WAIVER AND AMENDMENT NO. 2 TO CREDIT AGREEMENT
WAIVER
AND AMENDMENT NO. 2 TO CREDIT AGREEMENT
This
Waiver and Amendment No. 2 to Credit Agreement (this "Amendment"), dated as of
April 17, 2009, is 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).
Reference
is made to that certain Credit Agreement dated as of February 12, 2008, among
the Borrowers, the financial institutions that are or may from time to time
become parties thereto as lenders (together with their respective successors and
assigns, the "Lenders") and Bank of America, N.A. (successor-in-interest to
LaSalle Bank National Association), as Administrative Agent for the Lenders (as
amended or otherwise modified through the date hereof, the "Credit Agreement";
except as otherwise expressly provided for herein, capitalized terms used herein
without definition shall have the meanings ascribed to such terms in the Credit
Agreement).
Borrowers
have advised Administrative Agent and the sole initial Lender
that Borrowers have (i) permitted the Senior Debt to EBITDA Ratio as
of the last day of the Computation Period ended December 31, 2008 to exceed 3.0
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 (the "Senior
Leverage Default"), (ii) permitted the Fixed Charge Coverage Ratio as of the
last day of the Computation Period ended December 31, 2008 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 (the "Fixed
Charge Coverage Default"), (iii) permitted the Total Debt to EBITDA Ratio as of
the last day of the Computation Period ended December 31, 2008 to exceed 3.5 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 (the "Total
Leverage Default"), (iv) failed to give Administrative Agent prompt notice of
each of the Senior Leverage Default, Fixed Charge Coverage Default and Total
Leverage Default, constituting separate breaches of Section 10.1.5(a) of the
Credit Agreement and separate Events of Default pursuant to Section 13.1.5 of
the Credit Agreement (the "Notice Defaults") and (v) an Event of Default exists
pursuant to Section 13.1.6 of the Credit Agreement in respect of computations A,
B and C in the Compliance Certificate delivered to Administrative Agent for the
Fiscal Quarter ended January 3, 2009 (the "Compliance Certificate Default"; the
Senior Leverage Default, the Fixed Charge Coverage Default, the Total Leverage
Default, the Notice Defaults and the Compliance Certificate Default being
referred to collectively as the "Existing Defaults"). Borrowers have requested
that Administrative Agent and the sole initial Lender waive the Existing
Defaults. Borrowers has further agreed with Administrative Agent and
the sole initial Lender to amend and modify the Credit Agreement as provided
herein, subject to the terms and provisions hereof.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Waiver. Subject
to the conditions set forth in this Amendment, and in reliance on the
representations, warranties, covenants and other agreements contained herein,
Administrative Agent and the sole initial Lender hereby waive the Existing
Defaults. The foregoing waivers are expressly intended to be limited
in scope and, except as otherwise expressly provided, shall not be construed as
a waiver, consent or as an amendment or modification of the Credit
Agreement.
2. Amendments to Credit
Agreement. Subject to the conditions set forth in this Amendment, and in
reliance on the representations, warranties, covenants and other agreements
contained herein, the parties hereto hereby agree to amend and modify the Credit
Agreement as follows:
2.1. The
defined term "Applicable Margin", set forth in Section 1.1 of the Credit
Agreement, is hereby deleted in its entirety.
2.2. The
defined term "Base Rate Margin", set forth in Section 1.1 of the Credit
Agreement, is hereby amended and restated in it is entirety as
follows:
Base Rate Margin
means, as of any date of determination, 2.50% per annum.
2.3. The
defined term "Borrowing Base", set forth in Section 1.1 of the Credit Agreement,
is hereby amended and restated in it is entirety 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 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.
2.4. The
defined term "Computation Period", set forth in Section 1.1 of the Credit
Agreement, is hereby amended and restated in its entirety as
follows:
Computation Period
means each period of twelve consecutive Fiscal Months ending on the last day of
a Fiscal Month.
-2-
2.5. The
defined term "EBITDA", set forth in Section 1.1 of the Credit Agreement, is
hereby amended and restated in its entirety 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, transaction costs,
expenses and severance expense in connection with Permitted Acquisitions, in
each case to the extent approved by Administrative Agent in its reasonable
discretion, charges resulting from the impairment of goodwill and intangible
assets attributable to the Purchase Agreement, and costs and expenses in
connection with the Related Agreements (other than the Employment Agreements),
in each case to the extent approved by Administrative Agent in its reasonable
discretion; provided, that, notwithstanding anything to the contrary contained
herein, (i) for the Fiscal Months ending on or about February 28, 2007,
March 31, 2007, April 30, 2007, May 31, 2007, June 30, 2007,
July 31, 2007, August 31, 2007, September 30, 2007,
October 31, 2007, November 30, 2007 and December 31, 2007, EBITDA
shall be deemed to be $629,275, $680,185, $1,046,641, $557,864, $995,531,
$887,473, $922,805, $1,036,710, $1,222,029, $403,135 and ($461,991),
respectively, and (ii) for the Fiscal Month ending on or about January 31,
2008, EBITDA shall be computed based on the consolidated results of Xxxxx
Holdings and its Subsidiaries pursuant to financial statements delivered
pursuant to Section
10.1.2, subject to adjustments consistent with those used in determining
the amounts specified in the preceding clause (i).
2.6. The
defined term "L/C Fee Rate", set forth in Section 1.1 of the Credit Agreement,
is hereby amended and restated in it is entirety as follows:
L/C Fee Rate means,
as of any date of determination, 4.0% per annum; provided, that with
respect to Cash Collateralized Letters of Credit, the L/C Fee Rate shall mean
1.75% per annum.
2.7. The
defined term "LIBOR Margin", set forth in Section 1.1 of the Credit Agreement,
is hereby amended and restated in it is entirety as follows:
LIBOR Margin means,
as of any date of determination, 4.00% per annum.
2.8. The
defined term "LIBOR Rate", set forth in Section 1.1 of the Credit Agreement, is
hereby amended by inserting the following new sentence at the end of such
defined term: "Notwithstanding anything to the contrary set forth in
this definition, at no time shall the LIBOR Rate be less than 3.0% per
annum."
2.9. The
defined term "Non-Use Fee Rate", set forth in Section 1.1 of the Credit
Agreement, is hereby amended and restated in it is entirety as
follows:
-3-
Non-Use Fee Rate
means, as of any date of determination, 0.675% per annum.
2.10. The
defined term "Revolving Commitment", set forth in Section 1.1 of the Credit
Agreement, is hereby amended and restated in its entirety as
follows:
Revolving Commitment
means, as to any Lender as of any date of determination, the amount specified
for such Lender as the "Revolving Commitment Amount" on Annex A hereto,
subject to adjustment pursuant to any and all Assignment Agreements entered into
by such Lender following the Closing Date, in each case as such amount may be
reduced from time to time pursuant to Section 6.1.
2.11. The
defined term "Revolving Loan Availability", set forth in Section 1.1 of the
Credit Agreement, is hereby amended and restated in its entirety as
follows:
Revolving Loan
Availability means, as of any date of determination, the lesser of (i)
the aggregate Revolving Commitments of all Lenders and (ii) the sum of (x) the
Borrowing Base plus (y) the Stated
Amount of Cash Collateralized Letters of Credit on such date minus (z) the
outstanding principal amount of the Term Loans on such date.
2.12. The
defined term "Tangible Net Worth" is hereby added to Section 1.1 of the Credit
Agreement in appropriate alphabetical order, which term shall read as
follows:
Tangible Net Worth of
Holdings and its Subsidiaries means, as of any date, the value of the total
consolidated assets of Holdings and its Subsidiaries (including leaseholds and
leasehold improvements and reserves against assets, but excluding goodwill,
patents, trademarks, trade names, organization expense, unamortized debt
discount and expense, capitalized or deferred research and development costs,
deferred marketing expenses and other like intangibles according to GAAP and
monies due from Affiliates, officers, directors, employees, shareholders,
members or managers of Holdings or any of its Subsidiaries), less the total
consolidated liabilities of Holdings and its Subsidiaries.
2.13. Section
2.1.1 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
2.1.1 Revolving
Commitment. Each Lender with a Revolving Commitment agrees to
make loans on a revolving basis ("Revolving Loans")
from time to time until the Termination Date in such Lender's Pro Rata Share of
such aggregate amounts as any Borrower may request from all Lenders; provided that
(i) the Revolving Outstandings will not at any time exceed Revolving Loan
Availability and (ii) the Holdco Borrowers shall have no right, following
the Closing Date, to request any Revolving Loans, and no Lender shall have any
obligation following the Closing Date to make any Revolving Loans to or for the
account of any Holdco Borrower.
-4-
2.14. Section
2.1.3 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
2.1.3 L/C
Commitment. Subject to Section 2.3.1,
the Issuing Lender agrees to issue letters of credit, in each case containing
such terms and conditions as are permitted by this Agreement and are reasonably
satisfactory to the Issuing Lender (each, a "Letter of Credit"),
at the request of and for the account of any Operating Borrower from time to
time before the scheduled Termination Date and, as more fully set forth in Section 2.3.2,
each Lender agrees to purchase a participation in each such Letter of Credit;
provided that
(a) the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $2,000,000 and (b) the Revolving Outstandings shall not at any time
exceed Revolving Loan Availability.
2.15. Clause
(b) of Section 6.2.2 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
(b) If
on any day the Revolving Outstandings exceed the Revolving Loan Availability,
the Borrowers shall immediately prepay Revolving Loans or Cash Collateralize
outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
2.16. Section
11.14.1 of the Credit Agreement is hereby amended by deleting the reference
therein to "3.0 to 1.0", and by inserting in lieu thereof a reference to "2.0 to
1.0".
2.17. Section
11.14.3 of the Credit Agreement is hereby amended by deleting the reference
therein to "3.5 to 1.0", and by inserting in lieu thereof a reference to "2.5 to
1.0".
2.18. New
Section 11.14.5 is hereby added to the Credit Agreement, which section shall
read as follows:
11.14.5. Tangible Net
Worth. Not permit Tangible Net Worth as of (i) January 2, 2010
to be less than $1,000,000 and (ii) each Computation Period ending after January
2, 2010 to be less than $1,000,000 plus 75% of positive
Consolidated Net Income from the period commencing on January 2, 2010
through the last day of such Computation Period.
2.19. Section
15.1 of the Credit Agreement is hereby amended by deleting the clause "(except
for periodic adjustments of interest rates and fees resulting from a change in
the Applicable Margin as provided for in this Agreement)" set forth
therein.
-5-
2.20. Annex A to the Credit
Agreement is hereby amended and restated in its entirety as set forth on Exhibit A
hereto.
2.21. Exhibit B to the
Credit Agreement is hereby amended and restated in its entirety as set forth on
Exhibit B
hereto.
2.22. Exhibit C to the
Credit Agreement is hereby amended and restated in its entirety as set forth on
Exhibit C
hereto.
3. Acquisitions. Notwithstanding
anything to the contrary set forth in the Credit Agreement, no Borrower shall
consummate any Permitted Acquisition following the date hereof financed in whole
or in part with proceeds of any Loans, absent the prior written consent of
Administrative Agent, in its sole and absolute discretion.
4. Conditions
Precedent. The effectiveness of the amendments set forth above
is subject to the satisfaction of the following conditions precedent or
concurrent:
(a) Cash
Collateralization of all presently outstanding Letters of Credit;
(b) Receipt
by Administrative Agent of counterparts to this Amendment duly executed and
delivered by the Borrowers;
(c) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Administrative Agent and its legal counsel;
and
(d) No
Unmatured Event of Default or Event of Default (other than Existing Defaults)
shall have occurred and be continuing.
5. Representations and
Warranties. To induce Administrative Agent and the sole
initial Lender to enter into this Amendment, each of the Borrowers represents
and warrants to Administrative Agent and Lender:
(a) that the
execution, delivery and performance of this Amendment has been duly authorized
by all requisite corporate action on the part of such Borrower and that this
Amendment has been duly executed and delivered by such Borrower;
(b) that each
of the representations and warranties set forth in the Loan Documents (other
than those which, by their terms, specifically are made as of certain date prior
to the date hereof) are true and correct in all material respects as of the date
hereof; and
-6-
(c) that no
Unmatured Event of Default or Event of Default (other than Existing Defaults)
has occurred and is continuing as of the date hereof.
6. Amendment
Fee. In consideration of the transactions contemplated hereby,
Borrowers hereby agree to pay to Administrative Agent a fully-earned and
non-refundable fee in the amount of $50,000 (the "Amendment
Fee"). Administrative Agent hereby confirms that Administrative Agent
has applied against the Amendment Fee the $50,000 received by Administrative
Agent pursuant to that certain letter dated March 27, 2009 delivered by
Administrative Agent to Borrowers.
7. Miscellaneous.
7.1. Reaffirmation. Each
Borrower hereby consents to each other Borrower's execution and delivery of this
Amendment and agrees to be bound hereby. Each Borrower hereby affirms
that nothing contained herein shall modify in any respect whatsoever its
obligations pursuant to the terms of the Guaranty and Collateral Agreement and
reaffirms that the Guaranty and Collateral Agreement is and shall continue to
remain in full force and effect.
7.2. Expenses. The
Borrowers hereby acknowledge and agree that this Amendment is a "Loan Document"
for purposes of, among other things, Section 15.5 of the Credit
Agreement.
7.3. Event of
Default. The Borrowers hereby acknowledge and agree that the
breach by any Borrower of any of the representations, warrants and/or covenants
set forth in this Amendment shall constitute an Event of Default.
7.4. Governing
Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
7.5. Severability.
Any provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
7.6. Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall
constitute an original, but all of which taken together shall be one and the
same instrument.
7.7. Ratification. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions of the Credit Agreement and shall not be
deemed to be a consent to the modification or waiver of any other term or
condition of the Credit Agreement. Except as expressly modified and
superseded by this Amendment, the terms and provisions of the Credit Agreement
are ratified and confirmed and shall continue in full force and
effect.
-7-
7.8. Reference. Any
reference to the Credit Agreement contained in any document, instrument or
agreement executed in connection with the Credit Agreement shall be deemed to be
a reference to the Credit Agreement as modified by this Amendment.
7.9. Successors. This
Amendment shall be binding upon the Borrowers, the Lenders, Administrative Agent
and their respective successors and assigns, and shall inure to the benefit of
the Borrowers, the Lenders, Administrative Agent and their respective successors
and assigns.
-8-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized and delivered at Chicago,
Illinois as of the date first written above.
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XXXXX
HOLDINGS, INC. (f/k/a Global Logistics
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|||
|
Acquisition
Corporation), as a Borrower
|
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By:
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/s/
Xxxxxxx Xxxxxxxx
|
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Title:
|
Vice
President & Treasurer
|
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|
THE
XXXXX GROUP, INC.,
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|
as
a Borrower
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|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
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Title:
|
Vice
President & Treasurer
|
||
|
XXXXX
DISTRIBUTION SYSTEMS, INC.,
|
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|
as
a Borrower
|
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By:
|
/s/
Xxxxxxx Xxxxxxxx
|
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|
Title:
|
Vice
President & Treasurer
|
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|
XXXXX
WORLDWIDE TRANSPORTATION, INC.,
|
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as
a Borrower
|
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By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Vice
President & Treasurer
|
||
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HIGHWAY
DISTRIBUTION SYSTEMS, INC.,
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as
a Borrower
|
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By:
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/s/
Xxxxxxx Xxxxxxxx
|
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Title:
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Vice
President & Treasurer
|
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EVERGREEN
EXPRESS LINES, INC.,
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|
as
a Borrower
|
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By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
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Title:
|
Vice
President & Treasurer
|
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BANK
OF AMERICA, N.A.,
|
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|
as
Administrative Agent and as a Lender
|
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By:
|
/s/
Xxxxxx X. Xxxx
|
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|
Title:
|
Senior Vice
President
|
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Exhibit
A
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.
|
$ | 3,000,000 | 100 | % | $ | 4,700,000 | * | 100 | % | |||||||
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TOTALS
|
$ | 3,000,000 | 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 April 17, 2009, the outstanding principal amount of the
Term Loans is $3,786,605.
Exhibit
B
EXHIBIT
B
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.
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I.
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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.
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II.
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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:
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A.
|
Section 11.14.1
– Senior Debt to EBITDA Ratio
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|
1.
|
Senior
Debt
|
$________
|
|
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2.
|
EBITDA
|
$________
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3.
|
Pro
Forma Target EBITDA
|
$________
|
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4.
|
Sum
of (2) and (3) (Adjusted EBITDA)
|
$________
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5.
|
Ratio
of (1) to (4)
|
____
to 1
|
|
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6.
|
Maximum
allowed
|
2.0
to 1
|
|
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B.
|
Section
11.14.2 - Minimum Fixed Charge Coverage Ratio
|
||
|
1.
|
EBITDA
(from Item A(2) above)
|
$________
|
|
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2.
|
Income
taxes paid
|
$________
|
|
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3.
|
Unfinanced
Capital Expenditures
|
$________
|
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Exhibit
B
Page
1
|
4.
|
Sum
of (2) and (3)
|
$________
|
|
|
5.
|
Remainder
of (1) minus (4)
|
$________
|
|
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6.
|
Interest
Expense
|
$________
|
|
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7.
|
Required
payments of principal of Funded Debt (including the Term Loans but
excluding Revolving Loans)
|
$________
|
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8.
|
Distributions
made to holders of Holdings' Capital Securities, and amounts paid to
purchase or redeem such Capital Securities
|
$________
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9.
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Sum
of (6), (7) and (8)
|
$________
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10.
|
Ratio
of (5) to (9)
|
____
to 1.00
|
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11.
|
Minimum
Required
|
1.25
to 1.00
|
|
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C.
|
Section
11.14.3 - Maximum Total Debt to EBITDA Ratio
|
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1.
|
Total
Debt
|
$________
|
|
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2.
|
Adjusted
EBITDA (from Item A(4) above)
|
$________
|
|
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3.
|
Ratio
of (1) to (2)
|
____
to 1
|
|
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4.
|
Maximum
allowed
|
2.5
to 1
|
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D.
|
Section
11.14.5 - Capital Expenditures
|
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|
1.
|
Capital
Expenditures for the Fiscal Year (other than in respect of Specified
Systems CapEx)
|
$__________
|
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2.
|
Maximum
Permitted Capital Expenditures (other than in respect of Specified Systems
CapEx)
|
$__________
|
|
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3.
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Aggregate
Specified Systems CapEx
|
$__________
|
|
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4.
|
Maximum
Permitted Specified Systems CapEx
|
$__________
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Exhibit
B
Page
2
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E.
|
Section
11.14.6 - Tangible Net Worth (effective as of 01/02/2010)
|
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|
1.
|
Total
consolidated assets
|
$__________
|
|
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2.
|
Goodwill,
patents, trademarks, trade names, organization expense, unamortized debt
discount and expense, capitalized or deferred research and development
costs, deferred marketing expenses and other like intangibles according to
GAAP
|
$__________
|
|
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3.
|
monies
due from Affiliates, officers, directors, employees, shareholders, members
or managers of Holdings or any of its Subsidiaries
|
$__________
|
|
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4.
|
Total
consolidated liabilities
|
$__________
|
|
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5.
|
Sum
of (2), (3) and (4)
|
$__________
|
|
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6.
|
(1)
minus (5)
|
$__________
|
|
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7.
|
Positive
Consolidated Net Income from January 1, 2010 through the Computation
Date
|
$__________
|
|
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8.
|
75%
of (7)
|
$__________
|
|
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9.
|
Sum
of $1,000,000 plus (8)
(Minimum required Tangible Net Worth)
|
$_________
|
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The
Borrowers further certify to you that no Event of Default has occurred and is
continuing.
Exhibit
B
Page
3
The
Borrowers have caused this Certificate to be executed and delivered by their
duly authorized officer on _________, ____.
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XXXXX
HOLDINGS, INC., as a Borrower
|
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|
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
EXHIBIT
C
FORM OF BORROWING BASE
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. This certificate (this "Certificate"),
together with supporting calculations attached hereto, is delivered to you
pursuant to the terms of the Credit Agreement. Capitalized terms used
but not otherwise defined herein shall have the same meanings herein as in the
Credit Agreement.
The
Borrowers hereby certify and warrant to the Administrative Agent and the Lenders
that at the close of business on ______________, ____ (the "Calculation Date"),
the Borrowing Base was $_____________, computed as set forth on the schedule
attached hereto.
The
Borrowers have caused this Certificate to be executed and delivered by their
officer thereunto duly authorized 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:
|
|||
Exhibit
C
Page
1
|
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
Page
2
SCHEDULE
TO BORROWING BASE CERTIFICATE
DATED
AS OF [_________________]
|
1.
|
Gross
Accounts
|
|
$_________ | |
|
2.
|
Less
Ineligibles
|
|
-
|
Services
not fully performed
|
$_________
|
||
|
-
|
Subject
to other Lien or Administrative
|
|||
|
|
Agent's
Lien not perfected
|
$_________ | ||
|
-
|
Subject
to Offset, etc.
|
$_________
|
||
|
-
|
Account
Debtor subject to bankruptcy
|
$_________
|
||
|
-
|
Account
Debtor not in U.S. or Canada
|
$_________
|
||
|
-
|
Sale
on Approval, Sale or
|
|||
|
|
Return, Xxxx and Hold or | |||
|
|
|
Consignment | $_________ | |
|
-
|
Not
ordinary course of business
|
$_________
|
||
|
-
|
Federal
Accounts not assigned
|
$_________
|
||
|
-
|
Exceeds
credit limit
|
$_________
|
||
|
-
|
Evidenced
by non-assigned
instrument etc.
|
$_________
|
|
|
|
-
|
Over 30 days past due
or
|
|||
|
|
|
over 60 days past invoice date | $_________ | |
|
-
|
Business
Activity Report jurisdiction
|
$_________
|
||
|
-
|
Affiliate
Receivables
|
$_________
|
||
|
-
|
Cross
aged Accounts
|
$_________
|
||
|
-
|
Concentration
limit (25%)
|
$_________
|
||
|
-
|
Other
Administrative Agent exclusions
|
$_________
|
||
|
-
|
Total
|
|
$_________
|
|
3.
|
Eligible
Accounts [Item 1
minus Item 2]
|
$__________
|
|
4.
|
Item
3 times 80%
|
$__________
|
|
5.
|
Appraised
value of Eligible Real Estate
|
$__________
|
|
6.
|
Item
5 times 50%
|
$__________
|
|
7.
|
Cash
Equivalent Investments subject to a control agreement
|
|
|
in
favor of Administrative Agent
|
$__________
|
|
|
8.
|
Borrowing
Base [Item 4 plus Item 6
plus Item 7]
|
$__________
|
|
9.
|
Cash
Collateralized Letters of Credit
|
$__________
|
|
10.
|
Outstanding
principal amount of Term Loans
|
$__________
|
|
11.
|
Item
8 plus Item 9 minus Item 10
|
$__________
|
|
12.
|
Revolving
Loan Availability [Lesser
of Item 11 and the
aggregate Revolving Commitments of all
Lenders]
|
$__________ |
|
|
Exhibit
C
Page
3
|
13.
|
Revolving
Outstandings (includes Stated Amount of Letters of Credit)
|
$__________
|
|
14.
|
Excess
Revolving Loan Availability
|
|
|
|
[Excess of Item 12 over Item 13] |
$_________
|
|
|
||
|
15.
|
Required
Prepayment
|
|
|
|
[Excess of Item 13 over Item 12] |
$_________
|
Exhibit
C
Page
4
