AMENDMENT AND FORBEARANCE AGREEMENT
AMENDMENT
AND FORBEARANCE AGREEMENT (as amended or otherwise modified from time to time in
accordance with the terms here, the "Agreement") dated as
of September 15, 2009, 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 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"));
WHEREAS,
as of the date hereof, Borrowers are in default under the Credit Agreement as
more particularly described below;
WHEREAS,
the circumstances described herein constitute multiple Events of Default under
the Credit Agreement and the Loan Documents;
WHEREAS,
Borrowers have requested that Agent and Lenders forbear from exercising their
rights as a result of such Events of Default, which are continuing, and that
Lenders provide further Revolving Loans and other financial accommodations to
Borrowers notwithstanding such Events of Default; and
WHEREAS,
Agent and Lenders are willing to agree to forbear from exercising certain of
their rights and remedies and provide certain further Revolving Loans and other
financial accommodations to Borrowers solely for the period and on the terms and
conditions specified herein.
NOW,
THEREFORE, in consideration of the foregoing, and the respective agreements,
warranties and covenants contained herein, the parties hereto agree as
follows:
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SECTION
1.
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DEFINITIONS
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1.1. Interpretation. All
capitalized terms used herein (including the recitals hereto) shall have the
respective meanings ascribed thereto in the Credit Agreement unless otherwise
defined herein.
1.2. Additional
Definitions. As used herein, the following terms shall have
the respective meanings given to them below, and the Credit Agreement is hereby
amended to include, in addition and not in limitation, each of the following
definitions:
(a) "Agent"
shall mean Bank of America, N.A., in its capacity as Administrative Agent under
the Loan Documents.
(b) "Anticipated
Defaults" shall mean any Events of Default that arise due to the circumstances
more particularly identified on Exhibit A hereto,
under the heading "Anticipated Defaults".
(c) "Existing
Defaults" shall mean the Events of Default more particularly identified on Exhibit A hereto, under the
heading "Existing Defaults".
(d) "Forbearance
Period" means the period commencing on the date hereof and ending on the date
which is the earliest of (i) February 28, 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.
(e) "Termination
Event" means the initiation of any action by any Loan Party or any Releasing
Party (as defined herein) to invalidate or limit the enforceability of any of
the acknowledgments set forth in Section 2.1, the release set forth in
Section 8.6 or the covenant not to xxx set forth in
Section 8.7.
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SECTION
2.
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ACKNOWLEDGMENTS
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2.1. Acknowledgment of
Obligations. Each Borrower hereby acknowledges, confirms and
agrees that as of the close of business on September 15, 2009,
(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 $3,549,942.04, 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.
2.2. 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.
2.3. 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.
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SECTION
3.
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FORBEARANCE
IN RESPECT OF ANTICIPATED DEFAULTS AND EXISTING
DEFAULTS
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3.1. 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.
3.2. Forbearance.
(a) In
reliance upon the representations, warranties and covenants of Borrowers
contained in this Agreement, and subject to the terms and conditions of this
Agreement and any documents or instruments executed in connection herewith,
Agent and Lenders agree to forbear during the Forbearance Period from exercising
their rights and remedies under the Credit Agreement and the other Loan
Documents or applicable law in respect of or arising out of the Existing
Defaults and the Anticipated Defaults.
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(b) Upon
the expiration or termination of the Forbearance Period, the agreement of Agent
and Lenders to forbear shall automatically and without further action terminate
and be of no force and effect, it being expressly agreed that the effect of such
termination will be to permit Agent and Lenders to exercise immediately all
rights and remedies under the Credit Agreement and the other Loan Documents, and
under applicable law, with respect to any and all Anticipated Defaults (to the
extent then constituting Events of Default) and the Existing Defaults,
including, but not limited to, (i) ceasing to make any further Loans or
issuing any further Letters of Credit and (ii) accelerating all of the
Obligations under the Credit Agreement and the other Loan Documents; in each
case without any further notice to any Borrower, passage of time or forbearance
of any kind.
3.3. No Waivers; Reservation of
Rights.
(a) Agent
and Lenders have not waived, are not by this Agreement waiving, and have no
intention of waiving, any Events of Default which may be continuing on the date
hereof or any Events of Default which may occur after the date hereof (whether
the same or similar to the Anticipated Defaults, the Existing Defaults or
otherwise), and Agent and Lenders have not agreed to forbear with respect to any
of their rights or remedies concerning any Events of Default (other than, during
the Forbearance Period, the Existing Defaults and the Anticipated Defaults to
the extent expressly set forth herein) occurring at any time.
(b) Subject
to Section 3.2 above (solely with respect to the Anticipated Defaults and the
Existing Defaults), Agent and Lenders reserve the right, in their discretion, to
exercise any or all of their rights and remedies under the Credit Agreement and
the other Loan Documents as a result of any other Events of Default occurring at
any time. Agent and Lenders have not waived any of such rights or
remedies, and nothing in this Agreement, and no delay on their part in
exercising any such rights or remedies, shall be construed as a waiver of any
such rights or remedies.
3.4. Additional Events of
Default. The parties hereto acknowledge, confirm and agree
that any misrepresentation by any Borrower, or any failure of any Borrower to
comply with the covenants, conditions and agreements contained in this
Agreement, the Credit Agreement and the other Loan Documents or in any other
agreement, document or instrument at any time executed and/or delivered by any
Borrower with, to or in favor of Agent or any Lenders shall constitute an Event
of Default under the Credit Agreement and the other Loan
Documents. In the event any Person, other than Agent or Lenders,
shall at any time exercise for any reason (including, without limitation, by
reason of any Anticipated Defaults, any Existing Defaults, any other present or
future Event of Default, or otherwise) any of its rights or remedies against any
Borrower or any obligor providing credit support for any Borrower's obligations
to such other Person, or against any Borrower's or such obligor's properties or
assets, such event shall constitute an Event of Default hereunder and an Event
of Default under the Credit Agreement.
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SECTION
4.
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AMENDMENTS
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4.1. The
defined term "Borrowing Base" set forth in Section 1.1 of the Credit Agreement
is hereby amended and restated as follows:
Borrowing Base means
an amount equal to the sum of (i) 80% of the unpaid amount of all Eligible
Accounts plus (ii) 50% of the appraised fair market value of Eligible Real
Estate, plus (iii) 100% of the value, as of any applicable date of
determination, of Cash Equivalent Investments in any deposit accounts and/or
securities accounts subject to a control agreement in form and substance
acceptable to Administrative Agent, excluding any such Cash Equivalent
Investments pledged to the Agent to secure, in full or in part, the Stated
Amount of Letters of Credit minus (iv) such reserves and allowances as the
Administrative Agent deems necessary or appropriate in its reasonable
discretion, including as necessary or appropriate to reflect any events,
conditions, contingencies, risks or other circumstances which may arise from
time to time with respect to any Loan Party.
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4.2. The
defined term "Consolidated Net Income" set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated as follows
Consolidated Net
Income means, with respect to any Person for any period, the net income
(or loss) of such Person and its Subsidiaries for such period, excluding any
gains from Asset Dispositions, any extraordinary gains and any gains or losses
from discontinued operations.
4.3. The
defined term "EBITDA" set forth in Section 1.1 of the Credit Agreement is hereby
amended and restated as follows:
EBITDA means, for any
period, Consolidated Net Income for such period plus, in each case to the extent
deducted in determining such Consolidated Net Income for such period, Interest
Expense, income tax expense, depreciation and amortization, non-cash severance
and/or non-cash restructuring expenses and costs and expenses in connection with
the arbitration entitled Xxxxxxx X. Xxxxxxxx, Xx. et
al. and Xxxxx Holdings, Inc. No 148 Y 00499 09, pending before the
American Arbitration Association.
4.4. The
defined term "Fixed Charge Coverage Ratio" set forth in Section 1.1 of the
Credit Agreement is hereby amended by deleting the clause "for any Computation
Period" set forth therein, and by inserting in lieu thereof the clause "for any
applicable period of measurement".
4.5. 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) February 28, 2010 or (b) the Termination
Date.
4.6. 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) February 28, 2010 or (b) such other date on which the
Commitments terminate pursuant to Section 6 or Section
13.
4.7. Section
11.11(e) of the Credit Agreement is hereby amended and restated in its entirety
as follows:
(e) bank
deposits in the ordinary course of business, provided that all
such deposits, other than deposits in an aggregate amount not to exceed $350,000
at any time, shall be maintained with the Administrative Agent; provided, further,
that notwithstanding anything to the contrary herein or in the Guaranty and
Collateral Agreement, any such deposits, not exceeding $350,000 in the
aggregate, that are not maintained with the Administrative Agent shall not be
required to be subject to a bank agency or other similar agreement with the
Administrative Agent and the applicable Borrower;
4.8. Section
11.14.4 of the Credit Agreement is hereby amended by inserting the clause
"(increased to $1,075,000 with respect to Fiscal Year 2009)" immediately
following the first reference to "$1,000,000" set forth in such
Section.
4.9. Annex
A to the Credit Agreement is hereby amended and restated as set forth on Exhibit
C hereto.
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SECTION
5.
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Covenants
and Agreements
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5.1. Maximum
Facility. Borrowers hereby acknowledge and agree that,
notwithstanding anything to the contrary set forth in the Credit Agreement, at
no time from and following the date hereof shall Agent or the Lenders have any
obligations to make Revolving Loans and/or issue Letters of Credit in each case,
after giving effect thereto, the Revolving Outstandings would exceed
$2,218,000.
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5.2. Financial
Covenants. During the Forbearance Period, the following
financial covenants shall apply in lieu of the covenants set forth in Section
11.14.1, 11.14.2, 11.14.3 and 11.14.5 (which such Sections continuing in effect
from and following the Forbearance Period:
(a) Minimum Cumulative
EBITDA. Borrowers shall not permit cumulative EBITDA for the
period commencing on the first day of the Fiscal Month commencing closest to
July 1, 2009 and ending on the last day of any Fiscal Month set forth below to
be less than the amount set forth below for opposite month:
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Fiscal
Month
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Amount
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July,
2009
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$167,000
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August,
2009
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$363,000
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September,
2009
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$634,000
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October,
2009
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$903,000
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November,
2009
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$1,215,000
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December,
2009
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$1,521,000
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January,
2010
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$1,844,000
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(b) Minimum Fixed Charge
Coverage. Borrowers shall not permit the Fixed Charge Coverage
Ratio for (i) the Fiscal Quarter ending on the last day of the Fiscal Month
ending closest to September 30, 2009 to be less than 1.25 and/or (ii) the Fiscal
Quarter ending the last day of the Fiscal Quarter immediately following to be
less than 2.50.
5.3. Excess EBITDA
Recapture. During the Forbearance Period, the Borrowers agree,
within thirty (30) days following the end
of each month set forth in Section 5.2(a) above, to repay the Term Loan by an
amount equal to fifteen percent of cumulative EBITDA, for the period commencing
on the first day of the Fiscal Month commencing closest to July 1, 2009 and
ending on the last day of each Fiscal Month set forth in Section 5.2(a) above
and excluding any negative monthly EBITDA, in excess of the amount set forth in
Section 5.2(a) for such period.
5.4. Forbearance Period Compliance
Certificate. Borrowers hereby that, during the Forbearance
Period, the compliance certificate required pursuant to Section 10.1.3 of the
Credit Agreement shall be in the form set forth as Exhibit B
hereto.
5.5. Pledged Collateral.
Borrowers hereby acknowledge and agree that, notwithstanding anything to
the contrary set forth in the Credit Agreement, at no time from and following
the date hereof shall Issuing Lender have any obligation to issue, extend, renew
or otherwise modify any Letter of Credit in accordance with the provisions of
the Credit Agreement unless, in each instance and after giving effect thereto,
Borrowers shall have pledged with Agent, pursuant to documentation in form and
substance satisfactory to Agent and Lenders, a certificate of deposit or other
Collateral acceptable to Agent in an amount equal to (or in excess of) the
Stated Amount of all Letters of Credit.
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SECTION
6.
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REPRESENTATIONS
AND WARRANTIES
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Each
Borrower hereby represents, warrants and covenants as follows:
6.1. 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 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.
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6.2. 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.
6.3. 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.
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SECTION
7.
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CONDITIONS
TO EFFECTIVENESS OF CERTAIN PROVISIONS OF THIS
AGREEMENT
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The
effectiveness of the terms and provisions of Section 3.2 of this Agreement shall
be subject to the receipt by Agent of each of the following, in form and
substance satisfactory to Agent and Lenders:
(a) an
original of this Agreement, duly authorized, executed and delivered by each
Borrower;
(b) cash
in the amount of $25,000, which amount constitutes a fee due and owing to Agent
on the date hereof in respect of this Agreement and the transactions
contemplated hereby, which amount is non-refundable;
(c) a
bank agency or other similar agreement with the Agent and the applicable
Borrowers, in form and substance satisfactory to the Agent, in order to give the
Agent "control" (as defined in the Uniform Commercial Code) of each depositary
or other deposit account maintained by each Borrower at each financial
institution at which any Borrower maintains any such account, excepting any such
accounts for which such agreements are not required pursuant to the provisions
of Section 11.11(e) of the Credit Agreement, as amended hereby; and
(d) the
pledge with Agent, pursuant to documentation in form and substance satisfactory
to Agent and Lenders, of (i) a certificate of deposit or other Collateral
acceptable to Agent in an amount equal to (or in excess of) the Stated Amount of
all Letters of Credit and (ii) any and all Investments held by any Borrower, and
maintained by Agent or any Affiliate of Agent.
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SECTION
8.
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MISCELLANEOUS
|
8.1. 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. Borrowers further acknowledge that Agent intends
to conduct a field examination inspection of the Collateral shortly following
the date hereof, and Borrowers shall cooperate fully with any such
inspection.
8.2. Continuing Effect of Credit
Agreement. Except as modified pursuant hereto, no other
changes or modifications to the Credit Agreement and the other Loan Documents
are intended or implied by this Agreement and in all other respects the Credit
Agreement and the 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 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.
8.3. 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.
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8.4. 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.
8.5. 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.
8.6. 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.
8.7. 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, any of the other Loan Documents or any of the transactions hereunder
or thereunder.
(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.
8.8. 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 8.6 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.
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8.9. 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.
8.10. Reviewed by
Attorneys. Each Borrower represents and warrants to Agent and
Lenders that it (a) understands fully the terms of this Agreement and the
consequences of the execution and delivery of this Agreement, (b) has been
afforded an opportunity to discuss this Agreement with, and have this Agreement
reviewed by, such attorneys and other persons as such Borrower may wish, and
(c) has entered into this Agreement and executed and delivered all
documents in connection herewith of its own free will and accord and without
threat, duress or other coercion of any kind by any Person. The
parties hereto acknowledge and agree that neither this Agreement nor the other
documents executed pursuant hereto shall be construed more favorably in favor of
one than the other based upon which party drafted the same, it being
acknowledged that all parties hereto contributed substantially to the
negotiation and preparation of this Agreement and the other documents executed
pursuant hereto or in connection herewith.
8.11. Disgorgement. If
Agent or any Lender is, for any reason, compelled by a court or other tribunal
of competent jurisdiction to surrender or disgorge any payment, interest or
other consideration described hereunder to any person because the same is
determined to be void or voidable as a preference, fraudulent conveyance,
impermissible set-off or for any other reason, such indebtedness or part thereof
intended to be satisfied by virtue of such payment, interest or other
consideration shall be revived and continue as if such payment, interest or
other consideration had not been received by Agent or such Lender, and the
Borrowers shall be liable to, and shall indemnify, defend and hold Agent or such
Lender harmless for, the amount of such payment or interest surrendered or
disgorged. The provisions of this Section 8.10 shall survive
execution and delivery of this Agreement and the documents, agreements and
instruments to be executed or delivered herewith.
8.12. Relationship. Each
Borrower agrees that the relationship between Agent and such Borrower and
between each Lender and Borrower is that of creditor and debtor and not that of
partners or joint venturers. This Agreement does not constitute a
partnership agreement, or any other association between Agent and any Borrower
or between any Lender and any Borrower. Each Borrower acknowledges
that Agent and each Lender has acted at all times only as a creditor to such
Borrower within the normal and usual scope of the activities normally undertaken
by a creditor and in no event has Agent or any Lender attempted to exercise any
control over such Borrower or its business or affairs. Each Borrower
further acknowledges that Agent and each Lender has not taken or failed to take
any action under or in connection with its respective rights under the Credit
Agreement and the other Loan Documents that in any way or to any extent has
interfered with or adversely affects such Borrower's ownership of
Collateral.
8.13. 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
- 8
-
8.14. 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.
8.15. 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]
- 9
-
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
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
|
THE
XXXXX GROUP, INC.,
as
a Borrower
By:
/s/ Xxxxxxx
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
XXXXX
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
By:
/s/ Xxxxxxx
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
XXXXX
WORLDWIDE TRANSPORTATION, INC.,
as
a Borrower
By:
/s/ Xxxxxxx
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
HIGHWAY
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
By:
/s/ Xxxxxxx
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
EVERGREEN
EXPRESS LINES, INC.,
as
a Borrower
By:
/s/ Xxxxxxx
Xxxxxxxx
Title:
Vice President & Treasurer
|
|
BANK
OF AMERICA, N.A.,
as
Administrative Agent and as a Lender
By: /s/
Xxxxxxx Xxxxxxx
Title:
Assistant Vice President
|
EXHIBIT
A
to
Anticipated
Defaults
1. Any
failure of Borrowers to permit (i) the Senior Debt to EBITDA Ratio to exceed 2.0
to 1.0, (ii) the Fixed Charge Coverage Ratio to be less than 1.25 to 1.0 and/or
(iii) the Total Debt to EBITDA Ratio to exceed 2.5 to 1.0, in each case as of
the last day of the Computation Periods ended July 31, 2009 and August 31,
2009.
Existing
Defaults
1. Permitted
Senior Debt to EBITDA Ratio as of the last day of each of the Computation
Periods ended April 30, 2009, May 30, 2009 and June 30, 2009 to exceed 2.0 to
1.0, constituting a breach of Section 11.14.1 of the Credit Agreement and an
Event of Default pursuant to Section 13.1.5 of the Credit
Agreement.
2. Permitted
the Fixed Charge Coverage Ratio as of the last day of each of the Computation
Periods ended April 30, 2009, May 30, 2009 and June 30, 2009 to be less than
1.25 to 1.0, constituting a breach of Section 11.14.2 of the Credit Agreement
and an Event of Default pursuant to Section 13.1.5 of the Credit
Agreement.
3.
Permitted Total Debt to EBITDA Ratio as of the last day of each of the
Computation Periods ended April 30, 2009, May 30, 2009 and June 30, 2009 to
exceed 2.5 to 1.0, constituting a breach of Section 11.14.3 of the Credit
Agreement and an Event of Default pursuant to Section 13.1.5 of the Credit
Agreement.
4. For
any date on or prior to the date hereof, permitted bank deposits in an aggregate
amount in excess of $350,000 to be maintained with Persons other than the Agent,
constituting a breach of Section 11.11(e) of the Credit Agreement and an Event
of Default pursuant to Section 13.1.5 of the Credit Agreement.
Exhibit
A
Page
1
EXHIBIT
B
to
FORM OF COMPLIANCE
CERTIFICATE
To: Bank
of America, N.A., as Administrative Agent
Please
refer to the Credit Agreement dated as of February 12, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit Agreement")
among Xxxxx Holdings, Inc. (f/k/a Global Logistics Acquisition Corporation), The
Xxxxx Group, Inc., Xxxxx Distribution Systems, Inc., Xxxxx Worldwide
Transportation, Inc., Highway Distribution Systems, Inc., Evergreen Express
Lines, Inc., various financial institutions and Bank of America, N.A., as
Administrative Agent. Terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement. Please also refer to
the Amendment and Forbearance Agreement dated as of September 15, 2009 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Forbearance
Agreement") among the Borrowers, the Lenders and Administrative
Agent.
|
I.
|
Reports. Enclosed
herewith is a copy of the [annual
audited/quarterly/monthly] report of Holdings as at _____________,
____ (the "Computation
Date"), which report fairly presents in all material respects the
financial condition and results of operations [(subject to the absence of
footnotes and to normal year-end adjustments)] of Holdings and its
Subsidiaries as of the Computation Date and has been prepared in
accordance with GAAP consistently
applied.
|
|
II.
|
Financial
Tests. The Borrowers hereby certify and warrant to you
that the following is a true and correct computation as at the Computation
Date of the following ratios and/or financial restrictions contained in
the Credit Agreement and Forbearance
Agreement:
|
|
A.
|
Section 5.2(a)
of Forbearance Agreement – Minimum Cumulative
EBITDA
|
| 1. Cumulative EBITDA |
$________
|
|
| (Fiscal Month starting closest to July 1 through date of determination) | ||
| 2. Pro Forma Target EBITDA for such period | $________ | |
| 3. Sum of (1) and (2) (Adjusted EBITDA) | $________ | |
| 4. Minimum Required EBITDA for such period | $________ | |
| 5. In compliance | Yes/No |
|
B.
|
Section 5.2(b)
of Forbearance Agreement - Minimum Fixed Charge Coverage
Ratio
|
| 1. EBITDA for Fiscal Quarter |
$________
|
|
| 2. Income taxes paid | $________ | |
| 3. Unfinanced Capital Expenditures | $________ | |
| 4. Sum of (2) and (3) | $________ |
Exhibit B
Page 1
| 5. Remainder of (1) minus (4) |
$________
|
|
| 6. Interest Expense | $________ | |
|
7. Required
payments of principal
of Funded Debt (including
the Term Loans but excluding Revolving Loans)
|
$________ | |
| 8. Distributions made to holders of Holdings' Capital Securities, and amounts paid to purchase or redeem such Capital Securities | $________ | |
| 9. Sum of (6), (7) and (8) | ____ to 1.00 | |
| 11. Minimum Required | 2.50 to 1.00 | |
| 12. In Compliance | Yes/No |
C. Section
5.3 of Forbearance Agreement – EBITDA Recapture
| 1. Cumulative EBITDA |
$________
|
|
| (A.1 above, but disregarding any negative EBITDA) | ||
| 2. Minimum Required EBITDA (A.4 above) | $________ | |
|
3. Difference
between (1) minus (2)
|
$________ | |
| 4. 15% of (3) (Required Prepayment Amount) | $________ |
D. Section 11.14.5
of Credit Agreement - Capital Expenditures
| 1. Capital Expenditures for the Fiscal Year (other than in respect of Specified Systems CapEx) |
$________
|
|
| 2. Maximum Permitted Capital Expenditures (other than in respect of Specified Systems CapEx) | $________ | |
|
3. In
Compliance
|
Yes/No | |
| 4. Aggregate Specified Systems CapEx | $________ | |
| 5. Maximum Permitted Specified Systems CapEx | $________ | |
| 6. In Compliance | Yes/No |
Exhibit B
Page 2
The
Borrowers further certify to you that (i) no Event of Default has occurred and
is continuing and (ii) no Termination Event has occurred.
Exhibit B
Page 3
The
Borrowers have caused this Certificate to be executed and delivered by their
duly authorized officer on _________, ____.
| XXXXX HOLDINGS, INC., as a Borrower | |||
|
|
By:
|
||
| Title: | |||
| THE XXXXX GROUP, INC., as a Borrower | |||
|
|
By:
|
||
| Title: | |||
|
XXXXX
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
|
|||
|
|
By:
|
||
| Title: | |||
| XXXXX WORLDWIDE TRANSPORTATION, INC., as a Borrower | |||
|
|
By:
|
||
| Title: | |||
|
HIGHWAY
DISTRIBUTION SYSTEMS, INC.,
as
a Borrower
|
|||
|
|
By:
|
||
| Title: | |||
|
EVERGREEN
EXPRESS LINES, INC.,
as
a Borrower
|
|||
|
|
By:
|
||
| Title: | |||
Exhibit
C
ANNEX
A
LENDERS
AND PRO RATA SHARES
|
Lender
|
Revolving
Commitment Amount
|
Pro
Rata Share
|
Term
Loan Commitment
Amount
|
Pro
Rata Share
|
|
Bank
of America, N.A.
|
$2,218,000
|
100%
|
$4,700,000*
|
100%
|
|
TOTALS
|
$2,218,000
|
100%
|
$4,700,000*
|
100%
|
* In
accordance with the provisions of Section 2.1.2 of the Credit Agreement, the
Term Loan Commitments expired on the earlier of (i) the date on which all Term
Loans were made and (ii) the date that is 60 days following the Closing
Date. As of September 15, 2009, the outstanding principal amount of
the Term Loans is $3,549,942.04.
