First Amendment To Amended and Restated Credit Agreement
First
Amendment To
Amended
and Restated
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“First
Amendment”)
is
executed September 23, 2008 (the “First
Amendment Effective Date”),
by
and among PAC-VAN, INC., an Indiana
corporation (the “Company”),
the
financial institutions that are or may from time to time become parties hereto
(together with their respective successors and assigns, the “Lenders”),
LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity, “LaSalle”),
as
administrative agent and collateral agent for the Lenders, and NATIONAL CITY
BANK, as documentation agent for the Lenders.
RECITALS
1. The
Company and Lenders are parties to an Amended and Restated Credit Agreement,
dated as of August 23, 2007 (the “Credit
Agreement”).
2. Company
has requested an increase in the Loan and other modifications of the Credit
Agreement. Subject to the terms and conditions stated in this First Amendment,
the Lenders are willing to modify and amend the Credit Agreement as provided
in
this First Amendment.
Agreement
NOW,
THEREFORE, in consideration of the Recitals, the mutual covenants and agreements
herein, and each act performed and to be performed hereunder, the Lenders and
Company agrees as follows:
1. Definitions.
All
terms used in this First Amendment that are defined in the Credit Agreement
and
that are not otherwise defined in this First Amendment shall have the same
meanings in this First Amendment as are ascribed to them in the Credit
Agreement.
2. Amendments
to Credit Agreement.
(a) Defined
Terms.
(i) The
following definitions in Section
1.1
of the
Credit Agreement are amended, and as so amended, restated as of the First
Amendment Effective Date to read in their entirety as follows:
Agent
Fee Letter
means
the Fee Letter dated as of June 16, 2008 between the Company and the
Administrative Agent.
1
Borrowing
Base
means an
amount equal to the total of (a) 85%
of
the unpaid amount (net of such reserves and allowances as the Administrative
Agent deems necessary in its reasonable discretion) of all Eligible Accounts
plus
(b) 85% of the Net Book Value of all Eligible Inventory (net of such
reserves and allowances as the Administrative Agent deems necessary in its
reasonable discretion), plus
(c) the
lesser of (i) 75% of the cost of the Company’s trucks and trailers held for its
own use (and not for rental) and used in the transportation of rental units
(net
of such reserves and allowances as the Administrative Agent deems necessary
in
its reasonable discretion), and (ii) One Million Dollars ($1,000,000.00).
Letter
of Credit–
see
Section
2.1.2.
Revolving
Commitment
means
One Hundred Twenty Million Dollars ($120,000,000.00) as reduced from time to
time pursuant to Section
6.1.1.
Revolving
Loan Availability
means
the least of (i) the Revolving Commitment, (ii) the Borrowing Base, and (iii)
until such time as Administrative Agent has received from Borrower the written
consent of the Subordinated Note Agent to a One Hundred Twenty Million Dollar
($120,000,000.00) Revolving Commitment, the Pre-Approved Revolving Loan
Ceiling.
Subordinated
Note Agent
means
Laminar Direct Capital, L.L.C., acting in its capacity as collateral agent
under
the Subordinated Note Purchase Agreement.
(ii) The
following new definition is added to Section
1.1
of the
Credit Agreement:
Pre-Approved
Revolving Loan Ceiling
means
Ninety-Five Million Four Hundred Thousand Dollars ($95,400,000.00) less the
approved aggregate Stated Amount of all Letters of Credit. As of the First
Amendment Effective Date, the Pre-Approved Revolving Loan Ceiling equals
Ninety-Three Million Four Hundred Thousand Dollars
($93,400,000.00).
(b) Amendment
of Section 2.1.2.
Section
2.1.2
of the
Credit Agreement is amended, and as so amended, restated as of the First
Amendment Effective Date to read in its entirety as follows:
2.1.2 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 the Company 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 Ten Million Dollars ($10,000,000.00) or such lesser amount approved
by
Administrative Agent in its sole and absolute discretion, and (b) the
Revolving Outstanding shall not at any time exceed Revolving Loan Availability
(less the amount of any Swing Line Loans outstanding at such time).
Notwithstanding the foregoing, as of the First Amendment Effective Date, the
aggregate Stated Amount of all Letters of Credit, until otherwise approved
by
Administrative Agent, shall not at any time exceed Two Million Dollars
($2,000,000.00).
2
(c) Amendment
of Section 6.1.3.
Section
6.1.3 of the Credit Agreement is amended, and as so amended, restated as of
the
First Amendment Effective Date to read as follows:
6.1.3
Intentionally
Omitted.
(d) Amendment
of Section 11.14.1.
Section
11.14.1 of the Credit Agreement is amended, and as so amended, restated as
of
the First Amendment Effective Date to read as follows:
11.14.1
Intentionally
Omitted.
(e) Amendment
of Section 15.1.
Section
15.1 of the Credit Agreement is amended and as so amended, restated as of the
First Amendment Effective Date to read as follows:
15.1 Waiver;
Amendments.
No
delay on the part of the Administrative Agent or any Lender in the exercise
of
any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or remedy preclude
other or further exercise thereof, or the exercise of any other right, power
or
remedy. No amendment, modification or waiver of, or consent with respect to,
any
provision of this Agreement or the other Loan Documents shall in any event
be
effective unless the same shall be in writing and acknowledged by Lenders having
an aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares
expressly designated herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement, by the Required Lenders,
and
then any such amendment, modification, waiver or consent shall be effective
only
in the specific instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall (a) extend or increase the
Commitment of any Lender without the written consent of such Lender, (b) extend
the date scheduled for payment of any principal (excluding mandatory
prepayments) of or interest on the Loans or any fees payable hereunder without
the written consent of each Lender directly affected thereby, (c) reduce the
principal amount of any Loan, the rate of interest thereon or any fees payable
hereunder, without the consent of each Lender directly affected thereby (except
for periodic adjustments of interest rates and fees resulting from a change
in
the Applicable Margin as provided for in this Agreement); or (d) release any
party from its obligations under the Guaranty or all or any substantial part
of
the Collateral granted under the Collateral Documents, change the definition
of
Required Lenders, any provision of this Section
15.1
or any
provision of Section
7.5
or
reduce the aggregate Pro Rata Share required to effect an amendment,
modification, waiver or consent, without, in each case, the written consent
of
all Lenders. No provision of Section
14
or other
provision of this Agreement affecting the Administrative Agent in its capacity
as such shall be amended, modified or waived without the consent of the
Administrative Agent. No provision of this Agreement relating to the rights
or
duties of the Issuing Lender in its capacity as such shall be amended, modified
or waived without the consent of the Issuing Lender. No provision of this
Agreement relating to the rights or duties of the Swing Line Lender in its
capacity as such shall be amended, modified or waived without the consent of
the
Swing Line Lender.
3
(f) Annex
A.
Annex A
of the Credit Agreement is hereby amended, and as so amended, restated as of
the
First Amendment Effective Date to read in its entirety as set forth on
Annex
A
attached
hereto.
(g) Annex
B.
Annex B
of the Credit Agreement is hereby amended, and as so amended, restated as of
the
First Amendment Effective Date to read in its entirety as set forth on
Annex
B
attached
hereto.
(h) Exhibit
C.
Exhibit
C of the Credit Agreement is hereby amended, and as so amended, restated as
of
the First Amendment Effective Date to read in its entirety as set forth on
Exhibit
C
attached
hereto.
(i) Exhibit
E.
Exhibit
E of the Credit Agreement is hereby amended, and as so amended, restated as
of
the First Amendment Effective Date to read in its entirety as set forth on
Exhibit
E
attached
hereto.
3. Representations
and Warranties.
Company
represents and warrants to the Lenders that:
(a)
(i) The
execution, delivery and performance of this First Amendment and all agreements
and documents delivered pursuant hereto by Company does not and will not violate
any provision of any law, rule, regulation, order, judgment, injunction, or
writ
presently in effect applying to Company, or result in a breach of or constitute
a default under any material agreement, lease or instrument to which Company
is
a party or by which Company or any of the properties of Company may be bound
or
affected; (ii) no authorization, consent, approval, license, exemption or
filing of a registration with any court or governmental department, agency
or
instrumentality is or will be necessary to the valid execution, delivery or
performance by Company of this First Amendment and all agreements and documents
delivered pursuant hereto; and (iii) this First Amendment and all agreements
and
documents delivered pursuant hereto by Company are the legal, valid and binding
obligations of Company, as a signatory thereto, and enforceable against Company
in accordance with the terms thereof.
(b) After
giving effect to the amendments contained in this First Amendment, the
representations and warranties contained in Section
9
of the
Credit Agreement are true and correct on and as of the date of execution of
this
First Amendment (except to the extent stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date) with the same force and effect as if made
on
and as of the date of execution of this First Amendment.
4
4. Conditions.
The
obligation of the Lenders to execute and to perform this First Amendment shall
be subject to full satisfaction of the following conditions precedent on or
before the date of execution of this First Amendment:
(a) Copies,
certified as of the date of execution of this First Amendment, of such company
documents and resolutions of Company as Lenders may request evidencing necessary
action by Company to obtain necessary authorization for the execution and
performance of this First Amendment and all other agreements or documents
delivered pursuant hereto as Lenders may reasonably request.
(b) This
First Amendment shall have been duly executed by each Borrower and delivered
to
Lenders and executed by Lenders.
(c) The
Promissory Notes payable to each Lender in form and substance satisfactory
to
the Administrative Agent shall have been duly executed by Company and delivered
to Lenders.
(d) The
Reaffirmation of Guaranty and Collateral Agreement in form and substance
satisfactory to the Administrative Agent shall have been duly executed by
Company and MOAC and delivered to Administrative Agent.
(e) The
Second Amendment to Subordination and Intercreditor Agreement in form and
substance satisfactory to the Administrative Agent shall have been duly executed
by the Company and the Subordinated Note Agent and delivered to Administrative
Agent.
(f) Receipt
by Administrative Agent of an amendment to the Subordinated Note Purchase
Agreement and the Subordinated Notes, acceptable to the Administrative Agent
in
form and substance in its sole discretion, which shall include amendments to
the
financial covenants to match the financial covenants set forth
herein.
(g) Receipt
by Administrative Agent of opinions of counsel for each Loan Party, including
local counsel reasonably requested by the Administrative Agent.
(h) Receipt
by Administrative Agent of a Solvency Certificate executed by a Senior Officer
of the Company.
(i) Receipt
by Administrative Agent of certified copies of Uniform Commercial Code search
reports dated a date reasonably near to the First Amendment Effective Date,
listing all effective financing statements which name any Loan Party (under
their present names and any previous names) as debtors, together with copies
of
such financing statements.
(j) Receipt
by Administrative Agent of a Borrowing Base Certificate dated as of the First
Amendment Effective Date.
5
(k) Receipt
by Administrative Agent of a certificate executed by an officer of the Company
on behalf of the Company certifying the matters set forth in Section
4(l)
of this
First Amendment as of the First Amendment Effective Date.
(l) The
following statements shall be true and correct:
(i) the
representations and warranties of each Loan Party set forth in this First
Amendment and the other Loan Documents shall be true and correct in all respects
with the same effect as if then made (except to the extent stated to relate
to a
specific earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and
(ii) no
Event
of Default or Unmatured Event of Default shall have then occurred and be
continuing.
(m) Receipt
by Administrative Agent of the commitment fee in the aggregate amount of
Seventy-Five Thousand and No/100 Dollars ($75,000.00), payable to each Lender
in
proportion to its share of the increase in the Revolving Commitment effectuated
by this First Amendment.
(n) Company
shall have paid all costs and expenses incurred by the Lenders in connection
with the negotiation, preparation and closing of this First Amendment and the
other documents and agreements delivered pursuant hereto, including the
reasonable attorneys’ fees and out-of-pocket expenses.
(o) Administrative
Agent shall have received such additional agreements, documents, opinions and
certifications, fully executed by Company, as may be reasonably requested by
Administrative Agent.
5. Binding
on Successors and Assigns.
All of
the terms and provisions of this First Amendment shall be binding upon and
inure
to the benefit of the parties hereto, their respective successors, assigns
and
legal representatives.
6. Governing
Law/Entire Agreement/Survival.
This
First Amendment is a contract made under, and shall be governed by and construed
in accordance with, the laws of the State of Illinois applicable to contracts
made and to be performed entirely with such state and without giving effect
to
the choice or conflicts of laws principles of any jurisdiction. This First
Amendment constitutes and expresses the entire understanding between the parties
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings, commitments, inducements or conditions, whether expressed
or
implied, oral or written. All covenants, agreements, undertakings,
representations and warranties made in this First Amendment shall survive the
execution and delivery of this First Amendment, and shall not be affected by
any
investigation made by any person. The Credit Agreement, as amended hereby,
remains in full force and effect in accordance with its terms and
provisions.
6
7. Further
Agreements and Acknowledgments.
Company
hereby further acknowledges and agrees that:
(a) Neither
the provisions of this First Amendment nor any actions taken or not taken
pursuant to or in reliance upon the terms of this First Amendment shall
constitute a novation of any of the Loan Documents, all of which remain in
full
force and effect in accordance with their respective terms, as amended to date;
(b) Neither
this First Amendment, nor any action taken by the Lenders pursuant to this
First
Amendment, shall impair, prejudice, or in any other manner affect the rights
of
the Lenders in and to any collateral or other security which now or hereafter
secures payment or performance of the Obligations or any part thereof, or
establish or be deemed to establish any precedent or course of dealing with
respect to any matter; and
(c) No
provision hereof shall constitute a waiver of any of the terms or conditions
of
the Loan Documents, other than those terms or conditions explicitly modified
herein. Company hereby represent, warrant, covenant and agree that there exists
no offsets, counterclaims or defenses to payment or performance of the
obligations set forth in the Loan Documents and, in consideration hereof,
expressly waive any and all such offsets, counterclaims and defenses arising
out
of any alleged acts, transactions or omissions on the part of the Lenders on
or
prior to the date hereof.
8.
Counterparts.
This
First Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same First Amendment. Receipt by telecopy
of any executed signature page to this First Amendment shall constitute
effective delivery of such signature page.
[Remainder
of Page Intentionally Left Blank]
7
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly
executed and delivered by their respective authorized signatories as of the
First Amendment Effective Date.
|
PAC-VAN,
INC., an Indiana corporation
|
|
|
By:
|
/s/ Xxxxxxxx
X. Xxxxxxxxx
|
|
Xxxxxxxx
X. Xxxxxxxxx, President
|
|
|
LASALLE
BANK NATIONAL ASSOCIATION,
|
|
|
as
Administrative Agent, Collateral Agent, Issuing
|
|
|
Lender
and as Lender
|
|
|
By:
|
Xxxxx
Xxxxxx
|
|
Xxxxx
Xxxxxx, Vice President
|
|
|
NATIONAL
CITY BANK, as Documentation
|
|
|
Agent
and as Lender
|
|
|
By:
|
Xxxxxxxxxxx
X. Xxxxxx
|
|
Xxxxxxxxxxx
X. Xxxxxx, Vice President
|
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
|
|
|
as
Lender
|
|
|
By:
|
Xxxxx
X. Xxxxxxx
|
|
Xxxxx
X. Xxxxxxx, Vice President
|
|
|
UNION
BANK OF CALIFORNIA, N.A., as a Lender
|
|
|
By:
|
Xxxx
Xxxxxxxxx
|
|
Xxxx
Xxxxxxxxx, Vice President
|
|
8
ANNEX
A
LENDERS
AND PRO RATA SHARES
|
Lender
|
Revolving
Commitment
Amount
|
Pro
Rata Share
|
|||||
|
LaSalle
Bank National Association
|
$
|
40,000,000.00
|
**/ |
33.333333333
|
%
|
||
|
National
City Bank
|
$
|
35,000,000.00
|
29.166666667
|
%
|
|||
|
Xxxxx
Fargo Bank, National Association
|
$
|
30,000,000.00
|
25
|
%
|
|||
|
Union
Bank of California, N.A.
|
$
|
15,000,000.00
|
12.5
|
%
|
|||
|
TOTALS
|
$
|
120,000,000.00
|
100
|
%
|
|||
**/ Includes
Swing Line Commitment Amount of $5,000,000.00
9
ANNEX
B
ADDRESSES
FOR NOTICES
PAC-VAN,
INC.
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxxx X. Xxxxxxxxx, President
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
LASALLE
BANK NATIONAL ASSOCIATION,
as
Administrative Agent, Issuing Lender and a Lender
Notices
of Borrowing, Conversion, Continuation and Letter of Credit
Issuance
00
X.
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
All
Other Notices
00
X.
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
NATIONAL
CITY BANK,
as
Documentation Agent and as a Lender
Xxx
Xxxxxxxx Xxxx Xxxxxx, 000X
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxxxxxxx X. Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as a
Lender
000
Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
00
XXXXX
XXXX XX XXXXXXXXXX, X.X.,
as
a
Lender
000
X.
Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
11
EXHIBIT
“C”
SCHEDULE
TO BORROWING BASE CERTIFICATE
Dated
as
of
[_________________]
|
1.
|
Gross
Accounts
|
$_________
|
||
|
2.
|
Less
Ineligibles
|
|||
|
-
|
Administrative
Agent’s Lien Not Perfected
|
$_________
|
||
|
-
|
Subject
to other Lien
|
$_________
|
||
|
-
|
Subject
to Offset, etc.
|
$_________
|
||
|
-
|
Account
Debtor not in U.S.
|
$_________
|
||
|
-
|
Sale
on Approval, Sale or
|
|||
|
Return,
Xxxx and Hold or
|
||||
|
Consignment
|
$_________
|
|||
|
-
|
Over
90 days past invoice date
|
$_________
|
||
|
-
|
Affiliate
Receivables
|
$_________
|
||
|
-
|
Non-assignable
|
$_________
|
||
|
-
|
Other
|
$_________
|
||
|
-
|
Total
|
$_________
|
||
|
3.
|
Eligible
Accounts [Item 1 minus Item 2]
|
|
$_________
|
|
|
4.
|
Item
3 times 85%
|
|
$_________
|
|
|
5.
|
Gross
Inventory consisting of consisting of
|
|
$_________
|
|
|
mobile
office units, modular buildings and storage containers
|
||||
|
6.
|
Less
Ineligibles
|
|||
|
-
|
Administrative
Agent’s Lien Not Perfected
|
|
$_________
|
|
|
-
|
Subject
to other Lien
|
$_________
|
||
|
-
|
Not
Salable
|
$_________
|
||
|
-
|
Located
off-site and no
|
|||
|
Collateral
Access Agreement
|
$_________
|
|||
|
-
|
Not
located in U.S.
|
$_________
|
||
|
-
|
Supply
items; packaging
|
$_________
|
||
|
-
|
Advance
payments received
|
$_________
|
||
|
-
|
Other
|
$_________
|
||
|
-
|
Total
|
$_________
|
||
|
7.
|
Eligible
Inventory [Item 5 minus Item 6]
|
|
$_________
|
|
|
8.
|
Item
7 times 85%
|
|
$_________
|
|
|
9.
|
Trucks
and Trailers held for own use
|
|
$_________
|
|
|
10.
|
Item
9 times 75%
|
|
$_________
|
12
|
11.
|
Lesser
of Item 10 or $1,000,000.00
|
$_________
|
||
|
12.
|
Borrowing
Base
|
|||
|
[Item
4 plus Item 8 plus Item 11]
|
|
$_________
|
||
|
13.
|
Least
of (i) Item 12, (ii) the Revolving Commitment
|
|||
|
and
(iii) the Pre-Approved Revolving Loan Ceiling
|
$_________
|
|||
|
14.
|
Revolving
Outstandings (includes Stated Amount of Letters of Credit)
|
|
$_________
|
|
|
15.
|
Outstanding
Swing Line Loans
|
|
$_________
|
|
|
16.
|
Revolving
Loan Availability
|
|||
|
[Excess
of Item 13 over Item 14]
|
$_________
|
|||
|
17.
|
Required
Prepayment
|
|||
|
[Excess
of sum of Items 14 and 15 over Item 13]
|
|
$_________
|
13
EXHIBIT
E
FORM
OF
NOTICE OF BORROWING
To: LaSalle
Bank National Association, as Administrative Agent
Please
refer to the Amended and Restated Credit Agreement dated as of August 23, 2007
(as amended, restated, supplemented or otherwise modified from time to time,
the
“Credit Agreement”) among Pac-Van, Inc. (the “Company”),
various financial institutions and LaSalle Bank National Association, as
Administrative Agent. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement.
The
undersigned hereby gives irrevocable notice, pursuant to Section 2.2.2
of the
Credit Agreement, of a request hereby for a borrowing as follows:
(i) The
requested borrowing date for the proposed borrowing (which is a Business Day)
is
______________, ____.
(ii) The
aggregate amount of the proposed borrowing is $______________.
(iii) The
type
of Revolving Loans comprising the proposed borrowing are [Base Rate] [LIBOR]
Loans.
(iv) The
duration of the Interest Period for each LIBOR Loan made as part of the proposed
borrowing, if applicable, is ___________ months (which shall be 1, 2, 3 or
6
months).
(v) The
Revolving Outstandings follows the proposed borrowing is
$__________.
The
undersigned hereby certifies that on the date hereof and on the date of
borrowing set forth above, and immediately after giving effect to the borrowing
requested hereby: (i) there exists and there shall exist no Unmatured Event
of
Default or Event of Default under the Credit Agreement; and (ii) each of the
representations and warranties contained in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof, except to the extent
that such representation or warranty expressly relates to another date and
except for changes therein expressly permitted or expressly contemplated by
the
Credit Agreement.
The
Company has caused this Notice of Borrowing to be executed and delivered by
its
officer thereunto duly authorized on ___________, ______.
14
