Exhibit 10.4





Exhibit 10.4




CREDIT AGREEMENT




Dated as of June 24, 2011




Between




UTi WORLDWIDE, INC.




and




BANK OF THE WEST




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	16	 
	1.03 Accounting Terms
	 	 	17	 
	1.04 References to Agreements and Laws
	 	 	17	 
	1.05 Times of Day
	 	 	17	 
	1.06 Letter of Credit Amounts
	 	 	17	 
	1.07 Alternative Currencies
	 	 	17	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	18	 
	2.01 Revolving Loans
	 	 	18	 
	2.02 Borrowings, Conversions and Continuations of Revolving Loans
	 	 	18	 
	2.03 Letters of Credit
	 	 	19	 
	2.04 Prepayments
	 	 	23	 
	2.05 Termination or Reduction of Revolving Commitment
	 	 	23	 
	2.06 Repayment of Revolving Loans
	 	 	24	 
	2.07 Interest
	 	 	24	 
	2.08 Fees
	 	 	24	 
	2.09 Computation of Interest and Fees
	 	 	25	 
	2.10 Evidence of Debt
	 	 	25	 
	2.11 Payments Generally
	 	 	25	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	25	 
	3.01 Taxes
	 	 	25	 
	3.02 Illegality
	 	 	26	 
	3.03 Inability to Determine Floating Eurodollar Rate
	 	 	27	 
	3.04 Increased Cost and Reduced Return; Capital Adequacy
	 	 	27	 
	3.05 Requests for Compensation
	 	 	27	 
	3.06 Survival
	 	 	27	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	27	 
	4.01 Conditions of Initial Credit Extension
	 	 	27	 
	4.02 Conditions to all Credit Extensions
	 	 	28	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	29	 
	5.01 Organization; Power and Authority
	 	 	29	 
	5.02 Authorization, Etc
	 	 	29	 
	5.03 Disclosure
	 	 	29	 
	5.04 Organization and Ownership of Shares of Subsidiaries; Affiliates
	 	 	30	 





 


(i)









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	5.05 Financial Statements; Material Liabilities
	 	 	30	 
	5.06 Compliance with Laws, Other Instruments, Etc
	 	 	31	 
	5.07 Governmental Authorizations, Etc
	 	 	31	 
	5.08 Litigation; Observance of Agreements, Statutes and Orders
	 	 	31	 
	5.09 Taxes
	 	 	31	 
	5.10 Title to Property; Leases
	 	 	32	 
	5.11 Licenses, Permits, Etc
	 	 	32	 
	5.12 Compliance with ERISA; Non U.S. Plans
	 	 	32	 
	5.13 Use of Proceeds; Margin Regulations
	 	 	33	 
	5.14 Existing Indebtedness; Future Liens
	 	 	33	 
	5.15 Foreign Assets Control Regulations, Etc
	 	 	34	 
	5.16 Status under Certain Statutes
	 	 	34	 
	5.17 Environmental Matters
	 	 	34	 
	5.18 Ranking of Obligations
	 	 	35	 
	5.19 Obligor Group
	 	 	35	 
	5.20 CASS Reserve
	 	 	35	 
	5.21 Labor Matters
	 	 	35	 
	5.22 Insolvency
	 	 	35	 
	5.23 Insurance
	 	 	35	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	36	 
	6.01 Financial and Business Information
	 	 	36	 
	6.02 Officer’s Certificate
	 	 	38	 
	6.03 Inspection Rights
	 	 	38	 
	6.04 Limitation on Disclosure Obligation
	 	 	39	 
	6.05 Compliance with Law
	 	 	39	 
	6.06 Insurance
	 	 	39	 
	6.07 Maintenance of Properties
	 	 	39	 
	6.08 Payment of Taxes and Claims
	 	 	39	 
	6.09 Corporate Existence, Etc
	 	 	40	 
	6.10 Books and Records
	 	 	40	 
	6.11 Priority of Obligations
	 	 	40	 
	6.12 Dividend Capture from South Africa
	 	 	40	 
	6.13 Additional Obligors
	 	 	40	 
	6.14 Release of Subsidiary Guarantors; Substitution of Subsidiary Guarantors
	 	 	41	 
	6.15 Group Structure
	 	 	41	 
	6.16 CASS Agreement
	 	 	42	 





 


(ii)









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.17 Additional Restrictions
	 	 	42	 
	6.18 2009 Notes Covenants
	 	 	43	 
	6.19 Post-Closing Obligations
	 	 	43	 
	6.20 Use of Proceeds
	 	 	43	 
	6.21 Further Assurances
	 	 	43	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	43	 
	7.01 Transactions with Affiliates
	 	 	43	 
	7.02 Restricted Payments
	 	 	43	 
	7.03 Consolidated Total Debt Coverage
	 	 	44	 
	7.04 Priority Debt
	 	 	44	 
	7.05 Liens
	 	 	44	 
	7.06 Subsidiary Indebtedness
	 	 	45	 
	7.07 Merger, Consolidation, Etc
	 	 	46	 
	7.08 Sale of Assets
	 	 	47	 
	7.09 Line of Business
	 	 	48	 
	7.10 Terrorism Sanctions Regulations
	 	 	48	 
	7.11 Subsidiaries in South Africa
	 	 	48	 
	7.12 Minimum Debt Service Ratio
	 	 	48	 
	7.13 Capital Leases
	 	 	48	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	48	 
	8.01 Events of Default
	 	 	48	 
	8.02 Remedies Upon Event of Default
	 	 	51	 
	8.03 Application of Funds
	 	 	51	 
	8.04 Executive Proceedings
	 	 	51	 
	ARTICLE IX. SUBSIDIARY GUARANTY
	 	 	52	 
	9.01 Guaranty and Indemnity
	 	 	52	 
	9.02 Unconditional Guaranty
	 	 	52	 
	9.03 Reinstatement
	 	 	52	 
	9.04 Waiver of Defenses
	 	 	53	 
	9.05 Immediate Recourse
	 	 	53	 
	9.06 Appropriations
	 	 	54	 
	9.07 Non-Competition
	 	 	54	 
	9.08 Release of Subsidiary Guarantors’ Right of Contribution
	 	 	54	 
	9.09 Releases
	 	 	55	 
	9.10 Marshaling
	 	 	55	 
	9.11 Liability
	 	 	55	 





 


(iii)









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	9.12 Character of Obligation
	 	 	56	 
	9.13 Election to Perform Obligations
	 	 	57	 
	9.14 No Election
	 	 	57	 
	9.15 Other Enforcement Rights
	 	 	57	 
	9.16 Restoration of Rights and Remedies
	 	 	57	 
	9.17 Survival
	 	 	57	 
	9.18 Miscellaneous
	 	 	57	 
	9.19 Limitation
	 	 	58	 
	9.20 Written Notice
	 	 	58	 
	9.21 Unenforceability of Obligations
	 	 	58	 
	9.22 Contribution
	 	 	58	 
	9.23 Additional Security
	 	 	59	 
	9.24 Limitations — Belgium
	 	 	59	 
	9.25 Limitations — Spain
	 	 	59	 
	9.26 Limitations — Hong Kong
	 	 	59	 
	9.27 Limitations — Germany
	 	 	59	 
	9.28 Limitations — the Netherlands
	 	 	60	 
	9.29 U.S. Guarantors
	 	 	60	 
	9.30 Limitations — UK
	 	 	61	 
	9.31 Limitation on Pyramid Freight
	 	 	61	 
	9.32 Limitations — Singapore
	 	 	62	 
	9.33 Irish Obligors
	 	 	62	 
	9.34 Guarantor Intent
	 	 	62	 
	ARTICLE X. MISCELLANEOUS
	 	 	62	 
	10.01 Amendments; Etc
	 	 	62	 
	10.02 Notices and Other Communications; Facsimile Copies
	 	 	62	 
	10.03 No Waiver; Cumulative Remedies
	 	 	63	 
	10.04 Attorney Costs, Expenses and Taxes
	 	 	63	 
	10.05 Indemnification by the Borrower
	 	 	63	 
	10.06 Payments Set Aside
	 	 	64	 
	10.07 Successors and Assigns
	 	 	64	 
	10.08 Confidentiality
	 	 	65	 
	10.09 Set-off
	 	 	66	 
	10.10 Interest Rate Limitation
	 	 	66	 
	10.11 Counterparts
	 	 	66	 
	10.12 Integration
	 	 	66	 





 


(iv)









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	10.13 Survival of Representations and Warranties
	 	 	66	 
	10.14 Severability
	 	 	67	 
	10.15 Governing Law
	 	 	67	 
	10.16 Jurisdiction and Process; Waiver of Jury Trial
	 	 	67	 
	10.17 USA Patriot Act Notice
	 	 	68	 






SCHEDULES




	 	 	 	 	 
	5.03 Disclosure Materials
	 	 	 	 
	5.04 Organization and Ownership of Shares of Subsidiaries; Affiliates
	 	 	 	 
	5.05 Financial Statements
	 	 	 	 
	5.07 Governmental Authorizations
	 	 	 	 
	5.09 Liability for Taxes
	 	 	 	 
	5.14 Existing Indebtedness and Liens
	 	 	 	 
	5.21 Collective Bargaining Agreements
	 	 	 	 






EXHIBITS




	 	 	 	 	 
	Form of
	 	 	 	 
	A Loan Notice
	 	 	 	 
	B Compliance Certificate
	 	 	 	 
	C Joinder
	 	 	 	 






 


(v)









 







CREDIT AGREEMENT




This CREDIT AGREEMENT (“Agreement”) is entered into as of June 24, 2011 by and between
UTi WORLDWIDE, INC., a BVI Business Company incorporated under the laws of the British Virgin
Islands (the “Borrower”), BANK OF THE WEST, a California banking corporation (the
“Lender”), and each of the Subsidiary Guarantors (as defined herein).



The Borrower has requested that the Lender provide credit to the Borrower, and the Lender is
willing to do so on the terms and conditions set forth herein.



In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS





1.01 Defined Terms.
 As used in this Agreement, the following terms shall have the meanings set forth below:



“2006 Notes” means those certain 6.31% Series Unsecured Guaranteed Notes due July 13,
2011 issued by the Borrower 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 2009 Note Purchase Agreement.



“2009 Note Purchase Agreement” means the Note Purchase Agreement dated as of July 9,
2009 among the Borrower, the subsidiary guarantors (as defined therein) and the purchasers of the
$55,000,000 principal amount of 8.06% Senior Unsecured Guaranteed Notes due August 9, 2014, as
amended, modified, replaced or refinanced from time to time.



“2011 Agreements” means this Agreement, the 2011 Note Purchase Agreement, the 2009
Note Purchase Agreement, the Global Credit Facilities and the South African Facilities.



“2011 Note Purchase Agreement” means the Note Purchase Agreement dated as of June 24,
2011 among the Borrower, the Subsidiary Guarantors and the purchasers of the $150,000,000 principal
amount of 3.67% Senior Unsecured Guaranteed Notes due August 24, 2018, as amended, modified,
replaced or refinanced from time to time.




“Account” has the meaning given such term in the Uniform Commercial Code.



“Accountants’ Certificate” has the meaning specified in Section
6.01(b)(ii)(C).



“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 Covenants” has the meaning specified in Section 6.17.




“Additional Guarantor” has the meaning specified in Section 6.13.



“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 corporation 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. Unless the context otherwise clearly requires, any reference to an “Affiliate”
is a reference to an Affiliate of the Borrower.


 


-1-









 






“Agreement” means this Credit Agreement.



“Alternate Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the rate of interest in effect for such day as publicly announced from time to time
by the Lender as its “prime rate”, (b) the Federal Funds Rate plus 1/2 of 1% and (c) the Floating
Eurodollar Rate on such date plus 1%. “Prime rate” means an index for a variable interest rate
which is quoted, published or announced by the Lender as its prime rate and as to which Revolving
Loans may be made by Lender at, above or below such rate. The Alternate Base Rate will change on
the date of any change in the prime rate, Federal Funds Rate or such Floating Eurodollar Rate, as
applicable.



“Alternate Base Rate Loan” means a Revolving Loan bearing interest calculated based on
the Alternate Base Rate.



“Alternative Currency Equivalent” means, with respect to any amount denominated in
Dollars, that amount in an Alternative Currency calculated at the then applicable Spot Rate.



“Alternative Currency” means any currency (other than Dollars) that is approved in
accordance with Section 1.07.



“Alternative Currency LC Sublimit” has the meaning specified in Section
2.03(a)(i).




“Anti-Money Laundering Laws” has the meaning specified in Section 5.15(c).



“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.



“Applicable Rate” with respect to (a) the Unused Fee means 0.25%, (b) the Floating
Eurodollar Rate means 1.50%, (c) Letters of Credit means 1.50%, and (d) the Alternative Base Rate
means 0.00%.



“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the reasonable allocated cost of
internal legal services and all expenses and disbursements of internal counsel.



“Bank Product” means any financial accommodation extended to the Borrower and its
Subsidiaries by the Bank or any of its Affiliates (other than this Agreement and the transactions
contemplated by this Agreement) including, without limitation, credit and purchase cards, foreign
exchange transactions and cash management services (including controlled disbursements, accounts or
services).



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



“Belgium Facility” means the credit facility between KBC Bank NV (or an affiliate or
subsidiary thereof) and the Borrower 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




“Blocked Person” has the meaning specified in Section 5.16(a).



“Borrower” has the meaning specified in the introductory paragraph hereto.


 


-2-









 





“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Lending Office is located and, if such day relates to any Floating Eurodollar Loan, means
any such day on which dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.



“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.



“Cash Collateralize” means to pledge and deposit with or deliver to the Lender, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Lender. Derivatives of such term have corresponding
meanings. Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts at
the Lender.



“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 Closing Date) 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 Borrower’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 Borrower,
through beneficial ownership of the capital stock of the Borrower or otherwise, or (b) all or
substantially all of the properties and assets of the Borrower.




“Change of Control Notice” has the meaning specified in Section 2.04(c).



“Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived by the Lender.



“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.




“Compliance Certificate” means a certificate substantially in the form of Exhibit B.



“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


 


-3-









 





(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 6.18) 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 6.18 only, taking no account of any extraordinary item
(or any exceptional items); and




(iii) adding back depreciation and amortization.



“Consolidated Fixed Charges” means as of any date of determination, 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 Borrower; 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 Borrower (the “latest balance
sheet”) but adjusted by:



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



(ii) deducting any dividend or other distribution proposed, declared or made by the Borrower
(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.


 


-4-









 





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



“Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other written undertaking to which such Person is
a party or by which it or any of its property is bound.



“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.



“Credit Extension” means each of the following: (a) a borrowing of a Revolving Loan
and (b) an L/C Credit Extension.



“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 Borrower 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 Borrower or a Subsidiary during such Measurement Period) to (b) Consolidated
Fixed Charges.



“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



“Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



“Default Rate” means an interest rate equal to (a) the Alternate Base Rate
plus (b) the Applicable Rate, if any, applicable to Alternate Base Rate Loans plus
(c) 2% per annum; provided, however, that with respect to a Floating Eurodollar
Loan, the Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Revolving Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws.




“Disclosure Documents” has the meaning specified in Section 5.03.




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




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




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




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




“Disposition” has the meaning specified in Section 7.08.



“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.



“Dollar” and “$” mean lawful money of the United States.


 


-5-









 





“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Lender at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.




“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.




“Eligible Assignee” has the meaning specified in Section 10.07(f).



“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.




“Event of Default” has the meaning specified in Section 8.01.



“Excluded Taxes” shall mean (i) any tax imposed on or measured by the net income or
net profits of any Lender or any Participant (including any franchise or branch profits taxes), in
each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof)
in which such Lender or such Participant is organized or the jurisdiction (or by any political
subdivision or taxing authority thereof) in which such Lender’s or such Participant’s principal
office is located in each case as a result of a present or former connection between such Lender or
such Participant and the jurisdiction or taxing authority imposing the tax (other than any such
connection arising solely from such Lender or such Participant having executed, delivered or
performed its obligations or received payment under, or enforced its rights or remedies under this
Agreement or any other Loan Document); and (ii) taxes with respect to which a Lender or a
Participant fails to comply with the requirements of Section 3.01(f).




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



“Existing Financing Agreements” means the 2009 Note Purchase Agreement, the notes
issued and Guaranties delivered under the foregoing, as amended, restated, modified, supplemented,
replaced or refinanced from time to time.



“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.



“Floating Eurodollar Loan” means a Revolving Loan that bears interest based on the
Floating Eurodollar Rate. The Floating Eurodollar Rate will be adjusted concurrently with any
change in the Floating Eurodollar Rate.


 


-6-









 





“Floating Eurodollar Rate” means, for any Business Day, the rate of interest per annum
that is equal to the arithmetic mean of the rates appearing on the Bloomberg British Bankers
Association LIBOR page as of 11:00 a.m., London time, on that day (or if such day is not a Business
Day, the immediately preceding Business Day) for the offering by such institutions as are named
therein to prime banks in the LIBOR interbank market in London, England for delivery on that day of
U.S. dollar deposits of One Million Dollars ($1,000,000) for an interest period of one month. The
Floating Eurodollar Rate will be determined, and may be adjusted, on each Business Day.




“Form 10-K” has the meaning given in Section 6.01(b).




“Form 10-Q” has the meaning given in Section 6.01(a).




“FRB” means the Board of Governors of the Federal Reserve System of the United States.




“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 Borrower is required or elects to adopt IFRS, GAAP shall mean IFRS as in effect from time
to time.



“German Facility” means the credit facility between Commerzbank AG (or an affiliate or
subsidiary thereof) and the Borrower 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 financing arrangements represented by (a)
the 2011 Note Purchase Agreement, (b) the Nedbank Agreement, (c) the RBS Facility, (d) the German
Facility, (e) this Agreement and (f) 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.



“Governmental Authority” means the government of (a) the Applicable Jurisdiction or
any State or other political subdivision of either thereof, or (b) 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 Borrower 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.



“Guarantee” or “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;


 


-7-









 





(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. The term “Guarantee” or “Guaranty” as a verb has a
corresponding meaning.




“Guaranteed Obligations” has the meaning specified in Section 9.01(a).



“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.




“Honor Date” has the meaning specified in Section 2.03(c)(i).




“ICC” has the meaning specified in Section 2.03(f).



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




“Improved Covenants” has the meaning specified in Section 6.17.



“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 August 24, 2018;



(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 appearing 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


 


-8-









 





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



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, Indebtedness shall not include (i) trade accounts payable (other than for
borrowed money) arising, and accrued expenses incurred, in the ordinary course of business or (ii)
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.




“Indemnified Liabilities” has the meaning specified in Section 10.05.




“Indemnified Taxes” shall mean any and all Taxes other than Excluded Taxes.




“Indemnitees” has the meaning specified in Section 10.05.




“Information” has the meaning specified in Section 10.08.



“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)




“Interest Payment Date” means, the last Business Day of each month.




“Joinder Agreement” has the meaning specified in Section 6.13.



“Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities and executive orders, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental Authority.



“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.



“L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all unreimbursed drawings under
all Letters of Credit.



“Lending Office” means the office or offices of the Lender described as such on
Schedule 10.02, or such other office or offices as the Lender may from time to time notify
the Borrower.



“Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit
may be a commercial letter of credit or a standby letter of credit.



“Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the Lender.



“Letter of Credit Expiration Date” means the day that is four days prior to the
Revolving Maturity Date then in effect (or, if such day is not a Business Day, the next succeeding
Business Day).



“Letter of Credit Sublimit” means an amount equal to $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Commitment.


 


-9-









 





“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).



“Loan Account” means an account designated by the Borrower and acceptable to the
Lender with the Lender’s office located at 300 S. Grand Ave., Los Angeles, CA 90071 and any
substitute or replacement account with the Lender designated by the Borrower and acceptable to the
Lender.



“Loan Documents” means this Agreement, including the Subsidiary Guaranty Agreement,
and any note issued under this Agreement.



“Loan Notice” means a notice of (a) a borrowing of a Revolving Loan, (b) a conversion
of a Revolving Loan from one Type to the other, or (c) a continuation of a Floating Eurodollar Loan
as the same Type, pursuant to Section 2.02(a) which, if in writing, shall be substantially
in the form of Exhibit A.



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



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



“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 $15,000,000 (or the equivalent in any other currency).




“Maximum Rate” has the meaning specified in Section 10.10.



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




“Memorialization” has the meaning specified in Section 6.17.



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



“Nedbank Agreement” means the Amended and Restated Letter of Credit and Cash Draw
Agreement dated as of June 24, 2011 among the Borrower, each subsidiary guarantor party thereto and
Nedbank Limited acting through its London Branch, as amended, restated, modified, supplemented,
replaced or refinanced from time to time.



“Net Asset” has the meaning given in Section 9.27.


 


-10-









 






“New Covenants” has the meaning specified in Section 6.17.




“Non-Affiliate” means any Person that is not an Affiliate of the Borrower.



“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.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Obligor arising under any Loan Document or otherwise with respect to any
Revolving Loan or Letter of Credit with the Lender whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against any
Obligor thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.




“Obligors” means, collectively, the Borrower and the Subsidiary Guarantors.




“OFAC” has the meaning specified in Section 5.15(a).




“OFAC Listed Person” has the meaning specified in Section 5.15(a).



“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



“Original Financial Statements” means the financial statements contained in the Form
10-K of the Borrower for the fiscal year ended January 31, 2011.



“Outstanding Amount” means (a) with respect to Revolving Loans, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Revolving Loans occurring on such date; and (b) with respect to any L/C Obligations
on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.




“Participant” has the meaning specified in Section 10.07(c).



“Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).



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


 


-11-









 





“Permitted Jurisdiction” means (a) the United States of America or any State thereof,
(b) the British Virgin Islands, Guernsey 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 any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



“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 the Borrower or any ERISA Affiliate or with
respect to which the Borrower 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” means any credit, letter of credit facility or other
borrowing facility of any type entered into by the Borrower or any Subsidiary Guarantor which
represents borrowings or commitments of $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 7.05; and
(ii) all other Consolidated Total Debt of Subsidiaries not otherwise permitted pursuant to clauses
(a) through (l) of Section 7.06.



“Pro Forma Basis” means, with respect to compliance with any test or covenant
hereunder as of any date, a calculation and determination made in good faith based on assumptions
that the Borrower believes to be reasonable as of such date.




“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.



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



“Receiver” or “Administrator” where it relates to a French Subsidiary includes
and administrateur judiciare, administeur proviso ire, 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.


 


-12-









 






“Reference Agreement” has the meaning specified in Section 6.17.



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




“Relevant German Obligor” has the meaning given in Section 9.27.



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



“Request for Credit Extension” means (a) with respect to a borrowing, conversion or
continuation of a Revolving Loan, a Loan Notice, and (b) with respect to an L/C Credit Extension, a
Letter of Credit Application.



“Responsible Officer” means any Senior Financial Officer of the Borrower or applicable
Obligor as the context indicates.




“Restricted Payment” means



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



(b) any payment, repayment, redemption, retirement, repurchase or other acquisition, direct or
indirect, by the Borrower 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.



“Revaluation Date” means (a) each date of issuance of a Letter of Credit denominated
in any Alternative Currency, (b) each date of an amendment of any such Letter of Credit, (c) each
date of any payment under a Letter of Credit and (d) such additional date(s) as the Lender shall
require.



“Revolving Availability Period” means the period from and including the Closing Date
to the earlier of (a) the Revolving Maturity Date and (b) the date of termination of the Revolving
Commitment.



“Revolving Commitment” means the obligation of the Lender to make Revolving Loans and
L/C Credit Extensions hereunder in an aggregate principal amount at any one time not to exceed
$50,000,000.




“Revolving Loan” has the meaning given in Section 2.01.




“Revolving Maturity Date” means June 24, 2014.



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


 


-13-









 






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




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







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







	 	•	 	the Borrower’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 Borrower 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 Borrower 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.



“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 Borrower, or another applicable Obligor, as the context
indicates.



“Senior Indebtedness” means and includes all Indebtedness of the Borrower, 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 Borrower 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.



“Solvent” means as to any Person on any particular date that (a) the fair value of its
assets is greater than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities), (b) 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 debts as they become absolute and
matured, (c) it is able to pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the ordinary course of business, (d) it 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 and (e) it is not engaged in business or a transaction, and is not
about to engage in a business or a transaction, for which its property would constitute
unreasonably small capital.



“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 or other borrowing or financing facility of any type 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.


 


-14-









 





“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.



“Spot Rate” for a currency means the rate determined by the Lender as the spot rate
for the purchase by the Lender of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the date two business Days prior to the date
as of which the foreign exchange computation is made.



“Subordinated Indebtedness” means Indebtedness of the Borrower or any Subsidiary
Guarantor that is by its express terms subordinated in right of payment to the Obligations or the
Subsidiary Guaranty Agreement 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 Borrower.



“Subsidiary Guarantor” means, unless released pursuant to Section 6.14,
collectively, (a) (i) UTi (Aust) Pty Limited ACN 006 734 747 a company incorporated in Australia,
(ii) UTi Belgium N.V., a company organized under the laws of Belgium, (iii) UTi Logistics N.V., a
company organized under the laws of Belgium, (iv) Goddard Company Limited, a BVI Business Company
organized under the laws of the British Virgin Islands, (v) Pyramid Freight (Proprietary) Limited,
a BVI Business Company organized under the laws of the British Virgin Islands with company number
530960 (provided that such company is only a Subsidiary Guarantor in respect of assets that are not
located in South Africa), (vi) UTi International Inc., a BVI Business Company organized under the
laws of the British Virgin Islands, (vii) UTi Networks Limited, a Guernsey company organized under
the laws of the Bailiwick of Guernsey, (viii) UTi Canada, Inc., a company organized under the laws
of Canada, (ix) UTi Canada Contract Logistics Inc., a company organized under the laws of Canada,
(x) UTi Deutschland GmbH, a company organized under the laws of Germany, (xi) UTi (HK) Limited, a
company organized 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, (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, S.A., a company organized under the laws of Spain, (xvii) UTi Iberia, S.A., a
company organized under the laws of Spain, (xviii) UTi Worldwide (UK) Limited, a company organized
under the laws of the United Kingdom, (xix) UTi Inventory Management Solutions Inc., a Delaware
corporation, (xx) Concentrek, Inc., an Arizona corporation, (xxi) InTransit, Inc., an Oregon
corporation, (xxii) Market Transport, Ltd., an Oregon corporation, (xxiii) Sammons Transportation,
Inc., a Montana corporation, (xxiv) UTi, United States, Inc., a New York corporation, (xxv) UTi
Integrated Logistics, Inc., a South Carolina corporation, and (b) and any other Person that
Guarantees obligations in accordance with Section 6.13.



“Subsidiary Guaranty Agreement” means the subsidiary guaranty agreement contained in
Article IX (and any and all supplements and joinders thereto), as amended, restated, supplemented
or otherwise modified from time to time.



“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.


 


-15-









 





“Taxes” shall mean any taxes, levies, imposts, duties, fees, withholdings, assessments
or other similar charges imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments and all interest, penalties or similar
liabilities with respect thereto.



“Total Outstandings” means the aggregate Outstanding Amount of all Revolving Loans and
all L/C Obligations (with L/C Obligations denominated in an Alternative Currency being expressed as
the Dollar Equivalent there).




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



“Type” means, with respect to a Revolving Loan, its character as an Alternate Base
Rate Loan or a Floating Eurodollar Loan.



“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.




“United States” and “U.S.” mean the United States of America.




“UTi Israel” has the meaning specified in Section 6.13.



“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 Borrower.



“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.



1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



(b) The words “herein,” “hereto,” “hereof” and “hereunder” and
words of similar import when used in any Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof.




(i) Article, Section, Exhibit and Schedule references are to the Loan Document in which
such reference appears.




(ii) The term “including” is by way of example and not limitation.




(iii) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



(c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”


 


-16-









 





(d) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.




1.03 Accounting Terms.



(a) All accounting terms used herein or in any other Loan Document which are not expressly
defined in this Agreement or such other Loan Document 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 Loan Document 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 Loan Document, any election by the Borrower 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 affect the
calculation of any financial covenant contained in Section 6 or Section 7, then
after the announcement but prior to the implementation of any such changes the Borrower shall, in
consultation with its independent accountants, negotiate in good faith with the Lender 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 Lender 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 Borrower’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 the Lender pursuant to Section 6.02 shall include detailed reconciliations
reasonably satisfactory to the Lender 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
Lender).



1.04 References to Agreements and Laws. Unless otherwise expressly provided herein, (a)
references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.



1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to the Pacific time zone (daylight or standard, as applicable).



1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit
or the Letter of Credit Application therefor, whether or not such maximum face amount is in effect
at such time.




1.07 Alternative Currencies.



(a) The Lender shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Letters of Credit denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or
calculating financial covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Lender.


 


-17-









 





(b) Wherever a reference to the amount of a Letter of Credit is stated in Dollars but the
underlying Letter of Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Lender.



(c) The Borrower may from time to time request that Letters of Credit be issued in a currency
other than Dollars; provided that such requested currency is a lawful currency that is
readily available and freely transferable and convertible into Dollars. Each such request shall be
subject to the approval of the Lender in its discretion, and no consent to any such request shall
be construed as consent to any future request.



(d) Any such request shall be made to the Lender not later than 11:00 a.m., seven Business
Days prior to the date of the issuance date for any Letter of Credit being requested in an
Alternative Currency.



(e) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Lender may from time to time specify to be appropriate to reflect a change in
currency of any other country and any relevant market conventions or practices relating to the
change in currency.



All Revolving Loans, interest and other Obligations payable under this Agreement shall be
payable in Dollars except to the extent expressly otherwise provided in respect of Letters of
Credit denominated in an Alternative Currency.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Revolving Loans. Subject to the terms and conditions set forth herein, the Lender agrees
to make revolving loans (each such Revolving Loan, a “Revolving Loan”) to the Borrower from
time to time, on any Business Day during the Revolving Availability Period, in an aggregate amount
not to exceed at any time outstanding the Revolving Commitment. Within the limits of the Revolving
Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01, prepay under Section 2.04, and reborrow under this Section
2.01. Each Revolving Loan shall be an Alternate Base Rate Loan or a Floating Eurodollar Loan,
as further provided herein.




2.02 Borrowings, Conversions and Continuations of Revolving Loans.



(a) Each borrowing, each conversion of a Revolving Loan from one Type to the other, and each
continuation of a Floating Eurodollar Loan shall be made upon the Borrower’s irrevocable notice to
the Lender, which may be given by telephone. Each such notice must be received by the Lender not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any borrowing of,
conversion to or continuation of a Floating Eurodollar Loan or of any conversion of a Floating
Eurodollar Loan to a Alternate Base Rate Loan, and (ii) on the requested date of any borrowing of a
Alternate Base Rate Loan. Notwithstanding anything to the contrary contained herein, but subject
to the provisions of Section 10.02(d), any such telephonic notice may be given by an
individual who has been authorized in writing to do so by a Responsible Officer of the Borrower.
Each such telephonic notice must be confirmed promptly by delivery to the Lender of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each
borrowing of, conversion to or continuation of a Floating Eurodollar Loan shall be in a principal
amount of $100,000 or a whole multiple of $50,000 in excess thereof. Except as provided in
Section 2.03(c), each borrowing of or conversion to an Alternate Base Rate Loan shall be in
a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is requesting a borrowing, a
conversion of a Revolving Loan from one Type to the other, or a continuation of a Floating
Eurodollar Loan, (ii) the requested date of the borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of the Revolving Loan to be
borrowed, converted or continued and (iv) the Type of Revolving Loan to be borrowed or to which an
existing Revolving Loan is to be converted. If the Borrower fails to specify a Type of Revolving
Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the
applicable Revolving Loan shall be made as, or converted to, an Alternate Base Rate Loan.


 


-18-









 





(b) Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
a borrowing is the initial Credit Extension, Section 4.01), the Lender shall make the
proceeds of each Revolving Loan available to the Borrower either by crediting the Loan Account;
provided, however, that if on the date of the Loan Notice with respect to such
borrowing is given, there are drawings under Letters of Credit that have not been reimbursed by the
Borrower, then the proceeds of such borrowing shall be applied, first, to the payment in
full of any such unreimbursed drawings, and second, to the Borrower as provided above.




2.03 Letters of Credit.




(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, the Lender agrees (A) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to
amend Letters of Credit previously issued by it, in accordance with subsection (b) below,
and (B) to honor drafts under the Letters of Credit; provided that the Lender shall
not be obligated to make any L/C Credit Extension with respect to any Letter of Credit if as
of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the
Revolving Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the
Letter of Credit Sublimit; provided, further, that the Lender shall not be
obligated to make any L/C Credit Extension denominated in an Alternative Currency with
respect to any Letter of Credit if as of the date of such L/C Credit Extension, the
aggregate Outstanding Amount of L/C Obligations denominated in Alternative Currencies would
exceed $30,000,000 (as the same may be reduced pursuant to Section 2.05, the
“Alternative Currency LC Sublimit”). Within the foregoing limits and subject to the
terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.




(ii) The Lender shall be under no obligation to issue any Letter of Credit if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the Lender from issuing such Letter
of Credit, or any Law applicable to the Lender or any request or directive (whether
or not having the force of law) from any Governmental Authority with jurisdiction
over the Lender shall prohibit, or request that the Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Lender with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Lender is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the Lender any
unreimbursed loss, cost or expense which was not applicable on the Closing Date and
which the Lender in good faith deems material to it;




(B) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance;




(C) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date;




(D) the issuance of such Letter of Credit would violate one or more policies of
the Lender; or


 


-19-









 






(E) such Letter of Credit is in an initial amount less than $100,000, or is to
be denominated in a currency other than Dollars or an Alternative Currency
acceptable to the Lender.




(iii) The Lender shall be under no obligation to amend any Letter of Credit if (A) the
Lender would have no obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.




(b) Procedures for Issuance and Amendment of Letters of Credit.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the Lender in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the Borrower.
Such L/C Application must be received by the Lender not later than 1:00 p.m., at least two
Business Days (or such later date and time as the Lender may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the Lender:
(A) the proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; and (G) such other matters as the Lender may require. In
the case of a request for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the Lender (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the
Lender may require.




(ii) Upon the Lender’s determination that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the terms and conditions
hereof, the Lender shall, on the requested date, issue a Letter of Credit for the account of
the Borrower or enter into the applicable amendment, as the case may be, in each case in
accordance with the Lender’s usual and customary business practices.




(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Lender
will also deliver to the Borrower a true and complete copy of such Letter of Credit or
amendment.




(c) Drawings and Reimbursements.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the Lender shall notify the Borrower thereof. Not
later than one Business Day after any payment by the Lender under a Letter of Credit (each
such date, an “Honor Date”), the Borrower shall reimburse the Lender in an amount
equal to the Dollar Equivalent of the amount of such currency (or at the request of the
Lender, the applicable Alternative Currency amount of such drawing), together with interest
from and including the date of honor calculated at the rate then applicable to an Alternate
Base Rate Loan (or, at the request of the Lender, the sum of (A) the Applicable Rate plus
(B) the British Bankers Association LIBOR Rate for the relevant currency as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR designated
by the Lender from time to time or, if Lender determines that no such source is available,
the rate at which the Lender determines that deposits in the relevant currency are available
in the interbank market in London) at approximately 11:00 London time, two Business Days
prior to the date of calculation for deposits in the relevant currency (for delivery on the
first day of such interest period) for a term of one month (the “Eurocurrency
Rate”).) If the Borrower fails to so reimburse the Lender, the Borrower
shall be deemed to have requested a borrowing of a Revolving Loan that is a Alternate
Base Rate Loan to be disbursed on the Business Day after the date of Honor Date in an amount
equal to the amount of such unreimbursed drawing (if in Dollars) or the Dollar Equivalent of
such unreimbursed drawing (if in an Alternative Currency), without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Alternate Base Rate
Loans, but subject to the amount of the unutilized portion of the Revolving Commitment and
the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).


 


-20-









 






(ii) If the Borrower fails to reimburse the Lender for any drawing under any Letter of
Credit when due (whether by means of a borrowing or otherwise), such unreimbursed amount
shall be (A) immediately and automatically, without notice, be converted into the Dollar
Equivalent of such unreimbursed amount if denominated in an Alternative Currency due and (B)
payable on demand (together with interest) and shall bear interest at the Default Rate.



(d) Obligations Absolute. The obligation of the Borrower to reimburse the Lender for
each drawing under each Letter of Credit shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all circumstances,
including the following:




(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;




(ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may be acting),
the Lender or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;




(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




(iv) any payment by the Lender under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
or any payment made by the Lender under such Letter of Credit to any Person purporting to be
a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or




(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the Lender. The Borrower
shall be conclusively deemed to have waived any such claim against the Lender and its
correspondents unless such notice is given as aforesaid. Notwithstanding, the foregoing shall not
be construed to excuse the Lender from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are waived by the borrower
to the extent permitted by applicable law) suffered by the Borrower that are caused by the Lender’s
failure to exercise care in determining whether drafts and other documents presented under a Letter
of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence
of negligence or willful misconduct on part of the Lender (as finally determined by a court of
competent jurisdiction), the Lender shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Letter of Credit, the Lender may,
in its sole discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payments upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit


 


-21-









 





(e) Role of Lender. The Borrower agrees that, in paying any drawing under a Letter of
Credit, the Lender shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Lender, any of its Affiliates, any of
the respective officers, directors, employees, agents or attorneys-in-fact of the Lender and its
Affiliates, nor any of the respective correspondents, participants or assignees of the Lender shall
be liable or responsible for any of the matters described in clauses (i) through (v) of Section
2.03(d); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to
the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Lender’s
willful misconduct or gross negligence or the Lender’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the Lender shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.



(f) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the Lender
and the Borrower when a Letter of Credit is issued, (i) the rules of the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce (the “ICC”) at the time of
issuance (including the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.



(g) Letter of Credit Fees. The Borrower shall pay to the Lender a Letter of Credit
fee for each commercial Letter of Credit equal to standard charge therefor. Each standby Letter of
Credit shall bear an annual fee, payable quarterly in arrears calculated on the face amount from
the date issued until the earlier of expiration or drawing equal to 1.25% per annum. An additional
issuance fee of 0.125% will be paid on the face amount of each Letter of Credit upon issuance of
such and annually thereafter.



(h) Documentary and Processing Charges Payable to Lender. The Borrower shall pay to
the Lender the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the Lender relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



(i) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.


 


-22-









 






2.04 Prepayments.



(a) The Borrower may, upon notice to the Lender, at any time or from time to time voluntarily
prepay any Revolving Loan in whole or in part without premium or penalty except as provided in
Section 3.05 of this Agreement; provided that (i) such notice must be
received by the Lender not later than 10:00 a.m. (A) two Business Days prior to any date of
prepayment of a Floating Eurodollar Loan, and (B) on the date of prepayment of a Alternate Base
Rate Loan; (ii) any prepayment of a Floating Eurodollar Loan shall be in a principal amount of
$250,000 or a whole multiple of $50,000 in excess thereof; and (iii) any prepayment of a Alternate
Base Rate Loan shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Revolving Loan(s) to
be prepaid. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.



(b) If for any reason, the Total Outstandings at any time exceed the Revolving Commitment, the
Borrower shall immediately prepay Revolving Loans in an amount up to the amount of such excess. If
such excess exceeds the principal amount of Revolving Loans then outstanding, after payment in full
of all outstanding Revolving Loans, the Lender may, but shall not be required to, at its option
request, and the Borrower shall provide within five (5) days after such request, Credit Support.
“Credit Support” means the Borrower has provided to the Lender with respect to a Letter of
Credit:




(i) payment of an amount sufficient to provide the Lender with coverage with respect to
at least 105% of the aggregate amount available for drawings under such outstanding Letter
of Credit, in the currency of such Letter of Credit to an interest-bearing account or time
deposit with the Lender and the following conditions are met:




(A) until no amount is or may be outstanding under that Letter of Credit,
withdrawals from such account or time deposit may only be made to pay the Lender for
reimbursement in respect of such Letter of Credit;




(B) the Company has executed and delivered a security document with respect to
such account or time deposit, in form and substance satisfactory to the Lender for
which the cash collateral is provided, creating a first ranking security interest
over such account or time deposit (it being acknowledged that such cash collateral
shall also secure obligations with respect to the Existing Financing Agreements, the
Global Credit Facilities and other Primary Credit Facilities on a pari passu basis);
and




(C) such other conditions as are reasonably satisfactory to the Lender; or




(ii) receipt of a backstop letter of credit in a face amount sufficient to provide the
Lender with coverage with respect to at least 105% of the aggregate amount available for
drawings under such outstanding Letter of Credit in the currency of such Letter of Credit
and such a backstop letter of credit is on terms and conditions and from a financial
institution acceptable to the Lender in its sole discretion.



(c) The Borrower shall give written notice (the “Change of Control Notice”) to the
Lender within 15 Business Days of a Responsible Officer acquiring knowledge of a Change of Control.
The Change of Control Notice shall describe the material terms of the transaction constituting the
Change of Control. At Lender’s sole discretion, Borrower shall prepay Revolving Loans and Cash
Collateralize the L/C Obligations (subject to the collateralization limits set forth above in
Section 2.04(b)) on a date specified by Lender within 60 days of receipt of Change of
Control Notice, but in any event not less than 30 days following receipt of the Change in Control
Notice.


 


-23-









 





2.05 Termination or Reduction of Revolving Commitment. The Borrower may, upon notice to the
Lender, terminate the Revolving Commitment, or from time to time permanently reduce the
Revolving Commitment; provided that (i) any such notice shall be received by the
Lender not later than 1:00 p.m., two Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $250,000 or any whole multiple
of $50,000 in excess thereof, (iii) the Letter of Credit Sublimit shall be reduced in an equal
amount, (iv) the Borrower shall not terminate or reduce the Revolving Commitment if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Revolving Commitment; and (v) upon any reduction in the Revolving Commitment, the Alternative
Currency LC Sublimit will be reduced by an amount equal to 3/5ths of such reduction, and no such
reduction will be effective if, after giving effect thereto, the Outstanding Amount of L/C
Obligations denominated in Alternative Currencies would exceed the new Alternative Currency LC
Sublimit.



2.06 Repayment of Revolving Loans. The Borrower shall repay to the Lender on the Revolving
Maturity Date the aggregate principal amount of Revolving Loans outstanding on such date.




2.07 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each Floating Eurodollar Loan shall
bear interest on the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Floating Eurodollar Rate plus the Applicable Rate; and (ii)
each Alternate Base Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.



(b) If any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at the Lender’s discretion at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Furthermore, while any Event of Default exists, at the Lender’s discretion, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest
on past due interest) shall be due and payable upon demand.



(c) Interest on each Revolving Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief Law.



2.08 Fees. In addition to certain fees described in subsections (g) and (h) of Section
2.03:



(a) Unused Fee. The Borrower shall pay to the Lender an Unused Fee equal to the
Applicable Rate per annum times the actual daily amount by which the Revolving Commitments
exceed the Total Outstandings. The Unused Fee shall accrue at all times during the Revolving
Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with September 30, 2011, and
on the last day of the Revolving Availability Period. The Unused Fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.



(b) Bank Product Fee. The Borrower shall pay to the Lender quarterly in arrears on
the last Business Day of each March, June, September and December, commencing on the first such
date to occur after the Closing Date, (which shall be prorated for the first such period if the
Closing Date does not occur on a payment date) a Bank Product fee equal to $15,625 minus income
earned by the Lender by providing Bank Products to or for the Borrower (other than Letters of
Credit issued hereunder) during such period, as calculated solely by the Lender in its reasonable
discretion in accordance with its customary and standard procedures as in effect from time to time.


 


-24-









 





2.09 Computation of Interest and Fees. All computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Revolving Loan for the day on which the Revolving Loan is made, and shall not accrue on a
Revolving Loan, or any portion thereof, for the day on which the Revolving Loan or such portion is
paid, provided that any Revolving Loan that is repaid on the same day on which it is made
shall, subject to Section 2.11(a), bear interest for one day.



2.10 Evidence of Debt. The Credit Extensions made by the Lender shall be evidenced by one or
more accounts or records maintained by the Lender in the ordinary course of business. The accounts
or records maintained by the Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lender to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.




2.11 Payments Generally.



(a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Lender at the applicable Lending Office
in Dollars and in immediately available funds not later than 3:00 p.m. on the date specified
herein. All payments received by the Lender after 3:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue.



(b) If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



(c) Nothing herein shall be deemed to obligate the Lender to obtain the funds for any
Revolving Loan in any particular place or manner or to constitute a representation by the Lender
that it has obtained or will obtain the funds for any Revolving Loan in any particular place or
manner.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY





3.01 Taxes.



(a) Any and all payments by the Borrower or any Subsidiary Guarantor to or for the account of
the Lender under any Loan Document shall be made free and clear of and without deduction for any
and all Indemnified Taxes. If the Borrower or any Subsidiary Guarantor shall be required by any
Laws to deduct any Indemnified Taxes from or in respect of any sum payable under any Loan Document
to the Lender, (i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this
Section), the Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower or any Subsidiary Guarantor, as the case may be, shall make
such deductions, (iii) the Borrower or Subsidiary Guarantor, as the case may be, shall pay the full
amount deducted to the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower or Subsidiary Guarantor,
as the case may be, shall furnish to the Lender the original or a certified copy of a receipt
evidencing payment thereof.



(b) In addition, the Borrower and each Subsidiary Guarantor agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan
Document (hereinafter referred to as “Other Taxes”).


 


-25-









 





(c) If the Borrower or any Subsidiary Guarantor shall be required to deduct or pay any
Indemnified Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to
the Lender, the Borrower or Subsidiary Guarantor, as the case may be, shall also pay to the Lender,
at the time interest is paid, such additional amount that the Lender specifies is necessary to
preserve the after-tax yield (after factoring in all taxes, including taxes imposed on or measured
by net income) that the Lender would have received if such Indemnified Taxes or Other Taxes had not
been imposed.



(d) The Borrower and each Subsidiary Guarantor agrees to indemnify the Lender for (i) the full
amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this Section) paid by the Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including additions to tax,
penalties, interest and expenses) arising therefrom or with respect thereto, in each case whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made within 30 days
after the date the Lender makes a demand therefor.



(e) If a Lender or Participant is entitled to claim an exemption or reduction from withholding
taxes, such Lender or such Participant agrees to deliver to Borrower or any applicable Subsidiary
Guarantor, as the case may be, any such form or forms, as may be required under the laws of such
jurisdiction as a condition to exemption from, or reduction of, foreign withholding or backup
withholding taxes before receiving its first payment under this Agreement, but only if such Lender
or such Participant is legally able to deliver such forms, provided, however, that
nothing in this Section 3.01(e) shall require a Lender or Participant to disclose any information
that it deems to be confidential (including without limitation, its tax returns). Each Lender and
each Participant shall provide new forms (or successor forms) upon the expiration or obsolescence
of any previously delivered forms and shall promptly notify Borrower and any applicable Subsidiary
Guarantor of any change in circumstances, which would modify or render invalid any claimed
exemption or reduction.



(f) If Lender determines, in its reasonable discretion, that it has received a refund of any
Indemnified Taxes, or Other Taxes, as to which, in either case, it has been indemnified by Borrower
or any Subsidiary Guarantor or with respect to which Borrower or any Subsidiary Guarantor has paid
additional amounts pursuant to this Section 3.01, it shall pay over such refund to Borrower or such
Subsidiary Guarantor, as the case may be (but only to the extent of payments made, or additional
amounts paid, by Borrower or such Subsidiary Guarantor, as the case may be (but only to the extent
of payments made, or additional amounts paid, by Borrower or such Subsidiary Guarantor, as the case
may be, under this Section 3.01 with respect to Indemnified Taxes or Other Taxes giving rise to
such a refund), net of all out-of-pocket expenses of Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such a refund); provided, that
Borrower and each applicable Subsidiary Guarantor, upon request of Lender, agrees to repay the
amount paid over to Borrower or such Subsidiary Guarantor, as the case may be (plus any penalties,
interest or other charges, imposed by the relevant Governmental Authority, other than such
penalties, interest or other charges imposed as a result of the willful misconduct or gross
negligence of Lender hereunder) to Lender in the event Lender is required to repay such refund to
such Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this
Section 3.01(f) shall not be construed to require any Lender to make available its tax returns (or
any other information which it deems confidential) to Borrower, any Subsidiary Guarantor or any
other Person.



3.02 Illegality. If the Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for the Lender or its Lending Office to
make, maintain or fund Floating Eurodollar Loans, or to determine or charge interest rates based
upon the Floating Eurodollar Rate, then, on notice thereof by the Lender to the Borrower, any
obligation of the Lender to make or continue Floating Eurodollar Loans or to convert Alternate Base
Rate Loans to Floating Eurodollar Loans shall be suspended until the Lender notifies the Borrower
that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, the Borrower shall, upon demand from the Lender, prepay or, if applicable, convert all
Floating Eurodollar Loans to Alternate Base Rate Loans. Upon any such prepayment or conversion,
the Borrower shall also
pay accrued interest on the amount so prepaid or converted. The Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of the Lender, otherwise be materially disadvantageous to the Lender.


 


-26-









 





3.03 Inability to Determine Floating Eurodollar Rate. If the Lender determines that for any
reason adequate and reasonable means do not exist for determining the Floating Eurodollar Rate or
that the Floating Eurodollar Rate does not adequately and fairly reflect the cost to the Lender of
funding a Revolving Loan, the Lender will promptly so notify the Borrower. Thereafter, the
obligation of the Lender to make or maintain Floating Eurodollar Loans shall be suspended until the
Lender revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a borrowing of, conversion to or continuation of a Floating Eurodollar Loan or, failing
that, will be deemed to have converted such request into a request for a borrowing of an Alternate
Base Rate Loan in the amount specified therein.




3.04 Increased Cost and Reduced Return; Capital Adequacy.



(a) If the Lender determines that as a result of the introduction of or any change in or in
the interpretation of any Law, or the Lender’s compliance therewith, there shall be any increase in
the cost to the Lender of agreeing to make or making, funding or maintaining Floating Eurodollar
Loans or issuing Letters of Credit, or a reduction in the amount received or receivable by the
Lender in connection with any of the foregoing (excluding for purposes of this subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which
Section 3.01 shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any political subdivision
of either thereof under the Laws of which the Lender is organized or has its Lending Office, and
(iii) reserve requirements utilized in the determination of the Floating Eurodollar Rate), then
from time to time upon demand of the Lender, and so long as the Lender is requiring similar
payments from other customers, the Borrower shall pay to the Lender such additional amounts as will
compensate the Lender for such increased cost or reduction; provided that, notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith, and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United
States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to
be a “change in or in the interpretation of any Law,” regardless of the date enacted, adopted or
issued.



(b) If the Lender determines that the introduction of any Law regarding capital adequacy or
any change therein or in the interpretation thereof, or compliance by the Lender (or its Lending
Office) therewith, has the effect of reducing the rate of return on the capital of the Lender or
any corporation controlling the Lender as a consequence of the Lender’s obligations hereunder
(taking into consideration its policies with respect to capital adequacy and the Lender’s desired
return on capital), then from time to time upon demand of the Lender, the Borrower shall pay to the
Lender such additional amounts as will compensate the Lender for such reduction so long as the
Lender is requiring similar payments from other customers.



3.05 Requests for Compensation. A certificate of the Lender claiming compensation under this
Article III and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such amount, the Lender may
use any reasonable averaging and attribution methods.



3.06 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Revolving Commitment and repayment of all other Obligations hereunder.


 


-27-









 





ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




4.01 Conditions of Initial Credit Extension. The obligation of the Lender to make its initial
Credit Extension hereunder is subject to satisfaction of the following conditions precedent:



(a) The Lender’s receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly executed by or on behalf
of each Obligor, each dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance satisfactory to
the Lender and its legal counsel:




(i) executed counterparts of this Agreement and all other Loan Documents required by
the Lender, sufficient in number for distribution to the Lender and the Borrower;




(ii) a favorable opinion of counsel: (A) to the Borrower and (B) each Subsidiary
Guarantor, that, in each case is in form and substance satisfactory to the Lender;




(iii) a Compliance Certificate prepared on a Pro Forma Basis after giving effect to the
transactions effected on the Closing Date and signed by a Responsible Officer of Borrower;




(iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Obligor that is an organization as the
Lender may require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Obligor is a party;




(v) such documents and certifications as the Lender may reasonably require to evidence
that each Obligor that is an organization is duly organized or formed, and that the Borrower
and each such Obligor is validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect;




(vi) evidence that the 2011 Note Purchase Agreement will be concurrently in full force
and effect and notes representing $150,000,000 in aggregate principal thereunder have been
issued;




(vii) evidence that the Nedbank Agreement providing for at least $50,000,000 in credit
will concurrently be in full force and effect;




(viii) termination of the existing credit facility represented by the Credit Agreement
between the Lender and UTi United States, Inc. dated as of May 7, 2010 and release of all
liens granted thereunder; and




(ix) such other assurances, certificates, documents, consents or opinions as the Lender
reasonably may require.



(b) Any fees required to be paid to the Lender on or before the Closing Date shall have been
paid.



(c) The Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts
between the Borrower and the Lender).


 


-28-









 





4.02 Conditions to all Credit Extensions. The obligation of the Lender to make any Credit
Extension is subject to the following conditions precedent:



(a) The representations and warranties of the Borrower and each other Obligor contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.




(b) No Default shall exist, or would result from such proposed Credit Extension.



(c) The Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of a
Revolving Loan to the other Type or a continuation of a Floating Eurodollar Loan) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions specified above
have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES





The Borrower and each Subsidiary Guarantor represents and warrants to the Lender that:



5.01 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 Loan Documents to which it is a party and to perform the
provisions hereof and thereof.



5.02 Authorization, Etc. The Loan Documents 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
Loan Document constitutes, and upon execution and delivery thereof each note issued under this
Agreement 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).



5.03 Disclosure. This Agreement, the SEC Reports, and the documents, certificates or other
writings delivered to the Lender by or on behalf of the Obligors in connection with the
transactions contemplated hereby, and the financial statements listed in Schedule 5.05
(this Agreement, the SEC Reports, and such documents, certificates or other writings identified in
Schedule 5.03 and financial statements identified in Schedule 5.05 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 the date of the latest financial statements
identified in Schedule 5.05 there has been no change in the financial condition,
operations, business, properties or prospects of Borrower or any other Obligor except changes that
individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect. As of the Closing
Date, 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.


 


-29-









 






5.04 Organization and Ownership of Shares of Subsidiaries; Affiliates.



(a) As of the date hereof, Schedule 5.04 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 Closing Date 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 5.04 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 5.04).



(c) Each Subsidiary (other than the Obligors) identified in Schedule 5.04 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) As of the date hereof, no Subsidiary is a party to, or otherwise subject to any legal,
regulatory, contractual or other restriction (other than the 2011 Agreements in effect on the date
hereof and the agreements listed on Schedule 5.04 under the heading “Agreements Restricting
Dividends” and customary limitations imposed by applicable Law) 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 5.04 shows all members of the Group
(and all Joint Ventures and minority interests held by any member of the Group) as of the date
hereof.



(f) Except as set forth in Schedule 5.04 with respect to UTi Inventory Management
Solutions Inc., as of the date hereof, 100% of the issued share capital of each Obligor (other than
the Borrower) is directly or indirectly wholly owned by the Borrower.



(g) In the case of each borrower or guarantor under the South African Facilities, the group
structure chart in Schedule 5.04 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 as of the date hereof.



5.05 Financial Statements; Material Liabilities. The Obligors have delivered to the Lender
copies of the consolidated financial statements of the Borrower listed on Schedule 5.05.
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 Borrower) 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). As of the date hereof, 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.


 


-30-









 





5.06 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by
each Obligor of the Loan Documents 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.



5.07 Governmental Authorizations, Etc. Except as disclosed in Schedule 5.07, as of
the date hereof, 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 Loan Documents to which it is a party, including, without
limitation, any thereof required in connection with the obtaining of Dollars to make payments under
any Loan Document 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 Loan Document
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.




5.08 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, based on the facts known to the
Borrower, could reasonably be expected to have a Material Adverse Effect.



(b) No Obligor nor any Subsidiary is (i) in default under any Contractual Obligation 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
(including, without limitation, Environmental Laws, the 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, based on the facts known to the Borrower,
could reasonably be expected to have a Material Adverse Effect.



5.09 Taxes. Except as set forth on Schedule 5.09, 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) for purposes of making this representation on the Closing Date, the
amount of which is not individually or in the aggregate Material (or for purposes of making this
representation after the Closing Date, the amount of which would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect) 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 Borrower). 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.


 


-31-









 





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
5.05 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 or as otherwise not
prohibited hereby), 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.




5.11 Licenses, Permits, Etc.



(a) (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.



(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.




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) As of the date hereof, 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. As of the date hereof, 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 $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 $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.


 


-32-









 





(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.



(e) 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.



5.13 Use of Proceeds; Margin Regulations. The Borrower will apply the proceeds of Credit
Extensions to pay off in full the 2006 Notes and other indebtedness of the Borrower and its
Subsidiaries, for working capital purposes of the Borrower and its Subsidiaries, and for other
general corporate purposes. No part of the proceeds 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.




5.14 Existing Indebtedness; Future Liens.



(a) Schedule 5.14 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 $5,000,000 (or its equivalent in any
other currency) and in the aggregate are not in excess of $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 $5,000,000 (or its equivalent in any other currency) or
under multiple credit facilities which in the aggregate are less than $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 7.05.


 


-33-









 





(c) Except as set forth in Schedule 5.14, as of the date hereof, 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 Existing Financing Agreements, the
South African Facilities and the Global Credit Facilities which limits the amount of, or otherwise
imposes restrictions on the incurring of, Indebtedness of such Obligor.




5.15 Foreign Assets Control Regulations, Etc.



(a) Neither the Borrower nor any Affiliates 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 hereunder constitutes or will constitute funds obtained on behalf
of any Blocked Person or will otherwise be used, directly by the Borrower or indirectly through any
Affiliate, in connection with any investment in, or any transactions or dealings with, any Blocked
Person.



(c) To the Borrower’s actual knowledge, neither the Borrower nor any Affiliate (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 Borrower has taken
reasonable measures appropriate to the circumstances to ensure that the Borrower and each Affiliate
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 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 Borrower has taken reasonable measures
appropriate to the circumstances (in any event as required by applicable law) to ensure that the
Borrower and each Affiliate is and will continue to be in compliance with all applicable current
and future anti corruption laws and regulations.



5.16 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.




5.17 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.


 


-34-









 





(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.



5.18 Ranking of Obligations. The Borrower’s payment obligations under the notes when issued
hereunder and the payment obligations of the Subsidiary Guarantors under the Subsidiary Guaranty
Agreements rank at least pari passu, without preference or priority, with all other unsecured and
unsubordinated Indebtedness of such Obligor, as the case may be.



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



5.20 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.




5.21 Labor Matters.



(a) As of the date hereof, no member of the Group is subject to any collective bargaining or
similar agreement, other than those companies set out in Schedule 5.21 (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 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.



5.22 Insolvency. The Borrower is, and the Borrower and Subsidiary Guarantors, on a
consolidated basis, are, Solvent.



5.23 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Borrower operates.


 


-35-









 





ARTICLE VI.

AFFIRMATIVE COVENANTS




So long as the Revolving Commitment shall be in effect, any Revolving Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each Obligor, jointly and severally, covenants as follows:



6.01 Financial and Business Information. The Borrower shall deliver to the Lender (and for
purposes of this Agreement the information required by this Section 6.01 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 Borrower’s Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC
regardless of whether the Borrower is subject to the filing requirements thereof) after the end of
each quarterly fiscal period in each fiscal year of the Borrower (other than the last quarterly
fiscal period of each such fiscal year), duplicate copies of




(i) a consolidated balance sheet of the Borrower 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 Borrower 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 Responsible 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 Borrower’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
6.01(a) as they pertain to consolidated statements; provided further that the Borrower
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 Lender 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”);



(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 Borrower’s Annual Report on Form 10-K (the “Form 10-K”) with the SEC regardless of
whether the Borrower is subject to the filing requirements thereof) after the end of each fiscal
year of the Borrower, duplicate copies of:




(i) a consolidated balance sheet of the Borrower 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 Borrower 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


 


-36-









 






(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 Borrower failed to
comply with the terms, conditions, provisions or conditions of Sections 6.18
(until the Release Date with respect to any covenant included therein),
7.03, 7.04, 7.12 and 7.13 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 the Lender, directly
or indirectly, for any failure to obtain knowledge of any Default or Event of
Default); and




(C) provided that the delivery within the time period specified above of the
Borrower’s Form 10-K for such fiscal year (together with the Borrower’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 6.01(b), provided further that the Borrower 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 Borrower 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 2009 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 6.01(c)(ii) if it shall have timely made Electronic Delivery thereof (with notice
of such Electronic Delivery to the Lender within five 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 8.01(e), 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.


 


-37-









 





(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 Borrower’s Form 10-Q and Form 10-K) or relating to the ability of any Obligor to
perform its obligations hereunder as from time to time may be reasonably requested by the Lender;



(h) Quarterly Consolidating Working Papers. Concurrently with the delivery of
financial statements pursuant to Section 6.01(a) and 6.01(b), copies of the related
unaudited consolidating balance sheet and income statement of Borrower and its Subsidiaries.



(i) Projections. Within three days of delivery to the Borrower’s board of directors
and in any event no later than May 31st of each year, a consolidated financial forecast
for Borrower and its Subsidiaries for the following fiscal year and each fiscal year thereafter
through the Maturity Date, including forecasted consolidated balance sheets, consolidated
statements of income, and shareholders’ equity and cash flows of Borrower and its Subsidiaries,
which forecast shall state the assumptions used in the preparation thereof; and



6.02 Officer’s Certificate. Each set of financial statements delivered to the Lender pursuant
to Section 6.01(a) or Section 6.01(b) shall be accompanied by a Compliance
Certificate.



6.03 Inspection Rights. Permit representatives and independent contractors of the Lender to
visit and inspect any of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and independent public accountants, all at the expense of the Lender
and at such reasonable
times during normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that when an Event of Default exists the Lender
(or any of its respective representatives or independent contractors) may do any of the foregoing
at the expense of the Borrower at any time during normal business hours and without advance notice.


 


-38-









 





6.04 Limitation on Disclosure Obligation. The Obligors shall not be required to disclose the
following information pursuant to Section 6.01(d)(ii), 6.01(g) or
6.03:



(a) information that the Obligors determine after consultation with counsel qualified to
advise on such matters that, notwithstanding the confidentiality requirements of Section
10.08, 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
10.08, 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 the Lender, 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 6.04.



6.05 Compliance with Law. Without limiting Section 7.10, 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 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.



6.06 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.



6.07 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.


 


-39-









 





6.08 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
Borrower) 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.



6.09 Corporate Existence, Etc. Except as permitted by Sections 7.07 and 7.08
(and not prohibited by the next sentence in the case of any Subsidiary Obligor), the Obligors will
at all times preserve and keep in full force and effect their corporate existence. Except as
permitted by Sections 7.07 and 7.08, 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
6.13 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.



6.10 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.



6.11 Priority of Obligations. The Obligors will ensure that their payment obligations under
the Loan Documents 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 Borrower and the Subsidiary Guarantors under (i) the Existing
Financing Agreements, (ii) the Global Credit Facilities and (iii) the other Primary Credit
Facilities. Notwithstanding the foregoing, in the event that the Borrower is required to cash
collateralize letters of credit under the Global Credit Facilities, the Borrower may provide up to
$15,000,000 (or its equivalent in any other currency) as cash collateral to collateralize such
letters of credit without providing collateral to the Lender, provided no Event Default has
occurred or would result from the provision of such cash collateral.



6.12 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
Borrower 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.



6.13 Additional Obligors. The Borrower will cause any Subsidiary of the Borrower, 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, to promptly thereafter
(and in any event within 30 days) become a Subsidiary Guarantor (an “Additional Guarantor”)
under this Agreement by executing and delivering to Lender a joinder agreement substantially in the
form attached hereto as Exhibit C (a “Joinder Agreement”) together with appropriate items
of the type described in Section 4.01(a)(iv) and 4.01(a)(v). The Borrower agrees
that immediately on execution of any such Joinder Agreement by an Additional Guarantor, the
Borrower will provide to the Lender a legal opinion (from legal counsel approved by the Lender
acting reasonably) confirming (i) 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 Closing Date and (ii) such other matters as the Lender may reasonably
request so long as such opinions are substantially similar in scope to the opinions delivered
on the Closing Date. The Borrower shall cause such Additional Guarantor to deliver such other
documents as may be reasonably requested by the Lender substantially similar in scope to the
documents delivered by the original Subsidiary Guarantors on the Closing Date.


 


-40-









 





Notwithstanding the foregoing, each of (i) the South African Subsidiaries (other than Pyramid
Freight BVI to the extent permitted pursuant to Section 9.31 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 Borrower 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 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.




6.14 Release of Subsidiary Guarantors; Substitution of Subsidiary Guarantors.



(a) Upon notice by the Borrower to the Lender (which notice shall contain a certification by
the Borrower as to the applicable matters specified below), a Subsidiary Guarantor shall cease to
be an Obligor under this Agreement if (i) the Subsidiary Guarantor 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 the Loan Documents or (ii) in
connection with the execution and delivery of a Joinder Agreement from a successor Subsidiary and
compliance with Section 6.13; 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 pursuant to this
Section 6.14(a) of this Agreement unless concurrently with such release a replacement
Subsidiary Guarantor or Subsidiary Guarantors is or are added to this Agreement pursuant to
Section 6.13 that (i) has or have in the aggregate (A) earnings before interest, taxes,
depreciation and amortization and (B) total assets no less than those of the Subsidiary Guarantor
being released, and (ii) is or are located in one or more jurisdictions reasonably acceptable to
the Lender.



(b) If the Lender determines at any time that execution, delivery and performance of any term
of this Agreement by any Subsidiary Guarantor or enforcement by the Lender of this Agreement
against any Subsidiary Guarantor could adversely affect the Lender or its rights and interests
under this Agreement by reason of the effect of the Law of any jurisdiction (other than the United
States or any jurisdiction within the United States), the Lender and each Obligor agree that such
Subsidiary Guarantor shall be relieved, effective as of the date specified by the Lender, of any
obligation to honor such term in or obligation under this Agreement, and a replacement Subsidiary
Guarantor or Subsidiary Guarantors shall be added to this Agreement pursuant to Section
6.13 that (i) has or have in the aggregate (A) earnings before interest, taxes, depreciation
and amortization and (B) total assets no less than those of the Subsidiary Guarantor being
released, and (ii) is or are located in one or more jurisdictions reasonably acceptable to the
Lender.



6.15 Group Structure. The Borrower 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 Lender which do not have any Indebtedness which is recourse to
the Borrower 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.


 


-41-









 





6.16 CASS Agreement. The Borrower 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.



6.17 Additional Restrictions. If at any time the Borrower 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 $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 Closing Date (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 Lender 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 6.02(a),
Article VII and Section 8.01(a) of this Agreement, mutatis mutandi, as if set forth
fully in this Agreement. The Borrower shall:



(a) provide a copy of such Additional Covenants and all related provisions and definitions to
the Lender 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 Lender of the date on which such Additional Covenants became or will become effective, provided
that the failure of the Borrower to provide a copy of such Additional Covenants to the Lender shall
not adversely affect the automatic incorporation of the Additional Covenants into this Agreement as
provided above in this Section 6.17; and



(b) as promptly as possible following delivery of such copy, provide the draft of a statement
of incorporation (a “Memorialization”) to be executed by the Borrower and the Lender, 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 Borrower fails to provide a draft of a Memorialization, then the Lender may produce a
draft for the consideration of the Borrower. Any Memorialization executed and delivered by the
Borrower and by the Lender 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 Lender
and the Borrower 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 6.17.



If (A) any Additional Covenant that has been incorporated herein pursuant to this Section
6.17 is subsequently amended or modified in the relevant Reference Agreement with the effect
that such Additional Covenant is made less restrictive on the Borrower, 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 6.17 is
subsequently removed or terminated from the relevant Reference Agreement or the Borrower and its
Subsidiary Guarantors are otherwise no longer required to comply therewith under the relevant
Reference Agreement, the Borrower and its Subsidiaries, beginning on the effective date such
Additional Covenant is removed or terminated from the relevant Reference Agreement or the Borrower
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 Lender has agreed in its sole discretion to
amend, modify, remove or terminate such Additional Covenant to conform to the Reference Agreement.


 


-42-









 





Notwithstanding the foregoing, the provisions of this Section 6.17 shall not apply to
(i) any of the 2009 Covenants for which adjustments are made to this Agreement in accordance with
Section 6.18 and (ii) any other credit facilities paid in full and terminated within 10
days of the date of the Closing Date.



6.18 2009 Notes Covenants. The Borrower 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.



6.19 Post-Closing Obligations. Within 20 days from the Closing Date, or such other date to
which the Lender expressly agrees, the Borrower, on behalf of itself, each Spanish Obligor, and the
Lender 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 Borrower. Within two Business Days from the execution of the notarial deed, the
Borrower shall have supplied to Lender an authorized copy (primera copia autorizada) of that deed.



6.20 Use of Proceeds. Use the proceeds of the Credit Extensions for general working capital
and corporate purposes of the Group. No Credit Extension will be used in contravention of any Law
or of any Loan Document.



6.21 Further Assurances. Take such action and execute, acknowledge and deliver at its sole
cost and expense such agreements, instruments or other documents as are necessary or as the Lender
may reasonably request from time to time in order to (a) carry out more effectively the purposes of
this Agreement and the other Loan Documents, (b) establish and maintain the validity and
effectiveness of any of the Loan Documents and (c) better assure, convey, grant, assign, transfer
and confirm unto the Lender the rights now or hereafter intended to be granted to it under this
Agreement or any other Loan Document.



ARTICLE VII.

NEGATIVE COVENANTS




So long as the Revolving Commitment shall be in effect, any Revolving Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each Obligor, jointly and severally, covenants as follows:



7.01 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 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.




7.02 Restricted Payments.



(a) Limitation. The Borrower 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
Borrower or any Wholly-Owned Subsidiary or (iii) Restricted Payments pursuant to agreements entered into to obtain or
maintain BBBEE status.


 


-43-









 





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



7.03 Consolidated Total Debt Coverage. The Borrower 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.



7.04 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.



7.05 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 Borrower 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 6.08;



(c) attachments, appeal bonds, judgments and other similar Liens for sums not exceeding in
aggregate $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;



(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
7.13 in an amount not to exceed $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 (labeled Security) of Schedule 5.15 securing Indebtedness
otherwise permitted hereunder and any refinancing or renewals thereof;


 


-44-









 





(j) Liens securing obligations of a Subsidiary (other than a member of the South African Group
or Pyramid Freight BVI) to the Borrower or to another Subsidiary (other than a member of the South
African Group or Pyramid Freight BVI) limited to $15,000,000 in the aggregate 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 $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;



(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 7.04,
Liens securing Indebtedness of the Borrower or any Subsidiary in addition to those described in
clauses (a) through (m) above.



For the purposes of this Section 7.05, 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 Borrower 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
Borrower or any Subsidiary securing any Primary Credit Facility except as set forth in the second
sentence of Section 6.11, unless the Obligations are also concurrently equally and ratably
secured pursuant to documentation, including, without limitation, an intercreditor agreement,
reasonably satisfactory to the Lender.



7.06 Subsidiary Indebtedness. In addition to and not in limitation of any other applicable
restrictions herein, including Sections 7.03 and 7.04, the Borrower 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 of other mandatorily redeemable interests with respect
to equity issued by any member of the South African Group to enable such Subsidiary to maintain
BBBEE status or its equivalent.



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


 


-45-









 





(c) Indebtedness of any Subsidiary of the Borrower (other than a member of the South African
Group) in an aggregate amount not to exceed $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
7.13 in an amount not to exceed $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);



(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 Lender;



(h) unsecured Indebtedness of a member of the South African Group or Pyramid Freight BVI owed
to the Borrower 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 2009 Note Purchase
Agreement or (ii) $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 7.05(g) or 7.05(h);



(j) Indebtedness under earnout arrangements in an aggregate amount of up to $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 Loan Documents;



(l) existing Indebtedness in an amount not to exceed $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
7.04.



For the purpose of this Section 7.06, any Person becoming a Subsidiary after the
Closing Date shall be deemed, at the time it becomes such a Subsidiary, to have incurred all of its
then outstanding Indebtedness.



7.07 Merger, Consolidation, Etc. The Borrower 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
Borrower 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
Borrower 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 the Lender its assumption of the due and punctual
performance and observance of the Obligations and (ii) such corporation, limited liability company
or other legal entity shall have caused to be delivered to the Lender an opinion of internationally
recognized independent counsel, or other independent counsel reasonably satisfactory to the Lender,
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


 


-46-









 





(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 Borrower shall
have the effect of releasing the Borrower or any successor corporation, limited liability company
or other legal entity that shall theretofore have become such in the manner prescribed in this
Section 7.07 from its liability under this Agreement.



7.08 Sale of Assets. Except as permitted by Section 7.07, 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 Borrower 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 7.08,
provided that (i) the aggregate net book value of all assets so disposed of in any twelve month
period pursuant to this Section 7.08(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.



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 Borrower 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 Borrower or a Subsidiary; or


 


-47-









 






(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 the Obligations on a pro
rata basis with other Senior Indebtedness of the Borrower 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
Borrower 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 Borrower
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
Borrower 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 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 Borrower and its Subsidiaries (other than the
South African Group and Pyramid Freight BVI) constitute less than 50% of Consolidated Total Assets.



7.09 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.



7.10 Terrorism Sanctions Regulations. The Borrower will not and will not permit any
Controlled Affiliate 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 the Lender to be in violation of any Laws.



7.11 Subsidiaries in South Africa. No Subsidiary of the Borrower incorporated in South Africa
may become an obligor or guarantor under the Global Credit Facilities or the Existing Financing
Agreements. Neither the Borrower nor any Subsidiary of the Borrower (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 7.06 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.



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



7.13 Capital Leases. Capital Leases of the Borrower and its Subsidiaries will not, at any
time, exceed in the aggregate (i) $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 Borrower and its Subsidiaries are permitted to have
outstanding pursuant to Section 7.04 hereof.


 


-48-









 





ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




8.01 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 (i) when and as required to be paid herein, of any
amount of principal of any Revolving Loan or any L/C Obligation, or (ii) within five Business Days
after the same becomes due, of any interest on any Revolving Loan or on any L/C Obligation, or any
other fee due hereunder, or (iii) within five days after the same becomes due, of any other amount
payable hereunder or under any other Loan Document;



(b) (i) any Subsidiary Guarantor defaults in the performance of or compliance with any term of
its Subsidiary Guaranty Agreement, or (ii) any Obligor defaults in the performance of or compliance
with any term contained in Section 6.01(d) or Sections 6.18, 7.02 through
and including 7.08, 7.12 and 7.13; or



(c) any Obligor defaults in the performance of or compliance with any term contained herein
(other than those referred to in Sections 8.01(a) and (b)) 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 the
Lender (any such written notice to be identified as a “notice of default” and to refer specifically
to this Section 11(c)); or



(d) any representation or warranty made in writing by or on behalf of any Obligor or by any
officer of any Obligor in any Loan Document 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



(e) (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 $10,000,000 (or its
equivalent in the relevant currency of payment) until such time as the 2009 Note Purchase Agreement
has been terminated and $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 $10,000,000 (or its
equivalent in the relevant currency of payment) until such time as the 2009 Note Purchase Agreement
has been terminated and $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 $10,000,000 (or its equivalent in the relevant
currency of payment) until such time as the 2009 Note Purchase Agreement has been terminated and
$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



(f) 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


 


-49-









 





(g) 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



(h) 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 8.01(f) or
(g), 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 8.01(f) or (g); or



(i) (i) a final judgment or judgments for the payment of money aggregating in excess of
$50,000,000 (or its equivalent in the relevant currency of payment) are rendered against one or
more of any Obligor and its Subsidiaries, or (ii) a final non-monetary judgment or judgments that
have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect and in either case such 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



(j) 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. Plans allocable to such liabilities, shall exceed $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



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



As used in Section 8.01(j), the terms “employee benefit plan” and “employee welfare
benefit plan” shall have the respective meanings assigned to such terms in Section 3 of ERISA.


 


-50-









 





8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Lender may take any or all of the following actions:



(a) declare the Revolving Commitment to be terminated, whereupon the Revolving Commitment
shall be terminated;



(b) declare the unpaid principal amount of all outstanding Revolving Loans, all interest
accrued and unpaid thereon, and all other Obligations to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived
by the Borrower;



(c) require the Borrower to Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the applicable Honor
Date or the Letter of Credit Expiration Date, as the case may be);



(d) exercise all rights and remedies available to it under the Loan Documents or applicable
law;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
Revolving Commitment shall automatically terminate, the unpaid principal amount of all outstanding
Revolving Loans and all interest and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the Lender.



8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Revolving Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Lender in such order as it elects in its sole discretion.




8.04 Executive Proceedings.



(a) At the Lender’s discretion, 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 full Obligations
hereunder. For the purposes of Articles 571 et seq. of the Civil Procedural Law, the Obligors
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 Lender that the determination of the debt to be claimed through the
executive proceedings shall be effected by the Lender by means of the appropriate certificate
evidencing the Obligations. By virtue of the foregoing, to exercise executive action by the Lender
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 Lender of the amount due by any Spanish Obligor including an excerpt of the credits and debits,
including the interest applied, evidencing that the determination of the amounts due and payable by
the Spanish Obligor has been calculated as agreed in this Agreement, and (iii) a notarial document
(acta notarial) evidencing that the Obligors have been served notice of the amount that is due and
payable.


 


-51-









 





(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 Lender 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.



ARTICLE IX.

SUBSIDIARY GUARANTY




9.01 Guaranty and Indemnity. Each Subsidiary Guarantor jointly and severally and irrevocably
and unconditionally:



(a) promises to pay promptly to the Lender in lawful money of the United States or any other
applicable Alternative Currency, any and all Obligations of the Borrower to the Lender (the
“Guaranteed Obligations”) when due, whether at stated maturity, upon acceleration or otherwise, and
at all times thereafter; and



(b) indemnifies the Lender immediately on demand against any loss or liability suffered by the
Lender if any Obligation is or becomes unenforceable, invalid or illegal; the amount of the loss or
liability under this indemnity will be equal to the amount the Lender would otherwise have been
entitled to recover.




9.02 Unconditional Guaranty.



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



(b) The Obligations guaranteed by each Subsidiary Guarantor under this Article IX and the
losses and liabilities against which each Subsidiary Guarantor indemnifies the Lender include, in
each case, all Obligations which arise after a petition is filed by, or against, any Obligor under
Debtor Relief Laws (or in analogous circumstances under any applicable law in any other applicable
jurisdiction) even if the Obligations do not accrue because of the automatic stay under section 362
of the Bankruptcy Code of the United States (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.




9.03 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 Article IX will continue or be reinstated as if the discharge or arrangement
had not occurred.



(b) The Lender may concede or compromise any claim that any payment, security or other
disposition is liable to avoidance or restoration.


 


-52-









 






9.04 Waiver of Defenses.



(a) The obligations of each Subsidiary Guarantor under this Article IX 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 Article IX (whether or not known to it or the Lender). 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; (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 Loan Document or any other document
or security; (vii) any unenforceability, illegality, invalidity or non provability of any
obligation of any person under any Loan Document or any other document or security; (viii) any
insolvency or similar proceedings; (ix) notice of acceptance of this Subsidiary Guaranty Agreement;
(x) the creation, existence or acquisition of any of the Guaranteed Obligations, subject to such
Subsidiary Guarantor’s right to make inquiry of the Lender 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 the Lender 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 the Lender to institute suit against the Borrower or to exhaust its rights and remedies
against the Borrower, 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 Lender 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 Obligor organized in Spain waives any right of exclusion, order or division
(beneficios de excusión, orden y división) under Article 1830 et seq. of the Spanish Civil Code.



(c) Each Obligor organized in Belgium 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 Obligor organized in Guernsey 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 Lender, before enforcing its rights against it under this Agreement, takes
any action, exercises any recourse or seeks a declaration of bankruptcy against the Borrower
or any other Person, makes any claim in a bankruptcy, liquidation, administration or
insolvency of the Borrower or any other Person or enforces or seeks to enforce any other
right, claim, remedy or recourse against the Borrower or any other Person;




(ii) that the Lender, in order to preserve any of its rights against the Obligor
organized in Guernsey joins the Obligor organized in Guernsey as a party to any proceedings
against the Borrower, or the Borrower as a party to any proceedings against the Obligor
organized in Guernsey or takes any other procedural steps; or




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


 


-53-









 





9.05 Immediate Recourse.



(a) Each Subsidiary Guarantor waives any right it may have of first requiring the Lender to
proceed against or enforce any other right or security or claim payment from any Person before
claiming from that Subsidiary Guarantor under this Article IX.



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



9.06 Appropriations. Until all amounts which may be or become payable by the Obligors under
or in connection with the Loan Documents have been irrevocably paid in full, the Lender may without
affecting the liability of any Subsidiary Guarantor under this Article IX:



(a) (i) refrain from applying or enforcing any other moneys, security or rights held or
received by the Lender 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 Article IX.




9.07 Non-Competition. Unless:



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




(b) the Lender, acting reasonably, otherwise directs,



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




(i) be subrogated to any rights, security or moneys held, received or receivable by the
Lender;




(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
Article IX;




(iii) claim, rank, prove or vote as a creditor of any Obligor or its estate in
competition with the Lender; 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 Article IX or in accordance with any directions given by the Lender under this
Article IX.



9.08 Release of Subsidiary Guarantors’ Right of Contribution. If any Subsidiary Guarantor
ceases to be a Subsidiary Guarantor in accordance with the terms of the Loan Documents 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 Loan Documents; and


 


-54-









 





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



9.09 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, the Lender, 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, all or any part of its rights and
obligations under this Agreement;



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



(d) amend, modify or supplement in any manner and at any time (or from time to time) this
Agreement including, without limitation, by any increase in the principal amount of the Obligations
or any change in interest rates 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
Borrower 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 the Obligations; 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.




9.10 Marshaling. Each Subsidiary Guarantor consents and agrees that:



(a) the Lender 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 Borrower makes a payment or payments to the Lender, 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 Debtor
Relief 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.



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


 


-55-









 





9.12 Character of Obligation. The Guaranty set forth in this Article IX 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
6.14.



The obligations of each Subsidiary Guarantor under this Subsidiary Guarantee Agreement and the
rights of the Lender 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 Loan Document or any other instruments or agreements;



(d) the validity or enforceability of any Loan Document or any other instruments or
agreements;



(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 Loan Document, 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


 


-56-









 





(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.



9.13 Election to Perform Obligations. Any election by any Subsidiary Guarantor to pay or
otherwise perform any of the obligations of any Obligor under any Loan Document, whether pursuant
to this Article IX 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.



9.14 No Election. The Lender shall have the right to seek recourse against each Subsidiary
Guarantor to the fullest extent provided for in this Article IX and elsewhere as provided in this
Agreement, and against the Borrower, 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 the Lender that are separate and apart from its obligations under this Article
IX. 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 the Lender to proceed in any other form of
action or proceeding or against other parties unless the Lender has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no action or
proceeding by the Lender against the Borrower or any Subsidiary Guarantor under any document or
instrument evidencing obligations of the Company or such Subsidiary Guarantor to the Lender shall
serve to diminish the liability of such Subsidiary Guarantor under this Agreement (including,
without limitation, this Article IX) except to the extent that the Lender 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 Borrower.



9.15 Other Enforcement Rights. The Lender may proceed to protect and enforce the Subsidiary
Guarantee Agreement under this Article IX 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
Article IX 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.



9.16 Restoration of Rights and Remedies. If the Lender shall have instituted any proceeding
to enforce any right or remedy in this Article IX and such proceeding shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the Lender, then and in
every such case each the Lender, the Borrower 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.



9.17 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 Article IX
shall survive the transfer and payment of the Obligations.



9.18 Miscellaneous. So long as the Guaranteed Obligations owed by the Borrower 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 Article
IX or in connection with this Article IX or otherwise, or any claim of subrogation arising with
respect to any such payment made under this Article IX 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 Article IX, and further agrees that the Lender may specifically enforce
the provisions of this Article IX. This clause creates a promise which is intended to create
obligations enforceable at the suit of the Lender.


 


-57-









 





If an Event of Default exists, then the Lender 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 Borrower 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 Borrower. In any such event, the
Lender shall have immediate recourse to such Subsidiary Guarantor to the fullest extent set forth
herein.



9.19 Limitation. Anything herein 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.



9.20 Written Notice. Notwithstanding any other provision of this Article IX, in the event of
any acceleration of the Obligations in accordance with the provisions of Section 8.02
hereof, any requirement of written notice to, or demand of, the Subsidiary Guarantors pursuant to
this Article IX 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).



9.21 Unenforceability of Obligations. As a separate and continuing undertaking, each
Subsidiary Guarantor unconditionally and irrevocably undertakes to the Lender 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 the Lender, 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



(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 Lender immediately on demand against the amount which
the Lender would otherwise have been able to recover (on a full indemnity basis). In this
Section 9.21 the expression “Guaranteed Obligations” includes any Indebtedness which would
have been included in that expression but for anything referred to in this clause.



9.22 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 Lender 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 Obligations have been
fully and irrevocably paid and discharged.


 


-58-









 





9.23 Additional Security. This guarantee is in addition to and is not in any way prejudiced
by any other security now or subsequently held by the Lender.



9.24 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).



9.25 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.



9.26 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.



9.27 Limitations — Germany. (a) The Lender 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 section
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 section 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 section 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.


 


-59-









 






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




(i) within five 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 Lender (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 10 Business Days from the date the Required Holders have contested the
Management Determination the Lender receives 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.



(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 the Lender against the Borrower (in such capacity)
under this Agreement.



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



9.29 U.S. Guarantors. (a) In this Subsection: (i) “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 (ii)
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 Loan Documents;




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




(iii) the Lender has acted in good faith in connection with the Guarantee given by that
U.S. Guarantor and the transactions contemplated by the Loan Documents.


 


-60-









 





(c) The Lender agrees that each U.S. Guarantor’s liability under this Article IX is limited so
that no obligation of, or transfer by, any U.S. Guarantor under this Article IX is subject to
avoidance and turnover under any fraudulent transfer law.




(d) Each U.S. Guarantor represents and warrants to the Lender 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 Loan Document with the intent to hinder, delay or defraud any of its present or future
creditors.




(e) Each acknowledgement, representation and warranty:




(i) in Section 9.29(b) is made by each U.S. Guarantor on the date of this
Agreement;




(ii) in Section 9.29(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 9.29 is deemed to be repeated whenever a representation
is deemed to by repeated under any Loan Document; and




(iv) in this Section 9.29 is, when repeated, applied to the circumstances
existing at the time of repetition.



9.30 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.



9.31 Limitation on Pyramid Freight. Under this Section 9.31 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 9.31, 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.


 


-61-









 





9.32 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.



9.33 Irish Obligors. The Lender agrees that the liability of each Irish Obligor under this
Section 9 does not apply or extend to any liability to the extent that it would result in
this Subsidiary Guaranty Agreement constituting unlawful financial assistance within the meaning of
Section 60 (as amended) of the Companies Act 1963 of Ireland.



9.34 Guarantor Intent. Without prejudice to the generality of Section 9.04 (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 Loan Documents and/or any facility or amount made
available under any of the Loan Documents 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.



ARTICLE X.

MISCELLANEOUS




10.01 Amendments; Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Obligor therefrom,
shall be effective unless in writing signed by the Lender and the Borrower or the applicable
Obligor, as the case may be, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.




10.02 Notices and Other Communications; Facsimile Copies.



(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed, faxed or delivered to the address, facsimile number or
(subject to subsection (c) below) electronic mail address specified for notices to the applicable
party on Schedule 10.02; or to such other address, facsimile number or electronic mail
address as shall be designated by such party in a notice to the other party. All notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
telephone number specified for notices to the applicable party on Schedule 10.02, or to
such other telephone number as shall be designated by such party in a notice to the other party.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications to the Lender pursuant to
Article II shall not be effective until actually received by the Lender. In no event shall
a voicemail message be effective as a notice, communication or confirmation hereunder.



(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually-signed originals and
shall be binding on all Obligors and the Lender. The Lender may also require that any such
documents and signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit the effectiveness
of any facsimile document or signature.


 


-62-









 





(c) Limited Use of Electronic Mail. Electronic mail and Internet and intranet
websites may be used only to distribute routine communications, such as financial statements and
other information as provided in Section 6.01, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.



(d) Reliance by Lender. The Lender shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Lender, its
Affiliates, and their respective officers, directors, employees, agents and attorneys-in-fact from
all losses, costs, expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower except any such losses, costs, expenses
and liabilities as are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of the applicable
indemnitee. All telephonic notices to and other communications with the Lender may be recorded by
the Lender, and the Borrower hereby consents to such recording.



10.03 No Waiver; Cumulative Remedies. No failure by the Lender to exercise, and no delay by
the Lender in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Lender for all reasonable costs and out of pocket expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the other Loan Documents
and any amendment, waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and thereby, including all
reasonable Attorney Costs, and (b) to pay or reimburse the Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement, or preservation of any rights
or remedies under this Agreement or the other Loan Documents (including all such costs and expenses
incurred during any “workout” or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs.
The foregoing costs and expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by
the Lender and the reasonable cost of independent public accountants and other outside experts
retained by the Lender. All amounts due under this Section 10.04 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall survive the
termination of the Revolving Commitment and repayment, satisfaction or discharge of all other
Obligations.



10.05 Indemnification by the Borrower. Whether or not the transactions contemplated hereby
are consummated, the Borrower shall indemnify and hold harmless the Lender, its Affiliates, and
their respective directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the “Indemnitees”) from and against any and all liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising
out of or in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the transactions
contemplated thereby; (b) the Revolving Commitment, any Revolving Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the Lender to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit); (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based


 


-63-









 






on
contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending
or threatened claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto; and (d) any Existing Financing Agreement, including, without
limitation, any obligation of the Borrower as a Subsidiary Guarantor (all the foregoing,
collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee. No Indemnitee shall have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All amounts due under
this Section 10.05 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the termination of the Revolving Commitment and the
repayment, satisfaction or discharge of all the other Obligations.



10.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Lender, or the Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by the
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then, to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such set-off had not occurred.




10.07 Successors and Assigns.



(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Lender and the Lender may not assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (c) of this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (e) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (c) of this Section and, to the extent expressly contemplated hereby, the Indemnitees)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



(b) The Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of the Revolving
Commitment, the Revolving Loans and L/C Obligations at the time owing to it) pursuant to
documentation acceptable to the Lender and the assignee, it being understood and agreed that with
respect to any Letters of Credit outstanding at the time of any such assignment, the Lender may
sell to the assignee a ratable participation in such Letters of Credit. From and after the
effective date specified in such documentation, such Eligible Assignee shall be a party to this
Agreement and, to the extent of the interest assigned by the Lender, have the rights and
obligations of the Lender under this Agreement, and the Lender shall, to the extent of the interest
so assigned, be released from its obligations under this Agreement (and, in the case of an
assignment of all of the Lender’s rights and obligations under this Agreement, shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment, and shall continue to have all of the
rights provided hereunder to the Lender in its capacity as issuer of any Letters of Credit
outstanding at the time of such assignment). Upon request, the Borrower (at its expense) shall
execute and deliver new or replacement notes to the Lender and the assignee, and shall execute and
deliver any other documents reasonably necessary or appropriate to give effect to such assignment
and to provide for the administration of this Agreement after giving effect thereto.


 


-64-









 





(c) The Lender may at any time, without the consent of, or notice to, the Borrower, sell
participations to any Person (other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of the Lender’s
rights and/or obligations under this Agreement (including all or a portion of its Revolving
Commitment and/or the outstanding Letters of Credit and/or the Revolving Loans and/or the
reimbursement obligations in respect of Letters of Credit); provided that (i) the Lender’s
obligations under this Agreement shall remain unchanged, (ii) the Lender shall remain solely
responsible to the Borrower for the performance of such obligations and (iii) the Borrower shall
continue to deal solely and directly with the Lender in connection with the Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which the Lender sells
such a participation shall provide that the Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that the Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification that would (i)
postpone any date upon which any payment of money is scheduled to be made to such Participant or
(ii) reduce the principal, interest, fees or other amounts payable to such Participant
(provided, however, that the Lender may, without the consent of the Participant,
waive the right to be paid interest at the Default Rate) or (iii) release all or any of the
Guaranties prior to termination of the Revolving Commitment, expiration of all Letters of Credit
and final payment in full of all Obligations. Subject to subsection (d) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were the Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits and obligations of Section 10.09 as
though it were the Lender.



(d) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. Any Participant or Eligible Assignee that is not a
“United States person” within the meaning of Section 7701(a)(30) of the Code shall not be entitled
to the benefits of Section 3.01 unless the Borrower is notified of the participation sold
to such Participant or Eligible Assignee and such Participant or Eligible Assignee agrees, for the
benefit of the Borrower, to provide to the Lender such tax forms prescribed by the IRS as are
necessary or desirable to establish an exemption from U.S. withholding tax.



(e) The Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under the Note, if any) to secure obligations of the
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release the Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto.




(f) As used herein, the following terms have the following meanings:




“Eligible Assignee” means (a) an Affiliate of the Lender and (b) any other
Person (other than a natural person) approved by the Borrower (such approval not to be
unreasonably withheld or delayed); provided that no such approval shall be required
if an Event of Default has occurred and is continuing.




“Fund” means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial Revolving Loans
and similar extensions of credit in the ordinary course of its business.


 


-65-









 





10.08 Confidentiality. The Lender agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Lender on a nonconfidential basis from a source other than the Borrower. For purposes of this
Section, “Information” means all information received from any Obligor relating to any
Obligor or any of their respective businesses, other than any such information that is available to
the Lender on a nonconfidential basis prior to disclosure by any Obligor. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



10.09 Set-off. In addition to any rights and remedies of the Lender provided by law, upon the
occurrence and during the continuance of any Event of Default, the Lender is authorized at any time
and from time to time, without prior notice to the Borrower or any other Obligor, any such notice
being waived by the Borrower (on its own behalf and on behalf of each Obligor) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any time owing by, the
Lender to or for the credit or the account of the respective Loan Parties against any and all
Obligations owing to the Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Lender shall have made demand under this Agreement or
any other Loan Document and although such Obligations may be contingent or unmatured or denominated
in a currency different from that of the applicable deposit or indebtedness. The Lender agrees
promptly to notify the Borrower after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of such set-off
and application.



10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Revolving Loans or, if it exceeds such unpaid principal,
refunded to the Borrower. In determining whether the interest contracted for, charged, or received
by the Lender exceeds the Maximum Rate, the Lender may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.



10.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.



10.12 Integration. This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights or remedies in favor of the Lender in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.



10.13 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Lender, regardless of
any
investigation made by the Lender or on its behalf and notwithstanding that the Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in
full force and effect as long as any Revolving Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


 


-66-









 





10.14 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




10.15 Governing Law.



(a) This Agreement and (except as otherwise expressly stated therein) the other Loan Documents
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.




10.16 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 issued hereunder or any other
Loan Document. 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 10.16(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 the Lender in any suit,
action or proceeding of the nature referred to in Section 10.16(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 10.02,
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 10.16 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 10.16 shall affect the right of the Lender to serve
process in any manner permitted by law, or limit any right that the Lender 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.


 


-67-









 





(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 OBLIGATIONS HEREUNDER OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH.



10.17 USA Patriot Act Notice. The Lender hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow the Lender to identify the Borrower in accordance with the Patriot Act.


 


-68-









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	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.

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, S.A.

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 	 
	 	 	 	 
	 	GODDARD COMPANY LIMITED

 	 
	 	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.) 	 



 


S-1









 





	 	 	 	 	 
	 	PYRAMID FREIGHT (PROPRIETARY) LIMITED

 	 
	 	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 INTERNATIONAL 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.) 	 
	 
	 	BANK OF THE WEST

 	 
	 	By:  	/s/ Brock Mullins
 	 
	 	 	Brock Mullins, Vice President and Senior National Banking Credit Officer 	 




 


S-2