Exhibit 10.1





Exhibit 10.1




UTi Worldwide Inc.




U.S.$150,000,000 3.67% Senior Unsecured Guaranteed Notes

due August 24, 2018




Note Purchase Agreement




Dated as of June 24, 2011




 


 









 







Table of Contents




	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	Section 1. Authorization of Notes	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.1.
	 	Authorization of Notes	 	 	1	 
	Section 1.2.
	 	Guarantee Agreement	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2. Sale and Purchase of Notes	 	 	1	 
	 
	 	 	 	 	 	 
	Section 3. Closing	 	 	2	 
	 
	 	 	 	 	 	 
	Section 4. Conditions to Closing	 	 	2	 
	 
	 	 	 	 	 	 
	Section 4.1.
	 	Representations and Warranties	 	 	2	 
	Section 4.2.
	 	Performance; No Default	 	 	2	 
	Section 4.3.
	 	Compliance Certificates	 	 	3	 
	Section 4.4.
	 	Opinions of Counsel	 	 	3	 
	Section 4.5.
	 	Purchase Permitted By Applicable Law, Etc	 	 	3	 
	Section 4.6.
	 	Sale of Other Notes	 	 	3	 
	Section 4.7.
	 	Payment of Special Counsel Fees	 	 	4	 
	Section 4.8.
	 	Private Placement Number	 	 	4	 
	Section 4.9.
	 	Changes in Corporate Structure	 	 	4	 
	Section 4.10.
	 	Acceptance of Appointment to Receive Service of Process	 	 	4	 
	Section 4.12.
	 	Proceedings and Documents	 	 	4	 
	Section 4.13.
	 	Subsidiary Guarantee Agreement	 	 	4	 
	Section 4.14.
	 	2006 Notes; Existing Credit Agreement	 	 	4	 
	Section 4.15.
	 	New Global Credit Facility	 	 	4	 
	Section 4.16.
	 	Approvals	 	 	5	 
	 
	 	 	 	 	 	 
	Section 5. Representations and Warranties of the Obligors	 	 	5	 
	 
	 	 	 	 	 	 
	Section 5.1.
	 	Organization; Power and Authority	 	 	5	 
	Section 5.2.
	 	Authorization, Etc	 	 	5	 
	Section 5.3.
	 	Disclosure	 	 	5	 
	Section 5.4.
	 	Organization and Ownership of Shares of Subsidiaries; Affiliates	 	 	6	 
	Section 5.5.
	 	Financial Statements; Material Liabilities	 	 	7	 
	Section 5.6.
	 	Compliance with Laws, Other Instruments, Etc	 	 	7	 
	Section 5.7.
	 	Governmental Authorizations, Etc	 	 	7	 
	Section 5.8.
	 	Litigation; Observance of Agreements, Statutes and Orders	 	 	7	 
	Section 5.9.
	 	Taxes	 	 	8	 
	Section 5.10.
	 	Title to Property; Leases	 	 	8	 
	Section 5.11.
	 	Licenses, Permits, Etc	 	 	8	 
	Section 5.12.
	 	Compliance with ERISA; Non-U.S. Plans	 	 	9	 
	Section 5.13.
	 	Private Offering by the Company	 	 	10	 





 


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	Section	 	Heading	 	Page	 
	Section 5.14.
	 	Use of Proceeds; Margin Regulations	 	 	10	 
	Section 5.15.
	 	Existing Indebtedness; Future Liens	 	 	11	 
	Section 5.16.
	 	Foreign Assets Control Regulations, Etc	 	 	11	 
	Section 5.17.
	 	Status under Certain Statutes	 	 	12	 
	Section 5.19.
	 	Ranking of Obligations	 	 	12	 
	Section 5.20.
	 	Obligor Group	 	 	13	 
	Section 5.21.
	 	CASS Reserve	 	 	13	 
	Section 5.22.
	 	Labor Matters	 	 	13	 
	Section 5.23.
	 	Insolvency	 	 	13	 
	 
	 	 	 	 	 	 
	Section 6. Representations of the Purchaser	 	 	14	 
	 
	 	 	 	 	 	 
	Section 6.1.
	 	Purchase for Investment	 	 	14	 
	Section 6.2.
	 	Source of Funds	 	 	16	 
	Section 6.3.
	 	Accredited Investor	 	 	16	 
	 
	 	 	 	 	 	 
	Section 7. Information as to Company	 	 	16	 
	 
	 	 	 	 	 	 
	Section 7.1.
	 	Financial and Business Information	 	 	16	 
	Section 7.2.
	 	Officer’s Certificate	 	 	20	 
	Section 7.3.
	 	Visitation	 	 	20	 
	Section 7.4.
	 	Limitation on Disclosure Obligation	 	 	21	 
	 
	 	 	 	 	 	 
	Section 8. Payment and Prepayment of the Notes	 	 	21	 
	 
	 	 	 	 	 	 
	Section 8.1.
	 	Required Prepayments	 	 	21	 
	Section 8.2.
	 	Optional Prepayments with Make-Whole Amount	 	 	21	 
	Section 8.3.
	 	Prepayment for Tax Reasons	 	 	23	 
	Section 8.4.
	 	Prepayment of Notes upon Change of Control	 	 	24	 
	Section 8.5.
	 	Allocation of Partial Prepayments	 	 	24	 
	Section 8.6.
	 	Maturity; Surrender, Etc	 	 	24	 
	Section 8.7.
	 	Purchase of Notes	 	 	25	 
	Section 8.8.
	 	Make-Whole Amount and Modified Make-Whole Amount	 	 	25	 
	Section 8.9.
	 	Prepayment in Connection with Sales of Assets	 	 	27	 
	 
	 	 	 	 	 	 
	Section 9. Affirmative Covenants	 	 	27	 
	 
	 	 	 	 	 	 
	Section 9.1.
	 	Compliance with Law	 	 	27	 
	Section 9.2.
	 	Insurance	 	 	27	 
	Section 9.3.
	 	Maintenance of Properties	 	 	27	 
	Section 9.4.
	 	Payment of Taxes and Claims	 	 	28	 
	Section 9.5.
	 	Corporate Existence, Etc	 	 	28	 
	Section 9.6.
	 	Books and Records	 	 	28	 
	Section 9.7.
	 	Priority of Obligations	 	 	28	 
	Section 9.8.
	 	[Reserved]	 	 	29	 
	Section 9.9.
	 	Dividend Capture from South Africa.	 	 	29	 
	Section 9.10.
	 	Additional Obligors and Collateral	 	 	29	 
	Section 9.11.
	 	Release of Subsidiary Guarantors	 	 	30	 





 


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	Section	 	Heading	 	Page	 
	Section 9.12.
	 	Group Structure	 	 	30	 
	Section 9.13.
	 	CASS Agreement	 	 	30	 
	Section 9.14.
	 	Additional Restrictions	 	 	31	 
	Section 9.15.
	 	2009 Notes Covenants	 	 	32	 
	Section 9.16.
	 	Post-Closing Obligations	 	 	32	 
	 
	 	 	 	 	 	 
	Section 10. Negative Covenants	 	 	32	 
	 
	 	 	 	 	 	 
	Section 10.1.
	 	Transactions with Affiliates	 	 	32	 
	Section 10.2.
	 	Restricted Payments	 	 	33	 
	Section 10.3.
	 	Consolidated Total Debt Coverage	 	 	33	 
	Section 10.4.
	 	Priority Debt	 	 	33	 
	Section 10.5.
	 	Liens	 	 	33	 
	Section 10.6.
	 	Subsidiary Indebtedness	 	 	35	 
	Section 10.7.
	 	Merger, Consolidation, Etc	 	 	37	 
	Section 10.8.
	 	Sale of Assets	 	 	37	 
	Section 10.9.
	 	Line of Business	 	 	39	 
	Section 10.10.
	 	Terrorism Sanctions Regulations	 	 	39	 
	Section 10.11.
	 	Subsidiaries in South Africa	 	 	39	 
	Section 10.12.
	 	Minimum Debt Service Ratio	 	 	39	 
	Section 10.13.
	 	Capital Leases	 	 	39	 
	 
	 	 	 	 	 	 
	Section 11. Events of Default	 	 	42	 
	 
	 	 	 	 	 	 
	Section 12.Remedies on Default, Etc	 	 	42	 
	 
	 	 	 	 	 	 
	Section 12.1.
	 	Acceleration	 	 	43	 
	Section 12.2.
	 	Other Remedies	 	 	43	 
	Section 12.3.
	 	Rescission	 	 	43	 
	Section 12.4.
	 	No Waivers or Election of Remedies, Expenses, Etc	 	 	44	 
	Section 12.5.
	 	Executive Proceedings	 	 	45	 
	 
	 	 	 	 	 	 
	Section 13. Tax Indemnification	 	 	46	 
	 
	 	 	 	 	 	 
	Section 14. Registration; Exchange; Substitution of Notes	 	 	48	 
	 
	 	 	 	 	 	 
	Section 14.1.
	 	Registration of Notes	 	 	48	 
	Section 14.2.
	 	Transfer and Exchange of Notes	 	 	48	 
	Section 14.4.
	 	Representations of Transferee	 	 	49	 
	 
	 	 	 	 	 	 
	Section 15. Payments on Notes	 	 	49	 
	 
	 	 	 	 	 	 
	Section 15.1.
	 	Place of Payment	 	 	49	 
	Section 15.2.
	 	Home Office Payment	 	 	49	 





 


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	Section	 	Heading	 	Page	 
	Section 16. Expenses, Etc	 	 	51	 
	 
	 	 	 	 	 	 
	Section 16.1.
	 	Transaction Expenses	 	 	50	 
	Section 16.2.
	 	Certain Taxes	 	 	50	 
	Section 16.3.
	 	Survival	 	 	50	 
	 
	 	 	 	 	 	 
	Section 17. Survival of Representations and Warranties; Entire Agreement	 	 	50	 
	 
	 	 	 	 	 	 
	Section 18. Amendment and Waiver	 	 	51	 
	 
	 	 	 	 	 	 
	Section 18.1.
	 	Requirements	 	 	51	 
	Section 18.2.
	 	Solicitation of Holders of Notes	 	 	51	 
	Section 18.3.
	 	Binding Effect, Etc	 	 	52	 
	Section 18.4.
	 	Notes Held by Obligors, Etc	 	 	52	 
	 
	 	 	 	 	 	 
	Section 19. Notices; English Language	 	 	52	 
	 
	 	 	 	 	 	 
	Section 20. Reproduction of Documents	 	 	53	 
	 
	 	 	 	 	 	 
	Section 21. Confidential Information	 	 	53	 
	 
	 	 	 	 	 	 
	Section 22. Substitution of Purchaser	 	 	54	 
	 
	 	 	 	 	 	 
	Section 23. Subsidiary Guarantee Agreement	 	 	54	 
	 
	 	 	 	 	 	 
	Section 23.1.
	 	Guarantee and Indemnity	 	 	55	 
	Section 23.2.
	 	Continuing Guarantee	 	 	55	 
	Section 23.3.
	 	Reinstatement	 	 	55	 
	Section 23.4.
	 	Waiver of Defenses	 	 	57	 
	Section 23.5.
	 	Immediate Recourse	 	 	57	 
	Section 23.6.
	 	Appropriations	 	 	58	 
	Section 23.7.
	 	Non-competition	 	 	58	 
	Section 23.8.
	 	Release of Subsidiary Guarantors' Right of Contribution	 	 	59	 
	Section 23.9.
	 	Releases	 	 	59	 
	Section 23.10.
	 	Marshaling	 	 	60	 
	Section 23.11.
	 	Liability	 	 	60	 
	Section 23.12.
	 	Character of Obligation	 	 	61	 
	Section 23.13.
	 	Election to Perform Obligations	 	 	61	 
	Section 23.14.
	 	No Election	 	 	62	 
	Section 23.15.
	 	Severability	 	 	62	 
	Section 23.16.
	 	Other Enforcement Rights	 	 	62	 
	Section 23.17.
	 	Restoration of Rights and Remedies	 	 	62	 
	Section 23.18.
	 	Survival	 	 	62	 
	Section 23.19.
	 	Miscellaneous	 	 	63	 
	Section 23.20.
	 	Limitation	 	 	63	 
	Section 23.21.
	 	Written Notice	 	 	63	 
	Section 23.22.
	 	Unenforceability of Obligations	 	 	65	 





 


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	Section	 	Heading	 	Page	 
	Section 23.23.
	 	Contribution	 	 	64	 
	Section 23.24.
	 	Additional Security	 	 	64	 
	Section 23.25.
	 	Limitations — Belgium	 	 	64	 
	Section 23.26.
	 	Limitations — Spain	 	 	64	 
	Section 23.27.
	 	Limitations — Hong Kong	 	 	64	 
	Section 23.28.
	 	Limitations — Germany	 	 	65	 
	Section 23.29.
	 	Limitations — the Netherlands	 	 	66	 
	Section 23.30.
	 	U.S. Guarantors	 	 	66	 
	Section 23.31.
	 	Limitations - UK	 	 	67	 
	Section 23.32.
	 	Limitation on Pyramid Freight	 	 	68	 
	Section 23.33.
	 	Limitations — Singapore	 	 	68	 
	Section 23.34.
	 	Irish Obligors	 	 	68	 
	Section 23.35.
	 	Guarantor Intent	 	 	68	 
	 
	 	 	 	 	 	 
	Section 24. Miscellaneous	 	 	68	 
	 
	 	 	 	 	 	 
	Section 24.1.
	 	Successors and Assigns	 	 	68	 
	Section 24.2.
	 	Payments Due on Non-Business Days	 	 	68	 
	Section 24.3.
	 	Accounting Terms	 	 	69	 
	Section 24.4.
	 	Severability	 	 	69	 
	Section 24.5.
	 	Construction, Etc	 	 	69	 
	Section 24.6.
	 	Counterparts	 	 	70	 
	Section 24.7.
	 	Governing Law	 	 	70	 
	Section 24.8.
	 	Jurisdiction and Process; Waiver of Jury Trial	 	 	70	 
	Section 24.9.
	 	Obligation to Make Payment in Dollars	 	 	71	 





 


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	Schedule A

	 	—
	 	Information Relating to Purchasers
	 
	 	 	 	 
	Schedule B

	 	—
	 	Defined Terms
	 
	 	 	 	 
	Schedule 8.1

	 	—
	 	Amortization
	 
	 	 	 	 
	Exhibit 1


	 	—
	 	Form of 3.67% Senior Unsecured
Guaranteed Note due August 24, 2018
	 
	 	 	 	 
	Exhibits 4.4(a)(i), 
(ii), (iii) and (iv)

	 	—
	 	Form of Opinion of U.S. Counsel to the Obligors
	 
	 	 	 	 
	Exhibits 4.4(a)(v),
and (vi)

	 	—
	 	Form of Opinion of British Virgin Islands Counsel
	 
	 	 	 	 
	Exhibits 4.4(a)(vii)

	 	—
	 	Form of Opinion of Australian Counsel
	 
	 	 	 	 
	Exhibits 4.4(a)(viii)

	 	—
	 	Form of Opinion of Canadian Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(ix)

	 	—
	 	Form of Opinion of Belgian Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(x)

	 	—
	 	Form of Opinion of German Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xi)

	 	—
	 	Form of Opinion of Hong Kong Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xii)

	 	—
	 	Form of Opinion of Dutch Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xiii)

	 	—
	 	Form of Opinion of Spanish Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xiv)

	 	—
	 	Form of Opinion of English Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xv)

	 	—
	 	Form of Opinion of Guernsey Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xvi)

	 	—
	 	Form of Opinion of Singapore Counsel
	 
	 	 	 	 
	Exhibit 4.4(a)(xvii)

	 	—
	 	Form of Opinion of Arizona Counsel
	 
	 	 	 	 
	Exhibit 4.4(b)

	 	—
	 	Form of Opinion of Special Counsel to the Purchasers
	 
	 	 	 	 
	Exhibit 9.10

	 	—
	 	Form of Joinder Agreement
	 
	 	 	 	 
	Exhibit 14.4

	 	—
	 	Certificate of Transferee
	 
	 	 	 	 
	Schedule 5.3

	 	—
	 	Disclosure Materials
	 
	 	 	 	 
	Schedule 5.4

	 	—
	 	Subsidiaries of the Company and Ownership of Subsidiary Stock





 


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	Schedule 5.5

	 	—
	 	Financial Statements
	 
	 	 	 	 
	Schedule 5.7

	 	—
	 	Governmental Authorizations
	 
	 	 	 	 
	Schedule 5.9

	 	—
	 	Liability for Taxes
	 
	 	 	 	 
	Schedule 5.15

	 	—
	 	Existing Indebtedness and Liens
	 
	 	 	 	 
	Schedule 5.22

	 	—
	 	Collective Bargaining Agreements






 


-vii-









 







UTi Worldwide Inc.

c/o UTi, Services, Inc.

100 Oceangate, Suite 1500

Long Beach, California 90802




U.S.$150,000,000 3.67% Senior Unsecured Guaranteed Notes

due August 24, 2018




June 24, 2011




To Each of the Purchasers Listed in
Schedule A Hereto:




Ladies and Gentlemen:



UTi Worldwide Inc., a BVI Business Company incorporated under the laws of the British Virgin
Islands with BVI company number 141257 (the “Company”) and each of the Subsidiary Guarantors
jointly and severally agree with each of the purchasers whose names appear at the end hereof (each
a “Purchaser” and collectively the “Purchasers”) as follows:



Section 1. Authorization of Notes.




Section 1.1. Authorization of Notes. The Company will authorize the issue and sale of
U.S.$150,000,000 aggregate principal amount of its 3.67% Senior Unsecured Guaranteed Notes due
August 24, 2018 (the “Notes,” such term to include any such notes issued in substitution therefor
pursuant to Section 14). The Notes shall be substantially in the form set out in Exhibit 1.
Certain capitalized and other terms used in this Agreement are defined in Schedule B; and
references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.



Section 1.2. Subsidiary Guarantee Agreement. The payment and performance of all obligations
of the Company hereunder and under the other Financing Agreements, including, without limitation,
the payment of the principal of, interest on, and Make-Whole Amount and Modified Make-Whole Amount,
if any, with respect to the Notes and all other amounts owing hereunder are fully and
unconditionally guaranteed by the Subsidiary Guarantors as provided in the Subsidiary Guarantee
Agreement set forth in Section 23.



Section 2. Sale and Purchase of Notes.




Subject to the terms and conditions of this Agreement, the Company will issue and sell to each
Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section
3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the
purchase price of 100% of the principal amount thereof. The Purchasers’
obligations hereunder are several and not joint obligations and no Purchaser shall have any
liability to any Person for the performance or non-performance of any obligation by any other
Purchaser hereunder.


 


 









 







			
	 	 	 
	UTi Worldwide Inc.
	 	Note Purchase Agreement






Section 3. Closing.




The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the
offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603, at 10:00 a.m.,
Chicago time, at a closing (the “Closing”) on June 24, 2011 or on such other Business Day
thereafter on or prior to June 30, 2011 as may be agreed upon by the Company and the Purchasers.
At the Closing, the Company will deliver to each Purchaser the Notes to be purchased by such
Purchaser in the form of a single Note (or such greater number of Notes in denominations of at
least U.S.$100,000 as such Purchaser may request) dated the date of the Closing and registered in
such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the
Company or its order of immediately available funds in the amount of the purchase price therefor by
wire transfer of immediately available funds for the account of the Company to account number
5800502238 at Bank of America, 135 South LaSalle Street, Chicago, Illinois 60661, Account Name:
UTi, United States Inc., ABA (Wire): 026-009-593, ABA (ACH): 071-000-039, Swift Code: BOFAUS3N. If
at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in
this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to
such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights such Purchaser may have by
reason of such failure or such nonfulfillment.



Section 4. Conditions to Closing.




Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at
the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the
Closing, of the following conditions:



Section 4.1. Representations and Warranties. The representations and warranties of the
Obligors in the Financing Agreements to which they are a party shall be correct when made and at
the time of the Closing.



Section 4.2. Performance; No Default. The Obligors shall have performed and complied in all
material respects with all agreements and conditions contained in this Agreement and the other
Financing Agreements to which they are a party required to be performed or complied with by each of
them prior to or at the Closing and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Section 5.14) no Default or Event of Default
shall have occurred and be continuing. No Obligor nor any Subsidiary shall have entered into any
transaction since April 30, 2011 that would have been prohibited by Section 10 had such Section
applied since such date.


 


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	UTi Worldwide Inc.
	 	Note Purchase Agreement





Section 4.3. Compliance Certificates.



(a) Officer’s Certificate. Each Obligor shall have delivered to such Purchaser an Officer’s
Certificate (or a certificate from a person authorized by the board of directors (or equivalent
governing body) of the Obligor to sign documents on behalf of the Obligor in connection with this
Agreement), dated the date of the Closing, certifying that the conditions specified in Sections
4.1, 4.2 and 4.9 have been fulfilled.



(b) Secretary’s or Director’s Certificate. Each Obligor shall have delivered to such
Purchaser a certificate of its Secretary or an Assistant Secretary or a Director (or another
appropriate person authorized by the board of directors (or equivalent governing body) of the
Obligor to sign documents on behalf of the Obligor in connection with this Agreement), dated the
date of the Closing, certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Financing Agreements to
which it is a party.



Section 4.4. Opinions of Counsel. Such Purchaser shall have received opinions in form and
substance reasonably satisfactory to such Purchaser, dated the date of the Closing (a) from (i)
Paul, Hastings, Janofsky & Walker LLP, U.S. counsel for the Obligors, (ii) Tonkon Torp LLP, Oregon,
counsel for the Obligors, (iii) Dibble Law Offices, South Carolina counsel for the Obligors, (iv)
Poore, Roth & Robinson, P.C., Montana counsel for the Obligors, (v) Harney Westwood & Riegels,
British Virgin Islands counsel for the Obligors, (vi) Walkers, British Virgin Islands counsel for
the Purchasers, (vii) Piper Alderman, Australian counsel, (viii) WeirFoulds LLP, Ontario, Canadian
counsel, (ix) Gerard & Associates, Belgium counsel, (x) Lexton Rechtsanwalte, German counsel, (xi)
Baker & McKenzie, Hong Kong counsel, (xii) Boekel De Nerée, Dutch counsel, (xiii) Garrido-Lestache
Burdiel Abogados, Spanish counsel, (xiv) Eversheds, English counsel, (xv) Mourant Ozannes, Guernsey
counsel, (xvi) Baker & McKenzie, Wong & Leow, Singapore counsel and (xvii) Snell & Wilmer LLP,
Arizona Counsel, substantially in the respective forms set forth in Exhibits 4.4(a)(i) through
4.4(a)(xvii) and covering such other matters incident to the transactions contemplated hereby as
such Purchaser or its counsel may reasonably request (and the Obligors hereby instruct their
counsel to deliver such opinions to the Purchasers) and (b) from Chapman and Cutler LLP, the
Purchasers’ special counsel in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(b) and, in each case, covering such other matters incident to such
transactions as such Purchaser may reasonably request.



Section 4.5. Purchase Permitted By Applicable Law, Etc. On the date of the Closing such
Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each
jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section
1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or regulation was in
effect on the date
hereof. If requested by such Purchaser, such Purchaser shall have received an Officer’s
Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to
enable such Purchaser to determine whether such purchase is so permitted.



Section 4.6. Sale of Other Notes. Contemporaneously with the Closing, the Company shall sell
to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at
the Closing as specified in Schedule A.


 


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	UTi Worldwide Inc.
	 	Note Purchase Agreement





Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions of Section
16.1, the Company shall have paid on or before the Closing the fees, charges and disbursements of
the Purchasers’ special counsel and British Virgin Islands counsel referred to in Section 4.4 to
the extent reflected in a statement of such counsel rendered to the Company at least two Business
Day prior to the Closing.



Section 4.8. Private Placement Number. A Private Placement Number issued by Standard & Poor’s
CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.



Section 4.9. Changes in Corporate Structure. No Obligor shall have changed its jurisdiction
of incorporation or organization, as applicable, or been a party to any merger or consolidation or
succeeded to all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in Schedule 5.5.



Section 4.10. Acceptance of Appointment to Receive Service of Process. Such Purchaser shall
have received evidence of the acceptance by Corporation Service Company of the appointment and
designation provided for by Section 24.8(e) for the period from the date of the Closing to August
24, 2019 (and the payment in full of all fees in respect thereof).



Section 4.11. Funding Instructions. At least two Business Days prior to the date of the
Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on
letterhead of the Company confirming the information specified in Section 3 including (a) the name
and address of the transferee bank, (b) such transferee bank’s ABA number and (c) the account name
and number into which the purchase price for the Notes is to be deposited.



Section 4.12. Proceedings and Documents. All corporate and other proceedings in connection
with the transactions contemplated by the Financing Agreements and all documents and instruments
incident to such transactions shall be reasonably satisfactory to such Purchaser and its special
counsel, and such Purchaser and its special counsel in their reasonable discretion shall have
received all such counterpart originals or certified or other copies of such documents as such
Purchaser or such special counsel may reasonably request.



Section 4.13. Subsidiary Guarantee Agreement. Each Subsidiary Guarantor shall have executed
and delivered (and each Purchaser shall have received an original copy thereof) the Subsidiary
Guarantee Agreement, and the Subsidiary Guarantee Agreement shall be in full force and effect.



Section 4.14. 2006 Notes; Existing Credit Agreement. A portion of the proceeds of the
issuance of the Notes shall be used to pay off in full the 2006 Notes.



Section 4.15. New Global Credit Facilities. The Company shall concurrently enter into the
agreements referred to in clauses (a) and (b) of the defined term Global Credit Facilities which
facilities shall be in full force and effect.


 


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Section 4.16. Approvals. All necessary government, regulatory and third-party approvals
necessary in order for the Company and each Subsidiary Guarantor to execute, deliver and perform
each Financing Agreement to which they are a party shall have been obtained and the Company shall
have delivered evidence thereof reasonably satisfactory to the Purchasers.



Section 5. Representations and Warranties of the Obligors.




Each Obligor, jointly and severally, represents and warrants to each Purchaser that:



Section 5.1. 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 Financing Agreements to which it is a party and to
perform the provisions hereof and thereof.



Section 5.2. Authorization, Etc. The Financing Agreements to which each Obligor is a party
have been duly authorized by all necessary corporate or other entity action on the part of each
Obligor, and each Financing Agreement constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of each Obligor party thereto
enforceable against 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).



Section 5.3. Disclosure. This Agreement, the SEC Reports, and the documents, certificates or
other writings delivered to the Purchasers by or on behalf of the Obligors in connection with the
transactions contemplated hereby and identified in Schedule 5.3, and the financial statements
listed in Schedule 5.5 (this Agreement, the SEC Reports, and such documents, certificates or other
writings identified in Schedule 5.3 and financial statements identified in Schedule 5.5 being
referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they were made. Except
as disclosed in the Disclosure Documents, since January 31, 2011 there has been no change in the
financial condition, operations, business, properties or prospects of the Company, or any
Subsidiary except changes that individually or in the aggregate would not reasonably be expected to
have a Material Adverse Effect. There is no fact known to any Obligor that could reasonably be
expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure
Documents.


 


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Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates. (a) Schedule
5.4 contains (except as noted therein) complete and correct lists of each Obligor’s (i)
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by each Obligor and each other Subsidiary and whether such Subsidiary
will on the date of the Closing be a Subsidiary Guarantor, (ii) Affiliates, other than
Subsidiaries, and (iii) directors and senior officers.



(b) All of the outstanding or issued shares of capital stock, shares or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by each Obligor and its
Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by each
Obligor or another Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule
5.4).



(c) Each Subsidiary (other than the Obligors) identified in Schedule 5.4 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 or organization, and is duly
qualified as a foreign corporation, where applicable, or other legal entity 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
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Each such Subsidiary has the corporate or other organizational power and authority, as the
case may be, to own or hold under lease the properties it purports to own or hold under lease and
to transact the business it transacts and proposes to transact, except where the failure to have
such power or authority could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.



(d) No Subsidiary is a party to, or otherwise subject to any legal, regulatory, contractual or
other restriction (other than the 2011 Agreements and the agreements listed on Schedule 5.4 under
the heading “Agreements Restricting Dividends” and customary limitations imposed by applicable law
or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to any Obligor or any of its Subsidiaries that owns
outstanding or issued shares of capital stock, shares or similar equity interests of such
Subsidiary.



(e) A group structure chart included in Schedule 5.4 shows all members of the Group (and all
Joint Ventures and minority interests held by any member of the Group).



(f) Except as set forth on Schedule 5.4 with respect to UTi Inventory Management Solutions
Inc., 100% of the issued share capital of each Obligor (other than the Company) is directly or
indirectly wholly owned by the Company.



(g) In the case of each borrower or guarantor under the South African Facilities, the group
structure chart in Schedule 5.4 shows the shareholders of and their percentage shareholdings in
each obligor under the South African Facilities and the shareholders of or partners in such
entities.


 


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Section 5.5. Financial Statements; Material Liabilities. (a) The Obligors have delivered to
each Purchaser copies of the consolidated financial statements of the Company listed on Schedule
5.5. All of said financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position of the Obligors and
their Subsidiaries as of the respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective periods so specified and have been
prepared in accordance with applicable generally accepted accounting principles (which shall be
GAAP in the case of the Company) consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim financial statements, to normal
year-end adjustments and the absence of footnotes). The Obligors and their Subsidiaries do not
have any Material liabilities that are not disclosed on such financial statements or otherwise
disclosed in the Disclosure Documents.



Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery and
performance by each Obligor of the Financing Agreements to which it is a party 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 Material 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 Material 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 Material order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to any Obligor or
any Subsidiary or (c) violate any provision of any Material statute or other Material rule or
regulation of any Governmental Authority applicable to any Obligor or any Subsidiary.



Section 5.7. Governmental Authorizations, Etc. Except as disclosed in Schedule 5.7, assuming
that the representations of the Purchasers in Sections 6.1, 6.3 and 6.4 are true and correct, 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 Financing Agreements to which it is a party, including, without limitation, any
thereof required in connection with the obtaining of Dollars to make payments under any Financing
Agreement and the payment of such Dollars to Persons resident in the United States of America,
except for the filing of a notice on Form D and Form 8-K with the SEC. Except as disclosed in
Schedule 5.7, it is not necessary to ensure the legality, validity, enforceability or admissibility
into evidence in the Applicable Jurisdiction of any 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.



Section 5.8. Litigation; Observance of Agreements, Statutes and Orders. (a) There are no
actions, suits, investigations or proceedings pending or, to the knowledge of any Obligor,
threatened against or affecting any Obligor or any Subsidiary or any property of any Obligor or any
Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.


 


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(b) No Obligor nor any Subsidiary is (i) in default under any term of any agreement or
instrument to which it is a party or by which it is bound, (ii) in violation of any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority (iii) is in violation
of any applicable law, ordinance, rule or regulation (including, without limitation, Environmental
Laws, the USA Patriot Act or any of the other laws and regulations that are referred to in
Section 5.16) of any Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



Section 5.9. Taxes. Except as set forth on Schedule 5.9, the Obligors and their Subsidiaries
have filed all tax returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent, except for any
taxes and assessments (i) the amount of which is not individually or in the aggregate Material or
(ii) the amount, applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which such Obligor or a Subsidiary, as the case may be,
has established adequate reserves in accordance with applicable generally accepted accounting
principles (which shall be GAAP in the case of the Company). No Obligor knows of any basis for any
other tax or assessment that could reasonably be expected to have a Material Adverse Effect. The
charges, accruals and
reserves on the books of each Obligor and its Subsidiaries in respect of Federal, state or other
taxes for all fiscal periods are adequate.



No liability for any Tax, directly or indirectly, imposed, assessed, levied or collected by or
for the account of any Governmental Authority of any Applicable Jurisdiction or any political
subdivision thereof will be incurred by any Obligor or any holder of a Note as a result of the
execution or delivery of the Financing Agreements and, except as specified in Schedule 5.9, no
deduction or withholding in respect of Taxes imposed by or for the account of any Applicable
Jurisdiction or, to the knowledge of any Obligor, any other Taxing Jurisdiction, is required to be
made from any payment by any Obligor under the Financing Agreements except for any such liability,
withholding or deduction imposed, assessed, levied or collected by or for the account of any such
Governmental Authority of any Applicable Jurisdiction arising out of circumstances described in
clause (a), (b) or (c) of Section 13.



Section 5.10. Title to Property; Leases. Each Obligor and its Subsidiaries have good and
sufficient title to their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet referred to in
Section 5.5 or purported to have been acquired by any Obligor or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are
Material are valid and subsisting and are in full force and effect in all material respects.



Section 5.11. Licenses, Permits, Etc. (a) Each Obligor and its Subsidiaries own or possess
all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software,
service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate
are Material, without known conflict with the rights of others.


 


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(b) To the knowledge of each Obligor, no product of such Obligor or any of its Subsidiaries
infringes in any material respect any license, permit, franchise, authorization, patent, copyright,
proprietary software, service mark, trademark, trade name or other right owned by any other Person.



(c) To the knowledge of each Obligor, there is no Material violation by any Person of any
right of such Obligor or any of its Subsidiaries with respect to any patent, copyright, proprietary
software, service mark, trademark, trade name or other right owned or used by such Obligor or any
of its Subsidiaries.



Section 5.12. Compliance with ERISA; Non-U.S. Plans. (a) Each Obligor and each ERISA
Affiliate have operated and administered each “employee benefit plan” (as such term is defined in
Section 3(3) of ERISA) in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to result in a Material
Adverse Effect. No Obligor nor any ERISA Affiliate has incurred any liability pursuant to Title I
or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined
in section 3 of ERISA), and no event, transaction or condition has occurred or exists that, in
either case, would reasonably be expected to result in the incurrence of any such liability by any
Obligor or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties
or assets of any Obligor or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA
or to such penalty or excise tax provisions or to section 401(a)(29) or 412 of the Code, other than
such liabilities or Liens as would not be individually or in the aggregate Material.



(b) The present value of the aggregate benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the
basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The present value of the accrued benefit liabilities
(whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of each
Obligor’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not
exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities
by more than U.S.$10,000,000 (or its equivalent in any other currency) and the aggregate amount of
such excess benefit liabilities for all such Non-U.S. Plans did not exceed U.S.$10,000,000 (or its
equivalent in any other currency). The term “benefit liabilities” has the meaning specified in
section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified
in section 3 of ERISA.



(c) Each Obligor and its ERISA Affiliates have not incurred (i) withdrawal liabilities (and
are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that individually or in the aggregate are Material or (ii) any
obligation in connection with the termination of or withdrawal from any Non-U.S Plan that
individually or in the aggregate is Material.



(d) The expected postretirement benefit obligation (determined as of the last day of each
Obligor’s most recently ended fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of each Obligor and its Subsidiaries is not Material.


 


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(e) The execution and delivery of the Financing Agreements and the issuance and sale of the
Notes hereunder will not involve any non-exempt transaction that is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by each Obligor to each Purchaser in the first
sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such
Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase
price of the Notes to be purchased by such Purchaser.



(f) All Non-U.S. Plans have been established, operated, administered and maintained in
compliance with all laws, regulations and orders applicable thereto, except where failure so to
comply could not be reasonably expected to have a Material Adverse Effect. All premiums,
contributions and any other amounts required by applicable Non-U.S. Plan documents or applicable
laws to be paid or accrued by each Obligor and its Subsidiaries have been paid or
accrued as required, except where failure so to pay or accrue could not be reasonably expected to
have a Material Adverse Effect.



Section 5.13. Private Offering by the Company. No Obligor nor anyone acting on its behalf has
offered the Notes, the Subsidiary Guarantee Agreement or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any person other than the Purchasers and not more than twelve (12) other
Institutional Investors, each of which has been offered the Notes at a private sale for investment.
No Obligor nor anyone acting on its behalf has taken, or will take, any action that would subject
the issuance or sale of the Notes or the Subsidiary Guarantee Agreement to the registration
requirements of Section 5 of the Securities Act or to the registration requirements of any
securities or blue sky laws of any applicable jurisdiction.



Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the
sale of the Notes to pay off in full the 2006 Notes and other indebtedness of the Company and its
Subsidiaries, for working capital purposes of the Company and its Subsidiaries, and for other
general corporate purposes. No part of the proceeds from the sale of the Notes hereunder will be
used, directly or indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or
for the purpose of buying or carrying or trading in any securities under such circumstances as to
involve any Obligor in a violation of Regulation X of said Board (12 CFR 224) or to involve any
broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 1% of the value of the consolidated assets of any Obligor and its Subsidiaries
and no Obligor has any present intention that margin stock will constitute more than 1% of the
value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or
carrying” shall have the meanings assigned to them in said Regulation U.


 


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Section 5.15. Existing Indebtedness; Future Liens. (a) Schedule 5.15 sets forth a complete
and correct list of all Indebtedness of (or the commitment to extend credit to) the Obligors and
their Subsidiaries other than Indebtedness under this Agreement, the Existing Financing Agreements,
the Global Credit Facilities and certain items of Indebtedness which individually are not in excess
of U.S.$5,000,000 (or its equivalent in any other currency) and in the aggregate are not in excess
of U.S.$15,000,000 (or its equivalent in any other currency), each as of April 30, 2011 (including
the principal amount outstanding and collateral therefor, if any, and the Guaranty thereof, if any)
since which date there has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of such Obligors or their Subsidiaries. No
Obligor nor any Subsidiary is in default and no waiver of default is currently in effect, in the
payment of any principal or interest on any Indebtedness of any Obligor or such Subsidiary and no
event or condition exists with respect to any Indebtedness of any Obligor or any Subsidiary that
would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons
to cause such Indebtedness to become due and payable before its stated maturity or before its
regularly scheduled dates of payment except for such defaults (other than payment
defaults), events or conditions in a single credit facility in an amount less than U.S.$5,000,000
(or its equivalent in any other currency) or under multiple credit facilities which in the
aggregate are less than U.S.$15,000,000 (or its equivalent in any other currency) that would not,
individually or in the aggregate, have a Material Adverse Effect.



(b) No Obligor nor any Subsidiary has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien not permitted by Section 10.5.



(c) Except as set forth in Schedule 5.15, no Obligor nor any Subsidiary is a party to, or
otherwise subject to any provision contained in, any instrument evidencing Indebtedness of such
Obligor or such Subsidiary, any agreement relating thereto or any other agreement (including, but
not limited to, its charter, memorandum and articles of association or other organizational
document) other than this Agreement, the Global Credit Facilities, the South African Facilities and
the Existing Financing Agreements which limits the amount of, or otherwise imposes restrictions on
the incurring of, Indebtedness of such Obligor.



Section 5.16. Foreign Assets Control Regulations, Etc. Neither the Company nor any Controlled
Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked
Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) (an
“OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise
controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any
Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions
Program (each OFAC Listed Person and each other Person, entity, organization and government of a
country described in clause (ii), a “Blocked Person”).



(b) No part of the proceeds from the sale of the Notes hereunder constitutes or will
constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by
the Company or indirectly through any Controlled Entity, in connection with any investment in, or
any transactions or dealings with, any Blocked Person.


 


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(c) To the Company’s actual knowledge, neither the Company nor any Controlled Entity (i) is
under investigation by any Governmental Authority for, or has been charged with, or convicted of,
money laundering, drug trafficking, terrorist-related activities or other money laundering
predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has
been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its
funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has taken
reasonable measures appropriate to the circumstances to ensure that the Company and each Controlled
Entity is and will continue to be in compliance in all Material respects with all Material
applicable current and future Anti-Money Laundering Laws.



(d) No part of the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, official of any public international
organization or anyone else acting in an official capacity, in order to obtain, retain or direct
business or obtain
any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended, assuming in all cases that such Act applies to the Obligors. The Company has taken
reasonable measures appropriate to the circumstances (in any event as required by applicable law)
to ensure that the Company and each Controlled Entity is and will continue to be in compliance with
all applicable current and future anti-corruption laws and regulations.



Section 5.17. Status under Certain Statutes. No Obligor nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 2005, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.



Section 5.18. Environmental Matters. (a) No Obligor nor any Subsidiary has knowledge of any
claim or has received any notice of any claim, and no proceeding has been instituted raising any
claim against any Obligor or any of its Subsidiaries or any of their respective real properties now
or formerly owned, leased or operated by any of them or other assets, alleging any damage to the
environment or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.



(b) No Obligor nor any Subsidiary has knowledge of any facts which would give rise to any
claim, public or private, of violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties now or formerly owned, leased or
operated by any of them or to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.



(c) No Obligor nor any Subsidiary has stored any Hazardous Materials on real properties now or
formerly owned, leased or operated by any of them and has not disposed of any Hazardous Materials
in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be
expected to result in a Material Adverse Effect; and



(d) All buildings on all real properties now owned, leased or operated by any Obligor or any
Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse Effect.


 


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Section 5.19. Ranking of Obligations. The Company’s payment obligations under the Notes when
issued and the payment obligations of the Subsidiary Guarantors under the Subsidiary Guarantee
Agreement rank at least pari passu, without preference or priority, with all other unsecured and
unsubordinated Indebtedness of such Obligor, as the case may be.



Section 5.20. Obligor Group. Each Subsidiary of the Company which is a borrower or guarantor
under the Existing Financing Agreements or the Global Credit Facilities as of the date hereof is a
Subsidiary Guarantor hereunder (subject to release of Guarantors to occur on the date hereof).



Section 5.21. CASS Reserve. Each member of the Group, that is a party to the CASS Agreement,
has timely paid all accounts payable due and owing to CASS in accordance with the terms and
provisions of the CASS Agreement, except any such accounts payable which are being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in accordance
with generally accepted accounting principles in the jurisdiction of incorporation of that member
of the Group shall have been set aside on its books and records.



Section 5.22. Labor Matters. (a) No member of the Group is subject to any collective
bargaining or similar agreement, other than those companies set out in Schedule 5.22 (Collective
Bargaining Agreements).



(b) There are no existing or threatened strikes, slowdowns, lockouts or other similar labor
disputes involving any member of the Group that singly or in the aggregate have or are reasonably
likely to have a Material Adverse Effect.



(c) Hours worked by and payment made to employees of each member of the Group are not in
violation of the United States Fair Labor Standards Act of 1938 (if applicable) or any other
applicable law, rule or regulation dealing with such matters, except to the extent such violations
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



Section 5.23. Insolvency. As at the date of this Agreement:




(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;




(c) the value of the assets of the Obligors on a combined basis exceeds the value of
their liabilities on a combined basis (including contingent liabilities), and




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


 


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Section 6. Representations of the Purchaser.




Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is
purchasing the Notes for its own account or for one or more separate accounts maintained by such
Purchaser or for the account of one or
more pension or trust funds and not with a view to the distribution thereof, provided that the
disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or
their control. Each Purchaser understands that the Notes and the Subsidiary Guarantee Agreement
have not been registered under the Securities Act and may be resold only if registered pursuant to
the provisions of the Securities Act or if an exemption from registration is available, except
under circumstances where neither such registration nor such an exemption is required by law, and
that the Obligors are not required to register the Notes or the Subsidiary Guarantee Agreement.



Section 6.2. Source of Funds. Each Purchaser severally represents that at least one of the
following statements is an accurate representation as to each source of funds (a “Source”) to be
used by such Purchaser to pay the purchase price of the Notes to be purchased by it hereunder:




(a) the Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in
respect of which the reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance Commissioners (the
“NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any
employee benefit plan together with the amount of the reserves and liabilities for the
general account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the
same employee organization in the general account do not exceed 10% of the total reserves
and liabilities of the general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of
domicile; or




(b) the Source is an insurance company separate account that is maintained solely in
connection with such Purchaser’s fixed contractual obligations under which the amounts
payable, or credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of such plan
(including any annuitant)) are not affected in any manner by the investment performance of
the separate account; or




(c) the Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE
91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this
clause (c), no employee benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or


 


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(d) the Source constitutes assets of an “investment fund” (within the meaning of Part
VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager”
or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s
assets that are included in such investment fund, when combined with the assets of all other
employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning of Section VI(c)(1)
of the QPAM Exemption) of such employer or by the same employee organization and managed by
such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of
Part I(c) and (g) of the QPAM Exemption are satisfied, as of the last day of its most recent
calendar quarter the QPAM does not own a 10% or more interest in the Company and neither the
QPAM nor any person controlling or controlled by the QPAM (applying the definition of
“control” in Section VI(e) of the QPAM Exemption) owns a 20% or more interest in the Company
(or less than 20% but greater than 10% if such person exercises control over the management
or policies of the Company by reason of its ownership interest) and (i) the identity of such
QPAM and (ii) the names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant to this clause (d);
or




(e) the Source constitutes assets of a “plan(s)” (within the meaning of Section IV of
PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within
the meaning of Part IV of the INHAM exemption), the conditions of Part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled
by the INHAM (applying the definition of “control” in Section IV(d) of the INHAM Exemption)
owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the Source have been
disclosed to the Company in writing pursuant to this clause (e); or




(f) the Source is a governmental plan; or




(g) the Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been identified to
the Company in writing pursuant to this clause (g); or




(h) the Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.



As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate
account” shall have the respective meanings assigned to such terms in section 3 of ERISA.


 


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Section 6.3. Accredited Investor. Each Purchaser severally represents that it is and at all
times relevant to the offer to sell the Notes was an “accredited investor” as defined in Rule 501
promulgated under the Securities Act.



Section 6.4 Information Regarding the Company. Each Purchaser acknowledges that (a) the
Company has made available, a reasonable time prior to the date of this Agreement, information and
the opportunity to ask questions and receive answers regarding the Obligors and the Notes and (b)
the Purchaser has been furnished with such information as the Purchaser has requested.



Section 7. Information as to Company.




Section 7.1. Financial and Business Information. The Company shall deliver to each holder of
Notes that is an Institutional Investor (and for purposes of this Agreement the information
required by this Section 7.1 shall be deemed delivered on the date of delivery of such information
in the English language or the date of delivery of an English translation thereof):




(a) Quarterly Statements — promptly after the same are available and in any event
within 45 days (or such shorter period as is 15 days greater than the period applicable to
the filing of the Company’s Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC
regardless of whether the Company is subject to the filing requirements thereof) after the
end of each quarterly fiscal period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of




(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and




(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year ending with such
quarter,




setting forth in each case in comparative form the figures for the corresponding period in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments; provided that delivery within the time period
specified above of copies of the Company’s Form 10-Q prepared in compliance with the
requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of
this Section 7.1(a) as they pertain to consolidated statements; provided further that the
Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely
made such Form 10-Q available on “EDGAR” and shall have given each Purchaser notice within
the time period required for the delivery of such 10-Q (or 10-K, as the case may be) of such
availability on Edgar in connection with each delivery (such availability and notice thereof
being referred to as “Electronic Delivery”);


 


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(b) Annual Statements — promptly after the same are available and in any event within
90 days (or such shorter period as is 15 days greater than the period applicable to the
filing of the Company’s Annual Report on Form 10-K (the “Form 10-K”) with the SEC regardless
of whether the Company is subject to the filing requirements thereof) after the end of each
fiscal year of the Company, duplicate copies of




(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such year, and




(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries for such year,




setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP and accompanied




(A) by an opinion thereon of an independent registered public accounting firm
of recognized international standing, which opinion shall state that such financial
statements present fairly, in all material respects, the consolidated financial
position of the companies being reported upon and their consolidated results of
operations and cash flows and have been prepared in conformity with GAAP, and that
the audit of such registered public accounting firm was performed in accordance with
the standards of the Public Accounting Oversight Board (United States), and that
such audit provides a reasonable basis for such opinion in the circumstances, and




(B) a report of such registered public accounting firm accountants stating that
they have reviewed this Agreement and stating further whether, in connection with
their audit, they have become aware of any condition or event that then constitutes
a Default or Event of Default or that caused them to believe the Company failed to
comply with the terms, conditions, provisions or conditions of Sections 9.15 (until
the Release Date with respect to any covenant included therein), 10.3, 10.4, 10.12
and 10.13 in as far as they related to financial and accounting matters, and if they
are aware that any such condition or event then exists, specifying the nature and
period of the existence thereof (it being understood that such accountants shall not
be liable to any Purchaser, directly or indirectly, for any failure to obtain
knowledge of any Default or Event of Default); and


 


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provided that the delivery within the time period specified above of the Company’s Form 10-K
for such fiscal year (together with the Company’s annual report to shareholders, if any,
prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the SEC, together with the accountants’ report
described in clause (B) above (the “Accountants’ Certificate”), shall be deemed to satisfy
the requirements of this Section 7.1(b), provided further that the Company shall be deemed
to have made such delivery of such Form 10-K if it shall have timely made Electronic
Delivery thereof, in which event the Company shall separately deliver concurrently with such
Electronic Delivery, the Accountants’ Certificate;




(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i)
each financial statement, report, circular, notice or proxy statement or similar document
(including any form of compliance certificate related to the Global Credit Facilities and
any consolidation working papers) sent by any Obligor or (so long as the
Existing Note Purchase Agreement remains in effect in the case of a Subsidiary that is not
an Obligor) any Subsidiary to its principal lending banks as a whole (excluding information
sent to such banks in the ordinary course of administration of a bank facility, such as
information relating to pricing and borrowing availability) or to its public securities
holders generally, and (ii) each regular or periodic report, each registration statement
(without exhibits except as expressly requested by such holder), and each prospectus and all
amendments thereto filed by any Obligor or any Subsidiary with the SEC or any similar
Governmental Authority or securities exchange and of all press releases and other statements
made available generally by any Obligor to the public concerning developments that are
Material; provided that the Company shall be deemed to have made deliveries required under
this Section 7.1(c)(ii) if it shall have timely made Electronic Delivery thereof (with
notice of such Electronic Delivery to each of the holders of Notes within five (5) Business
Days of the filing thereof);




(d) Notice of Default or Event of Default or Litigation or Arbitration — (i) promptly
and in any event within five Business Days after a Responsible Officer becomes aware of the
existence of any Default or Event of Default or that any Person has given any notice or
taken any action with respect to a claimed default hereunder or that any Person has given
any notice or taken any action with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of existence thereof and
what action the Obligors are taking or propose to take with respect thereto; and




(ii) promptly and in any event within five Business Days after a Responsible Officer
becomes aware of any current, threatened or pending litigation, arbitration or
administrative proceedings which has, or would, if adversely determined have, a Material
Adverse Effect, a written notice specifying the details of such litigation, arbitration or
administrative proceeding.


 


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(e) Employee Benefit Matters — promptly and in any event within five Business Days
after a Responsible Officer becoming aware of any of the following, a written notice setting
forth the nature thereof and the action, if any, that any Obligor or an ERISA Affiliate
proposes to take with respect thereto:




(i) with respect to any Plan, any reportable event, as defined in section
4043(b) of ERISA and the regulations thereunder, for which notice thereof has not
been waived pursuant to such regulations as in effect on the date hereof; or




(ii) the taking by the PBGC of steps to institute, or the threatening by the
PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by any Obligor or any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect to such Multiemployer Plan;
or




(iii) any event, transaction or condition that could result in the incurrence
of any liability by any Obligor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights, properties or
assets of any Obligor or any ERISA Affiliate pursuant to Title I or IV of ERISA or
such penalty or excise tax provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing, could reasonably be expected
to have a Material Adverse Effect; or




(iv) receipt of notice of the imposition of a Material financial penalty (which
for this purpose shall mean any tax, penalty or other liability, whether by way of
indemnity or otherwise) with respect to one or more Non-U.S. Plans;




(f) Notices from Governmental Authority — promptly, and in any event within 30 days of
receipt thereof, copies of any notice to any Obligor or any Subsidiary from any Governmental
Authority relating to any order, ruling, statute or other law or regulation that could
reasonably be expected to have a Material Adverse Effect;




(g) Requested Information — with reasonable promptness, such other data and
information relating to the business, operations, affairs, financial condition, assets or
properties of any Obligor or any of its Subsidiaries (including, but without limitation,
actual copies of the Company’s Form 10-Q and Form 10-K) or relating to the ability of any
Obligor to perform its obligations hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes, including information readily available to
any Obligor explaining such Obligor’s financial statements if such information has been
requested by the SVO in order to assign or maintain a designation of the Notes; and




(h) Quarterly Consolidating Working Papers — For so long as Section 9.15 is applicable
(with respect to Section 9.12 under the Existing Note Purchase Agreement), within 45 days
after the end of each quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year which shall be within 90 days
after the end of such fiscal year), copies of unaudited consolidating working papers for
each Subsidiary Guarantor providing the information necessary to determine the Obligors’
compliance with Section 9.15 (with respect to Section 9.12 under the Existing Note Purchase
Agreement) hereof.


 


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Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth:




(a) Covenant Compliance — the information (including detailed calculations) required
in order to establish whether the Obligors were in compliance with the requirements of
Section 9.10, 9.15 (until the Release Date with respect to any covenant included therein),
10.3 through and including 10.6, 10.8, 10.12 and 10.13, during the quarterly or annual
period covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in existence); and




(b) Event of Default — a statement that such Senior Financial Officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her supervision, a
review of the transactions and conditions of the Obligors and their Subsidiaries from the
beginning of the quarterly or annual period covered by the statements then being furnished
to the date of the certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of any Obligor or any Subsidiary to
comply with any Environmental Law), specifying the nature and period of existence thereof
and what action the Obligors shall have taken or proposes to take with respect thereto.



Section 7.3. Visitation. The Obligors shall permit the representatives of each holder of
Notes that is an Institutional Investor:




(a) No Default — if no Default or Event of Default then exists, at the expense of such
holder and upon reasonable prior notice to the Obligors, to visit the principal executive
office of the Obligors, to discuss the affairs, finances and accounts of the Obligors and
their Subsidiaries with any Obligor’s officers, and (with the consent of the Obligors, which
consent will not be unreasonably withheld) their independent public accountants, and (with
the consent of the Obligors, which consent will not be unreasonably withheld) to visit the
other offices and properties of any Obligor and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and




(b) Default — if a Default or Event of Default then exists, at the expense of the
Obligors to visit and inspect any of the offices or properties of any Obligor or any
Subsidiary, to examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent public accountants (and
by this provision the Obligors authorize said accountants to discuss the affairs, finances
and accounts of the Obligors and their Subsidiaries), all at such times and as often as may
be requested.


 


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Section 7.4. Limitation on Disclosure Obligation. The Obligors shall not be required to
disclose the following information pursuant to Section 7.1(d)(ii), 7.1(g) or 7.3:




(a) information that the Obligors determine after consultation with counsel qualified
to advise on such matters that, notwithstanding the confidentiality requirements
of Section 21, it would be prohibited from disclosing by applicable law or regulations
without making public disclosure thereof; or




(b) information that, notwithstanding the confidentiality requirements of Section 21,
the Obligors are prohibited from disclosing by the terms of an obligation of confidentiality
contained in any agreement with any non-Affiliate binding upon the Obligors and not entered
into in contemplation of this clause (b), provided that the Obligors shall use commercially
reasonable efforts to obtain consent from the party in whose favor the obligation of
confidentiality was made to permit the disclosure of the relevant information and provided
further that the Obligors have received a written opinion of counsel confirming that
disclosure of such information without consent from such other contractual party would
constitute a breach of such agreement.



Promptly after a request therefor from any holder of Notes that is an Institutional Investor, the
Obligors will provide such holder with a written opinion of counsel (which may be addressed to the
Obligors) relied upon as to any requested information that the Obligors are prohibited from
disclosing to such holder under circumstances described in this Section 7.4.



Section 8. Payment and Prepayment of the Notes.




Section 8.1. Required Prepayments. The Company will prepay the Notes at par and without
payment of the Make-Whole Amount or any premium on the dates and in the amounts set forth in
Schedule 8.1 hereto, provided that upon any partial prepayment of the Notes pursuant to Sections
8.2, 8.3, 8.4 or 8.9, the principal amount of each required prepayment of the Notes becoming due
under this Section 8.1 on and after the date of such prepayment shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Notes is reduced as a result of such
prepayment.



Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may, at its option,
upon notice as provided below, prepay at any time all, or from time to time any part, of the Notes,
in a minimum principal amount of not less than $1,000,000, and integral multiples of $100,000
thereafter in the case of a partial prepayment, at 100% of the principal amount so prepaid plus the
Make-Whole Amount determined for the prepayment date with respect to such principal amount. The
Company will give each holder of Notes written notice of each optional prepayment under this
Section 8.2 not less than 5 days and not more than 30 days prior to the


 


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date fixed for such
prepayment. Each such notice shall specify such date (which shall be
a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each
Note held by such holder to be prepaid (determined in accordance with Section 8.5), and the
interest to be paid on the prepayment date with respect to such principal amount being prepaid, and
shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole
Amount due in connection with such prepayment (calculated as if the date of such notice were the
date of the prepayment), setting forth the details of such computation. Two Business Days prior to
such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date. In the event the Company shall incorrectly
compute the Make-Whole Amount payable in connection with any Note to be prepaid pursuant to this
Section 8.2, the holder of such Note shall not be bound by such incorrect computation, but instead,
shall be entitled to receive an amount equal to the correct Make-Whole Amount, if any, computed in
compliance with the terms of this Agreement.



Section 8.3. Prepayment for Tax Reasons. If at any time as a result of a Change in Tax Law
(as defined below) the Company is or becomes obligated to make any Additional Payments (as defined
below) in respect of any payment of interest on account of any of the Notes in an aggregate amount
for all affected Notes equal to 5% or more of the aggregate amount of such interest payment on
account of all of the Notes, the Company may give the holders of all affected Notes irrevocable
written notice (each, a “Tax Prepayment Notice") of the prepayment of such affected Notes on a
specified prepayment date (which shall be a Business Day not less than 30 days nor more than 60
days after the date of such notice) and the circumstances giving rise to the obligation of the
Company to make any Additional Payments and the amount thereof and stating that all of the affected
Notes shall be prepaid on the date of such prepayment at 100% of the principal amount so prepaid
together with interest accrued thereon to the date of such prepayment plus an amount equal to the
Modified Make-Whole Amount for each such Note, except in the case of an affected Note if the holder
of such Note shall, by written notice given to the Company no more than 20 days after receipt of
the Tax Prepayment Notice, reject such prepayment of such Note (each, a “Rejection Notice"). Such
Tax Prepayment Notice shall be accompanied by a certificate of a Senior Financial Officer as to the
estimated Modified Make-Whole Amount due in connection with such prepayment (calculated as if the
date of such notice were the date of the prepayment), setting forth the details of such
computation. The form of Rejection Notice shall also accompany the Tax Prepayment Notice and shall
state with respect to each Note covered thereby that execution and delivery thereof by the holder
of such Note shall operate as a permanent waiver of such holder’s right to receive the Additional
Payments arising as a result of the circumstances described in the Tax Prepayment Notice in respect
of all future payments of interest on such Note (but not of such holder’s right to receive any
Additional Payments that arise out of circumstances not described in the Tax Prepayment Notice or
which exceed the amount of the Additional Payment described in the Tax Prepayment Notice), which
waiver shall be binding upon all subsequent transferees of such Note. The Tax Prepayment Notice
having been given as aforesaid to each holder of the affected Notes, the principal amount of such
Notes together with interest accrued thereon to the date of such prepayment plus the Modified
Make-Whole Amount shall become due and payable on such prepayment date, except in the case of Notes
the holders of which shall timely give a Rejection Notice as aforesaid. Two Business Days prior to
such prepayment, the Company shall deliver to each holder of a Note being so prepaid a certificate
of a Senior Financial Officer specifying the calculation of such Modified Make-Whole Amount as of
such prepayment date. In the event the Company shall incorrectly compute the Modified Make-Whole
Amount payable in connection with any Note to be prepaid pursuant to this Section 8.3, the holder
of such Note shall not be bound by such incorrect computation, but instead, shall be entitled to
receive an amount equal to the correct Modified Make-Whole Amount, if any, computed in compliance
with the terms of this Agreement.


 


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No prepayment of the Notes pursuant to this Section 8.3 shall affect the obligation of the
Company to pay Additional Payments in respect of any payment made on or prior to the date of such
prepayment. For purposes of this Section 8.3, any holder of more than one affected Note may act
separately with respect to each affected Note so held (with the effect that a holder of more than
one affected Note may accept such offer with respect to one or more affected Notes so held and
reject such offer with respect to one or more other affected Notes so held).



The Company may not offer to prepay or prepay Notes pursuant to this Section 8.3 (a) if a
Default or Event of Default then exists, (b) until the Company shall have taken commercially
reasonable steps to mitigate the requirement to make the related Additional Payments or (c) if the
obligation to make such Additional Payments directly results or resulted from actions taken by the
Company or any Subsidiary (other than actions required to be taken under applicable law), and any
Tax Prepayment Notice given pursuant to this Section 8.3 shall certify to the foregoing and
describe such mitigation steps, if any.



For purposes of this Section 8.3: “Additional Payments” means additional amounts required to
be paid to a holder of any Note pursuant to Section 13 by reason of a Change in Tax Law; and a
“Change in Tax Law” means (individually or collectively with one or more prior changes) (i) an
amendment to, or change in, any law, treaty, rule or regulation of the British Virgin Islands after
the date of the Closing, or an amendment to, or change in, an official interpretation or
application of such law, treaty, rule or regulation of the British Virgin Islands after the date of
the Closing, which amendment or change is in force and continuing and meets the opinion and
certification requirements described below or (ii) in the case of any other jurisdiction that
becomes a Taxing Jurisdiction with respect to the Company after the date of the Closing, an
amendment to, or change in, any law, treaty, rule or regulation of such jurisdiction, or an
amendment to, or change in, an official interpretation or application of such law, treaty, rule or
regulation, in any case after such jurisdiction shall have become a Taxing Jurisdiction with
respect to the Company, which amendment or change is in force and continuing and meets such opinion
and certification requirements. No such amendment or change shall constitute a Change in Tax Law
unless the same would in the opinion of the Company (which shall be evidenced by an Officer’s
Certificate of the Company and supported by a written opinion of counsel having recognized
expertise in the field of taxation in the Taxing Jurisdiction, both of which shall be delivered to
all holders of the Notes prior to or concurrently with the Tax Prepayment Notice in respect of such
Change in Tax Law) affect the deduction or require the withholding of any Tax imposed by such
Taxing Jurisdiction on any payment payable on the Notes.


 


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Section 8.4. Prepayment of Notes upon Change of Control.



(a) Condition to Company Action. Within fifteen (15) Business Days after a Responsible
Officer has knowledge of the occurrence of a Change of Control, the Company shall have given to
each holder of Notes written notice containing and constituting an offer to prepay Notes as
described in subparagraph (b) of this Section 8.4, accompanied by the certificate described in
subparagraph (e) of this Section 8.4.



(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by subparagraph (a) of this
Section 8.4 shall be an offer to prepay, in accordance with and subject to this Section 8.4, all,
but not less than all, the Notes held by each holder (in this case only, “holder” in respect of any
Note registered in the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on the date specified in such offer (the “Proposed Prepayment Date") that is not
less than 30 days and not more than 60 days after the date of such offer (if the Proposed
Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the
first Business Day which is at least 45 days after the date of such offer).



(c) Acceptance; Rejection. A holder of Notes may accept the offer to prepay made pursuant to
this Section 8.4 by causing a notice of such acceptance to be delivered to the Company at least 15
days prior to the Proposed Prepayment Date. A failure by a holder of Notes to respond to an offer
to prepay made pursuant to this Section 8.4 shall be deemed to constitute a rejection of such offer
by such holder.



(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.4 shall be
at 100% of the principal amount of such Notes, together with interest on such Notes accrued to the
date of prepayment, but without Make-Whole Amount. The prepayment shall be made on the Proposed
Prepayment Date.



(e) Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section 8.4 shall
be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated
the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.4; (iii) the principal amount of each Note offered to be prepaid; (iv)
the interest that would be due on each Note offered to be prepaid, accrued to the Proposed
Prepayment Date; (v) that the conditions of this Section 8.4 have been fulfilled; and (vi) in
reasonable detail, the nature and date or proposed date of the Change of Control.



Section 8.5. Allocation of Partial Prepayments. In the case of each partial prepayment of the
Notes pursuant to Sections 8.1 and 8.2, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts thereof not theretofore called for prepayment.



Section 8.6. Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment (which shall be a Business Day), together with
interest on such principal amount accrued to such date and the applicable Make-Whole Amount or
Modified Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and Make-Whole Amount or
Modified Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to
accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and
shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any
Note.


 


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Section 8.7. Purchase of Notes. The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes
except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement
and the Notes. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment or prepayment of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.



Section 8.8. Make-Whole Amount and Modified Make-Whole Amount. The terms “Make-Whole Amount”
and “Modified Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if
any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal, provided that neither the
Make-Whole Amount nor the Modified Make-Whole Amount may in any event be less than zero. For the
purposes of determining the Make-Whole Amount, the following terms have the following meanings:




“Applicable Percentage” In the case of a computation of the Modified Make-Whole Amount
for purposes of Section 8.3 means 1.00% (100 basis points), and in the case of a computation
of the Make-Whole Amount for any other purpose means .50% (50 basis points).




“Called Principal” means, with respect to any Note, the principal of such Note that is
to be prepaid pursuant to Section 8.2 or 8.3 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.




“Discounted Value” means, with respect to the Called Principal of any Note, the amount
obtained by discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date with respect to
such Called Principal, in accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which interest on the Notes is
payable) equal to the Reinvestment Yield with respect to such Called Principal.


 


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“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum
of the (x) Applicable Percentage plus (y) the yield to maturity implied by (i) the yields
reported as of 10:00 A.M. (New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the display designated as “Page
PX1” (or such other display as may replace Page PX1 on Bloomberg Financial Markets for the
most recently issued actively traded on the run U.S. Treasury securities having a maturity
equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or
(ii) if such yields are not reported as of such time
or the yields reported as of such time
are not ascertainable (including by way of interpolation), the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to such Called Principal,
in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication)
for U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. In the case of each determination under clause
(i) or clause (ii), as the case may be, of the preceding paragraph, such implied yield will
be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond
equivalent yields in accordance with accepted financial practice and (b) interpolating
linearly between (1) the applicable U.S. Treasury security with the maturity closest to and
greater than such Remaining Average Life and (2) the applicable U.S. Treasury security with
the maturity closest to and less than such Remaining Average Life. The Reinvestment Yield
shall be rounded to the number of decimal places as appears in the interest rate of the
applicable Note.




“Remaining Average Life” means, with respect to any Called Principal, the number of
years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by multiplying (a) the principal
component of each Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that will elapse between
the Settlement Date with respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.




“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note,
all payments of such Called Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such Settlement Date is not a
date on which interest payments are due to be made under the terms of the Notes, then the
amount of the next succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2, 8.3 or 12.1.




“Settlement Date” means, with respect to the Called Principal of any Note, the date on
which such Called Principal is to be prepaid pursuant to Section 8.2 or 8.3 or has become or
is declared to be immediately due and payable pursuant to Section 12.1, as the context
requires.


 


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Section 8.9. Prepayment in Connection with Sales of Assets. If the Company makes an offer to
prepay the Notes pursuant to Section 10.8, the Company will give written notice thereof to the
holders of all outstanding Notes, which notice shall (i) refer specifically to this Section 8.9 and
describe in reasonable detail the Disposition giving rise to such offer to prepay the Notes, (ii)
specify the principal amount of each Note being offered to be prepaid which amount shall be
allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts not theretofore called for prepayment, (iii) specify a
date not less than 30 days and not more than 60 days after the date of such notice (the
“Disposition Prepayment Date") and specify the Disposition Response Date (as defined below), and
(iv) offer to prepay on the Disposition Prepayment Date the amount specified in (ii) above with
respect to each Note together with interest accrued thereon to the Disposition Prepayment Date.
Each holder of a Note shall notify the Company of such holder’s acceptance or rejection of such
offer
by giving written notice of such acceptance or rejection to the Company (provided, however, that
any holder who fails to so notify the Company shall be deemed to have rejected such offer) on a
date at least 5 days prior to the Disposition Prepayment Date (such date 5 days prior to the
Disposition Prepayment Date being the “Disposition Response Date"), and the Company shall prepay on
the Disposition Prepayment Date the amount specified in (ii) above with respect to each Note held
by the holders who have accepted such offer in accordance with this Section 8.9.



Section 9. Affirmative Covenants.




Each Obligor, jointly and severally, covenants that so long as any of the Notes are
outstanding:



Section 9.1. Compliance with Law. Without limiting Section 10.10, the Obligors will, and will
cause each of their Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation, ERISA, the USA Patriot
Act and Environmental Laws, and will obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



Section 9.2. Insurance. The Obligors will, and will cause each of their Subsidiaries to,
maintain, with financially sound and reputable insurers, insurance with respect to their respective
properties and businesses against such casualties and contingencies, of such types, on such terms
and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves
are maintained with respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.



Section 9.3. Maintenance of Properties. The Obligors will, and will cause each of their
Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties
in good repair, working order and condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly conducted at all times, provided that
this Section shall not prevent the Obligors or any Subsidiary from discontinuing the operation and
the maintenance of any of its properties if such discontinuance is desirable in the conduct of its
business and the Obligors have concluded that such discontinuance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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Section 9.4. Payment of Taxes and Claims. The Obligors will, and will cause each of their
Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due
and payable on such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the extent the same
have become due and payable and before they have become delinquent and all claims for which sums
have become due and payable that have or might become a Lien on properties or assets of any Obligor
or any Subsidiary, provided that no Obligor nor any Subsidiary need pay any such tax, assessment,
charge or levy if (i) the amount, applicability or validity thereof is contested by such Obligor or
such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Obligors or
a Subsidiary has established adequate reserves therefor in accordance with applicable generally
accepted accounting principles (which shall be GAAP in the case of the Company) on the books of
such Obligor or such Subsidiary or (ii) the non-filing and nonpayment of all such taxes,
assessments, charges and levies in the aggregate could not reasonably be expected to have a
Material Adverse Effect.



Section 9.5. Corporate Existence, Etc. Except as permitted by Sections 10.7 and 10.8 and not
prohibited by the next sentence in the case of any Subsidiary Guarantor, the Obligors will at all
times preserve and keep in full force and effect their corporate existence. Except as permitted by
Sections 10.7 and 10.8, the Obligors will at all times preserve and keep in full force and effect
the existence of each of their Subsidiaries (except that (i) Subsidiaries which are not members of
the South African Group may (A) merge into an Obligor and (B) amalgamate with entities that
concurrently therewith become Obligors pursuant to Section 9.10 and (ii) Subsidiaries which are
members of the South African Group (other than Pyramid Freight BVI) may merge with other members of
the South African Group (other than Pyramid Freight BVI)) and all rights and franchises of the
Obligors and their Subsidiaries unless, in the good faith judgment of the Obligors, the termination
of or failure to preserve and keep in full force and effect such existence, right or franchise
could not, individually or in the aggregate, have a Material Adverse Effect.



Section 9.6. Books and Records. The Obligors will, and will cause each of their Subsidiaries
to, maintain proper books of record and account in conformity with applicable generally accepted
accounting principles and all applicable requirements of any Governmental Authority having legal or
regulatory jurisdiction over such Obligor or such Subsidiary, as the case may be.



Section 9.7. Priority of Obligations. The Obligors will ensure that their payment obligations
under the Financing Agreements will at all times rank at least pari passu, without preference or
priority, with all other unsecured and unsubordinated Indebtedness of the Obligors, including,
without limitation, the respective obligations of the Company and the Subsidiary Guarantors under
(i) the Existing Financing Agreements, (ii) the Global Credit Facilities and (iii) any other
Primary Credit Facility. Notwithstanding the foregoing, in the event that the Company is required
to cash collateralize the letters of credit under the Global Credit Facilities, the Company may
provide up to U.S.$15,000,000 (or its equivalent in any other currency) as cash collateral to
collateralize such letters of credit without providing collateral to the holders of the Notes,
provided no Event Default has occurred or would result from the provision of such cash collateral.



Section 9.8. [Reserved].


 


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Section 9.9. Dividend Capture from South Africa. The Obligors will ensure that cash
distributions are made to Pyramid Freight BVI in accordance with the general distribution
principles applied by the Company in respect of cash distributions made out of South Africa taking
into account at any time the requirements of any applicable South African exchange control
regulations, the local financial needs of the South African Group and any projected financial
requirements of the South African Group.



Section 9.10. Additional Obligors. (a) The Company will cause any Subsidiary of the Company,
whether now owned or hereafter formed or acquired, that becomes a borrower, guarantor or obligor
with respect to, or otherwise provides credit support for, any Material Indebtedness, substantially
concurrently to become a Subsidiary Guarantor (an “Additional Guarantor") under the Subsidiary
Guarantee Agreement by executing a joinder agreement to this Agreement in the form set out in Part
1 of Exhibit 9.10 (the “Joinder Agreement") and in any such event the Company will cause such
Subsidiary to deliver the relevant documents and evidence listed in Part 2 of Exhibit 9.10.



(b) As from the date of the Joinder Agreement, the relevant Subsidiary shall become an Obligor
and Subsidiary Guarantor under this Agreement.



(c) The Company agrees that:




(i) within 10 days following execution of a Joinder Agreement it will provide at least
one original and to each holder a copy of that Joinder Agreement (with evidence as to
payment of any applicable stamp duty or similar tax); and




(ii) immediately on execution of any such Joinder Agreement it will provide to each
holder a legal opinion (from legal counsel approved by the Required Holders acting
reasonably) confirming (1) the due execution and delivery of such Joinder Agreement, and the
validity and enforceability of the obligations of the relevant Subsidiary Guarantor under
such Joinder Agreement and this Agreement subject to such exceptions, assumptions and
qualifications as are substantially similar to those delivered with respect to the
obligations of the Subsidiary Guarantors as of the date of Closing and (2) such other
matters as the Required Holders may reasonably request so long as such opinions are
substantially similar in scope to the opinions delivered in connection with the Closing of
this Agreement. The Company shall cause such additional Subsidiary Guarantor to deliver
such other closing showings as may be reasonably requested by the Required Holders
substantially similar in scope to the closing showings delivered by the original Subsidiary
Guarantors at the Closing.



Notwithstanding the foregoing, each of (i) the South African Subsidiaries (other than Pyramid
Freight BVI to the extent permitted pursuant to Section 23.32 hereunder), to the extent that they
do not become an obligor or guarantor under any Global Credit Facility or the Existing Financing
Agreements, (ii) UTi Logistics Israel Limited (“UTi Israel"), so long as UTi Israel is not a
Wholly-Owned Subsidiary of the Company and to the extent it does not become an obligor or guarantor
under any Global Credit Facility or the Existing Financing Agreements, and (iii)
any other Subsidiary to the extent it does not become an obligor or guarantor under any Global
Credit Facility or the Existing Financing Agreements and to the extent not permitted by applicable
law to execute and deliver a Joinder Agreement to become a Subsidiary Guarantor, shall not be
required to deliver a Joinder Agreement hereunder.


 


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Section 9.11. Release of Subsidiary Guarantors; Substitution of Subsidiary Guarantors. Upon
notice by the Company to each holder of a Note (which notice shall contain a certification by the
Company as to the applicable matters specified below), a Subsidiary shall cease to be an Obligor
under this Agreement (i) if such Subsidiary has been, or will be concurrently, liquidated,
dissolved or otherwise disposed of, or otherwise ceases to exist by way of merger or otherwise, in
each case to the extent not prohibited by this Agreement or (ii) in connection with the execution
and delivery of a Joinder Agreement from a successor Subsidiary and compliance with Section 9.10,
provided, that, both immediately before and after giving effect to any such release (and execution
and delivery of such Joinder Agreement, if any) no Default or Event of Default shall have occurred
and be continuing, or would have existed, on a pro forma basis, if such release (and Joinder
Agreement, if any) had been effective as of the end of the most recent fiscal quarter.



Notwithstanding anything to the contrary in this Agreement, no Subsidiary Guarantor will be
released from its obligations as an Obligor under this Agreement unless concurrently with such
release one or more replacement Subsidiary Guarantors are added to this Agreement pursuant to
Section 9.10 that have total assets and earnings before interest, taxes, depreciation and
amortization in each case no less than those of the Subsidiary Guarantor being released and are
located in jurisdictions reasonably acceptable to the Required Holders.



Section 9.12. Group Structure. The Company will maintain its group structure in accordance
with the group structure chart set forth in Schedule 5.4, except for changes which, individually or
in the aggregate could not reasonably be expected to have a Material Adverse Effect. In no event
shall any Subsidiary incorporated in any country other than South Africa be owned directly or
indirectly by any member of the South African Group except that special purpose entities formed on
terms reasonably satisfactory to the Required Holders which do not have any Indebtedness which is
recourse to the Company or any Subsidiary (other than a member of the South African Group or
Pyramid Freight BVI) may be owned by a member of the South African Group.



Section 9.13. CASS Agreement. The Company will ensure that all amounts payable under the CASS
Agreement are promptly paid when due unless such payment is being diligently contested in good
faith by a member of the Group by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles of the relevant member of the Group have
been set aside on its books.


 


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Section 9.14. Additional Restrictions. If at any time the Company or any Subsidiary Guarantor
is a party to or shall enter into any agreement, instrument or other document with respect to any
Indebtedness that provides for more than U.S.$15,000,000 (or its equivalent in any other currency)
in principal amount of borrowings
or availability, including, without limitation, any agreement existing on the date of Closing (a
“Reference Agreement"), or any amendment or modification to any such Reference Agreement (or waiver
or consent modifying the terms of any Reference Agreement), which Reference Agreement includes
financial covenants (whether expressed in ratios or as numerical or dollar thresholds in respect of
future financial performance or condition), including such financial covenants which are expressed
as “events of default”, in each case which are not otherwise included in this Agreement (herein
referred to as “New Covenants") or which would be more beneficial to the holders of the Notes than
relevant similar covenants or like provisions contained in this Agreement (herein referred to as
“Improved Covenants” and, together with New Covenants, “Additional Covenants"), then such
Additional Covenants and all related provisions and definitions shall be deemed incorporated by
reference into Section 7.2(a), Section 10 and Section 11(c) of this Agreement, mutatis mutandi, as
if set forth fully in this Agreement. The Company shall:




(1) provide a copy of such Additional Covenants and all related provisions and
definitions to the holders of the Notes promptly upon entering into the Reference Agreement
or the relevant amendment or modification thereof (if entered into after the date hereof),
including with such copy a notice to the holders of the date on which such Additional
Covenants became or will become effective, provided that the failure of the Company to
provide a copy of such Additional Covenants to the holders shall not adversely affect the
automatic incorporation of the Additional Covenants into this Agreement as provided above in
this Section 9.14; and




(2) as promptly as possible following delivery of such copy, provide the draft of a
statement of incorporation (a “Memorialization") to be executed by the Company and the
holders, which Memorialization shall set out the terms of the Additional Covenants and
related provisions and definitions as incorporated into this Agreement, with all appropriate
changes required in connection with incorporating the Additional Covenants mutatis mutandi.



If the Company fails to provide a draft of a Memorialization, then any holder may produce a draft
for the consideration of the Company and the other holders. Any Memorialization executed and
delivered by the Company and by the Required Holders (or all holders if pursuant to Section 18.1
the relevant amendment would require the consent of all holders) shall be good and sufficient
evidence of the terms of any such Additional Covenant as incorporated into this Agreement, provided
that the failure of the holders and the Company to execute and deliver any Memorialization shall
not adversely affect the automatic incorporation of the Additional Covenants into this Agreement as
provided above in this Section 9.14.



If (A) any Additional Covenant that has been incorporated herein pursuant to this Section 9.14
is subsequently amended or modified in the relevant Reference Agreement with the effect that such
Additional Covenant is made less restrictive on the Company, such Additional Covenant, as amended
or modified, shall not be deemed incorporated by reference into this Agreement and (B) any
Additional Covenant that has been incorporated herein pursuant to this Section 9.14 is subsequently
removed or terminated from the relevant Reference Agreement or the Company and its Subsidiary
Guarantors are otherwise no longer required to comply
therewith under the relevant Reference Agreement, the Company and its Subsidiaries, beginning
on the effective date such Additional Covenant is removed or terminated from the relevant Reference
Agreement or the Company and its Subsidiary Guarantors are otherwise no longer required to comply
with such Additional Covenant, shall still remain obligated to comply with such Additional Covenant
hereunder, in each of cases (A) and (B) above, until such time as the Required Holders have agreed
in their sole discretion to amend, modify, remove or terminate such Additional Covenant to conform
to the Reference Agreement.


 


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Notwithstanding the foregoing, the provisions of this Section 9.14 shall not apply to (i) any
of the 2009 Covenants for which adjustments are made to this Agreement in accordance with Section
9.15 and (ii) any other credit facilities paid in full and terminated within 10 days of the date of
the Closing.



Section 9.15. 2009 Notes Covenants. The Company will comply with each 2009 Covenant as in
effect on the date hereof until the Release Date with respect to such 2009 Covenant and such 2009
Covenants and all related definitions shall be deemed incorporated by reference into this
Agreement, mutatis mutandi, as if set forth fully in this Agreement. If (a) the Release Date is
triggered by the happening of the event set forth in clause (a) of such definition, and (b) the
Company pays a fee to the holders of the notes under the Existing Note Purchase Agreement in excess
of 15 basis points on the principal amount outstanding under such Existing Note Purchase Agreement,
then within five Business Days after the effectiveness of such amendment of the Existing Note
Purchase Agreement, the Company shall pay to the holders of the Notes an amount equal to the
greater of (i) U.S.$50,000 or (ii) an amount equal to the amount paid to such holders in excess of
15 basis points.



Section 9.16. Post-Closing Obligations. Within 20 days from the Closing Date, or such other
date to which the Purchasers expressly agree, the Company, on behalf of itself, each Spanish
Obligor, and the Purchasers shall have formalized the ratification of the position of the Spanish
Obligors as Subsidiary Guarantors under this Agreement into a public document (escritura pública)
for the purposes of article 517, paragraph 2, number 4 of the Spanish Civil Procedure Law (Ley
1/2000 de 7 de enero, Ley de Enjuiciamiento Civil) (the “Civil Procedural Law") before a Spanish
notary public, at the expense of the Company. Within two Business Days from the execution of the
notarial deed, the Company shall have supplied to each Purchaser an authorized copy (primera copia
autorizada) of that deed.



Section 10. Negative Covenants.




Each Obligor, jointly and severally, covenants that so long as any of the Notes are
outstanding:



Section 10.1. Transactions with Affiliates. The Obligors will not and will not permit any
Subsidiary to enter into directly or indirectly any transaction or group of related transactions
(including, without limitation, the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with
any Affiliate (other than the Obligors or another Subsidiary which is not a member of the South
African Group (except for Pyramid Freight BVI with respect to assets which are and remain assets
outside of South Africa)), except in the ordinary course and pursuant to the reasonable
requirements of such Obligor’s or such Subsidiary’s business and upon fair and reasonable terms no
less favorable to the Obligors or such Subsidiary than would be obtainable in a comparable
arm’s-length transaction with a Person not an Affiliate.


 


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Section 10.2. Restricted Payments.



(a) Limitation. The Company will not, and will not permit any of its Subsidiaries to, at any
time, declare or make, or incur any liability to declare or make, any Restricted Payment unless
immediately after giving effect to such action no Default or Event of Default would exist. The
foregoing restriction shall not apply to (i) payment of Restricted Payments which were declared
prior to the existence of any Default or Event of Default, (ii) Restricted Payments paid to the
Company or any Wholly-Owned Subsidiary or (iii) Restricted Payments pursuant to agreements entered
into to obtain or maintain BBBEE status.



(b) Time of Payment. The Company will not, nor will it permit any of its Subsidiaries to,
authorize a Restricted Payment that is not payable within 60 days of authorization.



Section 10.3. Consolidated Total Debt Coverage. The Company will ensure that the ratio of
Consolidated Total Debt at any time to Consolidated EBITDA for the Measurement Period then or most
recently ended, is not greater than 3.25 to 1.00.



Section 10.4. Priority Debt. The Obligors will not permit Priority Debt at any time to exceed
15% of Consolidated Net Worth determined as of the end of the then most recently ended fiscal
quarter.



Section 10.5. Liens. The Obligors will not, and will not permit any of their Subsidiaries to,
directly or indirectly create, incur, assume or permit to exist (upon the happening of a
contingency or otherwise) any Lien on or with respect to any property or asset (including, without
limitation, any document or instrument in respect of goods or accounts receivable) of the Company
or any such Subsidiary, whether now owned or held or hereafter acquired, or any income or profits
therefrom or assign or otherwise convey any right to receive income or profits, except:




(a) any Lien arising by operation of law (other than in connection with ERISA) and in
the ordinary course of business;




(b) Liens for taxes, assessments or other governmental charges or levies which are not
yet due and payable or the payment of which is not at the time required by Section 9.4;




(c) attachments, appeal bonds, judgments and other similar Liens for sums not
exceeding in aggregate U.S.$5,000,000 (or its equivalent in any other currency)
arising in connection with any court or similar proceedings, provided the execution or other
enforcement of such Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;




(d) easements, rights of way, restrictions, minor defects or irregularities in title
and other similar Liens not interfering in any material respect with the ordinary conduct of
the business of any member of the Group;


 


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(e) any Lien in favor of CASS arising under the CASS Agreement in the ordinary course
of business;




(f) any Lien arising as a result of a Capital Lease permitted to exist under Section
10.13 in an amount not to exceed U.S.$90,000,000 (or its equivalent in any other currency)
at any one time;




(g) Liens that constitute purchase money security interests on any property securing
debt incurred for the purpose of financing all or any part of the cost of acquiring such
property, provided that (i) any such Lien attaches to such property within 60 days of the
acquisition thereof and attaches solely to the property so acquired and (ii) the aggregate
principal amount of all Indebtedness secured by any such Liens shall not, at any time,
exceed 15% of Consolidated Tangible Assets;




(h) any Lien comprising a netting or set-off arrangement entered into by a member of
the Group in the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances;




(i) any Lien in column 11 (Security) of Schedule 5.15 securing Indebtedness otherwise
permitted hereunder and any refinancings or renewals thereof;




(j) Liens securing obligations of a Subsidiary (other than a member of the South
African Group or Pyramid Freight BVI) to the Company or to another Subsidiary (other than a
member of the South African Group or Pyramid Freight BVI); and Liens securing obligations of
a member of the South African Group or Pyramid Freight BVI (to the extent that such Liens
attach only to assets located in South Africa) to another member of the South African Group
or Pyramid Freight BVI;




(k) any Lien constituted by the Cession in Security Agreement and, in respect of any
Subsidiary formed under the laws of New Zealand, any “security interest” as defined in
section 17(1)(b) of the Personal Property Securities Act 1999 (NZ) which does not secure
payment or performance of any obligation;




(l) any Lien on an asset, or an asset of any person, acquired by a member of the Group
after the date of this Agreement, provided that (i) the aggregate amount covered by any such
Lien does not exceed U.S.$10,000,000 (or its equivalent in any other currency) at any time,
(ii) such Lien is only in place for the period of six (6) months from
the date of acquisition and (iii) the principal amount secured by that Lien has not been
incurred or increased in contemplation of, or since, the acquisition;




(m) any arrangement constituted by retention of title in connection with the
acquisition of goods from a supplier provided the goods are acquired in the ordinary course
of business on the normal commercial terms of the supplier, which terms must not provide for
retention of title when all goods supplied have been paid for in full; and


 


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(n) if and so long as on the date such Liens are granted no Default or Event of Default
exists hereunder or would result hereunder, including, without limitation, under Section
10.4, Liens securing Indebtedness of the Company or any Subsidiary in addition to those
described in clauses (a) through (m) above.



For the purposes of this Section 10.5, any Person becoming a Subsidiary after the date of this
Agreement shall be deemed to have incurred all of its then outstanding Liens at the time it becomes
a Subsidiary, and any Person extending, renewing or refunding any Indebtedness secured by any Lien
shall be deemed to have incurred such Lien at the time of such extension, renewal or refunding.



Notwithstanding the foregoing or any other provision of this Agreement, the Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or
permit to exist (upon the happening of a contingency or otherwise) any Lien on any assets of the
Company or any Subsidiary securing any Primary Credit Facility except as set forth in the second
sentence of Section 9.7, unless the Notes are also concurrently equally and ratably secured
pursuant to documentation, including, without limitation, an intercreditor agreement, reasonably
satisfactory to the Required Holders.



Section 10.6. Subsidiary Indebtedness. In addition to and not in limitation of any other
applicable restrictions herein, including Sections 10.3 and 10.4, the Company will not, at any
time, permit any Subsidiary to, directly or indirectly, create, incur, assume, guarantee, have
outstanding, or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness other than:




(a) Indebtedness of members of the South African Group (other than Pyramid Freight BVI)
not to exceed 800,000,000 South African Rand (or its equivalent in any other currency) at
any time; and, Indebtedness consisting solely of put rights or mandatorily redeemable
interests with respect to equity issued by any member of the South African Group to enable
such Subsidiary to maintain BBBEE status;




(b) any unsecured Indebtedness of any Subsidiary Guarantor consisting of direct
obligations or Guaranties;




(c) Indebtedness of any Subsidiary of the Company (other than a member of the South
African Group or Pyramid Freight BVI) in an aggregate amount not to exceed U.S.$60,000,000
(or its equivalent in any other currency) at any time;




(d) Indebtedness incurred under any Capital Lease permitted to exist under Section
10.13 in an amount not to exceed U.S.$90,000,000 (or its equivalent in any other currency)
at any one time;




(e) Indebtedness of a Subsidiary (other than a member of the South African Group or
Pyramid Freight BVI) owed to an Obligor or a Wholly-Owned Subsidiary (other than a member of
the South African Group or Pyramid Freight BVI);


 


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(f) Indebtedness owed by a member of the South African Group or Pyramid Freight BVI to
another member of the South African Group or Pyramid Freight BVI;




(g) unsecured Indebtedness of any Subsidiary (other than a member of the South African
Group or Pyramid Freight BVI) owed to a member of the South African Group or Pyramid Freight
BVI so long as such Indebtedness is contractually subordinated to such Subsidiary
Guarantors’ obligations hereunder on terms reasonably satisfactory to the Required Holders;




(h) unsecured Indebtedness of a member of the South African Group or Pyramid Freight
BVI owed to the Company or a Subsidiary (other than a member of the South African Group or
Pyramid Freight BVI) in an amount not to exceed the lesser of (i) until the Release Date as
a result of the circumstances set forth in clause (b) thereof, the amount permitted under
the Existing Note Purchase Agreement or (ii) U.S.$10,000,000 (or its equivalent in any other
currency);




(i) secured Indebtedness of any Subsidiary to the extent that the Lien securing such
Indebtedness would be permitted pursuant to Section 10.5(g) or 10.5(h);




(j) Indebtedness under earnout arrangements in an aggregate amount of up to
U.S.$65,000,000 (or its equivalent in any other currency) at any one time to the extent such
indebtedness remains contingent in accordance with the terms of the earnout arrangements;




(k) any Indebtedness incurred under the Financing Agreements;




(l) existing Indebtedness in an amount not to exceed U.S.$55,000,000 of Pyramid Freight
BVI to Goddard Company Limited; and




(m) Indebtedness of a Subsidiary in addition to that otherwise permitted by the
foregoing provisions, provided that on the date such Subsidiary incurs or otherwise becomes
liable with respect to any such Indebtedness, and immediately after giving effect to the
incurrence thereof, no Default or Event of Default exists hereunder, including, without
limitation, under Section 10.4.



For the purpose of this Section 10.6, any Person becoming a Subsidiary after the date of the
Closing shall be deemed, at the time it becomes such a Subsidiary, to have incurred all of its then
outstanding Indebtedness.


 


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Section 10.7. Merger, Consolidation, Etc. The Company will not consolidate with or merge with
any other Person or convey, transfer or lease all or substantially all of its assets in a single
transaction or series of transactions to any Person unless:




(a) the successor formed by such consolidation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease all or substantially all of the assets
of the Company as an entirety, as the case may be, shall be a solvent corporation, limited
liability company or other legal entity organized and existing under the laws of the United
States or any State thereof (including the District of Columbia) or any other Permitted
Jurisdiction, and, if the Company is not such corporation, limited liability company or
other legal entity, (i) such corporation, limited liability company or other legal entity
shall have executed and delivered to each holder of any Notes its assumption of the due and
punctual performance and observance of each covenant and condition of this Agreement and the
Notes and (ii) such corporation, limited liability company or other legal entity shall have
caused to be delivered to each holder of any Notes an opinion of internationally recognized
independent counsel, or other independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms hereof; and




(b) immediately before and immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.



No such conveyance, transfer or lease of substantially all of the assets of the Company shall have
the effect of releasing the Company or any successor corporation, limited liability company or
other legal entity that shall theretofore have become such in the manner prescribed in this Section
10.7 from its liability under this Agreement or the Notes.



Section 10.8. Sale of Assets. Except as permitted by Section 10.7, the Obligors will not, and
will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way
of merger (collectively, a “Disposition"), any assets, including capital stock of Subsidiaries, in
one or a series of transactions, to any Person, other than:




(a) Dispositions in the ordinary course of business;




(b) Dispositions by a Subsidiary to the Company or a Wholly-Owned Subsidiary which is
not a member of the South African Group or Pyramid Freight BVI and Dispositions by a
Subsidiary which is a member of the South African Group to a Subsidiary which is a member of
the South African Group or Pyramid Freight BVI;




(c) Dispositions not otherwise permitted by clause (a) or (b) of this Section 10.8,
provided that (i) the aggregate net book value of all assets so disposed of in any
twelve-month period pursuant to this Section 10.8(c) does not exceed 10% of
Consolidated Total Assets as of the last day of the most recently ended fiscal quarter and
(ii) after giving effect to such transaction, no Default or Event of Default shall exist;
and




(d) Dispositions of stock or other interests or securities, by way of merger or
otherwise, of a member of the South African Group to another Person in order to obtain or
maintain BBBEE status.


 


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The Obligors may, or may permit a Subsidiary to, make a Disposition and the assets subject to such
Disposition shall not be subject to or included in the foregoing limitation and computation
contained in clause (c)(i) of the preceding sentence if:




(A) (x) in the case of a Disposition by a Person who is not a member of the South
African Group, the net proceeds from such Disposition are reinvested in productive assets to
be used in the existing business of the Company or a Subsidiary which is not (i) a member of
the South African Group or (ii) Pyramid Freight BVI (to the extent such assets are in South
Africa) and (y) in the case of a Disposition by a Person who is a member of the South
African Group, the net proceeds from such Disposition are reinvested in productive assets to
be used in the existing business of the Company or a Subsidiary; or




(B) (x) in the case of a Disposition by a Person who is not a member of the South
African Group, the net proceeds from such Disposition are applied to the payment or
prepayment of Senior Indebtedness, including an offer to prepay the Notes on a pro rata
basis with other Senior Indebtedness of the Company or any Subsidiary which is not a member
of the South African Group or Pyramid Freight BVI (other than Senior Indebtedness in respect
of any revolving credit or similar credit facility providing the Company or any Subsidiary
with the right to obtain loans or other extensions of credit from time to time, except to
the extent that in connection with such payment of Senior Indebtedness the available credit
under such credit facility is permanently reduced by an amount not less than the amount of
such proceeds applied to the payment of Senior Indebtedness) and (y) in the case of a
Disposition by a Person who is a member of the South African Group, the net proceeds from
such Disposition are applied to the payment or prepayment of Indebtedness of the Company or
any Subsidiary owing to any Person that is not a Subsidiary or Affiliate and which is not
expressed to be junior or subordinate to any other Indebtedness of the Company or Subsidiary
(other than Indebtedness in respect of any revolving credit or similar facility except to
the extent that such facility is permanently reduced).



For purposes of foregoing clause (B)(x), the Company shall offer to prepay the Notes in accordance
with Section 8.9 hereof. For purposes of the foregoing clauses (A) and (B), to the extent that the
assets that are disposed of are assets owned by a Person other than a member of the South African
Group or Pyramid Freight BVI, the proceeds of such Disposition shall only be applied to acquire
assets, or prepay debt of, an Obligor or a Subsidiary which is not a member of the South African
Group or Pyramid Freight BVI.



Notwithstanding the foregoing, at the time of any Disposition and after giving effect thereto,
in no event shall Consolidated Total Assets of the Company and its Subsidiaries (other than the
South African Group and Pyramid Freight BVI) constitute less than 50% of Consolidated Total Assets.



Section 10.9. Line of Business. The Obligors will not and will not permit any Subsidiary to
engage in any business if, as a result, the general nature of the business in which the Obligors
and their Subsidiaries, taken as a whole, would then be engaged would be substantially changed from
the general nature of the business in which the Obligors and their Subsidiaries, taken as a whole,
are engaged on the date of this Agreement.


 


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Section 10.10. Terrorism Sanctions Regulations. The Company will not and will not permit any
Controlled Entity to (a) become a Blocked Person or (b) have any investments in or engage in any
dealings or transactions with any Blocked Person if such investments, dealings or transactions
would cause any holder of a Note to be in violation of any laws or regulations that are applicable
to such holder.



Section 10.11. Subsidiaries in South Africa. No Subsidiary of the Company incorporated in
South Africa may become an obligor or guarantor under the Global Credit Facilities or Existing
Financing Agreements. Neither the Company nor any Subsidiary of the Company (other than the South
African Group (exclusive of Pyramid Freight BVI)) may become an obligor or guarantor under the
South African Facilities. Except as permitted by Section 10.6 or otherwise outstanding on the date
hereof, the Obligors will not at any time have any Indebtedness outstanding which is owed to a
member of the South African Group or Pyramid Freight BVI.



Section 10.12. Minimum Debt Service Ratio. The Company will not permit the Debt Service Ratio
to be, as of the end of any Measurement Period, less than 2.50 to 1.00.



Section 10.13. Capital Leases. Capital Leases of the Company and its Subsidiaries will not,
at any time, exceed in the aggregate (i) U.S.$90,000,000 (or its equivalent in any other currency)
plus (ii) at all times after the later to occur of June 30, 2012 or the Release Date pursuant to
clause (b) of the definition thereof, such amounts as the Company and its Subsidiaries are
permitted to have outstanding pursuant to Section 10.4 hereof.



Section 11. Events of Default.




An “Event of Default” shall exist if any of the following conditions or events shall occur and
be continuing:




(a) any Obligor defaults in the payment of any principal or Make-Whole Amount or
Modified Make-Whole Amount, if any, on any Note when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by declaration or
otherwise; or




(b) any Obligor defaults in the payment of any interest on any Note or any amount
payable pursuant to Section 13 for more than five Business Days after the same becomes due
and payable; or




(c) (i) any Subsidiary Guarantor defaults in the performance of or compliance with any
term contained in Section 23, or (ii) any Obligor defaults in the performance of or
compliance with any term contained in Section 7.1(d) or Sections 9.15, 10.2 through and
including 10.8, 10.12 and 10.13; or




(d) any Obligor defaults in the performance of or compliance with any term contained
herein (other than those referred to in Sections 11(a), (b) and (c)) and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) any Obligor receiving written notice of such default from
any holder of a Note (any such written notice to be identified as a “notice of default” and
to refer specifically to this Section 11(d)); or


 


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(e) any representation or warranty made in writing by or on behalf of any Obligor or by
any officer of any Obligor in any Financing Agreement or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or




(f) (i) any Obligor or any Subsidiary is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or make-whole amount or interest
on any Indebtedness that is outstanding in an aggregate principal amount of at least
U.S.$10,000,000 (or its equivalent in the relevant currency of payment) until such time as
the Existing Note Purchase Agreement has been terminated and U.S.$15,000,000 (or its
equivalent in the relevant currency of payment) at all times thereafter beyond any period of
grace provided with respect thereto, or (ii) any Obligor or any Subsidiary is in default in
the performance of or compliance with any term of any evidence of any Indebtedness in an
aggregate outstanding principal amount of at least U.S.$10,000,000 (or its equivalent in the
relevant currency of payment) until such time as the Existing Note Purchase Agreement has
been terminated and U.S.$15,000,000 (or its equivalent in the relevant currency of payment)
at all times thereafter or of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared (or one or more Persons are entitled to
declare such Indebtedness to be), due and payable before its stated maturity or before its
regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time or the right of the
holder of Indebtedness to convert such Indebtedness into equity interests), (x) any Obligor
or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular
maturity or before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least U.S.$10,000,000 (or its equivalent in the relevant currency of
payment) until such time as the Existing Note
Purchase Agreement has been terminated and U.S.$15,000,000 (or its equivalent in the
relevant currency of payment) at all times thereafter, or (y) one or more Persons have the
right to require any Obligor or any Subsidiary so to purchase or repay such Indebtedness
other than (in the case of each of clauses (i) through (iii) immediately above) Indebtedness
consisting of Capital Leases if the non-payment of such Indebtedness has resulted from the
loss of the asset which is subject to the Capital Lease to the extent the obligations under
that Capital Lease are covered by insurance; or




(g) any Obligor or any Significant Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, winding-up, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization, winding-up, moratorium or other
similar law of any jurisdiction, (iii) makes an assignment, composition or arrangement for
the benefit of its creditors, (iv) consents to the appointment of a liquidator, custodian,
receiver, administrative receiver or administrator, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose
of any of the foregoing; or


 


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(h) a court or Governmental Authority of competent jurisdiction enters an order
appointing, without consent by any Obligor or any of its Significant Subsidiaries, a
liquidator, custodian, receiver, administrative receiver or administrator, trustee or other
officer with similar powers with respect to it or with respect to any substantial part of
its assets or property, or constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of any Obligor or any of its Significant
Subsidiaries, or any such petition shall be filed against any Obligor or any of its
Significant Subsidiaries and such petition shall not be dismissed within 60 days; or




(i) any event occurs with respect to any Obligor or any Significant Subsidiary which
under the laws of any jurisdiction is analogous to any of the events described in Section
11(g) or (h), including but not limited to, (x) a Dutch Obligor being declared bankrupt
(failliet verklaard) or dissolved (ontbonden), (y) a redressement judiciaire, cession totale
de l’entreprise or liquidation judiciaire under Articles L.620-1 et seq. of the French
Commercial Code and (z) a winding-up, administration or dissolution (and each of those
terms) and including insolvency proceedings (Insolvenzverfahren) in Germany, provided that
the applicable grace period, if any, which shall apply shall be the one applicable to the
relevant proceeding which most closely corresponds to the proceeding described in Section
11(g) or (h); or




(j) a final judgment or judgments for the payment of money aggregating in excess of
U.S.$50,000,000 (or its equivalent in the relevant currency of payment) are rendered against
one or more of any Obligor and its Subsidiaries and which judgments
are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or
are not discharged within 60 days after the expiration of such stay; or




(k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the
Code for any plan year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected to be filed with the
PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have notified any Obligor or any
ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the sum of
(x) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, plus
(y) the amount (if any) by which the aggregate present value of accrued benefit liabilities
under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such
Non-U.S.


 


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Plans allocable to such liabilities, shall exceed U.S.$50,000,000 (or its
equivalent in any other currency), (iv) any Obligor or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v)
any Obligor or any ERISA Affiliate withdraws from any Multiemployer Plan, (vi) any Obligor
or any Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability of any
Obligor or any Subsidiary thereunder, (vii) any Obligor or any Subsidiary fails to
administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all
applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is
involuntarily terminated or wound up or (viii) any Obligor or any Subsidiary becomes subject
to the imposition of a financial penalty (which for this purpose shall mean any tax, penalty
or other liability, whether by way of indemnity or otherwise) with respect to one or more
Non-U.S. Plans; and any such event or events described in clauses (i) through (viii) above,
either individually or together with any other such event or events, would reasonably be
expected to have a Material Adverse Effect; or




(l) an Obligor (other than the Company) is not or ceases to be a Subsidiary of the
Company other than as permitted hereunder.



As used in Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in section 3 of ERISA.



Section 12. Remedies on Default, Etc.




Section 12.1. Acceleration. (a) If an Event of Default with respect to any Obligor described
in Section 11(g), (h) or (i) (other than an Event of Default described in clause (i) of Section
11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause
encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.



(b) If any other Event of Default has occurred and is continuing, any holder or holders of
more than 50% in principal amount of the Notes at the time outstanding may at any time at its or
their option, by notice or notices to the Company, declare all the Notes then outstanding to be
immediately due and payable.



(c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing,
any holder or holders of Notes at the time outstanding affected by such Event of Default may at any
time, at its or their option, by notice or notices to any Obligor, declare all the Notes held by it
or them to be immediately due and payable.


 


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Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes,
plus (x) all accrued and unpaid interest thereon (including, without limitation, interest accrued
thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be immediately due and payable,
in each and every case without presentment, demand, protest or further notice, all of which are
hereby waived. The Obligors acknowledge, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free from repayment by the Obligors (except
as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by
the Obligors in the event that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right under such
circumstances.



Section 12.2. Other Remedies. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately due
and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement contained herein or
in any Note or in any other Financing Agreement, or for an injunction against a violation of any of
the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by
law or otherwise.



Section 12.3. Rescission. At any time after any Notes have been declared due and payable
pursuant to Section 12.1(b) or (c), the holders of not less than 51% in principal amount of the
Notes then outstanding, by written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount or Modified Make-Whole Amount, if any, on any Notes that are due
and payable and are unpaid other than by reason of such declaration, and all interest on such
overdue principal and Make-Whole Amount or Modified Make-Whole Amount, if any, and (to the extent
permitted by applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b)
neither the Company nor any other Person shall have paid any amounts that have become due solely by
reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration, have been cured or have been
waived pursuant to Section 18, and (d) no judgment or decree has been entered for the payment of
any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend
to or affect any subsequent Event of Default or Default or impair any right consequent thereon.



Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no
delay on the part of any holder of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right,
power or remedy conferred by this Agreement, any Note or any other Financing Agreement upon any
holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 16, the Company will pay to the holder of each Note on
demand such further amount as shall be sufficient to cover all costs and expenses of such holder
incurred in any enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys’ fees, expenses and disbursements and any registration duty.


 


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Section 12.5. Executive Proceedings.



(a) At the discretion of the holders of the Notes, the ratification of the position of each
Spanish Obligor as a Subsidiary Guarantor under this Agreement shall be formalized in a Spanish
public document (escritura pública), so that it has the status of a notarial document of loan for
all purposes contemplated in article 517, paragraph 2, number 4 of the Civil Procedural Law.



(b) Upon enforcement, the sum payable by any Spanish Obligor shall be the principal amount
outstanding under all Notes issued hereunder together with all accrued interest and Make-Whole
Amount, if any, on such Notes. For the purposes of Articles 571 et seq. of the Civil Procedural
Law, the Obligors and the holders of the Notes expressly agree that such balances shall be
considered as due, liquid and payable and may be claimed pursuant to the same provisions of such
law.



(c) For the purposes of Articles 571 et seq. of the Civil Procedural Law, it is expressly
agreed by the Obligors and the holders of the Notes that the determination of the debt to be
claimed through the executive proceedings shall be effected by the holders of the Notes by means of
the appropriate certificate evidencing the balances shown in the relevant account(s) referred to in
paragraph (b) above. By virtue of the foregoing, to exercise executive action by the holders of
the Notes it will be sufficient to deliver (i) an original notarial first or authentic copy of this
Agreement, (ii) the notarial document (acta notarial) which incorporates the certificate issued by
the holders of the Notes of the amount due by any Spanish Obligor including an excerpt of the
credits and debits, including the interest applied, which appear in the relevant account(s)
referred to in paragraph (b) above, evidencing that the determination of the amounts due and
payable by the Spanish Obligor has been calculated as agreed in this Agreement and that such
amounts coincide with the balance of such accounts, and (iii) a notarial document (acta notarial)
evidencing that the Obligors have been served notice of the amount that is due and payable.



(d) The amount of the balances so established shall be notified to the Obligors in an
attestable manner at least three days in advance of exercising the executive action set out in
paragraph (c) above.



(e) The Spanish Obligors hereby expressly authorize the holders of the Notes to request and
obtain certificates and documents, including second or further copies of the deed in which the
ratification of the position of the Spanish Obligors as Subsidiary Guarantors under this Agreement
is formalized, issued by the notary who has formalized the ratification of the position of the
Spanish Obligors as Subsidiary Guarantors under this Agreement in order to evidence its compliance
with the entries of his registry-book and the relevant entry date for the purpose of article 517,
paragraph 2, number 4 of the Civil Procedural Law. The cost of such certificates and documents
will be for the account of the Obligors.


 


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Section 13. Tax Indemnification.




All payments whatsoever under the Financing Agreements will be made by the Obligors in lawful
currency of the United States of America free and clear of, and without liability for withholding
or deduction for or on account of, any present or future Taxes of whatever nature imposed or levied
by or on behalf of any jurisdiction other than the United States (or any political subdivision or
taxing authority of or in such jurisdiction) (hereinafter a “Taxing Jurisdiction"), unless the
withholding or deduction of such Tax is compelled by law.



If any deduction or withholding for any Tax of a Taxing Jurisdiction shall at any time be
required in respect of any amounts to be paid by any Obligor under the Financing Agreements, the
Obligors will pay to the relevant Taxing Jurisdiction the full amount required to be withheld,
deducted or otherwise paid before penalties attach thereto or interest accrues thereon and pay to
each holder of a Note such additional amounts as may be necessary in order that the net amounts
paid to such holder pursuant to the terms of the Financing Agreements after such deduction,
withholding or payment (including, without limitation, any required deduction or withholding of Tax
on or with respect to such additional amount), shall be not less than the amounts then due and
payable to such holder under the terms of the Financing Agreements before the assessment of such
Tax, provided that no payment of any additional amounts shall be required to be made for or on
account of:




(a) any Tax that would not have been imposed but for the existence of any present or
former connection between such holder (or a fiduciary, settlor, beneficiary, member of,
shareholder of, or possessor of a power over, such holder, if such holder is an estate,
trust, partnership or corporation or any Person other than the holder to whom the Notes or
any amount payable thereon is attributable for the purposes of such Tax) and the Taxing
Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments
thereunder or in respect thereof, including, without limitation, such holder (or such other
Person described in the above parenthetical) being or having been a citizen or resident
thereof, or being or having been present or engaged in trade or business therein or having
or having had an establishment, office, fixed base or branch therein, provided that this
exclusion shall not apply with respect to a Tax that would not have been imposed but for an
Obligor, after the date of the Closing, opening an office in, moving an office
to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments
on account of this Agreement or the Notes are made to, the Taxing Jurisdiction imposing the
relevant Tax;




(b) any Tax that would not have been imposed but for the delay or failure by such
holder (following a written request by an Obligor) in the filing with the relevant Taxing
Jurisdiction of Forms (as defined below) that are required to be filed by such holder to
avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings
that may from time to time be required by the relevant Taxing Jurisdiction), provided that
the filing of such Forms would not (in such holder’s reasonable judgment) impose any
unreasonable burden (in time, resources or otherwise) on such holder or result in any
confidential or proprietary income tax return information being revealed, either directly or
indirectly, to any Person and such delay or failure could have been lawfully avoided by such
holder, and provided further that such holder shall be deemed to have satisfied the
requirements of this clause (b) upon the good faith completion and submission of such Forms
(including refilings or renewals of filings) as may be specified in a written request of an
Obligor no later than 60 days after receipt by such holder of such written request
(accompanied by copies of such Forms and related instructions, if any, all in the English
language or with an English translation thereof); or


 


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(c) any combination of clauses (a) and (b) above;



and provided further that in no event shall the Obligors be obligated to pay such additional
amounts (i) to any holder of a Note not resident in the United States of America or any other
jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing
(the “Original Jurisdiction") in excess of the amounts that the Obligors would be obligated to pay
if such holder had been a resident of the United States of America or the Original Jurisdiction, as
applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time
to time in effect between the United States of America or the Original Jurisdiction, as applicable,
and the relevant Taxing Jurisdiction, or (ii) to any holder of a Note registered in the name of a
nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory
interpretation of such law) securities held in the name of a nominee do not qualify for an
exemption from the relevant Tax and the Obligors shall have given timely notice of such law or
interpretation to such holder.



By acceptance of any Note, the holder of such Note agrees, subject to the limitations of
clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and
deliver to or as reasonably directed by an Obligor all such forms, certificates, documents and
returns provided to such holder by such Obligor (collectively, together with instructions for
completing the same, “Forms") required to be filed by or on behalf of such holder in order to avoid
or reduce any such Tax pursuant to the provisions of an applicable statute, regulation or
administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the United
States and such Taxing Jurisdiction and (y) provide an Obligor with such information with respect
to such holder as such Obligor may reasonably request in order to complete any such Forms, provided
that nothing in this Section 13 shall require any holder to provide information with respect to any
such Form or otherwise if in the opinion of such holder such Form or
disclosure of information would involve the disclosure of tax return or other information that
is confidential or proprietary to such holder, and provided further that each such holder shall be
deemed to have complied with its obligation under this paragraph with respect to any Form if such
Form shall have been duly completed and delivered by such holder to an Obligor or mailed to the
appropriate taxing authority (which shall be deemed to occur when such Form is submitted to the
United States Internal Revenue Service in accordance with instructions contained in such Form),
whichever is applicable, within 60 days following a written request of an Obligor (which request
shall be accompanied by copies of such Form and English translations of any such Form not in the
English language) and, in the case of a transfer of any Note, at least 90 days prior to the
relevant interest payment date.



On or before the date of the Closing the Company will furnish each Purchaser with copies of
the appropriate Form (and English translation if required as aforesaid) currently required to be
filed in the British Virgin Islands pursuant to clause (b) of the first paragraph of this Section
13, if any, and in connection with the transfer of any Note the Company will furnish the transferee
of such Note with copies of any Form and English translation then required.


 


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If any payment is made by an Obligor to or for the account of the holder of any Note after
deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant
to this Section 13, then, if such holder at its sole discretion determines that it has received or
been granted a refund of such Taxes, such holder shall, to the extent that it can do so without
prejudice to the retention of the amount of such refund, reimburse to such Obligor such amount as
such holder shall, in its sole discretion, determine to be attributable to the relevant Taxes or
deduction or withholding. Nothing herein contained shall interfere with the right of the holder of
any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder
of any Note shall be under any obligation to claim relief from its corporate profits or similar tax
liability in respect of such Tax in priority to any other claims, reliefs, credits or deductions
available to it or (other than as set forth in clause (b) above) oblige any holder of any Note to
disclose any information relating to its tax affairs or any computations in respect thereof.



The Obligors will furnish the holders of Notes, promptly and in any event within 60 days after
the date of any payment by an Obligor of any Tax in respect of any amounts paid under the Financing
Agreements, the original tax receipt issued by the relevant taxation or other authorities involved
for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally
be kept in the possession of an Obligor, a duly certified copy of the original tax receipt or any
other reasonably satisfactory evidence of payment), together with such other documentary evidence
with respect to such payments as may be reasonably requested from time to time by any holder of a
Note.



If an Obligor is required by any applicable law, as modified by the practice of the taxation
or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any
Tax in respect of which such Obligor would be required to pay any additional amount under this
Section 13, but for any reason does not make such deduction or withholding with the result that a
liability in respect of such Tax is assessed directly against the holder of any Note, and such
holder pays such liability, then such Obligor will promptly reimburse such holder for such payment
(including any related interest or penalties to the extent such interest or
penalties arise by virtue of a default or delay by such Obligor) upon demand by such holder
accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or
other authority of the relevant Taxing Jurisdiction.



If an Obligor makes payment to or for the account of any holder of a Note and such holder is
entitled to a refund of the Tax to which such payment is attributable upon the making of a filing
(other than a Form described above), then such holder shall, as soon as practicable after receiving
written request from such Obligor (which shall specify in reasonable detail and supply the refund
forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as
directed by the Obligors, subject, however, to the same limitations with respect to Forms as are
set forth above.



The obligations of the Obligors under this Section 13 shall survive the payment or transfer of
any Note and the provisions of this Section 13 shall also apply to successive transferees of the
Notes.


 


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Section 14. Registration; Exchange; Substitution of Notes.




Section 14.1. Registration of Notes. The Company shall keep at its principal executive office
a register for the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered shall be deemed and
treated as the owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy
of the names and addresses of all registered holders of Notes.



Section 14.2. Transfer and Exchange of Notes. Upon surrender of any Note to the Company at
the address and to the attention of the designated officer (all as specified in Section 19) for
registration of transfer or exchange (and in the case of a surrender for registration of transfer
accompanied by a written instrument of transfer duly executed by the registered holder of such Note
or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address
and other details for notices of each transferee of such Note or part thereof) within ten Business
Days thereafter the Company shall execute and deliver, at the Company’s expense (except as provided
below), one or more new Notes (as requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such
new Note shall be payable to such Person as such holder may request and shall be substantially in
the form of Exhibit 1. Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if
no interest shall have been paid thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than
U.S.$100,000, provided that if necessary to enable the registration of transfer by a holder of its
entire holding of Notes, one Note may be in a denomination of less than U.S.$100,000.
Notwithstanding the foregoing, the Company shall not be required to register any transfer or
exchange if such transfer or exchange would involve any non-exempt transaction that is subject to
the prohibitions of Section 406 of ERISA.



Section 14.3. Replacement of Notes. Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction or mutilation), and




(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser
or another holder of a Note with a minimum net worth of at least U.S.$50,000,000 (or its
equivalent in any other applicable currency) or a Qualified Institutional Buyer, such
Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or




(b) in the case of mutilation, upon surrender and cancellation thereof,


 


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within ten Business Days thereafter the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.



Section 14.4. Representations of Transferee. Upon the transfer of any Note, each transferee
must provide an executed representation letter substantially in the form set forth in Exhibit 14.4.



Section 15. Payments on Notes.




Section 15.1. Place of Payment. Subject to Section 15.2, payments of principal, Make-Whole
Amount or Modified Make-Whole Amount, if any, and interest becoming due and payable on the Notes
shall be made in New York, New York at the principal office of Royal Bank of Scotland in such
jurisdiction. The Company may at any time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be either the principal office of the
Company in such jurisdiction or the principal office of a bank or trust company in such
jurisdiction.



Section 15.2. Home Office Payment. So long as any Purchaser or its nominee shall be the
holder of any Note, and notwithstanding anything contained in Section 15.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount
or Modified Make-Whole Amount, if any, and interest by the method and at the address specified for
such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other
address as such
Purchaser shall have from time to time specified to the Company in writing for such purpose,
without the presentation or surrender of such Note or the making of any notation thereon, except
that upon written request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, such Purchaser shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its principal executive
office or at the place of payment most recently designated by the Company pursuant to Section 15.1.
Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such
Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and
the last date to which interest has been paid thereon or surrender such Note to the Company in
exchange for a new Note or Notes pursuant to Section 14.2. The Company will afford the benefits of
this Section 15.2 to any Institutional Investor that is the direct or indirect transferee of any
Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to
such Note as the Purchasers have made in this Section 15.2.


 


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Section 16. Expenses, Etc.




Section 16.1. Transaction Expenses. Whether or not the transactions contemplated hereby are
consummated, the Obligors will pay all costs and expenses (including reasonable attorneys’ fees of
one special counsel and, if reasonably required by the Required Holders, local or other counsel)
incurred by the Purchasers and each other holder of a Note in connection with such transactions and
in connection with any amendments, waivers or consents under or in respect of any Financing
Agreement (whether or not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether
or how to enforce or defend) any rights under any Financing Agreement or in responding to any
subpoena or other legal process or informal investigative demand issued in connection with any
Financing Agreement, or by reason of being a holder of any Note, (b) the costs and expenses,
including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of any
Obligor or any Subsidiary or in connection with any work-out or restructuring of the transactions
contemplated by any Financing Agreement and (c) the costs and expenses incurred in connection with
the initial filing of this Agreement and all related documents and financial information with the
SVO, provided that such costs and expenses under this clause (c) shall not exceed U.S.$3,000 per
series of Notes. The Company will pay, and will save each Purchaser and each other holder of a
Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and
finders (other than those, if any, retained by a Purchaser or other holder in connection with its
purchase of the Notes).



Section 16.2. Certain Taxes. Each Obligor agrees to pay all stamp, documentary or similar
taxes or fees which may be payable in respect of the execution and delivery or the enforcement of
this Agreement, the Subsidiary Guarantee Agreement or the execution and delivery (but not the
transfer) or the enforcement of any of the Notes in any Applicable Jurisdiction or in any
jurisdiction where an Obligor is organized or where an Obligor has assets or of any amendment of,
or waiver or consent under or with respect to, any Financing Agreement, and to pay any value added
tax due and payable in respect of reimbursement of costs and expenses by the Obligors pursuant to
this Section 16 or any other tax of a similar nature which might be chargeable, and will save each
holder of a Note
to the extent permitted by applicable law harmless against any loss or liability resulting from
nonpayment or delay in payment of any such tax or fee required to be paid by the Obligors
hereunder.



Section 16.3. Survival. The obligations of the Obligors under this Section 16 will survive
the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of any
Financing Agreement, and the termination of any Financing Agreement.



Section 17. Survival of Representations and Warranties; Entire Agreement.




All representations and warranties contained herein shall survive the execution and delivery
of the Financing Agreements, the purchase or transfer by any Purchaser of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent
holder of a Note, regardless of any investigation made at any time by or on behalf of such
Purchaser or any other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of any Obligor pursuant to any Financing Agreement shall be
deemed representations and warranties of such Obligor under such Financing Agreement. Subject to
the preceding sentence, the Financing Agreements embody the entire agreement and understanding
between each Purchaser and the Obligors and supersede all prior agreements and understandings
relating to the subject matter hereof.


 


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Section 18. Amendment and Waiver. 




Section 18.1. Requirements. This Agreement, the Notes and the other Financing Agreements may
be amended, and the observance of any term hereof, of the Notes or of any other Financing Agreement
may be waived (either retroactively or prospectively), with (and only with) the written consent of
the Obligors and the Required Holders, except that (a) no amendment or waiver of any of the
provisions of Section 1, 2, 3, 4, 5, 6 or 22, or any defined term (as it is used therein), will be
effective as to any Purchaser unless consented to by such Purchaser in writing, and (b) no such
amendment or waiver may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12 relating to acceleration
or rescission, change the amount or time of any prepayment or payment of principal of, or reduce
the rate or change the time of payment or method of computation of interest or of the Make-Whole
Amount or Modified Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such amendment or waiver,
or (iii) amend Section 8, 11(a), 11(b), 12, 13, 18, 21, 23 or 24.9.




Section 18.2. Solicitation of Holders of Notes.



(a) Solicitation. The Company will provide each holder of the Notes (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof, of
the Notes or of any other Financing Agreement. The Company will deliver executed or true and
correct copies of each amendment, waiver or consent effected pursuant to the provisions of this
Section 18 to each holder of outstanding Notes promptly following the date on which it is executed
and delivered by, or receives the consent or approval of, the requisite holders of Notes.



(b) Payment. No Obligor will directly or indirectly pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or otherwise, or grant any security or
provide other credit support, to any holder of Notes as consideration for or as an inducement to
the entering into by any holder of Notes of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or security is concurrently
granted or other credit support concurrently provided, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such waiver or amendment.



Section 18.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this
Section 18 applies equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Obligors without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Obligors and the holder of
any Note nor any delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note. As used herein, the term “this Agreement” and
references thereto shall mean this Agreement as it may from time to time be amended or
supplemented.


 


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Section 18.4. Notes Held by Obligors, Etc. Solely for the purpose of determining whether the
holders of the requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this Agreement, the
Notes or any other Financing Agreement or have directed the taking of any action provided herein or
in the Notes or in any other Financing Agreement to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by any Obligor or any of its Affiliates shall be deemed not to be outstanding.



Section 19. Notices; English Language.




All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
international commercial delivery service (charges prepaid), or (b) by a recognized international
commercial delivery service (with charges prepaid). Any such notice must be sent:




(i) if to a Purchaser or its nominee, to such Purchaser or nominee at the address
specified for such communications in Schedule A, or at such other address as such Purchaser
or nominee shall have specified to the Company in writing,




(ii) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing, or




(iii) if to any Obligor, to the Company at its address set forth at the beginning
hereof to the attention of Lawrence R. Samuels, Chief Financial Officer, or at such other
single address as the Company shall have specified to the holder of each Note in writing.



Notices under this Section 19 will be deemed given only when actually received.



Each document, instrument, financial statement, report, notice or other communication
delivered in connection with this Agreement shall be in English or accompanied by an English
translation thereof.



This Agreement and the other Financing Agreements have been prepared and signed in English and
the parties hereto agree that the English version hereof and thereof (to the maximum extent
permitted by applicable law) shall be the only version valid for the purpose of the interpretation
and construction hereof and thereof notwithstanding the preparation of any translation into another
language hereof or thereof, whether official or otherwise or whether prepared in relation to any
proceedings which may be brought in an Applicable Jurisdiction or in any jurisdiction where an
Obligor is organized or where an Obligor has assets or any other jurisdiction in respect hereof or
thereof.


 


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Section 20. Reproduction of Documents.




This Agreement and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b) documents received by any
Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates
and other information previously or hereafter furnished to any Purchaser, may be reproduced by such
Purchaser by any photographic, photostatic, electronic, digital or other similar process and such
Purchaser may destroy any original document so reproduced. The Obligors agree and stipulate that,
to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was
made by such Purchaser in the regular course of business) and any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in evidence. This Section
20 shall not prohibit the Obligors or any other holder of Notes from contesting any such
reproduction to the same extent that it could contest the original, or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.



Section 21. Confidential Information.




For the purposes of this Section 21, “Confidential Information” means information delivered to
any Purchaser by or on behalf of any Obligor or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified when received by such Purchaser as
being confidential information of such Obligor or such Subsidiary, provided that such term does not
include information that (a) was publicly known or otherwise known to such Purchaser prior to the
time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such
Purchaser or any person acting on such Purchaser’s behalf, (c) otherwise becomes known to such
Purchaser other than through disclosure by such Obligor or such Subsidiary or (d) constitutes
financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly
available. Each Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect confidential
information of third parties delivered to such Purchaser, provided that such Purchaser may deliver
or disclose Confidential Information to (i) its directors, trustees, officers, employees and
attorneys (to the extent such disclosure reasonably relates to the administration of the investment
represented by its Notes), and provided such Purchasers advise such Person of the confidential
nature of such information, (ii) its financial advisors, other professional advisors, agents and
affiliates who agree to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 21, (iii) any other holder of any Note, (iv) any Institutional
Investor to which it sells or offers to sell such Note or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such Confidential Information
to be bound by the provisions of this Section 21), (v) any Person from which it offers to purchase
any security of an Obligor (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 21), (vi) any federal or
state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or,
in each case, any similar organization, or any nationally recognized rating agency that requires
access to


 


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information about such Purchaser’s investment portfolio, or (viii) any other Person to
which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which such Purchaser is a party or
(z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may
reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement
or for the protection of the rights and remedies under such Purchaser’s Notes, this Agreement and
the other Financing Agreements. Each holder of a Note, by its acceptance of a Note, will be deemed
to have agreed to be bound by and to be entitled to the benefits of this Section 21 as though it
were a party to this Agreement. On reasonable request by the Company in connection with the
delivery to any
holder of a Note of information required to be delivered to such holder under this Agreement
or requested by such holder (other than a holder that is a party to this Agreement or its nominee),
such holder will enter into an agreement with the Company embodying the provisions of this Section
21.



Section 22. Substitution of Purchaser.




Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser
of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which
notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliate’s
agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the
accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such
notice, any reference to such Purchaser in this Agreement (other than in this Section 22), shall be
deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such
Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to
such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company
of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement
(other than in this Section 22), shall no longer be deemed to refer to such Affiliate, but shall
refer to such original Purchaser, and such original Purchaser shall again have all the rights of an
original holder of the Notes under this Agreement.



Section 23. Subsidiary Guarantee Agreement. 




Section 23.1. Guarantee and Indemnity. Each Subsidiary Guarantor jointly and severally and
irrevocably and unconditionally:




(a) guarantees to each holder of Notes punctual performance by each Obligor of all its
obligations under the Financing Agreements;




(b) undertakes with each holder of Notes to pay as primary obligor and not as surety,
principal, Make-Whole Amount, Modified Make-Whole Amount, interest and all other amounts due
under or in connection with any Financing Agreement including but not limited to the payment
of principal, interest (including default interest and post-petition interest) and the
make-whole amount or swap breakage amounts or libor breakage amounts, if any, and the due
and punctual payment of all other amounts payable (all such obligations so guaranteed are
herein collectively referred to as the “Guaranteed Obligations"), it must immediately on
demand by the Required Holders pay that amount as if it were the principal obligor in
respect of that amount; and


 


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(c) indemnifies each holder of Notes immediately on demand against any loss or
liability suffered by that holder of Notes if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal; the amount of the loss or liability under this indemnity
will be equal to the amount the holder of Notes would otherwise have been entitled to
recover.



Section 23.2. Continuing Guarantee. (a) This guarantee is a continuing guarantee and will
extend to the ultimate balance of all sums payable by any Obligor under the Financing Agreements,
regardless of any intermediate payment or discharge in whole or in part.



(b) The obligations guaranteed by each Subsidiary Guarantor under this Section 23 and the
losses and liabilities against which each Subsidiary Guarantor indemnifies the holders of Notes
include, in each case, all amounts which arise under the Financing Agreements after a petition is
filed by, or against, any Obligor under the US Bankruptcy Code of 1978 (or in analogous
circumstances under any applicable law in any other applicable jurisdiction) even if the
liabilities or obligations do not accrue against such Obligor because of the automatic stay under
section 362 of the US Bankruptcy Code of 1978 (or because of any analogous provision under any
applicable law in any other jurisdiction) or because any such obligation is not an allowed claim
against such Obligor in any such bankruptcy proceedings or otherwise.



Section 23.3. Reinstatement. (a) If any discharge (whether in respect of the obligations of
any Obligor or any security for those obligations or otherwise) or arrangement is made in whole or
in part on the faith of any payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation, administration or otherwise without limitation, the liability
of each Subsidiary Guarantor under this Section 23 will continue or be reinstated as if the
discharge or arrangement had not occurred.



(b) Each holder of Notes may concede or compromise any claim that any payment, security or
other disposition is liable to avoidance or restoration.



Section 23.4. Waiver of Defenses. (a) The obligations of each Subsidiary Guarantor under this
Section 23 will not be affected by any act, omission or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Section 23 (whether or not known to
it or any holder of Notes). This includes:




(i) any time or waiver granted to, or composition with, any person;




(ii) any release of any person under the terms of any composition or arrangement;




(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over assets of, any
person;


 


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(iv) any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realize the full value of any security;




(v) any incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of any person and including notice of an
adverse change in the financial condition of any Obligor or any other fact that might
increase or expand any Subsidiary Guarantor’s risk hereunder;




(vi) any amendment, novation, supplement, extension or reinstatement (however
fundamental and of whatever nature) of a Financing Agreement or any other document or
security;




(vii) any unenforceability, illegality, invalidity or non-provability of any obligation
of any person under any Financing Agreement or any other document or security;




(viii) any insolvency or similar proceedings;




(ix) notice of acceptance of this Subsidiary Guarantee Agreement;




(x) notice of any purchase of the Notes under this Agreement, or the creation,
existence or acquisition of any of the Guaranteed Obligations, subject to such Subsidiary
Guarantor’s right to make inquiry of each holder of Notes to ascertain the amount of the
Guaranteed Obligations at any reasonable time;




(xi) notice of the amount of the Guaranteed Obligations, subject to such Subsidiary
Guarantor’s right to make inquiry of each holder of Notes to ascertain the amount of the
Guaranteed Obligations at any reasonable time;




(xii) all other notices and demands to which such Subsidiary Guarantor might otherwise
be entitled;




(xiii) the defense of the “single action” rule or any similar right or protection, and
the right by statute or otherwise to require any holder of Notes to institute suit against
the Company or to exhaust its rights and remedies against the Company, the Subsidiary
Guarantor being bound to the payment of each and all Guaranteed Obligations, whether now
existing or hereafter accruing, as fully as if such Guaranteed Obligations were directly
owing to the holders of Notes by such Subsidiary Guarantor; and




(xiv) any other defense which the Subsidiary Guarantor may have to the full and
complete performance of its obligations hereunder.



(b) Each Spanish Obligor waives any right of exclusion, order or division (beneficios de
excusión, orden y división) under Article 1830 et seq. of the Spanish Civil Code.


 


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(c) Each Belgian Obligor waives any right of discussion or division (bénéfice de discussion et
de division) under article 2021 and 2026 of the Belgian Civil Code.



(d) Each Guernsey Obligor waives any right it may have (whether by virtue of the droit de
discussion or droit de division or otherwise) to require:




(i) that the Purchasers, before enforcing their rights against it under this Agreement,
takes any action, exercises any recourse or seeks a declaration of bankruptcy against the
Company or any other Person, makes any claim in a bankruptcy, liquidation, administration or
insolvency of the Company or any other Person or enforces or seeks to enforce any other
right, claim, remedy or recourse against the Company or any other Person;




(ii) that the Purchasers, in order to preserve any of their rights against the Guernsey
Obligor, joins the Guernsey Obligor as a party to any proceedings against the Company, or
the Company as a party to any proceedings against the Guernsey Obligor or takes any other
procedural steps; or




(iii) that the Purchasers divide the liability of the Guernsey Obligor under this
Agreement with any other Person.



Section 23.5. Immediate Recourse. (a) Each Subsidiary Guarantor waives any right it may have
of first requiring any holder of Notes (or any trustee or agent on its behalf) to proceed against
or enforce any other right or security or claim payment from any person before claiming from that
Subsidiary Guarantor under this Section 23.



(b) This waiver applies irrespective of any law or any provision of a Financing Agreement to
the contrary.



Section 23.6. Appropriations. Until all amounts which may be or become payable by the
Obligors under or in connection with the Financing Agreements have been irrevocably paid in full,
each holder of Notes (or any trustee or agent on its behalf) may without affecting the liability of
any Subsidiary Guarantor under this Section 23:




(a) (i) refrain from applying or enforcing any other moneys, security or rights held or
received by that holder of Notes (or any trustee or agent on its behalf) against those
amounts; or




(ii) apply and enforce them in such manner and order as it sees fit (whether
against those amounts or otherwise); and




(b) hold in an interest-bearing suspense account any moneys received from any
Subsidiary Guarantor or on account of that Subsidiary Guarantor’s liability under this
Section 23.


 


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Section 23.7. Non-competition. Unless:




(a) all amounts which may be or become payable by the Obligors under or in connection
with the Financing Agreements have been irrevocably paid in full; or




(b) the Required Holders, acting reasonably, otherwise direct,




no Subsidiary Guarantor will, after a claim has been made or by virtue of any payment or
performance by it under this Section 23:




(i) be subrogated to any rights, security or moneys held, received or
receivable by any holder of Notes (or any trustee or agent on its behalf);




(ii) be entitled to any right of contribution or indemnity in respect of any
payment made or moneys received on account of that Subsidiary Guarantor’s liability
under this Section 23;




(iii) claim, rank, prove or vote as a creditor of any Obligor or its estate in
competition with any holder of Notes (or any trustee or agent on its behalf); or




(iv) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Obligor, or exercise any right of set-off as
against any Obligor.



Each Subsidiary Guarantor must hold in trust for and immediately pay or transfer to the holders on
a pro rata basis any payment or distribution or benefit of security received by it contrary to this
Section 23 or in accordance with any directions given by the Required Holders under this Section
23.



Section 23.8. Release of Subsidiary Guarantors’ Right of Contribution. If any Subsidiary
Guarantor ceases to be a Subsidiary Guarantor in accordance with the terms of the Financing
Agreements for the purposes of any sale or other disposal of that Subsidiary Guarantor:




(a) that Subsidiary Guarantor will be released by each other Subsidiary Guarantor from
any liability whatsoever to make a contribution to any other Subsidiary Guarantor arising by
reason of the performance by any other Subsidiary Guarantor of its obligations under the
Financing Agreements; and




(b) each other Subsidiary Guarantor will waive any rights it may have by reason of the
performance of its obligations under the Financing Agreements to take the benefit (in whole
or in part and whether by way of subrogation or otherwise) of any right of any holder of
Notes under any Financing Agreement or of any other security taken under, or in connection
with, any Financing Agreement where the rights or security are granted by or in relation to
the assets of the retiring Subsidiary Guarantor.


 


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Section 23.9. Releases. Each Subsidiary Guarantor consents and agrees that, without notice to
or by such Subsidiary Guarantor and without impairing, releasing, abating, deferring, suspending,
reducing, terminating or otherwise affecting the obligations of such Subsidiary Guarantor
hereunder, each holder of Notes, in the manner provided herein, by action or inaction, may:




(a) compromise or settle, renew or extend the period of duration or the time for the
payment, or discharge the performance of, or may refuse to, or otherwise not, enforce, or
may, by action or inaction, release all or any one or more parties to, this Agreement;




(b) assign, sell or transfer, or otherwise dispose of, any one or more of the Notes;




(c) grant waivers, extensions, consents and other indulgences to any Obligor in respect
of this Agreement or the Notes;




(d) amend, modify or supplement in any manner and at any time (or from time to time)
this Agreement or the Notes including, without limitation, by any increase in the principal
amount of any Notes or any change in interest rates or Make-Whole Amount or Modified
Make-Whole Amount or swap breakage determinations;




(e) release or substitute any one or more of the endorsers or guarantors of the
Guaranteed Obligations whether parties hereto or not;




(f) sell, exchange, release or surrender any property at any time pledged or granted by
the Company or any Subsidiary Guarantor as security in respect of the Guaranteed Obligations
in accordance with the agreement or instrument granting any such security;




(g) exchange, enforce, waive, or release, by action or inaction, any security for the
Guaranteed Obligations or any other guarantee of any of the Notes; and




(h) do any other act or event which could have the effect of releasing the Subsidiary
Guarantor from the full and complete performance of its obligations hereunder.




Section 23.10. Marshaling. Each Subsidiary Guarantor consents and agrees that:




(a) each holder of Notes shall be under no obligation to marshal any assets in favor of
any Subsidiary Guarantor or against or in payment of any or all of the Guaranteed
Obligations; and




(b) to the extent the Company makes a payment or payments to any holder of Notes, which
payment or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required, for any of the foregoing reasons or for
any other reason, to be repaid or paid over to a custodian, trustee, receiver, or any other
party under any bankruptcy law, common law, or equitable cause, then to the extent of such
payment or repayment, the obligation or part thereof intended to be satisfied thereby shall
be revived and continued in full force and effect as if said payment
or payments had not been made and each Subsidiary Guarantor shall be primarily liable for
such obligation.


 


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Section 23.11. Liability. Each Subsidiary Guarantor agrees that the liability of each
Subsidiary Guarantor in respect of this Section 23 shall be immediate, and shall not be contingent
upon the exercise or enforcement by any holder of Notes of whatever remedies such holder may have
against the Company or the enforcement of any Lien or realization upon any security such holder may
at any time possess.



Section 23.12. Character of Obligation. The Guaranty set forth in this Section 23 is a
primary and original obligation of each Subsidiary Guarantor and is an absolute, unconditional,
continuing and irrevocable guarantee of payment and performance (and not of collectability) and
shall remain in full force and effect until the full, final and indefeasible payment in cash of the
Guaranteed Obligations without respect to future changes in conditions, except as provided in
Section 9.11.



The obligations of each Subsidiary Guarantor under this Subsidiary Guarantee Agreement and the
rights of the holders of Notes to enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or
termination, whether by reason of any claim of any character whatsoever or otherwise, including,
without limitation, claims of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense, set-off, counterclaim, recoupment or termination whatsoever.



Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor
hereunder shall not be discharged or impaired or otherwise affected by:




(a) any default, failure or delay, willful or otherwise, in the performance by any
Obligor of any obligations of any kind or character whatsoever of such Obligor;




(b) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of
any Obligor or any other Person or in respect of the property of any Obligor or any other
Person or any merger, consolidation, reorganization, dissolution, liquidation or winding up
of any Obligor or any other Person;




(c) impossibility or illegality of performance on the part of any Obligor of its
obligations under any Financing Agreement or any other instruments or agreements;




(d) the validity or enforceability of any Financing Agreement or any other instruments
or agreements;


 


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(e) in respect of any Obligor or any other Person, any change of circumstances, whether
or not foreseen or foreseeable, whether or not imputable to any Obligor or any other Person,
or other impossibility of performance through fire, explosion, accident, labor disturbance,
floods, droughts, embargoes, wars (whether or not declared), civil commotions, acts of
terrorism, acts of God or the public enemy, delays or
failure of suppliers or carriers, inability to obtain materials, action of any federal or
state regulatory body or agency, change of law or any other causes affecting performance, or
any other force majeure, whether or not beyond the control of any Obligor or any other
Person and whether or not of the kind hereinbefore specified;




(f) any attachment, claim, demand, charge, lien, order, process, encumbrance or any
other happening or event or reason, similar or dissimilar to the foregoing, or any
withholding or diminution at the source, by reason of any taxes, assessments, expenses,
debt, obligations or liabilities of any charter, foreseen or unforeseen, and whether or not
valid, incurred by or against any Person, or any claims, demands, charges or Liens of any
nature, foreseen or unforeseen, incurred by any Person, or against any sums payable under
any Financing Agreement, so that such sums would be rendered inadequate or would be
unavailable to make the payments herein provided;




(g) any order, judgment, decree, law, ruling or regulation (whether or not valid) of
any court of any nation or of any political subdivision thereof or any body, agency,
department, official or administrative or regulatory agency of any thereof or any other
action, happening, event or reason whatsoever which shall delay, interfere with, hinder or
prevent, or in any way adversely affect, the performance by any party of its respective
obligations under any instruments; or




(h) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, any Subsidiary Guarantor in respect of the obligations of any Subsidiary
Guarantor under this Subsidiary Guarantee Agreement.



Section 23.13. Election to Perform Obligations. Any election by any Subsidiary Guarantor to
pay or otherwise perform any of the obligations of any Obligor under any Financing Agreement,
whether pursuant to this Section 23 or otherwise, shall not release such Obligor from such
obligations (except to the extent such obligation is indefeasibly paid or performed) or any of such
Obligor’s other obligations under this Agreement.



Section 23.14. No Election. Each holder of Notes shall have the right to seek recourse
against each Subsidiary Guarantor to the fullest extent provided for in this Section 23 and
elsewhere as provided in this Agreement, and against the Company, to the full extent provided for
in this Agreement. Each Subsidiary Guarantor hereby acknowledges that it has other undertakings in
this Agreement and running in favor of each of the holders of Notes that are separate and apart
from its obligations under this Section 23. No election to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a waiver of the right of
such holder of Notes to proceed in any other form of action or proceeding or against other parties
unless such holder of Notes has expressly waived such right in writing. Specifically, but without
limiting the generality of the foregoing, no action or proceeding by any holder of Notes against
the Company or any Subsidiary Guarantor under any document or instrument evidencing obligations of
the Company or such Subsidiary Guarantor to such holder of Notes shall serve to diminish the
liability of such Subsidiary Guarantor under this Agreement (including, without limitation, this
Section 23)
except to the extent that such holder of Notes finally and unconditionally shall have realized
payment of the Guaranteed Obligations by such action or proceeding, notwithstanding the effect of
any such action or proceeding upon such Subsidiary Guarantor’s right of subrogation against the
Company.


 


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Section 23.15. Severability. Each of the rights and remedies granted under this Section 23 to
the holder of Notes in respect of the Notes held by such holder may be exercised by such holder
without notice by such holder to, or the consent of or any other action by, any other holder of
Notes.



Section 23.16. Other Enforcement Rights. Each holder of Notes may proceed to protect and
enforce the Subsidiary Guarantee Agreement under this Section 23 by suit or suits or proceedings in
equity, at law or in bankruptcy, and whether for the specific performance of any covenant or
agreement contained in this Section 23 or in execution or aid of any power herein granted or for
the recovery of judgment for or in respect of the Guaranteed Obligations or for the enforcement of
any other proper, legal or equitable remedy available under applicable law.



Section 23.17. Restoration of Rights and Remedies. If any holder of Notes shall have
instituted any proceeding to enforce any right or remedy in this Section 23 and such proceeding
shall have been discontinued or abandoned for any reason, or shall have been determined adversely
to such holder, then and in every such case each such holder, the Company and each Subsidiary
Guarantor shall, except as may be limited or affected by any determination in such proceeding, be
restored severally and respectively to their respective former positions hereunder and thereunder,
and thereafter the rights and remedies of such holder shall continue as though no such proceeding
had been instituted.



Section 23.18. Survival. So long as the Guaranteed Obligations shall not have been fully and
finally performed and indefeasibly paid, the obligations of each Subsidiary Guarantor under this
Section 23 shall survive the transfer and payment of any Note and the payment in full of all the
Notes.



Section 23.19. Miscellaneous. So long as the Guaranteed Obligations owed by the Company shall
not have been fully and finally performed and indefeasibly paid, each Subsidiary Guarantor (to the
fullest extent that it may lawfully do so) expressly waives any claim of any nature arising out of
any right of indemnity, contribution, reimbursement or any similar right in respect of any payment
made by such Subsidiary Guarantor on or with respect to such Guaranteed Obligations under this
Section 23 or in connection with this Section 23 or otherwise, or any claim of subrogation arising
with respect to any such payment made under this Section 23 or otherwise, against any Obligor or
the estate of such Obligor (including Liens on the property of such Obligor or the estate of such
Obligor), in each case if, and for so long as, such Obligor is the subject of any proceeding
brought under any bankruptcy, reorganization, arrangement, insolvency, administration, readjustment
of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect,
and further agrees that it will not file any claims against such Obligor or the estate of such
Obligor in the
course of such proceeding in respect of the rights referred to in this Section 23, and further
agrees that each holder of Notes may specifically enforce the provisions of this Section 23. This
clause creates a promise which is intended to create obligations enforceable at the suit of each
holder of Notes.


 


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If an Event of Default exists, then the holders of Notes shall have the right to declare all
of the Guaranteed Obligations to be, and such Guaranteed Obligations shall thereupon become,
forthwith due and payable, without any presentment, demand, protest or other notice of any kind,
all of which have been expressly waived by the Company and the Subsidiary Guarantors, and
notwithstanding any stay, injunction or other prohibition preventing such declaration (or such
Guaranteed Obligations from becoming automatically due and payable) as against the Company. In any
such event, the holders of Notes shall have immediate recourse to such Subsidiary Guarantor to the
fullest extent set forth herein.



Section 23.20. Limitation. Anything herein or in the Notes to the contrary notwithstanding,
the liability of each Subsidiary Guarantor under this Agreement shall in no event exceed an amount
equal to the maximum amount which can be legally guaranteed by such Subsidiary Guarantor under
applicable laws relating to the insolvency of debtors and fraudulent conveyance.



Section 23.21. Written Notice. Notwithstanding any other provision of this Section 23, in the
event of any acceleration of the Notes in accordance with the provisions of Section 12 hereof, any
requirement of written notice to, or demand of, the Subsidiary Guarantors pursuant to this Section
23 shall be deemed automatically satisfied upon such acceleration without further action on the
part of any holder (notwithstanding any stay, injunction or other prohibition preventing any
notice, demand or acceleration).



Section 23.22. Unenforceability of Obligations. As a separate and continuing undertaking,
each Subsidiary Guarantor unconditionally and irrevocably undertakes to each holder of Notes that,
should any Guaranteed Obligations not be recoverable against such Subsidiary Guarantor under this
Subsidiary Guarantee Agreement on the footing of a guarantee for any reason, including, without
limitation, a provision of this Subsidiary Guarantee Agreement or an obligation (or purported
obligation) of any Obligor to pay any Guaranteed Obligation being or becoming void, voidable,
unenforceable or otherwise invalid, and whether or not that reason is or was known to any holder of
Notes, and whether or not that reason is:




(a) a defect in or lack of powers affecting any Obligor, or the irregular exercise of
those powers; or




(b) a defect in or lack of authority by a Person purporting to act on behalf of any
Obligor; or


 


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(c) a dissolution, change in status, constitution or control, reconstruction or
reorganization of any Obligor (or the commencement of steps to effect the same),
then such Subsidiary Guarantor will, as a separate and additional obligation under this Subsidiary
Guarantee Agreement, indemnify the holder of Notes concerned immediately on demand against the
amount which such holder would otherwise have been able to recover (on a full indemnity basis). In
this subsection 23.22 the expression “Guaranteed Obligations” includes any Indebtedness which would
have been included in that expression but for anything referred to in this clause.



Section 23.23. Contribution. To the extent of any payments made under this Subsidiary
Guarantee Agreement, each Subsidiary Guarantor making such payment shall have a right of
contribution from the other Subsidiary Guarantors, but such Subsidiary Guarantor covenants and
agrees that such right of contribution shall be subordinate in right of payment to the rights of
the holders of the Notes for which full payment has not been made or provided for and, to that end,
such Subsidiary Guarantor agrees not to claim or enforce any such right of contribution unless and
until all of the Notes and all other sums due and payable under the Agreement have been fully and
irrevocably paid and discharged.



Section 23.24. Additional Security. This guarantee is in addition to and is not in any way
prejudiced by any other security now or subsequently held by any holder of Notes.



Section 23.25. Limitations — Belgium. This guarantee does not apply to any liability to the
extent it would result in this guarantee constituting unlawful financial assistance under Articles
329, 430 and/or 629 of the Belgian Corporate Code (Code des Sociétés).



Section 23.26. Limitations — Spain. This guarantee does not apply to any liability to the
extent it would result in this guarantee constituting unlawful financial assistance under Article
81 of the Spanish Joint Stock Company Law (Real Decreto Legislativo 1564/1989, de 22 de Diciembre,
por el que se aprueba el Texto Refundido de la Ley de Sociedades Anónimas) and/or under Article
40.5 of the Spanish Private Limited Companies Law (Ley 2/1995, de 23 de marzo, de Sociedades de
Responsabilidad Limitada). Further, the maximum amount of any guarantee provided by a Spanish
Obligor shall be limited to the amount that would make the net worth of the Spanish Guarantor
reduce to two thirds of its share capital, or, in any case, to the amount that would render the
Spanish Obligor unable to pay its debts as they fall due or need to enter into negotiations with
its creditors and/or file for the opening of bankruptcy (concurso) proceedings minus one euro.



Section 23.27. Limitations — Hong Kong. This guarantee does not apply to any liability to
the extent it would result in this guarantee constituting unlawful financial assistance within the
meaning of Section 47A of the Companies Ordinance (Cap.32) of the Laws of Hong Kong.


 


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Section 23.28. Limitations — Germany. (a) Each holder of Notes agrees that its right to
enforce any guarantee or indemnity granted by a Subsidiary Guarantor incorporated in Germany which
is constituted in the form of a limited
partnership (Kommanditgesellschaft) with a limited liability company (Gesellschaft mit beschränkter
Haftung) as general partner (GmbH & Co. KG) or a limited liability company (Gesellschaft mit
beschränkter Haftung GmbH) (each a “Relevant German Obligor") shall, if and to the extent that such
guarantee or indemnity is an up-stream or cross-stream security which secures liabilities of the
Relevant German Obligor’s shareholders or of an affiliated company (verbundenes Unternehmen) of any
such shareholder within the meaning of §15 of the German Stock Corporation Act (Aktiengesetz) of
such Relevant German Obligor, at all times be limited if and to the extent that (i) the enforcement
of the guarantee granted by the Relevant German Obligor would cause the Relevant German Obligor’s,
and, in the case of a GmbH & Co. KG, also such Relevant German Obligor’s general partner’s, assets
(the calculation of which shall include all items set forth in §266(2) A, B, and C of the German
Commercial Code (Handelsgesetbuch) less the Relevant German Obligor’s or in the case of a GmbH &
Co. KG, such Relevant German Obligor’s general partner’s, liabilities (the calculation of which
shall take into account the captions reflected in §266(3) B, C (but disregarding, for the avoidance
of doubt, the Relevant German Obligor’s liabilities under this Agreement and D of the German
Commercial Code) (the “Net Asset"), being less than its respective registered share capital
(Stammkapital) plus reserves for its own shares (Rücklage für eigene Anteile) (the aggregate of the
registered share capital and the shares for its own shares, the “Protected Capital") (Begruendung
einer Unterbilanz) or (ii) where the amount of the Relevant German Obligor’s Net Assets (or the Net
Assets of its general partner if the Relevant German Obligor is a GmbH & Co. KG) are already less
than its Protected Capital causing such amount to be further reduced (Vertiefung einer
Unterbilanz).



(b) For the purposes of the calculation of the amounts to which enforcement is limited, the
following balance sheet items shall be adjusted as follows:




(i) the amount of any increase after the date of this Agreement of the Relevant German
Obligor’s, or, in the case of a German GmbH & Co. KG, its general partner’s, registered
share capital (1) which has been effected without the prior written consent of the Required
Holders and which is made out of retained earnings (Kapitalerhöhug aus Gesellschaftsmitteln)
or (2) to the extent that it is not fully paid up shall be deducted from the share capital;
and




(ii) loans and other contractual liabilities incurred in violation of any Financing
Agreement shall be disregarded.



(c) The limitations set out in paragraphs (a) and (b) above shall only apply if:




(i) within five (5) Business Days following the receipt of notice of enforcement of the
guarantee the managing directors of the Relevant German Obligor have confirmed in writing to
the holders of Notes (A) to what extent the guarantee is an up-stream or cross-stream
security and (B) the amount which cannot be enforced due to it causing the Net Assets of the
Relevant German Obligor to fall below its stated share capital and such confirmation is
supported by interim financial statements up to the end of the last completed calendar month
(the “Management Determination"); or




(ii) within ten (10) Business Days from the date the Required Holders have contested
the Management Determination the holders of Notes receive an up to date balance sheet
drawn-up by a firm of auditors of international standard and repute together with a
determination of the Net Assets. Such balance sheet and determination of Net Assets shall be
prepared in accordance with accounting principles pursuant to the German Commercial Code
(Handelsgesetzbuch) and be based on the same principles that were applied when establishing
the previous year’s balance sheet.


 


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	 	Note Purchase Agreement





(d) Should the Relevant German Obligor fail to deliver such balance sheets and/or
determinations of the Net Assets within the time periods referred to above the holders of Notes
shall be entitled to enforce the security granted under this Agreement subject only to paragraphs
(a) and (b) above.



(e) For the avoidance of doubt, nothing in this Agreement shall be interpreted as a
restriction or limitation of:




(i) the enforcement of the guarantee to the extent such guarantee guarantees
obligations of a Subsidiary Guarantor incorporated in Germany itself or obligations of any
of its Wholly-Owned Subsidiaries or




(ii) the enforcement of any claim of any holder of Notes against the Company (in such
capacity) under this Agreement.



Section 23.29. Limitations — the Netherlands. The guarantee and indemnities contained in
this Section 23 do not apply to any liability to the extent that that liability would result in any
Subsidiary Guarantor violating any applicable financial assistance laws.




Section 23.30. U.S. Guarantors. (a) In this Subsection:




“fraudulent transfer law” means any applicable bankruptcy and fraudulent transfer and
conveyance statute and any related case law of the United States of America or any State
thereof (including the District of Columbia); and



terms used in this Subsection are to be construed in accordance with the fraudulent transfer
laws.



(b) Each U.S. Guarantor acknowledges that:




(i) it will receive valuable direct or indirect benefits as a result of the
transactions financed by the Financing Agreements;




(ii) those benefits will constitute reasonably equivalent value and fair consideration
for the purpose of any fraudulent transfer law; and




(iii) each holder of Notes has acted in good faith in connection with the guarantee
given by that U.S. Guarantor and the transactions contemplated by the Financing Agreements.



(c) Each holder of Notes agrees that each U.S. Guarantor’s liability under this Section 23 is
limited so that no obligation of, or transfer by, any U.S. Guarantor under this Section 23 is
subject to avoidance and turnover under any fraudulent transfer law.


 


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	 	Note Purchase Agreement





(d) Each U.S. Guarantor represents and warrants to each holder of Notes that:




(i) the fair value of its consolidated assets is greater than the amount of its
liabilities (including disputed, contingent and unliquidated liabilities) as such value is
established and liabilities evaluated in accordance with GAAP;




(ii) the present fair saleable value of its assets is not less than the amount that
will be required to pay the probable liability on its or their debts as they become absolute
and matured;




(iii) it is able to realize upon its or their assets and pay its or their debts and
other liabilities (including disputed, contingent and unliquidated liabilities) as they
mature in the normal course of business;




(iv) it has not incurred and does not intend to, and does not believe that it will,
incur debts or liabilities beyond its ability to pay as such debts and liabilities mature;




(v) it is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which its property would constitute unreasonably small
capital; and




(vi) it has not made a transfer or incurred an obligation under this Agreement or any
other Financing Agreement with the intent to hinder, delay or defraud any of its present or
future creditors.



(e) Each acknowledgement, representation and warranty:




(i) in Section 23.30(b) is made by each U.S. Guarantor on the date of this Agreement;




(ii) in Section 23.30(d) is made on the date of this Agreement by each U.S. Guarantor
on an individual basis or in the case of a U.S. Guarantor that has Subsidiaries that are
also Subsidiary Guarantors, on the basis of the consolidated assets and liabilities of that
U.S. Guarantor and its Subsidiaries that are Subsidiary Guarantors.




(iii) in this Section 23.30 is deemed to be repeated whenever a representation is
deemed to by repeated under any Financing Agreement; and




(iv) in this Section 23.30 is, when repeated, applied to the circumstances existing at
the time of repetition.



Section 23.31. Limitations — UK. This guarantee does not apply to any liability to the extent
that it would result in this Subsidiary Guarantee Agreement constituting unlawful financial
assistance within the meaning of s151 of the Companies Act 1985.


 


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	 	Note Purchase Agreement





Section 23.32. Limitation on Pyramid Freight. Under this Section 23.32 the liability of
Pyramid Freight BVI is limited to the aggregate amount generated from any of its assets not located
in South Africa. Notwithstanding any term of this Section 23.32, nothing in this Section will
result in Pyramid Freight, South Africa being liable to apply assets located in South Africa in
respect of this Agreement.



Section 23.33. Limitations — Singapore. This Subsidiary Guarantee Agreement does not apply
to any liability to the extent it would result in this guarantee constituting unlawful financial
assistance within the meaning of Section 76 of the Companies Act (Cap 50) of the Statutes of the
Republic of Singapore.



Section 23.34. Irish Obligors. Each holder of Notes agrees that the liability of each Irish
Obligor under this Section 23 does not apply or extend to any liability to the extent that it would
result in this Subsidiary Guarantee Agreement constituting unlawful financial assistance within the
meaning of Section 60 (as amended) of the Companies Act 1963 of Ireland.



Section 23.35. Guarantor Intent. Without prejudice to the generality of Section 23.4 (Waiver
of Defenses), each Subsidiary Guarantor expressly confirms that it intends that this Subsidiary
Guaranty Agreement shall extend from time to time to any (however fundamental) variation, increase,
extension or addition of or to any of the Financing Agreements and/or any facility or amount made
available under any of the Financing Agreements for the purposes of or in connection with any of
the following: business acquisitions of any nature; increasing working capital; enabling investor
distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing
any other indebtedness; making facilities available to new borrowers; any other variation or
extension of the purposes for which any such facility or amount might be made available from time
to time; and any fees, costs and/or expenses associated with any of the foregoing.



Section 24. Miscellaneous.




Section 24.1. Successors and Assigns. All covenants and other agreements contained in this
Agreement and the other Financing Agreements by or on behalf of any of the parties hereto bind and
inure to the benefit of their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.



Section 24.2. Payments Due on Non-Business Days. Anything in this Agreement, the Notes or in
any other Financing Agreement to the contrary notwithstanding (but without limiting the requirement
in Section 8.6 that notice of any optional prepayment specify a Business Day as the date fixed for
such prepayment), any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date other than a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable on such next
succeeding Business Day; provided that if the maturity date of any Note is a date other than a
Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding
Business Day and shall include the additional days elapsed in the computation of interest payable
on such next succeeding Business Day.


 


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	UTi Worldwide Inc.
	 	Note Purchase Agreement





Section 24.3. Accounting Terms. (a) All accounting terms used herein or in any other
Financing Agreement which are not expressly defined in this Agreement or such other Financing
Agreement have the meanings respectively given to them in accordance with GAAP. Except as
otherwise specifically provided herein, all computations made pursuant to this Agreement or in any
other Financing Agreement shall be made in accordance with GAAP, and all financial statements shall
be prepared in accordance with GAAP. Notwithstanding anything to the contrary herein, for purposes
of determining compliance with the financial covenants contained in this Agreement or any other
Financing Agreement, any election by the Company to measure an item of Indebtedness using fair
value (as permitted by Accounting Standards Codification Section 825-10-25 or any similar
accounting standard) shall be disregarded and such determination shall be made as if such election
had not been made.



(b) If there is a change in GAAP after the date of this Agreement that will effect the
calculation of any financial covenant contained in Section 9 or Section 10, then after the
announcement but prior to the implementation of any such changes the Company shall, in consultation
with its independent accountants, negotiate in good faith with the holders of Notes for a period of
at least 90 days to make any necessary adjustments to such covenant or any component of financial
computations used to calculate such covenant to provide the holders of the Notes with substantially
the same protection as such covenant intended to provide prior to the relevant change in GAAP.
During such 90-day period and in the event that no agreement is reached by the end of such 90-day
negotiation period, the Company’s compliance with such covenant shall be determined on the basis of
GAAP in effect at the date of this Agreement and each subsequent compliance certificate delivered
to holders of Notes pursuant to Section 7.2 shall include detailed reconciliations reasonably
satisfactory to the Required Holders as to the effect of such change in GAAP with respect to the
relevant covenants (including an independent auditors certificate if so reasonably requested by the
Required Holders).



Section 24.4. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other jurisdiction.



Section 24.5. Construction, Etc. Each covenant contained herein and in any other Financing
Agreement shall be construed (absent express provision to the contrary) as being independent of
each other covenant contained herein and in such other Financing Agreement, so that compliance with
any one covenant shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.



For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement and the
other Financing Agreements shall be deemed to be a part hereof and thereof, as the case may be.


 


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	UTi Worldwide Inc.
	 	Note Purchase Agreement





Section 24.6. Counterparts. This Agreement and the other Financing Agreements may be executed
in any number of counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed
by less than all, but together signed by all, of the parties hereto.



Section 24.7. Governing Law. This Agreement and (except as otherwise expressly stated
therein) the other Financing Agreements shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would permit the application of the laws of
a jurisdiction other than such State.



Section 24.8. Jurisdiction and Process; Waiver of Jury Trial. (a) Each Obligor irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or
relating to this Agreement, the Notes or any other Financing Agreement. To the fullest extent
permitted by applicable law, each Obligor irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such
court, any objection that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.



(b) Each Obligor agrees, to the fullest extent permitted by applicable law, that a final
judgment in any suit, action or proceeding of the nature referred to in Section 24.8(a) brought in
any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may
be, and may be enforced in the courts of the United States of America or the State of New York (or
any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a
suit upon such judgment.



(c) Each Obligor consents to process being served by or on behalf of any holder of a Note in
any suit, action or proceeding of the nature referred to in Section 24.8(a) by mailing a copy
thereof by registered or certified or priority mail, postage prepaid, return receipt requested,
or delivering a copy thereof in the manner for delivery of notices specified in Section 19, to
Corporation Service Company, as its agent for the purpose of accepting service of any process in
the United States. Each Obligor agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or proceeding and (ii) shall,
to the fullest extent permitted by applicable law, be taken and held to be valid personal service
upon and personal delivery to it. Notices under this Section 24.8 shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States Postal Service or any
reputable commercial delivery service.



(d) Nothing in this Section 24.8 shall affect the right of any holder of a Note to serve
process in any manner permitted by law, or limit any right that the holders of any of the Notes may
have to bring proceedings against an Obligor in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.


 


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	UTi Worldwide Inc.
	 	Note Purchase Agreement





(e) Each Obligor hereby irrevocably appoints Corporation Service Company to receive for it,
and on its behalf, service of process in the United States.



(f) The Parties hereto hereby waive trial by jury in any action brought on or with respect
to this agreement, the notes or any other document executed in connection herewith or
therewith.



Section 24.9. Obligation to Make Payment in Dollars. Any payment on account of an amount that
is payable hereunder or under the Notes or under any other Financing Agreement in Dollars which is
made to or for the account of any holder of Notes in any other currency, whether as a result of any
judgment or order or the enforcement thereof or the realization of any security or the liquidation
of any Obligor, shall constitute a discharge of the obligation of the Obligors under this
Agreement, the Notes or such other Financing Agreements only to the extent of the amount of Dollars
which such holder could purchase in the foreign exchange markets in London, England, with the
amount of such other currency in accordance with normal banking procedures at the rate of exchange
prevailing on the London Banking Day following receipt of the payment first referred to above. If
the amount of Dollars that could be so purchased is less than the amount of Dollars originally due
to such holder, each Obligor agrees, jointly and severally, to the fullest extent permitted by law,
to indemnify and save harmless such holder from and against all loss or damage arising out of or as
a result of such deficiency. This indemnity shall, to the fullest extent permitted by law,
constitute an obligation separate and independent from the other obligations contained in this
Agreement, the Notes and the other Financing Agreements, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted by such holder from
time to time and shall continue in full force and effect notwithstanding any judgment or order for
a liquidated sum in respect of an amount due hereunder, under the Notes or under the other
Financing Agreements or under any judgment or order. As used herein the term “London Banking Day”
shall mean any day other than Saturday or Sunday or a day on which commercial banks are required or
authorized by law to be closed in London, England.



* * * * *



 


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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart
of this Agreement and return it to the Company, whereupon this Agreement shall become a binding
agreement between you and the Obligors.



	 	 	 	 	 
	 	Very truly yours,





UTi Worldwide Inc.

 	 
	 	By:  	/s/ Craig Braun
 	 
	 	 	Duly Authorized Signatory (acting pursuant 	 
	 	 	to, and in accordance with, an empowering
resolution of the Board of Directors of UTi
Worldwide Inc.) 	 



 


 









 





	 	 	 	 	 
	 	UTi (Aust) Pty Limited 

UTi Belgium N.V.

UTi Logistics N.V.

Goddard Company Limited

Pyramid Freight (Proprietary) Limited

UTi International Inc. 

UTi Networks Limited

UTi, Canada, Inc.

UTi Canada Contract Logistics Inc.

UTi Deutschland GmbH

UTi (HK) Limited

UTi Global Services B.V.

UTi Nederland B.V.

UTi Technology Services Pte Ltd.

UTi Worldwide (Singapore) Pte Ltd.

Servicios Logisticos Integrados SLI SA

UTi Iberia S.A.

UTi Worldwide (UK) Limited

UTi Inventory Management Solutions Inc

Concentrek, Inc.

InTransit, Inc. 

Market Transport, Ltd.

Sammons Transportation, Inc.

UTi, United States, Inc.

UTi Integrated Logistics, Inc.

 	 
	 	By:  	/s/ Craig Braun
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



 


 









 





This Agreement is hereby accepted and agreed to as of the date thereof.



	 	 	 	 	 	 	 	 	 
	 	 	The Prudential Insurance Company of America	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Cornelia Cheng	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Prudential
Retirement Insurance and
 Annuity Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment Management, Inc., as
investment manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	/s/ Cornelia Cheng	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Gibraltar Life Insurance Co., Ltd.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment
Management
 (Japan),
Inc., as Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment
Management, Inc.,
 as
Sub-Adviser	 	 
	 
	 

	 	 	 	By
	 	/s/ Cornelia Cheng	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	The Prudential Life Insurance Company, Ltd.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment Management (Japan),
Inc., as Investment Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Prudential Investment
Management, Inc.,
 as
Sub-Adviser	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	/s/ Cornelia Cheng	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President	 	 






 


 









 







Defined Terms




As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:



“2006 Notes” means those certain 6.31% Series Unsecured Guaranteed Notes due July 13, 2011
issued by the Company on June 13, 2006.



“2009 Covenants” means each of the covenants set forth in Sections 9.8, 9.12, 10.2, 10.3 and
10.15 of the Existing Note Purchase Agreement.



“2011 Agreements” means this Agreement, the Global Credit Facilities and the South African
Facilities.



“action” taken in connection with insolvency proceedings includes a Dutch entity having filed
a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990).



“Additional Guarantor” is defined in Section 9.10.



“Affiliate” means, at any time, and with respect to any Person, any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person, and, with respect to any Obligor, shall include any
Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting
or equity interests of such Obligor or any Subsidiary or any Person of which such Obligor and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or more of any
class of voting or equity interests. As used in this definition, “Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an
Affiliate of the Company.



“Applicable Jurisdiction” means the United States of America or any State thereof, the British
Virgin Islands, Australia, Canada or any province thereof, Germany, Guernsey, Hong Kong, the
Netherlands, Spain, Belgium, Ireland, Singapore, and the United Kingdom.



“Bank of the West Facility” means the Credit Agreement dated as of June _____, 2011 between the
Company, the subsidiary guarantors thereunder and the Bank of the West.



“BBBEE” means Broad Based Black Economic Empowerment or any successor legislation in South
Africa.



“Belgium Facility” shall mean the credit facility between KBC Bank NV (or an affiliate or
subsidiary thereof) and the Company and/or one or more of its Subsidiaries, which is expected to
include an approximately EUR 10,000,000 revolving credit facility and an approximately EUR
15,000,000 guarantee facility.



Schedule B

(to Note Purchase Agreement)



 


 









 





“Blocked Person” is defined in Section 5.16(a).



“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banks in New York City are required or authorized to be closed.



“Capital Lease” means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.



“CASS” means the Cargo Air Settlement System of Cargo Network Services Corp., a Subsidiary of
the International Air Transport Association.



“CASS Agreement” means that certain Cargo Agency and Authorized Intermediary Agreement, dated
31st December, 2001 between The Cargo Network Services Corporation and UTi, United States, Inc., as
such is amended, restated or replaced from time to time.



“Cession in Security Agreement” means the cession in security agreement between Pyramid
Freight, South Africa and Nedbank Limited to secure the obligations of members of the South African
Group under the South African Facilities.



“Change of Control” means any of the following events or circumstances:




(i) if any person (as such term is used in section 13(d) and section 14(d)(2) of the
Exchange Act as in effect on the date of the Closing) or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange Act), become the “beneficial
owners” (as such term is used in Rule 13d-3 under the Exchange Act as in effect on the date
of the Closing), directly or indirectly, of more than 50% of the total voting power of all
classes then outstanding of the Company’s voting stock, or




(ii) the acquisition after the date of the Closing by any person (as such term is used
in section 13(d) and section 14(d)(2) of the Exchange Act as in effect on the date of the
Closing) or related persons constituting a group (as such term is used in Rule 13d-5 under
the Exchange Act as in effect on the date of the Closing) of (a) the power to elect, appoint
or cause the election or appointment of at least a majority of the members of the board of
directors of the Company, through beneficial ownership of the capital stock of the Company
or otherwise, or (b) all or substantially all of the properties and assets of the Company.



“Closing” is defined in Section 3.



“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.



“Company” means UTi Worldwide Inc., a BVI Business Company incorporated under the laws of the
British Virgin Islands with BVI company number 141257 or any successor that becomes such in the
manner prescribed in Section 10.7.


 


-2-









 





“Confidential Information” is defined in Section 21.



“Consolidated EBITDA” means the consolidated net Pre-taxation Profits of the Group for a
Measurement Period:




(a) including the net Pre-taxation Profits of a member of the Group or business or
assets acquired by a member of the Group during that Measurement Period for the part of that
Measurement Period when it was not a member of the Group and/or the business or assets were
not owned by a member of the Group; but




(b) excluding the net Pre-taxation Profits attributable to any member of the Group or
to any business or assets sold during that Measurement Period, and




(c) excluding (except for purposes of Section 9.15) any non-cash impairments or
write-ups of intangible assets,



and all as adjusted by:




(i) adding back Consolidated Interest Payable;




(ii) for purposes of Section 9.15 only, taking no account of any extraordinary
item (or any exceptional items); and




(iii) adding back depreciation and amortization.



“Consolidated Fixed Charges” means the sum of (a) Consolidated Interest Payable and (b) all
scheduled principal payments (excluding payments on revolving borrowings which can be re-borrowed)
on Indebtedness for the 12 months immediately succeeding such date.



“Consolidated Interest Payable” means all interest and other financing charges (whether, in
each case, paid, payable or capitalized) incurred by the Group during a Measurement Period.



“Consolidated Net Worth” means at any time the aggregate of:




(a) the amount paid up or credited as paid up on the issued share capital of the
Company; and




(b) the net amount standing to the credit (or debit) of the consolidated reserves of
the Group,



based on the latest published consolidated balance sheet of the Company (the “latest balance
sheet") but adjusted by:




(i) deducting any amount attributable to any mandatorily redeemable preference shares
redeemable before the Final Maturity Date;


 


-3-









 






(ii) deducting any dividend or other distribution proposed, declared or made by the
Company (except to the extent it has been taken into account in the latest balance sheet);
and




(iii) deducting any amount attributable to an upward revaluation of assets after the
date of the Original Financial Statements or, in the case of assets of a company which
becomes a member of the Group after that date, the date on which that company becomes a
member of the Group.



“Consolidated Tangible Assets” means Consolidated Total Assets less all intangible assets of
the Group.



“Consolidated Total Assets” means, at any time, the total assets of the Group as of such time
determined in accordance with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.



“Consolidated Total Debt” means, without duplication, (a) all Indebtedness of the Group on a
consolidated basis plus



(b) any liability arising from any deferred payment agreements arranged primarily as a method
of raising finance or financing the acquisition of an asset; and



(c) any Guaranty of a member of the Group with respect to liabilities of the type referred to
in clause (b) above.



“Controlled Entity” means any of the Subsidiaries of the Company and any of their or the
Company’s respective Controlled Affiliates. As used in this definition, “Control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or
otherwise.



“Debt Service Ratio” means, for any Measurement Period the ratio of (a) Consolidated EBITDA
less distributions, dividends and redemptions on account of or with respect to capital stock or
other equity interests of the Company or any Subsidiary (other than those (i) required to be paid
under agreements entered into with Persons in order to obtain or maintain BBBEE status and (ii)
received by the Company or a Subsidiary during such Measurement Period) to (b) Consolidated Fixed
Charges.



“Default” means an event or condition the occurrence or existence of which would, with the
lapse of time or the giving of notice or both, become an Event of Default.



“Default Rate” means that rate of interest that is the greater of (i) 2% per annum above the
rate of interest stated in clause (a) of the first paragraph of the Notes and (ii) 2% per annum
over the rate of interest publicly announced by Royal Bank of Scotland in New York, New York as its
“base” or “prime” rate.


 


-4-









 





“disposal” where it relates to a German Obligor includes:




(i) the entry into an agreement upon a priority notice (Auflassungsvormerkung);




(ii) an agreement on the transfer of title to a property (Auflassung); and




(iii) the partition of its ownership in a property (Grundstücksteilung).



“Disposition” is defined in Section 10.8.



“Disposition Prepayment Date” is defined in Section 8.9.



“Disposition Response Date” is defined in Section 8.9.



"Distribution” includes if a member of the Group (i) declares, makes or pays any dividend (or
interest on any unpaid dividend), charge, fee or other distribution (whether in cash or in kind) on
or in respect of its share capital (or any class of its share capital); or (ii) repays or
distributes any dividend or share premium reserve.



“Dollars” or “$” or “U.S.$” means lawful money of the United States of America.



“duly authorized” where it relates to a Dutch Obligor, includes without limitation:




(i) any action required to comply with the Works Councils Act of the Netherlands (Wet
op de ondernemingsraden); and




(ii) obtaining an unconditional positive advice (advies) from the competent works
council(s).



“Dutch Civil Code” means the Burgerlijk Wetboek.



“Dutch Obligor” means an Obligor incorporated or formed in the Netherlands.



“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including but
not limited to those related to Hazardous Materials.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in effect.



“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as
a single employer together with any Obligor under section 414 of the Code.


 


-5-









 





“Event of Default” is defined in Section 11.



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Existing Financing Agreements” means the Existing Note Purchase Agreement, the notes issued
thereunder and the guarantee provided therein, all as amended, restated, modified, supplemented,
replaced or refinanced from time to time.



“Existing Note Purchase Agreement” means that certain Note Purchase Agreement dated as of July
9, 2009 between the Company, the subsidiary guarantors described therein and the purchasers of
notes signatory thereto, as amended or modified from time to time.



“Final Maturity Date” means August 24, 2018.



“financial assistance” where it relates to a Dutch Obligor means any act contemplated by:




(i) (for a besloten vennootschap) Article 2:207(c) of the Dutch Civil Code; or




(ii) (for a naamloze vennootschap) Article 2:98(c) of the Dutch Civil Code.



“Financing Agreements” means the Notes, this Agreement and the Subsidiary Guarantee Agreement
in each case, as amended, restated, modified, supplemented, replaced or refinanced from time to
time.



“Form 10-K” is defined in Section 7.1(b).



“Form 10-Q” is defined in Section 7.1(a).



“French Commercial Code” means the Code de Commerce.



“GAAP” means generally accepted accounting principles, standards and practices as in effect
from time to time in the United States, provided that from and after the date on which the Company
is required or elects to adopt International Financial Reporting Standards (“IFRS”), GAAP shall
mean IFRS as in effect from time to time.



“German Facility” shall mean the credit facility between Commerzbank AG (or an affiliate or
subsidiary thereof) and the Company and/or one or more of its Subsidiaries, which is expected to
include a revolving credit facility of approximately EUR 17,000,000.



“Global Credit Facilities” shall mean the (a) Bank of the West Facility, (b) the Nedbank
Facility, (c) the RBS Facility (d) the German Facility and (e) the Belgium Facility, as amended,
restated, modified, supplemented, replaced or refinanced from time to time, and any subsequent
agreement or agreements entered into by one or more members of the Group which are similar to the
Global Credit Facilities or which constitute, taken as a whole, the Group’s main credit facilities.


 


-6-









 





“Governmental Authority” means




(a) the government of




(i) the Applicable Jurisdiction or any State or other political subdivision of
either thereof, or




(ii) any other jurisdiction in which any Obligor or any Subsidiary conducts all
or any part of its business, or which asserts jurisdiction over any properties of
any Obligor or any Subsidiary, or




any entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.



“Group” means the Company and its Subsidiaries.



"guarantee” where it relates to a French Subsidiary includes any cautionnement, aval and any
garantie which is independent from the debt to which it relates.



“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other
Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:




(a) to purchase such indebtedness or obligation or any property constituting security
therefor;




(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or
obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;




(c) to lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or




(d) otherwise to assure the owner of such indebtedness or obligation against loss in
respect thereof.



In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.



“Guernsey Obligor” means an Obligor incorporated or formed in the Bailiwick of Guernsey.


 


-7-









 





“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other
substances that pose a hazard to health and safety, the removal of which is required or the
generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law, including, without
limitation, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized
substances.



“holder” means, with respect to any Note the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 14.1.



“IFRS” means International Financial Reporting Standards as in effect from time to time which
are adopted by the International Accounting Standards Board.



“inability to pay its debts” where it relates to a French Subsidiary includes that person
being in a state of cessation des paiements. Where it relates to a German Obligor includes that
person being in a state of illiquidity (Zahlungsunfähigkeit) or being overindebted (Überschuldung)
or being at risk of being unable to pay its debts as they fall due (drohende Zahlungsunfähigkeit)
all within the meaning of §17-§19 (each inclusive) German Insolvency Code.



“Indebtedness” with respect to any Person means, at any time, without duplication,




(a) (i) its liabilities for borrowed money and (ii) its redemption obligations in
respect of mandatorily redeemable Preferred Stock redeemable before the Final Maturity Date;




(b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or other title retention agreement
with respect to any such property);




(c) (i) all liabilities which would appear on its balance sheet in accordance with GAAP
in respect of Capital Leases and (ii) all liabilities which would appear on its balance
sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases
were accounted for as Capital Leases;




(d) all liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities);




(e) all liabilities in respect of letters of credit or instruments serving a similar
function issued or accepted for its account by banks and other financial institutions
(whether or not representing obligations for borrowed money); and




(f) any Guaranty of such Person with respect to liabilities of a type described in any
of clauses (a) through (e) hereof.


 


-8-









 





Indebtedness of any Person shall include all obligations of such Person of the character described
in clauses (a) through (f) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP. For the
avoidance of doubt, any obligation relating to the obligations of a member of the Group arising in
the ordinary course of its trade for purposes other than to raise financing including, without
limitation, contingent trade related reimbursement obligations, bonds and undrawn letters of credit
issued to customs or tax authorities in the ordinary course of business not constituting debt for
borrowed money, shall be excluded from the calculation of Indebtedness.



“insolvent” where it relates to a German Obligor includes illiquidity (Zahlungsunfähigkeit) an
imminent inability to pay debts as they fall due (drohende Zahlungsunfähigkeit) and
overindebtedness (Überschuldung).



“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding
(together with one or more of its affiliates) more than U.S.$2,000,000 of the aggregate principal
amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or
other financial institution, any pension plan, any investment company, any insurance company, any
broker or dealer, or any other similar financial institution or entity, regardless of legal form,
and (d) any Related Fund of any holder of any Note.



“Joinder Agreement” is defined in Section 9.10.



“Joint Venture” means any joint venture entity, partnership or similar person, the ownership
of or other interest in which does not require any member of the Group to consolidate the results
of such person with their own as a Subsidiary.



“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar arrangements).



“Lien” where it relates to a Dutch Obligor includes any mortgage (hypotheek), pledge
(pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of
retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any
right in rem (beperkte recht), created for the purpose of granting security (goederenrechtelijk
zekerheidsrecht).



“Make-Whole Amount” is defined in Section 8.8.



“Material” means material in relation to the business, operations, affairs, financial
condition, assets or properties of the Company and its Subsidiaries taken as a whole.


 


-9-









 





“Material Adverse Effect” means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a
whole, or (b) the ability of any Obligor to perform its obligations under any Financing Agreement,
or (c) the validity or enforceability of any Financing Agreement.



“Material Indebtedness” means any arrangement with respect to Indebtedness of any member of
the Group to a creditor (other than a member of the Group) the principal amount of which is at
least U.S.$15,000,000 (or the equivalent in any other currency).



“Measurement Period” means a period of 12 months ending on the last day of a financial quarter
year of the Company.



“Modified Make-Whole Amount” is defined in Section 8.8.



“moratorium” where it relates to a Dutch Obligor includes surséance van betaling and “granted
a moratorium” includes surséance verleend.



“Multiemployer Plan” means any “multiemployer plan” (as such term is defined in section
4001(a)(3) of ERISA) to which any Obligor or any ERISA Affiliate contributes or has made
contributions at any time within the immediately preceding five plan years.



“NAIC” means the National Association of Insurance Commissioners or any successor thereto.



“Nedbank Facility” means that certain Amended and Restated Letter of Credit and Cash Draw
Agreement among the Company, the subsidiary guarantors thereunder and Nedbank Limited dated as of
June 24, 2011.



“Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or
maintained outside the United States of America by any Obligor or any Subsidiary primarily for the
benefit of employees of such Obligor or one or more Subsidiaries residing outside the United States
of America, which plan, fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon termination of
employment, and (b) is not subject to ERISA or the Code.



“Notes” is defined in Section 1.



“Obligors” means the Company and the Subsidiary Guarantors.



“OFAC” is defined in Section 5.16(a).



“OFAC Listed Person” is defined in Section 5.16(a).



“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for
administering and enforcing. A list of OFAC Sanctions Programs may be found at
http://www.ustreas.gov/offices/enforcement/ofac/programs/.


 


-10-









 





“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other
officer of the Company or any other applicable Obligor, as the context indicates, whose
responsibilities extend to the subject matter of such certificate.



“Original Financial Statements” means the Form 10-K of the Company for the fiscal year ended
January 31, 2011.



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any
successor thereto.



“Permitted Jurisdiction” means (a) the United States of America or any State thereof, (b) the
British Virgin Islands and (c) any other country that on the April 30, 2004 was a member of the
European Union (other than Greece, Italy, Portugal, Spain or Turkey).



“Person” means an individual, partnership, corporation, company, body corporate, limited
liability company, association, trust, unincorporated organization, business entity or Governmental
Authority.



“Plan” means an “employee pension plan” (as defined in section 3(2) of ERISA) subject to Title
IV of ERISA, but excluding Multiemployer Plans, that is or, within the preceding five years, has
been established or maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by any Obligor or any ERISA Affiliate or with respect to
which such Obligor or any ERISA Affiliate may have any liability.



“Preferred Stock” means any class of capital stock of a Person that is preferred over any
other class of capital stock (or similar equity interests) of such Person as to the payment of
dividends or the payment of any amount upon liquidation or dissolution of such Person.



“Pre-taxation Profits” means net income adding back minority interest expense and provision
for income tax.



“Primary Credit Facility” shall mean any credit, letter of credit facility or other borrowing
facility of any type entered into by the Company or any Subsidiary Guarantor which represents
borrowings or commitments of U.S.$15,000,000 (or its equivalent in any other currency) or more.



“Priority Debt” means the sum, without duplication, of (i) Consolidated Total Debt secured by
Liens not otherwise permitted by clauses (a) through (m) of Section 10.5; and (ii) all other
Consolidated Total Debt of Subsidiaries not otherwise permitted pursuant to clauses (a) through (l)
of Section 10.6.



“property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.



“PTE” means a Prohibited Transaction Exemption issued by the Department of Labor.


 


-11-









 





“Purchaser” is defined in the first paragraph of this Agreement.



“Pyramid Freight” means Pyramid Freight BVI and Pyramid Freight, South Africa.



“Pyramid Freight BVI” means Pyramid Freight (Proprietary) Limited a company incorporated with
limited liability in the British Virgin Islands with BVI company number 530960 (excluding Pyramid
Freight, South Africa).



“Pyramid Freight, South Africa” means Pyramid Freight (Proprietary) Limited, South Africa
branch, a branch of Pyramid Freight BVI with company number 1987/003687/10 in respect only of its
operations in South Africa.



“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer”
within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.



“RBS Facility” means the Amended and Restated Letter of Credit Agreement among the Company,
the subsidiary guarantors thereunder and The Royal Bank of Scotland N.V. dated as of June 24, 2011.



“receiver” or “administrator” where it relates to a French Subsidiary includes an
administrateur judiciaire, administrateur provisoire, mandataire ad hoc, conciliateur and
mandataire liquidateur.



“receiver” or “administrator” where it relates to a German Obligor includes an
Insolvenzverwalter or creditor’s trustee (Sachwalter).



“reconstruction” where it relates to a French Subsidiary includes any contribution of part of
its business in consideration of shares (apport partiel d’actifs) and any demerger (scission)
implemented in accordance with Articles L.236-1 to L.236-24 of the French Commercial Code.



“Related Fund” means, with respect to any holder of any Note, any fund or entity that (a)
invests in securities or bank loans, and (b) is advised or managed by such holder, the same
investment advisor as such holder or by an affiliate of such holder or such investment advisor.



“Release Date” shall mean (a) with respect to any 2009 Covenant the date on which the Company
amends the Existing Financing Agreements to remove such 2009 Covenant if such date occurs within 30
days of Closing, or (b) otherwise, the date of the final payment in full of the notes issued under
the Existing Note Purchase Agreement.



“reorganization” where it relates to a German Obligor includes any of the reorganizations
mentioned in Section 1 of the Corporate Transformation Act (Umwandlungsgesetz).



“Required Holders” means, at any time, the holders of at least 51% in principal amount of the
Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).


 


-12-









 





“Responsible Officer” means any Senior Financial Officer and any other officer or director of
the Company or another applicable Obligor, as the context indicates, with responsibility for the
administration of the relevant portion of this Agreement.



“Restricted Payment” means




(a) any Distribution in respect of the Company or any Subsidiary of the Company (other
than on account of capital stock or other equity interests of a Subsidiary of the Company
owned legally and beneficially by the Company or another Subsidiary of the Company),
including, without limitation, any Distribution resulting in the acquisition by the Company
of securities which would constitute treasury stock, and




(b) any payment, repayment, redemption, retirement, repurchase or other acquisition,
direct or indirect, by the Company or any Subsidiary of, on account of, or in respect of,
the principal of any Subordinated Indebtedness (or any installment thereof) prior to the
regularly scheduled maturity date thereof (as in effect on the date such Subordinated
Indebtedness was originally incurred).



For purposes of this Agreement, the amount of any Restricted Payment made in property shall be the
greater of (x) the fair market value of such property (as determined in good faith by the board of
directors (or equivalent governing body) of the Person making such Restricted Payment) and (y) the
net book value thereof on the books of such Person, in each case determined as of the date on which
such Restricted Payment is made.



“SEC” shall mean the Securities and Exchange Commission of the United States, or any successor
thereto.



“SEC Report” means the following documents or information filed with the SEC:




	 	•	 	the Company’s Annual Report on Form 10-K for the fiscal year ended
January 31, 2011, filed with the SEC on March 30, 2011;

	 
	 	•	 	the Company’s Quarterly Report on Form 10-Q for the quarter ended
April 30, 2011, filed with the SEC on June 6, 2011; and

	 
	 	•	 	the Company’s Current Report on Form 8-K filed with the SEC on April
18, 2011.






Notwithstanding the preceding, unless specifically stated to the contrary, none of the information
that the Company discloses under 2.02 or 7.01 or, if related to Items 2.02 or 7.01, Item 9.01 of
any Current Report on Form 8-K that the Company may, from time to time, furnish to the SEC will be
included in meaning of the term SEC Report. The information contained in an SEC Report speaks only
as of the date of such document. Any statement contained in an SEC Report shall be deemed to be
modified or superseded for purposes of this Agreement to the extent that a statement contained in
this Agreement or in any subsequently filed document or report that also is an SEC Report modifies
or supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute an SEC Report.


 


-13-









 





“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.



“Senior Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or comptroller of the Company, or another applicable Obligor, as the context indicates.



“Senior Indebtedness” means and includes all Indebtedness of the Company, or any Subsidiary
owing to any Person that is not a Subsidiary or Affiliate and which is not expressed to be junior
or subordinate to any other Indebtedness of the Company or Subsidiary except for Indebtedness of a
member of the South African Group or Pyramid Freight BVI.



“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of
any Obligor within the meaning of Regulation S-X promulgated by the SEC and in any event shall
include each Subsidiary Guarantor.



“South African Facilities” means the revolving credit facility dated as of July 9, 2009 made
available to one or more members of the South African Group as such agreement is amended, modified,
replaced or refinanced from time to time and shall also mean any subsequent credit, letter of
credit facility or other borrowing or financing facility of any type that is made available to one
or more members of the South African Group.



“South African Group” means Pyramid Freight, South Africa and each South African Subsidiary.



“South African Rand” means the lawful currency of South Africa.



“South African Subsidiary” means any member of the Group organized or conducting a material
portion of its business in South Africa. “South African Subsidiary” shall not include any member
of the Group organized in a jurisdiction other than South Africa whose only South African business
is the ownership of stock of Subsidiaries organized in South Africa.



“Spanish Obligor” means an Obligor incorporated or formed in Spain.



“Subordinated Indebtedness” means Indebtedness of the Company or any Subsidiary Guarantor that
is by its express terms subordinated in right of payment to the Notes or the Guaranty of such
Subsidiary Guarantor, as the case may be.



“Subsidiary” means, as to any Person, any other Person in which such first Person or one or
more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a 50% interest in the profits
or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first
Person and one or more of its Subsidiaries (unless such partnership can and does ordinarily take
major business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary”
is a reference to a Subsidiary of the Company.


 


-14-









 





“Subsidiary Guarantee Agreement” means the subsidiary guarantee agreement contained in Section
23 (and any and all supplements or joinders thereto) and executed by each Subsidiary Guarantor, as
amended, restated, supplemented or otherwise modified from time to time.



“Subsidiary Guarantor” means, unless released pursuant to Section 9.11, (x):




(i) UTi (Aust) Pty Limited ACN 006 734 747 a company incorporated in Australia,




(ii) UTi Belgium N.V., a company incorporated in Belgium,




(iii) UTi Logistics N.V., a company incorporated in Belgium,




(iv) Goddard Company Limited, a BVI Business Company incorporated under the laws of the
British Virgin Islands,




(v) Pyramid Freight (Proprietary) Limited, a BVI Business Company incorporated under
the laws of the British Virgin Islands with company number 530960 (provided that Pyramid
Freight BVI is only a Subsidiary Guarantor in respect of assets that are not located in
South Africa),




(vi) UTi International Inc., a BVI Business Company incorporated under the laws of the
British Virgin Islands,




(vii) UTi Networks Limited, a Guernsey company incorporated under the laws of the
Bailiwick of Guernsey,




(viii) UTi, Canada, Inc., a corporation formed under the laws of Canada,




(ix) UTi Canada Contract Logistics Inc., a corporation formed under the laws of Canada,




(x) UTi Deutschland GmbH, a corporation formed under the laws of Germany,




(xi) UTi (HK) Limited, a corporation formed under the laws of Hong Kong,




(xii) UTi Global Services B.V., a private company with limited liability formed under
the laws of the Netherlands,




(xiii) UTi Nederland B.V., a private company with limited liability formed under the
laws of the Netherlands,


 


-15-









 






(xiv) UTi Technology Services Pte Ltd., a company organized under the laws of
Singapore,




(xv) UTi Worldwide (Singapore) Pte Ltd., a company organized under the laws of
Singapore;




(xvi) Servicios Logisticos Integrados SLI SA, a corporation formed under the laws of
Spain,




(xvii) UTi Iberia S.A., a corporation formed under the laws of Spain,




(xviii) UTi Worldwide (UK) Limited, a corporation formed under the laws of the United
Kingdom,




(xix) UTi Inventory Management Solutions, Inc., a corporation formed under the laws of
Delaware,



(xx) Concentrek, Inc., a corporation formed under the laws of Arizona,




(xxi) InTransit, Inc., a corporation formed under the laws of Oregon,




(xxii) Market Transport, Ltd., a corporation formed under the laws of Oregon,




(xxiii) Sammons Transportation, Inc. a corporation formed under the laws of Montana,




(xxiv) UTi, United States, Inc., a corporation formed under the laws of New York,




(xxv) UTi Integrated Logistics, Inc., a corporation formed under the laws of South
Carolina, and



(y) each other Subsidiary which has executed and delivered a Joinder Agreement pursuant to
Section 9.10.



“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.



“Synthetic Lease” means, at any time, any lease (including leases that may be terminated by
the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP
and (b) in respect of which the lessee retains or obtains ownership of the property so leased for
income tax purposes, other than any such lease under which such Person is the lessor.



“Tax” means any tax (whether income, documentary, sales, stamp, registration, issue, capital,
property, excise or otherwise), duty, assessment, levy, impost, fee, compulsory loan, charge or
withholding.


 


-16-









 





“Taxing Jurisdiction” is defined in Section 13.



“trustee” related to a bankruptcy of a Dutch Obligor includes a curator.



“U.S. Guarantor” means any Subsidiary Guarantor that is incorporated or organized under the
laws of the United States of America or any State of the United States of America (including the
District of Columbia) or that resides or has a domicile, a place of business or property in the
United States of America.



“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, as amended from time to time, and the rules and regulations promulgated thereunder from time
to time in effect.



“Wholly-Owned Subsidiary” means, as to any Person, at any time, any Subsidiary one hundred
percent of all of the equity interests (except directors’ qualifying shares or similar statutorily
required minority interests) and voting interests of which are owned by any one or more of such
Person and such Person’s other Wholly-Owned Subsidiaries at such time. Unless the context
otherwise requires, any reference to a “Wholly-Owned Subsidiary” is a reference to a direct or
indirect Wholly-Owned Subsidiary of the Company.



“winding-up, administration or dissolution” where it relates to a French Subsidiary includes a
redressement judiciaire, cession totale de l’enterprise or liquidation judiciaire or a procédure de
sauvegade unde Livre Sixiene of the French Commercial Code.



 


-17-









 







Principal Amortization Schedule




	 	 	 	 	 
	 	 	Principal 	 
	Date	 	Amortization Amount	 
	6/24/2011
	 	$	0.00	 
	2/24/2012
	 	$	0.00	 
	8/24/2012
	 	$	0.00	 
	2/24/2013
	 	$	0.00	 
	8/24/2013
	 	$	0.00	 
	2/24/2014
	 	$	9,000,000.00	 
	8/24/2014
	 	$	9,000,000.00	 
	2/24/2015
	 	$	19,000,000.00	 
	8/24/2015
	 	$	19,000,000.00	 
	2/24/2016
	 	$	19,000,000.00	 
	8/24/2016
	 	$	19,000,000.00	 
	2/24/2017
	 	$	19,000,000.00	 
	8/24/2017
	 	$	19,000,000.00	 
	2/24/2018
	 	$	9,000,000.00	 
	8/24/2018
	 	$	9,000,000.00	 






Schedule 8.1

(to Note Purchase Agreement)



 


 









 







[Form of Note]




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
OR ANY OTHER APPLICABLE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SAID ACT OR SUCH OTHER LAWS.



UTi Worldwide Inc.




U.S.$150,000,000 3.67% Senior Unsecured Guaranteed Notes

due August 24, 2018




			
	 	 	 
	No. R-[     ]
	 	[Date]
	U.S.$[                    ]
	 	PPN                     






For Value Received, the undersigned, UTi Worldwide Inc. (herein called the
“Company"), a BVI Business Company incorporated and existing under the laws of the British Virgin
Islands with BVI company number 141257, hereby promises to pay to [                                        ], or registered
assigns, the principal sum of [                                        ] Dollars (or so much thereof as
shall not have been prepaid) on August 24, 2018, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 3.67% per annum from
the date hereof, payable semiannually, on the twenty-fourth day of February and August in each
year, commencing with the February 24, 2012, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the
continuance of an Event of Default, on such unpaid balance and on any overdue payment of any
Make-Whole Amount or Modified Make-Whole Amount, at a rate per annum from time to time equal to the
greater of (i) 5.67% and (ii) 2% over the rate of interest publicly announced by Royal Bank of
Scotland from time to time in New York, New York as its “base” or “prime” rate, payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).



Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount
with respect to this Note are to be made in lawful money of the United States of America at Royal
Bank of Scotland in New York, New York or at such other place as the Company shall have designated
by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



This Note is one of a series of Senior Notes (herein called the “Notes") issued pursuant to
the Note Purchase Agreement, dated as of June 24, 2011 (as from time to time amended, the “Note
Purchase Agreement"), between the Company, certain Subsidiary Guarantors party thereto and the
respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this
Note will be deemed, by its acceptance hereof, to have agreed to the confidentiality provisions set
forth in Section 21 of the Note Purchase Agreement. Unless otherwise indicated,
capitalized terms used in this Note shall have the respective meanings ascribed to such terms
in the Note Purchase Agreement.



Exhibit 1

(to Note Purchase Agreement)



 


 









 







The payment and performance of this Note is unconditionally guaranteed by the Subsidiary
Guarantors pursuant to the Subsidiary Guarantee Agreement.



This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, accompanied by a written instrument of transfer duly
executed by the registered holder hereof or such holder’s attorney duly authorized in writing, a
new Note for a like principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.



The Company will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.



If an Event of Default occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any applicable Make-Whole
Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.



This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a jurisdiction other than such
State.



	 	 	 	 	 
	 	UTi Worldwide Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its:  Duly Authorized Signatory (acting
pursuant to and in accordance with, an
empowering resolution of the Board of
Directors of UTi Worldwide Inc.) 	 
	 




 


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