Unassociated Document


    EXHIBIT
10.1

     

    


     

    FIRST AMENDMENT TO CREDIT
AND SECURITY AGREEMENT

     

    THIS
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) is dated as
of May 17, 2010, (the “Effective Date”) by and among COLE TAYLOR BANK (the
“Lender”) and CLARK HOLDINGS
INC., THE CLARK GROUP, INC., CLARK DISTRIBUTION SYSTEMS, INC., HIGHWAY
DISTRIBUTIONS SYSTEMS, INC., CLARK WORLDWIDE TRANSPORTATION, INC., and EVERGREEN
EXPRESS LINES, INC. (collectively, the “Borrowers”).

     

    WITNESSETH:

     

    WHEREAS, the Borrowers and the
Lender entered into that certain Credit and Security Agreement dated as of March
5, 2010, by and among Borrowers and Lender (as amended from time to time, the
“Credit Agreement”); and

    


    WHEREAS, the Borrowers have
requested that the Lender agree to amend the Credit Agreement, and the Lender
has agreed to amend the Credit Agreement on the terms and conditions set forth
below.

    


    NOW, THEREFORE, in
consideration of the foregoing premises and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:

    


    1. All
capitalized terms used herein and not otherwise expressly defined herein shall
have the respective meanings given to such terms in the Credit
Agreement.

     

    2. The
Borrowers acknowledge and agree that effectiveness of this Amendment is
conditioned on:  (a) the payment of the amendment fee of Twenty-Five
Thousand and No/100 Dollars ($25,000.00); (b) the delivery of a fully-executed
original of this Amendment; and, (c) the delivery of such other documents or
instruments as the Lender and its counsel may reasonably request, each in form
and substance satisfactory to the Lender and its counsel.

     

    3. The
Credit Agreement is amended by deleting the definition of “Borrowing Base” from Section
1.01, and substituting the following in lieu thereof:

     

    “‘Borrowing Base’ means at any
time, the lesser of:

     

    (a) The
Maximum Revolving Loan Limit; or

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    (b) Subject
to change from time to time in the Lender’s sole discretion consistently
applied, the sum of:

     

    (i) Eighty-Five
percent (85%) of the Borrowers’ Eligible Accounts provided if Dilution exceeds
five percent (5%), such advance rate shall be reduced by one (1) percentage
point for each whole or partial percentage point by which Dilution exceeds five
percent (5%); plus

     

    (ii) seventy
percent (70%) of the Borrowers’ Eligible Unbilled Accounts, not to exceed One
Million and No/100 Dollars ($1,000,000.00) in the aggregate; less

     

    (iii) the
Hedging Obligation Reserve; less

     

    (iv) the
Availability Reserve; less

     

    (v) the
Carrier Reserve; less

     

    (vi) a reserve
in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) until a release
of lien is received by the Lender from the Internal Revenue Service relating to
the federal tax lien set forth on Schedule 1.01-C;
less

     

    (vii) a reserve
in the amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to
be released provided: (A) no Event of Default Exists at the time of the release;
(B) compliance with a Fixed Charge Coverage of not less than 1.05 to 1.00 for
two consecutive quarters; and (C) Excess Availability is greater than Seven
Hundred Fifty Thousand and No/100 Dollars ($750,000.00) for the preceding thirty
(30) day period.”

     

    4. The
Credit and Security Agreement is amended by deleting Section 12.02 entitled
“Fixed
Charge Coverage” and substituting the following in lieu
thereof:

     

    “12.02                      Fixed
Charge Coverage.

     

    Borrowers
shall not permit Fixed Charge Coverage as of each date set forth below to be
less than the corresponding ratio for such date set forth below:

     

    
      
        	
                Date

              	
                Ratio

              	 
      
	 
      	 
      	 
      
	
                for
      the fifty-two (52) week period ending 

                January 1, 2011
      and each thirteen (13) week quarter 

                end
      thereafter on a rolling twelve (12) month basis.

              	
                1.05
      to 1.0

              	
                 

                 

                 

                ”

              


      

    

    


    5. The
Credit and Security Agreement is amended by deleting Section 12.03 entitled
“Intentionally
Omitted” and substituting the following in lieu thereof:

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    “12.03                      EBITDA.

    


    Borrowers shall not permit EBITDA to be
less than the amount set forth below for the corresponding period set forth
below:


    


    
      	
              Time Period

            	
              Minimum Cumulative EBITDA

            	 
      
	
              eighteen
      (18) week period  ending May 8, 2010

            	
              $<1,958,000.00>

            	 
      
	
              twenty-two
      (22) week period ending June 5, 2010

            	
              $<1,967,000.00>

            	 
      
	
              twenty-six
      (26) week period ending July 3, 2010

            	
              $<1,961,000.00>

            	 
      
	
              thirty-one
      (31) week period ending August 7, 2010

            	
              $<1,587,000.00>

            	 
      
	
              thirty-five
      (35) week period  ending September 4, 2010

            	
              $<1,118,000.00>

            	 
      
	
              thirty-nine
      (39) week period ending October 2, 2010

            	
              $   <704,000.00>

            	 
      
	
              forty-four
      (44) week period ending November 6, 2010

            	
              $       82,000.00  

            	 
      
	
              forty-eight
      (48) week period ending December 4, 2010

            	
              $     562,000.00  

            	
               

              ”

            


    

    


    6. The
Credit Security Agreement is amended by deleting EXHIBIT B entitled “FORM OF
COMPLIANCE CERTIFICATE” and substituting the attached EXHIBIT B in lieu
thereof.

     

    7. The
Borrowers hereby acknowledge that prior to giving effect to this Amendment, the
Borrowers are in default under Sections 12.02 and 13.01(b) of the Credit
Agreement.  The Lender hereby waives the Event of Default under
Sections 12.02 and 13.01(b) through and including the Effective Date, but the
Lender expressly reserves its rights and remedies with respect to any other
default or Event of Default, including, without limitation, any default or Event
of Default with respect to Section 12.02 of the Credit Agreement arising after
the Effective Date.  The Borrowers hereby acknowledge and agree that
the execution and delivery of this Amendment has not established any course of
dealing between the Borrowers and the Lender or any obligation of the Lender
with respect to any future restructuring or modification of the Credit Agreement
or the exercise of the Lender’s rights and remedies thereunder.

     

    8. Each of
the Borrowers hereby restates, ratifies, and reaffirms each and every term,
condition, representation and warranty heretofore made by it under or in
connection with the execution and delivery of the Credit Agreement as amended
hereby and the other Loan Documents (which shall include all documents executed
in connection with this Amendment) as fully as though such representations and
warranties had been made on the date hereof and with specific reference to this
Amendment and the Loan Documents.

     

    9. As
amended hereby, the Credit Agreement shall be and remain in full force and
effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers to the Lender.

     

    10. The
Borrowers agree to pay on demand all costs and expenses of the Lender in
connection with the preparation, execution, delivery and enforcement of this
Amendment and all other Loan Documents and any other transactions contemplated
hereby, including, without limitation, the reasonable fees and out-of-pocket
expenses of legal counsel to the Lender.

     

    11. The
Borrowers agree to take such further action as the Lender shall reasonably
request in connection herewith to evidence the amendments herein contained to
the Credit Agreement.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    12. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument.

     

    13. This
Amendment shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.

     

    14. This
Amendment shall be governed by, and construed in accordance with,
Section 15.03 of the Credit Agreement.

     

    IN WITNESS WHEREOF, the
Borrowers and the Lender have caused this Amendment to be duly executed as of
the date first above written.

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	BORROWERS:	 	
                                         

                                      
	 	 	 
	

                                        CLARK
      HOLDINGS INC.,

                                        a
      Delaware Corporation

                                      	 	 
	 	 	 	 
	By:	
                                         

                                      	 	
                                         

                                      
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	
                                         

                                      	 	
                                         

                                      
	 	 	 	 
	

                                        THE
      CLARK GROUP, INC.,

                                        a
      Delaware Corporation

                                      	 	 
	 	
                                         

                                      	 	
                                         

                                      
	By:	 	 	 
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	 	 	 


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	

                                              

                                                CLARK
      DISTRIBUTION SYSTEMS, INC.,

                                                a
      Delaware Corporation

                                              

                                            	 	 
	 	 	 	 
	By:	
                                               

                                            	 	
                                               

                                            
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	
                                               

                                            	 	
                                               

                                            
	 	 	 	 
	

                                              

                                                

                                                  HIGHWAY
      DISTRIBUTION SYSTEMS, INC.,

                                                  a
      Delaware Corporation

                                                

                                              

                                            	 	 
	 	
                                               

                                            	 	
                                               

                                            
	By:	 	 	 
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	 	 	 


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        	

                                                

                                                  

                                                    

                                                      CLARK
      WORLDWIDE TRANSPORTATION, INC.,

                                                      a
      Pennsylvania Corporation

                                                    

                                                  

                                                

                                              	 	 
	 	 	 	 
	By:	
                                                 

                                              	 	
                                                 

                                              
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	
                                                 

                                              	 	
                                                 

                                              
	 	 	 	 
	

                                                

                                                  

                                                    

                                                      EVERGREEN
      EXPRESS LINES, INC.,

                                                      a
      Pennsylvania Corporation

                                                    

                                                  

                                                

                                              	 	 
	 	
                                                 

                                              	 	
                                                 

                                              
	By:	 	 	 
	Name:	/s/
      Stephen Spritzer	 	 
	Title:	Vice
      President and Treasurer	 	 
	 	 	 	 


                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	LENDER:	 	 
	 	 	 
	
                                                    COLE TAYLOR BANK,

                                                    an Illinois banking corporation

                                                  	 	 
	 	 	 	 
	By:	
                                                     

                                                  	 	
                                                     

                                                  
	Name:	/s/
      Donald A. Tomlinson	 	 
	Title:	Senior
      Vice President 	 	 
	 	
                                                     

                                                  	 	
                                                     

                                                  
	 	 	 	 


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

    

     

    EXHIBIT
B

     

    FORM OF
COMPLIANCE CERTIFICATE

     

    Compliance
Certificate

     

    
      	
              To:

            	
              Cole
      Taylor Bank

            
	
              Date:

            	
              _____________________,
      20___

            
	
              Subject:

            	
              [Borrower]

            
	 
      	 
      


    

    Financial
Statements

     

    In
accordance with our Credit and Security Agreement dated as of ________, 20____,
as amended, modified, extended, renewed, supplemented or restated (the “Credit Agreement”), attached
are the financial statements of _____________ (“Borrower[s]”) of and for the
[month] [fiscal quarter] ended _______________ ____, 20____ (the “Reporting Date”) and the
year-to-date period then ended (the “Current Financials”) required
to be delivered pursuant to Section 7.03 of the Credit
Agreement.  All terms used in this certificate have the meanings given
in the Credit Agreement.

     

    The
Borrower[s] certifies that the Current Financials have been prepared in
accordance with GAAP and fairly present in all material respects the
consolidated financial condition of the Borrower as of the date thereof and in a
manner consistent with prior periods.

     

    Defaults. (Check
one):

     

    The
Borrower[s] further certifies that:

     

    
      	
               
      

            	
              o

            	
              Except
      as previously reported in writing to the Lender, there exists no event or
      circumstance which is or which with the passage of time, the giving of
      notice, or both would constitute an Event of Default, as that term is
      defined in the Agreement, or, if such an event of circumstance exists, a
      writing attached hereto specifies the nature thereof, the period of
      existence thereof and the action that Borrower[s] has taken or proposes to
      take with respect thereto.

            


    

     

    
      	
               
      

            	
              o

            	
              There
      exists no event or circumstance which is or which with the passage of
      time, the giving of notice, or both would constitute an Event of Default,
      as that term is defined in the Agreement, or, if such an event of
      circumstance exists, a writing attached hereto specifies the nature
      thereof, the period of existence thereof and the action that Borrower[s]
      has taken or proposes to take with respect
  thereto.

            


    

     

    Representations and
Warranties:

     

    The
Borrower[s] further certifies that each of the representations and warranties
made by the Borrower[s], any Subsidiary and/or any Owner of the Borrower[s] in
the Credit Agreement and/or in any other Loan Document are true and correct in
all material respects on and as of the date of this Compliance Certificate as if
made on and as of the date of this Compliance Certificate (and for purposes of
this Compliance Certificate, the representations and warranties made by the
Borrower[s] in Section
9.01 of the Credit Agreement shall be deemed to refer to the financial
statements of the Borrower[s] delivered to the Lender with this Compliance
Certificate).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Financial Covenants. The
Borrower further certifies as follows:

     

    1. Minimum Fixed Charge
Coverage. Pursuant to Section 12.02 of the Credit
Agreement, as of the Reporting Date, the Borrowers’ Fixed Charge Coverage was
_____ to 1.00 which o satisfies o does not satisfy the
requirement that such ratio be no less than [____ to 1.00 on the Reporting Date.]
The applicable ratio set forth in the table below on the Reporting
Date:

     

    
      
        
          	
                  Period

                	
                  Minimum Fixed Charge Coverage
      Ratio

                
	
                  Through

                	
                  _____
      to 1.00

                
	
                  Through

                	
                  _____
      to 1.00

                
	
                  Through

                	
                  _____
      to 1.00

                
	
                  Through

                	
                  _____
      to 1.00

                
	 
      	 
      


        

      

    

    


     

    2.           Minimum
EBITDA.  Pursuant to Section 12.03 of the Credit
Agreement, as of the Reporting Date, the Borrowers’ EBITDA for the month ending
as of ____________________, was $____________________ which o satisfies o does not satisfy the
requirement that such amount be not less than [$__________ on the Reporting
Date.]  The amount set forth in the table below (numbers appearing
between “< >” are negative) on the Reporting Date:

     

    
      
        
          	
                  Period

                	
                  Minimum EBITDA

                
	
                  Through

                	
                  $             

                
	
                  Through

                	
                  $             

                
	
                  Through

                	
                  $             

                
	
                  Through

                	
                  $             

                
	 
      	 
      


        

      

    

    


     

    Attached
hereto are all relevant facts in reasonable detail to evidence, and the
computations of the financial covenants referred to above. These computations
were made in accordance with GAAP, subject to normal year-end adjustments and
absence of footnotes.

     

    
      
        
          	 	
                  ,

                	 
	 	
                   a

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	Name 	 	 
	 	Title 	 	 
	 	 	 	 


        

      

    

     

     ,