exv10w44





Exhibit 10.44


EXECUTION COPY




FIRST AMENDMENT

TO LETTER OF CREDIT AGREEMENT




THIS FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT (this
“Amendment”) is dated as of January
8, 2010 and is entered into by and among UTi Worldwide Inc., a BVI Business Company incorporated
under the laws of the British Virgin Islands with company number 141257 (the “Company”), each of
the Subsidiary Guarantors (as defined in the Letter of Credit Agreement), Nedbank Limited, acting
through its London Branch (the “Issuing Bank”), and is made with reference to that certain LETTER
OF CREDIT AGREEMENT dated as of July 9, 2009 (as amended through the date hereof, the “Letter of
Credit Agreement”) by and among the Company, the Subsidiary Guarantors named therein and the
Issuing Bank. Capitalized terms used herein without definition shall have the same meanings herein
as set forth in the Letter of Credit Agreement after giving effect to this Amendment.



RECITALS




WHEREAS, the Obligors have requested that the Issuing Bank agree to amend certain provisions
of the Letter of Credit Agreement as provided for herein; and



WHEREAS, subject to certain conditions, the Issuing Bank is willing to agree to such amendment
relating to the Letter of Credit Agreement.



NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION I. AMENDMENTS TO LETTER OF CREDIT AGREEMENT




A. The last subclause (ii) in the second sentence of the first paragraph of Section 1.1 of
the Letter of Credit Agreement is hereby amended and restated in its entirety as follows:




(ii) in no event shall any Letter of Credit have an expiration date later
than the date which is two years from the date of issuance of such Letter of
Credit unless agreed to by the Issuing Bank; provided that any Letter of
Credit that causes the LC Usage to exceed $36,000,000 or is issued at such
time as the LC Usage exceeds $36,000,000 shall have an expiration date on or
before March 1, 2010 unless agreed to by the Issuing Bank.



B. The definition of “Maximum Draw Amount” in Schedule B to the Letter of Credit Agreement
is hereby amended and restated in its entirety as follows:




“Maximum Draw Amount” means (i) before the First Amendment Effective Date
and after March 1, 2010, $36,000,000 and (ii) on and after the First
Amendment Effective Date until and including March 1, 2010, $46,000,000.



C. Schedule B to the Letter of Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:


 


 









 






“First Amendment” means that certain First Amendment to Letter of Credit
Agreement dated as of January 8, 2010 among the Company, the Subsidiary
Guarantors and the Issuing Bank.




“First Amendment Effective Date” means the date of satisfaction of the
conditions referred to in Section II of the First Amendment.



SECTION II. CONDITIONS TO EFFECTIVENESS




This Amendment shall become effective as of the date hereof only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such conditions being referred
to herein as the “First Amendment Effective Date”):



A. Execution. The Issuing Bank shall have received a counterpart signature page of this
Amendment duly executed by each of the Obligors.



B. Fees. The Issuing Bank shall have received (i) a nonrefundable arrangement fee equal
to $25,000 and (ii) all fees and other amounts due and payable on or prior to the First Amendment
Effective Date, including, to the extent invoiced, reimbursement or other payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or any other
Financing Agreement.



C. Necessary Consents. Each Obligor shall have obtained all material consents necessary
or advisable in connection with the transactions contemplated by this Amendment.



D. Opinions of Counsel; Registered Agent’s Certificate. The Issuing Bank shall have
received (i) an executed copy of a written opinion of Harneys Westwood & Riegels, British Virgin
Islands counsel for the Obligors covering the existence and good standing of the Company, the
capacity and power of the Company to perform its obligations pursuant to the Amendment, the due
execution by the Company of the Amendment, matters related to enforceability, no-conflict, and
choice of law and including other matters incident to the transactions contemplated hereby and
otherwise in form and substance reasonably satisfactory to the Issuing Bank; (ii) an executed copy
of a written opinion of Latham & Watkins LLP, English counsel for the Issuing Bank, each addressed
to the Issuing Bank, dated as of the First Amendment Effective Date, covering matters related to
enforceability and choice of law of the Amendment including other matters incident to the
transactions contemplated hereby and otherwise in form and substance reasonably satisfactory to the
Issuing Bank; and (iii) a copy of the certificate identifying the directors and shareholders of the
Company and executed by Midocean Management and Trust Services (BVI) Limited, as registered agent
of the Company, dated January 7, 2010.



E. Other Documents. The Issuing Bank shall have received such other documents,
information or agreements regarding Obligors as the Issuing Bank may reasonably request.



SECTION III. REPRESENTATIONS AND WARRANTIES




In order to induce the Issuing Bank to enter into this Amendment and to amend the Letter of
Credit Agreement in the manner provided herein, each Obligor which is a party hereto


 


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represents and warrants to the Issuing Bank that the following statements are true and correct
in all material respects:



A. Organization; Power and Authority. Each Obligor is a corporation or other legal entity
duly incorporated or organized, validly existing and, where legally applicable, in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation
or other legal entity, where applicable, and, where legally applicable, is in good standing in each
jurisdiction in which such qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each Obligor has the
corporate (or other organizational) power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts and proposes to
transact, to execute and deliver the Letter of Credit Agreement as amended by this Amendment (the
“Amended Agreement”) to which it is a party and to perform the provisions hereof.



B. Authorization, Etc. The Amendment has been duly authorized by all necessary corporate
or other entity action on the part of each Obligor, and the Amendment constitutes a legal, valid
and binding obligation of each Obligor party thereto enforceable against any such Obligor in
accordance with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement
of creditors’ rights generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).



C. No Conflict. The execution, delivery and performance by each Obligor of the Amendment
will not (a) contravene, result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of any Obligor or any Subsidiary under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter,
memorandum and articles of association, regulations or by-laws, or any other agreement or
instrument to which any Obligor or any Subsidiary is bound or by which any Obligor or any
Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to any Obligor or any
Subsidiary, except for such conflicts or breaches that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or (c) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to any Obligor or any
Subsidiary, in each case, except for such contraventions, breaches, defaults, Liens, conflicts and
violations that would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



D. Governmental Authorizations, Etc. Except as disclosed on Schedule 5.7 of the Amended
Agreement, no consent, approval or authorization of, or registration, filing or declaration with,
any Governmental Authority is required in connection with the execution, delivery or performance by
any Obligor of the Amendment, including, without limitation, any thereof required in connection
with the obtaining of Dollars to make payments under the Amended Agreement or any other Financing
Agreement and the payment of such Dollars to Persons resident in the United States of America.
Except as disclosed on Schedule 5.7 of the



 


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Amended Agreement, it is not necessary to ensure the legality, validity, enforceability or
admissibility into evidence in the Applicable Jurisdiction of the Amended Agreement or any other
Financing Agreement that any thereof or any other document be filed, recorded or enrolled with any
Governmental Authority, or that any such agreement or document be stamped with any stamp,
registration or similar transaction tax.




E. Insolvency. As of the First Amendment Effective Date:



(a) no Obligor, is unable, or is deemed to be unable for the purposes of any applicable
law, or admits or has admitted its inability, to pay its debts as and when they fall due or has
suspended, or announced an intention to suspend, making payments on any of its debts;



(b) no Obligor, by reason of actual or anticipated financial difficulties has begun
negotiations with one or more of its creditors with a view to rescheduling or restructuring any of
its Indebtedness; and




(c) no moratorium has been declared in respect of any Indebtedness of any Obligor.



F. Incorporation of Representations and Warranties from Letter of Credit Agreement. The
representations and warranties contained in Section 5 of the Letter of Credit Agreement are and
will be true and correct in all material respects on and as of the First Amendment Effective Date
to the same extent as though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were true and correct in
all material respects on and as of such earlier date.



G. Absence of Default. No event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would constitute an Event of
Default or a Default.



SECTION IV. ACKNOWLEDGMENT AND CONSENT




Each Subsidiary Guarantor hereby acknowledges that it has reviewed the terms and provisions of
the Letter of Credit Agreement and this Amendment and consents to the amendment of the Letter of
Credit Agreement effected pursuant to this Amendment. Each Subsidiary Guarantor hereby confirms
that each Financing Agreement to which it is a party or otherwise bound will continue to guarantee
to the fullest extent possible in accordance with the Financing Agreements the payment and
performance of all “Obligations” and “Guaranteed Obligations” under each of the Financing
Agreements to which is a party (in each case as such terms are defined in the Letter of Credit
Agreement).



Each Subsidiary Guarantor acknowledges and agrees that any of the Financing Agreements to
which it is a party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Subsidiary Guarantor represents and warrants
that all representations and warranties contained in the Amended Agreement and the Financing
Agreements to which it is a party or otherwise bound are true and correct in all material respects
on and as of the First Amendment Effective Date to the same



 


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extent as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true and correct in all
material respects on and as of such earlier date.



SECTION V. MISCELLANEOUS





A. Reference to and Effect on the Credit Agreement and the Other Credit Documents.




(i) On and after the First Amendment Effective Date, each reference in the
Letter of Credit Agreement to “this Amendment”, “hereunder”, “hereof”, “herein” or
words of like import referring to the Letter of Credit Agreement, and each reference
in the other Financing Agreements to the “Agreement”, “thereunder”, “thereof” or
words of like import referring to the Letter of Credit Agreement shall mean and be a
reference to the Letter of Credit Agreement as amended by this Amendment.




(ii) Except as specifically amended by this Amendment, the Letter of Credit
Agreement and the other Financing Agreements shall remain in full force and effect
and are hereby ratified and confirmed.




(iii) The execution, delivery and performance of this Amendment shall not
constitute a waiver of any provision of, or operate as a waiver of any right, power
or remedy of the Issuing Bank under, the Letter of Credit Agreement or any of the
other Financing Agreements.



B. Headings. Section and Subsection headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.



C. Applicable Law. THIS AMENDMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR
IN CONNECTION WITH IT ARE GOVERNED BY ENGLISH LAW.




D. Jurisdiction.




(1) The courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Amendment (including a dispute relating to the existence,
validity or termination of this Amendment or any non-contractual obligation arising out of
or in connection with this Amendment ) (a “Dispute”).




(2) The parties hereto agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no party to this Amendment will argue
to the contrary.




(3) This Section V.D. is for the benefit of the Issuing Bank only. As a result, the
Issuing Bank shall not be prevented from taking proceedings relating to a Dispute in


 


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any other courts with jurisdiction. To the extent allowed by law, the Issuing Bank may
take concurrent proceedings in any number of jurisdictions.



E. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to the same document.



[Remainder of this page intentionally left blank.]






 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first written above.



	 	 	 	 	 
	COMPANY:	 UTi WORLDWIDE INC.

 	 
	 	By:  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 







	 	 	 	 	 
	SUBSIDIARY GUARANTORS: 	UTi (Aust) Pty Limited, ABN 48 006 734 747

 	 
	 	By:  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Africa Services Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Unigistix Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi, Canada, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Canada Holdings, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Span Manufacturing Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Deutschland GmbH

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 



 


 









 







	 	 	 	 	 
	 	UTi (HK) Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Nederland B.V.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Servicios Logisticos Integrados SLI, S.A.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Unión de Servicios Logísticos Integrados, S.A.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Spain S.A.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi (Taiwan) Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Logistics (Taiwan) Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 






	 	 	 	 	 
	 	UTi Worldwide (UK) Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi, (U.S.) Holdings, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi, United States, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi, Services, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Brokerage, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Logistics, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Vanguard Cargo Systems, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 







	 	 	 	 	 
	 	UTi Integrated Logistics, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Market Industries, Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Market Transport, Ltd

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Triple Express, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	InTransit, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Market Logistics Services, Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Market Logistics Brokerage, Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 







	 	 	 	 	 
	 	Sammons Transportation, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Lake States Trucking, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Concentrek, Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	United Express, Ltd.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	African Investments B.V.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 







	 	 	 	 	 
	 	UTi Asia Pacific Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Goddard Company Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi International Inc.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi (N.A.) Holdings N.V.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi (Netherlands) Holdings B.V.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	Pyramid Freight (Proprietary) Limited

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	UTi Logistics N.V.

 	 
	 	By  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 	 	 	 	 
	 	 	UTi New Zealand Ltd.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Craig Braun	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	UTi Ireland Limited


Signed, Sealed and Delivered by	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Craig Braun	 	 
	 	 	 	 	 
	 	 	Craig Braun,

duly appointed attorney
for and on behalf of

UTi IRELAND LIMITED

in the presence of:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Witness:	 	/s/ Matthew Tachouet	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Matthew John Tachouet	 	 
	 

	 	 	 	Address:
	 	100 Oceangate, Suite 1500

Long Beach, CA 90802	 	 
	 

	 	 	 	Occupation:
	 	Controller	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	UTi Worldwide (Singapore) Pte Ltd.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Craig Braun	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Authorized Signatory	 	 






 


 









 





	 	 	 	 	 
	 	NEDBANK LIMITED, acting through its London Branch,

As Issuing Bank

 	 
	 	By:  	/s/ Christo Roets
 	 
	 	 	Name:  	Christo Roets 	 
	 	 	Title:  	Authorized Signatory 	 
	 	 	 
	 	By:  	
/s/ Michael Hipwell
 	 
	 	 	Name:  	Michael Hipwell 	 
	 	 	Title:  	Authorized Signatory