Third Amendment to Credit Agreement
EXHIBIT
10.1
Third
Amendment to Credit Agreement
This
Third Amendment to Credit Agreement (herein, this “Amendment”) is entered into
as of March 3, 2010 among Hub Group, Inc., a Delaware corporation (the “Public Hub Company”), and
Hub City Terminals, Inc., a Delaware corporation (“Hub Chicago”) (the Public
Hub Company and Hub Chicago being hereinafter referred to collectively as the
“Borrowers” and
individually as a “Borrower”), Xxxxxx X.X. (as
the “Departing Bank”)
and Bank of Montreal (as the “Bank”).
Preliminary
Statements
A.The Borrowers and the Bank entered into a certain Credit
Agreement, dated as of March 23, 2005 (as heretofore amended, the “Credit
Agreement”). All capitalized terms used herein without
definition shall have the same meanings herein as such terms have in the Credit
Agreement.
B. The Borrowers and the Bank
wish to amend the Credit Agreement to, among other things, extend the
stated Termination Date to March 3, 2013.
C.On the date hereof, Xxxxxx X.X. will assign all of its loans and
commitments (in such capacity, the “Departing Bank”) to Bank of
Montreal (in such capacity, the “New Bank), and Bank of
Montreal will join the Credit Agreement as the Bank.
Now, Therefore, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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Section 1.Assignment.
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The
Departing Bank hereby agrees to sell and assign without representation,
recourse, or warranty all of its Obligations and Commitment (except the
Departing Bank represents to New Bank that it has authority to execute and
deliver this Amendment and sell the Obligations owing to it and assign its
Commitment contemplated hereby, which Obligations are owned by the Departing
Bank free and clear of all Liens), and upon the satisfaction of the conditions
precedent set forth in Section 3 hereof, the New Bank hereby agrees to
purchase and assume 100% of the Departing Bank’s outstanding Obligations and
Commitment under the Credit Agreement and the Loan Documents (including, without
limitation, all of the Loans held by the Departing Bank but not including with
respect to the Existing L/Cs as set forth in Section 1.3(a) of the Credit
Agreement) for a purchase price equal to the outstanding principal balance of
Loans owed to the Departing Bank under the Credit Agreement as of the effective
date of this Amendment, which purchase price shall be paid in immediately
available funds on such date. The Departing Bank hereby agrees to
execute such further instruments and documents, if any, as Bank may reasonably
request in connection therewith. The New Bank hereby confirms that it
has received a copy of the Loan Documents and the exhibits related thereto,
together with copies of the documents which were required to be delivered under
the Credit Agreement as a condition to the making of the Loans and other
extensions of credit thereunder. The New Bank acknowledges and agrees that it
has made and will continue to make, independently based on such documents and
information as it has deemed appropriate, its own credit analysis and decisions
relating to the Credit Agreement. The New Bank further acknowledges
and agrees that the Departing Bank has not made any representations or
warranties about the credit worthiness of any Borrower or any other party to the
Credit Agreement or any other Loan Document or with respect to the legality,
validity, sufficiency or enforceability of the Credit Agreement or any other
Loan Document or the value of any security therefor.
Upon
satisfaction of the conditions precedent set forth in Section 3 hereof and
the payment of the purchase price owing to the Departing Bank pursuant hereto,
the Departing Bank shall cease to be the Bank under the Credit Agreement and the
other Loan Documents other than with respect to the Existing L/Cs as set forth
in Section 1.3(a) of the Credit Agreement and (i) the New Bank shall have
the rights of the Departing Bank thereunder subject to the terms and conditions
hereof, and (ii) the Departing Bank shall have relinquished its rights
(other than rights to indemnification and reimbursements referred to in the
Credit Agreement which survive the repayment of the Obligations owed to the
Departing Bank in accordance with its terms) and be released from its
obligations under the Credit Agreement. It is understood that all
unpaid interest and fees accrued to the effective date of this Amendment that
are owed to the Departing Bank with respect to the interest assigned hereby are
for the account of the Departing Bank and such interest and fees accruing from
and including the effective date of this Amendment are for the account of the
New Bank. Each of the Departing Bank and the New Bank hereby agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other, it shall receive the same for the account of such other
party to the extent of such other party’s interest therein and shall promptly
pay the same to such other party.
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Section 2.Amendments.
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Subject
to the satisfaction of the conditions precedent set forth in Section 3
below, the Credit Agreement shall be and hereby is amended as follows:
2.1.Section 1.1 of the Credit Agreement shall be amended by striking
the amount “$50,000,000” appearing therein and substituting therefor the amount
“$10,000,000”
2.2.Section 1.3(a) of the Credit Agreement is hereby amended and
restated in its entirety and as so amended shall be restated to read as
follows:
(a)General
Terms. Subject to the terms and conditions hereof, the
Revolving Credit may be availed of by either Borrower in the form of standby and
commercial letters of credit issued by the Bank for the account of such Borrower
(individually a “Letter of
Credit” and collectively the “Letters of Credit”),
provided that the aggregate amount available for drawing under all Letters of
Credit issued and outstanding hereunder shall not at any one time exceed
$8,000,000. For purposes of this Agreement, a Letter of Credit shall
be deemed outstanding as of any time in an amount equal to the undrawn face
amount thereunder plus any unreimbursed drawings then outstanding with respect
thereto. If and to the extent any Letter of Credit expires or
otherwise terminates without having been drawn upon, the availability under the
Commitment shall to such extent be reinstated. Notwithstanding
anything herein to the contrary, the Existing L/Cs (all of the Existing L/Cs as
of the Third Amendment Effective Date are listed and described on
Schedule 1.3 hereto) issued by Xxxxxx X.X. and the Applications provided in
connection therewith shall each constitute a “Letter of Credit” and an
“Application”, as
applicable, hereunder for all purposes of the Agreement to the same extent, and
with the same force and effect, as if such Existing L/Cs had been issued at the
request of the Borrowers hereunder. All references to “Bank” in Sections 1.3(b),
(c) and (d), Section 3.1(b), the definition of “Payment Default” in Section
5.1, Section 7.1 and Section 9.4 shall be deemed to be references to Xxxxxx X.X.
with respect to Existing L/Cs and shall be deemed to be references to Bank of
Montreal in all other cases.
2.3.Section 1.3(b) of the Credit Agreement is hereby amended and
restated in its entirety and as so amended shall be restated to read as
follows:
(b) Term and Cash Collateralization.
Each Letter of Credit issued hereunder shall expire not later than
12 months from the date of issuance (or be cancelable not later than 12 months
from the date of issuance and each renewal); provided, however, that if
the expiration date of any Letter of Credit issued hereunder extends past the
Termination Date, the Borrowers hereby agree to cause cash collateral to be
posted with the Bank on or before the date thirty (30) days prior to the
Termination Date as then in effect in an amount equal to 105% of the face amount
of all Letters of Credit then outstanding. All amounts paid as cash
collateral shall be held by the Bank in one (1) or more separate collateral
accounts (each such account, and any substitutions for such account, any
certificate of deposit or other instrument evidencing any of the foregoing being
collectively called the “Collateral Account”) as
security for, and for application by the Bank to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the Bank.
The Collateral Account shall be held in the name of and subject to the exclusive
dominion and control of the Bank. The Borrowers hereby grant the Bank
a security interest in and lien on any and all cash collateral paid into the
Collateral Account in accordance with this clause (b) and agree to execute any
documentation reasonably required by the Bank to perfect its security interest
in the Collateral Account. The Borrowers acknowledge and agree that
the Bank may agree to extend or renew a Letter of Credit issued under the Credit
Agreement after the Termination Date. In consideration of any such
extension or renewal, Borrowers agree that all cash collateral posted with
respect to any Letter of Credit issued under the Credit Agreement shall continue
to be pledged to, and subject to the security interest of, the Bank after the
Termination Date as collateral security for any reimbursement and other
obligations related to such Letter of Credit and any extension or renewal
thereof.
2.4.Section 2.5 of the Credit Agreement is hereby amended and
restated in its entirety and as so amended shall be restated to read as
follows:
Section 2.5. Unavailability
of Deposits or Inability to Ascertain Adjusted LIBOR; Inadequacy of Adjusted
LIBOR. Notwithstanding any other provision of this Agreement
or the Note, if prior to the commencement of any Interest Period, the Bank shall
determine in good faith that deposits in the amount of any LIBOR Portion
scheduled to be outstanding during such Interest Period are not readily
available to the Bank in the relevant market or, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining Adjusted LIBOR, or that LIBOR as determined hereby will not
adequately and fairly reflect the cost to the Bank of funding any LIBOR Portion
for such Interest Period or that the making or funding of any LIBOR Portions has
become impracticable, then the Bank shall promptly give notice thereof to the
Borrowers and the obligation of the Bank to create, continue, or effect by
conversion any such LIBOR Portion in such amount and for such Interest Period
shall be suspended until deposits in such amount and for the Interest Period
selected by the relevant Borrower shall again be readily available in the
relevant market and adequate and reasonable means exist for ascertaining
Adjusted LIBOR.
2.5.Section 1.3 of the Credit Agreement is hereby amended to insert a
new clause (e) therein to read as follows:
(e)The Borrowers hereby irrevocably authorize the Bank to make Loans
from time to time hereunder (and any such Loan may be made by the Bank hereunder
without regard to the provisions of Section 7 hereof) for payment of any
reimbursement obligation under an Application (including Applications with
respect to Existing L/Cs, or otherwise); provided, that the Bank shall not be
under any obligation to make any such Loan under this clause, and the Bank shall
incur no liability to the Borrowers or any other Person for its failure to do
so.
2.6.Section 3.1(b) of the Credit Agreement is hereby amended to amend
and restated the proviso appearing at the end of the first sentence of such
Section and as so amended shall be restated to read as follows:
provided, however, that with
respect to the Existing L/Cs existing on the Third Amendment Effective Date, the
first such calculation of such fees shall be on the daily average face amount of
the Existing L/Cs during the period from the Third Amendment Effective Date
through the end of such calendar quarter.
2.7.Section 5.1 of the Credit Agreement is hereby amended to (a)
amend the definition of “LIBOR
Index Rate” found in the definition of “Adjusted LIBOR” to replace
the reference to “Telerate
Page 3750” with a reference to “LIBOR01 Page” and (b) to
delete its entirety the definition of “Telerate Page 3750” found in
the definition of “Adjusted
LIBOR” and to insert in its place a definition of “LIBOR01 Page” to read as
follows:
“LIBOR01 Page” means the
display designated as “LIBOR01 Page” on the Reuters Service (or such other page
as may replace LIBOR01 Page on that service or such other service as may be
nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying British Bankers’ Association Interest Settlement Rates for
U.S. Dollar deposits). Each determination of LIBOR made by the
Bank shall be conclusive and binding absent manifest error.
2.8.Section 5.1 of the Credit Agreement is hereby amended to amend
and restate in their entirety each of the definitions of “Applicable Margin,” “Base Rate,”
Indebtedness for Borrowed Money,” “Permitted Acquisition,” and “Termination Date” and as so
amended shall be restated to read as follows:
“Applicable Margin” means,
with respect to (i) Base Rate Portions of Loans, 1.00%; (ii) LIBOR Portions of
Loans and Letter of Credit Fees, 1.75%; and (iii) Commitment Fees,
0.375%.
“Base Rate” means,
for any day, the rate per annum equal to the greatest
of: (a) the rate of interest announced or otherwise established
by the Bank from time to time as its prime commercial rate as in effect on such
day, with any change in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change in said
prime commercial rate (it being acknowledged and agreed that such rate may not
be the Bank’s best or lowest rate), (b) the sum of (i) the rate
determined by the Bank to be the average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the rates per annum quoted to the Bank at
approximately 10:00 a.m. (Chicago time) (or as soon thereafter as is
practicable) on such day (or, if such day is not a Business Day, on the
immediately preceding Business Day) by two or more Federal funds brokers
selected by the Bank for sale to the Bank at face value of Federal funds in the
secondary market in an amount equal or comparable to the principal amount for
which such rate is being determined, plus (ii) 1/2 of 1%, and (c)
the LIBOR Quoted Rate for such day plus 1.00%. As
used herein, the term “LIBOR
Quoted Rate” means, for any day, the rate per annum equal to the quotient
of (i) the rate per annum (rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a one-month interest period which appears on the LIBOR01 Page as of
11:00 a.m. (London, England time) on such day (or, if such day is not a
Business Day, on the immediately preceding Business Day) divided by
(ii) one (1) minus the Reserve Percentage.
“Indebtedness for Borrowed
Money” means for any Person (without duplication) (i) all
indebtedness created, assumed or incurred in any manner by such Person
representing money borrowed (including by the issuance of debt securities),
(ii) all indebtedness for the deferred purchase price of property or
services (other than trade accounts payable arising in the ordinary course of
business), (iii) all indebtedness secured by any Lien upon Property of such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness, (iv) all Capitalized Lease Obligations of such
Person, (v) all obligations of such Person on or with respect to letters of
credit, bankers’ acceptances and other extensions of credit whether or not
representing obligations for borrowed money and (vi) all net obligations of
such Person under any interest rate, foreign currency, and/or commodity swap,
exchange, cap, collar, floor, forward, future or option agreement, or any other
similar interest rate, currency or commodity hedging arrangement.
“Permitted Acquisition” means
any Acquisition by any member of the Hub Group which satisfies each of the
following requirements: (i) after giving effect to the
Acquisition, no Default or Event of Default has occurred and is continuing,
including with respect to the covenants contained in Section 8.15 on a pro forma
basis, and the Borrowers shall have delivered to the Bank a compliance
certificate in the form of Exhibit B attached hereto evidencing such pro forma
compliance with Section 8.15; and (ii) in the case of the Acquisition of any
Person, the board of directors (or equivalent governing body) of the Person
being acquired shall have approved such Acquisition.
“Termination Date” means
March 3, 2013 or such earlier date on which the Commitment is terminated in
whole pursuant to Section 3.3, 9.2 or 9.3 hereof.
2.9.Section 5.1 of the Credit Agreement is hereby amended to insert
in proper alphabetical order the following new definitions of “OFAC,” “OFAC Event,” “OFAC Sanctions Programs,” “OFAC SDN
List,” and “Third
Amendment Effective Date” to read as follow:
“OFAC” means the United States
Department of Treasury Office of Foreign Assets Control.
“OFAC Event” means the event
specified in Section 8.14(b) hereof.
“OFAC Sanctions Programs”
means all laws, regulations, and Executive Orders administered by OFAC,
including without limitation, the Bank Secrecy Act, anti-money laundering laws
(including, without limitation, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56 (a/k/a the USA Patriot Act)), and all economic and trade
sanction programs administered by OFAC, any and all similar United States
federal laws, regulations or Executive Orders, and any similar laws, regulators
or orders adopted by any State within the United States.
“OFAC SDN List” means the list
of the Specially Designated Nationals and Blocked Persons maintained by
OFAC.
“Third Amendment Effective
Date” means March 3, 2010.
2.10.Section 6.17 of the Credit Agreement is hereby amended to insert
a new sentence to the end of such Section to read as follows:
Neither
Public Hub Company or any Subsidiary thereof has any contingent liabilities with
respect to any post-retirement benefits under a Welfare Plan, other than
liability for continuation of coverage described in Article 6 of Title 1 of
ERISA.
2.11.Section 6 of the Credit Agreement is hereby amended to insert the
following new Section 6.20 therein to read as follows:
Section 6.20. Compliance with Laws;
OFAC. (a) The Borrowers and their Subsidiaries are in
compliance with the requirements of all foreign, federal, state and local
laws, rules and regulations applicable to or pertaining to their Property or
business operations (including, without limitation, the Occupational Safety and
Health Act of 1970, the Americans with Disabilities Act of 1990, and laws and
regulations establishing quality criteria and standards for air, water, land and
toxic or hazardous wastes and substances), non-compliance with which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Borrower nor any Subsidiary has
received notice to the effect that its operations are not in compliance with any
of the requirements of applicable federal, state or local environmental, health
and safety statutes and regulations or are the subject of any governmental
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b)(i) Each Borrower is in compliance in all material respects
with the requirements of all OFAC Sanctions Programs applicable to it;
(ii) each Subsidiary of each Borrower is in compliance in all material
respects with the requirements of all OFAC Sanctions Programs applicable to such
Subsidiary; (iii) each Borrower has provided to the Bank all information
regarding such Borrower and its Affiliates and Subsidiaries necessary for the
Bank to comply with all applicable OFAC Sanctions Programs; and (iv) to the
best of each Borrower’s knowledge, neither the Borrower nor any of its
Affiliates or Subsidiaries is, as of the date hereof, named on the current OFAC
SDN List.
2.12.Section 8.15(a) of the Credit Agreement is hereby amended and
restated in its entirety and as so amended shall be restated to read as
follows:
(a)Net
Worth. The Hub Group shall at all times maintain its Net Worth
of not less than the Minimum Required Amount. For purposes of this
Section, the term “Minimum
Required Amount” shall mean $275,000,000 and shall increase (but never
decrease) by 60% of Net Cash Proceeds of any equity offering completed by any
member of the Hub Group (other than an equity offering to another member of the
Hub Group) after the Third Amendment Effective Date.
2.13.Section 9.1 of Credit Agreement is hereby amended to (a) replace
the period at the end of clause (k) therein with the clause “; or” and (b) insert a new
clause (l) immediately following clause (k) therein to read as
follows:
(l)the occurrence of a Change of Control Event.
2.14.Section 9.2 of the Credit Agreement is hereby amended to insert
the phrase “with respect to
either Borrower” immediately following the reference to “Section 9.1”
therein.
2.15.Section 9.3 of the Credit Agreement is hereby amended to insert
the phrase “with respect to
either Borrower” immediately following the reference to “Section 9.1”
therein.
2.16.Section 11.9 of the Credit Agreement is hereby amended to amend
and restate the contact information for the Bank therein to read as
follows:
Bank of
Montreal
000 Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
Xxxxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
2.17.Section 11 of the Credit Agreement is hereby amended to insert
the following new Section 11.18 therein to read as follows:
Section 11.18. USA Patriot Act. The Bank hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify, and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow the Bank to identify the Borrower in accordance with the
Act.
2.18.Schedule 1.3 of the Credit Agreement is hereby amended and
restated in its entirety and as so amended shall be restated to read as set
forth on Exhibit A attached to this Amendment.
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Section 3.Conditions
Precedent.
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The
effectiveness of this Amendment is subject to the satisfaction of all of the
following conditions precedent:
3.1.The Borrowers and
the Bank shall have executed and delivered this Amendment.
3.2.Each of Public Hub Company and Hub
Chicago, in its capacity as a Guarantor, shall have executed and delivered its
consent to this Amendment in the form set forth below.
3.3.The Bank shall have received an
Additional Guarantor Supplement duly executed by Comtrak Logistics, Inc. (“Comtrak”) in the form of
Exhibit C attached hereto, together with the documentation required from
Material Subsidiaries pursuant to Section 8.14 of the Credit Agreement,
including: (a) copies of resolutions of the Board of Directors of
Comtrak authorizing the execution, delivery and performance of the Additional
Guarantor Supplement, (b) articles of incorporation of Comtrak certified by the
Secretary of State of Delaware, (c) a good standing certificate for Comtrak,
dated as of a date no earlier than 30 days prior to the date hereof, from the
office of the Secretary of State of Delaware and (d) the favorable written
opinion of counsel for Comtrak in form and substance reasonably satisfactory to
the Bank and its counsel.
3.4.The Bank shall have received copies
(executed or certified as may be appropriate) of resolutions of the Board of
Directors or other governing body of each Borrower authorizing the extension of
the stated Termination Date and the execution, delivery, and performance of this
Amendment.
3.5.The Bank shall have received all fees
due and payable on the date hereof under the Fee Letter dated as of the date
hereof between Bank and Borrower.
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Section 4.Representations.
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In order
to induce the Bank to execute and deliver this Amendment, the Borrowers hereby
represent to the Bank that as of the date hereof the representations and
warranties set forth in Section 6 of the Credit Agreement and in the other
Loan Documents are and shall be and remain true and correct in all material
respects (except to the extent the same expressly relate to an earlier date) and
no Default or Event of Default has occurred and is continuing under the Credit
Agreement or shall result after giving effect to this
Amendment. Exhibit B attached hereto identifies each Subsidiary and
each Material Subsidiary as of the date of this Amendment, the jurisdiction of
its incorporation or organization, as the case may be, the percentage of issued
and outstanding shares of each class of its capital stock or other equity
interests owned by the Public Hub Company and, if such percentage is not 100%
(excluding directors’ qualifying shares as required by law), a description of
each class of its authorized capital stock and other equity interests and the
number of shares of each class issued and outstanding.
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Section 5.Miscellaneous.
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5.1.Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original
terms. Reference to this specific Amendment need not be made in the
Credit Agreement, the Note, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or
made pursuant to or with respect to the Credit Agreement, any reference in any
of such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
5.2.The Borrowers agree to pay on demand all reasonable and
documented out-of-pocket costs and expenses of or incurred by the Bank in
connection with the negotiation, preparation, execution and delivery of this
Amendment, including the reasonable and documented fees and expenses of counsel
for the Bank.
5.3.This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of
the parties hereto may execute this Amendment by signing any such counterpart
and each of such counterparts shall for all purposes be deemed to be an
original. Delivery of a counterpart hereof by facsimile transmission
or by e-mail transmission of an Adobe Portable Document Format File (also known
as an “PDF” file)
shall be effective as delivery of a manually executed counterpart
hereof. This Amendment shall be governed by the internal laws of the
State of Illinois.
[Signature
Page Follows.]
This
Third Amendment to Credit Agreement is entered into as of the date and year
first above written.
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Hub
Group, Inc.
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By:
/s/ Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
President and COO
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Hub
City Terminals, Inc.
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By:
/s/ Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
EVP, CFO and Treasurer
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Accepted
and agreed to.
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Xxxxxx X.X., as
Departing Bank and as the “Bank” solely in connection with the Existing
L/Cs
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By:
/s/ Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Vice President
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Bank of Montreal,
as New Bank and the Bank
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By:
/s/ Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Vice President
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