Exhibit 10.1
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is made as of
the 31st day of May, 2005 by and among UTi, UNITED STATES, INC., a New York
corporation ("UTi"), UTi INTEGRATED LOGISTICS, INC., a South Carolina
corporation f/k/a Standard Corporation ("Logistics"), UTi BROKERAGE, INC., a
California corporation ("Brokerage" and, together with UTi, 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 ("Services" and, together with the Companies and the Parent
Guarantor, the "Loan Parties" and each, individually, a "Loan Parties"), the
financial institutions that are or may from time to time hereafter become
parties to the Credit Agreement defined below (together with their respective
successors and assigns, the "Lenders"), LASALLE BANK NATIONAL ASSOCIATION, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
R E C I T A L S:
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A. The Administrative Agent, the Lenders and the Loan Parties are parties
to that certain Credit Agreement dated as of August 5, 2004 (as the same has
been or may hereafter be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), pursuant to which, among other
things, the Administrative Agent and the Lenders have agreed, subject to the
terms and conditions thereof, to make certain loans, advances and other
financial accommodations to the Companies.
B. The Loan Parties, the Administrative Agent and the Lenders are entering
into this Amendment to modify certain of the terms of the Credit Agreement to
extend the delivery date of the annual audited financial statements of the
Parent Guarantor and its Subsidiaries from May 31, 2005 to July 31, 2005.
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual covenants and promises contained in this Amendment, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. As of the Effective Date (as
defined below), Section 10.1.1 of the Credit Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Section 10.1.1 Annual Report. Promptly when available and in any event
within 120 days after the close of each Fiscal Year (except that with
respect to the Fiscal Year ended January 31, 2005, on or before July 31,
2005): (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
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.
SECTION 2. Reaffirmation. Each Loan Party, in its capacity under each of
the Loan Documents to which it is a party (including the capacities of debtor
and pledgor, as applicable, and each other similar capacity, if any, in which
such Loan Party has granted liens on all or any part of its properties or
assets, or otherwise acts as an accommodation party, guarantor, indemnitor or
surety with respect to all or any part of the Obligations), hereby (a) expressly
reaffirms and assumes (on the same basis as set forth in the Credit Agreement
(as amended hereby) and each other Loan Document, in each case, to which it is a
party) all of such Loan Party's obligations and liabilities to the
Administrative Agent and the Lenders as set forth in the Credit Agreement (as
amended hereby) and in each other Loan Document, in each case, to which it is a
party, and agrees to be bound by and abide by and operate and perform under and
pursuant to and comply fully with all of the terms, conditions, provisions,
agreements, representations, undertakings, warranties, guarantees, indemnities
and covenants contained in the Credit Agreement and each other Loan Document to
which it is a party, as such obligations and liabilities have been amended by
this Amendment, and hereby ratifies, confirms and reaffirms in all respects all
obligations and liabilities of such Loan Party under the Loan Documents; (b) to
the extent such Loan Party has granted liens on any of its properties or assets
pursuant to any of the Loan Documents to secure the prompt and complete payment,
performance and/or observance of all or any part of its obligations to the
Administrative Agent and the Lenders, and hereby acknowledges, ratifies,
confirms and reaffirms such grant of liens, and acknowledges and agrees that all
of such liens are intended and shall be deemed and construed to secure to the
fullest extent set forth therein all now existing and hereafter arising
obligations under the Loan Documents to which it is a party, as amended,
restated, supplemented and otherwise modified and in effect from time to time;
and (c) acknowledges and agrees that the Administrative Agent and the Lenders
have fully performed all of their respective obligations to the Loan Parties.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date first written above upon satisfaction of the following
conditions precedent (such date being the "Effective Date"):
(a) The Administrative Agent shall have received eight (8)
fully-executed copies of this Amendment;
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(b) All of the representations and warranties set forth in Section 4
of this Amendment shall be true and correct; and
(c) No Unmatured Event of Default or Event of Default is outstanding.
SECTION 4. Representations and Warranties. To induce the Administrative
Agent and the Lenders to enter into this Amendment, the Loan Parties each hereby
jointly and severally represents and warrants that:
4.1. Compliance with Loan Documents. On the date hereof, each Loan Party is
in compliance with the terms and provisions set forth in the Credit Agreement
and the other Loan Documents to which it is a party (in each case, as modified
by this Amendment), and no Unmatured Event of Default or Event of Default has
occurred and is continuing which has not been waived in writing by the
Administrative Agent and the Lenders.
4.2. Representations and Warranties. On the date hereof, the
representations, warranties and covenants of the Loan Parties set forth in the
Credit Agreement and the other Loan Documents, are true and correct with the
same effect as though such representations and warranties and covenants had been
made on the date hereof, except to the extent that such representations and
warranties and covenants expressly relate to an earlier date.
4.3. Corporate Authority of the Loan Parties. Each Loan Party has full
power and authority to enter into this Amendment and to incur and perform the
obligations provided for under this Amendment and the Credit Agreement (as
amended hereby), all of which have been duly authorized by all proper and
necessary corporate action. No consent or approval of stockholders or of any
public authority or regulatory body is required as a condition to the validity
or enforceability of this Amendment as against any Loan Party.
4.4. Amendment as Binding Agreement. This Amendment and the Credit
Agreement (as amended hereby) and the other Loan Documents constitute the valid
and legally binding obligation of each Loan Party party thereto, fully
enforceable against each such Loan Party, in accordance with its terms.
4.5. No Conflicting Agreements. Neither the execution and performance by
the Loan Parties (or any of them) of this Amendment will (i) violate any
provision of law, any order of any court or other agency of government, or the
charter, bylaws or other organizational documents of any Loan Party, (ii)
violate any indenture, contract, agreement or other instrument to which any Loan
Party is a party, or by which its property is bound, or be in conflict with,
result in a breach of or constitute (with due notice and/or lapse of time) a
default under, any such indenture, contract, agreement or other instrument or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of any Loan Party, other
than Permitted Liens.
SECTION 5. General Provision.
5.1. Except as expressly amended by this Amendment, the terms and
provisions of the Credit Agreement, the Guaranty and Collateral Agreement and
each of the
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other Loan Documents, shall remain unchanged and are in all other respects
ratified and confirmed and remain in full force and effect. This Amendment shall
not waive any Loan Party's compliance with any terms of the Credit Agreement,
the Guaranty and Collateral Agreement or any of the other Loan Document, and
except as expressly set forth herein, the Administrative Agent and the Lenders
reserve all rights and remedies with respect to any such non-compliance.
5.2. The Loan Parties hereby jointly and severally agree to pay all
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, negotiation and consummation of this Amendment, and all other
documents related thereto, including, without limitation, the reasonable fees
and expenses of the Administrative Agent's counsel, and any filing fees and
recordation tax required in connection with the filing of any documents
necessary to consummate the provisions of this Amendment.
5.3. This Amendment shall be construed in accordance with and governed by
the laws of the State of Illinois.
5.4. This Amendment may be executed in any number of counterparts.
5.5. On or after the Effective Date, each reference in the Credit Agreement
or the Guaranty and Collateral Agreement to this "Agreement", "hereof", or words
of like import, and all references in any other Loan Document to the Credit
Agreement or the Guaranty and Collateral Agreement shall, in each case, unless
the context otherwise requires, be deemed to refer to the Credit Agreement or
the Guaranty and Collateral Agreement, respectively, as amended hereby.
5.6. The recitals to this Amendment are incorporated herein in their
entirety by this reference thereto and deemed to be a part hereof.
5.7. This Amendment shall inure to the benefit of the Loan Parties, the
Administrative Agent and the Lenders and their respective successors and
permitted assigns.
[remainder of page intentionally left blank;
signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or members thereunto duly authorized, as
of the date first above written.
LOAN PARTIES:
------------
UTi UNITED STATES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Secretary
---------------------------------
UTi INTEGRATED LOGISTICS, INC., formerly
known as Standard Corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Secretary
---------------------------------
UTi (U.S.) HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Secretary
---------------------------------
UTi BROKERAGE, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Secretary
---------------------------------
UTi SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Secretary
---------------------------------
[signature page to Amendment No. 1]
ADMINISTRATIVE AGENT AND LENDERS:
--------------------------------
LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent and as a Lender
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Title: First Vice President
---------------------------------
BANK OF AMERICA, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
[signature page to Amendment No. 1]
