EXHIBIT 10.52
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of December
16, 1997 (this "Amendment") by and among CELADON GROUP, INC., a Delaware
corporation ("CG"), CELADON TRUCKING SERVICES, INC., a New Jersey corporation
("Trucking") (collectively with CG, referred to as the "Companies" and
individually, each a "Company"), the Banks set forth on the signature pages of
the Credit Agreement referred to below (collectively, the "Banks" and
individually, each a "Bank") and NBD BANK, N.A., a national banking association,
assignee of NBD Bank, as co-agent for the Banks ("Co-Agent A").
RECITALS
A. CG, Trucking, the Banks and the Co-Agents are parties to a
Credit Agreement dated as of June 1, 1994, as amended by a First Amendment to
Credit Agreement dated as of October 31, 1994, a Second Amendment to Credit
Agreement dated as of October 31, 1995, letter agreements dated January 31,
1996, February 15, 1996 and June 29, 1996, a Third Amendment to Credit Agreement
dated as of September 13, 1996, letter agreements dated as of November 25, 1996
and December 18, 1996, a Fourth Amendment to Credit Agreement dated as of March
24, 1997, a Fifth Amendment to Credit Agreement dated as of June 30, 1997 and a
Sixth Amendment to Credit Agreement dated as of August 28, 1997 (as amended, the
"Credit Agreement").
B. Simultaneously with the execution and delivery of this
Amendment, BankBoston, N.A., a Bank and Co-Agent B under the Credit Agreement,
will be assigning all of its interests in the Credit Agreement to the Banks set
forth on the signature pages hereof and resigning as Co-Agent B under the Credit
Agreement pursuant to an Assignment and Acceptance dated as of the date hereof
executed by the Companies, the Co-Agent A, the Banks and BankBoston, N.A, as a
Bank and as Co-Agent B (the "Assignment"). The Companies have requested that the
Co-Agent A and the Banks make certain amendments to the Credit Agreement to,
among other things, reflect such assignment and resignation, and the Co-Agent A
and the Banks are willing to do so strictly in accordance with the terms hereof,
and provided the Credit Agreement is amended as set forth herein, and the
Companies have agreed to such amendments.
AGREEMENT
Based upon these recitals, the parties agree as follows:
1. Upon satisfaction of the conditions set forth in paragraph 4
hereof, the Credit Agreement shall hereby be amended as of the effective date
hereof as follows:
(a) Any and all references to "Co-Agent A" or "Co-Agents"
shall be deleted and replaced with the term "Agent" which shall be defined
as set forth below and any and all references to "Co-Agent B" shall be
deleted:
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"Agent" shall mean NBD Bank, N.A., a national banking
association, together with its successors and
assigns.
(b) The definition of "Indebtedness" in Section 1.1 shall be
amended by adding the following language at the end thereof: "provided, however,
that in calculating "Indebtedness" in connection with the covenants set forth in
Sections 5.2(b), (c) and (d), an amount shall be deducted from the aggregate
amount of such Indebtedness equal to the balance of the Investment Account at
the time of such calculation".
(c) New definitions of "Bank Indebtedness", "Investment Account",
and "Swaps" shall be added to Section 1.1 in appropriate alphabetical order as
follows:
"Bank Indebtedness" shall mean (a) the Advances and
all other indebtedness, obligations and liabilities
of the Companies to the Agent or any Bank under any
Loan Document and (b) all indebtedness, obligations
and liabilities of any Company to any Bank in respect
of Swaps.
"Investment Account" shall mean the account known as
the Celadon Repo Transfer Account maintained by CG
with NBD Bank, N.A.
"Swaps" shall mean any interest rate or currency
swaps, rate caps, commodity swaps or similar
transactions, provided that such transactions are
entered into by any Company or any of its
Subsidiaries to protect against fluctuations in
interest rates on Indebtedness of the Company and its
Subsidiaries or in exchange rates, and not for
speculative purposes.
(d) The definition of "Required Banks" shall be amended by
deleting the references set forth therein to "51%" and inserting "65%" in place
thereof.
(e) Section 5.2(a) shall be deleted in its entirety and the
following shall be inserted in place thereof:
(a) Tangible Net Worth. Permit or suffer the
Consolidated Tangible Net Worth of the Companies and
their Subsidiaries at any time to be less than an
amount equal to the sum of (A) $32,500,000,
commencing on September 30, 1997, plus (B) an amount
equal to 50% of the Consolidated Cumulative Net
Income (without reduction for net loss) of the
Companies and their Subsidiaries, to be added as of
the end of each fiscal quarter of the Company
commencing with the fiscal quarter ending December
31, 1997 plus (C) an amount equal to 80% of the
proceeds received in connection with the offering of
any securities of any Company, other than any
proceeds received by any Company in connection with
the exercise of stock options so long as the
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stock delivered by any Company in connection with the
exercise of such option is not newly issued stock of
such Company.
(f) Section 5.2(j) shall be amended by adding the following
language at the end thereof: "provided, further, that if no Default or Event of
Default shall exist or shall have occurred and be continuing, CG may repurchase
capital stock of CG on the open market in an aggregate amount not to exceed the
sum of $1,000,000 plus any repurchases by CG of CG capital stock for the purpose
of providing for the exercise of stock options".
(g) A new Section 6.3 shall be added at the end of Article VI to
read as follows:
6.3 Distribution of Proceeds of Collateral. All
proceeds of any realization on the collateral
pursuant to the Security Documents and any payments
received by the Agent subsequent to and during the
continuance of any Event of Default, shall be
allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs
and expenses, including without limitation all
reasonable attorneys' fees, of the Agent in
connection with the enforcement of the Security
Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees required
to be paid under any Loan Document or any document or
agreement executed in connection with the Swaps,
including commitment fees, owing to the Banks and
Agent pursuant to the Bank Indebtedness on a pro rata
basis in accordance with the Bank Indebtedness
consisting of fees owing to the Banks and Agent under
the Bank Indebtedness, for application to payment of
such liabilities;
(c) Third, to the Banks and Agent on a pro rata
basis in accordance with the Bank Indebtedness
consisting of interest owing to the Banks and Agent
under the Bank Indebtedness, and obligations and
liabilities relating to Swaps owing to the Banks and
the Agent under the Bank Indebtedness for application
to payment of such liabilities;
(d) Fourth, to the Banks and the Agent on a pro
rata basis in accordance with the Bank Indebtedness
consisting of principal (including without limitation
any cash collateral for any outstanding letters of
credit), for application to payment of such
liabilities;
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(e) Fifth, to the payment of any and all other
amounts owing to the Banks and the Agent on a pro
rata basis in accordance with the total amount of
such Indebtedness owing to each of the Banks and the
Agent, for application to payment of such
liabilities; and
(f) Sixth, to the Companies, their Subsidiaries
or such other Person as may be legally entitled
thereto.
(h) In connection with the Assignment, the
"Commitment Amount" and "Percentage of Total
Commitments" set forth on the signature pages next to
the name of each Bank shall be deleted and the
following shall be inserted in place thereof:
Commitment Amount Percentage of
Total Commitments
----------------- -------------------
NBD Bank, N.A. $17,500,000 58.3%
KeyBank National
Association $12,500,000 41.7%
A. Total Commitment Amount of all Banks $30,000,000
B.
2. From and after the effective date of this Amendment,
references to the "Credit Agreement" in the Credit Agreement, the Revolving
Credit Notes, the Term Notes, the Security Documents and all other documents
executed pursuant to the Credit Agreement shall be deemed references to the
Credit Agreement as amended hereby.
3. Each Company represents and warrants to the Co-Agent A and
the Banks that:
(a) (i) The execution, delivery and performance of this Amendment
by the Company and all agreements and documents delivered pursuant hereto by the
Company have been duly authorized by all necessary corporate action and do not
and will not require any consent or approval of its stockholders, violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to it or
of its articles of incorporation or bylaws, or result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which the Company is a party or by which
it or its properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption of or filing a registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary to the valid execution, delivery or
performance by the Company of this Amendment and all agreements and documents
delivered pursuant hereto and (iii) this Amendment and all agreements and
documents delivered pursuant hereto by the Company are the legal, valid and
binding obligations of the Company enforceable against it in accordance with the
terms thereof.
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(b) After giving effect to the amendments contained herein and
effected pursuant hereto, the representations and warranties contained in
Article IV of the Credit Agreement are true and correct on and as of the
effective date hereof with the same force and effect as if made on and as of
such effective date.
(c) No Event of Default (as defined in Article VI of the Credit
Agreement) and no Default shall have occurred and be continuing or will exist
under the Credit Agreement as of the effective date hereof.
4. This Amendment shall not become effective until:
(a) The Assignment shall have been executed by all parties
thereto and delivered to the Co-Agent A;
(b) The Companies shall have executed and delivered Revolving
Credit Notes to the Banks reflecting the Commitment Amounts set forth in the
Assignment; and
(c) The Companies shall have executed and delivered the First
Amendment to Security Agreement and such other documents and agreements as the
Agent or any Bank may reasonably request.
5. Each Company agrees to pay and save Co-Agent A harmless from
liability for the payment of all costs and expenses arising in connection with
this Amendment, including the reasonable fees and expenses of Dickinson, Wright,
Moon, Van Dusen & Freeman, counsel to Co-Agent A, in connection with the
preparation and review of this Amendment, the Assignment and any related
documents.
6. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. Except as
expressly contemplated hereby, the Credit Agreement, and all related notes,
guaranties, certificates, instruments and other documents, are hereby ratified
and confirmed and shall remain in full force and effect, and each Company
acknowledges that it has no defense, offset or counterclaim thereunder.
7. This Amendment shall be governed by and construed in
accordance with the laws of the State of Michigan.
8. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument and any
of the parties hereto may execute this Amendment by signing any such
counterpart.
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.
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CELADON GROUP, INC.
By: /s/ Don S. Snyder
----------------------------
Its: EVP - Chief Financial Officer
---------------------------------
CELADON TRUCKING SERVICES, INC.
By: /s/ Don S. Snyder
----------------------------
Its: EVP - Chief Financial Officer
---------------------------------
NBD BANK, N.A., assignee of NBD Bank, individually
and as Co-Agent A
By: /s/ Scott Morrison
----------------------------
Its: Vice President
-------------------------
KEYBANK, NATIONAL ASSOCIATION
By: /s/ J. H. Rohs
--------------------------
Its: Vice President
-------------------------
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