EXHIBIT 10.1
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CREDIT AGREEMENT
DATED AS OF AUGUST 5, 2004
AMONG
UTi, UNITED STATES, INC.,
UTi BROKERAGE, INC.,
AND
STANDARD CORPORATION,
AS THE COMPANIES
AND
UTi, (U.S.) HOLDINGS, INC.,
AS THE PARENT GUARANTOR
AND
UTi, SERVICES, INC.,
AS THE SUBSIDIARY GUARANTOR
THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,
AS LENDERS,
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
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LASALLE BANK NATIONAL ASSOCIATION,
AS ARRANGER
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.................................................................................. 1
1.1 Definitions................................................................................. 1
1.2 Other Interpretive Provisions............................................................... 19
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES............ 20
2.1 Commitments................................................................................. 20
2.2 Loan Procedures............................................................................. 21
2.3 Letter of Credit Procedures................................................................. 23
2.4 Commitments Several......................................................................... 25
2.5 Certain Conditions.......................................................................... 26
SECTION 3 EVIDENCING OF REVOLVING LOANS................................................................ 26
3.1 Notes....................................................................................... 26
3.2 Recordkeeping............................................................................... 26
SECTION 4 INTEREST..................................................................................... 26
4.1 Interest Rates.............................................................................. 26
4.2 Interest Payment Dates...................................................................... 26
4.3 Setting and Notice of LIBOR Rates........................................................... 27
4.4 Computation of Interest..................................................................... 27
SECTION 5 FEES......................................................................................... 27
5.1 Non-Use Fee................................................................................. 27
5.2 Letter of Credit Fees....................................................................... 27
5.3 Administrative Agent's Fees................................................................. 28
SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS............................ 28
6.1 Reduction or Termination of the Revolving Commitment........................................ 28
6.2 Prepayments................................................................................. 28
6.3 Manner of Prepayments....................................................................... 29
6.4 Repayments of Revolving Loans............................................................... 29
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.............................................. 29
7.1 Making of Payments.......................................................................... 29
7.2 Application of Certain Payments............................................................. 29
7.3 Due Date Extension.......................................................................... 30
7.4 Setoff...................................................................................... 30
7.5 Proration of Payments....................................................................... 30
7.6 Taxes....................................................................................... 30
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.......................................... 32
8.1 Increased Costs............................................................................. 32
8.2 Basis for Determining Interest Rate Inadequate or Unfair.................................... 33
8.3 Changes in Law Rendering LIBOR Loans Unlawful............................................... 33
8.4 Funding Losses.............................................................................. 34
8.5 Right of Lenders to Fund through Other Offices.............................................. 34
8.6 Discretion of Lenders as to Manner of Funding............................................... 34
8.7 Mitigation of Circumstances; Replacement of Lenders......................................... 34
8.8 Conclusiveness of Statements; Survival of Provisions........................................ 35
SECTION 9 REPRESENTATIONS AND WARRANTIES............................................................... 35
9.1 Organization................................................................................ 35
9.2 Authorization; No Conflict.................................................................. 35
9.3 Validity and Binding Nature................................................................. 36
9.4 Financial Condition......................................................................... 36
9.5 No Material Adverse Change.................................................................. 36
9.6 Litigation and Contingent Liabilities....................................................... 36
9.7 Ownership of Properties; Liens.............................................................. 36
9.8 Equity Ownership; Subsidiaries.............................................................. 36
9.9 Pension Plans............................................................................... 37
9.10 Investment Company Act...................................................................... 38
9.11 Public Utility Holding Company Act.......................................................... 38
9.12 Regulation U................................................................................ 38
9.13 Taxes....................................................................................... 38
9.14 Solvency, etc............................................................................... 38
9.15 Environmental Matters....................................................................... 38
9.16 Insurance................................................................................... 39
9.17 Real Property............................................................................... 39
9.18 Information................................................................................. 39
9.19 Intellectual Property....................................................................... 39
9.20 Burdensome Obligations...................................................................... 40
9.21 Labor Matters............................................................................... 40
9.22 No Default.................................................................................. 40
9.23 Contract Matters............................................................................ 40
9.24 CASS Reserve................................................................................ 40
SECTION 10 AFFIRMATIVE COVENANTS........................................................................ 40
10.1 Reports, Certificates and Other Information................................................. 40
10.2 Books, Records and Inspections.............................................................. 43
10.3 Maintenance of Property; Insurance.......................................................... 43
10.4 Compliance with Laws; Payment of Taxes, Liabilities and CASS Obligations.................... 44
10.5 Maintenance of Existence, etc............................................................... 45
10.6 Use of Proceeds............................................................................. 45
10.7 Employee Benefit Plans...................................................................... 45
10.8 Environmental Matters....................................................................... 46
10.9 Additional Collateral, New Subsidiaries, Immaterial Subsidiaries............................ 46
10.10 Further Assurances.......................................................................... 47
SECTION 11 NEGATIVE COVENANTS........................................................................... 47
11.1 Debt........................................................................................ 47
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11.2 Liens....................................................................................... 48
11.3 Intentionally omitted....................................................................... 49
11.4 Restricted Payments......................................................................... 49
11.5 Mergers, Consolidations, Sales.............................................................. 50
11.6 Modification of Organizational Documents.................................................... 50
11.7 Transactions with Affiliates................................................................ 50
11.8 Unconditional Purchase Obligations.......................................................... 50
11.9 Inconsistent Agreements..................................................................... 50
11.10 Business Activities; Issuance of Equity..................................................... 51
11.11 Investments................................................................................. 51
11.12 Restriction of Amendments to Certain Documents.............................................. 53
11.13 Fiscal Year................................................................................. 53
11.14 Financial Covenants......................................................................... 53
11.15 Cancellation of Debt........................................................................ 53
11.16 Creation of Subsidiaries.................................................................... 53
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.................................................... 53
12.1 Initial Credit Extension.................................................................... 54
12.2 Conditions.................................................................................. 56
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT........................................................... 57
13.1 Events of Default........................................................................... 57
13.2 Effect of Event of Default.................................................................. 59
SECTION 14 THE ADMINISTRATIVE AGENT..................................................................... 59
14.1 Appointment and Authorization............................................................... 59
14.2 Issuing Lender.............................................................................. 60
14.3 Delegation of Duties........................................................................ 60
14.4 Exculpation of Administrative Agent......................................................... 60
14.5 Reliance by Administrative Agent............................................................ 61
14.6 Notice of Default........................................................................... 61
14.7 Credit Decision............................................................................. 61
14.8 Indemnification............................................................................. 62
14.9 Administrative Agent in Individual Capacity................................................. 62
14.10 Successor Administrative Agent.............................................................. 63
14.11 Collateral Matters.......................................................................... 63
14.12 Administrative Agent May File Proofs of Claim............................................... 64
14.13 Other Agents; Arrangers and Managers........................................................ 64
SECTION 15 GENERAL...................................................................................... 65
15.1 Waiver; Amendments.......................................................................... 65
15.2 Confirmations............................................................................... 65
15.3 Notices..................................................................................... 65
15.4 Computations................................................................................ 66
15.5 Costs, Expenses and Taxes................................................................... 66
15.6 Assignments; Participations................................................................. 66
15.7 Register.................................................................................... 68
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SECTION 16 GOVERNING LAW................................................................................ 68
16.1 Confidentiality............................................................................. 68
16.2 Severability................................................................................ 69
16.3 Nature of Remedies.......................................................................... 69
16.4 Entire Agreement............................................................................ 69
16.5 Counterparts................................................................................ 69
16.6 Successors and Assigns...................................................................... 70
16.7 Captions.................................................................................... 70
16.8 Patriot Act Notification.................................................................... 70
SECTION 17 INDEMNIFICATION BY THE LOAN PARTIES.......................................................... 70
SECTION 18 JOINT AND SEVERAL LIABILITY.................................................................. 71
18.1 Nonliability of Lenders..................................................................... 73
SECTION 19 FORUM SELECTION AND CONSENT TO JURISDICTION.................................................. 73
SECTION 20 WAIVER OF JURY TRIAL......................................................................... 74
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ANNEXES
ANNEX A Lenders and Pro Rata Shares
ANNEX B Addresses for Notices
SCHEDULES
SCHEDULE 1.1 Existing Letters of Credit
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Subsidiaries; Capitalization
SCHEDULE 9.16 Insurance
SCHEDULE 9.17 Real Property
SCHEDULE 11.1 Existing Debt
SCHEDULE 11.2 Existing Liens
SCHEDULE 11.7 Transactions with Affiliates
SCHEDULE 11.11 Existing Investments
SCHEDULE 12.1 Debt to be Repaid
EXHIBITS
EXHIBIT A Form of Note (Section 1.1)
EXHIBIT B Form of Compliance Certificate (Section 10.1.3)
EXHIBIT C Form of Borrowing Base Certificate (Section 1.1)
EXHIBIT D Form of Assignment Agreement (Section 15.6.1)
EXHIBIT E Form of Notice of Borrowing (Section 2.2.2)
EXHIBIT F Form of Notice of Conversion/Continuation (Section 2.2.3(b))
EXHIBIT G Form of Joinder Agreement (Section 10.9)
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of August 5, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, this "Agreement") is
entered into among UTi, UNITED STATES, INC., a New York corporation ("UTi"),
STANDARD CORPORATION, a South Carolina corporation ("Standard"), UTi Brokerage,
Inc., a California corporation ("Brokerage" and, together with UTi, Standard and
those domestic Wholly-Owned Subsidiaries (as defined below) that may hereafter
become parties hereto in accordance with Section 10.9, being collectively, the
"Companies" and each individually, a "Company"), UTi, (U.S.) HOLDINGS, INC., a
Delaware corporation (the "Parent Guarantor"), UTi, SERVICES, INC., a California
corporation (the "Subsidiary Guarantor"), the financial institutions that are or
may from time to time become parties hereto (together with their respective
successors and assigns, the "Lenders") and LASALLE BANK NATIONAL ASSOCIATION (in
its individual capacity, "LaSalle"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
The Lenders have agreed to make available to the Companies a revolving
credit facility (which includes letters of credit) upon the terms and conditions
set forth herein.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
SECTION 1 DEFINITIONS.
1.1 Definitions. When used herein the following terms shall have the
following meanings:
Account Debtor is defined in the Guaranty and Collateral Agreement.
Account or Accounts is defined in the UCC.
Acquisition means any transaction resulting in the acquisition by a Person
of (a) all or substantially all assets of any other Person or of any business or
division of any other Person or (b) the Capital Securities of any other Person.
Administrative Agent means LaSalle in its capacity as administrative agent
for the Lenders hereunder and any successor thereto in such capacity.
Affected Loan - see Section 8.3.
Affiliate of any Person means (a) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person, (b) any officer or director of such Person and (c) with respect to any
Lender, any entity administered or managed by such Lender or an Affiliate or
investment advisor thereof and which is engaged in making, purchasing, holding
or otherwise investing in commercial loans. A Person shall be deemed to be
"controlled by" any other Person if such Person possesses, directly or
indirectly, power to vote
5% or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managers or power to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise. Unless expressly stated otherwise herein, neither the Administrative
Agent nor any Lender shall be deemed an Affiliate of any Loan Party.
Affiliated Account Debtor means, with respect to any Account Debtor, any
other Account Debtor who, to the best of the Responsible Officers' knowledge,
controls, is controlled by, or is under common control with, such Account
Debtor. For purposes of this definition, the meaning of "control" (including,
with correlative meanings, "controlled by" and "under common control with") is
limited to the direct or indirect legal or beneficial ownership of ten percent
(10%) or more of the voting control or equity interests of an Account Debtor or
an Affiliated Account Debtor.
Agent Fee Letter means the Fee Letter of even date herewith among the
Companies and the Administrative Agent.
Agreement - see the Preamble.
Applicable Margin means, for any day, the rate per annum set forth below
opposite the level (the "Level") then in effect, it being understood that (i)
the Applicable Margin for LIBOR Loans shall be the percentage set forth under
the column "LIBOR Margin", (ii) the Applicable Margin for Base Rate Loans shall
be the percentage set forth under the column "Base Rate Margin", (iii) the
Non-Use Fee Rate shall be the percentage set forth under the column "Non-Use Fee
Rate" and (iv) the L/C Fee shall be the percentage set forth under the column
"L/C Fee Rate":
Average LIBOR Base Rate Non-Use Fee L/C Fee
Level Debt/EBITDA Ratio Margin Margin Rate Rate
----- ----------------- ------ ------ ---- ----
I > or = 2.75 2.50% 0.50% 0.375% 2.50%
II < 2.75 and > or = 2.25 2.25% 0.25% 0.375% 2.25%
III < 2.25 and > or = 1.50 2.00% 0.00% 0.25% 2.00%
IV < 1.50 1.75% 0.00% 0.25% 1.75%
The LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C
Fee Rate shall be adjusted, to the extent applicable, on the fifth (5th)
Business Day after the Parent Guarantor, the Subsidiary Guarantor and/or the
Companies provide or are required to provide the annual and quarterly financial
statements and other information pursuant to Section 10.1.1 or 10.1.2, as
applicable, and the related Compliance Certificate, pursuant to Section 10.1.3.
Notwithstanding anything contained in this paragraph to the contrary, (a) if the
Parent Guarantor, the Subsidiary Guarantor and the Companies fail to deliver
such financial statements and Compliance Certificate in accordance with the
provisions of Sections 10.1.1, 10.1.2 and 10.1.3, the LIBOR Margin, the Base
Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall be based upon Level
I above beginning on the date such financial statements and Compliance
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Certificate were required to be delivered until the fifth (5th) Business Day
after such financial statements and Compliance Certificate are actually
delivered, whereupon each such Applicable Margin shall be determined by the then
current Level; (b) no reduction to any Applicable Margin shall become effective
at any time when an Event of Default or Unmatured Event of Default has occurred
and is continuing; (c) the initial Applicable Margin on the Closing Date shall
be based on Level III; and (d) until the date upon which the financial
statements and Compliance Certificate are delivered for the Fiscal Quarter
ending January 31, 2005, the Applicable Margin shall be determined by the then
current Level as provided above, provided that the Applicable Margin shall not
be reduced below Level III (i.e., to Level IV).
Assignee - see Section 15.6.1.
Assignment Agreement - see Section 15.6.1.
Attorney Costs means, with respect to any Person, all reasonable fees and
charges of any counsel to such Person, the reasonable allocable cost of internal
legal services of such Person, all reasonable disbursements of such internal
counsel and all court costs and similar legal expenses.
Average Debt to EBITDA Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (a) the average monthly Total Debt as of such day,
calculated using Total Debt as at the last day of each month ending during the
Computation Period ending as of such day to (b) EBITDA for the Computation
Period ending on such day.
Bank Product Agreements means those certain cash management service
agreements entered into from time to time between any Loan Party and a Lender or
its Affiliates in connection with any of the Bank Products.
Bank Product Obligations means all obligations, liabilities, contingent
reimbursement obligations, fees, and expenses owing by the Loan Parties to any
Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements
and irrespective of whether for the payment of money, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and including all such amounts that a Loan Party is obligated
to reimburse to any Lender as a result of such Lender purchasing participations
or executing indemnities or reimbursement obligations with respect to the Bank
Products provided to the Loan Parties pursuant to the Bank Product Agreements.
Bank Products means any service or facility extended to any Loan Party by
any Lender or its Affiliates including: (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions,
(f) cash management, including controlled disbursement, accounts or services, or
(g) Hedging Agreements.
Base Rate means at any time the greater of (a) the Federal Funds Rate plus
0.5% and (b) the Prime Rate.
Base Rate Loan means any Revolving Loan which bears interest at or by
reference to the Base Rate.
Base Rate Margin - see the definition of Applicable Margin.
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Borrowing Base means an amount equal to 85% of the unpaid amount (net of
the Collateral Reserve, the CASS Reserve, the Rent Reserve and such other
reserves and allowances as the Administrative Agent deems necessary in its
reasonable discretion) of all Eligible Accounts.
Borrowing Base Certificate means a certificate substantially in the form
of Exhibit C.
Brokerage - see the Preamble.
BSA - see Section 10.4.
Business Day means any day on which LaSalle is open for commercial banking
business in Chicago, Illinois and, in the case of a Business Day which relates
to a LIBOR Loan, on which dealings are carried on in the London interbank
eurodollar market.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Parent Guarantor including expenditures in respect of Capital
Leases, but excluding expenditures made in connection with the replacement,
substitution or restoration of assets to the extent financed (a) from insurance
proceeds (or other similar recoveries) paid on account of the loss of or damage
to the assets being replaced or restored or (b) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets being
replaced.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
Capital Securities means, with respect to any Person, all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
issued or acquired after the Closing Date, including common shares, preferred
shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership, interests in a trust, interests in other
unincorporated organizations or any other equivalent of such ownership interest.
Carrier Contract - see Section 9.23.
Cash Collateralize means, with respect to any Letters of Credit, to
deliver to the Administrative Agent cash collateral in the amount of 105% of the
aggregate undrawn face amount of any such Letters of Credit to be held as cash
collateral for outstanding Obligations in respect of Letters of Credit, pursuant
to documentation satisfactory to the Administrative Agent. Derivatives of such
term have corresponding meanings.
Cash Equivalent Investment means, at any time, (a) any evidence of Debt,
maturing not more than one year after such time, issued or guaranteed by the
United States Government or any agency thereof, (b) commercial paper, maturing
not more than one year from the date of issue, or corporate demand notes, in
each case (unless issued by a Lender or its holding company) rated at least A-l
by Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. or P-l by ▇▇▇▇▇'▇ Investors Service, Inc., (c) any certificate of deposit,
time deposit or
4
banker's acceptance, maturing not more than one year after such time, or any
overnight Federal Funds transaction that is issued or sold by any Lender or its
holding company (or by a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000.00), (d) any repurchase agreement entered
into with any Lender (or commercial banking institution of the nature referred
to in clause (c)) which (i) is secured by a fully perfected security interest in
any obligation of the type described in any of clauses (a) through (c) above and
(ii) has a market value at the time such repurchase agreement is entered into of
not less than 100% of the repurchase obligation of such Lender (or other
commercial banking institution) thereunder and (e) money market accounts or
mutual funds which invest exclusively in assets satisfying the foregoing
requirements, and (f) other short term liquid investments approved in writing by
the Administrative Agent.
Cash Management Side Letter means the letter agreement dated as of the
date hereof among the Administrative Agent, Bank of America, N.A., The Bank of
New York and the Loan Parties, in form and substance satisfactory to the
Administrative Agent.
CASS shall mean Cargo Network Services Corporation.
CASS Agreement shall mean that certain Cargo Agency and Authorized
Intermediary Agreement, dated November 24, 1998 between CASS and Union Transport
Corporation.
CASS Reserve means, at any time, a reserve equal to the amount of the
payment of accounts payable most recently made by the Companies to CASS, as
reflected on the Borrowing Base Certificate most recently delivered to the
Administrative Agent pursuant to Section 10.1.6 of this Agreement.
Change of Control means the occurrence of any of the following events to
the extent not permitted under Section 11.5 of this Agreement: (a) Worldwide
shall cease to own and control, directly or indirectly, 100% of each class of
the outstanding Capital Securities of the Parent Guarantor, (b) the Parent
Guarantor shall cease to own and control, directly or indirectly, 100% of each
class of the outstanding Capital Securities of each Company or (c) any of the
Companies shall cease to own and control, directly or indirectly, 100% of each
class of the outstanding Capital Securities of each of its Subsidiaries.
Closing Date - see Section 12.1.
Code means the Internal Revenue Code of 1986.
Collateral Access Agreement means an agreement in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which a
mortgagee or lessor of real property on which Collateral is stored or otherwise
located, or a warehouseman, processor or other bailee of Inventory or other
property owned by any Loan Party, acknowledges the Liens of the Administrative
Agent under the Collateral Documents and waives any Liens held by such Person on
such property, and, in the case of any such agreement with a mortgagee or
lessor, permits the Administrative Agent reasonable access to and use of such
real property following the occurrence and during the continuance of an Event of
Default to assemble, complete and sell any Collateral stored or otherwise
located thereon.
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Collateral is defined in the Guaranty and Collateral Agreement.
Collateral Documents means, collectively, the Guaranty and Collateral
Agreement, the Copyright Security Agreement, the Patent and Trademark Security
Agreement, each Collateral Access Agreement, each Perfection Certificate, each
control agreement and any other agreement or instrument pursuant to which the
Parent Guarantor, the Subsidiary Guarantor, the Companies or any other Loan
Party or any other Person grants or purports to grant Collateral to the
Administrative Agent for the benefit of the Lenders or otherwise relates to such
Collateral.
Collateral Reserve means a reserve in the amount of $3,000,000.00, as such
amount may be increased or decreased from time to time in the commercially
reasonable credit judgment of the Administrative Agent.
Commitment means, as to any Lender, such Lender's commitment to make
Revolving Loans, and to issue or participate in Letters of Credit, under this
Agreement. The initial amount of each Lender's commitment to make Revolving
Loans is set forth on Annex A.
Company and Companies - see the Preamble.
Company Representative - see Section 2.2.4.
Compliance Certificate means a Compliance Certificate in substantially the
form of Exhibit B.
Computation Period means each period of four consecutive Fiscal Quarters
ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Parent Guarantor and
its Subsidiaries, on a consolidated basis, for any period, the net income (or
loss) of the Parent Guarantor and its Subsidiaries for such period, excluding
any gains from sales of assets, any extraordinary gains and any gains from
discontinued operations.
Contingent Liability means, with respect to any Person, each obligation
and liability of such Person and all such obligations and liabilities of such
Person incurred pursuant to any agreement, undertaking or arrangement by which
such Person: (a) guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
dividend, obligation or other liability of any other Person in any manner (other
than by endorsement of instruments in the course of collection), including any
indebtedness, dividend or other obligation which may be issued or incurred at
some future time; (b) guarantees the payment of dividends or other distributions
upon the Capital Securities of any other Person; (c) undertakes or agrees
(whether contingently or otherwise): (i) to purchase, repurchase, or otherwise
acquire any indebtedness, obligation or liability of any other Person or any
property or assets constituting security therefor, (ii) to advance or provide
funds for the payment or discharge of any indebtedness, obligation or liability
of any other Person (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, working capital or other financial condition of any other Person, or
(iii) to make payment to any other Person other
6
than for value received; (d) agrees to lease property or to purchase securities,
property or services from such other Person with the purpose or intent of
assuring the owner of such indebtedness or obligation of the ability of such
other Person to make payment of the indebtedness or obligation; (e) to induce
the issuance of, or in connection with the issuance of, any letter of credit for
the benefit of such other Person; or (f) undertakes or agrees otherwise to
assure a creditor against loss. The amount of any Contingent Liability shall
(subject to any limitation set forth herein) be calculated in accordance with
GAAP; provided, that in the event that GAAP does not address the calculation of
such Contingent Liability, it shall be deemed to be the outstanding principal
amount (or maximum permitted principal amount, if larger) of the indebtedness,
obligation or other liability guaranteed or supported thereby.
Controlled Group means all members of a controlled group of corporations,
all members of a controlled group of trades or businesses (whether or not
incorporated) under common control and all members of an affiliated service
group which, together with the Parent Guarantor or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code or Section 4001 of
ERISA.
Copyright Security Agreement means the Copyright Security Agreement dated
as of the date hereof executed and delivered by the Loan Parties, in form and
substance satisfactory to the Administrative Agent.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person, (b) all borrowed money of such Person, whether or not evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person as lessee under Capital Leases which have been or should be recorded as
liabilities on a balance sheet of such Person in accordance with GAAP, (d) all
obligations of such Person to pay the deferred purchase price of property or
services (excluding trade accounts payable in the ordinary course of business),
(e) all indebtedness secured by a Lien on the property of such Person, whether
or not such indebtedness shall have been assumed by such Person; provided that
if such Person has not assumed or otherwise become liable for such indebtedness,
such indebtedness shall be measured at the fair market value of such property
securing such indebtedness at the time of determination, (f) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn), bankers' acceptances and similar obligations
issued for the account or upon the application of such Person (including the
Letters of Credit), (g) all Hedging Obligations of such Person, (h) all
Contingent Liabilities of such Person and (i) all Debt of any partnership of
which such Person is a general partner; provided, that Debt shall not include
obligations under operating leases.
Debt to be Repaid means Debt listed on Schedule 12.1.
Dollar and the sign "$" mean lawful money of the United States of America.
EBITDA means, for any period, Consolidated Net Income for such period
plus, to the extent deducted in determining such Consolidated Net Income,
Interest Expense, income tax expense, depreciation and amortization for such
period.
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Eligible Account means an Account owing to the Companies (or any of them)
which meets each of the following requirements:
(a) it arises from the sale or lease of goods or the rendering of
services which are billable by such Company in accordance with the terms
and conditions of the underlying sales contract; and if it arises from the
sale or lease of goods, (i) such goods comply with such Account Debtor's
specifications (if any) and have been delivered to such Account Debtor and
(ii) such Company has possession of, or if requested by the Administrative
Agent after the occurrence and during the continuance of an Event of
Default has delivered to the Administrative Agent, delivery receipts
evidencing such delivery;
(b) other than Liens permitted pursuant to Section 11.2(h) hereof,
it (i) is subject to a perfected, first priority Lien in favor of the
Administrative Agent for the benefit of the Lenders and (ii) is not
subject to any other assignment, claim or Lien;
(c) it is a valid, legally enforceable and unconditional obligation
of the Account Debtor with respect thereto, and is not subject to the
fulfillment of any condition whatsoever or any counterclaim, credit,
allowance, discount, rebate or adjustment by the Account Debtor with
respect thereto, or to any claim by such Account Debtor denying liability
thereunder in whole or in part and the Account Debtor has not refused to
accept and/or has not returned or offered to return any of the goods or
services which are the subject of such Account; provided, that in any
event such Account shall not be an Eligible Account only to the extent of
such counterclaim, credit, allowance, discount, rebate, adjustment, claim,
refusal, return or offer to return;
(d) to such Company's knowledge after reasonable diligence, there is
no bankruptcy, insolvency or liquidation proceeding pending by or against
the Account Debtor with respect thereto;
(e) the Account Debtor with respect thereto is organized under the
laws of the United States, any state thereof or the District of Columbia
or is located within the United States, unless the sale of goods or
services giving rise to such Account is on letter of credit, banker's
acceptance or other credit support terms reasonably satisfactory to the
Administrative Agent;
(f) it is not an Account arising from a "sale on approval," "sale or
return," "consignment" or "▇▇▇▇ and hold" or subject to any other
repurchase or return agreement;
(g) it is not an Account with respect to which possession and/or
control of the goods sold giving rise thereto is held, maintained or
retained by such Company (or by any agent or custodian of such Company)
for the account of or subject to further and/or future direction from the
Account Debtor with respect thereto;
(h) it arises in the ordinary course of business of such Company;
(i) if the Account Debtor is the United States or any department,
agency or instrumentality thereof, such Company has assigned its right to
payment of such Account
8
to the Administrative Agent, for the benefit of the Lenders, pursuant to
the Assignment of Claims Act of 1940, and evidence (satisfactory to the
Administrative Agent) of such assignment has been delivered to the
Administrative Agent;
(j) if such Company maintains a credit limit for an Account Debtor,
the aggregate dollar amount of Accounts due from such Account Debtor and
its Affiliated Account Debtors, including such Account, does not exceed
such credit limit without the consent of a duly authorized employee of
such Company;
(k) if the Account is evidenced by chattel paper or an instrument,
the originals of such chattel paper or instrument shall have been endorsed
and/or assigned and delivered to the Administrative Agent or, in the case
of electronic chattel paper, shall be in the control of the Administrative
Agent, in each case in a manner satisfactory to the Administrative Agent;
(l) such Account is evidenced by an invoice delivered to the related
Account Debtor and is not more than (i) sixty (60) days past the due date
thereof or (ii) ninety (90) days past the original invoice date thereof,
in each case according to the original terms of sale;
(m) it is not an Account with respect to an Account Debtor that is
located in any jurisdiction (e.g., Indiana, Minnesota, New Jersey and West
Virginia) which has adopted a statute or other requirement with respect to
which any Person that obtains business from within such jurisdiction must
file a notice of business activities report or make any other required
filings in a timely manner in order to enforce its claims in such
jurisdiction's courts unless (i) such notice of business activities report
has been duly and timely filed or such Company is exempt from filing such
report and has provided the Administrative Agent with satisfactory
evidence of such exemption or (ii) the failure to make such filings may be
cured retroactively by such Company for a nominal fee;
(n) the Account Debtor with respect thereto is not a Loan Party or
an Affiliate of a Loan Party;
(o) it is not owed by an Account Debtor with respect to which fifty
percent (50%) or more of the aggregate amount of outstanding Accounts owed
at such time by such Account Debtor and/or its Affiliated Account Debtors
to the Companies are classified as ineligible under clause (l) of this
definition;
(p) if the aggregate amount of all Accounts owed by the Account
Debtor and its Affiliated Account Debtors to the Companies thereon exceeds
fifty percent (50%) of the aggregate amount of all Accounts of the
Companies at such time, then all Accounts owed by such Account Debtor in
excess of such amount shall be deemed ineligible;
(q) it is otherwise not unacceptable to the Administrative Agent in
its reasonable discretion for any other reason; provided, that prior to
the classification of any Account as ineligible under this clause (q), the
Administrative Agent shall provide the Companies prior written notice of
such classification; and
9
(r) it is not an Account for which any Company or any other Loan
Party has received any prepayment or a deposit in respect of such Account;
provided, however, that the amount of such Account in excess of the amount
of any such prepayment and/or deposit shall not be deemed ineligible
pursuant to this clause (r).
An Account which is at any time an Eligible Account, but which subsequently
fails to meet any of the foregoing requirements, shall forthwith cease to be an
Eligible Account until it meets the foregoing requirements; provided, that the
Companies may only include such newly reclassified Eligible Account in the
Borrowing Base if they have delivered to the Administrative Agent a Borrowing
Base Certificate calculating the Borrowing Base as of the date requested for
inclusion of such newly Eligible Account. Further, with respect to any Account,
if the Administrative Agent or the Required Lenders at any time hereafter
determine in its or their discretion that the prospect of payment or performance
by the Account Debtor with respect thereto is materially impaired for any reason
whatsoever, such Account shall cease to be an Eligible Account after notice of
such determination is given to the Company Representative.
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
Environmental Laws means all present or future federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative or judicial orders, consent agreements,
directed duties, requests, licenses, authorizations and permits of, and
agreements with, any governmental authority, in each case relating to any matter
arising out of or relating to public health and safety, or pollution or
protection of the environment or workplace, including any of the foregoing
relating to the presence, use, production, generation, handling, transport,
treatment, storage, disposal, distribution, discharge, emission, release,
threatened release, control or cleanup of any Hazardous Substance.
ERISA means the Employee Retirement Income Security Act of 1974.
Event of Default means any of the events described in Section 13.1.
Excluded Taxes means taxes based upon, or measured by, any Lender's or
Administrative Agent's (or a branch of any Lender's or Administrative Agent's)
overall net income, overall net receipts, or overall net profits (including
franchise taxes imposed in lieu of such taxes), but only to the extent such
taxes are imposed by a taxing authority (a) in a jurisdiction in which such
Lender or Administrative Agent is organized, (b) in a jurisdiction which such
Lender's or the Administrative Agent's principal office is located, or (c) in a
jurisdiction in which such Lender's or the Administrative Agent's lending office
(or branch) in respect of which payments under this Agreement are made is
located.
Existing Letters of Credit means those Letters of Credit issued by Bank of
America, N.A. for the account of the Companies (or any of them), in each case as
more fully described on Schedule 1.1.
Federal Funds Rate means, for any day, a fluctuating interest rate equal
for each day during such period to the weighted average of the rates on
overnight Federal funds transactions
10
with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent. The Administrative Agent's determination of such rate
shall be binding and conclusive absent manifest error.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Parent Guarantor and its
Subsidiaries, which period shall be the 12-month period ending on January 31 of
each year. References to a Fiscal Year with a number corresponding to any
calendar year (e.g., "Fiscal Year 2003") refer to the Fiscal Year ending on
January 31 of such calendar year.
Fixed Charge Coverage Ratio means, for any Computation Period, the ratio
of (a) the total for such period of EBITDA minus the sum of income taxes paid in
cash by the Parent Guarantor and its Subsidiaries and all Capital Expenditures
to (b) the sum for such period of (i) cash Interest Expense plus (ii) required
payments of principal of Funded Debt (excluding the Revolving Loans).
FRB means the Board of Governors of the Federal Reserve System or any
successor thereto.
Funded Debt means, as to Parent Guarantor and its Subsidiaries on a
consolidated basis, all Debt of such Persons that matures more than one year
from the date of its creation (or is renewable or extendible, at the option of
any such Person, to a date more than one year from such date).
GAAP means United States generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession) and the Securities and Exchange Commission, which
are applicable to the circumstances as of the date of determination.
Group - see Section 2.2.1.
Guaranty and Collateral Agreement means the Guaranty and Collateral
Agreement dated as of the date hereof executed and delivered by the Loan
Parties, together with any joinders thereto and any other guaranty and
collateral agreement executed by a Loan Party, in each case in form and
substance satisfactory to the Administrative Agent.
Hazardous Substances means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, dielectric fluid containing levels of
polychlorinated biphenyls, radon gas and mold; (b) any chemicals, materials,
pollutants or substances defined as or included in the definition of "hazardous
substances", "hazardous waste", "hazardous materials", "extremely hazardous
11
substances", "restricted hazardous waste", "toxic substances", "toxic
pollutants", "contaminants", "pollutants" or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or substance,
the exposure to or release of which is prohibited, limited or regulated by any
governmental authority or for which any duty or standard of care is imposed
pursuant to any Environmental Law.
Hedging Agreement means any interest rate, currency or commodity swap
agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedging Obligation means, with respect to any Person, any liability of
such Person under any Hedging Agreement. The amount of any Person's obligation
in respect of any Hedging Obligation shall be deemed to be the incremental
obligation that would be reflected in the financial statements of such Person in
accordance with GAAP.
Immaterial Subsidiary means any of UTi Logistics Inc., a Delaware
corporation, and Vanguard Cargo Systems, Inc., a New York corporation; provided,
that if at any time (i) EBITDA of any Immaterial Subsidiary for the four
consecutive Fiscal Quarters most recently ended exceeds $200,000 or (ii) the
aggregate book value of assets of (A) UTi Logistics, Inc. exceeds $5,100,000 or
(B) Vanguard Cargo Systems, Inc. exceeds $1,250,000, such Immaterial Subsidiary
shall cease to be deemed an Immaterial Subsidiaries hereunder, shall be required
to become a Loan Party and shall comply with the provisions of Section 10.9.
Indemnified Liabilities - see Section 15.17.
Interest Expense means for any period the consolidated interest expense of
the Parent Guarantor and its Subsidiaries for such period (including all imputed
interest on Capital Leases).
Interest Period means, as to any LIBOR Loan, the period commencing on the
date such Revolving Loan is borrowed or continued as, or converted into, a LIBOR
Loan and ending on the date one, two, three or six months thereafter as selected
by the Company Representative pursuant to Section 2.2.2 or 2.2.3, as the case
may be; provided that:
(a) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(b) any Interest Period that begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period; and
(c) the Company Representative may not select any Interest Period
for a Revolving Loan which would extend beyond the scheduled Termination
Date.
Inventory is defined in the Guaranty and Collateral Agreement.
12
Investment means, with respect to any Person, any investment in another
Person, whether by acquisition of any debt or Capital Security, by making any
loan or advance, by becoming obligated with respect to a Contingent Liability in
respect of obligations of such other Person or by merger, consolidation or other
combination.
IRS means the Internal Revenue Service.
Issuing Lender means LaSalle, in its capacity as the issuer of Letters of
Credit hereunder (other than the Existing Letters of Credit), or any Affiliate
of LaSalle that may from time to time issue Letters of Credit, and their
successors and assigns in such capacity, and, with respect to the Existing
Letters of Credit, Bank of America, N.A.
LaSalle - see the Preamble.
L/C Application means, with respect to any request for the issuance of a
Letter of Credit, a letter of credit application in the form being used by the
Issuing Lender at the time of such request for the type of Letter of Credit
requested.
L/C Fee Rate - see the definition of Applicable Margin.
Lender - see the Preamble. References to the "Lenders" shall include the
Issuing Lender; for purposes of clarification only, to the extent that LaSalle
(or any successor Issuing Lender) may have any rights or obligations in addition
to those of the other Lenders due to its status as Issuing Lender, its status as
such will be specifically referenced. In addition to the foregoing, for the
purpose of identifying the Persons entitled to share in the Collateral and the
proceeds thereof under, and in accordance with the provisions of, this Agreement
and the Collateral Documents, the term "Lender" shall include Affiliates of a
Lender providing a Bank Product.
Lender Party - see Section 15.17.
Letter of Credit - see Section 2.1.2.
LIBOR Loan means any Revolving Loan which bears interest at a rate
determined by reference to the LIBOR Rate.
LIBOR Margin - see the definition of Applicable Margin.
LIBOR Office means with respect to any Lender or the office or offices of
such Lender which shall be making or maintaining the LIBOR Loans of such Lender
hereunder. A LIBOR Office of any Lender may be, at the option of such Lender
either a domestic or foreign office.
LIBOR Rate means a rate of interest equal to (a) the per annum rate of
interest at which Dollar deposits in an amount comparable to the amount of the
relevant LIBOR Loan and for a period equal to the relevant Interest Period are
offered in the London Interbank Eurodollar market at 11:00 A.M. (London time)
two (2) Business Days prior to the commencement of such Interest Period, as
displayed in the Bloomberg Financial Markets system (or other authoritative
source selected by the Administrative Agent in its sole discretion) or, if the
Bloomberg Financial Markets system or another authoritative source is not
available, as the LIBOR Rate is otherwise
13
determined by the Administrative Agent in its sole and absolute discretion,
divided by (b) a number determined by subtracting from 1.00 the then stated
maximum reserve percentage for determining reserves to be maintained by member
banks of the Federal Reserve System for Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D), such rate to remain fixed for such Interest Period. The
Administrative Agent's determination of the LIBOR Rate shall be conclusive,
absent manifest error.
Lien means, with respect to any Person, any interest granted by such
Person in any real or personal property, asset or other right owned or being
purchased or acquired by such Person (including an interest in respect of a
Capital Lease) which secures payment or performance of any obligation and shall
include any mortgage, lien, encumbrance, title retention lien, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
Loan Documents means this Agreement, the Notes, the Letters of Credit, the
Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter,
the Collateral Documents, the Cash Management Side Letter, the UTi Canada
Intercompany Note and all documents, instruments and agreements delivered in
connection with the foregoing.
Loan Party means the Parent Guarantor, the Subsidiary Guarantor, each
Company and each other Subsidiary that becomes a party hereto or to the Guaranty
and Collateral Agreement, in either case, as a guarantor or borrower.
Logistics Contract - see Section 9.23.
Margin Stock means any "margin stock" as defined in Regulation U.
Master Letter of Credit Agreement means, at any time, with respect to the
issuance of Letters of Credit, a master letter of credit agreement or
reimbursement agreement in the form, if any, being used by the Issuing Lender at
such time.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the financial condition, operations, assets,
business, properties or prospects of the Loan Parties taken as a whole, (b) a
material impairment of the ability of any Loan Party to perform any of the
Obligations under any Loan Document or (c) a material adverse effect upon any
substantial portion of the Collateral under the Collateral Documents or upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document.
Multiemployer Pension Plan means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Parent Guarantor, the Subsidiary
Guarantor, any Company or any other member of the Controlled Group may have any
liability.
Net Worth shall mean for the Parent Guarantor and its Subsidiaries, on a
consolidated basis, as at the end of any Fiscal Quarter, (i) the total amount of
all consolidated assets that, in accordance with GAAP, are properly shown as
such on the consolidated balance sheet of the Parent Guarantor and its
Subsidiaries as at the end of such Fiscal Quarter, prepared in accordance with
GAAP (with Inventory being valued at the lower of cost or market value), after
deducting
14
all proper reserves (including reserves for depreciation and amortization),
minus (ii) the total amount of all consolidated liabilities of the Parent
Guarantor and its Subsidiaries that, in accordance with GAAP, are properly shown
as such on such balance sheet.
Non-U.S. Participant - see Section 7.6(d).
Non-Use Fee Rate - see the definition of Applicable Margin.
Note means a promissory note substantially in the form of Exhibit A.
Notice of Borrowing - see Section 2.2.2.
Notice of Conversion/Continuation - see Section 2.2.3(b).
Obligations means all obligations (monetary (including post-petition
interest, allowed or not) or otherwise) of any Loan Party under this Agreement
and any other Loan Document including Attorney Costs and any reimbursement
obligations of each Loan Party in respect of Letters of Credit and surety bonds,
all Hedging Obligations permitted hereunder which are owed to any Lender, and
all other Bank Product Obligations, all in each case howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due.
OFAC - see Section 10.4.
Parent Guarantor - see the Preamble.
Patent and Trademark Security Agreement means the Patent and Trademark
Security Agreement dated as of the date hereof executed and delivered by the
Loan Parties, in form and substance satisfactory to the Administrative Agent.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Participant - see Section 15.6.2.
Pension Plan means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA or the minimum funding
standards of ERISA (other than a Multiemployer Pension Plan), and as to which
the Parent Guarantor, the Subsidiary Guarantor, any Company or any member of the
Controlled Group may have any liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
Perfection Certificate means a perfection certificate executed and
delivered to the Administrative Agent by a Loan Party.
Permitted Lien means a Lien expressly permitted hereunder pursuant to
Section 11.2.
15
Person means any natural person, corporation, partnership, trust, limited
liability company, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other capacity.
Prime Rate means, for any day, the rate of interest in effect for such day
as publicly announced from time to time by LaSalle as its prime rate (whether or
not such rate is actually charged by LaSalle), which is not intended to be
LaSalle's lowest or most favorable rate of interest at any one time. Any change
in the Prime Rate announced by LaSalle shall take effect at the opening of
business on the day specified in the public announcement of such change;
provided that LaSalle shall not be obligated to give notice of any change in the
Prime Rate.
Pro Forma Basis means, with respect to compliance with any test or
covenant hereunder, compliance with such covenant or test after giving effect to
any proposed Acquisition (including pro forma adjustments arising out of events
which are directly attributable to the proposed Acquisition, are factually
supportable and are expected to have a continuing impact, in each case
determined on a basis consistent with Article 11 of Regulation S-X of the
Securities Act of 1933, as amended, and as interpreted by the Staff of the
Securities and Exchange Commission using, for purposes of determining such
compliance, the historical financial statements of all entities or assets so
acquired or to be acquired and the consolidated financial statements of the
Parent Guarantor and its Subsidiaries which shall be reformulated as if such
Acquisition and any other Acquisitions permitted pursuant to Section 11.11 that
have been consummated during the relevant period, and any Indebtedness or other
liabilities incurred in connection with any such Acquisitions had been
consummated or incurred, respectively, at the beginning of such period and
assuming that such Debt bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans during such period) or
dividend or distribution, as the case may be.
Pro Forma Compliance means, at any date of determination, that the Parent
Guarantor and its Subsidiaries shall be in pro forma compliance with the
covenant to be tested on such date of determination as of the last day of the
most recently ended Fiscal Quarter (computed on the basis of (a) balance sheet
amounts as of the most recently ended Fiscal Quarter and (b) income statement
amounts for the most recently completed period of four consecutive Fiscal
Quarters, in each case, for which financial statements shall have been delivered
to the Administrative Agent and calculated on a Pro Forma Basis in respect of
the event giving rise to such determination).
Pro Rata Share means, as to each Lender, the percentage obtained by
dividing (i) such Lender's portion of the Revolving Commitment by (ii) the
aggregate amount of the Revolving Commitment; provided that in the event the
Commitments have been terminated or reduced to zero, Pro Rata Share shall be the
percentage obtained by dividing (A) the principal amount of such Lender's
Revolving Outstandings at such time by (B) the aggregate principal amount of the
Revolving Outstandings of all Lenders at such time.
Regulation D means Regulation D of the FRB.
Regulation U means Regulation U of the FRB.
16
Rent Reserve means a dollar amount equal to three times the monthly lease
payment for each leased facility of the Companies for which the Administrative
Agent has required, pursuant to Section 12.1.7 of this Agreement or Section
5.9(a) of the Guarantee and Collateral Agreement, and for which the landlord
thereof has not entered into, a Collateral Access Agreement.
Replacement Lender - see Section 8.7(b).
Reportable Event means a reportable event as defined in Section 4043 of
ERISA and the regulations issued thereunder as to which the PBGC has not waived
the notification requirement of Section 4043(a), or the failure of a Pension
Plan to meet the minimum funding standards of Section 412 of the Code (without
regard to whether the Pension Plan is a plan described in Section 4021(a)(2) of
ERISA) or under Section 302 of ERISA.
Required Lenders means, at any time, Lenders whose Pro Rata Shares exceed
66-2/3% at such time; provided, that if and for as long as there are only two
Lenders parties hereto, Required Lenders shall mean both Lenders.
Responsible Officer means, with respect to any Loan Party, (i) any of the
chief executive officer, the chief financial officer, the chief operating
officer or the treasurer of such Loan Party and (ii) any other officer of such
Loan Party with knowledge of or responsibility for compliance with the
applicable provisions of the Loan Documents.
Revolving Commitment means Fifty Million Dollars ($50,000,000.00), as such
amount may be reduced from time to time pursuant to Section 6.1.1.
Revolving Loan - see Section 2.1.1.
Revolving Loan Availability means the lesser of (i) the Revolving
Commitment and (ii) the Borrowing Base.
Revolving Outstandings means, at any time, the sum of (a) the aggregate
principal amount of all outstanding Revolving Loans, plus (b) the aggregate
Stated Amount of all Letters of Credit and, when used in reference to any
Lender, means the sum of (y) the aggregate principal amount of all Revolving
Loans made by such Lender, plus (z) the amount of such Lender's participation
interest in the aggregate Stated Amount of all Letters of Credit.
SEC means the Securities and Exchange Commission or any other governmental
authority succeeding to any of the principal functions thereof.
Senior Officer means, with respect to any Loan Party, any of the chief
executive officer, the chief financial officer, the chief operating officer or
the treasurer of such Loan Party.
Separate Accounts - see Section 9.23(d).
Stated Amount means, with respect to any Letter of Credit at any date of
determination, (a) the maximum aggregate amount available for drawing thereunder
under any and all circumstances plus (b) the aggregate amount of all
unreimbursed payments and disbursements under such Letter of Credit.
17
Subsidiary means, with respect to any Person, a corporation, partnership,
limited liability company or other entity of which such Person owns, directly or
indirectly, such number of outstanding Capital Securities as have more than 50%
of the ordinary voting power for the election of directors or other managers of
such corporation, partnership, limited liability company or other entity. Unless
the context otherwise requires, each reference to Subsidiaries herein shall be a
reference to Subsidiaries of the Companies.
Subsidiary Guarantor - see the Preamble.
Taxes means any and all present and future taxes, duties, levies, imposts,
deductions, assessments, charges or withholdings, and any and all liabilities
(including interest and penalties and other additions to taxes) with respect to
the foregoing, but excluding Excluded Taxes.
Termination Date means the earlier to occur of (a) August 5, 2007 or (b)
such other date on which the Commitments terminate pursuant to Section 6.1.1 or
13.2.
Termination Event means, with respect to a Pension Plan that is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Parent
Guarantor, the Subsidiary Guarantor, any Company, or any other member of the
Controlled Group from such Pension Plan during a plan year in which the Parent
Guarantor, the Subsidiary Guarantor, any Company, or any other member of the
Controlled Group was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA or was deemed such under Section 4068(f) of ERISA, (c) the termination
of such Pension Plan, the filing of a notice of intent to terminate the Pension
Plan or the treatment of an amendment of such Pension Plan as a termination
under Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to
terminate such Pension Plan or (e) any event or condition that might constitute
grounds under Section 4042 of ERISA for the termination of, or appointment of a
trustee to administer, such Pension Plan.
Total Debt means all Debt of the Parent Guarantor and its Subsidiaries,
determined on a consolidated basis, excluding (a) contingent obligations in
respect of Contingent Liabilities (except to the extent constituting Contingent
Liabilities in respect of Debt of a Person other than any Loan Party), (b)
Hedging Obligations, and (c) Debt of the Parent Guarantor to any of its
Subsidiaries (to the extent such Subsidiaries are Loan Parties) and Debt of
Subsidiaries of the Parent Guarantor to other Subsidiaries of the Parent
Guarantor (to the extent such other Subsidiaries are Loan Parties) or to the
Parent Guarantor and (d) contingent obligations in respect of undrawn letters of
credit.
Total Debt to EBITDA Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (a) Total Debt as of such day to (b) EBITDA for the
Computation Period ending on such day.
Total Plan Liability means, at any time, the present value of all vested
and unvested accrued benefits under all Pension Plans, determined as of the then
most recent valuation date for each Pension Plan, using PBGC actuarial
assumptions for single employer plan terminations.
type - see Section 2.2.1.
UCC is defined in the Guaranty and Collateral Agreement.
18
UTi - see the Preamble.
UTi Canada means UTi, Canada, Inc., a corporation organized under the laws
of Canada.
UTi Canada Intercompany Loan means the loan or loans made from time to
time by UTi to UTi Canada in an aggregate maximum principal amount of up to Five
Million Dollars ($5,000,000.00) as evidenced by the UTi Canada Intercompany
Note.
UTi Canada Intercompany Note shall mean a subordinated intercompany
promissory note in the amount of Five Million Dollars ($5,000,000.00) executed
by UTi Canada in favor of UTi and pledged by UTi to the Administrative Agent,
for the benefit of the Lenders, as security for the Obligations.
Unfunded Liability means the amount (if any) by which the present value of
all vested and unvested accrued benefits under all Pension Plans exceeds the
fair market value of all assets allocable to those benefits, all determined as
of the then most recent valuation date for each Pension Plan, using PBGC
actuarial assumptions for single employer plan terminations.
Unmatured Event of Default means any event that, if it continues uncured,
will, with lapse of time or notice or both, constitute an Event of Default.
Wholly-Owned Subsidiary means, as to any Company, a Subsidiary of such
Company all of the Capital Securities of which (except directors' qualifying
Capital Securities) are at the time directly or indirectly owned by such Company
and/or another Wholly-Owned Subsidiary of such Company.
Wholly-Owned Subsidiary Guarantor means (x) the Subsidiary Guarantor or
(y) any other domestic Wholly-Owned Subsidiary (i) that either is directly
liable for, or unconditionally guaranties the payment and performance of, the
Obligations, (ii) such direct or guaranty obligations are secured by a grant to
the Administrative Agent, for the benefit of the Lenders, of a security interest
in substantially all of the assets of such Subsidiary and (iii) all of the
Capital Securities of such Subsidiary are pledged to the Administrative Agent,
for the benefit of the Lenders, in each case, pursuant to documents and
agreements in form and substance satisfactory to the Administrative Agent.
Withholding Certificate - see Section 7.6(d).
Worldwide means UTi Worldwide Inc., a British Virgin Islands corporation
and indirect owner of 100% of the issued and outstanding Capital Securities of
the Parent Guarantor.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) Section, Annex, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
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(c) The term "including" is not limiting and means "including without
limitation."
(d) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word "through" means "to and
including."
(e) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement and the other Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, supplements and other modifications thereto, but only to the
extent such amendments, restatements, supplements and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.
(f) This Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and each shall be
performed in accordance with its terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Parent Guarantor, the Subsidiary Guarantor, each Company, the
Subsidiaries, the Lenders and the other parties hereto and thereto and are the
products of all parties. Accordingly, they shall not be construed against the
Administrative Agent or the Lenders merely because of the Administrative Agent's
or Lenders' involvement in their preparation.
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT
PROCEDURES.
2.1 Commitments. On and subject to the terms and conditions of this
Agreement, each of the Lenders, severally and for itself alone, agrees to make
revolving loans to, and to issue or participate in letters of credit for the
account of, the Companies as follows:
2.1.1 Revolving Commitment. Subject to the terms and conditions hereof,
each Lender agrees to make loans on a revolving basis ("Revolving Loans") from
time to time until the Termination Date in such Lender's Pro Rata Share of such
aggregate amounts as the Company Representative may request from all Lenders;
provided that the Revolving Outstandings will not at any time exceed Revolving
Loan Availability.
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 the Company
Representative and for the account of the Company specified thereby 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 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) and (b) the
Revolving Outstandings shall not at any time exceed Revolving Loan Availability.
Without limiting the foregoing, for so long as they are outstanding, the term
"Letter of Credit" and all provisions of this Agreement relating thereto
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(including without limitation, the purchase of participation interests therein),
shall be deemed to include, refer to and apply to the Existing Letters of Credit
as if such Existing Letters of Credit were issued pursuant to the terms hereof.
2.2 Loan Procedures.
2.2.1 Various Types of Loans. Each Revolving Loan shall be divided into
tranches which are, either a Base Rate Loan or a LIBOR Loan (each a "type" of
Revolving Loan), as the Company Representative shall specify in the related
notice of borrowing or conversion pursuant to Section 2.2.2 or 2.2.3. LIBOR
Loans having the same Interest Period are sometimes called a "Group" or
collectively "Groups". Base Rate Loans and LIBOR Loans may be outstanding at the
same time, provided that not more than five (5) different Groups of LIBOR Loans
shall be outstanding at any one time. All borrowings, conversions and repayments
of Revolving Loans shall be effected so that each Lender will have a ratable
share (according to its Pro Rata Share) of all types and Groups of Revolving
Loans.
2.2.2 Borrowing Procedures. The Company Representative shall give written
notice (each such written notice, a "Notice of Borrowing") substantially in the
form of Exhibit E or telephonic notice (followed promptly by a Notice of
Borrowing) to the Administrative Agent of each proposed borrowing not later than
(a) in the case of a Base Rate borrowing, 11:00 A.M., Chicago time, on the
proposed date of such borrowing, and (b) in the case of a LIBOR borrowing, 11:00
A.M., Chicago time, at least three Business Days prior to the proposed date of
such borrowing. Each such notice shall be effective upon receipt by the
Administrative Agent, shall be irrevocable, and shall specify the date, amount
and type of borrowing and, in the case of a LIBOR borrowing, the initial
Interest Period therefor. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Not later than 1:00 P.M.,
Chicago time, on the date of a proposed borrowing, each Lender shall provide the
Administrative Agent at the office specified by the Administrative Agent with
immediately available funds covering such Lender's Pro Rata Share of such
borrowing and, so long as the Administrative Agent has not received written
notice that the conditions precedent set forth in Section 12 with respect to
such borrowing have not been satisfied, the Administrative Agent shall pay over
the funds received by the Administrative Agent to the Company Representative on
the requested borrowing date. Each borrowing shall be on a Business Day. Each
Base Rate borrowing shall be in an aggregate amount of at least One Hundred
Thousand Dollars ($100,000.00) and an integral multiple of One Hundred Thousand
Dollars ($100,000.00), and each LIBOR borrowing shall be in an aggregate amount
of at least One Million Dollars ($1,000,000.00) and an integral multiple of at
least One Hundred Thousand Dollars ($100,000.00).
2.2.3 Conversion and Continuation Procedures. (a) Subject to Sections
2.1.1 and 2.2.1, the Company Representative may, upon irrevocable written notice
to the Administrative Agent in accordance with clause (b) below:
(1) elect, as of any Business Day, to convert any Revolving Loans
(or any part thereof in an aggregate amount not less than One Million Dollars
($1,000,000.00) or a higher integral multiple of One Hundred Thousand Dollars
($100,000.00)) into Revolving Loans of the other type; or
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(2) elect, as of the last day of the applicable Interest Period, to
continue any LIBOR Loans having Interest Periods expiring on such day (or any
part thereof in an aggregate amount not less than One Million Dollars
($1,000,000.00) or a higher integral multiple of One Hundred Thousand Dollars
($100,000.00)) for a new Interest Period;
provided that after giving effect to any prepayment, conversion or continuation,
the aggregate principal amount of each Group of LIBOR Loans shall be at least
One Million Dollars ($1,000,000.00) and an integral multiple of One Hundred
Thousand Dollars ($100,000.00).
(b) The Company Representative shall give written notice (each such
written notice, a "Notice of Conversion/Continuation") substantially in the form
of Exhibit F or telephonic notice (followed promptly by a Notice of
Conversion/Continuation) to the Administrative Agent of each proposed conversion
or continuation not later than (i) in the case of conversion into Base Rate
Loans, 11:00 A.M., Chicago time, on the proposed date of such conversion and
(ii) in the case of conversion into or continuation of LIBOR Loans, 11:00 A.M.,
Chicago time, at least three (3) Business Days prior to the proposed date of
such conversion or continuation, specifying in each case:
(1) the proposed date of conversion or continuation;
(2) the aggregate amount of Revolving Loans to be converted or
continued;
(3) the type of Revolving Loans resulting from the proposed
conversion or continuation; and
(4) in the case of conversion into, or continuation of, LIBOR Loans,
the duration of the requested Interest Period therefor.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Loans, the Company Representative has failed to select timely a new Interest
Period to be applicable to such LIBOR Loans, the Company Representative shall be
deemed to have elected to convert such LIBOR Loans into Base Rate Loans
effective on the last day of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender of its
receipt of a notice of conversion or continuation pursuant to this Section 2.2.3
or, if no timely notice is provided by the Company Representative, of the
details of any automatic conversion.
(e) Any conversion of a LIBOR Loan on a day other than the last day of an
Interest Period therefor shall be subject to Section 8.4.
2.2.4 Reliance on Notices; Appointment of Company Representative. Each of
the Administrative Agent and the Lenders shall be entitled to rely upon, and
shall be fully protected in relying upon, any Notice of Borrowing, Notice of
Conversion/Continuation or similar notice believed by it to be genuine. Each of
the Administrative Agent and the Lenders may assume that each Person executing
and delivering any notice in accordance herewith was duly authorized, unless the
responsible individual acting thereon for the Administrative Agent or such
Lender (as the case may be) has actual knowledge to the contrary. Each of the
Companies hereby designates, and the Parent Guarantor and the Subsidiary
Guarantor shall cause each other Loan
22
Party to designate, UTi as its representative and agent on its behalf (in such
capacity, the "Company Representative") for the purposes of issuing Notices of
Borrowing, Notices of Conversion/Continuation, giving instructions with respect
to the disbursement of the proceeds of the Revolving Loans, selecting interest
rate options, requesting Letters of Credit, giving and receiving all other
notices and consents hereunder or under any of the other Loan Documents and
taking all other actions (including in respect of compliance with covenants) on
behalf of itself, any other Company or any other Loan Party under the Loan
Documents. UTi hereby accepts such appointment. The Administrative Agent and
each Lender may regard any notice or other communication pursuant to any Loan
Document from the Company Representative as a notice or communication from each
Company or other Loan Party, as applicable, and may give any notice or
communication required or permitted to be given to any Loan Party hereunder to
the Company Representative on behalf of such Loan Party. Each Company agrees,
and the Parent Guarantor and the Subsidiary Guarantor shall cause each other
Loan Party to agree, that each notice, election, representation and warranty,
covenant, agreement and undertaking made on its behalf by the Company
Representative shall be deemed for all purposes to have been made by such Loan
Party and shall be binding upon and enforceable against such Loan Party to the
same extent as if the same had been made directly by such Loan Party.
2.3 Letter of Credit Procedures.
2.3.1 L/C Applications. Each Company shall execute and deliver to the
Issuing Lender the Master Letter of Credit Agreement from time to time in
effect. The Company Representative shall give notice to the Administrative Agent
and the Issuing Lender of the proposed issuance of each Letter of Credit on a
Business Day which is at least three (3) Business Days (or such lesser number of
days as the Administrative Agent and the Issuing Lender shall agree in any
particular instance in their sole discretion) prior to the proposed date of
issuance of such Letter of Credit. Each such notice shall be accompanied by an
L/C Application, duly executed by the applicable Company and in all respects
satisfactory to the Administrative Agent and the Issuing Lender, together with
such other documentation as the Administrative Agent or the Issuing Lender may
request in support thereof, it being understood that each L/C Application shall
specify, among other things, the date on which the proposed Letter of Credit is
to be issued, the expiration date of such Letter of Credit (which shall not be
later than the earliest to occur of (x) one year from the issuance (or renewal)
date thereof, (y) unless such Letter of Credit is Cash Collateralized, the
stated Termination Date, or (z) if such Letter of Credit is Cash Collateralized,
180 days after the scheduled Termination Date; provided that any such Letter of
Credit can provide for renewals thereof for any period not in excess of the
maximum term set forth immediately above), and whether such Letter of Credit is
to be transferable in whole or in part. Any Letter of Credit outstanding after
the scheduled Termination Date which is Cash Collateralized for the benefit of
the Issuing Lender shall be the sole responsibility of the Issuing Lender. So
long as the Issuing Lender has not received written notice that the conditions
precedent set forth in Section 12 with respect to the issuance of such Letter of
Credit have not been satisfied, the Issuing Lender shall issue such Letter of
Credit on the requested issuance date. The Issuing Lender shall promptly advise
the Administrative Agent of the issuance of each Letter of Credit and of any
amendment thereto, extension thereof or event or circumstance changing the
amount available for drawing thereunder. In the event of any inconsistency
between the terms of the Master Letter of Credit Agreement, any L/C Application
and the terms of this Agreement, the terms of this Agreement shall control.
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2.3.2 Participations in Letters of Credit. Concurrently with the issuance
of each Letter of Credit, the Issuing Lender shall be deemed to have sold and
transferred to each Lender, and each Lender shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender's Pro Rata Share, in such Letter of Credit and the Companies'
reimbursement obligations with respect thereto. If the Companies do not pay any
reimbursement obligation when due, then the Company Representative shall be
deemed to have immediately requested that the Lenders make a Revolving Loan
which is a Base Rate Loan in a principal amount equal to such reimbursement
obligations. The Administrative Agent shall promptly notify such Lenders of such
deemed request and, without the necessity of compliance with the requirements of
Section 2.2.2, 12.2 or otherwise such Lender shall make available to the
Administrative Agent its Pro Rata Share of such Revolving Loan. The proceeds of
such Revolving Loan shall be paid over by the Administrative Agent to the
Issuing Lender for the account of the Companies in satisfaction of such
reimbursement obligations. For the purposes of this Agreement, the
unparticipated portion of each Letter of Credit shall be deemed to be the
Issuing Lender's "participation" therein. The Issuing Lender hereby agrees, upon
request of the Administrative Agent or any Lender, to deliver to the
Administrative Agent or such Lender a list of all outstanding Letters of Credit
issued by the Issuing Lender, together with such information related thereto as
the Administrative Agent or such Lender may reasonably request.
2.3.3 Reimbursement Obligations. (a) The Companies jointly and severally
hereby unconditionally and irrevocably agree to reimburse the Issuing Lender for
each payment or disbursement made by the Issuing Lender under any Letter of
Credit honoring any demand for payment made by the beneficiary thereunder, in
each case on the date that such payment or disbursement is made. Any amount not
reimbursed on the date of such payment or disbursement shall bear interest from
the date of such payment or disbursement to the date that the Issuing Lender is
reimbursed by the Companies therefor, payable on demand, at a rate per annum
equal to the Base Rate from time to time in effect plus the Base Rate Margin
from time to time in effect plus, beginning on the third Business Day after
receipt of notice from the Issuing Lender of such payment or disbursement, 2%.
The Issuing Lender shall notify the Company Representative and the
Administrative Agent whenever any demand for payment is made under any Letter of
Credit by the beneficiary thereunder; provided that the failure of the Issuing
Lender to so notify the Company Representative or the Administrative Agent shall
not affect the rights of the Issuing Lender or the Lenders in any manner
whatsoever.
(b) The Companies' joint and several reimbursement obligations hereunder
shall be irrevocable and unconditional under all circumstances, including (a)
any lack of validity or enforceability of any Letter of Credit, this Agreement
or any other Loan Document, (b) the existence of any claim, set-off, defense or
other right which any Loan Party may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Administrative Agent,
the Issuing Lender, any Lender or any other Person, whether in connection with
any Letter of Credit, this Agreement, any other Loan Document, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between any Loan Party and the beneficiary named in any Letter of
Credit), (c) the validity, sufficiency or genuineness of any document which the
Issuing Lender has determined complies on its face with the terms of the
applicable Letter of Credit, even if such document should later prove to have
been forged, fraudulent,
24
invalid or insufficient in any respect or any statement therein shall have been
untrue or inaccurate in any respect, or (d) the surrender or impairment of any
security for the performance or observance of any of the terms hereof. Without
limiting the foregoing, no action or omission whatsoever by the Administrative
Agent or any Lender (excluding any Lender in its capacity as the Issuing Lender)
under or in connection with any Letter of Credit or any related matters shall
result in any liability of the Administrative Agent or any Lender to the
Companies (or any of them), or relieve the Companies of any of their obligations
hereunder to any such Person.
2.3.4 Funding by Lenders to Issuing Lender. If the Issuing Lender makes
any payment or disbursement under any Letter of Credit and (a) the Companies
have not reimbursed the Issuing Lender in full for such payment or disbursement
by 11:00 A.M., Chicago time, on the date of such payment or disbursement, (b) a
Revolving Loan may not be made in accordance with Section 2.2.2 or (c) any
reimbursement received by the Issuing Lender from the Companies is or must be
returned or rescinded upon or during any bankruptcy or reorganization of any
such Company or otherwise, each other Lender shall be obligated to pay to the
Administrative Agent for the account of the Issuing Lender, in full or partial
payment of the purchase price of its participation in such Letter of Credit, its
Pro Rata Share of such payment or disbursement (but no such payment shall
diminish the joint and several obligations of the Companies under Section
2.3.3), and, upon notice from the Issuing Lender, the Administrative Agent shall
promptly notify each other Lender thereof. Each other Lender irrevocably and
unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the Issuing Lender's account the amount of such other
Lender's Pro Rata Share of such payment or disbursement. If and to the extent
any Lender shall not have made such amount available to the Administrative Agent
by 2:00 P.M., Chicago time, on the Business Day on which such Lender receives
notice from the Administrative Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the next following
Business Day), such Lender agrees to pay interest on such amount to the
Administrative Agent for the Issuing Lender's account forthwith on demand, for
each day from the date such amount was to have been delivered to the
Administrative Agent to the date such amount is paid, at a rate per annum equal
to (a) for the first three (3) Business Days after demand, the Federal Funds
Rate from time to time in effect and (b) thereafter, the Base Rate from time to
time in effect. Any Lender's failure to make available to the Administrative
Agent its Pro Rata Share of any such payment or disbursement shall not relieve
any other Lender of its obligation hereunder to make available to the
Administrative Agent such other Lender's Pro Rata Share of such payment, but no
Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent such other Lender's Pro Rata Share of any
such payment or disbursement. Notwithstanding anything herein to the contrary,
in respect of any payment or disbursement under a Letter of Credit, no Lender
shall be required to fund, pay or remit, whether as a result of a Revolving Loan
pursuant to Section 2.3.2 and/or pursuant to this Section 2.3.4, more than such
Lender's Pro Rata Share of such payment or disbursement.
2.4 Commitments Several. The failure of any Lender to make a
requested Revolving Loan on any date shall not relieve any other Lender of its
obligation (if any) to make a Revolving Loan on such date, but no Lender shall
be responsible for the failure of any other Lender to make any Revolving Loan to
be made by such other Lender.
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2.5 Certain Conditions. Except as otherwise provided in Section
2.3.4, but without limiting Section 12, no Lender shall have an obligation to
make any Revolving Loan, or to permit the continuation of or any conversion into
any LIBOR Loan, and the Issuing Lender shall not have any obligation to issue
any Letter of Credit, if an Event of Default or Unmatured Event of Default
exists.
SECTION 3 EVIDENCING OF REVOLVING LOANS.
3.1 Notes. The Revolving Loans of each Lender shall be evidenced by
a Note, with appropriate insertions, payable to the order of such Lender in a
face principal amount equal to the sum of such Lender's Commitment.
3.2 Recordkeeping. The Administrative Agent, on behalf of each
Lender, shall record in its records, the date and amount of each Revolving Loan
made by each Lender, each repayment or conversion thereof and, in the case of
each LIBOR Loan, the dates on which each Interest Period for such LIBOR Loan
shall begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttably presumptive evidence of the principal amount of the Revolving Loans
owing and unpaid. The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise affect the
Obligations of the Companies hereunder or under any Note to repay the principal
amount of the Revolving Loans hereunder, together with all interest accruing
thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. Each of the Companies hereby jointly and
severally promises to pay interest on the unpaid principal amount of each
Revolving Loan for the period commencing on the date of such Revolving Loan
until such Revolving Loan is paid in full as follows:
(a) at all times while such Revolving Loan is a Base Rate Loan, at a rate
per annum equal to the sum of the Base Rate from time to time in effect, plus
the Base Rate Margin from time to time in effect; and
(b) at all times while such Revolving Loan is a LIBOR Loan, at a rate per
annum equal to the sum of the LIBOR Rate applicable to each Interest Period for
such LIBOR Loan, plus the LIBOR Margin from time to time in effect;
provided that at any time an Event of Default exists, unless the Required
Lenders otherwise consent, the interest rate applicable to each Revolving Loan
shall be increased by 2% (and, in the case of Obligations not bearing interest,
such Obligations shall bear interest at a per annum rate equal to the Base Rate
applicable to the Revolving Loans plus 2%), provided further that such increase
may thereafter be rescinded by the Required Lenders, notwithstanding Section
15.1. Notwithstanding the foregoing, upon the occurrence of an Event of Default
under Section 13.1.1 or 13.1.4, such increase shall occur automatically.
4.2 Interest Payment Dates. Accrued interest on each Base Rate Loan
shall be payable in arrears on the last day of each calendar quarter and at
maturity. Accrued interest on each LIBOR Loan shall be payable on the last day
of each Interest Period relating to such
26
LIBOR Loan (and, in the case of a LIBOR Loan with an Interest Period in excess
of three (3) months, on the three-month anniversary of the first day of such
Interest Period), upon a prepayment of such LIBOR Loan, and at maturity. After
maturity, and at any time an Event of Default exists, accrued interest on all
Revolving Loans shall be payable on demand.
4.3 Setting and Notice of LIBOR Rates. The applicable LIBOR Rate for
each Interest Period shall be determined by the Administrative Agent, and notice
thereof shall be given by the Administrative Agent promptly to the Company
Representative and each Lender. Each determination of the applicable LIBOR Rate
by the Administrative Agent shall be conclusive and binding upon the parties
hereto, in the absence of demonstrable error. The Administrative Agent shall,
upon written request of the Company Representative or any Lender, deliver to the
Company Representative or such Lender a statement showing the computations used
by the Administrative Agent in determining any applicable LIBOR Rate hereunder.
4.4 Computation of Interest. Interest shall be computed for the
actual number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each Base Rate Loan shall change simultaneously with each
change in the Base Rate.
SECTION 5 FEES.
5.1 Non-Use Fee. Each of the Companies hereby jointly and severally
agrees to pay to the Administrative Agent for the account of each Lender a
non-use fee, for the period from the Closing Date to the Termination Date, at
the Non-Use Fee Rate in effect from time to time of such Lender's Pro Rata Share
(as adjusted from time to time) of the unused amount of the Revolving
Commitment. For purposes of calculating usage under this Section, the Revolving
Commitment shall be deemed used to the extent of Revolving Outstandings. Such
non-use fee shall be payable in arrears on the last day of each calendar quarter
and on the Termination Date for any period then ending for which such non-use
fee shall not have previously been paid. The non-use fee shall be computed for
the actual number of days elapsed on the basis of a year of 360 days.
5.2 Letter of Credit Fees. (a) Each of the Companies hereby jointly
and severally agrees to pay to the Administrative Agent for the account of each
Lender a letter of credit fee for each Letter of Credit equal to the L/C Fee
Rate in effect from time to time of such Lender's Pro Rata Share (as adjusted
from time to time) of the undrawn amount of such Letter of Credit (computed for
the actual number of days elapsed on the basis of a year of 360 days); provided
that, unless the Required Lenders otherwise consent, the rate applicable to each
Letter of Credit shall be increased by 2% at any time that an Event of Default
exists. Such letter of credit fee shall be payable in arrears on the last day of
each calendar quarter and on the Termination Date (or such later date on which
such Letter of Credit expires or is terminated) for the period from the date of
the issuance of each Letter of Credit (or the last day on which the letter of
credit fee was paid with respect thereto) to the date such payment is due or, if
earlier, the date on which such Letter of Credit expired or was terminated or
cancelled.
(b) In addition, with respect to each Letter of Credit, each of the
Companies hereby jointly and severally agrees to pay to the Issuing Lender, for
its own account, (i) such fees and expenses as the Issuing Lender customarily
requires in connection with the issuance, negotiation,
27
processing and/or administration of letters of credit in similar situations and
(ii) a letter of credit fronting fee in the amount and at the times agreed to by
the Companies and the Issuing Lender.
5.3 Administrative Agent's Fees. Each of the Companies hereby
jointly and severally agrees to pay to the Administrative Agent such agent's
fees as are mutually agreed to from time to time by the Companies and the
Administrative Agent including the fees set forth in the Agent Fee Letter.
SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.
6.1 Reduction or Termination of the Revolving Commitment.
6.1.1 Voluntary Reduction or Termination of the Revolving Commitment. The
Companies may from time to time on at least five Business Days' prior written
notice received by the Administrative Agent (which shall promptly advise each
Lender thereof) from the Company Representative (a) permanently reduce the
Revolving Commitment to an amount not less than the Revolving Outstandings or
(b) permanently terminate such Revolving Commitment. Any such reduction shall be
in an amount not less than Five Million Dollars ($5,000,000.00) or a higher
integral multiple of One Million Dollars ($1,000,000.00). Concurrently with any
reduction or termination of the Revolving Commitment to zero, the Companies
shall pay the applicable principal amount of and all interest on the Revolving
Loans, all non-use fees and all letter of credit fees and shall Cash
Collateralize in full all obligations arising with respect to any outstanding
Letters of Credit.
6.1.2 All Reductions of the Revolving Commitment. All reductions of the
Revolving Commitment shall reduce the Commitments ratably among the Lenders
according to their respective Pro Rata Shares.
6.2 Prepayments.
6.2.1 Voluntary Prepayments. The Companies may from time to time prepay
the Revolving Loans in whole or in part; provided that the Company
Representative shall give the Administrative Agent (which shall promptly advise
each Lender) notice thereof not later than 11:00 A.M., Chicago time, on the day
of such prepayment (which shall be a Business Day), specifying the Revolving
Loans to be prepaid and the date and amount of prepayment. Any such partial
prepayment shall be in an amount equal to at least One Hundred Thousand Dollars
($100,000.00) or a higher integral multiple of Ten Thousand Dollars
($10,000.00). Principal amounts prepaid pursuant to this Section 6.2.1 may,
subject to the terms and conditions hereof, be reborrowed.
6.2.2 Mandatory Prepayments.
(a) If on any day the Revolving Outstandings exceed the Borrowing Base,
the Companies shall immediately prepay Revolving Loans and/or Cash Collateralize
the outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
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(b) If on any day on which the Revolving Commitment is reduced pursuant to
Section 6.1.1, the Revolving Outstandings exceed the Revolving Commitment, the
Companies shall immediately prepay Revolving Loans or Cash Collateralize the
outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
(c) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ALL
OBLIGATIONS OWING HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS SHALL BE
IMMEDIATELY DUE AND PAYABLE ON THE TERMINATION DATE, WITHOUT ANY REQUIREMENT OF
NOTICE, DEMAND OR PRESENTMENT.
6.3 Manner of Prepayments.
6.3.1 All Prepayments. Any partial prepayment of a Group of LIBOR Loans
shall be subject to the proviso to Section 2.2.3(a). Any prepayment of a LIBOR
Loan on a day other than the last day of an Interest Period therefor shall
include interest on the principal amount being prepaid and shall be subject to
Section 8.4. Except as otherwise provided by this Agreement, all principal
payments in respect of the Revolving Loans shall be applied first, to repay
outstanding Base Rate Loans and then to repay outstanding LIBOR Rate Loans in
direct order of Interest Period maturities.
6.4 Repayments of Revolving Loans. The Revolving Loans of each
Lender shall be due and payable in full and the Revolving Commitment shall
terminate on the Termination Date.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal or interest on the
Notes, and of all fees, shall be made by the Companies to the Administrative
Agent in immediately available funds at the office specified by the
Administrative Agent not later than noon, Chicago time, on the date due; and
funds received after that hour shall be deemed to have been received by the
Administrative Agent on the following Business Day. The Administrative Agent
shall promptly remit to each Lender its share of all such payments received in
collected funds by the Administrative Agent for the account of such Lender. All
payments under Sections 7.6, 8.1 and 8.4 shall be made by the Companies directly
to the Lender entitled thereto without setoff, counterclaim or other defense.
7.2 Application of Certain Payments. So long as no Unmatured Event
of Default or Event of Default has occurred and is continuing, (a) payments
matching specific scheduled payments then due shall be applied to those
scheduled payments and (b) voluntary and mandatory prepayments shall be applied
as set forth in Section 6.3.1. After the occurrence and during the continuance
of an Unmatured Event of Default or Event of Default, all amounts collected or
received by the Administrative Agent or any Lender as proceeds from the sale of,
or other realization upon, all or any part of the Collateral shall be applied as
set forth in the Guaranty and Collateral Agreement. Concurrently with each
remittance to any Lender of its share of any such payment, the Administrative
Agent shall advise such Lender as to the application of such payment.
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7.3 Due Date Extension. If any payment of principal or interest with
respect to any of the Revolving Loans, or of any fees, falls due on a day which
is not a Business Day, then such due date shall be extended to the immediately
following Business Day (unless, in the case of a LIBOR Loan, such immediately
following Business Day is the first Business Day of a calendar month, in which
case such due date shall be the immediately preceding Business Day) and, in the
case of principal, additional interest shall accrue and be payable for the
period of any such extension.
7.4 Setoff. Each Company agrees that the Administrative Agent and
each Lender have all rights of set-off and bankers' lien provided by applicable
law, and in addition thereto, each Company agrees that at any time any Event of
Default exists, the Administrative Agent and each Lender may apply to the
payment of any Obligations of the Companies hereunder, whether or not then due,
any and all balances, credits, deposits, accounts or moneys of the Companies (or
any of them) then or thereafter with the Administrative Agent or any such
Lender.
7.5 Proration of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise, on account of (a) principal of or interest on any Revolving Loan, but
excluding (i) any payment pursuant to Section 8.7 or 15.6 and (ii) payments of
interest on any Affected Loan) or (b) its participation in any Letter of Credit)
in excess of its applicable Pro Rata Share of payments and other recoveries
obtained by all Lenders on account of principal of and interest on the Revolving
Loans (or such participation) then held by them, then such Lender shall purchase
from the other Lenders such participations in the Revolving Loans (or
sub-participations in Letters of Credit) held by them as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery.
7.6 Taxes.
(a) All payments made by the Companies hereunder or under any Loan
Documents shall be made without setoff, counterclaim, or other defense. To the
extent permitted by applicable law, all payments hereunder or under the Loan
Documents (including any payment of principal, interest, or fees) to, or for the
benefit of, any person shall be made by the Companies free and clear of and
without deduction or withholding for, or on account of, any Taxes now or
hereafter imposed by any taxing authority.
(b) If the Companies (or any of them) makes any payment hereunder or under
any Loan Document in respect of which it is required by applicable law to deduct
or withhold any Taxes, the Companies shall increase the payment hereunder or
under any such Loan Document such that after the reduction for the amount of
Taxes withheld (and any taxes withheld or imposed with respect to the additional
payments required under this Section 7.6(b)), the amount paid to the Lenders or
the Administrative Agent equals the amount that was payable hereunder or under
any such Loan Document without regard to this Section 7.6(b). To the extent the
Companies (or any of them) withholds any Taxes on payments hereunder or under
any Loan Document, the Companies shall pay the full amount deducted to the
relevant taxing authority within the time
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allowed for payment under applicable law and shall deliver to the Administrative
Agent within 30 days after they have made payment to such authority a receipt
issued by such authority (or other evidence satisfactory to the Administrative
Agent) evidencing the payment of all amounts so required to be deducted or
withheld from such payment.
(c) If any Lender or the Administrative Agent is required by law to make
any payments of any Taxes on or in relation to any amounts received or
receivable hereunder or under any other Loan Document, or any Tax is assessed
against a Lender or the Administrative Agent with respect to amounts received or
receivable hereunder or under any other Loan Document, the Companies hereby
jointly and severally agree to indemnify such person, on demand, against (i)
such Tax (and any reasonable counsel fees and expenses associated with such Tax)
and (ii) any taxes imposed as a result of the receipt of the payment under this
Section 7.6(c). A certificate prepared in good faith as to the amount of such
payment by such Lender or the Administrative Agent shall, absent manifest error,
be final, conclusive, and binding on all parties.
(d) (i) To the extent permitted by applicable law, each Lender that is not
a United States person within the meaning of Code Section 7701(a)(30) (a
"Non-U.S. Participant") shall deliver to the Company Representative and the
Administrative Agent on or prior to the Closing Date (or in the case of a Lender
that is an Assignee, on the date of such assignment to such Lender) two accurate
and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or
any successor or other applicable form prescribed by the IRS) certifying to such
Lender's entitlement to a complete exemption from, or a reduced rate in, United
States withholding tax on interest payments to be made hereunder on any
Revolving Loan. If a Lender that is a Non-U.S. Participant is claiming a
complete exemption from withholding on interest pursuant to Sections 871(h) or
881(c) of the Code, the Lender shall deliver (along with two accurate and
complete original signed copies of IRS Form W-8BEN) a certificate in form and
substance reasonably acceptable to Administrative Agent (any such certificate, a
"Withholding Certificate"). In addition, each Lender that is a Non-U.S.
Participant agrees that from time to time after the Closing Date, (or in the
case of a Lender that is an Assignee, after the date of the assignment to such
Lender), when a lapse in time (or change in circumstances occurs) renders the
prior certificates hereunder obsolete or inaccurate in any material respect,
such Lender shall, to the extent permitted under applicable law, deliver to the
Company Representative and the Administrative Agent two new and accurate and
complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any
successor or other applicable forms prescribed by the IRS), and if applicable, a
new Withholding Certificate, to confirm or establish the entitlement of such
Lender or the Administrative Agent to an exemption from, or reduction in, United
States withholding tax on interest payments to be made hereunder on any
Revolving Loan.
(ii) Each Lender that is not a Non-U.S. Participant (other than any such
Lender which is taxed as a corporation for U.S. federal income tax purposes)
shall provide two properly completed and duly executed copies of IRS Form W-9
(or any successor or other applicable form) to the Company Representative and
the Administrative Agent certifying that such Lender is exempt from United
States backup withholding tax. To the extent that a form provided pursuant to
this Section 7.6(d)(ii) is rendered obsolete or inaccurate in any material
respects as result of change in circumstances with respect to the status of a
Lender, such Lender shall, to the extent permitted by applicable law, deliver to
the Company Representative and the
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Administrative Agent revised forms necessary to confirm or establish the
entitlement to such Lender's or Administrative Agent's exemption from United
States backup withholding tax.
(iii) The Companies shall not be required to pay additional amounts to a
Lender, or indemnify any Lender, under this Section 7.6 to the extent that such
obligations would not have arisen but for the failure of such Lender to comply
with this Section 7.6(d).
(iv) Each Lender agrees to indemnify the Administrative Agent and hold the
Administrative Agent harmless for the full amount of any and all present or
future Taxes and related liabilities (including penalties, interest, additions
to tax and expenses, and any Taxes imposed by any jurisdiction on amounts
payable to the Administrative Agent under this Section 7.6) which are imposed on
or with respect to principal, interest or fees payable to such Lender hereunder
and which are not paid by the Companies pursuant to this Section 7.6, whether or
not such Taxes or related liabilities were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Administrative
Agent makes written demand therefor.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption of,
or any change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency: (i) shall impose, modify or deem
applicable any reserve (including any reserve imposed by the FRB, but excluding
any reserve to the extent included in the determination of the LIBOR Rate
pursuant to Section 4), special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by any Lender; or
(ii) shall impose on any Lender any other condition affecting its LIBOR Loans,
its Note or its obligation to make LIBOR Loans or the Letters of Credit or any
participations therein; and the result of anything described in clauses (i) and
(ii) above is to increase the cost to (or to impose a cost on) such Lender (or
any LIBOR Office of such Lender) of making or maintaining any LIBOR Loan or
issuing or participating in any Letters of Credit, or to reduce the amount of
any sum received or receivable by such Lender (or its LIBOR Office) under this
Agreement or under its Note with respect thereto, then upon demand by such
Lender (which demand shall be accompanied by a statement setting forth the basis
for such demand and a calculation of the amount thereof in reasonable detail, a
copy of which shall be furnished to the Administrative Agent), the Companies
shall pay, and jointly and severally hereby agree to pay, directly to such
Lender such additional amount as will compensate such Lender for such increased
cost or such reduction, so long as such amounts have accrued on or after the day
which is 180 days prior to the date on which such Lender first made demand
therefor.
(b) If any Lender shall reasonably determine that any change in, or the
adoption or phase-in of, any applicable law, rule or regulation regarding
capital adequacy, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or the compliance by any Lender or
any Person controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or
32
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or such controlling Person's capital as a consequence of such
Lender's obligations hereunder or under any Letter of Credit to a level below
that which such Lender or such controlling Person could have achieved but for
such change, adoption, phase-in or compliance (taking into consideration such
Lender's or such controlling Person's policies with respect to capital adequacy)
by an amount deemed by such Lender or such controlling Person to be material,
then from time to time, upon demand by such Lender (which demand shall be
accompanied by a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail, a copy of which shall be
furnished to the Administrative Agent), the Companies shall pay, and jointly and
severally hereby agree to pay, to such Lender such additional amount as will
compensate such Lender or such controlling Person for such reduction so long as
such amounts have accrued on or after the day which is 180 days prior to the
date on which such Lender first made demand therefor.
8.2 Basis for Determining Interest Rate Inadequate or Unfair.
(a) If the Administrative Agent reasonably determines (which determination
shall be binding and conclusive on the Companies) that by reason of
circumstances affecting the interbank LIBOR market adequate and reasonable means
do not exist for ascertaining the applicable LIBOR Rate; or
(b) the Required Lenders advise the Administrative Agent that the LIBOR
Rate as determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Lenders of maintaining or funding LIBOR Loans for such
Interest Period (taking into account any amount to which such Lenders may be
entitled under Section 8.1) or that the making or funding of LIBOR Loans has
become impracticable as a result of an event occurring after the date of this
Agreement which in the opinion of such Lenders materially affects such LIBOR
Loans;
then the Administrative Agent shall promptly notify the other parties thereof
and, so long as such circumstances shall continue, (i) no Lender shall be under
any obligation to make, continue or convert any Base Rate Loans into LIBOR Loans
and (ii) on the last day of the current Interest Period for each LIBOR Loan,
such LIBOR Loan shall, unless then repaid in full, automatically convert to a
Base Rate Loan.
8.3 Changes in Law Rendering LIBOR Loans Unlawful. If any change in,
or the adoption of any new, law or regulation, or any change in the
interpretation of any applicable law or regulation by any governmental or other
regulatory body charged with the administration thereof, should make it (or in
the good faith judgment of any Lender cause a substantial question as to whether
it is) unlawful for any Lender to make, maintain or fund LIBOR Loans, then such
Lender shall promptly notify each of the other parties hereto and, so long as
such circumstances shall continue, (a) such Lender shall have no obligation to
make, continue or convert any Base Rate Loan into a LIBOR Loan (but shall make
Base Rate Loans concurrently with the making or continuation of or conversion of
Base Rate Loans into LIBOR Loans by the Lenders which are not so affected, in
each case in an amount equal to the amount of LIBOR Loans which would be made,
continued or converted into by such Lender at such time in the absence of such
circumstances) and (b) on the last day of the current Interest Period for each
LIBOR Loan of
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such Lender (or, in any event, on such earlier date as may be required by the
relevant law, regulation or interpretation), such LIBOR Loan shall, unless then
repaid in full, automatically convert to a Base Rate Loan. Each Base Rate Loan
made by a Lender which, but for the circumstances described in the foregoing
sentence, would be a LIBOR Loan (an "Affected Loan") shall remain outstanding
for the period corresponding to the Group of LIBOR Loans of which such Affected
Loan would be a part absent such circumstances.
8.4 Funding Losses. Each of the Companies hereby agrees that upon
demand by any Lender (which demand shall be accompanied by a statement setting
forth the basis for the amount being claimed, a copy of which shall be furnished
to the Administrative Agent), the Companies will jointly and severally indemnify
such Lender against any net loss or expense which such Lender may sustain or
incur (including any net loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund or
maintain any LIBOR Loan), as reasonably determined by such Lender, as a result
of (a) any payment, prepayment or conversion of any LIBOR Loan of such Lender on
a date other than the last day of an Interest Period for such LIBOR Loan
(including any conversion pursuant to Section 8.3) or (b) any failure of the
Companies (or any of them) to borrow, convert or continue any LIBOR Loan on a
date specified therefor in a notice of borrowing, conversion or continuation
pursuant to this Agreement. For this purpose, all notices to the Administrative
Agent pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each Lender may,
if it so elects, fulfill its commitment as to any LIBOR Loan by causing a
foreign branch or Affiliate of such Lender to make such LIBOR Loan; provided
that in such event for the purposes of this Agreement such LIBOR Loan shall be
deemed to have been made by such Lender and the obligation of the Companies to
repay such LIBOR Loan shall nevertheless be to such Lender and shall be deemed
held by it, to the extent of such LIBOR Loan, for the account of such branch or
Affiliate.
8.6 Discretion of Lenders as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain its funding of all or any part of its LIBOR Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if such Lender had
actually funded and maintained each LIBOR Loan during each Interest Period for
such LIBOR Loan through the purchase of deposits having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the LIBOR Rate for
such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Lenders. (a) Each
Lender shall promptly notify the Company Representative and the Administrative
Agent of any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Lender's sole
judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i)
any obligation by the Companies to pay any amount pursuant to Section 7.6 or 8.1
or (ii) the occurrence of any circumstances described in Section 8.3 (and, if
any Lender has given notice of any such event described in clause (i) or (ii)
above and thereafter such event ceases to exist, such Lender shall promptly so
notify the Company Representative and the Administrative Agent). Without
limiting the foregoing, each Lender will designate a different funding office if
such designation will avoid (or reduce the cost to the Companies of)
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any event described in clause (i) or (ii) above and such designation will not,
in such Lender's sole judgment, be otherwise disadvantageous to such Lender.
(b) If the Companies are required by any Lender to pay additional amounts
to such Lender pursuant to Section 8.1, or any Lender gives notice of the
occurrence of any circumstances described in Section 8.3, the Company
Representative may designate another bank which is acceptable to the
Administrative Agent and the Issuing Lender in their reasonable discretion (such
other bank being called a "Replacement Lender") to purchase the Revolving Loans
of such Lender and such Lender's rights hereunder, without recourse to or
warranty by, or expense to, such Lender, for a purchase price equal to the
outstanding principal amount of the Revolving Loans payable to such Lender plus
any accrued but unpaid interest thereon and all accrued but unpaid fees owed to
such Lender and any other amounts payable to such Lender under this Agreement,
and to assume all the obligations of such Lender hereunder, and, upon such
purchase and assumption (pursuant to an Assignment Agreement), such Lender shall
no longer be a party hereto or have any rights hereunder (other than rights with
respect to indemnities and similar rights applicable to such Lender prior to the
date of such purchase and assumption) and shall be relieved from all obligations
to the Companies and the other Loan Parties hereunder and under the other Loan
Documents, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
8.8 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or
8.4 shall be conclusive absent demonstrable error. Lenders may use reasonable
averaging and attribution methods in determining compensation under Sections 8.1
and 8.4, and the provisions of such Sections and of Section 7.6 shall survive
repayment of the Obligations, cancellation of any Notes, expiration, termination
or cancellation of the Letters of Credit and termination of this Agreement.
SECTION 9 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make Revolving Loans and issue and
participate in Letters of Credit hereunder, each of the Loan Parties hereby
jointly and severally represents and warrants to the Administrative Agent and
the Lenders that:
9.1 Organization. Each Loan Party is validly existing and in good
standing under the laws of its jurisdiction of organization; and each Loan Party
is duly qualified to do business in each jurisdiction where, because of the
nature of its activities or properties, such qualification is required, except
for such jurisdictions where the failure to so qualify would not have a Material
Adverse Effect.
9.2 Authorization; No Conflict. Each Loan Party has all requisite
power and authority and is duly authorized to execute and deliver each Loan
Document to which it is a party, each Company has all requisite power and
authority and is duly authorized to borrow monies and obtain other extensions of
credit hereunder and each Loan Party has all requisite power and authority and
is duly authorized to perform its Obligations under each Loan Document to which
it is a party. The execution, delivery and performance by each Loan Party of
each Loan Document to which it is a party, and the borrowings by and other
extensions of credit
35
to the Companies (or any of them) hereunder, do not and will not (a) require any
consent or approval of any governmental agency or authority (other than any
consent or approval which has been obtained and is in full force and effect),
(b) conflict with (i) any provision of applicable law, (ii) the charter, by-laws
or other organizational documents of any Loan Party, (iii) any material
agreement, indenture, instrument or other document, or (iv) any judgment, order
or decree, which is binding upon any Loan Party or any of their respective
properties or (c) require, or result in, the creation or imposition of any Lien
on any asset of any Loan Party (other than Liens in favor of the Administrative
Agent created pursuant to the Collateral Documents).
9.3 Validity and Binding Nature. Each of this Agreement and each
other Loan Document to which any Loan Party is a party is the legal, valid and
binding obligation of such Person, enforceable against such Person in accordance
with its terms, subject to bankruptcy, insolvency and United States similar laws
affecting the enforceability of creditors' rights generally and to general
principles of equity.
9.4 Financial Condition. The audited annual consolidated financial
statements of the Parent Guarantor and its Subsidiaries for Fiscal Years 2002,
2003 and 2004 and the unaudited consolidated financial statements of the Parent
Guarantor and the Subsidiaries as at the Fiscal Quarters ended since January 31,
2004, copies of each of which have been delivered to the Administrative Agent,
were prepared in accordance with GAAP (subject, in the case of such unaudited
statements, to the absence of footnotes and to normal year-end adjustments) and
present fairly in all material respects the consolidated financial condition of
the Parent Guarantor and its Subsidiaries as at such dates and the results of
their operations for the periods then ended.
9.5 No Material Adverse Change. Since the Parent Guarantor's Fiscal
Year ended January 31, 2004, there has been no material adverse change in the
condition (financial or otherwise), operations, assets, businesses, properties
or prospects of the Parent Guarantor, the Companies and the Subsidiaries (taken
as a whole).
9.6 Litigation and Contingent Liabilities. No litigation (including
derivative actions), arbitration proceeding or governmental investigation or
proceeding is pending or, to the Responsible Officers' knowledge, threatened
against any Loan Party which might reasonably be expected to have a Material
Adverse Effect, except as set forth in Schedule 9.6. Other than any liability
incident to such litigation or proceedings, no Loan Party has any material
Contingent Liabilities not listed on Schedule 9.6 or permitted by Section 11.1.
9.7 Ownership of Properties; Liens. Each Loan Party owns good and,
in the case of real property, marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges and claims (including infringement claims with
respect to patents, trademarks, service marks, copyrights and the like) other
than Permitted Liens.
9.8 Equity Ownership; Subsidiaries. All issued and outstanding
Capital Securities of each Loan Party are duly authorized and validly issued,
fully paid, non-assessable, and free and clear of all Liens other than those in
favor of the Administrative Agent for the benefit of the Lenders, and such
securities were issued in compliance in all material respects with
36
all applicable United States federal and state laws concerning the issuance of
securities. Schedule 9.8 sets forth the authorized Capital Securities of each
Loan Party and its Subsidiaries as of the Closing Date. All of the issued and
outstanding Capital Securities of the Parent Guarantor, the Subsidiary
Guarantor, the Companies and the Subsidiaries are owned as set forth on Schedule
9.8 as of the Closing Date, and all of the issued and outstanding Capital
Securities of each Company and each Subsidiary (including each other Loan Party)
is, directly or indirectly, owned by the Parent Guarantor. As of the Closing
Date, except as set forth on Schedule 9.8, there are no pre-emptive or other
outstanding rights, options, warrants, conversion rights or other similar
agreements or understandings for the purchase or acquisition of any Capital
Securities of any Loan Party.
9.9 Pension Plans. (a) The Unfunded Liability of all Pension Plans
does not in the aggregate exceed twenty percent of the Total Plan Liability for
all such Pension Plans. Each Pension Plan complies in all material respects with
all applicable requirements of United States law and regulations. No
contribution failure under Section 412 of the Code, Section 302 of ERISA or the
terms of any Pension Plan has occurred with respect to any Pension Plan,
sufficient to give rise to a Lien under Section 302(f) of ERISA, or otherwise to
have a Material Adverse Effect. There are no pending or, to the knowledge of the
Responsible Officers, threatened, claims, actions, investigations or lawsuits
against any Pension Plan, any fiduciary of any Pension Plan, or the Parent
Guarantor, the Subsidiary Guarantor, any Company or any other member of the
Controlled Group with respect to a Pension Plan or a Multiemployer Pension Plan
which could reasonably be expected to have a Material Adverse Effect. Neither
the Parent Guarantor, the Subsidiary Guarantor, any Company nor any other member
of the Controlled Group has engaged in any prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Pension
Plan or Multiemployer Pension Plan which would subject that Person to any
material liability. Within the past five years, neither the Parent Guarantor,
the Subsidiary Guarantor, any Company nor any other member of the Controlled
Group has engaged in a transaction which resulted in a Pension Plan with an
Unfunded Liability being transferred out of the Controlled Group, which could
reasonably be expected to have a Material Adverse Effect. No Termination Event
has occurred or is reasonably expected to occur with respect to any Pension
Plan, which could reasonably be expected to have a Material Adverse Effect.
(b) All contributions (if any) have been made to any Multiemployer Pension
Plan that are required to be made by the Parent Guarantor, the Subsidiary
Guarantor, any Company or any other member of the Controlled Group under the
terms of the plan or of any collective bargaining agreement or by applicable
law; neither the Parent Guarantor, the Subsidiary Guarantor, any Company nor any
other member of the Controlled Group has withdrawn or partially withdrawn from
any Multiemployer Pension Plan, incurred any withdrawal liability with respect
to any such plan or received notice of any claim or demand for withdrawal
liability or partial withdrawal liability from any such plan, and no condition
has occurred which, if continued, could result in a withdrawal or partial
withdrawal from any such plan; and neither the Parent Guarantor, the Subsidiary
Guarantor, any Company nor any other member of the Controlled Group has received
any notice that any Multiemployer Pension Plan is in reorganization, that
increased contributions may be required to avoid a reduction in plan benefits or
the imposition of any excise tax, that any such plan is or has been funded at a
rate less than that required under Section 412 of the Code, that any such plan
is or may be terminated, or that any such plan is or may become insolvent.
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9.10 Investment Company Act. No Loan Party is an "investment
company" or a company "controlled" by an "investment company" or a "subsidiary"
of an "investment company," within the meaning of the Investment Company Act of
1940.
9.11 Public Utility Holding Company Act. No Loan Party is a "holding
company", or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935.
9.12 Regulation U. No Loan Party is engaged principally, or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock. No Letter of Credit and no proceeds of
any Revolving Loan will be used for any purpose which violates or is
inconsistent with Regulation U.
9.13 Taxes. Each Loan Party has timely filed all federal, state
income and other material tax returns and reports required by law to have been
filed by it and has paid all taxes and governmental charges due and payable with
respect to such returns, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books. The Loan Parties have made adequate reserves on their books and records
in accordance with GAAP for all federal, state income and other material taxes
that have accrued but which are not yet due and payable. No Loan Party has
participated in any transaction that relates to a year of the taxpayer (which is
still open under the applicable statute of limitations) which is a "reportable
transaction" within the meaning of Treasury Regulation Section 1.6011-4(b)(2)
(irrespective of the date when the transaction was entered into).
9.14 Solvency, etc. On the Closing Date, and immediately prior to
and after giving effect to the issuance of each Letter of Credit and each
borrowing hereunder and the use of the proceeds thereof, with respect to each
Loan Party, individually, (a) the fair value of its assets is greater than the
amount of its liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated, (b) the
present fair saleable value of its assets is not less than the amount that will
be required to pay the probable liability on its debts as they become absolute
and matured, (c) it is able to realize upon its assets and pay its debts and
other liabilities (including disputed, contingent and unliquidated liabilities)
as they mature in the normal course of business, (d) it does not intend to, and
does not believe that it will, incur debts or liabilities beyond its ability to
pay as such debts and liabilities mature and (e) it is not engaged in business
or a transaction, and is not about to engage in business or a transaction, for
which its property would constitute unreasonably small capital.
9.15 Environmental Matters. The on-going operations of each Loan
Party comply in all respects with all Environmental Laws, except such
non-compliance which could not (if enforced in accordance with applicable law)
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect. Each Loan Party has obtained, and maintained, and
continues to maintain, in good standing, all licenses, permits, authorizations,
registrations and other approvals required under any Environmental Law and
required for their respective ordinary course operations, and for their
reasonably anticipated future operations, and each Loan Party is in compliance
with all terms and conditions thereof, except where the failure
38
to do so could not reasonably be expected to result in, either individually or
in the aggregate, in a Material Adverse Effect. No Loan Party or any of its
properties or operations is subject to, or reasonably anticipates the issuance
of, any written order from or agreement with any Federal, state or local
governmental authority, nor subject to any judicial or docketed administrative
or other proceeding, respecting any Environmental Law, Environmental Claim or
Hazardous Substance. There are no Hazardous Substances or other conditions or
circumstances existing with respect to any property, arising from operations
prior to the Closing Date, or relating to any waste disposal, of any Loan Party
that would reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. Except as could not reasonably be
expected to have a Material Adverse Effect, no Loan Party owns or operates any
underground storage tanks that are not properly registered or permitted under
applicable Environmental Laws or that at any time have released, leaked,
disposed of or otherwise discharged Hazardous Substances.
9.16 Insurance. Set forth on Schedule 9.16 is a complete and
accurate summary of the property and casualty insurance program of the Loan
Parties as of the Closing Date (including the names of all insurers, policy
numbers, amounts and types of coverage, premiums, self-insured retention, and a
description in reasonable detail of any self-insurance program, retrospective
rating plan, fronting arrangement or other risk assumption arrangement involving
any Loan Party). Each Loan Party and its properties are insured with financially
sound and reputable insurance companies which are not Affiliates of the Loan
Parties, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Loan Parties operate.
9.17 Real Property. Set forth on Schedule 9.17 is a complete and
accurate list, as of the Closing Date, of the address of all real property owned
or leased by any Loan Party, together with, in the case of leased property, the
name and mailing address of the lessor of such property.
9.18 Information. All information heretofore or contemporaneously
herewith furnished in writing by any Loan Party to the Administrative Agent or
any Lender for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all written information hereafter
furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender pursuant hereto or in connection herewith will be, true and accurate in
every material respect on the date as of which such information is dated or
certified, and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not misleading in
light of the circumstances under which made (it being recognized by the
Administrative Agent and the Lenders that any projections and forecasts provided
by the any of the Parent Guarantor, the Subsidiary Guarantor, and/or the
Companies (or any of them) are based on good faith estimates and assumptions
believed by such Person(s) to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the period or periods
covered by any such projections and forecasts may differ from projected or
forecasted results).
9.19 Intellectual Property. Each Loan Party owns and possesses or
has a license or other right to use all material patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service ▇▇▇▇ rights and copyrights as are necessary for
39
the conduct of the businesses of the Loan Parties, without any infringement upon
rights of, or by, others which could reasonably be expected to have a Material
Adverse Effect.
9.20 Burdensome Obligations. No Loan Party is a party to any
agreement or contract or subject to any restriction contained in its
organizational documents which could reasonably be expected to have a Material
Adverse Effect.
9.21 Labor Matters. No Loan Party is subject to any labor or
collective bargaining agreement. There are no existing or, to the Responsible
Officers' knowledge, threatened strikes, lockouts or other labor disputes
involving any Loan Party that singly or in the aggregate could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Loan Parties are not in violation of the Fair Labor Standards
Act or any other applicable law, rule or regulation dealing with such matters.
9.22 No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurrence by any Loan Party of any Debt
hereunder or under any other Loan Document.
9.23 Intentionally omitted.
9.24 CASS Reserve. Each Loan Party has timely paid all accounts
payable due and owing to CASS in accordance with the terms and provisions of the
CASS Agreement, except any such accounts payable which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books and
records.
SECTION 10 AFFIRMATIVE COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all Obligations hereunder and under the other Loan Documents are paid in
full and all Letters of Credit have been terminated or cancelled or have
expired, each of the Loan Parties agrees that, unless at any time the Required
Lenders shall otherwise expressly consent in writing, it will:
10.1 Reports, Certificates and Other Information. Furnish to the
Administrative Agent (which shall promptly furnish copies thereof to each of the
Lenders):
10.1.1 Annual Report. Promptly when available and in any event within 120
days after the close of each Fiscal Year: (a) a copy of the annual audit report
of the Parent Guarantor and its Subsidiaries for such Fiscal Year, including
therein consolidated balance sheets and statements of earnings and cash flows of
the Parent Guarantor and its Subsidiaries as at the end of such Fiscal Year,
certified without adverse reference to going concern value and without
qualification by independent auditors of recognized standing selected by the
Parent Guarantor and reasonably acceptable to the Administrative Agent, together
with (i) a written statement from such accountants to the effect that in making
the examination necessary for the signing of such annual audit report by such
accountants, nothing came to their attention that caused them to believe that
the Parent Guarantor was not in compliance with any provision of Section 11.4 or
11.14 of this Agreement insofar as such provision relates to accounting matters
or, if something has come to their attention that caused them to believe that
the Parent Guarantor was not in compliance with
40
any such provision, describing such non-compliance in reasonable detail and (ii)
a comparison with the budget for such Fiscal Year and a comparison with the
previous Fiscal Year; and (b) a consolidating balance sheet of the Parent
Guarantor and its Subsidiaries as of the end of such Fiscal Year and
consolidating statement of earnings and cash flows for the Parent Guarantor and
its Subsidiaries for such Fiscal Year, certified by a Senior Officer of the
Parent Guarantor.
10.1.2 Interim Reports.
(a) Promptly when available and in any event within 45 days after the end
of each Fiscal Quarter, consolidated and consolidating balance sheets of the
Parent Guarantor and its Subsidiaries as of the end of such Fiscal Quarter,
together with consolidated and consolidating statements of earnings and cash
flows for such Fiscal Quarter and for the period beginning with the first day of
the relevant Fiscal Year and ending on the last day of such Fiscal Quarter,
together with a comparison with the corresponding date or period of the previous
Fiscal Year and a comparison with the budget for such period of the current
Fiscal Year, certified by a Senior Officer of the Parent Guarantor; and
(b) within thirty (30) days after the end of each month, an aged schedule
of the Accounts of the Companies listing the name and amount due from each
Account Debtor and showing the aggregate amounts due from (a) 0-30 days, (b)
31-60 days, (c) 61-90 days and (d) more than 90 days, and certified as accurate
by a Senior Officer of the Parent Guarantor.
10.1.3 Compliance Certificates. Contemporaneously with the furnishing of a
copy of each annual audit report pursuant to Section 10.1.1 and each set of
quarterly statements pursuant to Section 10.1.2, a duly completed compliance
certificate in the form of Exhibit B, with appropriate insertions, dated the
date of such annual report or such quarterly statements and signed by a Senior
Officer of the Parent Guarantor, containing (i) a computation of each of the
financial ratios and restrictions set forth in Section 11.14 and to the effect
that such officer has not become aware of any Event of Default or Unmatured
Event of Default that has occurred and is continuing or, if there is any such
event, describing it and the steps, if any, being taken to cure it and (ii) a
written statement of the Parent Guarantor's management setting forth a
discussion of the Parent Guarantor's and its Subsidiaries' financial condition,
changes in financial condition and results of operations.
10.1.4 Intentionally omitted.
10.1.5 Notice of Default, Litigation and ERISA Matters. Promptly upon
becoming aware of any of the following, written notice describing the same and
the steps being taken by the Loan Party affected thereby with respect thereto:
(a) the occurrence of an Event of Default or an Unmatured Event of
Default;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Companies to the Lenders which
has been instituted or, to the Responsible Officers' knowledge, is
threatened against any Loan Party or to which any of the properties of any
thereof is subject which might reasonably be expected to have a Material
Adverse Effect;
41
(c) the institution of any steps by any member of the Controlled
Group or any other Person to terminate any Pension Plan, or the failure of
any member of the Controlled Group to make a required contribution to any
Pension Plan (if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or the
taking of any action with respect to a Pension Plan which could result in
the requirement that any Loan Party furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any event with respect
to any Pension Plan or Multiemployer Pension Plan which could result in
the incurrence by any member of the Controlled Group of any material
liability, fine or penalty (including any claim or demand for withdrawal
liability or partial withdrawal from any Multiemployer Pension Plan), or
any material increase in the contingent liability of the Companies with
respect to any post-retirement welfare benefit plan or other employee
benefit plan of any Loan Party or another member of the Controlled Group,
or any notice that any Multiemployer Pension Plan is in reorganization,
that increased contributions may be required to avoid a reduction in plan
benefits or the imposition of an excise tax, that any such plan is or has
been funded at a rate less than that required under Section 412 of the
Code, that any such plan is or may be terminated, or that any such plan is
or may become insolvent;
(d) any cancellation or material change in any insurance maintained
by any Loan Party; or
(e) any other event (including (i) any violation of any
Environmental Law or the assertion of any Environmental Claim or (ii) the
enactment or effectiveness of any United States law, rule or regulation)
which might reasonably be expected to have a Material Adverse Effect.
10.1.6 Borrowing Base Certificates. Within 10 Business Days of the end of
each month, a Borrowing Base Certificate dated as of the end of such month and
executed by a Senior Officer of the Company Representative on behalf of the
Companies (provided that (a) the Company Representative may deliver a Borrowing
Base Certificate more frequently if it chooses, (b) at any time that Revolving
Loan Availability is less than $7,500,000.00, Borrowing Base Certificates shall
be provided weekly on Tuesday of each week for the preceding week and (c) at any
time an Event of Default exists, the Administrative Agent may require the
Companies to deliver Borrowing Base Certificates more frequently). Each
Borrowing Base Certificate shall also set forth the then outstanding amount of
the UTi Canada Intercompany Loan.
10.1.7 Management Reports. Promptly upon receipt thereof, copies of all
detailed financial and management reports submitted to any Loan Party by
independent auditors in connection with each annual or interim audit made by
such auditors of the books of the Loan Parties (or any of them).
10.1.8 Projections. As soon as practicable, and in any event not later
than 30 days after the commencement of each Fiscal Year, financial projections
for the Parent Guarantor and its Subsidiaries for such Fiscal Year (including
monthly operating and cash flow budgets) prepared in a manner consistent with
the projections delivered by the Parent Guarantor to the Lenders prior to the
Closing Date or otherwise in a manner reasonably satisfactory to the
Administrative Agent, accompanied by a certificate of a Senior Officer of the
Parent Guarantor on behalf of the
42
Loan Parties to the effect that (a) such projections were prepared by the Parent
Guarantor in good faith, (b) the Parent Guarantor has a reasonable basis for the
assumptions contained in such projections and (c) such projections have been
prepared in accordance with such assumptions.
10.1.9 Other Information. Promptly from time to time, such other
information concerning the Loan Parties as any Lender or the Administrative
Agent may reasonably request.
10.2 Books, Records and Inspections.
(a) Keep, and cause each other Loan Party to keep, its books and records
in accordance with sound business practices sufficient to allow the preparation
of financial statements in accordance with GAAP, and
(b) once each Fiscal Year so long as no Event of Default or Unmatured
Event of Default has occurred and is continuing, at any reasonable time and with
reasonable notice (and at any time without notice after an Event of Default or
an Unmatured Event of Default has occurred and is continuing), permit, and cause
each other Loan Party to permit, any Lender or the Administrative Agent or any
representative thereof to inspect the offices, properties and operations of the
Loan Parties, which inspections may include discussing its financial matters
with its officers and its independent auditors (and the Loan Parties hereby
authorize such independent auditors to discuss such financial matters with any
Lender or the Administrative Agent or any representative thereof), examine any
of its books or other records, inspect the Inventory and other tangible assets
of the Loan Parties, perform appraisals of the equipment of the Loan Parties,
conduct field audits, and inspect, audit, check and make copies of (at the
expense of the Loan Parties) and extracts from the books, records, computer
data, computer programs, journals, orders, receipts, correspondence and other
data relating to Inventory, Accounts and any other Collateral. All such
inspections or audits by the Administrative Agent shall be at the Companies'
expense; provided that so long as no Event of Default or Unmatured Event of
Default exists, the Companies shall not be required to reimburse the
Administrative Agent for inspections or audits more frequently than once each
Fiscal Year.
10.3 Maintenance of Property; Insurance. (a) Keep, and cause each
other Loan Party to keep, all property useful and necessary in the business of
the Loan Parties in good working order and condition, ordinary wear and tear
excepted.
(b) Maintain, and cause each other Loan Party to maintain, with
responsible insurance companies reasonably satisfactory to the Administrative
Agent, such insurance coverage as may be required by any law or governmental
regulation or court decree or order applicable to it and such other insurance,
to such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated; provided, that all such insurance
shall be in amounts as are reasonably satisfactory to the Administrative Agent.
Upon request of the Administrative Agent or any Lender, furnish to the
Administrative Agent or such Lender a certificate setting forth in reasonable
detail the nature and extent of all insurance maintained by the Loan Parties.
Each Company shall cause each issuer of an insurance policy to provide the
Administrative Agent with an endorsement (i) showing the Administrative Agent as
loss payee with respect to each policy of property or casualty insurance and
naming the Administrative Agent and each Lender as an additional insured with
respect to each policy of liability insurance, (ii) providing
43
that 30 days' notice will be given to the Administrative Agent prior to any
cancellation of, material reduction or change in coverage provided by or other
material modification to such policy and (iii) reasonably acceptable in all
other respects to the Administrative Agent. Each Company shall execute and
deliver to the Administrative Agent a collateral assignment, in form and
substance satisfactory to the Administrative Agent, of each business
interruption insurance policy maintained by such Company.
(c) Unless and until an Event of Default has occurred and is continuing,
if the Administrative Agent, as loss payee under the insurance policies of the
Loan Parties, receives any monies as payment for any loss under any insurance
policy covering any Loan Party (other than liability insurance policies), the
Administrative Agent agrees to turn over such monies to such Loan Party;
provided, however, that upon the occurrence and during the continuance of an
Event of Default, the Administrative Agent shall retain any and all such monies
and apply any or all of such monies in payment of the Obligations in accordance
with the provisions of Section 6.5 of the Guaranty and Collateral Agreement.
(d) UNLESS THE COMPANIES PROVIDE THE ADMINISTRATIVE AGENT WITH EVIDENCE OF
THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE ADMINISTRATIVE AGENT MAY
PURCHASE INSURANCE AT THE COMPANIES' EXPENSE TO PROTECT THE ADMINISTRATIVE
AGENT'S AND THE LENDERS' INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT
NEED NOT, PROTECT ANY LOAN PARTY'S INTERESTS. THE COVERAGE THAT THE
ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST ANY
LOAN PARTY IN CONNECTION WITH THE COLLATERAL. THE COMPANIES MAY LATER CANCEL ANY
INSURANCE PURCHASED BY THE ADMINISTRATIVE AGENT, BUT ONLY AFTER PROVIDING THE
ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE COMPANIES HAVE OBTAINED INSURANCE AS
REQUIRED BY THIS AGREEMENT. IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR
THE COLLATERAL, THE COMPANIES WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY BE IMPOSED WITH THE
PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR
EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE
PRINCIPAL AMOUNT OF THE REVOLVING LOANS OWING HEREUNDER. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE THE LOAN PARTIES MAY BE
ABLE TO OBTAIN ON THEIR OWN.
10.4 Compliance with Laws; Payment of Taxes, Liabilities and CASS
Obligations. (a) Comply, and cause each other Loan Party to comply, in all
material respects with all applicable laws, rules, regulations, decrees, orders,
judgments, licenses and permits, except where failure to comply could not
reasonably be expected to have a Material Adverse Effect; (b) without limiting
clause (a) above, ensure, and cause each other Loan Party to ensure, that no
person who owns a controlling interest in or otherwise controls a Loan Party is
or shall be (i) listed on the Specially Designated Nationals and Blocked Person
List maintained by the Office of Foreign Assets Control ("OFAC"), Department of
the Treasury, and/or any other similar lists maintained by OFAC pursuant to any
authorizing statute, Executive Order or
44
regulation or (ii) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation
or any other similar Executive Orders, (c) without limiting clause (a) above,
comply, and cause each other Loan Party to comply, with all applicable Bank
Secrecy Act ("BSA") and anti-money laundering laws and regulations, (d) pay, and
cause each other Loan Party to pay, prior to delinquency, all federal, state and
other material taxes and other governmental charges against it or any
Collateral, as well as claims of any kind which, if unpaid, could become a Lien
on any of its property; provided that the foregoing shall not require any Loan
Party to pay any such tax or charge so long as it shall contest the validity
thereof in good faith by appropriate proceedings and shall set aside on its
books adequate reserves with respect thereto in accordance with GAAP and, in the
case of a claim which could become a Lien on any Collateral, such contest
proceedings shall stay the foreclosure of such Lien or the sale of any portion
of the Collateral to satisfy such claim, and (e) pay, and cause each other Loan
Party to pay, prior to delinquency, all amounts due and owing to CASS pursuant
to the CASS Agreement; provided that the foregoing shall not require any Loan
Party to pay any such amount to CASS so long as it shall contest the validity
thereof in good faith by appropriate proceedings and shall set aside on its
books adequate reserves with respect thereto in accordance with GAAP and, in the
case of a claim which could become a Lien on any Collateral, such contest
proceedings shall stay the foreclosure of such Lien or the sale of any portion
of the Collateral to satisfy such claim.
10.5 Maintenance of Existence, etc. Maintain and preserve, and
(subject to Section 11.5) cause each other Loan Party to maintain and preserve,
(a) its existence and good standing in the jurisdiction of its organization and
(b) its qualification to do business and good standing in each jurisdiction
where the nature of its business makes such qualification necessary (other than
such jurisdictions in which the failure to be qualified or in good standing
could not reasonably be expected to have a Material Adverse Effect).
10.6 Use of Proceeds. Use the proceeds of the Revolving Loans, and
the Letters of Credit, solely for working capital purposes, for the UTi Canada
Intercompany Loan, for Capital Expenditures and for other general business
purposes; and not use or permit any proceeds of any Revolving Loan to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying" any Margin Stock.
10.7 Employee Benefit Plans.
(a) Maintain, and cause each other member of the Controlled Group to
maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.
(b) Make, and cause each other member of the Controlled Group to make, on
a timely basis, all required contributions to any Multiemployer Pension Plan.
(c) Not, and not permit any other member of the Controlled Group to (i)
seek a waiver of the minimum funding standards of ERISA, (ii) terminate or
withdraw from any Pension Plan or Multiemployer Pension Plan or (iii) take any
other action with respect to any Pension Plan that would reasonably be expected
to entitle the PBGC to terminate, impose liability in respect of, or cause a
trustee to be appointed to administer, any Pension Plan, unless the actions or
events
45
described in clauses (i), (ii) and (iii) individually or in the aggregate would
not have a Material Adverse Effect.
10.8 Environmental Matters. If any material release or threatened
material release or other disposal of Hazardous Substances shall occur or shall
have occurred on any real property or any other assets of any Loan Party, each
Loan Party shall, or shall cause the applicable Loan Party to, cause the prompt
containment and removal of such Hazardous Substances and the remediation of such
real property or other assets as necessary to comply with all Environmental Laws
and with any Federal or state judicial or administrative order requiring the
performance at such real property of activities in response to such release or
threatened release and to preserve the value of such real property or other
assets. To the extent that the transportation of Hazardous Substances is
permitted by this Agreement, each Loan Party shall, and shall cause each other
Loan Party to, dispose of such Hazardous Substances, or of any other wastes,
only at licensed disposal facilities operating in compliance with Environmental
Laws.
10.9 Additional Collateral, New Subsidiaries, Immaterial
Subsidiaries.
(a) With respect to any property acquired after the Closing Date by any
Loan Party (other than any property described in paragraph (b) below) as to
which the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, such Loan Party shall (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other Collateral Documents as the Administrative Agent deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a security interest in such property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in such property
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement, the
other Collateral Documents or by law.
(b) With respect to any new Subsidiary created or acquired after the
Closing Date by any Loan Party (which, for the purposes of this paragraph (b),
shall include any existing Subsidiary that ceases to be an Immaterial
Subsidiary), such Loan Party shall promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
such Loan Party, (ii) deliver to the Administrative Agent revised schedules to
the Loan Documents reflecting such Loan Party's ownership interest in such
Subsidiary, (iii) deliver to the Administrative Agent the certificates, if any,
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of such Loan Party, (iv) if
such Loan Party is a Company, deliver a notice to the Administrative Agent of
its election to designate such new Subsidiary as a Borrower, (v) cause such new
Subsidiary (A) to execute and deliver a Joinder to this Agreement and the
Guarantee and Collateral Agreement, in the form of Exhibit G hereto, in its
capacity as a Company or a Wholly-Owned Subsidiary Guarantor, as applicable, (B)
execute and deliver and such other Collateral Documents as the Administrative
Agent may require to in order to grant the Administrative Agent a perfected
first priority security interest in substantially all assets of such Subsidiary,
and (C) to take such actions necessary or advisable to grant to the
Administrative
46
Agent for the benefit of the Lenders a perfected first priority security
interest in the Collateral described in the Collateral Documents with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Collateral Documents
or by law or as may be reasonably requested by the Administrative Agent and (vi)
if requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
10.10 Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates,
documents or agreements, and take all such actions, as the Administrative Agent
may reasonably request or require for the purposes of implementing or
effectuating the provisions of this Agreement and the Collateral Documents, or
of more fully perfecting or renewing the rights of the Administrative Agent with
respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or assets
hereafter acquired by any Loan Party which may be deemed to be part of the
Collateral) pursuant hereto or thereto.
SECTION 11 NEGATIVE COVENANTS
Until the expiration or termination of the Commitments and thereafter
until all Obligations hereunder and under the other Loan Documents are paid in
full and all Letters of Credit have been terminated or cancelled or have
expired, each Loan Party agrees that, unless at any time the Required Lenders
shall otherwise expressly consent in writing, it will:
11.1 Debt. Not, and not permit any other Loan Party to, create,
incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt secured by Liens permitted by Section 11.2(d), and
extensions, renewals and refinancings thereof;
(c) Debt of the Companies to each other or to any Wholly-Owned
Subsidiary Guarantor or Debt of any Wholly-Owned Subsidiary Guarantor to
the Companies or to another Wholly-Owned Subsidiary Guarantor; provided
that such Debt shall be evidenced by a demand note in form and substance
reasonably satisfactory to the Administrative Agent and pledged and
delivered to the Administrative Agent pursuant to the Collateral Documents
as additional collateral security for the Obligations, and the obligations
under such demand note shall be subordinated to the Obligations of the
Companies hereunder in a manner reasonably satisfactory to the
Administrative Agent;
(d) Hedging Obligations under Hedge Agreements (i) with a Lender or
an Affiliate thereof which provide protection against fluctuations in
interest rates and (ii) which are approved by the Administrative Agent
which provide protection against fluctuations in currency exchange rates
or commodity prices and, in each case, are not for speculation;
47
(e) (i) Debt of a Person which becomes a Subsidiary after the
Closing Date pursuant to an Acquisition permitted under Section 11.11(j)
or (ii) Debt of a Person otherwise assumed in connection with an
Acquisition or an asset acquired after the Closing Date; provided, that
any such Debt was not incurred or created in connection with or in
anticipation of the relevant Acquisition;
(f) Debt described on Schedule 11.1 and any extension, renewal or
refinancing thereof so long as the principal amount thereof is not
increased; and
(g) the Debt to be Repaid (so long as such Debt is repaid on the
Closing Date with the proceeds of the initial Revolving Loans hereunder).
11.2 Liens. Not, and not permit any other Loan Party to,
create or permit to exist any Lien on any of its real or personal properties,
assets or rights of whatsoever nature (whether now owned or hereafter acquired),
except:
(a) Liens for taxes or other governmental charges not at the time
delinquent or thereafter payable without penalty or being contested in
good faith by appropriate proceedings and, in each case, for which it
maintains adequate reserves in conformity with GAAP;
(b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, landlords, mechanics and materialmen and
other similar Liens imposed by law and (ii) Liens in the form of deposits
or pledges incurred in connection with worker's compensation, unemployment
compensation and other types of social security (excluding Liens arising
under ERISA) or in connection with surety bonds, bids, performance bonds
and similar obligations) for sums not overdue or being contested in good
faith by appropriate proceedings and not involving any advances or
borrowed money or the deferred purchase price of property or services and,
in each case, for which it maintains adequate reserves in conformity with
GAAP; provided that no landlord Liens shall be permitted with respect to
real property for which the Administrative Agent has received a Collateral
Access Agreement;
(c) Liens described on Schedule 11.2 as of the Closing Date;
(d) (i) Liens arising in connection with Capital Leases (and
attaching only to the property being leased) permitted to be entered into
pursuant to Section 11.14.4, and (ii) Liens that constitute purchase money
security interests on any property securing debt incurred for the purpose
of financing all or any part of the cost of acquiring such property,
provided that any such Lien attaches to such property within 60 days of
the acquisition thereof and attaches solely to the property so acquired;
(e) attachments, appeal bonds, judgments and other similar Liens,
for sums not exceeding $500,000.00 arising in connection with court
proceedings, provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
48
(f) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any
material respect with the ordinary conduct of the business of any Loan
Party;
(g) Liens arising under the Loan Documents;
(h) the replacement, extension or renewal of any Lien permitted by
clause (c) above upon or in the same property subject thereto arising out
of the extension, renewal or replacement of the Debt secured thereby
(without increase in the amount thereof); and
(i) Liens in favor of CASS created pursuant to the CASS Agreement.
11.3 Intentionally omitted.
11.4 Restricted Payments. Not, and not permit any other Loan
Party to, (a) make any distribution to any holders of its Capital Securities,
(b) purchase or redeem any of its Capital Securities, (c) pay any management
fees or similar fees to any of its equityholders or any Affiliate thereof, (d)
make any redemption, prepayment, defeasance, repurchase or any other payment in
respect of any Debt which is subordinate to the Obligations, (e) prepay any Debt
for borrowed money (other than the Obligations and intercompany indebtedness
permitted to be incurred hereunder) or (f) set aside funds for any of the
foregoing, except:
(a) distributions to the Parent Guarantor to pay amounts owed in
respect of federal, state and local income or other similar taxes of the
Parent Guarantor and its Subsidiaries on a consolidated basis, then due
and payable;
(b) any Subsidiary of the Parent Guarantor may pay dividends or make
other distributions in respect of its Capital Securities to the Companies
or to a Wholly-Owned Subsidiary Guarantor;
(c) distributions to the Parent Guarantor for further distribution
to Worldwide in an amount not to exceed, in the aggregate, 50% of the
Consolidated Net Income of the Parent Guarantor and its Subsidiaries, on a
consolidated basis, as set forth on the audited financial statements most
recently delivered pursuant to Section 10.1.1 (for the period commencing
on the Closing Date through, but not including, the date of the delivery
of the audited financial statements for Fiscal Year 2005, Consolidated Net
Income shall be determined from the audited financial statements for
Fiscal Year 2004 delivered to the Administrative Agent on or prior to the
Closing Date); provided, that (i) as of the date of such dividend or
distribution and after giving effect thereto, no Unmatured Event of
Default or Event of Default shall have occurred and be continuing or
result immediately therefrom, (ii) after giving effect to such
distribution, the Companies shall be in Pro Forma Compliance with the
financial covenant set forth in Section 11.14.1 and (iii) no later than
five (5) Business Days prior to such distribution, the Administrative
Agent shall have received and be satisfied with a certificate of the Chief
Financial Officer of the Parent Guarantor setting forth the calculation
required to determine compliance with clause (ii) above and certifying
that the conditions set forth in this Section 11.4(c) have been satisfied;
provided, further, that upon delivery of each audited financial statement
49
pursuant to Section 10.1.1, no future distributions with respect to any
previously delivered audited financial statements shall be permitted; and
(d) any Immaterial Subsidiary may make distributions to any Company
consisting of the proceeds of the wind-up, liquidation or dissolution of
such Immaterial Subsidiary.
11.5 Mergers, Consolidations, Sales. Not, and not permit any
other Loan Party to, (a) be a party to any merger or consolidation, or purchase
or otherwise acquire all or substantially all of the assets or any Capital
Securities of any class of, or any partnership or joint venture interest in, any
other Person, (b) sell, transfer, convey or lease all or any substantial part of
its assets or Capital Securities (including the sale of Capital Securities of
any Subsidiary) except for sales of inventory in the ordinary course of
business, or (c) sell or assign with or without recourse any receivables,
except:
(a) any merger, consolidation or sale of all or substantially all of
the assets of or by (i) any Company with and into or to any other Company,
(ii) any domestic Wholly-Owned Subsidiary Guarantor with and into or to
any Company (so long as such Company is the survivor thereof) or any other
Loan Party (other than the Parent Guarantor),
(b) any merger, consolidation or purchase constituting an Investment
permitted pursuant to Section 11.11(j);
(c) any Acquisition meeting the conditions set forth in Section
11.11(j); and
(d) any Immaterial Subsidiary may wind-up, liquidate or dissolve;
provided that the proceeds therefrom are distributed in accordance with
Section 11.4(d).
11.6 Modification of Organizational Documents. Not permit the
charter, by-laws or other organizational documents of any Loan Party to be
amended or modified in any way which could reasonably be expected to materially
adversely affect the interests of the Lenders.
11.7 Transactions with Affiliates. Not, and not permit any
other Loan Party to, enter into, or cause, suffer or permit to exist, any
transaction, arrangement or contract with any of its other Affiliates (other
than the Loan Parties) which is on terms which are less favorable than are
obtainable from any Person which is not one of its Affiliates, except
transactions, agreements and contracts described on Schedule 11.7.
11.8 Unconditional Purchase Obligations. Not, and not permit
any other Loan Party to, enter into or be a party to any contract for the
purchase of materials, supplies or other property or services if such contract
requires that payment be made by it regardless of whether delivery is ever made
of such materials, supplies or other property or services.
11.9 Inconsistent Agreements. Not, and not permit any other
Loan Party to, enter into any agreement containing any provision which would (a)
be violated or breached by any borrowing by the Companies hereunder or by the
performance by any Loan Party of any of its Obligations hereunder or under any
other Loan Document, (b) prohibit any Loan Party from granting to the
Administrative Agent and the Lenders, a Lien on any of its assets or (c) create
or
50
permit to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make other distributions to
the Companies or any other Subsidiary, or pay any Debt owed to the Companies or
any other Subsidiary, (ii) make loans or advances to any Loan Party or (iii)
transfer any of its assets or properties to any Loan Party, other than (A)
customary restrictions and conditions contained in agreements relating to the
sale of all or a substantial part of the assets of any Subsidiary pending such
sale, provided that such restrictions and conditions apply only to the
Subsidiary to be sold and such sale is permitted hereunder, (B) restrictions or
conditions imposed by any agreement relating to purchase money Debt, Capital
Leases and other secured Debt permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Debt and (C)
customary provisions in leases and other contracts restricting the assignment
thereof.
11.10 Business Activities; Issuance of Equity. Not, and not
permit any other Loan Party to, (a) engage in any line of business other than
the businesses engaged in on the date hereof and businesses reasonably related
thereto or (b) issue any Capital Securities other than any issuance by a
Subsidiary to a Company or another Subsidiary in accordance with Section 11.5.
11.11 Investments. Not, and not permit any other Loan Party
to, make or permit to exist any Investment in any other Person, except the
following:
(a) contributions by any Loan Party to the capital of any other Loan
Party (other than the Parent Guarantor);
(b) Investments constituting Debt permitted by Section 11.1;
(c) Contingent Liabilities constituting Debt permitted by Section
11.1;
(d) Cash Equivalent Investments;
(e) bank deposits in the ordinary course of business, provided that
the aggregate amount of all such deposits which are maintained with any
bank other than a Lender, to the extent permitted in accordance with
Section 10.10, shall not at any time exceed $500,000, in aggregate;
(f) Investments in securities of Account Debtors received pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of such account debtors;
(g) the Investment comprised of the UTi Canada Intercompany Loan;
(h) Investments constituting loans and advances to employees and
officers of the Companies for commission, travel, relocation and employee
benefits-related advances (other than loans for the purchase of Capital
Securities of Worldwide or any of its Subsidiaries) in an amount not to
exceed $500,000 in the aggregate at any time outstanding;
(i) Investments listed on Schedule 11.11 as of the Closing Date; and
51
(j) Investments constituting Acquisitions by any Loan Party or any
Wholly-Owned Subsidiary Guarantors after the satisfaction of the following
conditions:
(1) immediately before and after giving effect to such
Acquisition, no Unmatured Default or Event of Default shall exist or
would result therefrom;
(2) in connection with such Acquisition, (A) the aggregate
consideration in any given Fiscal Year (including any Indebtedness
permitted pursuant to Section 11.1(f)) shall not exceed $10,000,000
(to be calculated in accordance with GAAP and the fair market value
of any non-cash consideration), (B) all cash consideration for such
Acquisition shall be funded with the proceeds of an equity
contribution by Worldwide or any of its Subsidiaries (other than a
Loan Party) to such Loan Party and (C) all non-cash consideration
for such Acquisition shall consist of Capital Securities of
Worldwide or any of its Subsidiaries (other than a Loan Party);
(3) such Acquisition must be in a line of business permitted
by Section 11.10;
(4) in the case of the Acquisition of any Person, the
governing body of such Person has approved such Acquisition;
(5) immediately after giving effect to such Acquisition, the
Parent Guarantor and its Subsidiaries, on a consolidated basis, are
in Pro Forma Compliance with all the financial ratios and
restrictions set forth in Section 11.14;
(6) if such Acquisition is of the Capital Securities of a
Person, or is made through a Wholly-Owned Subsidiary formed in
compliance with Section 11.16, the provisions of Section 10.9 have
been satisfied with respect to all such Persons and its Subsidiaries
or such newly-formed Subsidiaries concurrently with or prior to such
Acquisition; and
(7) not later than five (5) days prior to the consummation of
such Acquisition, the Administrative Agent shall have received and
be satisfied with (i) a certificate of the Chief Financial Officer
of the Parent Guarantor setting forth the calculations required to
determine compliance with clauses (2) and (5) above and certifying
that the conditions set forth in this Section 11.11(j) have been
satisfied and (ii) such other information relating to the
Acquisition as the Administrative Agent may reasonably request;
provided that (x) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; (y) no Investment otherwise permitted by clauses (b) or
(c), shall be permitted to be made if, immediately before or after giving effect
thereto, any Event of Default or Unmatured Event of Default exists.
52
11.12 Restriction of Amendments to Certain Documents. Not
amend or otherwise modify, or waive any rights under, the CASS Agreement.
11.13 Fiscal Year. Not change its Fiscal Year.
11.14 Financial Covenants.
11.14.1 Net Worth. Not permit Net Worth as of the end of any Fiscal
Quarter in any Fiscal Year to be less than the sum of (i) Net Worth as at
January 31, 2004, plus (ii) fifty percent (50%) of Consolidated Net Income for
each Fiscal Year ending after January 31, 2004 but prior to the commencement of
such Fiscal Quarter (provided that such amount in clause (ii) shall be greater
than zero).
11.14.2 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage
Ratio for any Computation Period commencing July 31, 2004 and each Fiscal
Quarter thereafter to be less than 2.00 to 1.00 for such Computation Period.
11.14.3 Total Debt to EBITDA Ratio. Not permit the Total Debt to EBITDA
Ratio as of the last day of any Computation Period to exceed the applicable
ratio set forth below for such Computation Period:
COMPUTATION TOTAL DEBT TO
PERIOD ENDING EBITDA RATIO
------------- ------------
July 31, 2004 3.30 to 1.00
October 31, 2004 3.30 to 1.00
January 31, 2005 and each Fiscal Quarter ending
thereafter 3.00 to 1.00
11.14.4 Capital Expenditures. Not permit the aggregate amount of all
Capital Expenditures made by the Loan Parties in any Fiscal Year to exceed
$6,500,000.
11.15 Cancellation of Debt. Not, and not permit any other Loan
Party to, cancel any claim or debt owing to it, except for reasonable
consideration or in the ordinary course of business, and except for the
cancellation of debts or claims not to exceed, in the aggregate, $100,000.00 in
any Fiscal Year.
11.16 Creation of Subsidiaries. Not, and not permit any other
Loan Party to, create any Subsidiary, except that, so long as no Event of
Default then exists or would result therefrom, such Loan Party may create a
Subsidiary if (a) the provisions of Section 10.9 shall have been satisfied and
(ii) such Subsidiary is a Wholly-Owned Subsidiary of such Loan Party and
organized under the laws of the United States, any state thereof or the District
of Columbia.
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of each Lender to make its Revolving Loans and of the
Issuing Lender to issue Letters of Credit is subject to the following conditions
precedent:
53
12.1 Initial Credit Extension. The obligation of the Lenders to make the
initial Revolving Loans and the obligation of the Issuing Lender to issue its
initial Letter of Credit (whichever first occurs) is, in addition to the
conditions precedent specified in Section 12.2, subject to the conditions
precedent that (a) all Debt to be Repaid has been (or concurrently with the
initial borrowing will be) paid in full, and that all agreements and instruments
governing the Debt to be Repaid and that all Liens securing such Debt to be
Repaid have been (or concurrently with the initial borrowing will be) terminated
and (b) the Administrative Agent shall have received all of the following, each
duly executed and dated the Closing Date (or such earlier date as shall be
satisfactory to the Administrative Agent), in form and substance satisfactory to
the Administrative Agent (and the date on which all such conditions precedent
have been satisfied or waived in writing by the Administrative Agent and the
Lenders is called the "Closing Date"):
12.1.1 Notes. A Note for each Lender.
12.1.2 Authorization Documents. For each Loan Party, such Person's (a)
charter (or similar formation document), certified by the appropriate
governmental authority; (b) good standing certificates in its state of
incorporation (or formation) and in each other state requested by the
Administrative Agent; (c) bylaws (or similar governing document); (d)
resolutions of its board of directors (or similar governing body) approving and
authorizing such Person's execution, delivery and performance of the Loan
Documents to which it is party and the transactions contemplated thereby; and
(e) signature and incumbency certificates of its officers executing any of the
Loan Documents (it being understood that the Administrative Agent and each
Lender may conclusively rely on each such certificate until formally advised by
a like certificate of any changes therein), all certified by its secretary or an
assistant secretary (or similar officer) as being in full force and effect
without modification.
12.1.3 Consents, etc. Certified copies of all documents evidencing any
necessary corporate or partnership action, consents and governmental approvals
(if any) required for the execution, delivery and performance by the Loan
Parties of the documents referred to in this Section 12.
12.1.4 Letter of Direction. A letter of direction containing funds flow
information with respect to the proceeds of the Revolving Loans on the Closing
Date.
12.1.5 Collateral Documents. A counterpart of (i) the Guaranty and
Collateral Agreement, (ii) the Copyright Security Agreement and (iii) the Patent
and Trademark Security Agreement, in each case, executed by each Loan Party,
together with all instruments, transfer powers and other items required to be
delivered in connection therewith.
12.1.6 Perfection Certificate. A Perfection Certificate completed and
executed by each Loan Party.
12.1.7 Collateral Access Agreements. With respect to the leased property
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, a Collateral Access Agreement
executed by the landlord of such leased property or the imposition of a Rent
Reserve (which reserve shall be released upon receipt of a Collateral Access
Agreement with respect to such leased property).
54
12.1.8 Opinions of Counsel. Opinions of counsel for each Loan Party,
including local counsel reasonably requested by the Administrative Agent.
12.1.9 Insurance. Evidence of the existence of insurance required to be
maintained pursuant to Section 10.3(b), together with evidence that the
Administrative Agent has been named as a lender's loss payee and an additional
insured on all related insurance policies.
12.1.10 Payment of Fees. Evidence of payment by the Companies of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date (including, without limitation, pursuant to the Agent Fee
Letter), together with all Attorney Costs of the Administrative Agent to the
extent invoiced prior to the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute the Administrative Agent's reasonable
estimate of Attorney Costs incurred or to be incurred by the Administrative
Agent through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Companies and the
Administrative Agent).
12.1.11 Pro Forma. A consolidated pro forma balance sheet of the Parent
Guarantor and its Subsidiaries as at the Closing Date, adjusted to give effect
to the consummation of the financings contemplated hereby as if such
transactions had occurred on such date, consistent in all material respects with
the sources and uses of cash as previously described to the Lenders and the
forecasts previously provided to the Lenders.
12.1.12 Search Results; Lien Terminations. Certified copies of Uniform
Commercial Code search reports dated a date reasonably near to the Closing Date,
listing all effective financing statements which name any Loan Party (under
their present names and any previous names) as debtor, together with (a) copies
of such financing statements, (b) payoff letters evidencing repayment in full of
all Debt to be Repaid, the termination of all agreements relating thereto and
the release of all Liens granted in connection therewith, with Uniform
Commercial Code or other appropriate termination statements and documents
effective to evidence the foregoing (other than Permitted Liens) and (c) such
other Uniform Commercial Code termination statements as the Administrative Agent
may reasonably request.
12.1.13 Filings, Registrations and Recordings. The Administrative Agent
shall have received each document (including Uniform Commercial Code financing
statements) required by the Collateral Documents or under applicable law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior to any other Liens (subject only to Permitted Liens), in proper form for
filing, registration or recording.
12.1.14 Borrowing Base Certificate. A Borrowing Base Certificate dated as
of the end of the month prior to the Closing Date indicating that, after giving
effect to the consummation of the financings contemplated hereby on such date,
Revolving Loan Availability is at least $10,000,000.00.
55
12.1.15 Closing Certificate, Consents and Permits. A certificate executed
by an officer of the Company Representative on behalf of the Companies
certifying as to the matters set forth in Section 12.2.1 as of the Closing Date
12.1.16 Audited Consolidated Financial Statements. (i) Audited
consolidated financial statements (balance sheets, statements of income and cash
flow and unqualified opinions of such companies' national certified public
accounting firm) for the Parent Guarantor and its direct and indirect
Subsidiaries for each of the Fiscal Years ended January 31, 2002, 2003 and 2004,
in each case, prepared in accordance with GAAP consistently applied and (ii)
unaudited consolidated quarterly financial statements (as set forth above, save
the opinion of the certified public accounting firm) for the Parent Guarantor
and its direct and indirect Subsidiaries for each Fiscal Quarter ended after
January 31, 2004, in each case, prepared in accordance with GAAP consistently
applied.
12.1.17 Independent Collateral Field Examination Documents. A collateral
field examination shall have been conducted by an independent third party
appraiser acceptable to the Administrative Agent, and written results of the
collateral field examination shall have been delivered to the Administrative
Agent. To the extent any appraisals of any of the assets of the Obligors are
made by an independent third party appraiser pursuant to this Agreement, such
appraisals shall provide that they may be relied upon by the Administrative
Agent and the Lenders.
12.1.18 Syndication. The Administrative Agent has completed the
syndication of at least Twenty Million Dollars ($20,000,000.00) of the Revolving
Commitment to other Lenders reasonably satisfactory to the Administrative Agent
and Company Representative, and on terms and conditions satisfactory to the
Administrative Agent.
12.1.19 Other. Such other documents as the Administrative Agent or any
Lender may reasonably request.
12.2 Conditions. The obligation (a) of each Lender to make
each Revolving Loan and (b) of the Issuing Lender to issue each Letter of Credit
is subject to the following further conditions precedent that:
12.2.1 Compliance with Warranties, No Default, etc. Both before and after
giving effect to any borrowing and the issuance of any Letter of Credit, the
following statements shall be true and correct:
(a) the representations and warranties of each Loan Party set forth
in this Agreement 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
(b) no Event of Default or Unmatured Event of Default shall have
then occurred and be continuing.
56
12.2.2 Confirmatory Certificate. If requested by the Administrative Agent
or any Lender, the Administrative Agent shall have received (in sufficient
counterparts to provide one to each Lender) a certificate dated the date of such
requested Revolving Loan or Letter of Credit and signed by a Senior Officer of
the Company Representative, on behalf of itself and each of its Subsidiaries, as
to the matters set out in Section 12.2.1 (it being understood that each request
by the Company Representative for the making of a Revolving Loan or the issuance
of a Letter of Credit shall be deemed to constitute a representation and
warranty by the Companies that the conditions precedent set forth in Section
12.2.1 will be satisfied at the time of the making of such Revolving Loan or the
issuance of such Letter of Credit), together with such other documents as the
Administrative Agent or any Lender may reasonably request in support thereof.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall constitute
an Event of Default:
13.1.1 Non-Payment of the Revolving Loans, etc. Default in the payment
when due of the principal of any Revolving Loan; or default, and continuance
thereof for five days, in the payment when due of any interest, fee,
reimbursement obligation with respect to any Letter of Credit or other amount
payable by the Companies hereunder or under any other Loan Document.
13.1.2 Non-Payment of Other Debt. Any default shall occur under the terms
applicable to any Debt of any Loan Party in an aggregate amount (for all such
Debt so affected and including undrawn committed or available amounts and
amounts owing to all creditors under any combined or syndicated credit
arrangement) exceeding $250,000.00 and such default shall (a) consist of the
failure to pay such Debt when due, whether by acceleration or otherwise, or (b)
accelerate the maturity of such Debt or permit the holder or holders thereof, or
any trustee or agent for such holder or holders, to cause such Debt to become
due and payable (or require any Loan Party to purchase or redeem such Debt or
post cash collateral in respect thereof) prior to its expressed maturity;
provided, that any default of any such Debt shall not constitute an Event of
Default if (i) Worldwide, on the date of the occurrence of such default has
provided the Administrative Agent with an irrevocable written notice of its
commitment to make a capital contribution in the Parent Guarantor who, in turn,
shall make a capital contribution in the Companies, in an amount which would
have prevented such default had the proceeds to be received from Worldwide been
received prior to the date of any such default and (ii) such contribution is
received by the applicable Loan Party within five Business Days after the
occurrence of such default.
13.1.3 Other Material Obligations. Default in the payment when due, or in
the performance or observance of, any material obligation of, or condition
agreed to by, any Loan Party with respect to any material purchase or lease of
goods or services where such default, singly or in the aggregate with all other
such defaults, might reasonably be expected to have a Material Adverse Effect.
13.1.4 Bankruptcy, Insolvency, etc. Any Loan Party becomes insolvent or
generally fails to pay, or admits in writing its inability or refusal to pay,
debts as they become due; or any Loan Party applies for, consents to, or
acquiesces in the appointment of a trustee, receiver or
57
other custodian for such Person or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such application,
consent or acquiescence, a trustee, receiver or other custodian is appointed for
any Loan Party or for a substantial part of any of its property and is not
discharged within 60 days; or any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is commenced in respect of any Loan
Party, and if such case or proceeding is not commenced by such Loan Party, it is
consented to or acquiesced in by such Person, or remains for 60 days
undismissed; or any Loan Party takes any action to authorize, or in furtherance
of, any of the foregoing.
13.1.5 Non-Compliance with Loan Documents. (a) Failure by any Loan Party
to comply with or to perform any covenant set forth in Section 10.1.5, 10.3(b)
or 10.5 or Section 11; or (b) failure by any Loan Party to comply with or to
perform any other provision of this Agreement or any other Loan Document (and
not constituting an Event of Default under any other provision of this Section
13) and continuance of such failure described in this clause (b) for 30 days;
provided, that any breach of Section 11.14 shall not constitute an Event of
Default if (i) Worldwide, on the date of the occurrence of such breach has
provided the Administrative Agent with an irrevocable written notice of its
commitment to make a capital contribution in the Parent Guarantor who, in turn,
shall make a capital contribution in the Companies, in an amount which would
have prevented such breach had the proceeds to be received from Worldwide been
received prior to the date of any such breach and been included in the
calculation of the financial covenants which are the subject of such breach and
(ii) such contribution is received by the applicable Loan Party within five
Business Days after the occurrence of such breach.
13.1.6 Representations; Warranties. Any representation or warranty made by
any Loan Party herein or in any other Loan Document or deemed made by any Loan
Party under Section 12.2.2 is breached or is false or misleading in any material
respect, or any schedule, certificate, financial statement, report, notice or
other writing furnished by any Loan Party to the Administrative Agent or any
Lender in connection herewith is false or misleading in any material respect on
the date as of which the facts therein set forth are stated or certified.
13.1.7 Pension Plans. (a) Any Person institutes steps to terminate a
Pension Plan if as a result of such termination the Companies or any member of
the Controlled Group could be required to make a contribution to such Pension
Plan, or could incur a liability or obligation to such Pension Plan, in excess
of $500,000; (b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; (c) the
Unfunded Liability exceeds twenty percent of the Total Plan Liability, or (d)
there shall occur any withdrawal or partial withdrawal from a Multiemployer
Pension Plan and the withdrawal liability (without unaccrued interest) to
Multiemployer Pension Plans as a result of such withdrawal (including any
outstanding withdrawal liability that the Companies or any member of the
Controlled Group have incurred on the date of such withdrawal) exceeds $500,000.
13.1.8 Judgments. Final judgments which exceed an aggregate of $250,000.00
shall be rendered against any Loan Party and shall not have been paid,
discharged or vacated or had execution thereof stayed pending appeal within 30
days after entry or filing of such judgments.
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13.1.9 Invalidity of Collateral Documents, etc. Any Collateral Document or
the UTi Canada Intercompany Note shall cease to be in full force and effect,
including, without limitation, failing or ceasing to create a continuing first
priority perfected security interest in the Collateral, subject only to
Permitted Liens; or any Loan Party (or any Person by, through or on behalf of
any Loan Party) shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document; or UTi Canada shall contest in any
manner the validity, binding nature or enforceability of the UTi Canada
Intercompany Note.
13.1.10 Invalidity of Subordination Provisions, etc. Any subordination
provision in any document or instrument governing any Debt of any Loan Party
intended to be expressly subordinated to the Obligations, if any, or any
subordination provision in any guaranty by any Subsidiary of any such Debt,
shall cease to be in full force and effect, or any Loan Party or any other
Person (including the holder of any such applicable subordinated Debt) shall
contest in any manner the validity, binding nature or enforceability of any such
provision.
13.1.11 Change of Control. A Change of Control shall occur.
13.1.12 Material Adverse Effect. The occurrence of any event having a
Material Adverse Effect.
13.2 Effect of Event of Default. If any Event of Default
described in Section 13.1.4 shall occur in respect of any of the Loan Parties,
the Commitments shall immediately terminate and the Revolving Loans and all
other Obligations hereunder shall become immediately due and payable and the
Companies shall become immediately obligated to Cash Collateralize all Letters
of Credit, all without presentment, demand, protest or notice of any kind; and,
if any other Event of Default shall occur and be continuing, the Administrative
Agent may (and, upon the written request of the Required Lenders shall) declare
the Commitments to be terminated in whole or in part and/or declare all or any
part of the Revolving Loans and all other Obligations hereunder to be due and
payable and/or demand that the Companies immediately Cash Collateralize all or
any Letters of Credit, whereupon the Commitments shall immediately terminate (or
be reduced, as applicable) and/or the Revolving Loans and other Obligations
hereunder shall become immediately due and payable (in whole or in part, as
applicable) and/or the Companies shall immediately become obligated to Cash
Collateralize the Letters of Credit (all or any, as applicable), all without
presentment, demand, protest or notice of any kind. The Administrative Agent
shall promptly advise the Companies of any such declaration, but failure to do
so shall not impair the effect of such declaration. Any cash collateral
delivered hereunder shall be held by the Administrative Agent (without liability
for interest thereon) and applied to the Obligations arising in connection with
any drawing under a Letter of Credit. After the expiration or termination or
cancellation of all Letters of Credit, such cash collateral shall be applied by
the Administrative Agent to any remaining Obligations hereunder and any excess
shall be delivered to the Companies or as a court of competent jurisdiction may
elect.
SECTION 14 THE ADMINISTRATIVE AGENT.
14.1 Appointment and Authorization. Each Lender hereby
irrevocably (subject to Section 14.10) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and
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to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Administrative Agent shall not have any duty or responsibility
except those expressly set forth herein, nor shall the Administrative Agent have
or be deemed to have any fiduciary relationship with any Lender or participant,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
other Loan Documents with reference to the Administrative Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
14.2 Issuing Lender. The Issuing Lender shall act on behalf of
the Lenders (according to their Pro Rata Shares) with respect to any Letters of
Credit issued by it and the documents associated therewith. The Issuing Lender
shall have all of the benefits and immunities (a) provided to the Administrative
Agent in this Section 14 with respect to any acts taken or omissions suffered by
the Issuing Lender in connection with Letters of Credit issued by it or proposed
to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Administrative
Agent", as used in this Section 14, included the Issuing Lender with respect to
such acts or omissions and (b) as additionally provided in this Agreement with
respect to the Issuing Lender.
14.3 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
14.4 Exculpation of Administrative Agent. None of the
Administrative Agent nor any of its directors, officers, employees or agents
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except to the extent resulting from its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein as determined by a final, nonappealable judgment by a court of
competent jurisdiction), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or Affiliate of the Companies, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document (or the creation,
perfection or priority of any Lien or security interest therein), or for any
failure of the Loan Party or any other party to any Loan Document to perform its
Obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements
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contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of any Loan Party or any of the Loan
Parties' Subsidiaries or Affiliates.
14.5 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, consent,
certificate, electronic mail message, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Loan Parties), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate (or such greater
percentage or number of the Lenders as shall be required hereunder) and, if it
so requests, confirmation from the Lenders of their obligation to indemnify the
Administrative Agent against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action (other
than any such liability or expense resulting from the Administrative Agent's
gross negligence or willful misconduct). The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders (or such greater percentage or number of the Lenders as
shall be required hereunder) and such request and any action taken or failure to
act pursuant thereto shall be binding upon each Lender. For purposes of
determining compliance with the conditions specified in Section 12, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received written notice from
such Lender prior to the proposed Closing Date specifying its objection thereto.
14.6 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company Representative referring to this
Agreement, describing such Event of Default or Unmatured Event of Default and
stating that such notice is a "notice of default". The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Event of Default or Unmatured Event
of Default as may be requested by the Required Lenders in accordance with
Section 13; provided that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
14.7 Credit Decision. Each Lender acknowledges that the
Administrative Agent has not made any representation or warranty to it, and that
no act by the Administrative Agent hereafter taken, including any consent and
acceptance of any assignment or review of the
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affairs of the Loan Parties, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender as to any matter, including
whether the Administrative Agent has disclosed material information in its
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties, and made its own decision to enter into this Agreement and to extend
credit to the Companies hereunder. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial or other
condition or creditworthiness of the Loan Parties which may come into the
possession of the Administrative Agent.
14.8 Indemnification. Whether or not the transactions
contemplated hereby are consummated, each Lender shall indemnify upon demand the
Administrative Agent and its directors, officers, employees and agents (to the
extent not reimbursed by or on behalf of the Companies and without limiting the
obligation of the Companies to do so), according to its applicable Pro Rata
Share, from and against any and all Indemnified Liabilities (as hereinafter
defined); provided that no Lender shall be liable for any payment to any such
Person of any portion of the Indemnified Liabilities to the extent determined by
a final, nonappealable judgment by a court of competent jurisdiction to have
resulted from the applicable Person's own gross negligence or willful
misconduct. No action taken in accordance with the directions of the Required
Lenders (or such greater percentage or number of the Lenders as shall be
required hereunder) shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs and
Taxes) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Companies and the same does not result from the gross
negligence or willful misconduct of the Administrative Agent. The undertaking in
this Section shall survive repayment of the Revolving Loans, cancellation of the
Notes, expiration or termination or cancellation of the Letters of Credit, any
foreclosure under, or modification, release or discharge of, any or all of the
Collateral Documents, termination of this Agreement and the resignation or
replacement of the Administrative Agent.
14.9 Administrative Agent in Individual Capacity. LaSalle and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity
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interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Loan Parties and their
Affiliates as though LaSalle were not the Administrative Agent hereunder and
without notice to or, except as required hereby, consent of any Lender. Each
Lender acknowledges that, pursuant to such activities, LaSalle or its Affiliates
may receive information regarding the Loan Parties or their Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Loan Parties or such Affiliate) and acknowledges that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to their Revolving Loans (if any), LaSalle and its Affiliates
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though LaSalle were not the Administrative Agent,
and the terms "Lender" and "Lenders" include LaSalle and its Affiliates, to the
extent applicable, in their individual capacities.
14.10 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall,
with (so long as no Event of Default exists) the consent of the Company
Representative (which shall not be unreasonably withheld or delayed), appoint
from among the Lenders a successor agent for the Lenders. If no successor agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company Representative, a successor agent from among
the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 14 and Sections 15.5 and
15.17 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
14.11 Collateral Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, (a) to release any
Lien granted to or held by the Administrative Agent under any Collateral
Document (i) upon termination of the Commitments and payment in full of all
Revolving Loans and all other obligations of the Loan Parties hereunder and the
expiration or termination of all Letters of Credit; (ii) constituting property
sold or to be sold or disposed of as part of or in connection with any
disposition permitted hereunder; or (iii) subject to Section 15.1, if approved,
authorized or ratified in writing by the Required Lenders; or (b) to subordinate
its interest in any Collateral to any holder of a Lien on such Collateral which
is permitted by Section 11.2(d) (it being understood that the Administrative
Agent may conclusively rely on a certificate from the Company Representative in
determining whether the Debt secured by any such Lien is permitted by Section
11.1(b)). Upon request by the Administrative Agent at any time, the Lenders will
confirm in writing the Administrative Agent's authority to release, or
subordinate its interest in, particular types or
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items of Collateral pursuant to this Section 14.11. Each Lender hereby
authorizes the Administrative Agent to give any blockage notices (or similar
notices) in connection with any Debt of any Loan Party which is expressly
subordinated to the Obligations.
14.12 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Revolving Loan shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Companies) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Revolving Loans, and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 5, 15.5 and 15.17) allowed in such
judicial proceedings; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 5, 15.5 and 15.17.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
14.13 Other Agents; Arrangers and Managers. None of the Lenders
or other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "documentation agent," "co-agent," "book
manager," "lead manager," "arranger," "lead arranger" or "co-arranger", if any,
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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SECTION 15 GENERAL.
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 any 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 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 Revolving Loans or in connection with any Letters of Credit or
any fees payable hereunder, or (except as expressly provided herein) result in
the expiration date of any Letter of Credit being after the Termination Date,
without the written consent of each Lender directly affected thereby, (c) reduce
the principal amount of any Revolving Loan, the rate of interest thereon or on
any other Obligation or any fees payable hereunder, without the consent of each
Lender directly affected thereby; or (d) release any party from its obligations
under the Guaranty and Collateral Agreement or all or any substantial part of
the Collateral granted under the Collateral Documents (unless otherwise
permitted herein or in any other Loan Document), change the definition of
Required Lenders, any provision of this Section 15.1 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.
15.2 Confirmations. Each Company and each holder of a Note agree
from time to time, upon written request received by it from the other, to
confirm to the other in writing (with a copy of each such confirmation to the
Administrative Agent) the aggregate unpaid principal amount of the Revolving
Loans then outstanding under such Note.
15.3 Notices. Except as otherwise provided in Sections 2.2.2 and
2.2.3, all notices hereunder shall be in writing (including facsimile
transmission) and shall be sent to the applicable party at its address shown on
Annex B or at such other address as such party may, by written notice received
by the other parties, have designated as its address for such purpose. Notices
sent by facsimile transmission shall be deemed to have been given when sent;
notices sent by mail shall be deemed to have been given three Business Days
after the date when sent by registered or certified mail, postage prepaid; and
notices sent by hand delivery or overnight courier service shall be deemed to
have been given when received. For purposes of Sections 2.2.2 and 2.2.3, the
Administrative Agent shall be entitled to rely on telephonic instructions from
any person that the Administrative Agent in good faith believes is an authorized
officer or
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employee of the Company Representative, and the Loan Parties shall hold the
Administrative Agent and each Lender harmless from any loss, cost or expense
resulting from any such reliance.
15.4 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP, consistently applied; provided that if the Company
Representative notifies the Administrative Agent that the Parent Guarantor
wishes to amend any covenant in Section 11 (or any related definition) to
eliminate or to take into account the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Company
Representative that the Required Lenders wish to amend Section 11 (or any
related definition) for such purpose), then the Loan Parties' compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant (or related definition) is amended in a manner
satisfactory to the Parent Guarantor, the Subsidiary Guarantor, the Companies
and the Required Lenders.
15.5 Costs, Expenses and Taxes. The Companies agree to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including Attorney Costs and any Taxes) in connection with the
preparation, execution, syndication, delivery and administration (including
perfection and protection of any Collateral and the costs of Intralinks (or
other similar service), if applicable) of this Agreement, the other Loan
Documents and all other documents provided for herein or delivered or to be
delivered hereunder or in connection herewith (including any amendment,
supplement or waiver to any Loan Document), whether or not the transactions
contemplated hereby or thereby shall be consummated, and all reasonable
out-of-pocket costs and expenses (including Attorney Costs and any Taxes)
incurred by the Administrative Agent and each Lender after an Event of Default
in connection with the collection of the Obligations or the enforcement of this
Agreement the other Loan Documents or any such other documents or during any
workout, restructuring or negotiations in respect thereof. In addition, the
Companies agree to pay, and to save the Administrative Agent and the Lenders
harmless from all liability for, any fees of the Parent Guarantor's auditors in
connection with any reasonable exercise by the Administrative Agent and the
Lenders of their rights pursuant to Section 10.2 (subject to the limitations set
forth therein). All Obligations provided for in this Section 15.5 shall survive
repayment of the Revolving Loans, cancellation of the Notes, expiration or
termination or cancellation of the Letters of Credit and termination of this
Agreement.
15.6 Assignments; Participations.
15.6.1 Assignments. (a) Any Lender may at any time assign to one or more
Persons (any such Person, an "Assignee") all or any portion of such Lender's
Revolving Loans and Commitment, with the prior written consent of the
Administrative Agent, the Issuing Lender and, so long as no Event of Default
exists, the Company Representative (which consents shall not be unreasonably
withheld or delayed and shall not be required for an assignment by a Lender to a
Lender or an Affiliate of a Lender). Except as the Administrative Agent may
otherwise agree, any such assignment shall be in a minimum aggregate amount
equal to $5,000,000.00 or, if less,
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the remaining Commitment and Revolving Loans held by the assigning Lender. The
Companies and the Administrative Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned to an Assignee until the Administrative Agent shall have received and
accepted an effective assignment agreement in substantially the form of Exhibit
D hereto (an "Assignment Agreement") executed, delivered and fully completed by
the applicable parties thereto and a processing fee of $3,500.00. No assignment
may be made to any Person if at the time of such assignment the Companies would
be obligated to pay any greater amount under Section 7.6 or 8 to the Assignee
than the Companies are then obligated to pay to the assigning Lender under such
Sections (and if any assignment is made in violation of the foregoing, the
Companies will not be required to pay such greater amounts). Any attempted
assignment not made in accordance with this Section 15.6.1 shall be treated as
the sale of a participation under Section 15.6.2. The Company Representative
shall be deemed to have granted its consent to any assignment requiring its
consent hereunder unless the Company Representative has expressly objected to
such assignment within three Business Days after notice thereof.
(b) From and after the date on which the conditions described above have
been met, (i) such Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (ii) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, shall be released from its rights (other
than its indemnification rights) and obligations hereunder. Upon the request of
the Assignee (and, as applicable, the assigning Lender) pursuant to an effective
Assignment Agreement, the Companies shall execute and deliver to the
Administrative Agent for delivery to the Assignee (and, as applicable, the
assigning Lender) a Note or Notes in the respective principal amounts of the
Assignee's and, if applicable, the assigning Lender's respective Pro Rata Shares
of the Revolving Commitment. Each such Note shall be dated the effective date of
such assignment. Upon receipt by the assigning Lender of such Note(s), the
assigning Lender shall return to the Company Representative any prior Note held
by it.
(c) Any Lender may at any time pledge or assign, or grant a security
interest in, all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge, assignment or grant to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment or grant of a security interest; provided that no such
pledge, assignment or grant of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee, assignee or
grantee for such Lender as a party hereto.
15.6.2 Participations. Any Lender may at any time sell to one or more
Persons participating interests in its Revolving Loans, Commitment or other
interests hereunder (any such Person, a "Participant"). In the event of a sale
by a Lender of a participating interest to a Participant, (a) such Lender's
obligations hereunder shall remain unchanged for all purposes, (b) the Companies
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations hereunder
and (c) all amounts payable by the Companies shall be determined as if such
Lender had not sold such participation and shall be paid directly to such
Lender. No Participant shall have any direct or indirect voting
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rights hereunder except with respect to any event described in Section 15.1
expressly requiring the unanimous vote of all Lenders or, as applicable, all
affected Lenders. Each Lender agrees to incorporate the requirements of the
preceding sentence into each participation agreement which such Lender enters
into with any Participant. The Companies agree that if amounts outstanding under
this Agreement are due and payable (as a result of acceleration or otherwise),
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement and with respect to
any Letter of Credit to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement; provided
that such right of set-off shall be subject to the obligation of each
Participant to share with the Lenders, and the Lenders agree to share with each
Participant, as provided in Section 7.5. The Companies also agree that each
Participant shall be entitled to the benefits of Section 7.6 or 8 as if it were
a Lender (provided that on the date of the participation no Participant shall be
entitled to any greater compensation pursuant to Section 7.6 or 8 than would
have been paid to the participating Lender on such date if no participation had
been sold and that each Participant complies with Section 7.6(d) as if it were
an Assignee).
15.7 Register. The Administrative Agent shall maintain a copy of
each Assignment Agreement delivered and accepted by it and register (the
"Register") for the recordation of names and addresses of the Lenders and the
Commitment of each Lender from time to time and whether such Lender is the
original Lender or the Assignee. No assignment shall be effective unless and
until the Assignment Agreement is accepted and registered in the Register. All
records of transfer of a Lender's interest in the Register shall be conclusive,
absent manifest error, as to the ownership of the interests in the Revolving
Loans. The Administrative Agent shall not incur any liability of any kind with
respect to any Lender with respect to the maintenance of the Register. The
Register shall be available for inspections by the Company Representative and
each Lender during normal business hours upon reasonable prior written notice to
the Administrative Agent.
15.8 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
15.9 Confidentiality. The Administrative Agent and each Lender
agree to use commercially reasonable efforts (equivalent to the efforts the
Administrative Agent or such Lender applies to maintain the confidentiality of
its own confidential information) to maintain as confidential all information
provided to them by any Loan Party and designated as confidential, except that
the Administrative Agent and each Lender may disclose such information (a) to
Persons employed or engaged by the Administrative Agent or such Lender in
evaluating, approving, structuring or administering the Revolving Loans and the
Commitments; (b) to any assignee or participant or potential assignee or
participant that has agreed to comply with the covenant contained in this
Section 15.9 (and any such assignee or participant or potential assignee or
participant may disclose such information to Persons employed or engaged by them
as described in clause (a) above); (c) as required or requested by any federal
or state regulatory authority or examiner, or any insurance industry
association, or as reasonably believed by the Administrative Agent or such
Lender to be compelled by any court decree, subpoena or legal or
68
administrative order or process; provided, that, unless legally prohibited from
doing so, the Administrative Agent or the applicable Lender shall provide the
Loan Parties with advance notice of such disclosure pursuant to any such court
decree, subpoena or legal or administrative order or process and discuss such
disclosure with the Loan Parties prior thereto; (d) as, on the advice of the
Administrative Agent's or such Lender's counsel, is required by law; provided,
that the Administrative Agent or the applicable Lender shall provide the Loan
Parties with advance notice of such disclosure and discuss such disclosure with
the Loan Parties prior thereto; (e) in connection with the exercise of any right
or remedy under the Loan Documents or in connection with any litigation to which
the Administrative Agent or such Lender is a party; (f) to any nationally
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender; (g) to any Affiliate of the Administrative Agent, the Issuing Lender or
any other Lender who may provide Bank Products to the Loan Parties; or (h) that
ceases to be confidential through no fault of the Administrative Agent or any
Lender; provided, however, that the Companies consent to the publication by the
Administrative Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement,
and the Administrative Agent reserves the right to provide to industry trade
organizations information necessary and customary for inclusion in league table
measurements.
15.10 Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
15.11 Nature of Remedies. All Obligations of the Companies and
rights of the Administrative Agent and the Lenders expressed herein or in any
other Loan Document shall be in addition to and not in limitation of those
provided by applicable law. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or any Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
15.12 Entire Agreement. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof (except as relates to the fees described in Section
5.3) and any prior arrangements made with respect to the payment by the
Companies of (or any indemnification for) any fees, costs or expenses payable to
or incurred (or to be incurred) by or on behalf of the Administrative Agent or
the Lenders.
15.13 Counterparts. This Agreement 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 agreement. Receipt
of an executed signature page to this Agreement by facsimile or other electronic
transmission shall constitute effective delivery thereof. Electronic records of
executed Loan Documents maintained by the Lenders shall be deemed to be
originals.
69
15.14 Successors and Assigns. This Agreement shall be binding
upon the Parent Guarantor, the Subsidiary Guarantor, the Companies, the Lenders
and the Administrative Agent and their respective successors and assigns, and
shall inure to the benefit of the Parent Guarantor, the Subsidiary Guarantor,
the Companies, the Lenders and the Administrative Agent and the successors and
assigns of the Lenders and the Administrative Agent. No other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents. None of the Parent Guarantor, the Subsidiary Guarantor or the
Companies may assign or transfer any of its rights or Obligations under this
Agreement or any other Loan Document without the prior written consent of the
Administrative Agent and each Lender (and any attempted assignment or transfer
without such consent shall be null and void).
15.15 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
15.16 Patriot Act Notification. As required by federal law and
LaSalle's policies and practices, LaSalle may need to collect certain customer
identification information and documentation in connection with opening or
maintaining accounts, or establishing or continuing to provide services.
15.17 INDEMNIFICATION BY THE LOAN PARTIES. IN CONSIDERATION OF
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE ADMINISTRATIVE AGENT AND THE
LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE LOAN
PARTIES JOINTLY AND SEVERALLY HEREBY AGREE TO INDEMNIFY, EXONERATE AND HOLD FREE
AND HARMLESS THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE OFFICERS,
DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT AND EACH
LENDER (EACH A "LENDER PARTY") FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF
ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES AND EXPENSES, INCLUDING ATTORNEY
COSTS (COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), INCURRED BY THE LENDER
PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO (A) THE
USE, HANDLING, RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT
OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY ANY
LOAN PARTY, (B) ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO
CONDITIONS AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS
CONDUCTED THEREON, (C) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE
LOCATIONS AT WHICH ANY LOAN PARTY OR ITS RESPECTIVE PREDECESSORS ARE ALLEGED TO
HAVE DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (D) THE
EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE
70
JUDGMENT BY A COURT OF COMPETENT JURISDICTION. IF AND TO THE EXTENT THAT THE
FOREGOING UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, EACH LOAN PARTY
HEREBY AGREES TO MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION
OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE
LAW. ALL OBLIGATIONS PROVIDED FOR IN THIS SECTION 15.17 SHALL SURVIVE REPAYMENT
OF THE REVOLVING LOANS, CANCELLATION OF THE NOTES, EXPIRATION OR TERMINATION OF
THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR
DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS
AGREEMENT.
15.18 JOINT AND SEVERAL LIABILITY.
(a) Notwithstanding anything to the contrary contained herein, all
Obligations of each Company shall be joint and several obligations of the
Companies.
(b) Notwithstanding any provisions of this Agreement to the contrary, it
is intended that the joint and several nature of the Obligations and the liens
and security interests granted by the Companies to secure the Obligations, not
constitute a Fraudulent Conveyance (as defined below). Consequently, the
Administrative Agent, the Lenders, the Companies, the Subsidiary Guarantor and
the Parent Guarantor agree that if the Obligations of a Company, or any Liens or
security interests granted by such Company securing the Obligations would, but
for the application of this sentence, constitute a Fraudulent Conveyance, the
Obligations of such Company and the Liens and security interests securing such
Obligations shall be valid and enforceable only to the maximum extent that would
not cause such Obligations or such Lien or security interest to constitute a
Fraudulent Conveyance, and the Obligations of such Company and this Agreement
shall automatically be deemed to have been amended accordingly. For purposes
hereof, "FRAUDULENT CONVEYANCE" means a fraudulent conveyance under Section 548
of Chapter 11 of Title II of the United States Code (11 U.S.C. Section 101, et
seq.), as amended (the "Bankruptcy Code") or a fraudulent conveyance or
fraudulent transfer under the applicable provisions of any fraudulent conveyance
or fraudulent transfer law or similar law of any state, nation or other
governmental unit, as in effect from time to time.
(c) Each Company, the Subsidiary Guarantor and the Parent Guarantor
assumes responsibility for keeping itself informed of the financial condition of
the other Loan Parties, and any and all endorsers and/or guarantors of any
instrument or document evidencing all or any part of such other Loan Parties'
Obligations and of all other circumstances bearing upon the risk of nonpayment
by such other Loan Parties of their Obligations and each Company, the Subsidiary
Guarantor and the Parent Guarantor agree that the neither the Administrative
Agent nor any Lender shall have any duty to advise such Person of information
known to the Administrative Agent or such Lender regarding such condition or any
such circumstances or to undertake any investigation not a part of its regular
business routine. If the Administrative Agent or such Lender, in its sole
discretion, undertakes at any time or from time to time to provide any such
information to a Company, the Subsidiary Guarantor or the Parent Guarantor, the
Administrative Agent or such Lender shall not be under any obligation to update
any such information or to
71
provide any such information to such Company, the Subsidiary Guarantor or the
Parent Guarantor on any subsequent occasion.
(d) The Administrative Agent and the Lenders are hereby authorized,
without notice or demand and without affecting the liability of any Company, the
Subsidiary Guarantor or the Parent Guarantor hereunder or any other Loan Party
under any of the other Loan Documents, to, at any time and from time to time,
(i) renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to any other Loan Parties' Obligations or otherwise modify,
amend or change the terms of any promissory note, Note or other agreement,
document or instrument now or hereafter executed by any Loan Party and delivered
to the Administrative Agent; (ii) accept partial payments on any Loan Parties'
Obligations; (iii) take and hold security or collateral for the payment of any
Loan Parties' Obligations or for the payment of any guaranties of any Loan
Parties' Obligations or other liabilities of any such Loan Party and exchange,
enforce, waive and release any such security or collateral; (iv) apply such
security or collateral and direct the order or manner of sale thereof as the
Administrative Agent, in its sole discretion, may determine; and (v) settle,
release, compromise, collect or otherwise liquidate any Loan Party's Obligations
and any security or collateral therefor in any manner, without affecting or
impairing the obligations of the other Loan Parties. Subject to the provisions
hereof and of the other Loan Documents, the Administrative Agent shall have the
exclusive right to determine the time and manner of application of any payments
or credits, whether received from any Loan Party or any other source, and such
determination shall be binding on the Loan Parties. All such payments and
credits may be applied, reversed and reapplied, in whole or in part, to any Loan
Party's Obligations as the Administrative Agent shall determine in its sole
discretion, subject to the provisions of this Agreement, without affecting the
validity or enforceability of the Obligations of the other Loan Parties.
(e) Each Company hereby agrees that, except as hereinafter provided, its
obligations hereunder shall be unconditional, irrespective of (i) the absence of
any attempt to collect any of the Obligations from any Loan Party or any
guarantor or other action to enforce the same; (ii) the waiver or consent by the
Administrative Agent or any Lender with respect to any provision of any
instrument evidencing the Obligations, or any part thereof, or any other
agreement heretofore, now or hereafter executed by a Company and/or any other
Loan Party and delivered to the Administrative Agent or any Lender; (iii)
failure by the Administrative Agent to take any steps to perfect and maintain
its security interest in, or to preserve its rights to, any security or
collateral for the Obligations; (iv) the institution of any proceeding under the
Bankruptcy Code, or any similar proceeding, by or against any Company or any
other Loan Party or the Administrative Agent's or any Lender's election in any
such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code;
(v) any borrowing or grant of a security interest by any Company or any other
Loan Party as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the Administrative Agent's or any Lender's claim(s) for repayment of
any of the Obligations; or (vii) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(f) No payment made by or for the account of a Company including, without
limitations, (i) a payment made by such Company on behalf of another Company's
Obligations or (ii) a payment made by any other person under any guaranty, shall
entitle such Company, by
72
contribution, subrogation, indemnity or otherwise, to any payment from such
other Company or Loan Party or from or out of such other Company's or Loan
Party's property and such Company shall not exercise any right or remedy against
such other Company or Loan Party or any property of such other Company or Loan
Party by reason of any performance of such Company of its joint and several
obligations hereunder, unless and until the date following the Termination Date
upon which all Obligations have been fully and indefeasibly paid in full in
cash.
15.19 Nonliability of Lenders. The relationship between the
Companies on the one hand and the Lenders and the Administrative Agent on the
other hand shall be solely that of borrower and lender. Neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to any Loan Party arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between the Loan Parties, on the
one hand, and the Administrative Agent and the Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor. Neither
the Administrative Agent nor any Lender undertakes any responsibility to any
Loan Party to review or inform any Loan Party of any matter in connection with
any phase of any Loan Party's business or operations. Each of the Parent
Guarantor, the Subsidiary Guarantor and each Company agrees, on behalf of itself
and each other Loan Party, that neither the Administrative Agent nor any Lender
shall have liability to any Loan Party (whether sounding in tort, contract or
otherwise) for losses suffered by any Loan Party in connection with, arising out
of, or in any way related to the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment
by a court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is sought. NO
LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF
ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR
INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL
ANY LENDER PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH COMPANY, THE
SUBSIDIARY GUARANTOR AND THE PARENT GUARANTOR, ON BEHALF OF ITSELF AND EACH
OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ FOR ANY SPECIAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR
THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Loan Party
acknowledges that it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it is a
party. No joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Loan Parties and the Lenders
15.20 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS
73
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ADMINISTRATIVE AGENT OR ANY
LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION. EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH LOAN PARTY HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
15.21 WAIVER OF JURY TRIAL. EACH OF THE LOAN PARTIES, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[signature pages follow]
74
The parties hereto have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the date first set forth
above.
UTi , UNITED STATES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
STANDARD CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
UTi, (U.S.) HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
UTi BROKERAGE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
UTi, SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent, as Issuing Lender
and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: First Vice President
BANK OF AMERICA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
ANNEX A
LENDERS AND PRO RATA SHARES
Revolving
Lender Commitment Amount Pro Rata Share
------ ----------------- --------------
LaSalle Bank National Association $30,000,000 60%
Bank of America $10,000,000 20%
The Bank of New York $10,000,000 20%
TOTALS $50,000,000 100%
Annex A
ANNEX B
ADDRESSES FOR NOTICES
ALL LOAN PARTIES
c/o UTi, (U.S.) HOLDINGS, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c/o UTi, UNITED STATES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Janosfsky & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Annex B
LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent, Issuing Lender and a
Lender
Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All Other Notices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, a Lender
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK, a Lender
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Annex B
EXHIBIT E
FORM OF NOTICE OF BORROWING
To: LaSalle Bank National Association, as Administrative Agent
Please refer to the Credit Agreement among UTi, UNITED STATES, INC., a New
York corporation, STANDARD CORPORATION, a South Carolina corporation, UTi
BROKERAGE, INC., a California corporation, UTi, (U.S.) HOLDINGS, INC., a
Delaware corporation, UTi, SERVICES, INC., a California corporation, the
financial institutions that are or may from time to time become parties thereto
(together with their respective successors and assigns, the "Lenders") and
LASALLE BANK NATIONAL ASSOCIATION, as administrative agent for the Lenders (the
"Administrative Agent"), dated as of August 5, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms 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 applicable Company is ___________________________________
(iv) The type of Revolving Loans comprising the proposed borrowing are
[Base Rate] [LIBOR] Loans.
(v) 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).
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 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 undersigned hereby further represents and warrants that all of the
conditions contained in Section 12.2 of the Credit Agreement have been satisfied
on and as of the date hereof, and will continue to be satisfied on and as of the
date of the borrowing requested hereby, before and after giving effect thereto.
Exhibit E
The Company Representative has caused this Notice of Borrowing to be
executed and delivered by its officer thereunto duly authorized on ___________,
______.
UTi, UNITED STATES, INC., as Company
Representative
By:_____________________________________
Title:__________________________________
Exhibit E
EXHIBIT F
FORM OF NOTICE OF CONVERSION/CONTINUATION
To: LaSalle Bank National Association, as Administrative Agent
Please refer to the Credit Agreement among UTi, UNITED STATES, INC., a New
York corporation, STANDARD CORPORATION, a South Carolina corporation, UTi
BROKERAGE INC., a California corporation, UTi, (U.S.) HOLDINGS, INC., a Delaware
corporation, UTi, SERVICES, INC., a California corporation, the financial
institutions that are or may from time to time become parties thereto (together
with their respective successors and assigns, the "Lenders") and LASALLE BANK
NATIONAL ASSOCIATION, as administrative agent for the Lenders (the
"Administrative Agent"), dated as of August 5, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms not otherwise defined herein are used herein as defined in the Credit
Agreement).
The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.3
of the Credit Agreement, of its request to:
(a) on [ date ] convert $[________]of the aggregate outstanding
principal amount of the [_______] Loan, bearing interest at the [________] Rate,
into a(n) [________] Loan [and, in the case of a LIBOR Loan, having an Interest
Period of [_____] month(s)];
[(b) on [ date ] continue $[________]of the aggregate outstanding
principal amount of the [_______] Loan, bearing interest at the LIBOR Rate, as a
LIBOR Loan having an Interest Period of [_____] month(s)].
The undersigned hereby certifies that on the date hereof and on the date
of the conversion/continuation requested hereby: (i) there exists and there
shall exist no Unmatured Event of Default or Event of Default; 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 Representative has caused this Notice of
Conversion/Continuation to be executed and delivered by its officer thereunto
duly authorized on ___________, ______.
UTi, UNITED STATES, INC., as Company
Representative
By:_____________________________________
Title:__________________________________
Exhibit F