AMENDMENT TO FORBEARANCE AGREEMENT AND CREDIT AGREEMENT
EXHIBIT
10.1
AMENDMENT
TO FORBEARANCE AGREEMENT AND CREDIT AGREEMENT
AMENDMENT
TO FORBEARANCE AGREEMENT AND CREDIT AGREEMENT (as amended or otherwise modified
from time to time in accordance with the terms here, the "Agreement") dated as
of February 26, 2010, among Xxxxx Holdings Inc. (f/k/a Global Logistics
Acquisition Corporation), a Delaware corporation ("Holdings"), The Xxxxx
Group, Inc., a Delaware corporation ("Xxxxx Holdings"),
Xxxxx Distribution Systems, Inc., a Delaware corporation ("CDS"), Xxxxx
Worldwide Transportation, Inc., a Pennsylvania corporation ("CWT"), Highway
Distribution Systems, Inc., a Delaware corporation ("HDS"), and Evergreen
Express Lines, Inc., a Pennsylvania corporation (together with Holdings, Xxxxx
Holdings, CDS, CWT and HDS, the "Borrowers") and Bank
of America, N.A., (successor-in-interest to LaSalle Bank National Association),
individually as a Lender and as Administrative Agent ("Agent") for the
Lenders (as such terms are each defined in the Credit Agreement defined
below).
R
E C I T A L S:
WHEREAS,
Agent and Borrowers have entered into certain financing arrangements pursuant to
the Credit Agreement dated as of February 12, 2008 among Agent, Borrowers and
the Lenders from time to time party thereto (as amended hereby, and as the same
may have heretofore been or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Credit Agreement";
all capitalized terms used herein (including the recitals hereto) shall have the
respective meanings ascribed thereto in the Credit Agreement unless otherwise
defined herein);
WHEREAS,
Agent, Lenders and Borrowers have further entered into that certain Amendment
and Forbearance Agreement dated as of September 15, 2009 (as amended hereby, and
as the same may have heretofore been or may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced, the "Forbearance
Agreement"); and
WHEREAS,
Borrowers have requested that Agent and Lenders agree to amend each of the
Credit Agreement and Forbearance Agreement, as provided herein;
NOW,
THEREFORE, in consideration of the foregoing, and the respective agreements,
warranties and covenants contained herein, the parties hereto agree as
follows:
|
SECTION
1.
|
ACKNOWLEDGMENTS
|
1.1. Acknowledgment of
Obligations. Each Borrower hereby acknowledges, confirms and
agrees that as of the close of business on February 24, 2010, (a) Borrowers
are indebted to Lenders in respect of the Revolving Loan in the principal amount
of $0, (b) Borrowers are indebted to Lenders in respect of the Term Loan in
the aggregate principal amount of $2,894,748.44, and (c) Borrowers are
indebted to Lenders in respect of Letters of Credit in the face amount of
$718,031.00. Each Borrower hereby acknowledges, confirms and agrees that all
such Loans and other Obligations, together with interest accrued and accruing
thereon, and all fees, costs, expenses and other charges now or hereafter
payable by any Borrower to Lenders, are unconditionally owing by Borrowers to
Lenders, without offset, defense or counterclaim of any kind, nature or
description whatsoever.
1.2. Acknowledgment of Security
Interests. Each Borrower hereby acknowledges, confirms and
agrees that Agent has and shall continue to have valid, enforceable and
perfected first-priority liens upon and security interests in the Collateral
heretofore granted to Agent, for the benefit of Agent and Lenders, pursuant to
the Credit Agreement, the Guaranty and Collateral Agreement and the other Loan
Documents or otherwise granted to or held by Agent, for the benefit of Agent and
Lenders, subject only to Permitted Liens.
1.3. Binding Effect of
Documents. Each Borrower hereby acknowledges, confirms and
agrees that: (a) each of the Credit Agreement and the other Loan Documents
to which it is a party has been duly executed and delivered to Agent by such
Borrower, and each is and shall remain in full force and effect as of the date
hereof except as modified pursuant hereto, (b) the agreements and
obligations of such Borrower contained in such documents and in this Agreement
constitute the legal, valid and binding Obligations of such Borrower,
enforceable against it in accordance with their respective terms, and such
Borrower has no valid defense to the enforcement of such Obligations, and
(c) Agent and Lenders are and shall be entitled to the rights, remedies and
benefits provided for under the Credit Agreement and the Loan Documents and
applicable law.
1.4. Acknowledgment of
Default. Each Borrower hereby acknowledges and agrees that the
Existing Defaults have occurred and are continuing, each of which constitutes an
Event of Default and entitles Agent and Lenders to exercise their rights and
remedies under the Credit Agreement and the other Loan Documents, applicable law
or otherwise. Each Borrower represents and warrants that as of the
date hereof, no Events of Default exist other than the Existing
Defaults. Each Borrower hereby acknowledges and agrees that Agent and
Lenders have the exercisable right to declare the Obligations to be immediately
due and payable under the terms of the Credit Agreement and the other Loan
Documents. Each Borrower acknowledges that Lenders are no longer
obligated to make any disbursements of the Revolving Loan, or to issue Letters
of Credit.
|
SECTION
2.
|
AMENDMENTS
|
2.1. The
defined term "Forbearance Period" set forth in Section 1.2 of the Forbearance
Agreement is hereby amended and restated as follows:
"Forbearance Period"
means the period commencing on the date hereof and ending on the date which is
the earliest of (i) March 9, 2010; (ii) the occurrence or existence of any Event
of Default, other than the Existing Defaults and the Anticipated Defaults; or
(iii) the occurrence of any Termination Event.
-2-
2.2. The
defined term "Term Loan Maturity Date" set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated as follows:
"Term Loan Maturity
Date" means the earlier of (a) March 9, 2010 or (b) the Termination
Date.
2.3. The
defined term "Termination Date" set forth in Section 1.1 of the Credit Agreement
is hereby amended and restated as follows:
"Termination Date"
means the earlier of (a) March 9, 2010 or (b) such other date on which the
Commitments terminate pursuant to Section 6 or Section
13.
|
SECTION
3.
|
REPRESENTATIONS
AND WARRANTIES
|
Each
Borrower hereby represents, warrants and covenants as follows:
3.1. Representations in the Credit
Agreement and the other Loan Documents. Each of the
representations and warranties made by or on behalf of each Borrower to Agent or
any Lender in the Credit Agreement, the Forbearance Agreement or any of the
other Loan Documents was true and correct when made, and is, except for the
Existing Defaults, true and correct on and as of the date of this Agreement with
the same full force and effect as if each of such representations and warranties
had been made by each Borrower on the date hereof and in this
Agreement.
3.2. Binding Effect of
Documents. This Agreement has been duly authorized, executed
and delivered to Agent and Lenders by each Borrower, is enforceable in
accordance with its terms and is in full force and effect.
3.3. No Conflict. The
execution, delivery and performance of this Agreement by each Borrower will not
violate any requirement of law or contractual obligation of any Borrower and
will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues.
|
SECTION
4.
|
MISCELLANEOUS
|
4.1. Inspection
Rights. Borrowers hereby acknowledge and agree that, pursuant
to Section 10.2 of the Credit Agreement, so long as any Event of Default
(including, without limitation, the Existing Defaults) or Unmatured Event of
Default exists, all inspections or audits of the Collateral shall be at the
Borrowers' expense.
4.2. Continuing
Effect. Except as modified pursuant hereto, no other changes
or modifications to the Credit Agreement, the Forbearance Agreement and the
other Loan Documents are intended or implied by this Agreement and in all other
respects the Credit Agreement, the Forbearance Agreement and the other Loan
Documents hereby are ratified, restated and confirmed by all parties hereto as
of the effective date hereof. To the extent of conflict between the
terms of this Agreement, the Credit Agreement, the Forbearance Agreement and the
Loan Documents, the terms of this Agreement shall govern and
control. The Credit Agreement and this Agreement shall be read and
construed as one agreement. The Forbearance Agreement and this
Agreement shall be read and construed as one agreement.
-3-
4.3. Costs and
Expenses. Each Borrower absolutely and unconditionally agrees
to pay to Agent, on demand by Agent at any time, whether or not all or any of
the transactions contemplated by this Agreement are consummated: all
fees and disbursements of any counsel to Agent in connection with the
preparation, negotiation, execution or delivery of this Agreement and any
agreements contemplated hereby and expenses which shall at any time be incurred
or sustained by Agent, any Lender, any participant of any Lender or any of their
respective directors, officers, employees or agents as a consequence of or in
any way in connection with the preparation, negotiation, execution, or delivery
of this Agreement and any agreements contemplated hereby.
4.4. Further
Assurances. At Borrowers' expense, the parties hereto shall
execute and deliver such additional documents and take such further action as
may be necessary or desirable to effectuate the provisions and purposes of this
Agreement.
4.5. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
4.6. Survival of Representations,
Warranties and Covenants. All representations, warranties,
covenants and releases of each Borrower made in this Agreement or any other
document furnished in connection with this Agreement shall survive the execution
and delivery of this Agreement and the Forbearance Period, and no investigation
by Agent or any Lender, or any closing, shall affect the representations and
warranties or the right of Agent and Lenders to rely upon them.
4.7. Release.
(a) In
consideration of the agreements of Agent and Lenders contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Borrower, on behalf of itself and its successors and
assigns, and its present and former members, shareholders, affiliates,
subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents, legal representatives and other representatives (each
Borrower and all such other Persons being hereinafter referred to collectively
as the "Releasing
Parties" and individually as a "Releasing Party"),
hereby absolutely, unconditionally and irrevocably releases, remises and forever
discharges Agent, each Lender, and each of their respective successors and
assigns, and their respective present and former shareholders, affiliates,
subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents, legal representatives and other representatives (Agent,
Lenders and all such other Persons being hereinafter referred to collectively as
the "Releasees"
and individually as a "Releasee"), of and
from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims, defenses, rights of
set-off, demands and liabilities whatsoever (individually, a "Claim" and
collectively, "Claims") of every
kind and nature, known or unknown, suspected or unsuspected, at law or in
equity, which any Borrower or any of its successors, assigns, or other legal
representatives may now or hereafter own, hold, have or claim to have against
the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause or thing whatsoever which arises at any time on or prior to the
date of this Agreement, including, without limitation, for or on account of, or
in relation to, or in any way in connection with this Agreement, the Credit
Agreement, the Forbearance Agreement, any of the other Loan Documents or any of
the transactions hereunder or thereunder.
-4-
(b) Each
Borrower understands, acknowledges and agrees that the release set forth above
may be pleaded as a full and complete defense to any Claim and may be used as a
basis for an injunction against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of such
release.
(c) Each
Borrower agrees that no fact, event, circumstance, evidence or transaction which
could now be asserted or which may hereafter be discovered shall affect in any
manner the final, absolute and unconditional nature of the release set forth
above.
4.8. Covenant Not to
Xxx. Each of the Releasing Parties hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that it will not xxx (at law, in equity, in any regulatory proceeding
or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by any Releasing Party pursuant to Section 4.7 above. If
any Releasing Party violates the foregoing covenant, each Borrower, for itself
and its successors and assigns, and its present and former members,
shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents, legal representatives and other
representatives, agrees to pay, in addition to such other damages as any
Releasee may sustain as a result of such violation, all attorneys' fees and
costs incurred by any Releasee as a result of such violation.
4.9. Severability. Any
provision of this Agreement held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement.
4.10. Governing Law: Consent to
Jurisdiction and Venue. THIS AGREEMENT SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL
BE DEEMED OR OPERATE TO PRECLUDE THE AGENT FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION. THE BORROWERS HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE. THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS. THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM
-5-
4.11. Mutual
Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE
FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
4.12. Counterparts. This
Agreement may be executed in any number of counterparts, but all of such
counterparts shall together constitute but one and the same
agreement.
[signatures on following
page]
-6-
IN
WITNESS WHEREOF, this Agreement is executed and delivered as of the day and year
first above written.
|
XXXXX
HOLDINGS INC. (f/k/a Global Logistics Acquisition Corporation), as a
Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
THE
XXXXX GROUP, INC.,
as
a Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
XXXXX
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
XXXXX
WORLDWIDE TRANSPORTATION, INC.,
as
a Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
HIGHWAY
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
EVERGREEN
EXPRESS LINES, INC.,
as
a Borrower
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Title:
Chief Financial Officer
|
|
BANK
OF AMERICA, N.A.,
as
Administrative Agent and as a Lender
By:
/s/ Xxxxxxx
Xxxxxxx
Title:
AVP
|
