Exhibit 10.4
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of August 6, 1999 is among
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UNITED ROAD SERVICES, INC. (the "Company"), various financial institutions and
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BANK OF AMERICA, N.A. (f/k/a Bank of America National Trust and Savings
Association) as administrative agent (in such capacity, the "Agent").
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W I T N E S E T H:
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WHEREAS, the Company, various financial institutions and the Agent are
parties to a Second Amended and Restated Credit Agreement dated as of June 11,
1999 (the "Existing Credit Agreement" and, as amended and modified by this
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Amendment, the "Amended Credit Agreement"); and
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WHEREAS, the parties hereto desire to amend the Existing Credit Agreement
as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION Defined Terms. Terms used in this Amendment which are defined in
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the Existing Credit Agreement shall have the respective meanings assigned to
such terms in the Existing Credit Agreement unless otherwise defined herein.
SECTION Amendments to Existing Credit Agreement.
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. Cancellation Date. The definition of "Cancellation Date" in Section
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1.1 of the Existing Credit Agreement is amended in its entirety to read as
follows:
"Cancellation Date means the earlier of (a) the date prior to the
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Effective Date on which all of the Commitments under this Agreement are
terminated or (b) if the Effective Date does not occur prior to such
date, October 15, 1999."
. Ticking Fee. Section 5.3 of the Existing Credit Agreement is amended
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in its entirety to read as follows:
"5.3 Ticking Fee. The Company agrees to pay to the Agent for the
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account of each Bank a ticking fee equal to the Specified Percentage (as
defined below) of such Bank's New Commitment (as defined below) during
the period from the 30th day after the Signing Date to August 6, 1999.
Such ticking fee shall be payable in arrears on the earlier of the
Effective Date and the Cancellation Date.
For purposes of this Section 5.3, "Specified Percentage" means 0.25%;
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and "New Commitment" means, with respect to any Bank, the excess (if
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any) of the amount of such Bank's Commitment hereunder over the amount
(if any) of such Bank's "Commitment" under the Existing Agreement."
. Conditions Precedent. The opening paragraph of Section 11.1 of the
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Existing Credit Agreement is amended in its entirety to read as follows:
"11.1 Initial Credit Extensions. The obligation of each Bank to make its
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initial Loan and of any Issuing Bank to issue any Letter of Credit, whichever
first occurs, is, in addition to the conditions precedent specified in Section
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11.2, subject to the conditions precedent (and the date on which all such
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conditions precedent have been satisfied or waived in writing by the Banks is
called the "Effective Date") that (a) the Effective Date shall occur on or
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before October 15, 1999; (b) the Company shall have completed (or shall
concurrently complete) the Centurion Acquisition or the Waggoners Acquisition;
(c) such Bank shall have confirmed in writing its approval, in its sole
discretion, of (i) the new chief executive officer of the Company or the
arrangements made for management of the Company pending the appointment of a
new chief executive officer and (ii) the supplemental projections provided by
the Company on or after August 6, 1999 reflecting the Company's revised
acquisition strategy (it being understood that (x) any Bank that does not
deliver such approval on or before the Effective Date shall be released from
its obligations hereunder (and cease to be a party hereto) on the Effective
Date and the Company shall have no obligation to such Bank for any fees or
other amounts otherwise payable hereunder and (y) notwithstanding any
provision of this Agreement to the contrary, on the Effective Date each of the
Revolving Commitment Amount and the Term Commitment Amount shall be reduced by
the amount of the Revolving Commitment and the Term Commitment, respectively,
of each Bank which ceases to be a party hereto on such date); (d) the Agent
shall have received all amounts which are then due and payable pursuant to
Section 5 and (to the extent billed) Section 14.6; and (e) the Agent shall
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have received all of the following, each duly executed and dated the Effective
Date (or such other date as shall be satisfactory to the Agent), in form and
substance satisfactory to the Agent, and each (except for the Notes and the
FRB Forms described in Section 11.1.9, of which only the originals shall be
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signed) in sufficient number of signed counterparts to provide one for each
Bank:"
SECTION Conditions Precedent. This Amendment shall become effective as of
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the date hereof (the "Amendment Effective Date") when the Agent shall have
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received counterpart originals of this Amendment, duly executed by the Company,
the Required Banks and the Agent. For purposes hereof, a facsimile executed
copy shall be treated as an original.
SECTION Miscellaneous.
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. Expenses. The Company agrees to pay on demand all costs and expenses
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of the Agent (including fees, charges and expenses of counsel for the Agent) in
connection with the preparation, negotiation, execution, delivery and
administration of this Amendment and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
. Captions. Section captions used in this Amendment are for convenience
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only and shall not affect the construction of this Amendment.
. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
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GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
. Counterparts. This Amendment may be executed in any number of
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counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
. Continuing Effectiveness. Except as herein amended, the Existing
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Credit Agreement shall remain in full force and effect and is hereby ratified in
all respects.
. Successors and Assigns. This Amendment shall be binding upon the
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parties hereto and their respective successors and assigns, and shall inure to
the sole benefit of the parties hereto and the successors and assigns of the
Agent and the Banks.
Delivered at Chicago, Illinois, as of the day and year first above written.
UNITED ROAD SERVICES, INC.
By:______________________________
Title:___________________________
BANK OF AMERICA, N.A., as Agent
By:______________________________
Title:___________________________
BANK OF AMERICA, N.A., as Issuing Bank, Swing Line
Bank and a Bank
By:__________________________________________________
Title:_______________________________________________
BANKBOSTON, N.A., as Syndication Agent and a Bank
By:__________________________________________________
Title:_______________________________________________
CIBC INC., as Documentation Agent and a Bank
By:__________________________________________________
Title:_______________________________________________
XXXXXX FINANCIAL, INC., as a Bank
By:__________________________________________________
Title:_______________________________________________
KZH CYPRESSTREE-1 LLC, as a Bank
By:__________________________________________________
Title:_______________________________________________
MICHIGAN NATIONAL BANK, as a Bank
By:__________________________________________________
Title:_______________________________________________
NORTH AMERICAN SENIOR FLOATING RATE FUND, as a Bank
By: CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.,
as Portfolio Manager
By:__________________________________________________
Title:_______________________________________________
SRF TRADING, INC., as a Bank
By:__________________________________________________
Title:_______________________________________________
THE CHASE MANHATTAN BANK, as a Bank
By:__________________________________________________
Title:_______________________________________________
COMERICA BANK, as a Bank
By:__________________________________________________
Title:_______________________________________________
CYPRESSTREE INSTITUTIONAL FUND, LLC, as a Bank
BY: CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.,
its Managing Member
By:__________________________________________________
Title:_______________________________________________
XXXXXXXX BANK, N.A., as a Bank
By:__________________________________________________
Title:_______________________________________________
By:__________________________________________________
Title:_______________________________________________
UNION BANK OF CALIFORNIA, N.A., as a Bank
By:__________________________________________________
Title:_______________________________________________
MAGNETITE ASSET INVESTORS, LLC, as a Bank
By:__________________________________________________
Title:_______________________________________________
