1
EXHIBIT 10.151
AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS AMENDMENT TO REVOLVING CREDIT AGREEMENT (the "Amendment"), dated as
of December 1, 1997, is entered into by and between LASALLE NATIONAL BANK, a
national banking association ("Lender"), and INSURANCE AUTO AUCTIONS, INC., a
California corporation ("Borrower).
WHEREAS, Lender has previously made available to Borrower a credit
facility pursuant to the terms and conditions of that certain Revolving Credit
Agreement, dated as of April 4, 1997, by and between Lender and Borrower,
which, together with all exhibits and schedules thereto and amendments and
modifications thereof made in accordance with the terms thereof, if any, is
hereinafter referred to as the "Loan Agreement"; and
WHEREAS, pursuant to the Loan Agreement, Lender has extended certain loans
and credit extensions to Borrower; and
WHEREAS, Borrower has requested that Lender amend the Loan Agreement to
provide for the issuance of letters of credit by Lender for the account of
Borrower pursuant to the terms and conditions of this Amendment as set forth
herein; and
WHEREAS, Lender is willing to amend the Loan Agreement but only on the
terms and conditions set forth in this Amendment; and
WHEREAS, capitalized terms used but not defined herein have the meanings
assigned to such terms in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises, to induce Lender to
enter into this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed
by each party hereto as follows:
Section 1. Amendment of the Loan Agreement. It is hereby agreed and
understood that, subject to the complete fulfillment and performance of the
conditions precedent set forth in Section 2 of this Amendment, the Loan
Agreement is hereby amended as follows:
(a) Section 1.1. The definition of "Unused Revolving Commitment"
contained in Section 1.01 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"Unused Revolving Commitment" means, at any time, the Revolving
Commitment at such time, minus the aggregate principal amount of all
outstanding Revolving Advances outstanding at such time, minus the
aggregate stated amount of all outstanding LCs, and minus the
aggregate amount of all outstanding Reimbursement Obligations.
2
(b) Section 1.2. The following is hereby added to the Loan Agreement as
Section 2.13:
Section 2.13. Letters of Credit.
(a) LC Commitment. On the terms and subject to the conditions of
this Agreement, the Lender agrees, from time to time to issue for the account
of Borrower commercial and/or standby letters of credit (herein collectively
called "LCs" and individually called an "LC") during the period commencing on
the date hereof and continuing through the Revolving Commitment Termination
Date of such stated amounts as Borrower may from time to time request and the
Lender in its sole discretion shall agree to issue, but not exceeding, in the
aggregate, an amount for LCs outstanding at any one time equal to the lesser of
the Unused Revolving Commitment and $500,000; provided, however, that no LC may
have an expiration date occurring after the Revolving Commitment Termination
Date except as otherwise permitted by Lender in its sole and absolute
discretion. The Lender shall not issue any LC unless Borrower would be in
compliance with the limits and sublimits contained in this Agreement
immediately after the issuance thereof. The foregoing commitment of the Lender
is herein called the "LC Commitment".
(b) LC Documentation. Each of Borrower's requests for an LC must be
received by the Lender at least three Business Days prior to the requested
issue date of such LC, and shall be accompanied by a duly completed application
therefor executed by a Responsible Officer (each such application herein called
an "LC Application") and such other documents, including contracts, in support
thereof as the Lender may require, and all of such applications, documents and
contracts shall be in form and substance satisfactory to the Lender. In
addition, such LC shall be in form and substance satisfactory to the Lender.
(c) Agreement to Repay LC Drawings.
(i) Borrower hereby agrees to reimburse the Lender immediately upon
demand for each payment or disbursement made by the Lender under any LC
honoring any demand for payment made by the beneficiary thereunder,
together with interest on the amount so paid or disbursed by the Lender
from the date a demand for payment was made by the Lender to but not
including the date the Lender is reimbursed therefor, at a rate per annum
equal to the Base Rate from time to time in effect (but not less than the
Base Rate in effect on the date of such payment or disbursement). Interest
shall be computed for the actual number of days elapsed on the basis of a
year consisting of 360 days. Borrower's obligations to reimburse the Lender
set forth in this Section 2.13(c) are collectively called the
"Reimbursement Obligation." Lender at any time may make a Revolving Advance
to Borrower to effect payment of a Reimbursement Obligation.
(ii) The obligations of Borrower to reimburse the Lender for
payments and disbursements made by the Lender under any LC honoring a
demand for payment made by the beneficiary thereunder shall be absolute and
unconditional under any and all
2
3
circumstances and irrespective of any setoff, counterclaim or defense to
payment which Borrower may have or have had against the Lender or such
beneficiary, including, without limitation, any defense based on the
failure of such demand for payment to conform to the terms of such LC or
any nonapplication or misapplication by such beneficiary of the proceeds of
such demand for payment or the legality, validity, regularity or
enforceability of such LC or any document or contract related to or
required to be presented under the terms of such LC; provided, however,
that Borrower shall not be obligated to reimburse the Lender for any
wrongful payment or disbursement made by the Lender under such LC as a
result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Lender or any of its officers, employees or
agents.
(d) Mandatory Payment of LC Liability. Borrower agrees that, upon the
occurrence and continuation of an Event of Default or the occurrence of the
Revolving Commitment Termination Date, it will immediately, without notice or
demand, at Borrower's option, (i) pay to the Lender an amount equal to the
amount of the then aggregate stated amount (the stated amount of any LC issued
pursuant to this Agreement shall equal the (a) initial face amount of the LC
less (b) the aggregate amount of funds disbursed pursuant to the LC) of all LCs
issued and outstanding hereunder or (ii) within five Business Days of such
Event of Default or the Revolving Commitment Termination Date, replace each LC
issued and outstanding hereunder with substitute letters of credit or similar
instruments, thereby extinguishing all liability of the Lender, whether fixed
or contingent, under or with respect to all such LCs. Any amounts so received
by the Lender pursuant to the provisions of the foregoing sentence shall be
retained by the Lender as collateral security for the Obligations of Borrower
to Lender or applied by the Lender to such Obligations in such order as it may
elect.
(e) Obligations of Borrower Under The Loan Documents The Lender shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment by the beneficiary under any LC issued by the
Lender to ascertain that the same appear on their fact to be in conformity with
the terms and conditions of such LC. If, after examination, the Lender shall
have determined that a demand for payment under such LC does not conform to the
terms and conditions of such LC, then the Lender shall, as soon as reasonably
practicable, give notice to the beneficiary to the effect that negotiation was
not in accordance with the terms and conditions of such LC, stating the reasons
therefor and that the relevant document is being held at the disposal of such
beneficiary or is being returned to such beneficiary, as the Lender may elect.
The beneficiary may attempt to correct any such nonconforming demand for
payment under such LC is, and to the extent that, such beneficiary is entitled
(without regard to the provisions of this sentence) and able to do so. If the
Lender determines that a demand for payment under such LC conforms to the terms
and conditions of such LC, then the Lender shall provide prompt notice to
Borrower of receipt of all demands for payment under any LC. The Lender shall
have the right to require the beneficiary to surrender such LC to the Lender on
the stated expiration date of such LC.
3
4
(f) Conditions. Notwithstanding any other provision of this Agreement,
no LC shall be required to be issued hereunder unless the Lender in its sole
discretion agrees to issue such LC and in addition thereto all of the conditions
precedent to the issuing of such LC specified in Section 3.02 have been
satisfied.
(g) LC Fees. Borrower shall from time to time pay to the Lender such
standard fees, charges and other amounts as the Lender may from time to time
require with respect to commercial and/or standby letters of credit issued
pursuant to this Section 2.13. In the case of standby letters of credit,
Borrower shall, in addition to the amounts referred to in the first sentence of
this Section 2.2(g), pay to the Lender an LC commitment fee as agreed to by
Borrower and the Lender.
Section 2. Conditions Precedent. The effectiveness of this Amendment and
the obligations of Lender hereunder are subject to the satisfaction, or waiver
by Lender, of the following conditions precedent on or before the date hereof in
addition to the conditions precedent specified in Section 3.02 of the Loan
Agreement:
A. Borrower shall have paid and/or reimbursed all fees, costs and
expenses relating to this Amendment and owed to Lender pursuant to the Loan
Agreement, if so requested by Lender; and
B. Borrower shall have delivered, or caused to be delivered, original
fully completed, dated and executed originals of this Amendment to Lender.
C. The following statements shall be true and correct and Borrower, by
executing and delivering this Amendment to Lender, hereby certifies that the
following statements are true and correct as of the date hereof:
i. Other than as expressly contemplated by this Amendment, since the
date of the most recent financial statements furnished by Borrower to
Lender (which financial statements were true and correct in all
material respects and otherwise conformed to the requirements set
forth in the Loan Agreement for such financial statements), there
shall have been no change which has had or will have a material
adverse effect on the business, operations, properties, condition
(financial or otherwise) or prospects of Borrower;
ii. The representations and warranties of Borrower set forth in the
Loan Agreement and of Borrower set forth in this Amendment are true
and correct in all material respects on and as of the date of this
Amendment with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly
relate to an earlier date;
iii. After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing; and
4
5
iv. No consents, licences or approvals are required in connection
with the execution, delivery and performance by Borrower of this
Amendment or the validity or enforceability against Borrower of this
Amendment which have not been obtained and delivered to Lender.
Section 3. Miscellaneous.
A. Except as expressly amended and modified by this Amendment, the
Loan Agreement and the Loan Documents are and shall continue to be in full
force and effect in accordance with the terms thereof.
B. This Amendment may be executed by the parties hereto in
counterparts, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
C. This Amendment shall be construed in accordance with and governed
by the internal laws, and not the laws of conflict, of the State of Illinois.
D. The headings contained in this Amendment are for ease of
reference only and shall not be considered in construing this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Loan
and Security Agreement to be duly executed as of the date first above written.
INSURANCE AUTO AUCTIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Senior Vice President
and Chief Financial Officer
-------------------------------
LASALLE NATIONAL BANK
By: /s/ Xxx Xxxxxx
--------------------------------------
Title: Senior Vice President
-------------------------------
5
