THIRD AMENDMENT TO LETTER OF CREDIT AGREEMENT
Exhibit 10.1
Execution Copy
THIRD AMENDMENT
TO LETTER OF CREDIT AGREEMENT
TO LETTER OF CREDIT AGREEMENT
THIS THIRD AMENDMENT
TO LETTER OF CREDIT AGREEMENT (this “Amendment”) is dated as of July 23,
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), Nedbank Limited, acting
through its London Branch (the “Issuing Bank”), and is made with reference to that certain LETTER
OF CREDIT AGREEMENT dated as of July 9, 2009 (as amended by the First Amendment to Letter of Credit
Agreement among the Company, the Subsidiary Guarantors and the Issuing Bank, dated as of January 8,
2010 and the Second Amendment to Letter of Credit Agreement among the Company, the Subsidiary
Guarantors and the Issuing Bank, dated as of March 25, 2010, the “Letter of Credit Agreement”) by
and among the Company, the Subsidiary Guarantors and the Issuing Bank. 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 Bank agree to amend certain provisions
of the Letter of Credit Agreement as provided for herein; and
WHEREAS, subject to certain conditions, the Issuing Bank is 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. AMENDMENTS TO LETTER OF CREDIT AGREEMENT
A. The cover page of the Letter of Credit Agreement is hereby amended by replacing “U.S.
$36,000,000” with “U.S. $61,000,000”.
B. The first page of the Letter of Credit Agreement is hereby amended by replacing “U.S.
$36,000,000” with “U.S. 61,000,000”.
C. The last subclause (ii) in the second sentence of the first paragraph of Section 1.1 of the
Letter of Credit Agreement is hereby amended and restated in its entirety as follows:
(ii) in no event shall any Letter of Credit issued after July 23, 2010 have
an expiration date later than the Maturity Date unless agreed to by the
Issuing Bank.
D. The definition of “Maximum Draw Amount” in Schedule B to the Letter of Credit Agreement is
hereby amended and restated in its entirety as follows:
“Maximum Draw Amount” means $61,000,000.
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 “Third Amendment Effective Date”):
A. Execution. The Issuing Bank shall have received a counterpart signature page of this
Amendment duly executed by each of the Obligors.
B. Fees. The Issuing Bank shall have received (i) a nonrefundable arrangement fee equal to
$162,500 and (ii) all fees and other amounts due and payable on or prior to the Third 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. Opinions of Counsel; Registered Agent’s Certificate. The Issuing Bank shall have received
(i) an executed copy of a written opinion of Harneys Westwood & Riegels, British Virgin Islands
counsel for the Obligors covering the existence and good standing of the Company, the capacity and
power of the Company to perform its obligations pursuant to the Amendment, the due execution by the
Company of the Amendment, matters related to enforceability, no-conflict, and choice of law and
including other matters incident to the transactions contemplated hereby and otherwise in form and
substance reasonably satisfactory to the Issuing Bank; (ii) an executed copy of a written opinion
of Xxxxxx & Xxxxxxx LLP, English counsel for the Issuing Bank, each addressed to the Issuing Bank,
dated as of the Third Amendment Effective Date, covering matters related to enforceability and
choice of law of the Amendment including other matters incident to the transactions contemplated
hereby and otherwise in form and substance reasonably satisfactory to the Issuing Bank; and (iii) a
copy of the certificate identifying the directors and shareholders of the Company and executed by
Midocean Management and Trust Services (BVI) Limited, as registered agent of the Company, dated
July 23, 2010.
E. Other Documents. The Issuing Bank shall have received such other documents, information or
agreements regarding Obligors as the Issuing Bank may reasonably request.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce the Issuing Bank 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 Bank 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.
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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 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 or the Amended Agreement, 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.
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E. Insolvency. As of the Third 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 Third 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.
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 Third 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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SECTION V. MISCELLANEOUS
A. Reference to and Effect on the Letter of Credit Agreement and the Other Financing
Agreements.
(i) On and after the Third 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 Bank under, the Letter of Credit Agreement or any of the
other Financing Agreements.
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 AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN
CONNECTION WITH IT ARE GOVERNED BY ENGLISH LAW.
D. Jurisdiction.
(1) The courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Amendment (including a dispute relating to the existence,
validity or termination of this Amendment or any non-contractual obligation arising out of
or in connection with this Amendment ) (a “Dispute”).
(2) The parties hereto agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no party to this Amendment will argue
to the contrary.
(3) This Section V.D. is for the benefit of the Issuing Bank only. As a result, the
Issuing Bank shall not be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law, the Issuing Bank may take
concurrent proceedings in any number of jurisdictions.
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. |
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By: | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
SUBSIDIARY GUARANTORS: | UTI (AUST) PTY LIMITED, ABN 48 006 734 747 |
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By: | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI AFRICA SERVICES LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UNIGISTIX INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI, CANADA, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI CANADA HOLDINGS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
SPAN MANUFACTURING LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
UTI DEUTSCHLAND GMBH |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI (HK) LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI NEDERLAND B.V. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
SERVICIOS LOGISTICOS INTEGRADOS SLI, S.A. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UNIÓN DE SERVICIOS LOGÍSTICOS INTEGRADOS, S.A. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI SPAIN S.A. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
UTI (TAIWAN) LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI LOGISTICS (TAIWAN) LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI WORLDWIDE (UK) LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI, (U.S.) HOLDINGS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI, UNITED STATES, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI, SERVICES, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
UTI BROKERAGE, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI LOGISTICS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
VANGUARD CARGO SYSTEMS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI INTEGRATED LOGISTICS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
MARKET INDUSTRIES, LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
MARKET TRANSPORT, LTD |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
TRIPLE EXPRESS, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
INTRANSIT, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
MARKET LOGISTICS SERVICES, LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
MARKET LOGISTICS BROKERAGE, LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
XXXXXXX TRANSPORTATION, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
LAKE STATES TRUCKING, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
CONCENTREK, INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UNITED EXPRESS, LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
AFRICAN INVESTMENTS B.V. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
UTI ASIA PACIFIC LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
XXXXXXX COMPANY LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI INTERNATIONAL INC. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI (N.A.) HOLDINGS N.V. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI (NETHERLANDS) HOLDINGS B.V. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
PYRAMID FREIGHT (PROPRIETARY) LIMITED |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
UTI LOGISTICS N.V. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI NEW ZEALAND LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
UTI IRELAND LIMITED Signed, Sealed and Delivered by |
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/s/ Xxxxx Xxxxx | ||||
Xxxxx Xxxxx, | ||||
duly appointed attorney for and on behalf of UTi IRELAND LIMITED in the presence of: |
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Witness: | /s/ Xxxx Xxxxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxx Xxxxxxxx | |||
Address: | 000 Xxxxxxxxx, Xxxxx 0000 Xxxx Xxxxx, XX |
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Occupation: | VP Global Performance Analysis | |||
UTI WORLDWIDE (SINGAPORE) PTE LTD. |
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By | /s/ Xxxxx Xxxxx | |||
Authorized Signatory | ||||
[Signature Page to Third Amendment]
NEDBANK LIMITED, acting through its London Branch,
As Issuing Bank |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Authorized Signatory | |||
By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | Authorized Signatory | |||
[Signature Page to Third Amendment]