EXHIBIT 10.40
THIRD AMENDMENT
THIS THIRD AMENDMENT (this "Amendment") dated as of January 31, 2000 is
---------
among UNITED ROAD SERVICES, INC. (the "Company"), various financial institutions
-------
and BANK OF AMERICA, N.A. (f/k/a Bank of America National Trust and Savings
Association), as agent (in such capacity, the "Agent").
-----
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Company, various financial institutions and the Agent are
parties to an Amended and Restated Credit Agreement dated as of November 2, 1998
(the "Credit Agreement" and, as amended and modified by this Amendment, the
----------------
"Amended Credit Agreement");
- -------------------------
WHEREAS, the parties hereto desire to amend the Credit Agreement as
hereinafter provided; and
WHEREAS, the Company desires to reduce the Commitment Amount under and as
defined in the Credit Agreement;
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:
I. SECTION Defined Terms. Terms used in this Amendment which are defined in
-------------
the Credit Agreement shall have the respective meanings assigned to such terms
in the Credit Agreement unless otherwise defined herein.
I. SECTION Amendments to Credit Agreement. The Credit Agreement is amended
------------------------------
as set forth below in this Section 2.
---------
2.1 Amendment to Definition of Base Rate Margin. The definition of Base
-------------------------------------------
Rate Margin is amended in its entirety to read as follows:
"Base Rate Margin means a rate per annum determined in
----------------
accordance with Schedule 1.1A, provided that, upon the request of the
--------
Required Banks, the Base Rate Margin shall be equal to 1.25% beginning
on the date of effectiveness of the Third Amendment to this Agreement
and continuing through March 31, 2000 (or such earlier date as the
Required Banks may agree)."
2.2 Additional Definitions. Section 1.1 is amended by inserting the
----------------------
following definitions in appropriate alphabetical sequence:
"Asset Disposition means any sale, transfer or other disposition
-----------------
by the Company or any Subsidiary of any asset (including any stock of
any Subsidiary) other than sales of used vehicles in the ordinary
course of business in an aggregate amount of Net Cash Proceeds not
exceeding $500,000 in any Fiscal Year."
"Net Cash Proceeds means with respect to an Asset Disposition,
-----------------
the aggregate cash proceeds (including cash proceeds received by way
of deferred payment of principal pursuant to a note, installment
receivable, reserve for adjustment or otherwise, but only as and when
received) received by the Company or any Subsidiary pursuant to such
sale, transfer or other disposition, net (subject to reserves for
normal course post-closing adjustments and reserves for
indemnification obligations in connection with such asset sale) of (i)
the direct costs relating to such sale, transfer or other disposition
(including sales commissions and legal and accounting fees), (ii)
taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), and (iii) amounts applied to the repayment of any Debt
secured by a Lien on the asset subject to such sale, transfer or other
disposition (other than Debt hereunder)."
2.3 Addition of Certain Fees. Section 5 is amended by inserting the
------------------------
following Sections 5.5 and 5.6 at the end thereof:
5.5 Earnings Shortfall Fee. The Company agrees to pay to the
----------------------
Agent for the account of each Bank on the 32nd day following the end
of each month (beginning with the month ending December 1999) an
earnings shortfall fee equal to the percentage set forth below under
the applicable amount of EBITDA for such month multiplied by the
Commitment of such Bank (it being understood that the Agent shall
distribute such fee to each Bank promptly upon its receipt thereof):
- ---------------------------------------------------------------------------------------------------------------------------------
EBITDA Equal to or Equal to or greater Equal to or greater than Less than $1,000,000
greater than than$1,500,000 but less $1,000,000 but less than
$1,800,000 than $1,800,000 $1,500,000
- ---------------------------------------------------------------------------------------------------------------------------------
December 1999 - 0.00% 0.01% 0.02% 0.03%
February 2000
- ---------------------------------------------------------------------------------------------------------------------------------
March - April 2000 0.00% 0.02% 0.03% 0.04%
- ---------------------------------------------------------------------------------------------------------------------------------
May - June 2000 0.00% 0.03% 0.04% 0.05%
- ---------------------------------------------------------------------------------------------------------------------------------
July - September 0.00% 0.04% 0.05% 0.06%
2000
- ---------------------------------------------------------------------------------------------------------------------------------
October - November 0.00% 0.05% 0.06% 0.07%
2000
- ---------------------------------------------------------------------------------------------------------------------------------
December 2000 and 0.00% 0.06% 0.07% 0.08%
thereafter
- ---------------------------------------------------------------------------------------------------------------------------------
5.6 Usage Fee. The Company agrees to pay to the Agent for the
---------
account of each Bank on the fifth day following the end of each month
(beginning with January 2000) a usage fee equal to the percentage per
annum (calculated on the basis of a year of 360 days) set forth below
opposite the applicable daily average for such month of the principal
amount of all outstanding Loans plus the Stated Amount of all Letters
of Credit (the "Average Outstandings") multiplied by the Average
Outstandings for such month (it being understood that (a) each Bank
shall receive a portion of such fee equal to the percentage which the
daily average amount of such Bank's Loans during such month plus such
Bank's Percentage of the daily average of the Stated Amount of all
Letters of Credit during such month is of the Average Outstandings for
such month and (b) promptly upon receipt thereof, the Agent shall
distribute to each Bank its portion of such fee):
Average Outstandings Percentage
-----------------------------------------------------------
Equal to or greater than
$50,000,000 0.75%
Equal to or greater than
$47,500,000 but less than $50,000,000 0.50%
Equal to or greater than
$45,000,000 but less than $47,500,000 0.25%
Less than $45,000,000 0.00%.
2.4 Amendment to Changes in Commitment Amount. Section 6 is amended by
-----------------------------------------
(i) deleting the word "INCREASE" in the heading thereof, (ii) inserting the word
"Voluntary" at the beginning of the heading in section 6.1.1, (iii) adding
Section 6.1.3 with the heading of "Commitment Reductions" and moving the last
---------------------
sentence in Section 6.1.1 to Section 6.1.3, and (iv) deleting Section 6.1.2 in
its entirety and replacing such Section with the following:
"6.1.2 Mandatory Reduction or Termination of the Commitments.
-----------------------------------------------------
Promptly following any Asset Disposition which, together with prior
Asset Dispositions as to which no reduction in the Commitment Amount
has been made, results in Net Cash Proceeds in excess of $500,000 in
any Fiscal Year, the Company shall permanently reduce the Commitment
Amount in an amount equal to 75% of the Net Cash Proceeds derived from
such Asset Disposition; provided that no reduction of the Commitment
--------
Amount shall be required unless the amount of such reduction is equal
to at least$100,000 and the amount of any reduction required pursuant
to this Section in each case be rounded down to an integral multiple
of $100,000."
2.5 Addition of Mandatory Prepayment Section. Section 6 is amended by
----------------------------------------
inserting the following Section 6.3 thereof:
"6.3 Mandatory Prepayments. If on any date on which the
---------------------
Commitment Amount is reduced pursuant to Section 6.1.2 the sum of the
aggregate principal amount of all Loans outstanding plus the Stated Amount
of all Letters of Credit exceeds the Commitment Amount, the Company shall
immediately, and without notice or demand, prepay outstanding Loans by an
amount equal to the excess."
2.6 Amendment of Minimum EBITDA Covenant. Section 10.6.7 is amended in
------------------------------------
its entirety to read as follows:
"10.6.7 Minimum EBITDA. Not permit EBITDA for any month plus
--------------
(i) bonuses paid to Gerald R. Riordan in an aggregate amount not
exceeding $100,000, (ii) payments to Kibel Green for consulting
services, not exceeding $85,000 and (iii) payments made to Robb Adams
and Alan Pass in connection with severance packages in an aggregate
amount not exceeding $1,000,000, in each case to the extent deducted
in determining EBITDA for such period, to be less than $500,000;
provided that payments made pursuant to clauses (i), (ii) and (iii)
-------- ----------- -- ---
shall be added to EBITDA only in calculating EBITDA for December
1999."
2.7 Amendment to Mergers, Consolidations, Sales Covenant. Section 10.10 is
----------------------------------------------------
amended by adding the following new sentence at the end thereof:
"; without limiting the foregoing clause (d), unless the
Required Banks otherwise agree in writing, any Asset Dispositions
shall be made for cash, the fair market value of all Asset
Dispositions in any Fiscal Year shall not exceed $5,000,000 and any
Net Cash Proceeds received in connection with any Asset Disposition
shall, to the extent required, reduce the Commitment Amount according
to Section 6.1.2."
-------------
2.8 Amendment to Advances and Other Investments Covenant. Section 10.20
----------------------------------------------------
is amended by adding the following language to the end of clause (h):
"; provided that the aggregate amount of all such Cash
--------
Equivalent Investments shall not at any time exceed $2,500,000."
SECTION 3. Waiver; Limitation on Outstandings. Subject to the occurrence
----------------------------------
of the Amendment Effective Date, the Required Banks hereby waive through March
31, 2000 the Company's non-compliance with (i) Sections 10.6.1 and 10.6.5 of the
Credit Agreement as of September 30, 1999 and December 31, 1999 and (ii) Section
10.6.7 of the Credit Agreement as in effect prior to the Amendment Effective
Date for any period ending prior to the date of this Amendment but not any non-
compliance with such Section 10.6.7 as in effect after the Amendment Effective
Date. In consideration of such waiver, the Company (a) acknowledges that upon
the expiration of such waiver (unless a new waiver or an amendment has been
agreed to by the Required Banks) an immediate Event of Default shall exist under
the Credit Agreement; and (b) agrees that, unless the Required Banks otherwise
consent, the aggregate outstanding principal amount of all Loans plus the Stated
Amount of all Letters of Credit shall not at any time exceed $55,000,000 after
January 1, 2000.
SECTION 4. Conditions Precedent. This Amendment shall become effective as
--------------------
of the date hereof on the date (the "Amendment Effective Date") on which all of
------------------------
the following conditions shall have been satisfied:
4.1 Receipt of Documents. The Agent shall have received all of the
--------------------
following, each duly executed and dated a date acceptable to, and otherwise in
form and substance satisfactory to, the Agent, and in sufficient number of
signed counterparts to provide one for each Bank:
1. Amendment. Counterpart originals of this Amendment executed by the
---------
Company, the Required Banks and the Agent. For purposes of this clause (a), a
----------
facsimile executed copy shall be treated as an original.
1. Certificates A certificate of the secretary or an assistant secretary of
------------
the Company, substantially in the form of Exhibit A to this Amendment, and a
---------
certificate of the President, the Chief Financial Officer or the Vice President,
Finance of the Company, substantially in the form of Exhibit B to this
---------
Amendment.
1. Opinion. An opinion of counsel to the Company in form and substance
-------
satisfactory to the Agent.
1. Confirmation. A Confirmation substantially in the form of Exhibit C to
------------ ---------
this Amendment.
1. Other. Such other documents as the Agent or any Bank may reasonably
-----
request.
4.2 No Default. No Event of Default or Unmatured Event of Default shall
----------
have occurred and be continuing (other than any such event which is waived
hereby).
4.3 Amendment Fee. For the account of each Bank which has executed and
-------------
delivered a counterpart hereof, an amendment fee equal to 0.10% of the
Commitment of such Bank after giving effect to the reduction of the Commitment
Amount set forth in Section 5.9 (it being understood that the Agent shall
-----------
distribute such fee to each Bank promptly upon receipt thereof).
SECTION 5 Miscellaneous.
-------------
5.1 Pricing. The Required Banks request that the Base Rate Margin be
-------
1.25% as of the Amendment Effective Date through March 31, 2000.
5.2 Warranties. In order to induce the Banks to enter into this
----------
Amendment, the Company hereby warrants to the Agent and each Bank that, as of
the date of the execution of this Amendment by the Company, the warranties of
the Company contained in the Credit Agreement are true and correct as if made on
such date.
5.3 Expenses. The Company agrees to pay on demand all costs and expenses
--------
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.
5.4 Captions. Section captions used in this Amendment are for convenience
--------
only and shall not affect the construction of this Amendment.
5.5 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
-------------
GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
5.6 Counterparts. This Amendment may be executed in any number of
------------
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.
5.7 Continuing Effectiveness. Except as herein amended, the Credit
------------------------
Agreement shall remain in full force and effect and is hereby ratified in all
respects.
5.8 Successors and Assigns. This Amendment shall be binding upon the
----------------------
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.
5.9 Waiver of Notice of Commitment Reduction. The Company has requested a
permanent reduction in the Commitment Amount to $58,000,000 pursuant to Section
6.1.1 of the Credit Agreement. The Required Banks hereby waive the five day
notice requirement set forth in such Section 6.1.1, and the Company and the
Required Banks agree that such reduction shall become effective immediately upon
the effectiveness of this Amendment.
Delivered at Chicago, Illinois, as of the day and year first above written.
UNITED ROAD SERVICES, INC.
By: /s/ Gerald R. Riordan
Its: Chief Executive Officer
BANK OF AMERICA, N.A., as Agent
By: /s/ Kristine D. Hyde
Its: Assistant Vice President
BANK OF AMERICA, N.A., as Issuing Bank,
Swing Line Bank and as a Bank
By: /s/ Paul J. Frey
Its: Senior Vice President
BANKBOSTON, N.A.
By: Lindsay W. McSweeney
Its: Director
COMERICA BANK
By: /s/ Preeti Sarnaik
Its: Account Officer
FLEET NATIONAL BANK
By: Kevin P. Harrigan
Its: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Thomas J. Chera
Its: Vice President
EXHIBIT A
---------
United Road Services, Inc.
Secretary's Certificate
-----------------------
To: The Banks and the Agent
parties to the Amendment
referenced below
This Certificate is being furnished pursuant to Section 3.1 of the Third
Amendment (the "Amendment") dated as of January 31, 2000 among United Road
Services, Inc. (the "Company"), various financial institutions and Bank of
America, N.A. (f/k/a Bank of America National Trust and Savings Association), as
agent (in such capacity, the "Agent"), which amends the Amended and Restated
Credit Agreement dated as of November 2, 1998 among the Company, various
financial institutions and the Agent. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Amendment.
The undersigned, Gerald R. Riordan, Secretary of the Company, hereby
certifies on behalf of the Company that attached hereto as Attachment 1 are true
------------
and correct copies of certain resolutions which were duly adopted by the Board
of Directors of the Company as of January 27, 2000; such resolutions have not
been rescinded or amended and are in full force and effect on and as of the date
hereof and, except for such resolutions, there is no other corporate action,
consent or governmental or regulatory approval required for the execution and
delivery of the Amendment.
IN WITNESS WHEREOF, I have executed this Certificate on this 31st day of
January, 2000.
UNITED ROAD SERVICES, INC.
By:
Name:
Title: Secretary
ATTACHMENT 1
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF UNITED ROAD SERVICES, INC.
WHEREAS, there has been presented to this Board of Directors a form of
Third Amendment (the "Amendment") among UNITED ROAD SERVICES, INC. (this
"Corporation"), various financial institutions and BANK OF AMERICA, N.A. (f/k/a
Bank of America National Trust and Savings Association), as agent (in such
capacity, the "Agent"), providing for the amendment of the Amended and Restated
Credit Agreement dated as of November 2, 1998 among the Corporation, various
financial institutions and the Agent (the "Credit Agreement"); capitalized terms
used but not defined herein shall have the respective meanings assigned thereto
in the Amendment;
WHEREAS, it is contemplated that certain officers of this Corporation shall
be required to execute the Amendment and various other agreements, instruments
or documents contemplated by the Amendment or requested by the Agent or any
Bank;
NOW, THEREFORE, BE IT RESOLVED, that the Chairman of the Board, the
President, the Chief Financial Officer and any Vice President of this
Corporation be, and each of them acting alone is, hereby authorized to execute
and deliver, in the name and on behalf of this Corporation, (i) the Amendment,
substantially in the form presented to this Board of Directors, and (ii) any and
all other agreements, instruments or documents contemplated by the Amendment or
requested by the Agent or any Bank; this authorization to execute and deliver
the foregoing encompasses the authorization to make such changes, additions and
deletions as to any or all of the terms and provisions of any or all of the
foregoing agreements, instruments and documents as the officer executing the
same shall approve (hereinafter, as so executed and delivered and as any or all
of the foregoing agreements, instruments and documents may at any time be
amended or otherwise modified, sometimes called the "Agreements"); and the
execution and delivery of each of the Agreements by such officer shall be
conclusive evidence of the approval thereof on behalf of this Corporation by
such officer and by this Board of Directors;
FURTHER RESOLVED, that the Chairman of the Board, the President, the Chief
Financial Officer and any Vice President of this Corporation be, and each of
them acting alone is, hereby authorized to cause this Corporation to borrow
funds under the Credit Agreement as amended by the Amendment;
FURTHER RESOLVED, that each and every officer of this Corporation be, and
each of them acting alone is, hereby authorized, from time to time, in the name
and on behalf of this Corporation, to take such actions and to execute and
deliver such certificates, instruments, notices and documents as may be required
or as such officer may deem necessary, advisable or proper in order to carry out
and perform the obligations of this Corporation under the Credit Agreement, as
amended by the Amendment, or any
other instrument, document or agreement executed pursuant to any of the
foregoing; all such certificates, instruments, notices, documents and agreements
to be executed and delivered in such form as the officer performing or executing
the same may approve, and the performance or execution thereof by such officer
shall be conclusive evidence of the approval thereof by such officer and by this
Board of Directors;
FURTHER RESOLVED, that the Secretary and/or Assistant Secretary of this
Corporation is hereby directed to file the drafts of each of the Agreements
which have been presented to the members of the Board of Directors with the
official records of this Corporation; and
FURTHER RESOLVED, that the Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Secretary or any Assistant Secretary
of this Corporation be, and each of them acting alone is, hereby authorized to
certify and deliver to the Agent or other persons a true copy of the foregoing
resolutions.
EXHIBIT B
--------
UNITED ROAD SERVICES, INC.
Officer's Certificate
---------------------
To: The Banks and the Agent
parties to the Amendment
referenced below
This Certificate is being furnished pursuant to Section 3.1 of the Third
Amendment (the "Amendment") dated as of January 31, 2000 among United Road
Services, Inc. (the "Company"), various financial institutions and Bank of
America, N.A. (f/k/a Bank of America National Trust and Savings Association), as
agent (in such capacity, the "Agent"), which amends the Amended and Restated
Credit Agreement dated as of November 2, 1998 among the Company, various
financial institutions and the Agent. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Credit
Agreement as amended by the Amendment.
The undersigned, Gerald R. Riordan, Chief Executive Officer of the Company,
hereby certifies on behalf of the Company that:
1. The representations and warranties on the part of the Company
contained in the Credit Agreement as amended by the Amendment are true and
correct at and as of the date hereof as though made on and as of the date
hereof.
2. As of the date hereof, except for any Defaults or Unmatured Events of
Default referred to or waived in the Amendment, no Event of Default or Unmatured
Event of Default exists.
IN WITNESS WHEREOF, I have executed this Certificate on this 31st day of
January, 2000.
UNITED ROAD SERVICES, INC.
By: _______________________________
Name: Gerald R. Riordan
Title: Chief Executive Officer
EXHIBIT C
CONFIRMATION
Dated as of January 31, 2000
To: Bank of America, N.A. (f/k/a Bank
of America National Trust
and Savings Association), as
Agent, and the Banks which are
parties to the Amended and Restated
Credit Agreement referred to below
Please refer to (a) the Amended and Restated Credit Agreement dated as of
November 2, 1998 (the "Credit Agreement") among United Road Services, Inc. (the
----------------
"Company"), various financial institutions (the "Banks") and Bank of America,
------- -----
N.A. (f/k/a Bank of America National Trust and Savings Association), as Agent;
(b) the Third Amendment dated as of January 31, 2000 (the "Third Amendment") to
the Credit Agreement; (c) the Security Agreement dated as of June 16, 1998 (the
"Security Agreement") among the Company, various Subsidiaries of the Company and
------------------
the Agent; (d) the Guaranty dated as of June 16, 1998 (the "Guaranty") executed
--------
by various Subsidiaries of the Company in favor of the Banks and the Agent; and
(e) the Company Pledge Agreement dated as of June 16, 1998 (the "Company Pledge
--------------
Agreement") between the Company and the Agent. Each document referred to in
- ---------
items (c) through (e) above, as amended hereby, is called a "Credit Document".
---------------
Capitalized terms used but not defined herein shall have the meanings set forth
in the Amended and Restated Credit Agreement.
Each of the undersigned (i) confirms to the Banks and the Agent that (a)
each Credit Document to which such undersigned is a party continues in full
force and effect on and after the date hereof, as amended hereby, and is the
legal, valid and binding obligation of such undersigned, enforceable against
such undersigned in accordance with its terms, and (b) the obligations and
liabilities guaranteed or secured (as applicable) under each Credit Document
include, without limitation, the obligations and liabilities of the Company
under the Credit Agreement as amended by the First Amendment; and (ii) agrees
that each reference in each Credit Document to the "Credit Agreement" or any
similar term shall, after the date hereof, be deemed to be a reference to the
Credit Agreement as amended by the Third Amendment.
IN WITNESS WHEREOF, this Confirmation has been duly executed as of the day
and year first above written.
UNITED ROAD SERVICES, INC.
By:
Title:
CITY TOWING, INC. d/b/a QUALITY TOWING
By:
Title:
AUTO SERVICE CENTER
By:
Title:
URS WEST, INC.
By:
Title:
URS SOUTHWEST, INC.
By:
Title:
URS MIDWEST, INC.
By:
Title:
URS SOUTHEAST, INC.
By:
Title:
URS NORTHEAST, INC.
By:
Title:
URS TRANSPORT, INC.
By:
Title:
URS OF TENNESSEE, INC.
By:
Title:
BILL AND WAGS, INC.
By:
Title:
E & R TOWING & GARAGE, INC.
By:
Title:
EL PASO TOWING, INC.
By:
Title:
ENVIRONMENTAL AUTO REMOVAL, INC.
By:
Title:
EVANSTON RELIABLE MAINTENANCE, INC.
By:
Title:
FAST TOWING, INC.
By:
Title:
GARRY'S WRECKER SERVICE, INC.
By:
Title:
NORTH SHORE RECYCLING, INC.
By:
Title:
NORTH SHORE TOWING, INC.
By:
Title:
ROUSE'S BODY SHOP, INC. d/b/a
ROUSE'S TOWING AND HAULING
By:
Title:
ARRI BROTHERS, INC. d/b/a
A & A TOWING SERVICE
By:
Title:
KEN LEHMAN ENTERPRISES, INC.d/b/a
SOUTHSTRIP TOWING
By:
Title:
Accepted and Agreed to
this 31st day of
January, 2000.
BANK OF AMERICA, N.A.,
as Agent
By:
Title: