Exhibit 10.36
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of November 20, 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 S S 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 of the Credit Agreement is hereby
amended by deleting such section in its entirety and
replacing it with a new Section 5.11 in the form attached
hereto as Exhibit A.
(B) 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 forty-one percent (41%) of the Appraised Value
solely in respect of the Mortgaged Property located at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ for the
period commencing on the Closing Date and ending on
December 7, 2001, and at all times after December 7,
2001 shall be deemed to be equal to twenty-five percent
(25%) of the Appraised Value in respect of such
Mortgaged Property located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇; (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.
(C) Annex F to the Credit Agreement is hereby amended
by deleting the form currently attached to the Credit
Agreement and replacing it in its entirety with the new form
of Annex F attached to this Amendment.
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/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Executive Vice President and Chief
Financial Officer
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
CREDIT PARTIES:
CONSOLIDATED FREIGHTWAYS CORPORATION OF
DELAWARE
By/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Executive Vice President and Chief
Financial Officer:
CF AIRFREIGHT CORPORATION
By/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer
REDWOOD SYSTEMS, INC.
By/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer
EXHIBIT A
Replacement Section 5.11 to the Credit Agreement
5.11 Certain Covenants Relating to the Collateral. The
Credit Parties shall cause the following requirements to be
fulfilled with respect to each of the Mortgaged Properties to the
extent such requirements have not been fulfilled pursuant to
Annex B or Section 2.3.
(a) By no later than December 7, 2001, each Credit
Party shall have (i) executed and delivered to Lender a Mortgage
covering all of the Second Group of Mortgaged Properties, in
proper form for recordation recorded in all places to the extent
necessary to create a valid and enforceable first priority lien
(subject to Permitted Encumbrances) on such Second Group of
Mortgaged Property in favor of Lender (or in favor of such other
trustee as may be required or desired under local law) and
otherwise in form and substance satisfactory to Lender, (ii)
delivered to Lender evidence that counterparts of all of the
Mortgages referred to in clause (i) above of this Section 5.11(a)
have been recorded in all places to the extent necessary to
create a valid and enforceable first priority lien (subject to
Permitted Encumbrances) on all of the Second Group of Mortgaged
Property owned by such Credit Party in favor of Lender (or in
favor of such other trustee as may be required or desired under
local law), (iii) delivered to Lender an opinion of counsel in
each state in which any of the Second Group of Mortgaged
Property is located regarding the Mortgages on such properties in
form and substance and from counsel satisfactory to Lender, (iv)
fully cooperated with Lender by providing Lender and/or its
consultants and agents with access to, and information
concerning, all of the Second Group of Mortgaged Properties as
may be requested by Lender (or such consultant or agent of
Lender) and as may be necessary to ensure completion by December
7, 2001 of Phase I Environmental Site Assessment Reports,
consistent with American Society for Testing and Materials (ASTM)
Standard E 1527-94 and applicable state requirements, on all of
the Second Group of Mortgaged Properties, dated no more than 6
months prior to the Closing Date, prepared by environmental
engineers satisfactory to Lender, all in form and substance
satisfactory to Lender, in its sole discretion; and (v) fully
cooperated with Lender by providing Lender and/or its consultants
and agents with access to, and information concerning, all of the
Second Group of Mortgaged Properties as may be requested by
Lender (or such consultant or agent of Lender) and as may be
necessary to ensure delivery to Lender by no later than December
7, 2001 of letters executed by the environmental firms preparing
the environmental reports referred to in clause (iv) of this
Section 5.11(a), in form and substance satisfactory to Lender,
authorizing Lender to rely on such reports. Notwithstanding the
foregoing provisions of this Section 5.11(a), it is the intention
of the parties that, unless the Borrower requests a Subject
Revolving Credit Advance, the Lender shall only receive Mortgages
on Real Estate with fair market values (as determined by Lender
in its sole discretion) aggregating $100,000,000. In the event
that Mortgages are granted to the Lender as part of the First
Group of Mortgaged Properties and the Second Group of Mortgaged
Properties, with the fair market values of such Mortgaged
Properties exceeding $100,000,000 in the aggregate, the Lender
agrees to release by December 31, 2001, one or more Mortgages (on
Mortgaged Properties selected by Lender, in its sole discretion)
sufficient to reduce the aggregate fair market value of the
remaining Mortgaged Properties to $100,000,000 (or such greater
amount as is reasonably required to ensure that the Lender holds
Mortgages on Mortgaged Properties with an aggregate fair market
value of at least $100,000,000).
(b) By no later than two Business Days prior to the
initial Post-Closing Borrowing Date, each Credit Party shall
have: (i) executed and delivered to Lender a Mortgage covering
all of the Third Group of Mortgaged Properties, in proper form
for recordation in all places to the extent necessary to create a
valid and enforceable first priority lien (subject to Permitted
Encumbrances) on such Third Group of Mortgaged Property in favor
of Lender (or in favor of such other trustee as may be required
or desired under local law) and otherwise in form and substance
satisfactory to Lender; (ii) delivered to Lender an opinion of
counsel in each state in which any of the Third Group of
Mortgaged Property is located in form and substance and from
counsel satisfactory to Lender; (iii) fully cooperated with
Lender by providing Lender and/or its consultants and agents with
access to, and information concerning, all of the Third Group of
Mortgaged Properties as may be requested by Lender (or such
consultant or agent of Lender) and as may be necessary to ensure
completion and delivery to Lender of Phase I Environmental Site
Assessment Reports, consistent with American Society for Testing
and Materials (ASTM) Standard E 1527-94 and applicable state
requirements, on all of the Third Group of Mortgaged Properties,
dated no more than 6 months prior to the initial Post-Closing
Borrowing Date, prepared by environmental engineers satisfactory
to Lender, all in form and substance satisfactory to Lender, in
its sole discretion; and (iv) fully cooperated with Lender by
providing Lender and/or its consultants and agents with access
to, and information concerning, all of the Third Group of
Mortgaged Properties as may be requested by Lender (or such
consultant or agent of Lender) and as may be necessary to ensure
delivery to Lender of letters executed by the environmental firms
preparing the environmental reports referred to in clause (iii)
of this Section 5.11(b), in form and substance satisfactory to
Lender, authorizing Lender to rely on such reports.
Notwithstanding anything to the contrary in this Section 5.11(b),
the Mortgages with respect to the Third Group of Mortgaged
Properties shall not be recorded by Lender until such time as (x)
Borrower has made a request for a Revolving Credit Advance which
if made would result in the aggregate outstanding principal
balance of all Revolving Credit Advances exceeding $25,000,000
and (y) all of the conditions set forth in Section 2.3 (other
than the condition requiring recordation of said Mortgage) have
been satisfied in full or waived by the Lender in writing.
(c) By no later than December 17, 2001, each Credit
Party shall have delivered to Lender commitments for title
insurance coverage, and shall have purchased such coverage and
delivered evidence thereof to Lender, all in form and scope
satisfactory to Lender, in a total amount of not less than
$50,000,000 covering all of the First Group of Mortgaged
Properties and the Second Group of Mortgaged Properties (with an
allocation on a per property basis, and subject to such tie-in
endorsements, as approved by Lender, in its sole discretion);
provided, however, that no later than two Business Days prior to
the initial Post-Closing Borrowing Date, the amount of title
insurance shall be increased to $100,000,000 and modified to
cover the First Group of Mortgaged Properties, the Second Group
of Mortgaged Properties and the Third Group of Mortgaged
Properties (with an allocation on a per property basis, and
subject to such tie-in endorsements, as approved by Lender, in
its sole discretion).
(d) By no later than December 17, 2001, with respect
to all of the First Group of Mortgaged Properties and the Second
Group of Mortgaged Properties, the Borrower shall have (i)
delivered to Lender current as-built surveys, zoning letters (or
zoning title endorsements) and certificates of occupancy, in each
case satisfactory in form and substance to Lender, in its sole
discretion, and (ii) delivered to Lender updated fair market
value appraisals, each of which shall be in form and substance
satisfactory to Lender. Prior to the initial Post-Closing
Borrowing Date, with respect to all of the Third Group of
Mortgaged Properties, the Borrower shall have (i) delivered to
Lender current as-built surveys, zoning letters (or zoning title
endorsements) and certificates of occupancy, in each case
satisfactory in form and substance to Lender, in its sole
discretion, and (ii) delivered to Lender updated fair market
value appraisals, each of which shall be in form and substance
satisfactory to Lender.
(e) Each Credit Party agrees that at any time on and
after the Closing Date Lender shall be entitled to obtain, at
such Credit Party's sole cost and expense, (i) one or more
updated written fair market value appraisal reports and current
as-built surveys in respect of any of the Mortgaged Properties
prepared by an independent real estate appraiser and surveyor, as
the case may be, satisfactory to Lender, and (ii) such
environmental review and audit reports, including Phase II
reports, with respect to any of the Mortgaged Properties as
Lender shall request, in each case, in form and substance
satisfactory to Lender; provided that Lender shall not be
entitled to obtain or request any of the items described in
clauses (i) or (ii) above unless Lender believes in its
reasonable credit judgment that either (x) a Default or Event of
Default has occurred and is continuing, or (y) any of the
information pertaining to the Mortgaged Properties contained in
any prior appraisal or environmental report may be inaccurate or
outdated in any material respect. Each Credit Party shall
cooperate with Lender in obtaining all such environmental review
and audits, updated appraisal reports and surveys, including,
without limitation, granting access to the Mortgaged Properties
to Lender and its agents, consultants and representatives, and
causing to be done such further acts as may be necessary or
proper in the reasonable opinion of Lender to carry out more
effectively the provisions and purposes of this Section 5.11(d).
(f) Notwithstanding anything in Section 5.11 to the
contrary, should the Credit Parties be unable, despite good faith
efforts, to satisfy the environmental, title or opinion criteria
set forth in this Section 5.11 regarding any Mortgaged Property
intended to be included in the Second Group of the Mortgaged
Properties or the Third Group of Mortgaged Properties, the Credit
Parties shall be obligated to provide other Mortgaged Properties
for inclusion in such groups, which properties shall be subject
to Lender's approval, in its sole discretion (including, without
limitation, as to value and environmental matters); provided,
however, that the obligation to replace such properties shall not
apply to the Third Group of Mortgaged Properties unless and until
the Borrower shall have requested a Subject Revolving Credit
Advance.
ANNEX F
to
CREDIT AGREEMENT
LIST OF MORTGAGED PROPERTIES
First Group of Mortgaged Properties:
1 MPK MENLO PARK CA ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ OLD HICKORY BLVD.
Second Group of Mortgaged Properties:
1 COL COLUMBUS OH ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ UNITEC DRIVE
5 PTM PORTLAND OR ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
12 DPI DES PLAINES IL ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ STREET
14 NCG NORCROSS GA ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Group of Mortgaged Properties:
To be proposed by Borrower, subject to approval by Lender, in its
sole discretion, but the aggregate appraised values of such
properties must, when added to the appraised values of the First
Group of Mortgaged Properties and the Second Group of Mortgaged
Properties (but only if actually mortgaged to Lender), equal or
exceed $200,000,000.
