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the fees and disbursements of Cadwalader, Wickersham & Taft, counsel
to the Agent.
10. Applicable Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the state of New York.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
70
CELADON GROUP, INC.
By: /s/Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
CELADON TRUCKING SERVICES, INC.
By: /s/Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
ING (U.S.) CAPITAL LLC,
as Administrative Agent and as a Lender
By: /s/William B. Redmond
--------------------------
Name: William B. Redmond
Title: Vice President
71
The undersigned Lenders hereby consent and agree to the
foregoing Amendment:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Joseph H. Rohs
---------------------
Name: Joseph H. Rohs
Title: Vice President
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Thomas E. Roberts
-------------------------
Name: Thomas E. Roberts
Title: Vice President
UNION PLANTERS BANK, N.A.,
as a Lender
By: /s/ David O'Neal
-------------------
Name: David O'Neal
Title: Vice President
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Candelario Martinez
--------------------------
Name: Candelario Martinez
Title: Vice President
FIFTH THIRD BANK, INDIANA,
as a Lender
By: /s/ Thomas C. Witt
---------------------
Name: Thomas C. Witt
Title: Vice President
72
The undersigned guarantors hereby consent and agree to the
foregoing Amendment:
CELADON TRUCKING SERVICES OF
INDIANA, INC.
By: /s/ Paul A. Will
--------------------
Name: Paul A. Will
Title: Secretary
CELADON TRANSPORTATION, LLP
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
CHEETAH BROKERAGE CO.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
CHEETAH TRANSPORTATION CO.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
INTERNATIONAL FREIGHT HOLDING CORP.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
73
JML FREIGHT FORWARDING, INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
RIL GROUP, LTD.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
RIL INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
WELLINGMUFT HOLDING CO.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
CELADON LOGISTICS, INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
74
RANDY EXPRESS, LTD.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
RIL ACQUISITION CORP.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
75
CELADON JACKY MAEDER CO.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
ZIPP EXPRESS, INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
CELADON E-COMMERCE, INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
TRUCKERSB2B.COM, INC.
By: /s/ Paul A. Will
-------------------
Name: Paul A. Will
Title: Secretary
76