FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT
Exhibit 10.46
EXECUTION COPY
FIRST AMENDMENT
TO LETTER OF CREDIT AGREEMENT
TO LETTER OF CREDIT AGREEMENT
THIS FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT (this “Amendment”) is dated as of March 25,
2010 and is entered into by and among UTi Worldwide Inc., a BVI Business Company incorporated under
the laws of the British Virgin Islands with company number 141257 (the “Company”), each of the
Subsidiary Guarantors (as defined in the Letter of Credit Agreement), ABN AMRO Bank N.V., in its
capacity as Performance-Based LC Issuing Bank (the “Performance-Based LC Issuing Bank”) and The
Royal Bank of Scotland plc, in its capacity as Financial LC Issuing Bank (the “Financial LC Issuing
Bank”; together with the Performance-Based LC Issuing Bank, the “Issuing Banks”) and is made with
reference to that certain LETTER OF CREDIT AGREEMENT dated as of July 9, 2009 (as amended through
the date hereof, the “Letter of Credit Agreement”) by and among the Company, the Subsidiary
Guarantors and the Issuing Banks. Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Letter of Credit Agreement after giving effect to this
Amendment.
RECITALS
WHEREAS, the Obligors have requested that the Issuing Banks agree to amend certain provisions
of the Letter of Credit Agreement as provided for herein; and
WHEREAS, subject to certain conditions, the Issuing Banks are willing to agree to such
amendment relating to the Letter of Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENT TO LETTER OF CREDIT AGREEMENT
Section 10.20 of the Letter of Credit Agreement is hereby amended and restated in its entirety
as follows:
The Company will not, as of the end of any Measurement Period,
permit the Fixed Charges Coverage Ratio to be less than 1.75 to 1:00
on or prior to April 30, 2011 or 2.00 to 1.00 at any time
thereafter.
SECTION II. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such conditions being referred
to herein as the “First Amendment Effective Date”):
A. Execution. The Issuing Banks shall have received a counterpart signature page of this
Amendment duly executed by each of the Obligors.
B. Fees. The Issuing Banks shall have received all fees and other amounts due and payable on
or prior to the First Amendment Effective Date, including, to the extent invoiced, reimbursement or
other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder or under any other Financing Agreement.
C. Necessary Consents. Each Obligor shall have obtained all material consents necessary or
advisable in connection with the transactions contemplated by this Amendment.
D. Concurrent Amendments. The Issuing Banks shall have received fully executed copies of the
Second Amendment to the NedBank LC Agreement in substantially the form attached hereto as Exhibit A
and the Notes Financing Agreements in substantially the form attached hereto as Exhibit B and such
amendments and any other related documentation shall have become effective.
E. Other Documents. The Issuing Banks shall have received such other documents, information
or agreements regarding Obligors as the Issuing Banks may reasonably request.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce the Issuing Banks to enter into this Amendment and to amend the Letter of
Credit Agreement in the manner provided herein, each Obligor which is a party hereto represents and
warrants to the Issuing Banks that the following statements are true and correct in all material
respects:
A. Organization; Power and Authority. Each Obligor is a corporation or other legal entity
duly incorporated or organized, validly existing and, where legally applicable, in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation
or other legal entity, where applicable, and, where legally applicable, is in good standing in each
jurisdiction in which such qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each Obligor has the
corporate (or other organizational) power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts and proposes to
transact, to execute and deliver the Letter of Credit Agreement as amended by this Amendment (the
“Amended Agreement”) to which it is a party and to perform the provisions hereof.
B. Authorization, Etc. The Amendment has been duly authorized by all necessary corporate or
other entity action on the part of each Obligor, and the Amendment constitutes a legal, valid and
binding obligation of each Obligor party thereto enforceable against any such Obligor in accordance
with its terms, except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
C. No Conflict. The execution, delivery and performance by each Obligor of the Amendment will
not (a) contravene, result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of any Obligor or any Subsidiary
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under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter, memorandum and articles of association, regulations or by-laws, or any other
agreement or instrument to which any Obligor or any Subsidiary is bound or by which any Obligor or
any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to any Obligor or any
Subsidiary, except for such conflicts or breaches that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or (c) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to any Obligor or any
Subsidiary, in each case, except for such contraventions, breaches, defaults, Liens, conflicts and
violations that would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
D. Governmental Authorizations, Etc. Except as disclosed on Schedule 5.7 of the Amended
Agreement, no consent, approval or authorization of, or registration, filing or declaration with,
any Governmental Authority is required in connection with the execution, delivery or performance by
any Obligor of the Amendment, including, without limitation, any thereof required in connection
with the obtaining of Dollars to make payments under the Amended Agreement or any other Financing
Agreement and the payment of such Dollars to Persons resident in the United States of America.
Except as disclosed on Schedule 5.7 of the Amended Agreement, it is not necessary to ensure the
legality, validity, enforceability or admissibility into evidence in the Applicable Jurisdiction of
the Amended Agreement or any other Financing Agreement that any thereof or any other document be
filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document
be stamped with any stamp, registration or similar transaction tax.
E. Insolvency. As of the First Amendment Effective Date:
(a) no Obligor, is unable, or is deemed to be unable for the purposes of any applicable law,
or admits or has admitted its inability, to pay its debts as and when they fall due or has
suspended, or announced an intention to suspend, making payments on any of its debts;
(b) no Obligor, by reason of actual or anticipated financial difficulties has begun
negotiations with one or more of its creditors with a view to rescheduling or restructuring any of
its Indebtedness; and
(c) no moratorium has been declared in respect of any Indebtedness of any Obligor.
F. Incorporation of Representations and Warranties from Letter of Credit Agreement. The
representations and warranties contained in Section 5 of the Letter of Credit Agreement are and
will be true and correct in all material respects on and as of the First Amendment Effective Date
to the same extent as though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were true and correct in
all material respects on and as of such earlier date.
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G. Absence of Default. No event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would constitute an Event of
Default or a Default.
SECTION IV. ACKNOWLEDGMENT AND CONSENT
Each Subsidiary Guarantor hereby acknowledges that it has reviewed the terms and provisions of
the Letter of Credit Agreement and this Amendment and consents to the amendment of the Letter of
Credit Agreement effected pursuant to this Amendment. Each Subsidiary Guarantor hereby confirms
that each Financing Agreement to which it is a party or otherwise bound will continue to guarantee
to the fullest extent possible in accordance with the Financing Agreements the payment and
performance of all “Obligations” and “Guaranteed Obligations” under each of the Financing
Agreements to which is a party (in each case as such terms are defined in the Letter of Credit
Agreement).
Each Subsidiary Guarantor acknowledges and agrees that any of the Financing Agreements to
which it is a party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Subsidiary Guarantor represents and warrants
that all representations and warranties contained in the Amended Agreement and the Financing
Agreements to which it is a party or otherwise bound are true and correct in all material respects
on and as of the First Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically relate to an earlier
date, in which case they were true and correct in all material respects on and as of such earlier
date.
SECTION V. MISCELLANEOUS
A. Reference to and Effect on the Letter of Credit Agreement and the Other Financing
Agreements.
(i) On and after the First Amendment Effective Date, each reference in the
Letter of Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or
words of like import referring to the Letter of Credit Agreement, and each reference
in the other Financing Agreements to the “Agreement”, “thereunder”, “thereof” or
words of like import referring to the Letter of Credit Agreement shall mean and be a
reference to the Letter of Credit Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the Letter of Credit
Agreement and the other Financing Agreements shall remain in full force and effect
and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall not
constitute a waiver of any provision of, or operate as a waiver of any right, power
or remedy of the Issuing Banks under, the Letter of Credit Agreement or any of the
other Financing Agreements.
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B. Headings. Section and Subsection headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF
A JURISDICTION OTHER THAN SUCH STATE.
D. Jurisdiction. Each Obligor irrevocably submits to the non-exclusive jurisdiction of any
New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any
suit, action or proceeding arising out of or relating to this Amendment or any other Financing
Agreement. To the fullest extent permitted by applicable law, each Obligor irrevocably waives and
agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject
to the jurisdiction of any such court, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
E. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first written above.
| COMPANY: | UTi WORLDWIDE INC. |
|||
| By: | /s/ Xxxxx Xxxxx | |||
| Authorized Signatory | ||||
[Signature Page to First Amendment]
| SUBSIDIARY GUARANTORS: | UTI (AUST) PTY LIMITED, ABN 48 006 734 747 | |||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI AFRICA SERVICES LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UNIGISTIX INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI, CANADA, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI CANADA HOLDINGS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| SPAN MANUFACTURING LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI DEUTSCHLAND GMBH | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| UTI (HK) LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI NEDERLAND B.V. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| SERVICIOS LOGISTICOS INTEGRADOS SLI, S.A. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UNIóN DE SERVICIOS LOGíSTICOS INTEGRADOS, S.A. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI SPAIN S.A. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI (TAIWAN) LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| UTI LOGISTICS (TAIWAN) LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI WORLDWIDE (UK) LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI, (U.S.) HOLDINGS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI, UNITED STATES, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI, SERVICES, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI BROKERAGE, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI LOGISTICS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| VANGUARD CARGO SYSTEMS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI INTEGRATED LOGISTICS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| MARKET INDUSTRIES, LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| MARKET TRANSPORT, LTD | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| TRIPLE EXPRESS, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| INTRANSIT, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| MARKET LOGISTICS SERVICES, LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| MARKET LOGISTICS BROKERAGE, LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| XXXXXXX TRANSPORTATION, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| LAKE STATES TRUCKING, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| CONCENTREK, INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UNITED EXPRESS, LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| AFRICAN INVESTMENTS B.V. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| UTI ASIA PACIFIC LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| XXXXXXX COMPANY LIMITED | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI INTERNATIONAL INC. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI (N.A.) HOLDINGS N.V. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI (NETHERLANDS) HOLDINGS B.V. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| PYRAMID FREIGHT (PROPRIETARY) LIMITED |
||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI LOGISTICS N.V. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| UTI NEW ZEALAND LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
| UTI IRELAND LIMITED | ||||||
| Signed, Sealed and Delivered by | ||||||
| /s/ Xxxxx Xxxxx | ||||||
| Xxxxx Xxxxx, duly appointed attorney for and on behalf of UTi IRELAND LIMITED in the presence of: |
||||||
| Witness: | /s/ Xxxx Xxxxxxx | |||||
| Name: | Xxxx Xxxxxxx | |||||
| Address: | 000 Xxxxxxxxx, Xxx 0000 | |||||
| Xxxx Xxxxx XX, 00000 | ||||||
| Occupation: | Executive Assistant, Global Finance | |||||
| UTI WORLDWIDE (SINGAPORE) PTE LTD. | ||||||
| By | /s/ Xxxxx Xxxxx | |||||
| Authorized Signatory | ||||||
[Signature Page to First Amendment]
| The Royal Bank of Scotland N.V. f/k/a ABN AMRO BANK N.V., as Performance-Based LC Issuing Bank |
||||||
| By: | /s/ Michiel van Schaardenburg | |||||
| Name: | Michiel van Schaardenburg | |||||
| Title: | Managing Director | |||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxx | |||||
| Title: | Vice President | |||||
[Signature Page to First Amendment]
| THE ROYAL BANK OF SCOTLAND PLC, as Financial LC Issuing Bank | ||||||
| By: | /s/ L. Xxxxx Xxxxxx | |||||
| Name: | L. Xxxxx Xxxxxx | |||||
| Title: | SVP | |||||
[Signature Page to First Amendment]
