Exhibit 10.37
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of December 17, 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 last sentence in said Section
5.11(a) and substituting in lieu thereof the following new
sentence to read in its entirety as follows:
In the event that (i) Mortgages are granted to the
Lender as part of the First Group of Mortgaged
Properties, the Second Group of Mortgaged Properties
and the Additional Mortgaged Properties, with the fair
market values of such Mortgaged Properties exceeding
$100,000,000 in the aggregate and (ii) the Commitment
has been reduced to $25,000,000, then the Lender agrees
to release 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) Section 5.11(d) of the Credit Agreement is
hereby amended by deleting the date "December 17, 2001"
appearing in the first line of said Section 5.11(d) and
substituting in lieu thereof the date "December 21, 2001".
(C) Section 5 of the Credit Agreement is hereby
amended by adding a new Section 5.12 thereto to read in its
entirety as follows:
5.12 Certain Post-Closing Covenants. (a) On
or prior to December 17, 2001, the Borrower shall cause
the following requirements to be fulfilled with respect
to each of the Additional Mortgaged Properties: each
Credit Party owner of the Additional Mortgaged
Properties shall have (i) executed and delivered to
Lender a Mortgage covering all of the Additional
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 Additional Mortgaged
Properties 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 Additional
Mortgaged Properties are located regarding the
Mortgages on such properties in form and substance and
from counsel satisfactory to Lender, (iii) 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, covering all of the Additional
Mortgaged Properties and (v) delivered to Lender
written fair market value appraisals, in each case
satisfactory in form and substance to Lender, in its
sole discretion. By no later than December 21, 2001,
Borrower shall have delivered to Lender evidence that
counterparts of all of the Mortgages referred to in
clause (i) above of this Section 5.12(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
Additional Mortgaged Properties 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).
(b) On or prior to December 21, 2001, the
Borrower shall cause to be delivered to Lender in
respect of such Additional Mortgaged Properties current
as-built surveys, zoning letters (or zoning title
endorsements) and certificates of occupancy.
(D) Annex A to the Credit Agreement is hereby
amended by adding the following new definition to read in
its entirety as follows:
"Additional Mortgaged Properties"
shall mean the real property owned by one or
more of the Credit Parties and located at ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
(E) Annex A to the Credit Agreement is hereby
amended by deleting therefrom definitions of "Borrowing
Base" and "Mortgaged Properties" in their entirety and
substituting the following amended definitions of such terms
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) thirty-five percent
(35%) 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, the Borrowing Base shall
not at any time exceed $35,000,000 irrespective of
whether any of the conditions in Section 2 have been
satisfied.
"Mortgaged Properties" means (i) the Real
Property identified on Annex F, (ii) the Additional
Mortgaged Properties, and (iii) any other Real Property
of the Credit Parties located in the United States of
America that Borrower from time to time requests be
included as a Mortgaged Property to the extent and only
to the extent that the Lender in its sole discretion
consents in writing to the inclusion of such Real
Property as a Mortgaged Property.
(F) Annex A to the Credit Agreement is hereby
amended by deleting the last sentence in the definition of
"Eligible Mortgaged Property" and substituting in lieu
thereof a new sentence to read in its entirety as follows:
Notwithstanding the foregoing (a) if the fair market
value or the environmental status of any Mortgaged
Property, or the priority of the Lien of the Mortgages
on any Mortgaged Property, adversely changes at any
time on or after the Closing Date, then Lender, in
addition to any other rights it may have hereunder or
under the Loan Documents, shall be entitled to deem
such Mortgaged Property to be ineligible and/or
establish such Reserves as it may deem appropriate in
its sole discretion and (b) none of the Additional
Mortgaged Properties shall at any time constitute an
Eligible Mortgaged Property.
(G) The Credit Agreement is hereby amended to
extend the deadline under Section 5.11 for delivery of
Mortgages, local counsel opinions and title insurance
commitments with respect to certain of the properties
included in the Second Group of Mortgaged Properties to the
dates set forth below:
Property Location Revised Deadline
Norcross, Georgia property December 18, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ December 21, 2001
property
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.
[Remainder of page intentionally blank; next page is signature
page]
IN WITNESS WHEREOF, the parties have caused this Fourth
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:Executive Vice President and Chief
Financial Officer
REDWOOD SYSTEMS, INC.
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President and Treasurer