Loan Agreement - Vastera Inc. and PNC Bank NA
EXECUTION COPY
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "AGREEMENT"), is entered into as of March 5,
1999 (the "CLOSING DATE"), by and between VASTERA INC., a Delaware corporation
(the "BORROWER"), and PNC BANK, NATIONAL ASSOCIATION, (the "BANK").
The Borrower and the Bank, with the intent to be legally bound, agree
as follows:
1. LOAN. The following loan and credit facilities (collectively referred
to as the "LOAN"), shall be subject to and governed by this Agreement:
$2,500,000 Secured Revolving Credit Facility ("REVOLVING CREDIT")
$1,500,000 Equipment Line of Credit ("EQUIPMENT LINE")
The aggregate maximum availability of the Loan shall be $4,000,000. The proceeds
of the Revolving Credit shall be used for general corporate and working capital
purposes and support of stand-by letters of credit. The proceeds of the
Equipment Line shall be used only for the purpose of acquiring computer
equipment, software and furniture, fixtures and office equipment.
2. TERMS AND CONDITIONS. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, the
Bank agrees to make the Loan available to the Borrower at any time or
from time to time on or after the date hereof in accordance with the
terms of this Agreement.
The credit facility shall consist of the components set forth in
Section 1 hereof in accordance with the following terms:
2.1. EXPIRATION DATE.
(a) REVOLVING CREDIT. Eighteen (18) months from the date
of the closing of this Agreement ("CLOSING DATE"), or on such
subsequent anniversary of the Closing Date as the parties
hereto may agree (the "REVOLVING CREDIT EXPIRATION DATE").
(b) EQUIPMENT LINE. Thirty (30) months from the, date of
the final draw under the Equipment Line. Borrower shall make
no more than four (4) quarterly draws under the Equipment
Line, which draws must be requested and made within the twelve
(12) month period immediately following the Closing Date (the
"EQUIPMENT LINE EXPIRATION DATE").
2.2. INTEREST RATES. Interest shall be calculated on the basis of a
360-day year for the actual number of days elapsed. The
interest rate applicable to the Obligations (as defined below)
shall change on each date there is a change in the Revolving
Credit Base Rate or Equipment Line Base Rate determined as
follows:
1
<PAGE>
(a) REVOLVING CREDIT. The Revolving Credit Base Rate
shall equal the Prime Rate plus 0.75%. "PRIME RATE" means the
rate announced from time to time by Bank as its "prime rate;"
it is a base rate, upon which other rates charged by the Bank
are based, and it is not necessarily the best rate offered by
the Bank.
(b) EQUIPMENT LINE. The Equipment Line Base Rate shall
equal the Prime Rate plus 0.85%.
2.3. FACILITY FEE. The Borrower shall pay to the Bank on the
Closing Date a facility fee of $10,000 (0.25% of the aggregate
availability of the Loan maximum).
2.4. BORROWING BASE/AVAILABILITY. (a) Subject to the limitations of
Section 2.4(b) below, the Revolving Credit shall be available
in amounts determined in accordance with the Borrowing Base
Rider in the form attached hereto as Exhibit A. Advances under
the Equipment Line shall be limited to 90DEG./a of the face
amount of equipment invoices (excluding taxes, shipping and
installation) submitted with any Loan Request (as providEd
below in Section 2.5), not to exceed $1,500,000 in the
aggregate.
(b) The Bank may from time to time during the period
beginning on the Closing Date and ending on the Revolving
Credit Expiration Date, upon request of the Borrower, issue
Letters of Credit for the account of the Borrower (the
"LETTERS OF CREDIT") in such face amounts as the Borrower may
request, but not to exceed, when added to the amount of all
outstanding Letters of Credit and all amounts outstanding
under the Revolving Credit, the amount of $2,500,000.
The face amount of all Letters of Credit issued and
outstanding hereunder shall reduce dollar for dollar the
amount available for borrowing under the Revolving Credit, and
all payments made by the Bank (or by any other issuing Bank)
on such Letters of Credit shall be considered as advances
under the Revolving Credit.
The obligations of the Bank on such Letters of Credit shall be
secured by all of the Collateral. Each Letter of Credit issued
for the account of the Borrower hereunder shall (i) be in
favor of such beneficiaries as specifically requested by the
Borrower; (ii) have an expiration date not exceeding one (1)
year from the date of their issuance unless a longer term is
agreed to by the Bank as requested by the Borrower, but in no
event shall the Bank be obligated to issue a Letter of Credit
with an expiration date which extends beyond the Revolving
Credit Expiration Date; and (iii) contain such other terms and
provisions as may be required by the Bank.
In the event at the Revolving Loan's Maturity Date there are
outstanding Letters of Credit with expiration dates beyond the
Revolving Credit Expiration Date, the Borrower and the Bank
agree that all of the Collateral pledged to secure the
2
<PAGE>
Note and the other obligations of the Borrower hereunder and
under the other documents executed in connection herewith,
shall continue to secure the obligations of the Borrower to
the Bank or other issuing Bank on such outstanding Letters of
Credit until such time as either (a) all such Letters of
Credit have expired by their terms; or (b) the Bank or other
issuing Bank has received indemnification from a party
satisfactory to the Bank or the other issuing Bank, as the
case may be, as to Borrower's obligations under any such
outstanding Letters of Credit.
2.5. REQUESTS. Except as otherwise provided herein, the Borrower
may from time to time prior to the applicable Revolving Credit
Expiration Date or Equipment Line Expiration Date request the
Bank to make a Loan under the Revolving Credit or Equipment
Line by delivering to the Bank, not later than 12:00 Noon,
Eastern Standard time a request by telephone immediately
confirmed in writing by letter, facsimile or telex in such
form (a "LOAN REQUEST"), it being understood that the Bank may
rely on the authority of any individual making such a
telephonic request without the necessity of receipt of such
written confirmation. Each Loan Request shall be irrevocable
and shall specify (a) the proposed borrowing date; and (b) the
aggregate amount of the proposed borrowing hereunder. If the
Loan Request is made under the Revolving Credit, it shall be
accompanied by the most recent Borrowing Base Certificate
prepared by the Borrower. If the Loan Request is made under
the Equipment Line, it shall be accompanied by invoices for
equipment acquisitions.
2.6. PROMISSORY NOTE. The Obligation of the Borrower to repay the
aggregate unpaid principal amount of the Revolving Credit and
the Equipment Line, together with interest thereon, shall be
evidenced by a promissory note of the Borrower ("NOTE")
payable to the order of the Bank in a face amount equal to the
maximum amount of the Revolving Credit and the Equipment Line.
2.7. LOCKBOX. Within thirty (60) days from the date of this
Agreement, the Borrower shall establish a lockbox at the Bank
to which account debtors of the Borrower will submit all
payments in respect of the Borrower's accounts receivable,
provided, however, that any notices directing the Borrower's
customers to pay to the lockbox shall, in the absence of any
fraud or cessation of business by the Borrower be sent in the
name of the Borrower, shall indicate only that the Borrower
has a new post office box and shall not indicate that the
lockbox is under the Bank's control.
3. SECURITY. The security for repayment of the Loan shall include but not
be limited to the collateral, guaranties and other documents
heretofore, contemporaneously or hereafter executed and delivered to
the Bank (the "SECURITY DOCUMENTS"), which shall secure repayment of
the Loan and the Note and any amendments, extensions, renewals or
increases and all costs and expenses of the Bank incurred in the
documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including but not
limited to reasonable attorneys' fees and expenses (hereinafter
referred to collectively as the "OBLIGATIONS"). This Agreement
(including the Addendum and any Riders thereto), the Note and the
Security Documents are collectively referred to as the "LOAN
DOCUMENTS".
3
<PAGE>
4. REPRESENTATIONS AND WARRANTIES. The Borrower makes the following
representations and warranties to the Bank which shall be true and
correct as of the date of this Agreement and the date of the making of
a Loan, and which shall be true and correct except as otherwise set
forth on the Addendum attached hereto and incorporated herein by
reference (the "ADDENDUM").
4.1. EXISTENCE, POWER AND AUTHORITY. The Borrower is duly
organized, validly existing and in good standing under the
laws of the State of its incorporation or organization and has
the power and authority to own and operate its assets and to
conduct its business as now or proposed to be carried on, and
is duly qualified, licensed and in good standing to do
business in all jurisdictions where its ownership of property
or the nature of its business requires such qualification or
licensing, except where the failure to be so qualified or
licensed would not have a material adverse effect on the
business, operations or financial condition of the Borrower.
The Borrower is duly authorized to execute and deliver the
Loan Documents, all necessary action to authorize the
execution and delivery of the Loan Documents has been properly
taken, and the Borrower is and will continue to be duly
authorized to borrow under this Agreement and to perform all
of the other terms and provisions of the Loan Documents.
4.2. FINANCIAL STATEMENTS.
(a) The Borrower has delivered or caused to be delivered
to the Bank its consolidated balance sheet and income
statement for the three month period ended December 31, 1998
(the "HISTORICAL FINANCIAL STATEMENTS"). The Historical
Financial Statements are true, complete and accurate in all
material respects and fairly present the consolidated
financial condition, assets and liabilities, whether accrued,
absolute, contingent or otherwise and the result of Borrower's
operations for the period specified therein. The Historical
Financial Statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently
applied from period to period subject in the case of interim
statements to normal year-end adjustments and to any comments
and notes acceptable to the Bank.
(b) The Borrower has delivered to the Bank projections of
its anticipated financial performance for the period beginning
on January 1, 1999 and continuing through December 31, 1999
(the "FINANCIAL PROJECTIONS").
4.3. NO MATERIAL ADVERSE CHANGE. Since the date of the Historical
Financial Statements, the Borrower has not suffered any
material damage, destruction or loss to its assets, and no
event or condition has occurred or exists, which has resulted
or could reasonably be expected to result in a material
adverse change in its business, assets, operations, financial
condition or results of operation. Since the preparation of
the Financial Projections, there has been no material adverse
change as against such Financial Projections
4
<PAGE>
4.4. BINDING OBLIGATIONS. The Borrower has full power and authority
to enter into the transactions provided for in this Agreement
and has been duly authorized to do so by appropriate action of
its Board of Directors; and the Loan Documents, when executed
and delivered by such Borrower, will constitute the legal,
valid and binding obligations of such Borrower enforceable in
accordance with their terms.
4.5. NO DEFAULTS OR VIOLATIONS. There does not exist any Event of
Default under this Agreement or any material default or
violation by the Borrower of or under any of the terms,
conditions or obligations of (i) its articles or certificate
of incorporation, regulations or bylaws; (ii) any material
indenture, mortgage, deed of trust, franchise, permit,
contract, agreement, or other instrument to which it is a
party or by which it is bound; or (iii) any material law,
regulation, ruling, order, injunction, decree, condition or
other requirement applicable to or imposed upon it by any law,
the action by any court or any governmental authority or
agency; and the consummation of this Agreement and the
transactions set forth herein will not result in any such
default or violation.
4.6. TITLE TO ASSETS. The Borrower has valid title to its assets
reflected on the Historical Financial Statements, free and
clear of all liens and encumbrances, except for (i) current
taxes and assessments not yet due and payable, (ii) liens and
encumbrances, if any, reflected or noted in the Historical
Financial Statements, (iii) assets disposed of by such
Borrower in the ordinary course of business since the date of
the Historical Financial Statements, and (iv) those liens or
encumbrances specified on the Addendum.
4.7. LITIGATION. There are no actions, suits, proceedings or
governmental investigations pending or, to the Borrower's
knowledge, threatened against the Borrower, which could
reasonably be expected to result in a material adverse change
in its business, assets, operations, financial condition or
results of operations and there is no basis reasonably known
to the Borrower for any action, suit, proceedings or
investigation which could reasonably be expected to result in
such a material adverse change. All pending or threatened
litigation against the Borrower of which the Borrower has
knowledge is listed on the Addendum.
4.8. TAX RETURNS. The Borrower has filed all returns and reports
that are required to be filed in connection with any federal,
state or local tax, duty or charge levied, assessed or imposed
upon it or its property or withheld by it, including
unemployment, social security and similar taxes and all of
such taxes, have been either paid or adequate reserves or
other provisions have been made.
4.9. EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which
the Borrower may have any liability complies in all material
respects with all applicable provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA"), including
minimum funding requirements, and (i) no Prohibited
Transaction (as defined under ERISA) has occurred with
5
<PAGE>
respect to any such plan, (ii) no Reportable Event (as defined
under Section 4043 of ERISA) has occurred with respect to any
such plan which would cause the Pension Benefit Guaranty
Corporation to institute proceedings under Section 4042 of
ERISA, (iii) the Borrower has not withdrawn from any such plan
or initiated steps to do so, and (iv) no steps have been taken
to terminate any such plan.
4.10. ENVIRONMENTAL MATTERS. The Borrower is in compliance, in all
material respects, with all Environmental Laws, including,
without limitation, all Environmental Laws in jurisdictions in
which the Borrower owns or operates, or has owned or operated,
a facility or site, stores Collateral, arranges or has
arranged for disposal or treatment of hazardous substances,
solid waste or other waste, accepts or has accepted for
transport any hazardous substances, solid waste or other
wastes or holds or has held any interest in real property or
otherwise. Except as otherwise disclosed on the Addendum, no
litigation or proceeding arising under, relating to or in
connection with any Environmental Law is pending or, to the
best of the Borrower's knowledge, threatened against the
Borrower, any real property which the Borrower holds or has
held an interest or any past or present operation of the
Borrower. No release, threatened release or disposal of
hazardous waste, solid waste or other wastes is occurring, or
to the best of the Borrower's knowledge has occurred, on,
under or to any real property in which the Borrower holds any
interest or performs any of its operations, in material
violation of any Environmental Law. As used in this Section,
"LITIGATION OR PROCEEDING" means any demand, claim notice,
suit, suit in equity, action, administrative action,
investigation or inquiry whether brought by a governmental
authority or other person, and "ENVIRONMENTAL LAWS" means all
provisions of laws, statutes, ordinances, rules, regulations,
permits, licenses, judgments, writs, injunctions, decrees,
orders, awards and standards promulgated by any governmental
authority concerning health, safety and protection of, or
regulation of the discharge of substances into, the
environment.
4.11. INTELLECTUAL PROPERTY. The Borrower owns or, to the best of
Borrower's knowledge, has the right to use all patents, patent
rights, trademarks, trade names, service marks, copyrights,
intellectual property, technology, know-how and processes
necessary for the conduct of its business as currently
conducted that are material to the condition (financial or
otherwise), business or operations of the Borrower.
4.12. REGULATORY MATTERS. No part of the proceeds of the Loan will
be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms
under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time in effect or for
any purpose which violates the provisions of the Regulations
of such Board of Governors.
4.13. SOLVENCY. As of the date hereof and after giving effect to the
transactions contemplated by the Loan Documents, the Borrower
will have sufficient cash flow to enable it to pay its debts
as they mature.
6
<PAGE>
4.14. DISCLOSURE. None of the Loan Documents contains any untrue
statement of material fact or omits to state a material fact
necessary in order to make the statements contained in this
Agreement or the Loan Documents not misleading. There is no
fact known to the Borrower which materially adversely affects
or, to the best knowledge of the Borrower, might materially
adversely affect the business, assets, operations, financial
condition or results of operation of the Borrower and which
has not otherwise been fully set forth in this Agreement or in
the Loan Documents.
4.15. YEAR 2000. The Borrower has reviewed the areas within its
business and operations which could be adversely affected by,
and has developed or is developing a program to address on a
timely basis the risk that certain computer applications used
by the Borrower may be unable to recognize and perform
properly date-sensitive functions involving dates prior to and
after December 31, 1999 (the "YEAR 2000 PROBLEM"). The Year
2000 Problem will not have, and is not reasonably expected to
have, a material adverse effect on the business, assets,
operations or financial conditions of the Borrower.
5. AFFIRMATIVE COVENANTS. The Borrower agrees that from the date of
execution of this Agreement until all Obligations have been fully paid
and any commitments of the Bank to the Borrower have been terminated,
the Borrower will:
5.1. BOOKS AND RECORDS. Maintain books and records in accordance
with GAAP and give representatives of the Bank access thereto
at all reasonable times following notice from the Bank,
including permission to examine, copy and make abstracts from
any of such books and records and such other information as
the Bank may from time to time reasonably request, and the
Borrower will make available to the Bank for examination
copies of any reports, statements or returns which the
Borrower may make to or file with any governmental department,
bureau or agency, federal or state.
5.2. INTERIM FINANCIAL STATEMENTS; CERTIFICATE OF NO DEFAULT;
ACCOUNTS RECEIVABLE. Furnish the Bank within 15 days after the
end of each month a detailed report on its accounts receivable
in such reasonable detail consistent with the form currently
used by the Borrower's management. A copy of the most recently
prepared such form is attached hereto as EXHIBIT B. The
Borrower shall also provide within 30 days of the end of each
month its Financial Statements (as defined hereinafter) for
such period, in reasonable detail, .certified by the
president, chief executive officer or chief financial officer
of the Borrower and prepared in accordance with GAAP applied
from period to period. The Borrower shall also deliver, within
30 days of the end of each quarter, a certificate signed by
such officer which verifies compliance with applicable
financial covenants for the period then ended and whether any
Event of Default exists, and, if so, the nature thereof and
the corrective measures the Borrower proposes to take.
"FINANCIAL STATEMENTS" means the Borrower's consolidated and,
if required by the Bank in its reasonable discretion,
consolidating balance sheets, income statements and statements
of cash flows for the year, month or (excepting statements of
cash
7
<PAGE>
flows) quarter together with year-to-date figures and
comparative figures for the corresponding periods of the prior
year.
5.3. ANNUAL FINANCIAL STATEMENTS. Furnish the Borrower's Financial
Statements to the Bank within 90 days after the end of each
fiscal year. Those Financial Statements will be prepared in
accordance with GAAP and audited by an independent certified
public accountant selected by the Borrower and reasonably
satisfactory to the Bank. Audited Financial Statements shall
contain the unqualified opinion of an independent certified
public accountant and its examination shall have been made in
accordance with GAAP consistently applied from period to
period. The Borrower will also provide filings made with any
regulatory authority, to the extent requested by the Bank, and
such other information reasonably requested by the Bank, from
time to time.
5.4. PAYMENT OF TAXES AND OTHER CHARGES. Pay and discharge in
accordance with past practice all indebtedness and pay when
due all taxes, assessments, charges, levies and other
liabilities imposed by government authorities upon the
Borrower, its income, profits, property or business, except
those which currently are being contested in good faith by
appropriate proceedings and for which the Borrower shall have
set aside adequate reserves in accordance with GAAP or made
other adequate provision with respect thereto acceptable to,
the Bank.
5.5. MAINTENANCE OF EXISTENCE, OPERATION AND ASSETS. Do all things
necessary to maintain, renew and keep in full force and effect
its organizational existence and all rights, permits and
franchises necessary to enable it to continue its business;
continue in operation in substantially the same manner as at
present; keep its properties in good operating condition and
repair; and make all necessary and proper repairs, renewals,
replacements, additions and improvements thereto.
5.6. INSURANCE. Maintain with financially sound and reputable
insurers, insurance with respect to its property and business
against such casualties and contingencies, of such types and
in such amounts as is customary for established companies
engaged in the same or similar business and similarly
situated. In the event of a conflict between the provisions of
this Section and the terms of any Security Documents relating
to insurance, the provisions in the Security Documents will
control.
5.7. COMPLIANCE WITH LAWS. Comply in all material respects with all
laws applicable to the Borrower and to the operation of its
business (including any statute, rule or regulation relating
to employment practices and pension benefits or to
environmental, occupational and health standards and
controls).
5.8. BANK ACCOUNTS. Establish and maintain at the Bank or at an
affiliate of the Bank all of the Borrower's main depository
accounts.
8
<PAGE>
5.9. FINANCIAL COVENANTS. Comply with all of the financial and
other covenants, if any, set forth on the Addendum, subject to
all applicable cure periods set forth herein.
5.10. ADDITIONAL REPORTS. Provide prompt written notice to the Bank
of the occurrence of any of the following of which the
Borrower obtains knowledge (together with a description of the
action which the Borrower proposes to take with respect
thereto): (i) any Event of Default, (ii) any litigation filed
by or against the Borrower, (iii) any Reportable Event or
Prohibited Transaction with respect to any Employee Benefit
Plan(s) (as defined in ERISA) or (iv) any event which might
reasonably be expected to result in a material adverse change
in the business, assets, operations, financial condition or
results of operation of the Borrower.
6. NEGATIVE COVENANTS. The Borrower covenants and agrees that from the
date of execution of this Agreement until all Obligations have been
fully paid and any commitments of the Bank to the Borrower have been
terminated, the Borrower will not, except as set forth in the Addendum,
without the prior written consent of the Bank, which will not be
unreasonably withheld or delayed:
6.1. INDEBTEDNESS. Incur any indebtedness for borrowed money other
than: (i) the Loan and any subsequent indebtedness to the
Bank; (ii) existing indebtedness disclosed on the Borrower's
Historical Financial Statements; (iii) additional indebtedness
(including capital leases) in an amount not to exceed in the
aggregate at any time Five Hundred Thousand Dollars
($500,000); or (iv) such payables incurred in the ordinary
course of business.
6.2. LIENS AND ENCUMBRANCES. Except as provided in Section 4.6,
create, assume or permit to exist any mortgage, pledge,
encumbrance or other security interest or lien upon any assets
now owned or hereafter acquired or enter into any lease or any
arrangement for the acquisition of property subject to any
conditional sales agreement, other than indebtedness permitted
under Section 6.1.
6.3. GUARANTEES. Guarantee, endorse or voluntarily become
contingently liable for the obligations of any person, firm or
corporation, except in connection with the endorsement and
deposit of checks in the ordinary course of business for
collection and letters of credit issued for the account of the
Borrower in the ordinary course of business.
6.4. LOANS OR ADVANCES. Purchase or hold beneficially any stock,
other securities or evidences of indebtedness of any loans
(except trade credit on usual and customary business terms
incurred in the ordinary course of business and loans to
employees of up to Two Hundred Fifty Thousand Dollars
($250,000) in the aggregate at any one time outstanding) or
advances to, or make any investment or acquire any interest
whatsoever in, any other person, firm or corporation, except
transfers to subsidiaries or affiliates and investments made
pursuant to a treasury management program approved by the
Borrower's Board of Directors as now in
9
<PAGE>
effect, in each case consistent with the Borrower's past
business practice or investments disclosed on the Historical
Financial Statements or acceptable to the Bank.
6.5. MERGER OR TRANSFER OF ASSETS. Merge or consolidate with or
into any person, firm or corporation or, during any fiscal
year, lease, sell, transfer or otherwise dispose of property
or assets with an aggregate book value in excess of $100,000
(excluding the sale of inventory and obsolete or unused
equipment in the ordinary course of business), whether now
owned or hereafter acquired.
6.6. CHANCE IN BUSINESS, MANAGEMENT OR OWNERSHIP. Make or permit
any material change in the nature of its business as carried
on as of the date hereof, in the composition of its current
executive management (consisting of a change in either of the
Borrower's chief executive officer or chief financial
officer), or in its equity ownership other than (i) transfers
to heirs and beneficiaries of a stockholder upon the death of
a stockholder, (ii) in connection with a bona fide
underwritten initial public offering of the capital stock of
the Borrower, (iii) private offerings of the equity securities
of the Borrower approved by the Borrower's Board of Directors
and conducted in compliance with all applicable state and
federal securities laws, (iv) issuances of shares pursuant to
any employee stock option plan approved by the Company's Board
of Directors and/or (v) in connection with the repurchase from
employees of shares acquired through retirement plans and
repurchases of shares issued under the Borrower's existing
employee stock option plan or shares' pursuant to the exercise
of contractual rights of first refusal to repurchase its
shares.
6.7. DIVIDENDS. Declare or pay any dividends on or make any
distribution with respect to any class of its equity or
ownership interest, or purchase, redeem, retire or otherwise
acquire any of its equity other than the repurchase of shares
from employees acquired through stock option plans and
repurchase of shares pursuant to the exercise of contractual
rights of first refusal to repurchase its shares.
7. EVENTS OF DEFAULT. The occurrence of any of the following will be
deemed to be an "EVENT OF DEFAULT":
7.1. PAYMENT DEFAULT. The Borrower shall fail to pay any payment of
principal when due or any payment of interest within five (5)
business days following the date when due, in respect of the
Obligations.
7.2. MATERIAL ADVERSE CHANGE. There shall be a material adverse
change in the business, operations, assets, financial
condition or results of operations of the Borrower.
7.3. COVENANT DEFAULT. The Borrower shall default in the
performance of, or violate any of, the covenants or agreements
contained in this Agreement, which default shall not have been
cured within twenty (20) business days after the occurrence
thereof.
10
<PAGE>
7.4. BREACH OF WARRANTY. Any Financial Statement, representation,
warranty or certificate made or furnished by the Borrower to
the Bank in connection with this Agreement shall be materially
false, incorrect or incomplete when made.
7.5. BANKRUPTCY OR INSOLVENCY. A proceeding shall have been
instituted in a court having jurisdiction over the Borrower
seeking a decree or order for relief in respect of the
Borrower in an involuntary case under any applicable
bankruptcy, insolvency reorganization or other similar law and
such involuntary case shall remain undismissed or unstayed and
in effect for a period of sixty (60) consecutive days, or the
Borrower shall commence a voluntary case under any such law or
consent to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or
other similar official).
7.6. OTHER DEFAULT. The occurrence of an Event of Default as
defined in the Note or any of the Security Documents, or a
violation of any of the requirements set forth in the
Borrowing Base Rider.
Upon the occurrence of an Event of Default, and at any time thereafter, the Bank
may declare all Obligations hereunder immediately due and payable will have all
rights and remedies (which are cumulative and not exclusive) specified in the
Note and the Security Documents and available under applicable law or in equity
upon the delivery of prior written notice to the Borrower.
8. CONDITIONS. The Bank's obligation to make any advance under the Loan
shall be subject to the following conditions being satisfied as of the
date of the advance:
8.1. NO EVENT OF DEFAULT. No Event of Default or material event
which with the passage of time, provision of notice or both
would constitute an Event of Default shall have occurred and
be continuing.
8.2. AUTHORIZATION DOCUMENTS. The Borrower shall have furnished to
the Bank certified copies of resolutions of the board of
directors authorizing the execution of this Agreement, the
Note, and the Security Documents; or other proof of
authorization satisfactory to the Bank.
8.3. DELIVERY OF LOAN DOCUMENTS. The Borrower shall have delivered
to the Bank the Loan Documents and such other instruments and
documents which the Bank may reasonably request in connection
with the transactions provided for in this Agreement.
8.4. OPINION OF COUNSEL. Counsel for the Borrower shall have
delivered a written opinion, dated the Closing Date and in
form and substance satisfactory-to the Bank and its counsel,
as to matters incident to the transactions contemplated herein
as the Bank may reasonably request.
8.5. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Borrower to the Bank shall be true and
correct in all material respects.
11
<PAGE>
9. EXPENSES. The Borrower agrees to pay the Bank, upon the closing of this
Agreement, and otherwise on demand, all reasonable and necessary costs
and expenses incurred by the Bank in connection with the (i)
preparation, negotiation and delivery of this Agreement and the other
Loan Documents, and any modifications thereto, and (ii) collection of
the loan or instituting, maintaining, preserving, enforcing and
foreclosing the security interest in any of the collateral securing the
Loan, whether through judicial proceedings or otherwise, or in
defending or prosecuting any actions or proceedings arising out of or
relating to this Agreement, including reasonable fees and expenses of
counsel, expenses for auditors, appraisers and environmental
consultants, lien searches, recording and filing fees and taxes.
10. INCREASED COSTS. Within twenty (20) days following written demand,
together with the written evidence of the justification therefor, the
Borrower agrees to pay the Bank all direct costs incurred and any
losses suffered or payments made by the Bank as a consequence of making
the Loan by reason of any change in law or regulation or its
interpretation imposing any reserve, deposit, allocation of capital or
similar requirement (including without limitation, Regulation D of the
Board of Governors of the Federal Reserve System) on the Bank, its
holding company or any of their respective assets; PROVIDED, HOWEVER,
that the Bank shall make no such written demand on the Borrower unless
similar demands have been made against all other similarly situated
customers of the Bank.
11. MISCELLANEOUS.
11.1. NOTICES. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder must
be in writing and will be effective upon receipt if delivered
personally to such party, or if sent by facsimile transmission
with confirmation of delivery, or by nationally recognized
overnight courier service, to the address set forth below or
to such other address as any party may give to the other in
writing for such purpose:
To the Bank: To the Borrower:
PNC Bank, National Association Vastera, Inc.
Venture Bank @ PNC 45025 Aviation Drive
1401 Eye Street, N.W. Suite 200
Suite 200 Dulles, VA 20166
Washington, D.C. 20005 Attention: Philip J. Balsamo
Attention: Mary E. Schmersal Facsimile No.: __________________
Facsimile No.: 202-393-1545
11.2. PRESERVATION OF RIGHTS. No delay or omission on the part of
the Bank to exercise any right or power arising hereunder will
impair any such right or power or be considered a waiver of
any such right or power or any acquiescence therein, nor will
the action or inaction of the Bank impair any right or power
arising hereunder. The rights and remedies hereunder of the
Bank are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at
law or in equity.
12
<PAGE>
11.3. ILLEGALITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby.
11.4. CHANGES IN WRITING. No modification, amendment or waiver of
any provision of this Agreement will in any event be effective
unless the same is in writing and signed by the Bank and then
such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or
demand on the Borrower in any case will entitle the Borrower
to any other or further notice or demand in the same, similar
or other circumstance.
11.5. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire
agreement and supersedes all other prior agreements and
understandings, both written and oral, between the parties
with respect to the subject matter hereof.
11.6. COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate
counterparts, but all such copies shall constitute one and the
same instrument.
11.7. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the Borrower and the Bank and
their respective, successors and assigns; PROVIDED, HOWEVER,
that the Borrower may not assign this Agreement in whole or in
part without the prior written consent of the Bank and the
Bank at any time may assign this Agreement to a recognized
institutional lender who agrees in writing to be bound to all
confidentiality obligations of the Bank in connection with any
Loan Documents, in whole or in part, upon prior written notice
to the Borrower.
11.8. INTERPRETATION. In this Agreement, unless the Bank and the
Borrower otherwise agree in writing, the singular includes the
plural and the plural the singular; words importing any gender
include the other genders; references to statutes are to be
construed as including all statutory provisions consolidating,
amending-or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including",
"includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections
(or subdivisions of sections) or exhibits are to those of this
Agreement unless otherwise indicated; and references to
agreements and other contractual instruments shall be deemed
to include all subsequent amendments and other modifications
to such instruments, but only to the extent such amendments
and other modifications are not prohibited by the terms of
this Agreement. Section headings in this Agreement are
included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
Unless otherwise specified in this Agreement, all accounting
terms shall be interpreted and ail accounting determinations
shall be made in accordance with GAAP. If
13
<PAGE>
this Agreement is executed by more than one party as Borrower,
the obligations of such persons or entities will be joint and
several.
11.9. ASSIGNMENTS AND PARTICIPATION. Notwithstanding any other
provisions of this Agreement, the Bank may, at any time in its
sole discretion, without any notice to the Borrower, sell,
assign, transfer, negotiate, grant participation in, or
otherwise dispose of all or any part of the Bank's interest in
the Loan to a recognized institutional lender who agrees in
writing to be bound to all confidentiality obligations of the
Bank in connection with any Loan Documents. The Borrower
hereby authorizes the Bank to provide, upon notice to the
Borrower, any information concerning the Borrower to recognize
institutional lenders, including information pertaining to the
Borrower's financial condition, business operations or general
creditworthiness, to any person or entity which may succeed to
or participate in all or any part of the Bank's interest in
the Loan, provided that such person or entity agrees to
maintain the confidentiality of such information and be bound
by all the Bank's confidentiality obligations to the Borrower.
11.10. GOVERNING LAW AND JURISDICTION. This Agreement has been
delivered to and accepted by the Bank and will be deemed to be
made in the Commonwealth of Pennsylvania. THIS AGREEMENT WILL
BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS
RULES. The Borrower hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court seated in
Allegheny County, Pennsylvania, and consents that all service
of process be sent by nationally recognized overnight courier
service directed to the Borrower at the Borrower's address set
forth herein and service so made will be deemed to be
completed on the business day after deposit with such courier;
provided that nothing contained in this Agreement will prevent
the Bank from bringing any action, enforcing any award or
judgment or exercising any rights against the Borrower,
against any security or against any property of the Borrower
within any other county, state or other foreign or domestic
jurisdiction. The Bank and the Borrower agree that the venue
provided above is the most convenient forum for both the Bank
and the Borrower. The Borrower waives any objection to venue
and any objection based on a more convenient forum in any
action instituted under this Agreement.
11.11. WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK IRREVOCABLY
WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS
AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE BORROWER AND THE BANK ACKNOWLEDGE THAT THE
FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
14
<PAGE>
The Borrower acknowledges that it has read and understood all the provisions of
this Agreement, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
15
<PAGE>
WITNESS the due execution of this Loan Agreement as a document under
seal, as of the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
By: /s/ Stephanie Landa By: /s/ Philip J. Balsamo (SEAL)
----------------------------------------------- -------------------------------------------------
Print Name: Stephanie Landa Print Name: Philip J. Balsamo
----------------------------------- ------------------------------------
Title: Notary Title: Finance Director
----------------------------------------------- -----------------------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Mary E. Schmersal
-------------------------------------------------
Print Name: Mary E. Schmersal
------------------------------------
Title: Vice President
-----------------------------------------------
</TABLE>
16
<PAGE>
ADDENDUM to that certain Loan Agreement dated March ___, 1999 between VASTERA,
INC. as the Borrower and PNC BANK, NATIONAL ASSOCIATION.
I. FINANCIAL COVENANTS
1. The Borrower will not permit its Tangible Net Worth to be less than the
$7,250,000 at any time during the term of this Agreement.
The foregoing minimum net worth levels will be increased by the amounts of any
new equity or subordinated debt investments after the date of this Agreement.
2. The Borrower shall maintain a minimum ratio of Current Assets to
Current Liabilities of 1.25: 1.00 at all times during the term of this
Agreement.
3. The Borrower shall not experience two consecutive quarters of Negative
Net Operating Income. Measurement of this covenant shall commence with
the third fiscal quarter of 1999.
4. The Borrower's Negative Net Operating Income will not exceed (a)
$1,000,000 for the first fiscal quarter of 1999, (b) $500,000 for each
of the second and third fiscal quarters of 1999, and (c) $1,000,000 for
the fourth fiscal quarter of 1999, and each fiscal quarter thereafter.
DEFINITIONS:
"CURRENT ASSETS" means the sum of cash, accounts receivable and
marketable securities.
"CURRENT LIABILITIES" means the sum of all current liabilities other
than deferred revenue plus amounts outstanding under the Revolving
Credit not classified as current liabilities.
"DEBT" means the maximum combined debt outstanding under the Revolving
Credit, any equipment leases, or any other debt arrangements maturing
within one year.
"NEGATIVE NET OPERATING INCOME" means earnings before interest, taxes,
depreciation and amortization less than zero calculated in accordance
with generally accepted accounting principles.
"TANGIBLE NET WORTH" means shareholders' equity less intangible assets
(calculated in ` accordance with generally accepted accounting
principles), plus any equity or subordinated and/or convertible debt
investments created after the date of this Agreement.
<PAGE>
II. PERMITTED ENCUMBRANCES
III. ENVIRONMENTAL MATTERS
2
<PAGE>
EXECUTION COPY
BORROWING BASE RIDER
THIS BORROWING BASE RIDER ("RIDER") is executed this 5th day
of March 1999, by and between VASTERA, INC., a Delaware corporation (the
"BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the "BANK"). This Rider is
incorporated into and made part of that certain Loan Agreement between the Bank
and the Borrower dated the date hereof, and also into such other financing
documents and security agreements as may be executed and delivered pursuant to
said Loan Agreement (all such documents including this Rider are collectively
referred to as the "LOAN DOCUMENTS"). All initially capitalized terms not
otherwise defined in this Rider shall have the same meanings ascribed to such
terms in the other Loan Documents.
Pursuant to the Loan Documents, the Bank has extended a "Loan"
to the Borrower which includes a "Secured Revolving Credit Facility," under
which the Borrower may borrow, repay and reborrow funds at any time prior to the
Revolving Credit Expiration Date and an "Equipment Line of Credit"
(collectively, the "FACILITY"). As a condition to the Bank's willingness to
extend the Facility to the Borrower, the Bank and the Borrower are entering into
this Rider in order to set forth their agreement regarding the maximum amount
which may be outstanding under the Facility at any time, and for the other
purposes set forth below:
NOW, THEREFORE, in consideration of the foregoing and
intending to be legally bound, the parties hereto covenant and agree as follows:
1. LIMITATIONS ON BORROWINGS UNDER FACILITY. Notwithstanding
any provisions to the contrary in any of the other Loan Documents, at no time
shall the aggregate principal amounts of indebtedness outstanding at any one
time under the Facility exceed the Borrowing Base (as defined hereinafter) at
such time. If at any time the aggregate principal amount of indebtedness
outstanding under the Facility exceeds the limitation set forth in this Section
1 for any reason, then the Borrower shall immediately repay the amount of such
excess to the Bank in immediately available funds.
2. BORROWING BASE CERTIFICATES. The Borrower shall deliver
an updated Borrowing Base Certificate upon the Bank's request and in no event
later than on or before the 15`h day of each month or the first business day
thereafter if such day falls on a weekend or holiday, if no new advances have
been requested by the Borrower under the Facility since the date of the
preceding Borrowing Base Certificate.
3. CERTAIN DEFINED TERMS. In addition to the words and terms
defined elsewhere in this Rider or in the other Loan Documents, as used in this
Rider, the following words and terms shall have the following meanings:
"ACCOUNT" shall mean an "account" or a "general intangible" as
defined in the Uniform Commercial Code as in effect in the jurisdiction whose
Law governs the perfection of the Bank's security interest therein, whether now
owned or hereafter acquired or arising.
<PAGE>
"ACCOUNT DEBTOR" shall mean, with respect to any Account, each
Person who is obligated to make payments to either of the Borrower on such
Account.
"AFFILIATE" of the Borrower or any Account Debtor shall mean
(a) any Person who (either alone or with a group of Persons, and either directly
or indirectly through one or more intermediaries) is in control of, is
controlled by or is under common control with the Borrower or such Account
Debtor, (b) any director, officer, partner, employee or agent of the Borrower or
such Account Debtor, and (c) any member of the immediate family of any natural
person described in the preceding clauses (a) and (b). A Person or group of
Persons shall be deemed to be in control of the Borrower or an Account Debtor
when such Person or group of Persons possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
Borrower or such Account Debtor, whether through the ownership of voting
securities, by contract or otherwise.
"BORROWING BASE" shall mean, for the Revolving Credit, at any
time through the Revolving Credit Expiration Date, the lesser of (a) $2,500,000
(the maximum principal amount of the Revolving Credit, including the aggregate
face amounts of stand-by letters of credit issued by the Bank at the Borrower's
request) and (b) 80% of Qualified Accounts at such time.
The value at any time of the collateral described in this definition shall be
determined by reference to the most recent Borrowing Base Certificate delivered
by the Borrower to the Bank.
"BORROWING BASE CERTIFICATE" shall mean each Borrowing Base
Certificate to be delivered by the Borrower to the Bank pursuant to Section 2 of
this Rider, in substantially the form attached as EXHIBIT A to this Rider, with
blanks appropriately completed, as amended, supplemented or otherwise modified
from time to time.
"LAW" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"LIEN" shall mean any mortgage, pledge, security interest,
bailment, encumbrance, claim, lien or charge of any kind, including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement and any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code.
"OFFICIAL BODY" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of any government or political subdivision, or any
court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"PERSON" shall mean an individual, sole proprietorship,
corporation, partnership (general or limited), trust, business trust, limited
liability company, unincorporated organization or association, joint venture,
joint-stock company, Official Body, or any other entity of whatever nature.
"QUALIFIED ACCOUNTS" shall mean Accounts which are and at all
times continue to meet the following conditions:
2
<PAGE>
(a) The Account duly complies with ail applicable Laws,
whether Federal, state or local, including but not
limited to usury Laws, the Federal Truth in Lending
Act, the Federal Consumer Credit Protection Act, the
Fair Credit Billing Act, and Regulation Z of the Board
of Governors of the Federal Reserve Systems;
(b) The Account was not originated in or subject to the
Laws of a jurisdiction whose Laws would make the
account or the grant of the security interest in the
Account to the Hank unlawful, invalid or unenforceable;
(c) The Account was originated by the Borrower in
connection with the sale of goods or the rendering of
services by the Borrower in the ordinary course of
business under an enforceable contract, and such sale
has been consummated and such goods have been delivered
or such services have been rendered so that the
performance of such contracts has been completed by
such Borrower and by all parties other than the Account
Debtor;
(d) The Account is evidenced by a written invoice or other
documentation and arises from a contract, all of which
are in form and substance satisfactory to the Bank;
(e) The Account does not arise out of a contract with, or
order from, an Account Debtor that, by its terms,
forbids or makes void or unenforceable the grant of the
security interest by the Borrower to the Bank in and to
the Account arising with respect thereto;
(f) The title of the Borrower to the Account and, except as
to the Account Debtor, to any related goods is absolute
and is not subject to any Lien except Liens in favor of
the Bank;
(g) The Account provides for payment in United States
Dollars by the Account Debtor;
(h) The Account shall have amounts owing that are not less
than the amounts represented by the Borrower;
(i) The portion of the Account for which income has not yet
been earned or which constitutes unearned discount,
services charges or deferred interest shall be
ineligible;
(j) The Account shall be eligible only to the extent that
it is not subject to any defense, claim of reduction,
counterclaim, set-off, recoupment, or any dispute or
claim for credits, allowances or adjustments by the
Account Debtor because of returned, inferior, damaged
goods or unsatisfactory service, or for any other
reason;
3
<PAGE>
(k) The goods the sale of which gave rise to the Account
were shipped or delivered or provided to the Account
Debtor on an absolute sale basis and not on a bill and
hold sale basis, a consignment sale basis, a guaranteed
sale basis, a sale or return basis or on the basis of
any other similar terms making the Account Debtor's
payment obligations conditional;
(l) The Account Debtor has not returned, rejected or
refused to retain, or otherwise notified the Borrower
of any dispute concerning, or claimed nonconformity of,
any of the goods from the sale of which the Account
arose;
(m) No default exists under the Account by any party
thereto, and all rights and remedies of the Borrower
under the Account are freely assignable by the
Borrower;
(n) The Account has not been outstanding for more than
ninety (90) days past the invoice date and is not
subject to "dating" terms;
(o) None of the Accounts of any Account Debtor shall be
eligible if more than 50% of the Accounts of such
Account Debtor have been outstanding for more than
ninety (90) days;
(p) The Account shall be ineligible to the extent that the
aggregate amount of all the Accounts of the Account
Debtor and its Affiliates exceed 20% of all of the
Borrower's Accounts;
(q) The Borrower has not received any note, trade
acceptance, draft, chattel paper or other instrument
with respect to, or in payment of, the Account, unless,
if any such instrument has been received, the Borrower
immediately notifies the Bank and, at the Bank's
request, endorses or assigns and delivers such
instrument to the Bank;
(r) The Borrower has not received any notice of (i) the
filing by or against the Account Debtor of any
proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation, conservatorship or any
similar proceeding, or (ii) any assignment by the
Account Debtor for the benefit of creditors. Upon
receipt by the Borrower of any such notice, it will
give the Hank prompt written notice thereof;
(s) The Account Debtor is not an Affiliate of the Borrower;
(t) The Account shall be ineligible if the Account Debtor
is an Official Body, unless the Borrower shall have
taken all actions deemed necessary by the Bank in order
to perfect the Bank's security interest therein,
including but not limited to any notices or filings
required under the Assignment of Claims Act of 1940, as
amended, or other applicable Laws; and
4
<PAGE>
(u) The Bank has not deemed such Account ineligible because
of uncertainty about the creditworthiness of the
Account Debtor (including, without limitation,
unsatisfactory past experiences of the Borrower or the
Bank with the Account Debtor) or because the Bank
otherwise makes a reasonable determination that the
collateral value of the Account to the Bank is impaired
or that the Bank's ability to realize such value is
insecure.
Standards of acceptability shall be fixed and may be revised from time to time
by mutual agreement of Bank and the Borrower. In the case of any dispute about
whether an Account is or has ceased to be a Qualified Account, the decision of
the Bank shall be final.
4. GOVERNING LAW. THIS RIDER WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICTS OF LAW RULES.
5. COUNTERPARTS. This Rider may be signed in any number
of counterpart copies and by the parties hereto on separate counterparts, but
all such copies shall constitute one and the same instrument.
5
<PAGE>
WITNESS the due execution of this Borrowing Base Rider as a
document under seal, as of the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
By: /s/ Stephanie Landa By: /s/ Philip S. Balsamo (SEAL)
----------------------------------------------- -------------------------------------------------
Print Name: Stephanie Landa Print Name: Philip S. Balsamo
----------------------------------- ------------------------------------
Title: Notary Title: Finance Director
----------------------------------------------- -----------------------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Mary E. Schmersal (SEAL)
-------------------------------------------------
Print Name: Mary E. Schmersal
------------------------------------
Title: Vice President
-----------------------------------------------
</TABLE>
6
<PAGE>
EXHIBIT A
BORROWING BASE CERTIFICATE-DOMESTIC- ACCOUNTS
DATE:
-----------------
In accordance with the terms of Loan Agreement, dated as of March ! 1999 between
Vastera, Inc. (hereafter the "Borrower") and PNC Bank, National Association
(hereafter "PNC Bank"), the Borrower hereby makes the following certification:
1. Domestic Accounts Receivable Balance as of _____________ __________
2. Add: Domestic sales since last report +__________
3. Less: Domestic collections since last report -__________
4. Adjusted Domestic Accounts Receivable Balance __________
5. Less: Ineligible Domestic Account Balances - __________
6. Eligible Domestic Accounts Receivable Balance __________
Formula x80%
----------
7. Domestic Accounts Receivable Borrowing Base __________
A listing or copy of each account, properly aged, is attached hereto and these
accounts are pledged as collateral by Borrower in favor of PNC Bank. The
Borrower further warrants:
- that the goods or services represented by each account have
been fully performed in an acceptable workmanlike manner, and
that the goods represented thereby have been shipped to the
customer, and
- that the amount shown for each account is due and unpaid and
that the amount complies in every way with the requirements of
the Security Agreement, and
- that each account evidenced hereby has been set aside on our
books or record and that said books clearly indicate these
amounts having been assigned as collateral under said Security
Agreement, and
- that ineligible accounts include all accounts aged over 90
days and all eligible accounts where 50% or more of the total
amount owed is aged beyond 90 days.
<PAGE>
SUMMARY:
8. Borrowing Base (Line 7)
-----------------
9. Maximum Facility Amount $ 2,500,000
-----------------
10. Available Facility Amount (Lesser of lines 8 or 9)
-----------------
11. Loan Outstanding (Note # )
-----------------
12. Excess/(deficiency) (Line 10 less line 11)
-----------------
All deficiencies are due immediately.
Certified by:
--------------------------------
Title:
--------------------------------
2
<PAGE>
EXECUTION COPY
AMENDMENT NO. 1
TO
LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AGREEMENT, (this "AMENDMENT"), is entered
into as of September 15, 1999, between VASTERA, INC., a Delaware corporation
(the "BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the "BANK").
WITNESSETH:
WHEREAS, the Borrower and the Bank entered into a Loan Agreement dated
as of March 5, 1999'(the "LOAN AGREEMENT") wherein the Bank agreed to extend to
the Borrower a $2,500,000 Revolving Line of Credit (the "REVOLVING LINE") and a
$1,500,000 Equipment Line of Credit (the "EQUIPMENT LINE"), subject to the terms
and conditions of the Agreement; and
WHEREAS, the Borrower has requested that the Bank amend the Loan
Agreement to increase the maximum availability under the Equipment Line to
$3,000,000.
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the Borrower and the Bank, with the intent to be
legally bound hereby, agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Amendment shall have
the meanings provided in the Loan Agreement unless a different definition is
provided herein.
2. REVOLVING LINE AVAILABILITY. The maximum availability under the
Equipment Line is hereby increased to $3,000,000. Notwithstanding such increase,
all Advances under the Equipment Line shall continue to be limited to 90DEG.l0
of the face amount of equipment invoices (excluding taxes, shipping and
installation submitted with any Loan Request) pursuant to the terms of the Loan
Agreement.
3. EXTENSION OF EQUIPMENT LINE EXPIRATION DATE. The Equipment Line
Expiration Date is hereby extended to twelve (12) month from the date of this
Amendment.
4. AMENDED AND RESTATED NOTE. Simultaneously with the execution and
delivery of this Amendment, the Borrower shall execute and deliver to the Bank
an Amended and Restated Promissory Note (the "AMENDED NOTE"). Upon receipt of
the Amended Note, the Bank shall return to the Borrower the Promissory Note
dated March 5, 1999 (the "ORIGINAL NOTE"). All amounts outstanding under the
Original Note shall be transferred to, and be deemed to be outstanding under,
the Amended Note.
5. FACILITY FEE. The Borrower shall pay to the Bank a facility fee of
$3,750 (equal to .25% of the increased availability under the Equipment Line)
payable upon execution of this Amendment.
<PAGE>
6. SECURITY/COLLATERAL. All obligations of the Borrower to the Bank
under the Revolving Credit, the Equipment Line, as amended, and the Amended Note
shall constitute Obligations as defined in the Loan Agreement and in the
Security Agreement dated as of March 5, 1999 by and between Borrower and the
Bank, and shall be entitled to the benefits of and be secured by the Security
Documents.
7. AMENDMENT OF CERTAIN FINANCIAL COVENANTS.
a. TANGIBLE NET WORTH COVENANT. Section 1 of the Addendum is hereby
amended and restated in its entirety as follows:
"The Borrower will not permit its Tangible Net Worth to be less than
$7,775,000 at any time during the term of this Agreement."
b. CONSECUTIVE QUARTERLY LOSSES. Section 3 of the Addendum is hereby
amended and restated in its entirety as follows:
"The Borrower shall not experience two consecutive quarters of Negative
Net Operating Income. Measurement of this covenant shall commence with the
second fiscal quarter of 2000."
c. MAXIMUM QUARTERLY LOSSES. Section 4 of the Addendum is hereby
amended and restated in its entirety as follows:
"The Borrower's Negative Net Operating Income will not exceed
(a) $1,500,000 for each of the third and fourth fiscal quarters of 1999, and (b)
$1,000,000 for the first fiscal quarter of 2000, and each fiscal quarter
thereafter."
8. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Bank as follows:
(a) all representations, warranties and covenants made by the Borrower
to the Bank that are contained in the Loan Agreement, as modified hereby, the
Amended Note, and each of the other Loan Documents are true and correct on and
as of the date hereof with the same effect as though such representations,
warranties and covenants had been made on and as of the date hereof (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties shall be true and correct on and
as of the specific dates or times referred to therein);
(b) to the Borrower's knowledge, no event or condition has occurred or
exists which, with the giving of notice or the passage of time, or both would
constitute an Event of Default under any of the Loan Documents;
(c) the Borrower has delivered copies of its most recently amended
Certificate of Incorporation and Bylaws to the Bank together with this
Amendment, and such amended Certificate and Bylaws have not been amended,
revised, supplemented, restated or changed in any way since their respective
dates of adoption and are still in full force and effect; and
2
<PAGE>
(d) the execution and delivery of this Amendment and the consummation
of the transactions contemplated hereby and by the Note and any other documents
executed by the Borrower required to be delivered, to the Bank in connection
with this Amendment have been duly and validly authorized by the Borrower and
all such documents together constitute the legal, valid and binding agreement of
the Borrower, enforceable against the Borrower in accordance with their
respective terms.
9. REIMBURSEMENT OF EXPENSES. The Borrower shall reimburse the Bank,
upon the execution of this Amendment, and otherwise on demand, all reasonable
and necessary costs and expenses incurred by the Bank in connection with the
preparation, negotiation and delivery of this Amendment and the Amended Note and
any modifications thereto. The obligations of the Borrower to pay expenses
hereunder are in- addition to, and pat in lieu of, any similar obligations set
forth in the Loan Agreement.
10. COUNTERPARTS. This Amendment may be executed in one or more
counterparts by any party hereto in separate counterparts, each of which when so
executed and delivered to the other party shall be deemed an original. All such
counterparts together shall constitute one and the same instrument.
11. WAIVERS. This Amendment shay not, except as expressly set forth
above, serve to waive, supplement or amend the Loan Agreement or any of the
other Loan Documents, which Loan Documents shall remain in full force and effect
as amended hereby.
[Signature Page to Follow]
3
<PAGE>
WITNESS the due execution of this Amendment No. 1 to Loan Agreement as
a document under seal, as of the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
By: /s/ Laura Himmelsbach By: /s/ Philip J. Balsamo (SEAL)
----------------------------------------------- -------------------------------------------------
Print Name: Laura Himmelsbach Print Name: Philip J. Balsamo
----------------------------------- ------------------------------------
Title: Administration Title: CFO
----------------------------------------------- -----------------------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Kevin A. Brown (SEAL)
-------------------------------------------------
Print Name: Kevin A. Brown
------------------------------------
Title: Vice President
-----------------------------------------------
</TABLE>
4
<PAGE>
EXECUTION COPY
AMENDMENT NO. 2
TO
LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AGREEMENT, (this "AMENDMENT NO. 2"), is
entered into as of March 31, 2000, between VASTERA, INC., a Delaware corporation
(the "BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the "BANK").
WITNESSETH:
WHEREAS, the Borrower and the Bank entered into a Loan Agreement dated
as of March 5, 1999 (the "LOAN AGREEMENT") wherein the Bank agreed to extend to
the Borrower a $2,500,000 Revolving Line of Credit (the "REVOLVING LINE") and, a
$1,500,000 Equipment Line of Credit (the "EQUIPMENT LINE"), subject to the terms
and conditions of the Agreement;
WHEREAS) the Borrower and the Beak entered into Amendment No. 1 to the
Loan Agreement dated as of September 15, 1999 ("AMENDMENT NO. L") wherein the
Bank agreed to increase the maximum availability under the Equipment Line to
$3,000,000, subject to the terms and conditions of Amendment No. 1; and
WHEREAS, the Borrower hag requested that the Bank amend the Loan
Agreement to increase the maximum availability under the Equipment Line to
$4,800,000.
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the Borrower and the Bank, with the latent to be
legally bound hereby, agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Amendment No. 2
shall have the meanings provided in the Loan Agreement unless a different
definition is provided herein.
2. REVOLVING EQUIPMENT LANE AVAILABILITY. The maximum
availability under the Equipment Line is hereby increased to $4,800,000.
Notwithstanding such increase, all Advances under the Equipment Line shall
continue to be limited to 90% of the face amount of equipment invoices
(excluding taxes, shipping and installation submitted with any Loan Request)
pursuant to the terms of the Loan Agreement.
3. EXTENSION OF EQUIPMENT LINT EXPIRATION DATE. The Equipment
Line Expiration Date is hereby extended to twelve (I2) months from the date of
this Amendment No. 2.
4. AMENDED AND RESTATED NOTE. Simultaneously with the execution
and delivery of this Amendment No. 2, the Borrower shall execute and deliver to
the Bank a Second Amended and Restated Promissory Note (the "AMENDED NOTE NO.
2"). Upon receipt of the Amended Note No. 2, the Bank shall return to the
Borrower the Promissory Note dated September 15, 1999 (the "AMENDED NOTE NO.
l"). All amounts outstanding under the Amended
<PAGE>
Note No. 1 shall be transferred to, and be deemed to be outstanding under, the
Amended Note No. 2.
5. FACILITY FEE. The Borrower shall pay to the Bank a facility
fee of $4,500 (equal to .25% of the increased availability under the Equipment
Line) payable upon execution of this Amendment No. 2.
6. SECURITY/COLLATERAL. All obligations of the Borrower to the
Bank under the Revolving Credit, the Equipment Line, as amended, and the Amended
Note No. 2 shall constitute Obligations as defined in the Loan Agreement and in
the Security Agreement dated as of March 5, 1999 by and between Borrower and the
Bank, and shall be entitled to the benefits of acrd be secured by the Security
Documents.
7. AMENDMENT OF CERTAIN FINANCIAL COVENANTS.
a. TANGIBLE NOT WORTH COVENANT. Section 1 of the Addendum is
hereby amended and restated in its entirety as follows:
"The Borrower will not permit its Tangible Net Worth to be
less than the following levels for the periods set forth below:
QUARTER ENDED MINIMUM TANGIBLE NET WORTH
3/31/00 $800,000
6/30/00 ($3,000,000)
9/30/00 ($6,200,000)
12/31/00 ($9,100,000)
3/31/01 ($11,500,000)
6/30/01 ($13,000,000)
9/30/01 ($13,100,000)
12/31/01 and all ($12,600,000)
fiscal quarters
thereafter."
b. CONSECUTIVE QUARTERLY LOSSES. Section 3 of the Addendum is
hereby amended and restated in its entirety as follows:
"The Borrower shall not experience two consecutive quarters of
Negative Net Operating Income. Measurement of this covenant shall commence with
the fast fiscal quarter of 2002."
2
<PAGE>
c. MAXIMUM QUARTERLY LOSSES. Section 4 of the Addendum is
hereby amended and restated in its entirety as follows:
"`The Borrower's Negative Net Operating Income will not exceed
(a) $5,000,000 for each of the second, third and fourth fiscal quarters of 2000
and for the first fiscal quarter of 2001 and (b) $2,000,000 for each fiscal
quarter thereafter."
8. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Bank as follows:
(a) all representatives and warranties made by the Borrower
to the Bank that are contained in the Loan Agreement, as modified hereby, the
Amended Note No. 2, and each of the other Loan Documents are true and retract on
end as of the date hereof with the same effect as though such representations
and warranties had been made on and as of the date hereof (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties shall be true and correct on and
as of the specific dates or times referred to therein);
(b) to the Borrower's knowledge, no event or condition has
occurred or exists which, with the giving of notice or the passage of time, or
both, would constitute as Event of Default under any of the Loan Documents;
(c) the Borrower has delivered copies of its most recently
amended Certificate of Incorporation and Bylaws to the Bank together with this
Amendment No. 2, and such Amended Certificate and Bylaws have not been amended,
revised, supplemented, restated or changed in any way since their respective
dates of adoption and are still in full force and effect; and
(d) the execution and delivery of this Amendment No. 2 and
the consummation of the transactions contemplated hereby and by the Amended Note
No. 2 and any other documents executed by the Borrower required to be delivered
to the Bank in connection with this Amendment No. 2 have been duly and validly
authorized by the Borrower and all such documents together constitute the legal,
valid and binding agreement of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
9. REIMBURSEMENT. The Borrower shall reimburse the Bank, upon the
execution of this Amendment No. 2, and otherwise on demand, all reasonable and
necessary costs and expenses incurred by the Bank in connection with the
preparation, negotiation and delivery of this Amendment No. 2 and the Amended
Note No. 2 and any modifications thereto. The obligations of the Borrower to pay
expenses hereunder are in addition to, and not in lieu of, any similar
obligations sat forth in the Loan Agreement.
10. COUNTERPARTS. This Amendment may be executed in one or more
counterparts by any party hereto in separate counterparts, each of which when so
executed acrd delivered to the other party shall be deemed an original. All such
counterparts together shall constitute one arid the same instrument.
3
<PAGE>
11. WAIVERS. This Amendment shall not, except as expressly set
forth above, serve to waive, supplement or amend the Loan Agreement or any of
the other Loan Documents, which Loan Documents shall remain in full force and
effect as amended hereby.
[Signature Page to Follow]
4
<PAGE>
WITNESS the due execution of this Amendment No. 2 to Loan Agreement as
a document under seal, as of the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
By: /s/ David E. Zerbee By: /s/ Philip J. Balsamo (SEAL)
----------------------------------------------- -------------------------------------------------
Print Name: David E. Zerbee Print Name: Philip J. Balsamo
----------------------------------- ------------------------------------
Title: General Counsel Title: CFO
----------------------------------------------- -----------------------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Kevin A. Brown (SEAL)
-------------------------------------------------
Print Name: Kevin A. Brown
------------------------------------
Title: Vice President
-----------------------------------------------
5
</TABLE>
<PAGE>
AMENDMENT NO. 3
TO
LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO LOAN AGREEMENT, (this "AMENDMENT NO. 3"), is
entered into as of June 19, 2000, between VASTERA, INC., a Delaware
corporation (the "BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the "BANK").
WITNESSETH:
WHEREAS, the Borrower and the Bank entered into a Loan Agreement dated as
of March 5, 1999 (the "LOAN AGREEMENT") wherein the Bank agreed to extend to
the Borrower a $2,500,000 Revolving Line of Credit (the "REVOLVING LINE") and
a $1,500,000 Equipment Line of Credit (the "EQUIPMENT LINE"), subject to the
terms and conditions of the Loan Agreement;
WHEREAS, the Borrower and the Bank entered into Amendment No. 1 to the
Loan Agreement dated as of September 15, 1999 ("AMENDMENT NO. 1") wherein the
Bank agreed to increase the maximum availability under the Equipment Line to
$3,000,000, subject to the terms and conditions of Amendment No. 1;
WHEREAS, the Borrower and the Bank entered into Amendment No. 2 to the
Loan Agreement dated as of March 31, 2000 ("AMENDMENT NO. 2") wherein the
Bank agreed to increase the maximum availability under the Equipment Line to
$4,800,000, subject to the terms and conditions of Amendment No. 2; and
WHEREAS, the Borrower has requested that the Bank amend the Loan
Agreement to specifically exclude non-cash charges from the covenant
calculations and to amend the Tangible Net Worth financial covenant to
reiterate the method of calculating such covenant.
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the Borrower and the Bank, with the intent to be
legally bound hereby, agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Amendment No. 3 shall
have the meanings provided in the Loan Agreement unless a different
definition is provided herein.
2. AMENDMENT OF CERTAIN FINANCIAL COVENANTS. Section I of the Addendum to
the Loan Agreement is hereby amended and restated in its entirety as follows:
<PAGE>
"I. FINANCIAL COVENANTS
In calculating each financial covenant set forth below, all non-cash charges,
determined in accordance with generally accepted accounting principles, will
be disregarded.
1. The Borrower will not permit its Tangible Net Worth to be less than the
following levels for the periods set forth below:
<TABLE>
<CAPTION>
Minimum Tangible Net
Quarter Ended Worth
------------- --------------------
<S> <C>
3/31/00 $4,000,000
6/30/00 $400,000
9/30/00 ($8,750,000)
12/31/00 ($6,000,000)
3/31/01 ($9,500,000)
6/30/01 ($11,500,000)
9/30/01 ($11,750,000)
12/31/01 and all ($11,250,000)
fiscal quarters
thereafter."
</TABLE>
The foregoing minimum Tangible Net Worth levels will be increased by the
amounts of any new equity or subordinated debt investments after the date of
this Agreement.
2. The Borrower shall maintain a minimum ratio of Current Assets to
Current Liabilities of 1.25:1.00 at all times during the term of this
Agreement.
3. The Borrower shall not experience two consecutive quarters of Negative
Net Operating Income. Measurement of this covenant shall commence with the
first fiscal quarter of 2002.
4. The Borrower's Negative Net Operating Income will not exceed (a)
$5,000,000 for each of the second, third and fourth fiscal quarters of 2000
and for the first fiscal quarter of 2001 and (b) $2,000,000 for each fiscal
quarter thereafter.
DEFINITIONS:
"CURRENT ASSETS" means the sum of cash, accounts receivable and
marketable securities.
"CURRENT LIABILITIES" means sum of all current liabilities other than
deferred revenue plus amounts outstanding under the Revolving Credit not
classified as current liabilities.
2
<PAGE>
"DEBT" means the maximum combined debt outstanding under the Revolving
Credit, any equipment leases, or any other debt arrangements maturing
within one year.
"NEGATIVE NET OPERATING INCOME" means earnings before interest, taxes,
depreciation and amortization less than zero calculated in accordance
with generally accepted accounting principles.
"TANGIBLE NET WORTH" means shareholders' equity less intangible assets
(calculated in accordance with generally accepted accounting
principles), plus any equity or subordinated and/or convertible debt
investments created after the date of this Agreement."
3. SECURITY/COLLATERAL. All obligations of the Borrower to the Bank
under the Loan Agreement, as amended, including by this Amendment No. 3,
shall constitute Obligations as defined in the Loan Agreement and in the
Security Agreement dated as of March 5, 1999 by and between Borrower and the
Bank, and shall be entitled to the benefits of and be secured by the Security
Documents.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Bank as follows:
(a) all representations and warranties made by the Borrower to the
Bank in the Loan Agreement, as amended, including by this Amendment No. 3,
and in each of the other Loan Documents are true and correct on and as of the
date hereof with the same effect as though such representations and
warranties had been made on and as of the date hereof (except representations
and warranties which expressly relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of
the specific dates or times referred to therein);
(b) to the Borrower's knowledge, no event or condition has occurred
or exists which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default under any of the Loan Documents;
(c) the Borrower has not amended its Certificate of Incorporation and
Bylaws since true and correct copies were delivered to the Bank and such
Certificate of Incorporation and Bylaws and are still in full force and
effect; and
(d) the execution and delivery of this Amendment No. 3 and the
consummation of the transactions contemplated hereby and any other documents
executed by the Borrower required to be delivered to the Bank in connection
with this Amendment No. 3 have been duly and validly authorized by the
Borrower and all such documents together constitute the legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
3
<PAGE>
5. REIMBURSEMENT OF EXPENSES. The Borrower shall reimburse the Bank,
upon the execution of this Amendment No. 3, and otherwise on demand, all
reasonable and necessary costs and expenses incurred by the Bank in
connection with the preparation, negotiation and delivery of this Amendment
No. 3 and any modifications thereto. The obligations of the Borrower to pay
expenses hereunder are in addition to, and not in lieu of, any similar
obligations set forth in the Loan Agreement.
6. COUNTERPARTS. This Amendment may be executed in one or more
counterparts by any party hereto in separate counterparts, each of which when
so executed and delivered to the other party shall be deemed an original. All
such counterparts together shall constitute one and the same instrument.
7. WAIVERS. This Amendment No. 3 shall not serve waive, supplement or
amend the Loan Agreement or any of the other Loan Documents which Loan
Documents shall remain in full force and effect as amended hereby.
WITNESS the due execution of this Amendment No. 3 to Loan Agreement as a
document under seal, as of the date first written above.
ATTEST: VASTERA, INC.
By: /s/ Stephanie Landa By: /s/ Philip J. Balsamo
------------------------ --------------------------
Print Name: Stephanie Landa Print Name: Philip J. Balsamo
---------------- ------------------
Title: Notary Public Title: CFO
--------------------- -----------------------
PNC BANK,
NATIONAL ASSOCIATION
By: (SEAL)
-----------------------------
Print Name:
---------------------
Title:
--------------------------
4