Exhibit 10.35
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of November 9, 2001
(the "Effective Date"), by and between CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware corporation ("Borrower"), the other
Credit Parties signatory to the Credit Agreement described below
(collectively, together with the Borrower, the "Credit Parties")
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("Lender").
W I T N E SS E T H:
WHEREAS, Borrower, the other Credit Parties and Lender
are parties to that certain Credit Agreement, dated as of October
24, 2001 (as amended to the date hereof, the "Credit Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Credit
Agreement), pursuant to which Lender has committed to make
certain loans to Borrower upon the terms and conditions set forth
therein; and
WHEREAS, Borrower, the other Credit Parties and Lender
desire to modify the Credit Agreement in certain respects in
accordance with and subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower, the other Credit Parties and
Lender do hereby agree that all capitalized terms used herein
shall have the meanings ascribed thereto in the Credit Agreement
(except as otherwise expressly defined or limited herein) and do
hereby further agree as follows:
1. Amendments to the Credit Agreement. Subject to the terms
and conditions of this Amendment, including without limitation
the fulfillment of the conditions precedent specified in Section
6 below, the Credit Agreement is hereby amended as follows:
(A) Section 5.11(a) of the Credit Agreement is hereby
amended by deleting the date "November 9, 2001" appearing in
the first line and in clauses (iv) and (v) of said Section
5.11(a) and substituting in lieu thereof the date "November
20, 2001".
(B) Section 5.11(b) of the Credit Agreement is hereby
amended by deleting the date "November 16, 2001" appearing
in the first line and in clauses (iii) and (iv) of said
Section 5.11(b) and substituting in lieu thereof the date
"December 17, 2001".
(C) Section 5.11(c) of the Credit Agreement is hereby
amended by deleting the date "November 16, 2001" appearing
in the first line of said Section 5.11(c) and substituting
in lieu thereof the date "December 17, 2001".
(D) Section 5.11(d) of the Credit Agreement is hereby
amended by deleting the date "December 7, 2001" appearing in
the first line of said Section 5.11(d) and substituting in
lieu thereof the date "December 17, 2001".
(E) Annex A to the Credit Agreement is hereby amended
by deleting therefrom the definition of "Borrowing Base" in
its entirety and by substituting the following amended
definition of such term in lieu thereof:
"Borrowing Base" shall mean, as of any date
of determination by Lender, from time to time, an
amount equal to the sum of (a) twenty-five percent
(25%) of the Appraised Value of Eligible Mortgaged
Property less (b) any and all Reserves established by
Lender at such time including, without limitation,
Reserves for environmental remediation costs, accrued
but unpaid taxes, insurance and other Charges and
expenses pertaining to such Mortgaged Property.
Notwithstanding the foregoing: (x) for purposes of
calculating the Borrowing Base, the advance rate in
clause (a) above of this definition shall be deemed to
be (i) fifty percent (50%) of the Appraised Value
solely in respect of the Mortgaged Property located at
175 Linfield Drive, Menlo Park, California for the
period commencing on the Closing Date and ending on
November 20, 2001, and at all times after November 20,
2001 shall be deemed to be equal to twenty-five percent
(25%) of the Appraised Value in respect of such
Mortgaged Property located at 175 Linfield Drive, Menlo
Park, California, and (ii) thirty and one-tenth of one
percent (30.1%) of the Appraised Value solely in
respect of each of the Mortgaged Properties located at
(A) 12805 Old Hickory Blvd., Nashville, Tennessee, (B)
2885 Alum Creek Drive, Columbus, Ohio, (C) 4301 W.
Mojave Street, Phoenix, Arizona, (D) 1319 Moffett Park
Drive, Sunnyvale, California and (E) 13145 Unitec
Drive, Laredo, Texas, for the period commencing on the
Closing Date and ending on November 20, 2001 and at all
times after November 20, 2001 shall be deemed to be
equal to twenty-five percent (25%) of the Appraised
Value in respect of each of such Mortgaged Properties
described in the immediately preceding clauses (A)
through (E), inclusive, of this definition; (y) the
Borrowing Base shall not at any time exceed $15,000,000
if any of the conditions set forth in Section 2.2 have
not been satisfied in full or waived in writing by
Lender; and (z) the Borrowing Base shall not at any
time exceed $25,000,000 until all of the conditions set
forth in Section 2.3 have been satisfied in full or
waived in writing by Lender.
2. No Other Amendments. Except for the amendments expressly
set forth and referred to in Section 1 above, the Credit
Agreement shall remain unchanged and in full force and effect.
3. Representations and Warranties. To induce Lender to enter
into this Amendment, Borrower and each of the other Credit
Parties hereby warrant, represent and covenant to Lender that:
(a) this Amendment has been duly authorized, executed and
delivered by Borrower and each other Credit Party signatory
thereto, (b) after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing as of this date,
and (c) after giving effect to this Amendment, all of the
representations and warranties made by Borrower and each other
Credit Party in the Credit Agreement are true and correct in all
material respects on and as of the date of this Amendment (except
to the extent that any such representations or warranties
expressly referred to a specific prior date). Any breach in any
material respect by Borrower or any other Credit Party of any of
its representations and warranties contained in this Section 3
shall be an Event of Default under the Credit Agreement.
4. Ratification and Acknowledgment. Borrower and each of the
other Credit Parties hereby ratify and reaffirm each and every
term, covenant and condition set forth in the Credit Agreement
and all other documents delivered by such company in connection
therewith (including without limitation the other Loan Documents
to which Borrower or any other Credit Party is a party),
effective as of the date hereof.
5. Estoppel. To induce Lender to enter into this Amendment,
Borrower and each of the other Credit Parties hereby acknowledge
and agree that, as of the date hereof, there exists no right of
offset, defense or counterclaim in favor of Borrower or any
Credit Party as against Lender with respect to the obligations of
Borrower or any Credit Party to Lender under the Credit Agreement
or the other Loan Documents, either with or without giving effect
to this Amendment.
6. Conditions to Effectiveness. This Amendment shall become
effective, as of the Effective Date, subject to the prior or
subsequent receipt by the Lender of this Amendment, duly
executed, completed and delivered by Borrower and each other
Credit Party. Upon the effective date of this Amendment, all of
the amendments set forth in Section 1 of this Amendment shall
become effective as of the effective date of this Amendment.
7. Reimbursement of Expenses. Borrower and each of the other
Credit Parties hereby agree that Borrower and each of the other
Credit Parties shall reimburse Lender on demand for all costs and
expenses (including without limitation reasonable attorney's
fees) incurred by Lender in connection with the negotiation,
documentation and consummation of this Amendment and the other
documents executed in connection herewith and therewith and the
transactions contemplated hereby and thereby.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
9. Severability of Provisions. Any provision of this Amendment
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To
the extent permitted by applicable law, Borrower and each of the
other Credit Parties hereby waive any provision of law that
renders any provision hereof prohibited or unenforceable in any
respect.
10. Counterparts. This Amendment may be executed in any number
of several counterparts, all of which shall be deemed to
constitute but one original and shall be binding upon all
parties, their successors and permitted assigns.
11. Entire Agreement. The Credit Agreement as amended by this
Amendment embodies the entire agreement between the parties
hereto relating to the subject matter hereof and supersedes all
prior agreements, representations and understandings, if any,
relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Second
Amendment to Credit Agreement to be duly executed by their
respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
CONSOLIDATED FREIGHTWAYS CORPORATION
By/s/Patrick H. Blake
Name:Patrick H. Blake
Title:President and Chief Executive Officer
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By/s/Craig Winslow
Name:Craig Winslow
Title: Duly Authorized Signatory
CREDIT PARTIES:
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE
By:/s/Patrick H. Blake
Name:Patrick H. Blake
Title:Chief Executive Officer
CF AIRFREIGHT CORPORATION
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer
REDWOOD SYSTEMS, INC.
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer
LELAND JAMES SERVICE CORPORATION
By:/s/Kerry K. Morgan
Name:Kerry K. Morgan
Title:Vice President and Treasurer