SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
EXHIBIT
10.1
SECOND AMENDMENT TO CREDIT
AND SECURITY AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) is dated as
of November 11, 2010, (the “Effective Date”) by and among XXXX XXXXXX BANK (the
“Lender”) and XXXXX HOLDINGS
INC., THE XXXXX GROUP, INC., XXXXX DISTRIBUTION SYSTEMS, INC., HIGHWAY
DISTRIBUTIONS SYSTEMS, INC., XXXXX WORLDWIDE TRANSPORTATION, INC., and EVERGREEN
EXPRESS LINES, INC. (collectively, the “Borrowers”).
WITNESSETH:
WHEREAS, the Borrowers and the
Lender entered into that certain Credit and Security Agreement dated as of March
5, 2010, as amended by that certain First Amendment to Credit and Security
Agreement dated as of May 17, 2010, by and among Borrowers and Lender
(collectively, the “Credit Agreement”); and
WHEREAS, the Borrowers have
requested that the Lender agree to amend the Credit Agreement, and the Lender
has agreed to amend the Credit Agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. All
capitalized terms used herein and not otherwise expressly defined herein shall
have the respective meanings given to such terms in the Credit
Agreement.
2. The
Borrowers acknowledge and agree that effectiveness of this Amendment is
conditioned on: (a) the payment of the amendment fee of Twenty
Thousand and No/100 Dollars ($20,000.00); (b) the delivery of a fully-executed
original of this Amendment; and, (c) the delivery of such other documents or
instruments as the Lender and its counsel may reasonably request, each in form
and substance satisfactory to the Lender and its counsel.
3. The
Credit and Security Agreement is amended by deleting Section 12.02 entitled
“Fixed
Charge Coverage” and substituting the following in lieu
thereof:
“12.02 Fixed
Charge Coverage.
Borrowers
shall not permit Fixed Charge Coverage as of each date set forth below to be
less than the corresponding ratio for such date set forth
below:
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EXHIBIT
10.1
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Date
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Ratio
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(a) for
the nine (9) week fiscal period ending March 5, 2011 and each fiscal
period ending thereafter on a cumulative year to date basis through
February 4, 2012.
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1.05
to 1.0
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(b) from
and after February 4, 2012, for each fiscal period end on a rolling twelve
(12) month basis
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1.05
to 1.0
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”
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4. The
Credit and Security Agreement is amended by deleting Section 12.03 entitled
“EBITDA”
and substituting the following in lieu thereof:
“12.03 EBITDA.
Borrowers shall not permit EBITDA to be
less than the amount set forth below for the corresponding period set forth
below:
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Time Period
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Minimum
Cumulative
EBITDA
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thirty-five
(35) week period ending September 4, 2010
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$ | <4,505,000.00> | |||
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thirty-nine
(39) week period ending October 2, 2010
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$ | <4,505,000.00> | |||
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forty-four
(44) week period week period ending November 6, 2010
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$ | <4,505,000.00> | |||
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forty-eight
(48) week period ending December 4, 2010
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$ | <4,505,000.00> | |||
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fifty-two
(52) week period ending January 1, 2011
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$ | <4,505,000.00> | |||
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fifty-six
(56) week period ending February 5, 2011
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$ | <4,505,000.00> |
”
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5. The
Borrowers hereby acknowledge that prior to giving effect to this Amendment, the
Borrowers are in default under Sections 12.03 and 13.01(b) of the Credit
Agreement. The Lender hereby waives the Event of Default under
Sections 12.03 and 13.01(b) through and including the Effective Date, but the
Lender expressly reserves its rights and remedies with respect to any other
default or Event of Default, including, without limitation, any default or Event
of Default with respect to Section 12.03 of the Credit Agreement arising after
the Effective Date. The Borrowers hereby acknowledge and agree that
the execution and delivery of this Amendment has not established any course of
dealing between the Borrowers and the Lender or any obligation of the Lender
with respect to any future restructuring or modification of the Credit Agreement
or the exercise of the Lender’s rights and remedies thereunder.
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EXHIBIT
10.1
6. Each
of the Borrowers hereby restates, ratifies, and reaffirms each and every term,
condition, representation and warranty heretofore made by it under or in
connection with the execution and delivery of the Credit Agreement as amended
hereby and the other Loan Documents (which shall include all documents executed
in connection with this Amendment) as fully as though such representations and
warranties had been made on the date hereof and with specific reference to this
Amendment and the Loan Documents.
7. As
amended hereby, the Credit Agreement shall be and remain in full force and
effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers to the Lender.
8. The
Borrowers agree to pay on demand all costs and expenses of the Lender in
connection with the preparation, execution, delivery and enforcement of this
Amendment and all other Loan Documents and any other transactions contemplated
hereby, including, without limitation, the reasonable fees and out-of-pocket
expenses of legal counsel to the Lender.
9. The
Borrowers agree to take such further action as the Lender shall reasonably
request in connection herewith to evidence the amendments herein contained to
the Credit Agreement.
10. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument.
11. This
Amendment shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.
12. This
Amendment shall be governed by, and construed in accordance with,
Section 15.03 of the Credit Agreement.
IN WITNESS WHEREOF, the
Borrowers and the Lender have caused this Amendment to be duly executed as of
the date first above written.
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BORROWERS:
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XXXXX
HOLDINGS INC.,
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a
Delaware Corporation
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By:
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Name: Xxxxx
X. Xxxxxxxxx
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Title: CFO
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EXHIBIT
10.1
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THE
XXXXX GROUP, INC.,
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a
Delaware Corporation
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Vice
President and Treasurer
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XXXXX
DISTRIBUTION SYSTEMS, INC.,
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a
Delaware Corporation
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Vice
President and Treasurer
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HIGHWAY
DISTRIBUTION SYSTEMS, INC.,
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a
Delaware Corporation
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Vice
President and Treasurer
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XXXXX
WORLDWIDE TRANSPORTATION, INC.,
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a
Pennsylvania Corporation
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Vice
President and Treasurer
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EXHIBIT
10.1
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EVERGREEN
EXPRESS LINES, INC.,
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a
Pennsylvania Corporation
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By:
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Vice
President and Treasurer
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LENDER:
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XXXX
XXXXXX BANK,
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an
Illinois banking corporation
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By:
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Name: Xxxxxx
X. Xxxxxxxxx
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Title: SVP
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