EXHIBIT 10.28
SEVENTH AMENDMENT AND WAIVER AGREEMENT
SEVENTH AMENDMENT AND WAIVER AGREEMENT, dated as of September 14, 2001
(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 and waive 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 and waivers, 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. Amendment. Section 1.1 of the Existing Credit Agreement is hereby
amended by deleting the proviso at the end of the first sentence of the
definition of "Consolidated EBITDA" and substituting in lieu thereof the
following new proviso to read in its entirety as follows:
"provided, that Consolidated EBITDA shall in any event
exclude, from and after the Closing Date, (x) the effect of
any write-up of any assets acquired in the Zipp Acquisition or
any other permitted acquisitions, (y) the amount of any
non-cash income recognized during any period for which
Consolidated EBITDA is determined, and (z) the $3,692,000
extraordinary non-cash loss incurred in conjunction with the
sale of Cheetah Transportation Co."
3. Waivers. Each of the Administrative Agent and the Lenders hereby
waive any Default or Events of Default resulting from the Borrowers' failure to
comply with (a) Section 9.1(b)(ii) (Interest Coverage) and (b) Section
9.1(c)(ii) (Minimum Fixed Charge Coverage) of the Existing Credit Agreement for
the fiscal quarter ended June 30, 2001; provided,
however, that the actual results for such fiscal quarter are not materially
different, in the Administrative Agent's sole and absolute discretion, from the
results set forth in the preliminary covenant compliance worksheet provided by
the Borrowers to the Administrative Agent which projected the Interest Coverage
ratio as 0.80 and the Minimum Fixed Charge ratio as 0.96 for such fiscal
quarter.
4. Amendment and Waiver Fee. On or prior to the Amendment Effective
Date, the Borrowers, jointly and severally, shall pay to the Administrative
Agent, for the benefit of each Lender that executes this Amendment (an
"Approving Lender"), an amendment and waiver consent fee (the "Amendment and
Waiver Fee") in an amount equal to the product of (x) 20 basis points times (y)
the sum of (i) such Approving Lender's Revolving Credit Commitment as of the
date hereof, and (ii) the aggregate outstanding principal balance of all such
Approving Lender's Term Loans as of the date hereof.
5. Condition Precedent. This Amendment shall become effective on the
date (the "Amendment Effective Date") on which the following conditions
precedent shall have been satisfied:
(a) receipt by the Administrative Agent of this Amendment, executed
and delivered by duly authorized officers of the Required Lenders and the
Borrowers and acknowledged by each of the Guarantors;
(b) receipt by the Administrative Agent of an Officer's Certificate
from each Borrower, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of such Borrower, stating that after
giving effect to this Amendment, (i) all the representations and warranties
contained in the Credit Agreement and the other Loan Documents will be true
and correct, (ii) no Default or Event of Default will have occurred and be
continuing, (iii) there has been no change to the certificate of
incorporation and by-laws of such Borrower as of the Closing Date, (iv)
there has been no change to such Borrower's state of organization from its
state of organization as of the Closing Date, and (v) such Borrower has not
created any Subsidiaries from and after the Closing Date without notifying
the Administrative Agent, all of which statements shall be true and correct
as of the Amendment Effective Date;
(c) receipt by the Administrative Agent of the Amendment and Waiver
Fee; and
(d) receipt by the Administrative Agent of any other documents
relating hereto that shall be reasonably requested by the Administrative
Agent.
6. No Default. On the Amendment Effective Date, (i) the Borrowers
shall be in compliance with all the terms and provisions set forth in the Loan
Documents on its part to be observed or performed, (ii) the representations and
warranties made and restated by each Borrower pursuant to Section 7 of this
Amendment shall be true and complete on and as of such date with the same force
and effect as if made on and as of such date, and (iii) no Default or Event of
Default shall have occurred and be continuing on such date.
7. 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 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.s if made on
and as of the date hereof and that no Default or Event of Default will have
occurred and be continuing.
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. Each Borrower, jointly and severally, hereby agrees 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 Administrative 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.
CELADON GROUP, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CELADON TRUCKING SERVICES, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
ING (U.S.) CAPITAL LLC,
as Administrative Agent and as a Lender
By: /s/ Bill Redmond
----------------
Name: William Redmond
Title: Director
The undersigned Lenders hereby consent and agree to the foregoing
Amendment:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Kevin Hipskind
------------------
Name: Kevin Hipskind
Title: Vice President
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ David G. Fuller
-------------------
Name: David G. Fuller
Title: Vice President
UNION PLANTERS BANK, N.A.,
as a Lender
By: /s/ Michael S. Repp
-------------------
Name: Michael S. Repp
Title: Vice President
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Jeffrey B. Clark
--------------------
Name: Jeffrey B. Clark
Title: Vice President
FIFTH THIRD BANK, INDIANA,
as a Lender
By: /s/ Jeffrey L. Hale
-------------------
Name: Jeffrey L. Hale
Title: Vice President
The undersigned guarantors hereby consent and agree to the foregoing
Amendment:
CELADON TRUCKING SERVICES OF
INDIANA, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CELADON TRANSPORTATION, LLP
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CHEETAH BROKERAGE CO.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CHEETAH TRANSPORTATION CO.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
INTERNATIONAL FREIGHT HOLDING CORP.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
JML FREIGHT FORWARDING, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
RIL GROUP, LTD.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
RIL INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
WELLINGMUFT HOLDING CO.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CELADON LOGISTICS, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
RANDY EXPRESS, LTD.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
RIL ACQUISITION CORP.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CELADON JACKY MAEDER CO.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
ZIPP EXPRESS, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
CELADON E-COMMERCE, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary
TRUCKERSB2B.COM, INC.
By: /s/ Roger Burbage
-----------------
Name: Roger Burbage
Title: Secretary