THIRD AMENDMENT AND CONSENT AGREEMENT TO LOAN AND SECURITY AGREEMENT
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This Third Amendment and Consent Agreement to Loan and Security
Agreement ("Consent") is made this 23rd day of December, 2003 by and among
LASALLE BUSINESS CREDIT, LLC, a Delaware limited liability company, successor by
merger to LaSalle Business Credit, Inc., a Delaware corporation, ("Lender"),
0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, XX 00000, and STONEPATH GROUP,
INC., a Delaware corporation ("Stonepath"), CONTRACT AIR, INC., a Minnesota
corporation ("Contract Air"), DISTRIBUTION SERVICES, INC., a Minnesota
corporation ("Distribution Services"), GLOBAL CONTAINER LINE, INC., a Washington
corporation ("Global Container"), M.G.R., INC., d/b/a AIR PLUS LIMITED, a
Minnesota corporation ("Air Plus"), NET VALUE, INC., a Delaware corporation
("Net Value"), STONEPATH LOGISTICS DOMESTIC SERVICES, INC., a Delaware
corporation ("Logistics"), STONEPATH LOGISTICS GOVERNMENT SERVICES, INC., f/k/a
Transport Specialists, Inc., a Virginia corporation ("Government Services"),
STONEPATH LOGISTICS INTERNATIONAL SERVICES, INC., a Delaware corporation
("International Services I"), STONEPATH LOGISTICS INTERNATIONAL SERVICES, INC.,
f/k/a Global Transportation Services, Inc., a Washington corporation
("International Services II"), STONEPATH OPERATIONS INC., a Delaware corporation
("Operations"), and UNITED AMERICAN ACQUISITIONS AND MANAGEMENT, INC. d/b/a
UNITED AMERICAN FREIGHT SERVICES, INC., a Michigan corporation ("United
American", and together with Stonepath, Contract Air, Distribution Services,
Global Container, Air Plus, Net Value, Logistics, Government Services,
International Services I, International Services II, and Operations,
collectively the "Loan Parties" and individually each a "Loan Party").
BACKGROUND
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A. Loan Parties and Lender are parties to a certain Loan and Security
Agreement dated as of May 15, 2002 (as it may otherwise heretofore have been and
may hereafter be modified and amended from time to time, the "Loan Agreement")
pursuant to which Loan Parties established certain financing arrangements with
Lender, including a Revolving Loan facility and a Letter of Credit subfacility.
The Loan Agreement and the Other Agreements (as defined in the Loan Agreement)
are referred to herein collectively as the "Existing Credit Documents". All
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Loan Agreement.
B. In August 2003, Lender gave its consent to certain asset acquisition
transactions by certain Foreign Subsidiaries of Loan Parties, which transactions
otherwise would have bee prohibited pursuant to the terms of Section 13(d) of
the Loan Agreement. Loan Parties and Lender wish to further memorialize this
consent in writing as set forth in this Consent.
C. Loan Parties have advised Lender that certain Foreign Subsidiaries
of Loan Parties wish to enter into certain additional stock acquisition and/or
asset acquisition transactions which are currently prohibited pursuant to the
terms of Section 13(d) of the Loan Agreement, and Lender has agreed to consent
to such foreign stock acquisition and/or asset acquisition transactions subject
to and on the terms and conditions set forth in this Consent
D. Loan Parties and Lender further wish to amend the language of
Section 14(b) of the Loan Agreement to more accurately reflect the intention of
the parties on the terms and conditions set forth in this consent.
NOW, THEREFORE, with the foregoing Background incorporated by reference
and made a part hereof and intending to be legally bound, the parties agree as
follows:
1. Consents to Foreign Acquisitions.
(a). Loan Parties acknowledge and agree that the terms of
Section 13(d) of the Loan Agreement prohibit any Subsidiary of any Loan Party
that is not itself also a Loan Party from purchasing any of the stock or equity
interests or all or a material portion of the assets of any Person or any
division of such Person.
(b). Notwithstanding the prohibitions of Section 13(d) of the
Loan Agreement, but without establishing any "course of conduct" or "course of
dealing" binding upon Lender in the future or waiving or in any way limiting its
rights to decline to permit any such transactions by Foreign Subsidiaries in the
future, the Loan Parties and Lender hereby further memorialize the prior consent
previously given by Lender to the following acquisition transactions by certain
Foreign Subsidiaries of Loan Parties, which transactions have previously been
consummated: (i) the purchase by G Link Express Logistics (Singapore) Pte. Ltd.
of substantially all of the assets of G Link Express Pte. Ltd. and (ii) the
purchase by Stonepath Holdings (Xxxx Kong) Limited of substantially all of the
assets of G Link Express (Cambodia) Pte. Ltd. (collectively, the "August 2003 G
Link Acquisitions").
(c). Notwithstanding the prohibitions of Section 13(d) of the
Loan Agreement, but without establishing any "course of conduct" or "course of
dealing" binding upon Lender in the future or waiving or in any way limiting its
rights to decline to permit any such transactions by Foreign Subsidiaries in the
future, Lender hereby gives its consent to and agrees to permit the following
acquisition transactions by certain Foreign Subsidiaries of Loan Parties: (a)
Stonepath Holdings (Hong Kong) Limited, a Hong Kong company, may purchase (i)
substantially all of the assets of GLE Shipping (Johur Bahru) Sdn. Bhd., a
Malaysian company, (ii) substantially all of the assets of GLE Shipping (Penang)
Sdn. Bhd., a Malaysian company, and (iii) substantially all of the assets of GLE
Transport Services Sdn. Bhd., a Malaysian company, (b) Planet Logistics Express
(Singapore) Pte. Lt., a Singapore company, may purchase substantially all of the
assets of Planet Logistics Pte. Ltd., a Singapore company, (c) Stonepath
Holdings (Hong Kong) Limited, a Hong Kong company, may purchase 70% of the
capital stock of Group Logistics Pte. Ltd., a Singapore company and may in the
future exercise the option granted to it in connection with such purchase to
purchase the remaining 30% of Group Logistics Pte. Ltd. , and (d) Stonepath
Logistics (Hong Kong) Limited may purchase substantially all of the assets of
East Ocean Logistics Limited (collectively, the "December 2003 Malaysian and
Singapore Foreign Acquisitions" and, collectively together with the August 2003
G Link Acquisitions, the "2003 Foreign Acquisitions), provided that, in each
such case with respect to such December 2003 Malaysian and Singapore Foreign
Acquisitions, such stock/asset acquisition shall be made upon the terms and
conditions of the respective draft Stock Purchase Agreement or Asset Purchase
Agreement (as applicable) and the respective letter(s) of intent (if any)
provided by Loan Parties to Lender prior to the date of this Consent, without
substantial alterations to such terms and conditions.
(d). Loan Parties acknowledge and agree that, although the
2003 Foreign Acquisitions do not/did not constitute "Permitted Acquisitions"
under the definition of that term as set forth in the Loan Agreement because
such transactions are not/were not acquisitions made by a Loan Party, (x) any
aggregate cash consideration paid in relation to such 2003 Foreign Acquisitions
(exclusive of all earn-out payments made in connection therewith) shall be
treated as though such cash consideration constituted cash consideration paid in
connection with Permitted Acquisitions and (y) all earn-out payments paid in
relation to such 2003 Foreign Acquisitions shall be treated as though such
earn-out payments constituted Foreign Earn-Out Payments paid in connection with
Permitted Acquisitions, in each such case for all purposes under the Existing
Credit Documents. Furthermore, Loan Parties acknowledge and agree that if Loan
Parties elect to designate/did designate any Reserved Outside Source Funds as
the source of any funds to be used/used to make any cash consideration payments
in connection with the 2003 Foreign Acquisitions, then the Reserved Outside
Source Funds shall be deemed to have been permanently reduced by the amount of
all funds so used in connection with such 2003 Foreign Acquisitions and such
funds shall no longer be available to fund Permitted Acquisitions.
(e). Loan Parties hereby agree and acknowledge that,
notwithstanding the otherwise applicable provisions of Section 13(d) of the Loan
Agreement, none of the Loan Parties or any of their Subsidiaries, direct or
indirect, shall make any acquisition transactions, including without limitation
any purchase of any of the stock or equity interests of or all or a material
portion of the assets of any Person or any division of such Person, and whether
or not such acquisition transaction would otherwise fall within the definition
of a "Permitted Acquisition", prior to May 14, 2004 without the prior written
consent of Lender. After May 14, 2004, Borrower may again make "Permitted
Acquisitions" as permitted under and in compliance with the provisions of
Section 13(d) of the Loan Agreement.
(f). Loan Parties agree that no later than January 31, 2004,
Loan Parties shall take all actions requested by Lender to (i) cause Stonepath
Offshore Holdings, Inc. to be joined as a party to and Loan Party under the Loan
Agreement, (ii) create a pledge in favor of Lender of 100% of the issued and
outstanding capital stock of Stonepath Offshore Holdings, Inc., (iii) cause
Stonepath Offshore Holdings, Inc. to create a pledge under US law in favor of
Lender of 65% of the voting stock (and, if applicable, 100% of the non-voting
stock) of Stonepath Holdings (Hong Kong) Limited, a Hong Kong company and
subsidiary of Stonepath Offshore Holdings, Inc. and (iv) to the extent requested
by Lender, cause Stonepapth Offshore Holdings, Inc. to create a pledge under
Hong Kong law in favor of Lender of 65% of the voting stock (and, if applicable,
100% of the non-voting stock) of Stonepath Holdings (Hong Kong) Limited. Loan
Parties acknowledge and agree that any failure of Loan Parties to comply with
the requirements of this paragraph shall constitute an Event of Default under
the Loan Agreement.
2. Clarifying Amendment to Loan Agreement. Upon the effectiveness of
this Consent, the Loan Agreement shall be amended to clarify the intentions of
the parties as follows:
(a). The initial lead-in language to Section 14(b) of the Loan
Agreement shall be amended (without amending the remainder of the section) by
deleting such language and replacing it as follows:
"Funded Debt to Consolidated EBITDA Ratio. Loan Parties shall
maintain a maximum Funded Debt to Consolidated EBITDA Ratio,
measured quarterly as at the end of each fiscal quarter, beginning
with the fiscal quarter ending September 30, 2002, for the fiscal
periods set forth below, of not more than the corresponding ratios
set forth below:
3. Representations and Warranties. Each Loan Party represents and
warrants to Lender that:
(i). All warranties and representations made to
Lender under the Loan Agreement and the other Existing Credit Documents are true
and correct as to the date hereof.
(ii). The execution and delivery by each Loan Party
of this Consent and the performance by it of the transactions herein
contemplated (i) are and will be within its powers, (ii) have been authorized by
all necessary corporate action and will not contravene any provision of the
certificate or articles of incorporation or bylaws or other similar entity
governance documents of such Loan Party, and (iii) are not and will not be in
contravention of any order of any court or other agency of government, of law or
any other indenture, agreement or undertaking to which such Loan Party is a
party or by which the property of such Loan Party is bound, or be in conflict
with, result in a breach of, or constitute (with due notice and/or lapse of
time, if applicable) a default under any such indenture, agreement or
undertaking or result in the imposition of any lien, charge or encumbrance of
any nature on any of the properties of such Loan Party.
(iii). This Consent and any assignment, instrument,
document, or agreement executed and delivered in connection herewith, will be
valid and binding on and enforceable against each Loan Party in accordance with
its respective terms.
(iv). No Event of Default, or event or circumstance
that with the giving of notice or passage of time or both would become an Event
of Default, has occurred under the Loan Agreement or any of the other Existing
Credit Documents.
(v). The name, office and signature of the officer(s)
of each Loan Party signing this Consent have previously been certified to Lender
in the incumbency and signature certificates of such Loan Party heretofore
delivered to Lender.
4. Confirmation of Security Interest. As security for the payment of
all Loans now or in the future made by Lender to Loan Parties hereunder and for
the payment or other satisfaction of all other Liabilities, each Loan Party
hereby reconfirms the assignment and grant of a continuing perfected first
priority (subject only to Permitted Liens which Lender has expressly agreed may
be senior to the security interests of Lender) lien and security interest in and
to the Collateral (specifically including the Property described in Section 5 of
the Loan Agreement), whether now owned or hereafter acquired, created or arising
and wherever located, granted to Lender by such Loan Party under the Existing
Credit Documents. Each such Loan Party hereby confirms and agrees that all such
security interests and liens granted to Lender under the Existing Credit
Documents continue in full force and effect and shall continue to secure the
Obligations. All Collateral remains free and clear of any liens other than liens
in favor of Lender, except for Permitted Liens. Nothing herein contained is
intended to in any way impair or limit the validity, priority and extent of
Lender's existing security interest in and liens upon the Collateral.
5. Effectiveness Conditions. This Consent shall be effective upon
execution and delivery of this Consent by all parties hereto and payment by Loan
Parties to Lender of all fees and expenses (specifically including without
limitation attorneys' fees) incurred in relation to the preparation and
execution of this Consent.
6. Confirmation of Indebtedness. Loan Parties hereby acknowledge and
confirm that as of the close of business on December 22, 2003, they are each,
jointly and severally, indebted to Lender, without defense, setoff, claim or
counterclaim under the Existing Credit Documents, in the aggregate principal
amount of $ -0- for Revolving Loans, plus unpaid interest accrued on such
principal amount, plus all reasonable fees, costs and expenses (including
attorneys' fees) incurred to date in connection with the Existing Credit
Documents. Loan Parties also acknowledge that the aggregate undrawn face amount
of all Letters of Credit outstanding as of December 22, 2003 is $160,000.
7. Ratification of Existing Loan Documents. Except as expressly set
forth herein, all of the terms and conditions of the Loan Agreement and the
other Existing Credit Documents are hereby ratified and confirmed and continue
unchanged and in full force and effect. All references to the Loan Agreement
shall mean the Loan Agreement as modified by this Consent.
8. Consent as Loan Document. Loan Parties hereby acknowledge and agree
that this Consent constitutes an "Other Agreement" under the Loan Agreement.
Accordingly, it shall be an Event of Default under the Loan Agreement if (i) any
representation or warranty made by Loan Parties under or in connection with this
Consent shall have been untrue, false or misleading in any material respect when
made, or (ii) Loan Parties shall fail to perform or observe any term, covenant
or agreement contained in this Consent.
9. Governing Law. THIS CONSENT, AND ALL MATTERS RELATED TO AND/OR
ARISING OUT OF THIS CONSENT, SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AS TO INTERPRETATION, ENFORCEMENT,
VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS.
10. Waiver of Jury Trial. EACH LOAN PARTY AND LENDER EACH HEREBY WAIVES
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY
OR INDIRECTLY TO THIS CONSENT, THE LOAN AGREEMENT, THE NOTES, ANY OF THE OTHER
AGREEMENTS, THE LIABILITIES, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY A
LOAN PARTY OR LENDER OR WHICH, IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF
OR RELATES TO THE RELATIONSHIP BETWEEN A LOAN PARTY AND A LENDER. IN NO EVENT
SHALL LENDER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL
DAMAGES.
11. Successors and Assigns. This Consent, along with each of the
Existing Credit Documents, shall be binding upon and shall benefit Loan Parties
and Lender and their respective successors and permitted assigns (as permitted
under the Loan Agreement).
12. Counterparts. This Consent may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts together shall constitute one and the same respective
agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Amendment and Consent to Loan and Security Agreement as of the date first
written above.
LENDER:
LASALLE BUSINESS CREDIT, LLC
By:
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Name: Xxxxxxx X. Xxxx, Xx.
Title: Assistant Vice President
[Signatures Continued on Following Page]
[Signature Page S-1 to Stonepath Consent Re Foreign Acquisitions -
December 2003]
LOAN PARTIES:
STONEPATH GROUP, INC. STONEPATH LOGISTICS DOMESTIC SERVICES, INC.
BY:_______________________ BY:_______________________
Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: Treasurer Title: Treasurer
CONTRACT AIR, INC. STONEPATH LOGISTICS GOVERNMENT SERVICES, INC.,
f/k/.a Transport Specialists, Inc.
BY:_______________________
Name: Xxxx X. Xxxxx BY:_______________________
Title: Treasurer Name: Xxxx X. Xxxxx
Title: Treasurer
DISTRIBUTION SERVICES, INC.
STONEPATH LOGISTICS INTERNATIONAL SERVICES, INC,
a Delaware Corporation
BY:_______________________
Name: Xxxx X. Xxxxx BY:_______________________
Title: Treasurer Name: Xxxx X. Xxxxx
Title: Treasurer
GLOBAL CONTAINER
LINE, INC. STONEPATH LOGISTICS INTERNATIONAL SERVICES, INC.,
f/k/a/ Global Transportation Services, Inc.,
a Washington Corporation
BY:_______________________
Name: Xxxx X. Xxxxx
Title: Treasurer BY:_______________________
Name: Xxxx X. Xxxxx
M.G.R. INC., d/b/a AIR PLUS LIMITED Title: Treasurer
STONEPATH OPERATIONS, INC.
BY:_______________________
Name: Xxxx X. Xxxxx
Title: Treasurer BY:_______________________
Name: Xxxx X. Xxxxx
Title: Treasurer
NET VALUE, INC.
UNITED AMERICAN ACQUISITIONS
AND MANAGEMENT, INC. d/b/a UNITED
BY:_______________________ AMERICAN FREIGHT SERVICES, INC.,
Name: Xxxx X. Xxxxx
Title: Treasurer
BY:_______________________
Name: Xxxx X. Xxxxx
Title: Treasurer
[Signature Page S-2 to Stonepath Consent Re Foreign Acquisitions -
December 2003]
