EXHIBIT 10.25
AMENDMENT NO. 1
This Amendment No. 1 (this "Amendment") dated as of December 12, 1997
is entered into with reference to the AMENDED AND RESTATED LOAN AGREEMENT (the
"Loan Agreement") among International Logistics Limited, a Delaware corporation
(the "Company"), Matrix International Logistics, Inc., a Delaware corporation,
LEP Profit International, Inc. a Delaware corporation, The Bekins Company, a
Delaware corporation, ILLCAN, Inc., a Delaware corporation, and ILLSCOT, Inc., a
Delaware corporation (collectively, the Domestic Borrowers"), LEP International
Limited, a company organized under the Laws of England ("LEP UK" and
collectively with the Domestic Borrowers, "Borrowers"), and ING (U.S.) Capital
Corporation ("ING Capital") as sole Lender and as Administrative Agent, and ING
Bank, N.V. (London, England Branch), as facilitator of the UK Commitment (and
not as a "Lender").
RECITALS
A. The Borrowers jointly desire to designate Bekins Van Lines Company, a
Nebraska corporation ("BVL"), as an additional Domestic Borrower under the
Loan Agreement.
B. The parties desire to make certain technical amendments to the Loan
Agreement as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment are used
with the meanings set forth for those terms in the Loan Agreement.
2. REVISED DEFINITIONS. Section 1.1 of the Loan Agreement is
amended so that the following definitions read in full as follows (or, in the
case of the definition of "Permitted Encumbrances," the effected portion
thereof):
"ISSUING LENDER" means (a) in the case of Domestic Letters of
Credit, ING Capital or a WILLING Lender or other financial institution
designated by ING Capital, and (b) in the case of UK Letters of Credit, ING
UK.
"PERMITTED ENCUMBRANCES" means: (a) statutory Liens incident to
construction or maintenance of real property, or Liens incident to
CONSTRUCTION or maintenance of real property, now or hereafter filed of
record for which adequate accounting reserves have been set aside and
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which are being contested in good faith by appropriate proceedings and have
not proceeded to judgment, PROVIDED that, by reason of nonpayment of the
obligations secured by such Liens, no material PORTION OF such real
property is subject to an imminent risk of loss or forfeiture prior to
judgment ... [with the balance of such definition unamended]
"SOLVENT" means as to any Person shall mean that (a) the sum of
the assets of such Person, both at a fair valuation and at present fair
salable value, will exceed its liabilities, including contingent
liabilities, (b) such Person will have sufficient capital with which to
conduct its business as presently conducted and as proposed to be conducted
and (c) such Person has not incurred debts, and does not intend to incur
debts, beyond its ability to pay such debts as they mature. For purposes
of this definition, "debt" means any liability on a claim, and "claim"
means (x) a right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured, or (y) a
RIGHT to an equitable remedy for breach of performance if such breach gives
rise to a payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. With respect to any such contingent
liabilities, such liabilities shall be computed at the amount which, in
light of all the facts and circumstances existing at the time, represents
the amount which can reasonably be expected to become an actual or matured
liability.
3. MINIMUM AVAILABILITY AND COLLECTIONS. Section 4.2(b) of the Loan
Agreement is hereby amended to read in full as follows:
"(b) UNLESS LENDERS HOLDING PRO RATA SHARES EQUAL TO 66 2/3% OF THE
COMMITMENTS OTHERWISE CONSENT, all collected funds contained in the
Domestic Concentration Account shall be applied, on a daily basis, to the
Obligations under the Domestic Commitment, PROVIDED THAT if, as of any date
of determination, (i) no Default or Event of Default has then occurred and
remains continuing, and (ii) Minimum Availability is not less than
$20,000,000 then the collected funds shall not be so applied, and the
Administrative Agent shall remit any or all such funds to an account
designated by the Company and the Domestic Borrowers."
4. PAYMENT OF SUBORDINATED OBLIGATIONS. Section 7.3 of the Loan
Agreement is hereby amended to read in full as follows:
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"7.3 PAYMENT OF SUBORDINATED OBLIGATIONS. UNLESS ALL OF THE LENDERS
OTHERWISE CONSENT, pay any principal (including sinking fund payments),
interest or any other amount with respect to any Subordinated Obligation,
or purchase or redeem (or make, or become obligated to make, any offer to
purchase or redeem) any Subordinated Obligation, EXCEPT payment of interest
in accordance with the terms of any Subordinated Obligation; PROVIDED,
however, that during any period in which an Event of Default is then
continuing, no such payment of interest shall be made prior to the
expiration of the maximum period of interest blockage provided for under
the terms of that Subordinated Obligation."
5. CORRECTION TO CONDITIONS PRECEDENT. The list of cross references
to other Sections set forth in Section 9.3(a) of the Loan Agreement is hereby
amended to read in full as follows:
"(a) except as disclosed by the Company and approved in writing by
the Majority Lenders, the representations and warranties contained in
Article V (OTHER THAN Sections 5.5(a), 5,5(b) , 5.7 (first sentence), 5.8,
5.9, 5.11, 5.14, 5.15 and 5.19) shall be true and correct on and as of the
date of the Advance or the issuance of the Letter of Credit as though made
on that date;"
The forms of the Request for Loan and Request for Letter of Credit attached to
the Loan Agreement shall be deemed similarly amended.
1. AGENT'S RIGHTS. Section 10.2(d) of the Loan Agreement is hereby
amended to read in full as follows:
"(d) The Administrative Agent shall [[THE WORD "NOT" DELETED
HERE]] have the right, in its sole discretion, to determine which rights,
Liens or remedies it shall at any time pursue, relinquish, subordinate,
modify or take any other action with respect thereto, without in any way
modifying or affecting any of them or any of the Lenders' rights hereunder;
and any moneys, deposits, receivables, balances or other property which may
come into any Lender's or the Administrative Agent's possession at any time
or in any manner, may be retained by such Lender or the Administrative
Agent and applied to any of the Obligations as provided under any of the
Loan Documents or as provided under applicable law." [bracketed text added
for the convenience of the reader only, and not deemed a part of the
operative language]
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2. REMOVAL OF ADMINISTRATIVE AGENT FOR CAUSE. The first paragraph
of Section 11.8 of the Loan Agreement is hereby amended to read in full as
follows:
"11.8 SUCCESSOR ADMINISTRATIVE AGENT. If the Administrative Agent
determines that for it to continue as Administrative Agent would result in
a conflict of interest, or would create an unacceptable risk of significant
liability of the Administrative Agent or to a third party, or would
otherwise be inadvisable under prevailing standards of banking prudence, it
may resign as such at any time upon prior written notice to the Company and
the Lenders, to be effective upon a successor's acceptance of appointment
as Administrative Agent. The Administrative Agent may also resign as such
absent such a determination by it with the consent of the Company, which
shall not be unreasonably withheld, to be likewise effective. THE
ADMINISTRATIVE AGENT SHALL ALSO RESIGN UPON REQUEST BY LENDERS HOLDING PRO
RATA SHARES EQUAL TO 66 2/3% OF THE COMMITMENTS FOR GOOD CAUSE."
6. AMENDMENTS TO ADVANCE RATES. Section 12.2 of the Loan Agreement
is hereby amended to add thereto a new clause (e) (augmenting the list of items
requiring unanimous Lender approval set forth therein), to read in full as
follows:
"(e) To increase the percentage advance rates set forth in the
definitions of "Domestic Borrowing Base" and "UK Borrowing Base"."
3. ASSIGNMENTS OF NOTES TO FEDERAL RESERVE BANK AS COLLATERAL.
Section 12.8(a) of the Loan Agreement is hereby amended by adding the following
sentence to the end of such Section:
"Any Lender may at any time pledge its Note or any other instrument
evidencing its rights as a Lender under this Agreement to a Federal Reserve
Bank, but no such pledge shall release that Lender from its obligations
hereunder or grant to such Federal Reserve Bank the rights of a Lender
hereunder absent foreclosure of such pledge."
7. TECHNICAL CORRECTION TO ASSIGNMENT SECTION. Section 12.8(b) of
the Loan Agreement is hereby amended to read in full as follows:
"(b) Any Lender may assign all or any portion of its Pro Rata Share
to a bank or other financial institution reasonably acceptable to the
Administrative Agent [[the requirement of the consent of the Borrowers"
being deleted here]]; PROVIDED that:
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(i) such assignment shall be evidenced by a Commitment
Assignment and Acceptance;
(ii) such assignment (except to an assignee which is then a
Lender) shall be in a minimum amount of $10,000,000 and in integral
multiples of $1,000,000 thereafter, and shall be in a proportionate
share of both Commitments;
(iii) such assignee has a minimum net worth of $200,000,000;
(iv) the Administrative Agent consents to such assignment and has
received the payment of an assignment fee from such assignee (for its
sole account) of $3500; and
(v) unless an Event of Default has occurred and remains
continuing, the Company consents to such assignment (such consent not
to be unreasonably withheld)." [balance of Section 11.8(b) unchanged]
8. JOINDER AND ASSUMPTION BY BEKINS VAN LINES; TERMINATION OF THE
BEKINS COMPANY AS A BORROWER. By this Amendment, each of the existing Borrowers
(a) consents to the termination of The Bekins Company's status as a Borrower
under the Loan Agreement, and (b) designates BVL as an additional Domestic
Borrower under the Agreement in lieu of The Bekins Company. BVL hereby joins in
the Loan Agreement as an additional Domestic Borrower, and joins in and assumes
each of the representations, warranties and covenants applicable to the other
Domestic Borrowers, and will be subject to the other terms, conditions, and
duties applicable to the other Domestic Borrowers. Without limitation on the
foregoing, BVL and each other Borrower agrees that:
(a) BVL shall be obligated with respect to the Obligations under the
Domestic Commitment as a joint and several co-borrower, and not merely as a
surety;
(b) the Domestic Borrowing Base for The Bekins Company and BVL shall
be jointly reported as a single Borrowing Base (which shall limit the
advances to both such Persons in accordance with the terms of the Loan
Agreement).
9. AGREEMENT RE EXPENSES AND CERTAIN NOTICES. For the avoidance of
doubt, the Administrative Agent hereby agrees that (a) no Lender shall be
responsible to the Administrative Agent under Section 11.7 for any of the
Administrative Agent's negotiation, execution and delivery of the Loan Documents
prior to the effective date of this Amendment, (b) the Administrative Agent
shall promptly provide to each Lender a copy of each Borrowing Base Certificate
and Compliance Certificate which it receives from time to time pursuant to the
Loan Agreement, and
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(c) the Administrative Agent shall provide prompt notice to each other Lender of
the receipt of each Request for Loan and each Request for Letter of Credit.
10. REPRESENTATION. Borrowers represent and warrant that no Default
or Event of Default has occurred and remains continuing.
11. CONDITIONS PRECEDENT. The following shall be conditions
precedent to the effectiveness of this Amendment:
(a) Each of the guarantors of the obligations of Borrowers under
this Agreement shall have consented hereto in writing.
(b) The syndication of the Obligations to the Lenders described
on Schedule 1.1 hereto shall be in a position to be concurrently
consummated, and each of the Domestic Borrowers (including BVL) shall have
executed new promissory notes in favor of the Lenders described therein.
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12. CONFIRMATION. This Amendment is one of the Loan Documents.
Borrowers confirm that, except to the extent expressly modified hereby, the
terms of the Loan Documents are hereby confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above by their duly authorized representatives.
INTERNATIONAL LOGISTICS LIMITED
By:
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Terry G. Clarke, Treasurer
THE BEKINS COMPANY
MATRIX INTERNATIONAL LOGISTICS, INC.
ILLCAN, INC.
ILLSCOT, INC.
LEP PROFIT INTERNATIONAL, INC.
and
LEP INTERNATIONAL LIMITED
By:
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Terry G. Clarke, Assistant Treasurer of each
of the foregoing
BEKINS VAN LINES COMPANY
By:
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Title:
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LENDERS:
ING (U.S.) CAPITAL CORPORATION,
individually and as Administrative Agent
By:
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Michael W. Adler, Senior Vice President
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ING BANK, N.V. (London Branch),
as primary lender under the UK Commitment
but not as a "Lender"
By:
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Richard Kirby, Director - Banking
By:
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N.J. Marchant
Manager, Lending Risk Management
The undersigned hereby confirm that their guarantees of the Obligations under
the Loan Agreement described above remain in full force and effect, and relate
to and guarantee (in addition to the other guaranteed obligations described
therein) the obligations of Bekins Van Lines Company as a Domestic Borrower
under the Loan Agreement.
LIW HOLDINGS CORP.
LEP INTERNATIONAL CO.
LEP FAIRS, INC.
BAY AREA MATRIX, INC.
L.A. MATRIX, INC.
SOUTHWEST MATRIX, INC.
and
MATRIX CT, INC.
By:
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Terry G. Clarke
Assistant Treasurer of each of the foregoing
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