EXHIBIT 10.29
AMENDMENT NO. 3
This Amendment No. 3 (this "Amendment") dated as of February 26, 1999
is entered into with reference to the Amended and Restated Loan Agreement dated
as of October 28, 1997 (as previously amended by an Amendment No. 1 dated
December 12, 1997, and an Amendment No. 2 dated as of July 10, 1998, the "Loan
Agreement") among GeoLogistics Corporation, a Delaware corporation (acting under
its former name, "International Logistics Limited", and referred to herein as
the "Company"), GeoLogistics Services, Inc., a Delaware corporation (acting
under its former name, "Matrix International Logistics, Inc."), GeoLogistics
Americas, Inc., a Delaware corporation (acting under its former name, "LEP
Profit International, Inc.", and referred to herein as the "GeoLogistics
Americas"), The Bekins Company, a Delaware corporation, ILLCAN, Inc., a Delaware
corporation, and ILLSCOT, Inc., a Delaware corporation (collectively, the
"Domestic Borrowers"), GeoLogistics Limited, a company organized under the Laws
of England (acting under its former name, "LEP International Limited") ("LEP UK"
and collectively with the Domestic Borrowers, "Borrowers"), and ING (U.S.)
Capital Corporation (now known as ING (U.S.) Capital LLC and referred to as
"ING Capital") as sole initial Lender and as Administrative Agent, and ING Bank,
N.V. (London, England Branch), as facilitator of the UK Commitment (and not as a
"Lender").
Pursuant to Amendment No. 1, the Borrowers have designated Bekins Van
Lines Co., a Nebraska corporation ("BVL"), as an additional Domestic Borrower
under the Loan Agreement. ING (U.S.) Capital, LLC has succeeded to ING (U.S.)
Capital Corporation as a Lender and as Administrative Agent under the Loan
Agreement.
RECITALS
A. The Borrowers have notified the Lenders that they do not expect to be
in compliance with the minimum EBITDA covenant set forth in Section 7.15 of
the Loan Agreement as of December 31, 1998.
B. The Borrowers and the Lenders have agreed to amend the Loan Agreement
as set forth herein, with retroactive effect to December 31, 1998.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment are used with
the meanings set forth for those terms in the Loan Agreement. In addition, the
following terms are used with the meanings set forth below:
"GEOLOGISTICS AMERICAS" means GeoLogistics Americas, Inc., a Delaware
corporation.
"RELEASE DATE" means the first date following March 31, 1999, upon which
(a) no Default or Event of Default exists, and (b) Borrowers have delivered
to the Administrative Agent and the Lenders a Compliance Certificate
indicating that, for the twelve month period ending on the last day of a
Fiscal Quarter of Borrowers ending on or after March 31, 1999, the Company
and its Restricted Subsidiaries have achieved results of operation which
would result in compliance with each of the financial covenants set forth
in Sections 7.15 and 7.16 as such covenants were in effect prior to the
execution of this Amendment, and (c) the making of the payments
contemplated by Section 15(a) of this Amendment, will not result in any
Default or Event of Default (including, with out limitation, after giving
pro forma effect to such payments as of the last day of the then
immediately preceding Fiscal Quarter). For clarity, the parties confirm
that for the purposes of clause (b), EBITDA shall include the results of
operations of the Company and all of its Restricted Subsidiaries for the
relevant period, including without limitation GeoLogistics Americas.
"SPONSOR COLLATERAL" means cash collateral, letters of credit or other
forms of credit support provided by the Sponsors to the Supplemental
Lenders, in each case in a form solely acceptable to ING Capital, in the
amount of $15,500,000.
2. AMENDMENT TO SECTION 1.1. Section 1.1 of the Loan Agreement is hereby
amended to add new definitions of "Supplemental Commitment," "Supplemental
Lenders," "Supplemental Letters of Credit," "Supplemental Loans" and
"Supplemental Loan Note" and so that the following existing terms read in full
as follows:
"BASE RATE MARGIN" means: (a) during the period from the Closing Date
through March 31, 1998, 0.50% per annum, (b) during each Pricing Period or
portion thereof occurring during the prior from April 1, 1998 through the
day prior to the first anniversary of the Closing Date, the LESSER OF (i)
0.75% per annum and (ii) the percentage set forth opposite the Funded Debt
Ratio for the Fiscal Quarter ending 45 days prior to the commencement of
such Pricing Period, and (c) during each Pricing Period or portion thereof
occurring after the first anniversary of the Closing Date, the percentage
set forth below opposite the Funded Debt Ratio for the Fiscal Quarter
ending 45 days prior to the commencement of such Pricing Period:
Funded Debt Ratio Applicable Base Rate Margin
----------------- ---------------------------
Equal to or greater than 6.00 to 1.00 1.25%
Less than 6.00:1.00 but not less than 5.50:1.00 1.00%
Less than 5.50:1.00 but not less than 4.50:1.00 0.75%
Less than 4.50:1.00 but not less than 4.00:1.00 0.50%
Less than 4.00:1.00 0.25%
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"COMMITMENTS" means, collectively, the Domestic Commitment, the U.K.
Commitment and the Supplemental Commitment.
"EURODOLLAR RATE MARGIN" means: (a) during the period from the Closing
Date through March 31, 1998, 2.00% per annum, (b) during each Pricing
Period or portion thereof occurring during the prior from April 1, 1998
through the day prior to the first anniversary of the Closing Date, the
LESSER OF (i) 2.25% per annum and (ii) the percentage set forth opposite
the Funded Debt Ratio for the Fiscal Quarter ending 45 days prior to the
commencement of such Pricing Period, and (c) during each Pricing Period or
portion thereof occurring after the first anniversary of the Closing Date,
the percentage set forth below opposite the Funded Debt Ratio for the
Fiscal Quarter ending 45 days prior to the commencement of such Pricing
Period:
Funded Debt Ratio Eurodollar Rate Margin
----------------- ----------------------
Equal to or greater than 6.00 to 1.00 2.75%
Less than 6.00:1.00 but not less than 5.50:1.00 2.50%
Less than 5.50:1.00 but not less than 4.50:1.00 2.25%
Less than 4.50:1.00 but not less than 4.00:1.00 2.00%
Less than 4.00:1.00 1.75%
"MAJORITY LENDERS" means, as of any date of determination (a) when any
Obligations are outstanding under the Domestic Commitment or the UK
Commitment, Lenders whose aggregate Pro Rata Shares of the Domestic
Commitment and the UK Commitment, in the aggregate, are at least 51% of the
Domestic Commitment and the UK Commitment (or if the Domestic Commitment
and the UK Commitment have then been terminated, Lenders holding not less
than 51% of the aggregate Obligations under the Domestic Commitment and the
UK Commitment), and (b) when no Obligations are outstanding under the
Domestic Commitment or the UK Commitment, Lenders holding at least 51% of
the Supplemental Commitment.
"SUBORDINATION AGREEMENT" means a Subordination Agreement dated as of
February 26, 1999 made by ING (U.S.) Capital LLC, as Supplemental Lender,
in favor of the Administrative Agent, the Issuing Lender and the other
Lenders under this Agreement, pursuant to which ING (U.S.) Capital LLC, as
Supplemental Lender, has subordinated the Obligations under the
Supplemental Commitment to the other Obligations in the manner and to the
extent set forth therein, as amended from time to time with the consent of
all of the Lenders.
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"SUPPLEMENTAL COMMITMENT" means the commitment of Lenders having
interests in the Supplemental Commitment to make Supplemental Loans and to
issue Supplemental Letters of Credit in an aggregate amount not to exceed
$30,500,000. As of February 26, 1999, ING Capital is the only Lender
having an interest in the Supplemental Commitment.
"SUPPLEMENTAL LENDERS" means ING Capital and each other Person
hereafter acquiring an interest in the Supplemental Commitment.
"SUPPLEMENTAL LETTERS OF CREDIT" means Letters of Credit issued by the
Issuing Lender in Dollars under the Supplemental Commitment.
Notwithstanding any provision of the Loan Documents to the contrary the
Supplemental Letters of Credit shall be participated in solely by the
Supplemental Lenders, and no other Lender shall be deemed to have any risk
participation therein by reason of its Pro Rata Share of the Domestic
Commitment or the UK Commitment.
"SUPPLEMENTAL LOANS" means Loans made by the Supplemental Lenders in
Dollars under the Supplemental Commitment.
"SUPPLEMENTAL LOAN NOTE" means a subordinated promissory note dated as
of February 26, 1999 made by Borrowers in favor of ING Capital in the
principal amount of $30,500,000.
3. FUNDING OF THE SUPPLEMENTAL COMMITMENT BY ING CAPITAL.
(a) Concurrently with the effectiveness of this Amendment, ING
Capital shall lend to the Borrowers, in a single advance, a Supplemental
Loan in the amount of $19,854,798.89 (the "Initial Supplemental Loan").
The proceeds of the Initial Supplemental Loan shall be used by the Company
(i) first, to repay in full the obligations of the Company to ING Capital
under the Credit Agreement dated July 10, 1998 between the Company and ING
Capital, and (ii) second, to repay outstanding Loans under the Domestic
Commitment.
(b) Concurrently with the effectiveness of this Amendment, those
letters of Credit described on Exhibit L, in the aggregate effective face
amount of $10,645,201.11, shall be deemed to have been issued under the
Supplemental Commitment (rather than the Domestic Commitment). Each
drawing under any Supplemental Letters of Credit issued from time to time
hereunder shall be deemed to be a Supplemental Loan.
(c) In the event that, prior to the payment in full and in cash of
all of the Obligations under the Domestic Commitment and the UK Commitment,
the aggregate credit exposure of the Supplemental Lenders with respect to
the Supplemental Obligations is effectively reduced to a principal amount
which is less than
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$30,500,000, whether by reason of the expiration of any Supplemental Letter
of Credit, the reduction of the amount available for drawing thereunder, or
otherwise then the Supplemental Lenders shall, in each case to the extent
of the reduction:
(i) ratably participate in new Supplemental Letters of Credit
issued for the account of the Domestic Borrowers; or
(ii) ratably participate in Letters of Credit previously
issued under the Domestic Commitment (which shall, to the extent of
such participation, be deemed to be Supplemental Letters of Credit)
and the participation of the Lenders under the Domestic Commitment
shall be likewise reduced; or
(iii) make additional Supplemental Loans in Dollars, the
proceeds of which shall be used to reduce the outstanding principal
amount of the Loans under the Domestic Commitment;
PROVIDED that in no event shall the SUM of the principal amount of the
outstanding Supplemental Loans PLUS the aggregate effective face amount of
all Supplemental Letters of Credit exceed $30,500,000.
(d) All Obligations under the Supplemental Commitment, including all
principal, all interest, fees and other amounts payable with respect
thereto and all reimbursement obligations of the Company and its Restricted
Subsidiaries with respect to the Supplemental Letters of Credit, shall be
subordinated to the other Obligations in the manner and to the extent set
forth in the Subordination Agreement.
(e) The Supplemental Loans and the reimbursement obligations
of the Borrowers with respect to the Supplemental Letters of Credit shall
be evidenced by the Supplemental Loan Note, which shall be deemed to be one
of the "Notes" described in the Loan Agreement.
(f) The principal amount of the Supplemental Loans shall be due and
payable on December 31, 2002 (the "Supplemental Maturity Date"), PROVIDED
that in the event that the Maturity Date is hereafter extended, then the
Supplemental Maturity Date shall be automatically extended to the date
which is 91 days following the new Maturity Date. Interest shall accrue
with respect to the Supplemental Loans at the same rates, and shall be
payable on the same dates as interest accrues and is payable with respect
to other Loans under the Loan Agreement. Each of the fees payable with
respect to Letters of Credit under Section 3.4 of the Loan Agreement shall
be payable with respect to the Supplemental Letters of Credit, PROVIDED
THAT such fees shall be for the sole account of the Supplemental Lenders.
Without the consent of ING Capital, no Supplemental Letter of Credit shall
have a term which exceeds the Supplemental Maturity Date.
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(g) ING Capital, the Company and Borrowers agree that no prepayments
of principal shall be made with respect to the Supplemental Loans unless
and until the other Obligations have been repaid in full and in cash. No
Supplemental Letter of Credit shall be treated as usage under the Domestic
Commitment or usage of the sublimit for Letters of Credit under the
Domestic Commitment and the UK Commitment. No Letter of Credit shall be
issued under the Domestic Commitment for the purpose of replacing, directly
or indirectly, any Supplemental Letter of Credit or to provide credit
support for any Supplemental Letter of Credit.
(h) The Supplemental Loans and the Supplemental Letters of Credit are
made and issued pursuant to the Loan Agreement, are "Obligations" (as
defined in the Loan Agreement) and shall be entitled to the benefit of the
Guaranties and the Collateral Documents to the same extent (although on a
subordinated basis pursuant to the Subordination Agreement) as the
Obligations under the Domestic Commitment).
(i) The Obligations under the Supplemental Commitment shall be
entitled to the exclusive benefit of the Sponsor Collateral, and the
Supplemental Lenders shall be entitled to release, reconvey, subordinate,
foreclose upon and otherwise deal with the Sponsor Collateral without the
consent of the other Lenders.
(j) No amendment, modification or waiver of the Supplemental Note,
the Supplemental Letters of Credit or this Section 3 shall be effective
without the consent of the Supplemental Lenders. In addition, without the
consent of the Supplemental Lenders, no amendment, modification or waiver
may be made of the terms of the Loan Documents which has the effect of:
(A) reducing the principal amount of the Supplemental
Obligations, requiring any extension of the maturity of the
Supplemental Obligations (except as described in Section 3(f) of this
Amendment), or reducing the interest rate or fees payable to the
Supplemental Lenders with respect to the Supplemental Obligations;
(B) releasing the Sponsor Collateral or any guarantee of the
Obligations; or
(C) releasing any collateral for the Obligations (except to
the extent that the same is (x) for fair value to any third party
unaffiliated to the Company, the Sponsors or the Lenders, as
determined by the Board of Directors of the Company or (y) approved by
the court in any relevant insolvency proceedings).
Except as set forth in this clause (j), no consent of the Supplemental
Lenders (except when constituting the Majority Lenders) shall be required
for the taking of any action requiring the consent of all the Lenders under
Section 12.2 of the Loan Agreement.
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(k) Notwithstanding anything to the contrary set forth in the Loan
Documents (including without limitation Section 10.2(e) of the Loan
Agreement) upon any foreclosure or other realization upon the Collateral
(other than the Sponsor Collateral), and upon any realization upon the
Guaranties, the other Obligations shall be paid in full and in cash prior
to the making of any payment therefrom with respect to the Supplemental
Obligations. No amendment, modification or waiver of the Subordination
Agreement shall be effective without the consent of all of the Lenders
affected thereby.
4. ADJUSTMENTS TO DOMESTIC ELIGIBLE RECEIVABLES. The Administrative
Agent and the Lenders hereby agree that the portion of the otherwise eligible
accounts receivable of GeoLogistics Americas and its Subsidiaries representing
prepaid customs duties and prepaid excise taxes paid by GeoLogistics Americas
and its Subsidiaries on account of their customers, shall not be reserved from
the Domestic Eligible Receivables, PROVIDED that Borrowers shall provide such
evidence as may be requested from time to time by the Administrative Agent of
such prepayment.
5. ADJUSTMENTS TO UK ELIGIBLE RECEIVABLES. The Administrative Agent and
the Lenders hereby agree that the portion of customs duties and excise taxes
payable to relevant Governmental Agencies of the United Kingdom, the payment of
which are supported by letters of credit or other forms of credit support (in
each case which are acceptable to the Administrative Agent in its sole
discretion), shall not be reserved from the amount of the UK Eligible
Receivables.
6. REVISIONS TO EBITDA COVENANT. Section 7.15 of the Loan Agreement is
hereby amended to read in full as follows:
"7.15 EBITDA. Permit EBITDA for the twelve month period ending on the
last day of any Fiscal Quarter to be less than the amounts set forth below
opposite that Fiscal Quarter or the period in which that Fiscal Quarter
occurs:
Fiscal Quarter Ending Amount
--------------------- ------
December 31, 1997 through and including
March 31, 1998 $18,000,000
June 30, 1998 through and including
December 31, 1998 $21,000,000
March 31, 1999 $22,500,000
June 30, 1999 $24,000,000
September 30, 1999 $27,000,000
December 31, 1999 $30,000,000
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March 31, 2000 through and including $24,000,000
September 30, 2000
December 31, 2000 through and including $29,000,000
September 30, 2001
December 31, 2001 and thereafter $32,000,000;
PROVIDED THAT (a) the amount set forth above with respect to each Fiscal
Quarter shall be reduced by that portion of EBITDA for the twelve month
period immediately preceding the last day of that Fiscal Quarter which is
attributable to any Subsidiaries of the Company which are the subject of a
Disposition or other sale permitted hereunder, and (b) for the purpose of
calculating compliance with this covenant, to the extent that such twelve
month period contains any period prior to September 30, 1997, EBITDA shall
be calculated as described on Schedule 7.15 to the extent set forth thereon
on a PRO FORMA basis for that period and (c) for each date of determination
during the period from and after December 31, 1998 to and including
December 31, 1999, for the purposes of calculating compliance with this
Section 7.15 only, EBITDA shall be calculated without reference to
GeoLogistics Americas, Inc."
7. REVISIONS TO INTEREST CHARGE COVERAGE RATIO COVENANT. Section 7.16 of
the Loan Agreement is hereby amended so that the matrix set forth therein reads
in full as follows:
"Fiscal Quarter Ending During the Period Ratio
---------------------------------------- -----
Closing Date through and
including September 30, 1998 2.00:1.00
December 31, 1998 1.00:1.00
March 31, 1999 1.10:1.00
June 30, 1999 1.20:1.00
September 30, 1999 1.30:1.00
December 31, 1999 1.40:1.00
March 31, 2000 through and
including September 30, 2000 2.00:1.00
December 31, 2000 and thereafter 2.25:1.00
PROVIDED that for each date of determination during the period from and
after December 31, 1998 to and including December 31, 1999, for the
purposes of calculating compliance with this Section 7.16 only, EBITDA
shall be calculated without reference to GeoLogistics Americas, Inc."
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8. INVESTMENTS AND ACQUISITIONS. During the period between the date of
this Amendment and the Release Date, Section 7.6 of the Loan Agreement shall be
deemed to read in full as follows (reverting to its former text on the Release
Date):
"7.6 INVESTMENTS AND ACQUISITIONS. Make any Acquisition or enter into any
agreement to make any Acquisition, or make or suffer to exist any
Investment which is not in existence on the date of this Agreement and
disclosed in Schedule 7.6 EXCEPT: (a) Investments consisting of Cash
Equivalents; (b) Investments by the Company in any Restricted Subsidiary
and by any Restricted Subsidiary in the Company or in any other Restricted
Subsidiary so long as any such investment is documented under a Drop-Down
Note or otherwise evidenced in a manner satisfactory to the Administrative
Agent; (c) Investments by any Borrower in its Active Subsidiaries or by the
Subsidiaries of any Active Subsidiary of the Company in such Active
Subsidiary, so long as any such Investment shall be documented under a
Drop-Down Note; (d) [reserved]; (e) [reserved]; and (f) Investments by the
Borrowers in Unrestricted Subsidiaries made following December 31, 1998
which are made when no Default or Event of Default has occurred and remains
continuing and after giving effect to which neither (i) Minimum
Availability is less than $10,000,000, nor (ii) the aggregate amount of all
Investments made pursuant to this clause (f) are in excess of $5,000,000.
Investments by, and Acquisitions made through, Unrestricted Subsidiaries
shall not in and of themselves be deemed to be Investments or Acquisitions
by the Company."
9. EBITDA OF GEOLOGISTICS AMERICAS. The Loan Agreement is hereby amended
to add a new Section 7.20 thereto, to read in full as follows:
"Permit the GeoLogistics Americas EBITDA for any period described in the
matrix below to be a greater deficit than the amount set forth below
opposite that Fiscal Quarter:
Fiscal Quarter Ending Amount
--------------------- ------
December 31, 1998 (for the 3 months then ending) [-$19,500,000]
March 31, 1999 (for the 3 months then ending) [-$9,000,000]
June 30, 1999 (for the 6 months then ending) [-$13,500,000]
September 30, 1999 (for the 9 months then ending) [-$19,000,000]
December 31, 1999 [-$22,000,000]
As used in this Section, "GeoLogistics Americas EBITDA" means EBITDA
calculated solely with reference to GeoLogistics Americas, Inc."
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10. TECHNICAL CORRECTIONS. Section 9.3 of the Loan Agreement is amended
so that the parenthetical set forth in the preamble to that Section reads in
full as follows:
"(unless the Majority Lenders (OR, IF REQUIRED BY SECTION 12.2, ALL OF THE
LENDERS), in their sole and absolute discretion, agree otherwise)"
Section 10.2(a)(i) of the Loan Agreement is amended to read in full as follows:
"(i) the commitment to make Loans and Advances or issue Letters of Credit
and all other obligations of the Creditors and all rights of the Company,
the Borrowers and any other Parties under the Loan Documents shall be
suspended without notice to or demand upon the Company or the Borrowers,
which are expressly waived by the Company and the Borrowers, EXCEPT that
the Majority Lenders (OR, IF REQUIRED BY SECTION 12.2, ALL OF THE LENDERS)
may waive the Event of Default or, without waiving, determine, upon terms
and conditions satisfactory to the Majority Lenders (OR, IF REQUIRED BY
SECTION 12.2, ALL OF THE LENDERS), to reinstate the Commitments and make
further Loans and Advances, which waiver or determination shall apply
equally to, and shall be binding upon, all the Lenders."
and Section 12.8 of the Loan Agreement is amended to add the following clause
(h) thereto:
"(h) Any Lender may at any time pledge its Note or any other instrument
evidencing its rights as a Lender under this Agreement to a Federal Reserve
Bank, but no such pledge shall release that Lender from its obligations
hereunder or grant to such Federal Reserve Bank the rights of a Lender
hereunder absent foreclosure of such pledge."
11. DECEMBER 31, 1998 QUARTERLY FINANCIAL STATEMENTS. The Lenders hereby
waive the late delivery of the Company's December 31, 1998 quarterly financial
statements and the related Compliance Certificate.
12. COMPLIANCE CERTIFICATES AND REQUESTS FOR LOANS. From and after the
date of this Amendment, each Compliance Certificate delivered by Borrowers under
the Loan Agreement shall be substantially in the form attached to this Amendment
as Exhibit A -1, and each Request for Loan submitted by Borrowers under the Loan
Agreement shall be substantially in the form attached to this Amendment as
Exhibit A-2.
13. CAS EBITDA. The Lenders hereby agree that, for the purpose of
calculating EBITDA for any fiscal period, GeoLogistics Air Services, Inc.
(including its predecessor corporation, Caribbean Air Services, Inc.) shall be
deemed to have been a Subsidiary of Borrowers for the entirety of that fiscal
period, and its results of operations shall be included in the calculation of
EBITDA for that fiscal period.
14. JOINDER AND ASSUMPTION BY BEKINS VAN LINES, LLC AND GEOLOGISTICS
NETWORK SOLUTIONS, INC. By this Amendment, each of the existing Borrowers
designates Bekins Van Lines, LLC, a Delaware limited liability company ("New
Bekins") and GeoLogistics Network
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Solutions, Inc., a Delaware corporation ("Network Solutions"), as additional
Domestic Borrowers under the Agreement. New Bekins and Network Solutions each
hereby join in the Loan Agreement as additional Domestic Borrowers, and join in
and assume each of the representations, warranties and covenants applicable to
the other Domestic Borrowers, and will be subject to the other terms,
conditions, and duties applicable to the other Domestic Borrowers. Without
limitation on the foregoing, New Bekins, Network Solutions and each other
Borrower agrees that:
(i) New Bekins and Network Solutions shall be obligated with
respect to the Obligations under the Domestic Commitment as additional
joint and several co-borrowers, and not merely as a surety;
(ii) the Domestic Borrowing Base formerly applicable to BVL shall
be separately reported for Bekins Van Lines Co. ("Old Bekins"), New Bekins
and Network Solutions (which shall limit the advances to each such Persons
in accordance with the terms of the Loan Agreement).
15. CONDITIONAL COVENANTS AND DEFAULTS. (a) Until the Release Date,
Borrowers shall observe the following covenants (in addition to those set forth
in the Loan Documents):
(i) The Company, Borrowers and their Subsidiaries shall not make
any payment to the Sponsors or their respective Affiliates under any
Management Agreement, or make any Distribution or other payment with
respect to any Investment of such Persons in the Indebtedness or equity
securities of the Company and its Subsidiaries existing on the date of this
Amendment, PROVIDED that (A) such amounts may continue to accrue at the
rates presently provided for in the Management Agreement, (B) amounts so
accrued will not reduce net income for the purposes of calculating EBITDA
unless and until actually paid, (C) notwithstanding this clause (i),
amounts due and payable under the Management Agreement may be paid
(including accrued amounts) if, giving effect to the making of such
payments, the then current Single Week Availability is not less than
$30,000,000, and (D) this clause (i) shall not apply to any subrogation
rights of the Sponsors in respect of the Supplemental Commitment.
(ii) Without limitation on the inspection rights set forth in
Section 6.6 of the Loan Agreement and the other similar rights provided by
the Loan Documents, the Company and its Restricted Subsidiaries shall
permit the Administrative Agent to conduct, at the sole expense of the
Company and its Subsidiaries, quarterly audits of the type described on
Exhibit B hereto.
(iii) In addition to the monthly Borrowing Base Certificates
otherwise required by the Loan Agreement (the revised form of which (A) is
attached hereto as Exhibit C, (B) shall amend and restate Exhibit A to the
Loan Agreement in full and (C) shall, by this reference, become Exhibit A-1
to the Loan Agreement), the Borrowers shall submit on a weekly basis, not
later than 5:00 p.m. (New York time)
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the second Business Day of each week, a completed Borrowing Base
Certificate demonstrating the Borrowing Base as of the last Business Day of
the preceding calendar week in the form of Exhibit D to this Amendment
(which, by this reference, shall become Exhibit A-2 to the Loan Agreement).
Until the Release Date, the sole purpose of the monthly Borrowing Base
Certificates shall be to establish the eligibility criteria for the
intervening weekly Borrowing Base Certificates and the Borrowing Base shall
be calculated with reference to the weekly Borrowing Base Certificates in
the manner described in the weekly Borrowing Base Certificate. Each
reference in the Loan Documents to a monthly Borrowing Base Certificate or
to the monthly calculation of the Borrowing Base shall be deemed to refer
instead to a weekly period and the amount of Loans and Letters of Credit
available to the Borrowers under the Domestic Commitment and the UK
Commitment shall be determined with reference to the most recent weekly
Borrowing Base Certificate. It is further agreed that in the event that
weekly Borrowing Base Certificates are required pursuant to Section 8.3 of
the Loan Agreement, the timing of the delivery thereof shall be as set
forth in this Section.
(iv) If, as of any Weekly Test Date (the "First Test Date"), Single
Week Availability is less than $10,000,000, then Borrowers shall not permit
Single Week Availability to be less than $10,000,000 as of the next Weekly
Test Date UNLESS during the ten Business Days following the First Test
Date, the Company shall have received new cash equity contributions (or
unsecured Indebtedness which is then permitted by the Indenture), in an
amount which is not less than the shortfall in Single Week Availability as
of the First Test Date. Any failure of the Borrowers to conform to the
requirements of this clause (iv) shall constitute an immediate Event of
Default under the Loan Agreement, without the requirement of any notice or
of a period of grace. It is hereby agreed that no amendment, modification
or waiver of the provisions of this clause (iv) shall be effective without
the prior written consent of each of the Lenders.
As used in this Section, the following terms have the meanings set forth after
each:
"AVAILABILITY" means, as of each date of determination, the difference
between (a) the aggregate outstanding principal amount of the Loans (other
than the Supplemental Loan) PLUS the aggregate effective face amount of all
Letters of Credit (other than the Supplemental Letters of Credit), and (b)
the LESSER of (i) the sum of the Domestic Borrowing Bases and the UK
Borrowing Base (as set forth in the relevant weekly Borrowing Base
Certificate), and (ii) the then effective amount of the Domestic
Commitment.
"BORROWING BASE WEEK" means the period beginning on the third Business Day
of each calendar week and ending on the second Business Day of the
succeeding calendar week.
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"SINGLE WEEK AVAILABILITY" means, as of each Weekly Test Date, the
arithmetic average Availability of the close of business on each Business
Day during that Borrowing Base Week.
"WEEKLY TEST DATE" means the second Business Day of each calendar week.
16. CONFIRMATION OF PARTICIPATION AGREEMENT. Each of the Lenders confirms
that the Participation Agreement remains in full force and effect and applies to
the Loan Agreement, as amended hereby.
17. REPRESENTATION. Borrowers represent and warrant that (a) except to
the extent cured hereby, no Default or Event of Default has occurred and remains
continuing, (b) attached hereto as Exhibit E is a true, correct list of the
currently effective legal names of the Company and each of its Restricted
Subsidiaries which are Active Subsidiaries (designating after each, the former
names, if any thereof), designating after each the locations of the chief
executive offices of each such Person, and (c) attached hereto as Exhibit F is a
true and correct list of all locations in which the Company, the Domestic
Borrowers and their Restricted Subsidiaries have any material tangible assets.
18. CONDITIONS PRECEDENT. The following shall be conditions precedent to
the effectiveness of this Amendment:
(a) Each of the guarantors of the obligations of Borrowers
under the Loan Agreement shall have consented hereto in writing.
(b) Borrowers shall have paid to the Administrative Agent,
for the ratable account of the Lenders in accordance with their respective
Pro Rata Shares (as in effect immediately prior to the effectiveness of
this Amendment), an amendment fee of $375,000.
(c) The Administrative Agent shall have received written
consents to its execution and delivery of this Amendment from each of the
Lenders.
(d) William E. Simon & Sons, LLC, Oaktree Capital
Management LLC and TCW Special Credits Fund V - The Principal Fund shall
have executed the letter attached hereto as Exhibit G.
(e) The Company, the Borrowers and each Restricted
Subsidiary (other than LEP UK) shall have executed and delivered to the
Administrative Agent a Security Agreement in the form of Exhibit H-1
together with such Uniform Commercial Code financing statements as the
Administrative Agent may request and a Trademark Assignment Agreement in
the form of Exhibit H-2.
(f) The Company, the Borrowers and ING Capital shall have
executed the Subordination Agreement attached hereto as Exhibit I in
sufficient
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numbers counterparts for the delivery of an original counterpart thereof to
each Lender, and the affiliates of the Sponsors providing the Sponsor
Collateral shall have executed a sideletter in the form of Exhibit J
hereto.
(g) The Sponsors shall have caused the delivery of the
Sponsor Collateral to ING Capital pursuant to documentation which is in a
form acceptable to ING Capital.
(h) The Administrative Agent and the Lenders shall have
received the favorable written legal opinion of Milbank, Tweed, Hadley &
McCloy in the form attached to this Amendment as Exhibit K.
19. VEHICLE TITLES. Within 120 days following the effective date of this
Amendment, the Company and its Restricted Subsidiaries shall deliver to the
Administrative Agent in pledge vehicle titles or other similar instruments with
respect to all vehicles owned by the Company and its Restricted Subsidiaries,
PROVIDED that the Company may request 30 day extensions of this period at any
time to accommodate the proposed sale of any such Collateral, which may be
granted by the Administrative Agent in its discretion following not less than
five Business Days notice to the Lenders unless the Requisite Lenders object
thereto prior to the end of such five Business Day period.
20. CONFIRMATION. This Amendment is one of the Loan Documents.
Borrowers confirm that, except to the extent expressly modified hereby, the
terms of the Loan Documents are hereby confirmed.
[THIS SPACE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above by their duly authorized representatives.
GEOLOGISTICS CORPORATION
By: /s/ Terry G. Clarke
--------------------------------------------
Terry G. Clarke, Treasurer
THE BEKINS COMPANY
GEOLOGISTICS SERVICES, INC. (formerly Matrix International Logistics, Inc.)
ILLCAN, INC.
ILLSCOT, INC.
GEOLOGISTICS AMERICAS, INC. (formerly LEP Profit International, Inc.)
BEKINS VAN LINES, LLC
and
GEOLOGISTICS NETWORK SOLUTIONS, INC.
By: /s/ Terry G. Clarke
--------------------------------------------
Terry G. Clarke, Assistant Treasurer of each
of the foregoing
BEKINS VAN LINES CO.
By: /s/ Terry G. Clarke
--------------------------------------------
Terry G. Clarke, Assistant Treasurer
GEOLOGISTICS LIMITED (formerly LEP International Limited)
By: /s/ Ronald Jackson
--------------------------------------------
Ronald Jackson, Assistant Secretary
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LENDERS:
ING (U.S) CAPITAL, LLC formerly known as
ING (U.S.) CAPITAL CORPORATION,
individually and as Administrative Agent
By: /s/ Michael W. Adler
-----------------------------------
Michael W. Adler, Managing Director
ING BANK, N.V. (London Branch),
as primary lender under the UK Commitment
but not as a "Lender"
By: /s/ Francis Burkitt
-----------------------------------
Francis Burkitt, Director - Banking
By: /s/ A.M. Precious
-----------------------------------
A.M. Precious, Assistant Director
The undersigned hereby consent to the foregoing amendment and confirm that their
guarantees of the Obligations under the Loan Agreement described above remain in
full force and effect.
LIW HOLDINGS CORP.
GEOLOGISTICS CO.
LEP FAIRS, INC.
BAY AREA MATRIX, INC.
L.A. MATRIX, INC.
SOUTHWEST MATRIX, INC.
MATRIX CT, INC.
AIR FREIGHT CONSOLIDATORS INTERNATIONAL, INC.
and
GEOLOGISTICS AIR SERVICES, INC.
By: /s/ Terry G. Clarke
-----------------------------------
Terry G. Clarke, Assistant Treasurer of each of the foregoing
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Exhibit A - Revised Compliance Certificate
Exhibit B - Collateral Audit Scope Description
Exhibit C - Form of Monthly Borrowing Base Certificate
Exhibit D - Form of Weekly Borrowing Base Certificate
Exhibit E - The Company and its Restricted Subsidiaries
Exhibit F - Location of Material Tangible Assets
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