Exhibit 10.3





Exhibit 10.3




UTi WORLDWIDE INC.




LETTER OF CREDIT FACILITY




AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT




Dated as of June 24, 2011



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	SECTION	 	HEADING	 	PAGE	 
	SECTION 1 LETTERS OF CREDIT	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.1
	 	Issuance of Letters of Credit	 	 	1	 
	Section 1.2
	 	Conditions to Each Issuance after the Effective Date	 	 	1	 
	Section 1.3
	 	Letters of Credit in Optional Currency	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2 [INTENTIONALLY OMITTED]	 	 	3	 
	 
	 	 	 	 	 	 
	SECTION 3 PROVISIONS APPLICABLE TO ALL LETTERS OF CREDIT	 	 	3	 
	 
	 	 	 	 	 	 
	Section 3.1
	 	Responsibility of Issuing Bank	 	 	3	 
	Section 3.2
	 	Reimbursement by the Company of Amounts Drawn or Paid Under Letters of Credit	 	 	4	 
	Section 3.3
	 	Obligations Absolute	 	 	4	 
	Section 3.4
	 	Interest and Fees	 	 	5	 
	Section 3.5
	 	Credit Support	 	 	6	 
	Section 3.6
	 	Maturity	 	 	7	 
	Section 3.7
	 	Evidence of Debt	 	 	7	 
	Section 3.8
	 	Irish Insurance Acts	 	 	7	 
	Section 3.9
	 	Increased Costs	 	 	7	 
	 
	 	 	 	 	 	 
	SECTION 4 CONDITIONS TO EFFECTIVENESS.	 	 	8	 
	 
	 	 	 	 	 	 
	Section 4.1
	 	Representations and Warranties	 	 	9	 
	Section 4.2
	 	Performance; No Default	 	 	9	 
	Section 4.3
	 	Closing Certificates	 	 	9	 
	Section 4.4
	 	Opinions of Counsel	 	 	9	 
	Section 4.5
	 	Issuance Permitted By Applicable Law, Etc	 	 	9	 
	Section 4.6
	 	[Intentionally Omitted]	 	 	10	 
	Section 4.7
	 	Payment of Fees	 	 	10	 
	Section 4.8
	 	[Intentionally Omitted]	 	 	10	 
	Section 4.9
	 	Changes in Corporate Structure	 	 	10	 
	Section 4.10
	 	Acceptance of Appointment to Receive Service of Process	 	 	10	 
	Section 4.11
	 	[Intentionally Omitted]	 	 	10	 
	Section 4.12
	 	Proceedings and Documents	 	 	10	 
	Section 4.13
	 	Subsidiary Guarantee Agreement	 	 	10	 
	Section 4.14
	 	2006 Notes	 	 	10	 
	Section 4.15
	 	New Global Credit Facilities	 	 	10	 
	Section 4.16
	 	Approvals	 	 	11	 
	Section 4.17
	 	No Material Adverse Effect	 	 	11	 





 


i









 





	 	 	 	 	 	 	 
	SECTION	 	HEADING	 	PAGE	 
	 
	 	 	 	 	 	 
	Section 4.18
	 	Leverage Ratio	 	 	11	 
	Section 4.19
	 	USA Patriot Act	 	 	11	 
	Section 4.20
	 	Solvency Certificate	 	 	11	 
	 
	 	 	 	 	 	 
	SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS	 	 	11	 
	 
	 	 	 	 	 	 
	Section 5.1
	 	Organization; Power and Authority	 	 	11	 
	Section 5.2
	 	Authorization, Etc	 	 	11	 
	Section 5.3
	 	Disclosure	 	 	12	 
	Section 5.4
	 	Organization and Ownership of Shares of Subsidiaries; Affiliates	 	 	12	 
	Section 5.5
	 	Financial Statements; Material Liabilities	 	 	13	 
	Section 5.6
	 	Compliance with Laws, Other Instruments, Etc	 	 	13	 
	Section 5.7
	 	Governmental Authorizations, Etc.	 	 	14	 
	Section 5.8
	 	Litigation; Observance of Agreements, Statutes and Orders	 	 	14	 
	Section 5.9
	 	Taxes	 	 	14	 
	Section 5.10
	 	Title to Property; Leases	 	 	15	 
	Section 5.11
	 	Licenses, Permits, Etc	 	 	15	 
	Section 5.12
	 	Compliance with ERISA; Non-U.S. Plans	 	 	15	 
	Section 5.13
	 	[Intentionally Omitted]	 	 	17	 
	Section 5.14
	 	Use of Proceeds; Margin Regulations	 	 	17	 
	Section 5.15
	 	Existing Indebtedness; Future Liens	 	 	17	 
	Section 5.16
	 	Foreign Assets Control Regulations, Etc	 	 	18	 
	Section 5.17
	 	Status under Certain Statutes	 	 	19	 
	Section 5.18
	 	Environmental Matters	 	 	19	 
	Section 5.19
	 	Ranking of Obligations	 	 	19	 
	Section 5.20
	 	Obligor Group	 	 	19	 
	Section 5.21
	 	CASS Reserve	 	 	19	 
	Section 5.22
	 	Labor Matters	 	 	19	 
	Section 5.23
	 	Insolvency	 	 	20	 
	 
	 	 	 	 	 	 
	SECTION 6 REPRESENTATION OF THE ISSUING BANK	 	 	20	 
	 
	 	 	 	 	 	 
	SECTION 7 INFORMATION AS TO COMPANY	 	 	20	 
	 
	 	 	 	 	 	 
	Section 7.1
	 	Financial and Business Information	 	 	20	 
	Section 7.2
	 	Officer’s Certificate	 	 	24	 
	Section 7.3
	 	Visitation.	 	 	24	 
	Section 7.4
	 	Limitation on Disclosure Obligation	 	 	25	 
	 
	 	 	 	 	 	 
	SECTION 8 [INTENTIONALLY OMITTED]	 	 	25	 
	 
	 	 	 	 	 	 
	SECTION 9 AFFIRMATIVE COVENANTS	 	 	25	 
	 
	 	 	 	 	 	 
	Section 9.1
	 	Compliance with Law	 	 	25	 
	Section 9.2
	 	Insurance	 	 	26	 
	Section 9.3
	 	Maintenance of Properties	 	 	26	 





 


ii









 





	 	 	 	 	 	 	 
	SECTION	 	HEADING	 	PAGE	 
	 
	 	 	 	 	 	 
	Section 9.4
	 	Payment of Taxes and Claims	 	 	26	 
	Section 9.5
	 	Corporate Existence, Etc	 	 	26	 
	Section 9.6
	 	Books and Records	 	 	27	 
	Section 9.7
	 	Priority of Obligations	 	 	27	 
	Section 9.8
	 	[Intentionally Omitted]	 	 	27	 
	Section 9.9
	 	Dividend Capture from South Africa	 	 	27	 
	Section 9.10
	 	Additional Guarantors	 	 	27	 
	Section 9.11
	 	Release of Subsidiary Guarantors; Substitution of Subsidiary Guarantors	 	 	28	 
	Section 9.12
	 	Group Structure	 	 	29	 
	Section 9.13
	 	CASS Agreement	 	 	29	 
	Section 9.14
	 	Further Assurances	 	 	29	 
	Section 9.15
	 	Additional Restrictions	 	 	29	 
	Section 9.16
	 	2009 Notes Covenants	 	 	31	 
	Section 9.17
	 	“Know Your Customer” checks	 	 	31	 
	Section 9.18
	 	Post-Effective Date Obligations	 	 	31	 
	 
	 	 	 	 	 	 
	SECTION 10 NEGATIVE COVENANTS	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.1
	 	Transactions with Affiliates	 	 	32	 
	Section 10.2
	 	Restricted Payments	 	 	32	 
	Section 10.3
	 	Consolidated Total Debt Coverage	 	 	32	 
	Section 10.4
	 	Priority Debt	 	 	32	 
	Section 10.5
	 	Liens	 	 	32	 
	Section 10.6
	 	Subsidiary Indebtedness	 	 	34	 
	Section 10.7
	 	Merger, Consolidation, Etc	 	 	35	 
	Section 10.8
	 	Sale of Assets	 	 	36	 
	Section 10.9
	 	Line of Business	 	 	37	 
	Section 10.10
	 	Terrorism Sanctions Regulations	 	 	37	 
	Section 10.11
	 	Subsidiaries in South Africa	 	 	38	 
	Section 10.12
	 	Minimum Debt Service Ratio	 	 	38	 
	Section 10.13
	 	Capital Leases	 	 	38	 
	Section 10.14
	 	No Further Negative Pledges	 	 	38	 
	Section 10.15
	 	Fiscal Year	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 11 EVENTS OF DEFAULT	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 12 REMEDIES ON DEFAULT, ETC.	 	 	41	 
	 
	 	 	 	 	 	 
	Section 12.1
	 	Acceleration	 	 	41	 
	Section 12.2
	 	Other Remedies	 	 	42	 
	Section 12.3
	 	[Intentionally Omitted]	 	 	42	 
	Section 12.4
	 	No Waivers or Election of Remedies, Expenses, Etc	 	 	42	 
	Section 12.5
	 	Executive Proceedings in Spain	 	 	42	 





 


iii









 





	 	 	 	 	 	 	 
	SECTION	 	HEADING	 	PAGE	 
	 
	 	 	 	 	 	 
	SECTION 13 TAX INDEMNIFICATION	 	 	43	 
	 
	 	 	 	 	 	 
	SECTION 14 ASSIGNMENT AND PARTICIPATION	 	 	46	 
	 
	 	 	 	 	 	 
	Section 14.1
	 	[Intentionally Omitted]	 	 	46	 
	Section 14.2
	 	Assignment and Participation	 	 	46	 
	Section 14.3
	 	[Intentionally Omitted]	 	 	47	 
	Section 14.4
	 	[Intentionally Omitted]	 	 	47	 
	 
	 	 	 	 	 	 
	SECTION 15 PAYMENTS GENERALLY	 	 	47	 
	 
	 	 	 	 	 	 
	Section 15.1
	 	Place of Payment	 	 	47	 
	Section 15.2
	 	[Intentionally Omitted].	 	 	47	 
	Section 15.5
	 	Set-off	 	 	47	 
	 
	 	 	 	 	 	 
	SECTION 16 EXPENSES, ETC.	 	 	47	 
	 
	 	 	 	 	 	 
	Section 16.1
	 	Transaction Expenses	 	 	48	 
	Section 16.2
	 	Indemnification	 	 	48	 
	Section 16.3
	 	Certain Taxes	 	 	49	 
	Section 16.4
	 	Survival	 	 	49	 
	 
	 	 	 	 	 	 
	SECTION 17 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT	 	 	49	 
	 
	 	 	 	 	 	 
	SECTION 18 AMENDMENT AND WAIVER	 	 	49	 
	 
	 	 	 	 	 	 
	Section 18.1
	 	Requirements	 	 	49	 
	Section 18.2
	 	Solicitation of Issuing Bank	 	 	49	 
	Section 18.3
	 	Binding Effect, Etc.	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 19 NOTICES; ENGLISH LANGUAGE	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 20 REPRODUCTION OF DOCUMENTS	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 21 CONFIDENTIAL INFORMATION	 	 	51	 
	 
	 	 	 	 	 	 
	SECTION 22 [INTENTIONALLY OMITTED]	 	 	52	 
	 
	 	 	 	 	 	 
	SECTION 23 SUBSIDIARY GUARANTEE AGREEMENT	 	 	52	 
	 
	 	 	 	 	 	 
	Section 23.1
	 	Guarantee and Indemnity	 	 	52	 
	Section 23.2
	 	Continuing Guarantee	 	 	52	 
	Section 23.3
	 	Reinstatement	 	 	53	 
	Section 23.4
	 	Waiver of Defenses	 	 	53	 
	Section 23.5
	 	Immediate Recourse	 	 	54	 





 


iv









 





	 	 	 	 	 	 	 
	SECTION	 	HEADING	 	PAGE	 
	 
	 	 	 	 	 	 
	Section 23.6
	 	Appropriations	 	 	55	 
	Section 23.7
	 	Non-competition	 	 	55	 
	Section 23.8
	 	Release of Subsidiary Guarantors’ Right of Contribution	 	 	55	 
	Section 23.9
	 	Releases	 	 	56	 
	Section 23.10
	 	Marshaling	 	 	56	 
	Section 23.11
	 	Liability	 	 	57	 
	Section 23.12
	 	Character of Obligation	 	 	57	 
	Section 23.13
	 	Election to Perform Obligations	 	 	58	 
	Section 23.14
	 	No Election	 	 	58	 
	Section 23.15
	 	[Intentionally Omitted]	 	 	59	 
	Section 23.16
	 	Other Enforcement Rights	 	 	59	 
	Section 23.17
	 	Restoration of Rights and Remedies	 	 	59	 
	Section 23.18
	 	Survival	 	 	59	 
	Section 23.19
	 	Miscellaneous	 	 	59	 
	Section 23.20
	 	Limitation	 	 	60	 
	Section 23.21
	 	Written Notice.	 	 	60	 
	Section 23.22
	 	Unenforceability of Obligations	 	 	60	 
	Section 23.23
	 	Contribution	 	 	61	 
	Section 23.24
	 	Additional Security	 	 	61	 
	Section 23.25
	 	Limitations – UK	 	 	61	 
	Section 23.26
	 	Limitations – Spain	 	 	61	 
	Section 23.27
	 	Limitations – Hong Kong	 	 	61	 
	Section 23.28
	 	Limitations – Germany	 	 	61	 
	Section 23.29
	 	Limitations – the Netherlands.	 	 	63	 
	Section 23.30
	 	U.S. Guarantors	 	 	63	 
	Section 23.31
	 	Limitation on Pyramid Freight	 	 	64	 
	Section 23.32
	 	Limitations – Belgium	 	 	64	 
	Section 23.33
	 	Limitations – Singapore	 	 	64	 
	Section 23.34
	 	Irish Obligors	 	 	65	 
	Section 23.35
	 	Guarantor Intent	 	 	65	 
	 
	 	 	 	 	 	 
	SECTION 24 MISCELLANEOUS	 	 	65	 
	 
	 	 	 	 	 	 
	Section 24.1
	 	Successors and Assigns	 	 	65	 
	Section 24.2
	 	Payments Due on Non-Business Days	 	 	65	 
	Section 24.3
	 	Accounting Terms	 	 	65	 
	Section 24.4
	 	Severability	 	 	66	 
	Section 24.5
	 	Construction, Etc	 	 	66	 
	Section 24.6
	 	Counterparts	 	 	66	 
	Section 24.7
	 	Governing Law	 	 	66	 
	Section 24.8
	 	Jurisdiction and Process; Waiver of Jury Trial	 	 	66	 
	Section 24.9
	 	Obligation to Make Payment in Dollars	 	 	67	 
	Section 24.10
	 	No Novation	 	 	68	 





 


v









 





	 	 	 	 	 
	SCHEDULE A
	 	—	 	Information Relating to Issuing Bank
	 
	 	 	 	 
	SCHEDULE B
	 	—	 	Defined Terms
	 
	 	 	 	 
	EXHIBIT 1.1
	 	—	 	Form of Letter of Credit
	 
	 	 	 	 
	EXHIBIT 1.2
	 	—	 	Issuance Notice
	 
	 	 	 	 
	EXHIBIT 2
	 	—	 	[Intentionally Omitted]
	 
	 	 	 	 
	EXHIBITS 4.4(a)(i),
(ii), (iii) and (iv)
	 	—	 	Form of Opinion of U.S. Counsel to the Obligors
	 
	 	 	 	 
	EXHIBITS 4.4(a)(v),
and (vi)
	 	—	 	Form of Opinion of British Virgin Islands Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(vii)
	 	—	 	Form of Opinion of Australian Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(viii),
	 	—	 	Form of Opinion of Canadian Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(ix)
	 	—	 	Form of Opinion of Belgian Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(x)
	 	—	 	Form of Opinion of German Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xi)
	 	—	 	Form of Opinion of Hong Kong Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xii)
	 	—	 	Form of Opinion of Dutch Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xiii)
	 	—	 	Form of Opinion of Spanish Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xiv)
	 	—	 	Form of Opinion of English Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xv)
	 	—	 	Form of Opinion of Guernsey Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xvi)
	 	—	 	Form of Opinion of Singapore Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(a)(xvii)
	 	—	 	Form of Opinion of Arizona Counsel
	 
	 	 	 	 
	EXHIBIT 4.4(b)
	 	—	 	[Intentionally Omitted]
	 
	 	 	 	 
	EXHIBIT 9.10
	 	—	 	Form of Joinder Agreement
	 
	 	 	 	 
	EXHIBIT 14.4
	 	—	 	[Intentionally Omitted]
	 
	 	 	 	 
	SCHEDULE 1.1
	 	—	 	Existing Letters of Credit
	 
	 	 	 	 
	SCHEDULE 4.9
	 	—	 	[Intentionally Omitted]
	 
	 	 	 	 
	SCHEDULE 5.3
	 	—	 	Disclosure Materials





 


vi









 





	 	 	 	 	 
	SCHEDULE 5.4
	 	—	 	Subsidiaries of the Company and Ownership of Subsidiary Stock
	 
	 	 	 	 
	SCHEDULE 5.5
	 	—	 	Financial Statements
	 
	 	 	 	 
	SCHEDULE 5.7
	 	—	 	Governmental Authorizations
	 
	 	 	 	 
	SCHEDULE 5.9
	 	—	 	Liability for Taxes
	 
	 	 	 	 
	SCHEDULE 5.15
	 	—	 	Existing Indebtedness and Liens
	 
	 	 	 	 
	SCHEDULE 5.22
	 	—	 	Collective Bargaining Agreements





 


vii









 






UTi WORLDWIDE INC.

c/o UTi, Services, Inc.

100 OCEANGATE, SUITE 1500

LONG BEACH, CALIFORNIA 90802




LETTER OF CREDIT FACILITY




June 24, 2011




To the Issuing Bank Listed in





Schedule A Hereto:



Ladies and Gentlemen:



UTi Worldwide Inc., a BVI Business Company incorporated under the laws of the British Virgin
Islands with BVI company number 141257 (the “Company”) and each of the Subsidiary Guarantors
jointly and severally agree with RBS, in its capacity as Issuing Bank, as follows:



SECTION 1 LETTERS OF CREDIT




Section 1.1 Issuance of Letters of Credit. The Letters of Credit issued by the Issuing Bank under the Existing Facility for the
account of or on behalf of the Company that are outstanding on the Effective Date (set forth in
Schedule 1.1 hereto) (the “Existing Letters of Credit”) shall be deemed to be Letters of Credit
issued hereunder on the Effective Date. During the period from the Effective Date to but excluding
the earlier of (i) the Maturity Date and (ii) the date of termination pursuant to Section 12.1,
subject to the terms and conditions hereof, the Issuing Bank agrees, in its sole discretion, to
issue standby letters of credit for the account of the Company; provided, however, that the
aggregate amount of all such Letters of Credit (including any Letters of Credit for which the
Company has provided Credit Support) shall not exceed the Maximum Draw Amount; provided, in the
case of Letters of Credit issued after the Effective Date, (i) each such Letter of Credit shall be
denominated in Dollars or in any Optional Currency; and (ii) in no event shall any Letter of Credit
have an expiration date later than the date which is one year from the date of issuance of such
Letter of Credit unless agreed to by the Issuing Bank. Subject to the foregoing, the Issuing Bank
may agree, in its sole discretion, that any Letter of Credit issued by it may be automatically
extended for one or more successive periods not to exceed one year each, unless it elects not to
extend for any such additional period.



Whenever the Company desires the issuance of a Letter of Credit after the Effective Date, it
shall deliver to the Issuing Bank an Issuance Notice no later than 2:00 p.m. (New York City time)
at least three (3) Business Days, or such shorter period as may be agreed to by the Issuing Bank in
any particular instance, in advance of the proposed date of issuance. Upon satisfaction or waiver
of the conditions set forth in Section 1.2, the Issuing Bank shall issue the requested Letter of
Credit only in accordance with the Issuing Bank’s standard operating procedures.


 


1









 





			
	 	 	 
	UTi Worldwide Inc.
	 	Letter of Credit Agreement






Section 1.2 Conditions to Each Issuance after the Effective Date. The Issuing Bank may issue Letters of Credit on any Credit Date after the Effective Date in
its sole discretion, after taking into account any terms and conditions as it determines are
relevant to such issuance and the circumstances, including without limitation, the following
conditions precedent:




(i) the Issuing Bank shall have received a fully executed and delivered Issuance
Notice;




(ii) as of such Credit Date, (a) the representations and warranties contained herein
and in the other Financing Agreements shall be true and correct in all material respects on
and as of that Credit Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date and (b) the Issuing Bank’s issuance of such
Letter of Credit shall (a) not violate any applicable law or regulation (including, without
limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (b) not subject the Issuing Bank to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on the date
hereof;




(iii) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable issuance of a Letter of Credit that would
constitute an Event of Default or a Default; and




(iv) on or before the date of issuance of any Letter of Credit, the Issuing Bank shall
have received all other information reasonably required by the applicable Issuance Notice
and any letter of credit applications or similar documentation reasonably requested by the
Issuing Bank.



The Issuing Bank shall be entitled to request and receive, prior to the issuance of a Letter
of Credit, additional information reasonably satisfactory to the requesting party confirming the
satisfaction of the conditions precedent set forth in clauses (ii) and (iii) above, if, in the good
faith judgment of the Issuing Bank such request is warranted under the circumstances.



Section 1.3 Letters of Credit in Optional Currency. (a) The Company must select the currency of a Letter of Credit issued after the Effective
Date in its Issuance Notice.



(b) A Letter of Credit issued after the Effective Date may be denominated in Dollars or any
Optional Currency.



(c) Notwithstanding any other term of this Agreement, in the event that (i) the Optional
Currency requested is not readily available to it in the Relevant Interbank Market in the amount
and for the period required or (ii) issuing a Letter of Credit in the proposed Optional Currency
might contravene any law or regulation applicable to it, the Issuing Bank will promptly notify the
Company to that effect and the parties hereto agree to enter into an amendment hereto
and/or to the applicable Letter of Credit, which is reasonably acceptable to both parties, to
resolve such situation.


 


2









 






			
	 	 	 
	UTi Worldwide Inc.
	 	Letter of Credit Agreement






(d) With respect to Letters of Credit denominated in Optional Currencies, the Issuing Bank
shall at monthly intervals after the Effective Date (on a Business Day chosen by the Issuing Bank
in its sole discretion) recalculate the U.S. Dollar Amount of that Letter of Credit by notionally
converting the outstanding amount of that Letter of Credit into U.S. Dollars on the basis of the
Issuing Bank’s Spot Exchange Rate on the date of calculation.



(e) The Company must, if requested by the Issuing Bank within 5 days of any calculation under
paragraph (d) above, ensure that sufficient Credit Support pursuant to Section 3.5 with respect to
the relevant Letter of Credit are made in order to prevent the U.S. Dollar Amount of all of the
Letters of Credit outstanding from exceeding the Maximum Draw Amount.



(f) Unless a Financing Agreement specifies that payments under it are to be made in a
different manner, the currency of each amount payable under the Financing Agreements is the
currency in which the relevant amount in respect of which it is payable is denominated.



SECTION 2 [INTENTIONALLY OMITTED]



SECTION 3 PROVISIONS APPLICABLE TO ALL LETTERS OF CREDIT



Section 3.1 Responsibility of Issuing Bank. In determining whether to honor any drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Bank shall be responsible only to examine the documents delivered under such
Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between the Company and the
Issuing Bank, the Company assumes all risks of the acts and omissions of, or misuse of the Letters
of Credit issued by the Issuing Bank, by the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, the Issuing Bank shall not be responsible
for: (i) the form, validity, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any such Letter of Credit, even if
it should in fact prove to be in any or all respects invalid, inaccurate, fraudulent or forged;
(ii) the validity of any instrument transferring or assigning or purporting to transfer or assign
any such 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; (iii) failure of the beneficiary
of any such Letter of Credit to comply fully with any conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such Letter of Credit or of
the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Issuing Bank, including any act or omission, whether rightful or
wrongful, of any present or
future de jure or de facto government or Governmental Authority; none of the above shall
affect or impair, or prevent the vesting of, any of the Issuing Bank’s rights or powers hereunder.
Without limiting the foregoing and in furtherance thereof, any action taken or omitted by the
Issuing Bank under or in connection with the Letters of Credit or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not give rise to any liability on
the part of the Issuing Bank to the Company. Notwithstanding anything to the contrary contained in
this Section 3.1, the Company shall retain any and all rights it may have against the Issuing Bank
for any liability arising solely out of the bad faith, gross negligence or willful misconduct of
the Issuing Bank.


 


3









 






			
	 	 	 
	UTi Worldwide Inc.
	 	Letter of Credit Agreement






Section 3.2 Reimbursement by the Company of Amounts Drawn or Paid Under Letters of
Credit. In the event the Issuing Bank has determined to honor a drawing under a Letter of Credit,
it shall immediately notify the Company, and the Company shall reimburse the Issuing Bank on or
before (i) the Business Day immediately following the date on which such drawing is honored (the
“Reimbursement Date”) in the event the Issuing Bank delivers such notice to the Company on or
before 12:00 p.m. (New York City time) on the Business Day immediately before the Reimbursement
Date or (ii) the second Business Day immediately following the Reimbursement Date in the event the
Issuing Bank delivers such notice to the Company after 12:00 p.m. (New York City time) on the
Business Day immediately before the Reimbursement Date, in each case in an amount in the currency
of the drawing under such Letter of Credit and in same day funds equal to the amount of such
honored drawing. Notices to the Company made pursuant to this Section 3.2 shall be made to:




UTi Worldwide Inc.

P.O. Box 228

Picquerel House

L’Islet

St. Sampson

Guernsey CYI 3NY

Channel Islands

Attention: Global Finance Treasury Director or such other address as provided by the Company
in writing to the Issuing Bank from time to time.

Fax: 44 1481 245 100




With a copy to:

Craig Braun

Fax: 562-552-9496

Lawrence Samuels

Fax: 562-552-9489



Section 3.3 Obligations Absolute. The obligation of the Company to reimburse the Issuing Bank for drawings honored under the
Letters of Credit issued by it and the obligations of the Issuing Bank hereunder shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof
under all circumstances including any of the following circumstances: (i) any lack of validity
or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or
other right which the Company or the Issuing Bank may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the
Issuing Bank or any other Person or, in the case of the Issuing Bank, against the Company, whether
in connection herewith, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between the Company or any of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid or


 


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insufficient in
any respect or any statement therein being untrue or inaccurate in
any respect; (iv) payment by the Issuing Bank under any Letter of Credit against presentation of a draft or other document which
does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in
the business, operations, properties, assets, condition (financial or otherwise) or prospects of
the Company or any of its Subsidiaries; (vi) any breach hereof or any other Financing Agreements by
any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing; or (viii) the fact that an Event of Default or a Default shall have occurred
and be continuing; provided, in each case, that payment by the Issuing Bank under the applicable
Letter of Credit shall not have constituted bad faith, gross negligence or willful misconduct of
the Issuing Bank under the circumstances in question.



Section 3.4 Interest and Fees. (a) The Company agrees to pay to the Issuing Bank, with respect to drawings honored under
any Letter of Credit issued by the Issuing Bank, interest on the amount paid by the Issuing Bank in
respect of each such honored drawing from the date such drawing is honored to but excluding the
date of reimbursement by the Company at a rate equal to the Base Rate plus 5.00% per annum.
Interest payable pursuant to this Section 3.4(a) shall be computed on the basis of a 365/366-day
year for the actual number of days elapsed in the period during which it accrues, and shall be
payable on demand or on the Reimbursement Date.




(b) The Company agrees to pay to the Issuing Bank:




(i) with respect to each outstanding Letter of Credit, letter of credit fees equal to
the greater of (A) (1) 1.50% per annum, times (2) the daily maximum amount available to be
drawn under such outstanding Letter of Credit (regardless of whether any conditions for
drawing could then be met and determined as of the close of business on any date of
determination) and (B) $75.00, for each calendar quarter ended after the Effective Date; and




(ii) such documentary, processing, correspondent and other usual and customary fees and
charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in
accordance with the Issuing Bank’s standard schedule for such charges and as in effect at
the time of such issuance, amendment, transfer or payment, as the case may be.



All fees referred to in this Section 3.4(b) shall be calculated on the basis of a 360-day year
and the actual number of days elapsed and shall be payable quarterly in arrears on the fifth
Business Day after notification by the Lender to the Company of the amount owed for each
fiscal quarter of the Company, on the Maturity Date and any date on which the Letters of Credit
have been cancelled or the Company has provided Credit Support with respect thereto.



(c) Upon the occurrence and during the continuation of any Event of Default, all fees,
interest or other amounts owed hereunder with respect to Letters of Credit shall thereafter bear
interest (including post-petition interest in any proceeding under any bankruptcy or insolvency
laws) payable on demand at a rate that is 2.00% per annum in excess of the interest rate or fee
that would otherwise be payable hereunder prior to the occurrence of such Event of Default.
Payment or acceptance of the increased rates provided for in this Section 3.4(d) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of the Issuing Bank.


 


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(d) If the Company provides Credit Support with respect to any part of a Letter of Credit then
the letter of credit fee pursuant to Sections 3.4(b)(ii) shall continue to be payable until the
expiry or termination of the Letter of Credit.



(e) In addition to the foregoing fees, the Company agrees to pay to the Issuing Bank an
amendment fee in the amount and at the time separately agreed upon. The Company further
acknowledges and agrees that, notwithstanding the modifications to the Existing Facility
effectuated on the Effective Date, all fees and other amounts accrued under the terms of the
Existing Facility on or prior to the Effective Date will continue to be due at the times agreed
upon in the Existing Facility.



Section 3.5 Credit Support. (a) A Letter of Credit is repaid or prepaid to the extent that:




(i) the Company provides cash collateral or a backstop letter of credit with respect to
that Letter of Credit in accordance with Section 3.5(b);




(ii) the maximum amount payable under the Letter of Credit is reduced or cancelled in
accordance with its terms;




(iii) the relevant Letter of Credit has been returned to the Issuing Bank and the
Issuing Bank is satisfied that it has no further liability under that Letter of Credit; or




(iv) the Issuing Bank is otherwise satisfied that it has no further liability under
that Letter of Credit.



The amount by which a Letter of Credit is repaid or prepaid under sub-paragraphs (i) and (ii)
above is the amount of the relevant cash collateral or a backstop letter of credit, reduction or
cancellation.



(b) “Credit Support” means the Company has provided to the Issuing Bank (or one of its
Affiliates) with respect to a Letter of Credit:




(i) payment of an amount sufficient to provide the Issuing Bank 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 Issuing Bank (or one of its Affiliates) 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 Issuing
Bank for which the cash collateral is provided under this clause;


 


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(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 Issuing Bank
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 Global Credit
Facilities, the 2009 Notes and the 2011 Notes on a pari passu basis); and




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




(ii) receipt of a backstop letter of credit in a face amount sufficient to provide the
Issuing Bank 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 backstop letter of credit is on terms and conditions and from a financial
institution acceptable to the Issuing Bank in its sole discretion.



(c) The outstanding amount of a Letter of Credit at any time is the maximum amount (actual or
contingent) that is or may be payable by the Company in respect of that Letter of Credit at that
time.



Section 3.6 Maturity. On or prior to the Business Day prior to the Maturity Date, the Company shall provide
Credit Support in accordance with Section 3.5(b) with respect to the aggregate amount available for
drawing under each Letter of Credit that is anticipated to remain outstanding after the Maturity
Date.



Section 3.7 Evidence of Debt. The Issuing Bank shall maintain on its internal records an account or accounts evidencing
the Indebtedness of the Company to the Issuing Bank, including the amounts of the Letters of Credit
and other Obligations and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on the Company, absent manifest error; provided, failure to make
any such recordation, or any error in such recordation, shall not affect the Company’s Obligations.



Section 3.8 Irish Insurance Acts. For the avoidance of doubt, the Issuing Bank shall not issue any Letter of Credit either
(i) at the request of or for the account of any Person incorporated in Ireland or (ii) to any
Person resident in Ireland, in each case where the Issuing Bank is not duly authorized to carry on
the business of issuing contracts of suretyship in Ireland (or otherwise exempted under the laws of
Ireland from the requirement to have any such authorization) or where the issuance of any such
Letter of Credit by the Issuing Bank would otherwise contravene any law of Ireland.



Section 3.9 Increased Costs. If the Issuing Bank determines in good faith that the introduction or effectiveness of, or
any change in any treaty, international agreement, law, rule or regulation or compliance with any
directive, guideline or request from any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law), or any change in generally accepted accounting
principles or in the Issuing Bank’s accounting for any Letter of Credit (including changing the
capital adequacy conversion factor), or any change in the interpretation of any of foregoing, (each
of the foregoing, a “Regulatory Change”): (i) affects or would affect the amount of capital,
insurance or reserves (including special deposits or similar requirements, required or expected to
be maintained by the Issuing Bank or any corporation controlling the Issuing Bank or otherwise
increases the costs of, or reduces the amount received or receivable by, the Issuing Bank or any
corporation controlling the Issuing Bank, and the Issuing Bank determines in good faith that the
amount of such capital, insurance or reserve (including any special deposit or similar requirement)


 


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or other increased cost (including any tax or insurance premium) or reduction, as the case may be,
is increased by or based upon the existence of this Agreement, any Letter of Credit or any other
Financing Agreement or (ii) imposes, modifies or deems applicable any reserve (including, without
limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits with or for the account of, or credit
extended by the Issuing Bank with respect to Letters of Credit, or imposes on the Issuing Bank any
other condition affecting this Agreement or the Letters of Credit, and the Issuing Bank determines
in good faith that the result of any of the foregoing is to increase the cost to, or to impose a
cost on the Issuing Bank of issuing or maintaining any Letter of Credit or of making any payment or
disbursement under any Letter of Credit, or to reduce the amount of any sum received or receivable
by the Issuing Bank under this Agreement (any such increased cost and any such reduction in such
sum being “Increased Costs”), then the Company shall pay the Issuing Bank on demand from time to
time additional amounts sufficient in the Issuing Bank’s good faith judgment to compensate for the
increase of reduction, as the case may be; provided that (i) such additional amount shall only be
payable to the Issuing Bank to the extent that such cost is not unique to the Company and would
also apply to another borrower similarly situated to the Company vis a-vis the Issuing Bank which
was provided facilities subject to substantially the same terms and conditions as the Company and
(ii) the Issuing Bank shall use reasonable efforts to designate a different lending office for
funding or booking its Letters of Credit or to assign its rights and obligations hereunder to
another of the offices, branches or affiliates, if, in the judgment of the Issuing Bank, such
designation or assignment (i) would eliminate or reduce the amount of Increased Costs in the future
and would not subject the Issuing Bank to any unreimbursed cost or expense and would not otherwise
be disadvantageous to the Issuing Bank. A certificate of the Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate the Issuing Bank or its holding
company, as the case may be, as specified in this Section 3.11 and delivered to the Company
shall be conclusive absent manifest error. The provisions of this Section 3.11 shall survive
termination of this Agreement. Each payment under this Section 3.11 shall be required to be made
solely to the extent that funds are available therein or therefrom. For the avoidance of doubt,
this Section 3.11 shall apply to all requests, rules, guidelines or directives concerning liquidity
and capital adequacy issued by any United States regulatory authority (i) under or in connection
with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii)
in connection with the implementation of the recommendations of the Bank for International
Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any
successor or similar authority), regardless of the date adopted, issued, promulgated or
implemented.



SECTION 4 CONDITIONS TO EFFECTIVENESS.



This Agreement shall become effective as of the date on which each of the following conditions
shall have been satisfied (or waived in accordance with Section 18 of the Existing Facility):


 


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



Section 4.2 Performance; No Default. The Obligors shall have performed and complied in all material respects with all agreements
and conditions contained in this Agreement and the other Financing Agreements to which they are a
party required to be performed or complied with by each of them prior to or on the Effective Date
and after giving effect to the deemed issuance of the Letters of Credit on the Effective Date, no
Default or Event of Default shall have occurred and be continuing.



Section 4.3 Closing Certificates. (a) Officer’s Certificate. Each Obligor shall have delivered to the Issuing Bank an
Officer’s Certificate (or a certificate from a person authorized by the board of directors (or
equivalent governing body) of the Obligor to sign documents on behalf of the Obligor in connection
with this Agreement), dated the Effective Date, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.



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



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


 


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Section 4.5 Issuance Permitted By Applicable Law, Etc. On the Effective Date, the Issuing Bank’s agreements with respect to the Existing Letters
of Credit hereunder shall (a) not violate any applicable law or regulation (including, without
limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (b)
not subject the Issuing Bank to any tax, penalty or liability under or pursuant to any applicable
law or regulation, which law or regulation was not in effect on the Effective Date. If requested
by the Issuing Bank, the Issuing Bank shall have received an Officer’s Certificate certifying as to
such matters of fact as the Issuing Bank may reasonably specify to enable the Issuing Bank to
determine whether such issuance is so permitted.



Section 4.6 [Intentionally Omitted].



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



Section 4.8 [Intentionally Omitted].



Section 4.9 Changes in Corporate Structure. No Obligor shall have changed its jurisdiction of incorporation or organization, as
applicable, or been a party to any merger or consolidation or succeeded to all or any substantial
part of the liabilities of any other entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5. The debt and equity structure of the Group (and
the terms thereof) shall not be materially different than the structure disclosed to the Issuing
Bank on or prior to the date of the Summary of Terms.



Section 4.10 Acceptance of Appointment to Receive Service of Process. The Issuing Bank shall have received evidence of the acceptance by Corporation Service
Company of the appointment and designation provided for by Section 24.8(e) for the period from the
Effective Date to the Maturity Date (and the payment in full of all fees in respect thereof).



Section 4.11 [Intentionally Omitted].



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



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



Section 4.14 2006 Notes. A portion of the proceeds of the issuance of the 2011 Notes shall be used to pay off in
full the 2006 Notes.



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


 


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



Section 4.17 No Material Adverse Effect. Since January 31, 2011, no event, circumstance or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.



Section 4.18 Leverage Ratio. The Company shall have delivered to the Issuing Bank certificate of the treasurer of the
Company certifying that the pro forma ratio of Consolidated Total Debt to Consolidated EBITDA
(which shall be calculated reflecting the transactions contemplated hereby on a pro-forma basis and
shall be acceptable to the Issuing Bank) was not greater than 2.50:1.00 for the twelve-month period
ended as of April 30, 2011.



Section 4.19 USA Patriot Act. The Issuing Bank shall have received all documentation and other information required by
bank regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations, including without limitation the USA Patriot Act.



Section 4.20 Solvency Certificate. The Issuing Bank shall have received a solvency certificate from the chief financial
officer of the Company in form and substance satisfactory to the Issuing Bank.



SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS




Each Obligor, jointly and severally, represents and warrants to the Issuing Bank on each
Credit Date that:



Section 5.1 Organization; Power and Authority. Each Obligor is a corporation or other legal entity duly incorporated or organized, validly
existing and, where legally applicable, in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation or other legal entity, where
applicable, and, where legally applicable, is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Each Obligor has the corporate (or other organizational) power
and authority to own or hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and deliver the Financing
Agreements to which it is a party and to perform the provisions hereof and thereof.



Section 5.2 Authorization, Etc. The Financing Agreements to which each Obligor is a party have been duly authorized by all
necessary corporate or other entity action on the part of each Obligor, and each Financing
Agreement constitutes 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).


 


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Section 5.3 Disclosure. This Agreement, the SEC Reports, and the documents, certificates or other writings
delivered to the Issuing Bank by or on behalf of the Obligors in connection with the transactions
contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule
5.5 (this Agreement, the SEC Reports, and such documents, certificates or other writings identified
in Schedule 5.3, and financial statements identified in Schedule 5.5, being referred to,
collectively, as the “Disclosure Documents”), taken as 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. As of the Effective Date, any
projections and pro forma financial information contained in such materials delivered on or prior
to the Effective Date are based upon good faith estimates and assumptions believed by the Company
to be reasonable at the time made, it being recognized by the Issuing Bank that such projections as
to future events are not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results. Except as disclosed in the
Disclosure Documents, since January 31, 2011, there has been no change in the financial condition,
operations, business, properties or prospects of the Company, or any Subsidiary except changes that
individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect. As of the Effective 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.



Section 5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates. (a) As of the Effective Date, Schedule 5.4 contains (except as noted therein) complete and
correct lists of each Obligor’s (i) Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by each Obligor and each other
Subsidiary and whether such Subsidiary will on the Effective 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 5.4 as being owned by each Obligor and its
Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by each
Obligor or another Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule
5.4).



(c) Each Subsidiary (other than the Obligors) identified in Schedule 5.4 is a corporation or
other legal entity duly incorporated or organized, validly existing and, where legally applicable,
in good standing under the laws of its jurisdiction of incorporation or organization, and is duly
qualified as a foreign corporation, where applicable, or other legal entity and, where legally
applicable, is in good standing in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other
organizational power and authority, as the case may be, to own or hold under lease the properties
it purports to own or hold under lease and to transact the business it transacts and proposes to
transact except where the failure to have such power or authority could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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(d) As of the Effective Date, 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 5.4 under the heading “Agreements Restricting
Dividends” and customary limitations imposed by applicable law or similar statutes) restricting the
ability of such Subsidiary to pay dividends out of profits or make any other similar distributions
of profits to any Obligor or any of its Subsidiaries that owns outstanding or issued shares of
capital stock, shares or similar equity interests of such Subsidiary.



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



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



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



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



Section 5.6 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by each Obligor of the Financing Agreements to
which it is a party will not (a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of any Obligor or any
Subsidiary
under, any Material indenture, mortgage, deed of trust, loan, purchase or credit agreement,
lease, corporate charter, memorandum and articles of association, regulations or by-laws, or any
other Material agreement or instrument to which any Obligor or any Subsidiary is bound or by which
any Obligor or any Subsidiary or any of their respective properties may be bound or affected, (b)
conflict with or result in a breach of any of the terms, conditions or provisions of any Material
order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to
any Obligor or any Subsidiary or (c) violate any provision of any Material statute or other
Material rule or regulation of any Governmental Authority applicable to any Obligor or any
Subsidiary.


 


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Section 5.7 Governmental Authorizations, Etc.
Except as disclosed on Schedule 5.7, as of the Effective Date, no consent, approval or
authorization of, or registration, filing or declaration with, any Governmental Authority is
required in connection with the execution, delivery or performance by any Obligor of the Financing
Agreements to which it is a party, including, without limitation, any thereof required in
connection with the obtaining of Dollars to make payments under any Financing Agreement and the
payment of such Dollars to Persons resident in the United States of America, except for the filing
of Form 8 K with the SEC. Except as disclosed in Schedule 5.7, it is not necessary to ensure the
legality, validity, enforceability or admissibility into evidence in the Applicable Jurisdiction of
any Financing Agreement that any thereof or any other document be filed, recorded or enrolled with
any Governmental Authority, or that any such agreement or document be stamped with any stamp,
registration or similar transaction tax.



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



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



Section 5.9 Taxes. Except as set forth on Schedule 5.9, the Obligors and their Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to
be due and payable on such returns and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any taxes and
assessments (i) for purposes of making this representation on the Effective Date, the amount of
which is not individually or in the aggregate Material (or for purposes of making this
representation after the Effective Date, the amount that would 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 Company). No
Obligor knows of any basis for any other tax or assessment that could reasonably be expected to
have a Material Adverse Effect. The charges, accruals and reserves on the books of each Obligor
and its Subsidiaries in respect of Federal, state or other taxes for all fiscal periods are
adequate.


 


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



Section 5.10 Title to Property; Leases. Each Obligor and its Subsidiaries have good and sufficient title to their respective
properties that individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have
been acquired by any Obligor or any Subsidiary after said date (except as sold or otherwise
disposed of in the ordinary course of business 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.



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



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



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



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


 


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



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



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



(e) The execution and delivery of the Financing Agreements by the Obligors and the issuance of
the Letters of Credit for the benefit of the Company hereunder will not involve any non-exempt
transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which
a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.



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


 


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Section 5.13 [Intentionally Omitted].



Section 5.14 Use of Proceeds; Margin Regulations. (a) The Letters of Credit will only (i) consist of the Existing Letters of Credit, each of
which shall be deemed to be issued hereunder, and (ii) with respect to new Letters of Credit issued
after the Effective Date for the account of the Company, to support the general corporate purposes
of the Company and its Subsidiaries, Joint Ventures and entities of which the Company, either
directly or indirectly, owns 50% or less of the outstanding equity interests; provided that Letters
of Credit will not be outstanding for the benefit of the Joint Ventures and entities of which the
Company, either directly or indirectly, owns 50% or less of the outstanding equity interests in an
aggregate face amount exceeding $3,000,000 at any time.



(b) The Company will apply the proceeds of the sale of the 2011 Notes (i) to repay the loans
under the Existing Note Purchase Agreement in their entirety, (ii) for working capital and (iii)
for other corporate purposes. The application of such proceeds will not result in a violation of
any financial assistance laws under any Applicable Jurisdiction. The Letters of Credit hereunder
will not 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.



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


 


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



(c) Except as set forth in Schedule 5.15, as of the Effective Date, 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 South African Facilities, the
Global Credit Facilities and the Notes Financing Agreements, which limits the amount of, or
otherwise imposes restrictions on the incurring of, Indebtedness of such Obligor.



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



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



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



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


 


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



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



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



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



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



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



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



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


 


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



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



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



Section 5.23 Insolvency. As at the Effective Date:



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



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



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




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



SECTION 6 REPRESENTATION OF THE ISSUING BANK




The Issuing Bank acknowledges that (a) the Company has made available, a reasonable time prior
to the date of this Agreement, information and the opportunity to ask questions and receive answers
regarding the Obligors and the Letters of Credit and (b) the Issuing Bank has been furnished with
such information as the Issuing Bank has requested.



SECTION 7 INFORMATION AS TO COMPANY



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



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




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


 


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



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




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




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



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




(A) an opinion thereon of an independent registered public accounting firm of
recognized international standing without any Impermissible Qualification, 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


 


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




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






(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i) each
financial statement, report, circular, notice or proxy statement or similar document (including any
form of compliance certificate related to the Global Credit Facilities and any consolidation
working papers) sent by any Obligor or (so long as the 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 the Issuing Bank), and each prospectus
and all amendments thereto filed by any Obligor or any Subsidiary with the SEC or any similar
Governmental Authority or securities exchange and of all press releases and other statements made
available generally by any Obligor to the public concerning developments that are Material;
provided that the Company shall be deemed to have made deliveries required under this Section
7.1(c)(ii) if it shall have timely made Electronic Delivery thereof (with notice of such Electronic
Delivery to the Issuing Bank within 5 Business Days of the filing thereof);




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




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


 


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




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




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




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




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



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



(g) Requested Information — with reasonable promptness, such other data and information
relating to the business, operations, affairs, financial condition, assets or properties of any
Obligor or any of its Subsidiaries (including, but without limitation, actual copies of the
Company’s Form 10-Q and Form 10-K) or relating to the ability of any Obligor to perform its
obligations hereunder as from time to time may be reasonably requested by the Issuing Bank;



(h) Quarterly Consolidating Working Papers — For so long as Section 9.15 is applicable (with
respect to Section 9.12 under the 2009 Note Purchase Agreement), within 45 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly
fiscal period of each such fiscal year which shall be within 90 days after the end of such fiscal
year), copies of unaudited consolidating working papers for each Subsidiary Guarantor providing the
information necessary to determine the Obligors’ compliance with Section 9.15 (with respect to
Section 9.12 under the 2009 Note Purchase Agreement) hereof;


 


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(i) Certificate of Financial Undertaking — Promptly and in any event within 45 days after the
second and fourth quarterly fiscal periods of each such fiscal year, a certificate of the chief
financial officer or the treasurer of the Company reflecting the contribution of Consolidated
EBITDA and the total assets of the Subsidiary Guarantors as of such time (as determined in
accordance with GAAP) to the consolidated position of the Company and its Subsidiaries for each
such semi-annual period; and



(j) Projections — Within three days of delivery to the Company’s board of directors and in
any event no later than May 31st of each year, a consolidated financial forecast for the Company
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 the Company and its Subsidiaries, which forecast shall
state the assumptions used in the preparation thereof.



Section 7.2 Officer’s Certificate. Each set of financial statements delivered to the Issuing Bank pursuant to Section 7.1(a)
or Section 7.1(b) shall be accompanied by a certificate of the chief financial officer or the
treasurer of the Company setting forth:



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



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



Section 7.3 Visitation.
The Obligors shall permit the representatives of the Issuing Bank:



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


 


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



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



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



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



Promptly after a request therefor from the Issuing Bank, the Obligors will provide the Issuing Bank
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 the Issuing Bank under
circumstances described in this Section 7.4.



SECTION 8 [INTENTIONALLY OMITTED]



SECTION 9 AFFIRMATIVE COVENANTS



Each Obligor, jointly and severally, covenants that until payment in full of all Obligations
and cancellation or expiration of all Letters of Credit or provision of Credit Support with respect
to all Letters of Credit:



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


 


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



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



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



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


 


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



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



Section 9.8 [Intentionally Omitted].



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



Section 9.10 Additional Guarantors



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



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




(c) The Company agrees that:




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


 


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



Notwithstanding the foregoing, each of (i) the South African Subsidiaries (other than Pyramid
Freight BVI to the extent permitted pursuant to Section 23.31 hereunder) to the extent that they do
not become an obligor or guarantor under any Global Credit Facility or the Notes Financing
Agreements, (ii) UTi Logistics Israel Limited (“UTi Israel”), so long as UTi Israel is not a
Wholly-Owned Subsidiary of the Company and to the extent it does not become an obligor or guarantor
under any Global Credit Facility or the Notes Financing Agreements, and (iii) any other Subsidiary
to the extent it does not become an obligor or guarantor under any Global Credit Facility or the
Existing Financing Agreements and to the extent not permitted by applicable law to execute and
deliver a Joinder Agreement to become a Subsidiary Guarantor, shall not be required to deliver a
Joinder Agreement hereunder.



Section 9.11 Release of Subsidiary Guarantors; Substitution of Subsidiary Guarantors.



(a) Upon notice by the Company to the Issuing Bank (which notice shall contain a certification
by the Company as to the applicable matters specified below), a Subsidiary Guarantor shall cease to
be an Obligor under this Agreement (i) if 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 Financing Agreements or
(ii) in connection with the execution and delivery of a Joinder Agreement from a
successor Subsidiary and compliance with Section 9.10; provided, that, both immediately before
and after giving effect to any such release (and execution and delivery of such Joinder Agreement,
if any) no Default or Event of Default shall have occurred and be continuing, or would have
existed, on a pro forma basis, if such release (and Joinder Agreement, if any) had been effective
as of the end of the most recent fiscal quarter. Notwithstanding anything to the contrary in this
Agreement, no Subsidiary Guarantor will be released from its obligations under this Agreement
unless concurrently with such release one or more replacement Subsidiary Guarantor or Subsidiary
Guarantors are added to this Agreement pursuant to Section 9.10 that have earnings before interest,
taxes, depreciation and amortization and total assets no less than those of the Subsidiary
Guarantor being released and (ii) are located in jurisdictions reasonably acceptable to the Issuing
Bank.


 


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(b) If the Issuing Bank determines at any time that execution delivery and performance of any
term of this Agreement by any Subsidiary Guarantor or enforcement by the Issuing Bank of this
Agreement against any Subsidiary Guarantor could adversely affect the Issuing Bank 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 Issuing Bank and each
Obligor agree that such Subsidiary Guarantor shall be relieved, effective as of the date specified
by the Issuing Bank, 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 9.10 that has or have in the aggregate (i) earnings before interest, taxes,
depreciation and amortization and (ii) total assets no less than those of the Subsidiary Guarantor
being released.



(c) As of the Effective Date, the Issuing Bank hereby agrees to release each of the following
Subsidiaries as Subsidiary Guarantors under this Agreement; UTi Africa Services Limited. UTi Asia
Pacific Limited, UTi Hungary Kft, UTi Ireland Limited, UTi Worldwide (M) Sdn, Bhd., African
Investments B.V., UTi (Netherlands) Holdings B.V., UTi (N.A.) Holdings N.V., UTi New Zealand
Limited, UTi (Taiwan) Ltd., UTi Logistics (Taiwan) Ltd., UTi, (U.S.) Holdings Inc., UTi, Services,
Inc., UTi Brokerage, Inc., UTi Logistics, Inc., Vanguard Cargo Systems, Inc., Market Logistics
Services, Ltd. and Market Industries, Ltd.



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



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



Section 9.14 Further Assurances. At any time or from time to time upon the request of the Issuing Bank, each Obligor will,
at its expense, promptly execute, acknowledge and deliver such further documents and do such other
acts and things as the Issuing Bank may reasonably request in order to effect fully the purposes of
the Financing Agreements. In furtherance and not in limitation of the foregoing, each Obligor
shall take such actions as the Issuing Bank may reasonably request from time to time to ensure that
the Obligations are guarantied by the Subsidiary Guarantors.


 


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Section 9.15 Additional Restrictions. If at any time the Company or any Subsidiary Guarantor is a party to or shall enter into
any agreement, instrument or other document with respect to any Indebtedness that provides for more
than U.S.$15,000,000 (or its equivalent in any other currency) in principal amount of borrowings or
availability, including, without limitation, any agreement existing on the Effective 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 Issuing Bank than relevant
similar covenants or like provisions contained in this Agreement (herein referred to as “Improved
Covenants” and, together with New Covenants, “Additional Covenants”), then such Additional
Covenants and all related provisions and definitions shall be deemed incorporated by reference into
Section 7.2(a), Section 10 and Section 11(c) of this Agreement, mutatis mutandis, as if set forth
fully in this Agreement. The Company shall:



(1) provide a copy of such Additional Covenants and all related provisions and definitions to
the Issuing Bank promptly upon entering into the Reference Agreement or the relevant amendment or
modification thereof (if entered into after the Effective Date), including with such copy a notice
to the Issuing Bank, provided that the failure of the Company to provide a copy of such Additional
Covenants to the Issuing Bank shall not adversely affect the automatic incorporation of the
Additional Covenants into this Agreement as provided above in this Section 9.15; and



(2) as promptly as possible following delivery of such copy, provide the draft of a statement
of incorporation (a “Memorialization”) to be executed by the Company and the Issuing Bank, 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 mutandis.



If the Company fails to provide a draft of a Memorialization, then the Issuing Bank may
produce a draft for the consideration of the Company. Any Memorialization executed and delivered
by the Company and by the Issuing Bank 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
Issuing Bank and the Company to execute and deliver any Memorialization shall not adversely affect
the automatic incorporation of the Additional Covenants into this Agreement as provided above in
this Section 9.15.



If (A) any Additional Covenant that has been incorporated herein pursuant to this Section 9.15
is subsequently amended or modified in the relevant Reference Agreement with the effect that such
Additional Covenant is made less restrictive on the Company, such Additional Covenant, as amended
or modified, shall not be deemed incorporated by reference into this Agreement and (B) any
Additional Covenant that has been incorporated herein pursuant to this Section 9.15 is subsequently
removed or terminated from the relevant Reference Agreement or the Company and its Subsidiary
Guarantors are otherwise no longer required to comply therewith under the relevant Reference
Agreement, the Company and its Subsidiaries, beginning on the effective date such Additional
Covenant is removed or terminated from the relevant Reference Agreement or the Company and its
Subsidiary Guarantors are otherwise no longer required to comply with such Additional Covenant,
shall still remain obligated to comply with such Additional Covenant hereunder, in each of cases
(A) and (B) above, until such time as the Issuing Bank has agreed in their sole discretion to
amend, modify, remove or terminate such Additional Covenant to conform to the Reference Agreement.


 


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



Section 9.16 2009 Notes Covenants. The Company will comply with each 2009 Covenant as in effect on the Effective Date 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 mutandis, as if
set forth fully in this Agreement.



Section 9.17 “Know Your Customer” checks. If:




(i) The introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the Effective Date;



(ii) any change in the status of an Obligor after the Effective Date; or




(iii) a proposed assignment or transfer by the Issuing Bank of any of its rights and
obligations under this Agreement in accordance with
Section 14.2,


obliges the Issuing Bank (or, in the case of paragraph (iii) above, any prospective Issuing Bank)
to comply with “know your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, each Obligor shall promptly upon the request
of the Issuing Bank supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Issuing Bank (or, in the case of the event described in paragraph (iii)
above, any prospective new Issuing Bank to carry out and be satisfied it has complied with all
necessary “know your customer” or similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Financing Agreements.



Section 9.18 Post-Effective Date Obligations. Within 20 days from the Effective Date, or such other date to which the Issuing Bank
expressly agrees, the Company, on behalf of itself, each Spanish Obligor, and the Issuing Bank
shall have formalized the ratification of the position of each Spanish Obligor 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 Procedural Law (Ley 1/2000 de 7 de enero,
Ley de Enjuiciamiento Civil) (the “Civil Procedural Law”) before a Spanish notary public, at the
expense of the Company. Within two Business Days from the execution of the notarial deed, the
Company shall have supplied to the Issuing Bank an authorized copy (primera copia autorizada) of
that deed.


 


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SECTION 10 NEGATIVE COVENANTS




Each Obligor, jointly and severally, covenants that until payment in full of all Obligations
and cancellation, expiration or cash collateralization of all Letters of Credit or receipt of
Credit Support with respect to all Letters of Credit:



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



Section 10.2 Restricted Payments. (a) Limitation. The Company will not, and will not permit any of its Subsidiaries to, at
any time, declare or make, or incur any liability to declare or make, any Restricted Payment unless
immediately after giving effect to such action no Default or Event of Default would exist. The
foregoing restriction shall not apply to (i) payment of Restricted Payments which were declared
prior to the existence of any Default or Event of Default, (ii) Restricted Payments paid to the
Company or any Wholly-Owned Subsidiary or (iii) Restricted Payments pursuant to agreements entered
into to obtain or maintain BBBEE status.



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



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



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



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



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



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



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


 


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(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 10.13 in
an amount not to exceed U.S.$90,000,000 (or its equivalent in any other currency) at any one time;



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



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



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



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



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



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


 


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



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



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



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



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



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



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



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



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


 


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(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 Issuing Bank;



(h) unsecured Indebtedness of a member of the South African Group or Pyramid Freight BVI owed
to the Company or a Subsidiary (other than a member of the South African Group or Pyramid Freight
BVI) in an amount not to exceed the lesser of (i) until the Release
Date as a result of the circumstances set forth in clause (b) thereof, the amount permitted
under the 2009 Note Purchase Agreement or (ii) U.S.$10,000,000 (or its equivalent in any other
currency);



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



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




(k) any Indebtedness incurred under the Financing Agreements;



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



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



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


 


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



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



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



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



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




(a) Dispositions in the ordinary course of business;



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



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



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


 


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




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




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



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



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



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



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


 


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



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



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



Section 10.14 No Further Negative Pledges. Except with respect to (a) specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with respect to a permitted
Disposition and (b) restrictions in the Financing Agreements, any agreements evidencing the Global
Credit Facilities, the 2009 Note Purchase Agreement, the Notes Financing Agreements, the agreements
evidencing Indebtedness listed on Schedule 5.15 by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses and similar agreements
entered into in the ordinary course of business (provided that such restrictions are limited to the
property or assets secured by such Liens or the property or assets subject to such leases, licenses
or similar agreements, as the case may be) no Obligor shall enter into any agreement prohibiting
the creation or assumption of any Lien upon any of its properties or assets, whether now owned or
hereafter acquired to the extent it would prohibit the granting of a lien required by Section 3.5
or Section 9.7 hereof.




Section 10.15 Fiscal Year. The Obligors will not and will not permit any Subsidiary to change its fiscal year end from
January 31.



SECTION 11 EVENTS OF DEFAULT




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



(a) any Obligor defaults in the payment of any reimbursement obligation with respect to any
Letter of Credit when the same becomes due and payable, whether at maturity or by declaration or
otherwise; or



(b) any Obligor defaults in the payment of any interest or any fee with respect to any Letter
of Credit or any amount payable pursuant to Section 13 or otherwise pursuant to this Agreement for
more than five Business Days after the same becomes due and payable; or


 


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(c) (i) any Subsidiary Guarantor defaults in the performance of or compliance with any term
contained in Section 23, or (ii) any Obligor defaults in the performance of or compliance with any
term contained in Section 7.1(d) or Sections 9.16, 10.2 through and including 10.8, 10.12 and
10.13; or



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



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



(f) (i) any Obligor or any Subsidiary is in default (as principal or as guarantor or other
surety) in the payment of any principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount of at least U.S.$10,000,000 (or
its equivalent in the relevant currency of payment) until such time as the 2009 Note Purchase
Agreement has been terminated and U.S.$15,000,000 (or its equivalent in the relevant currency of
payment) at all times thereafter beyond any period of grace provided with respect thereto, or (ii)
any Obligor or any Subsidiary is in default in the performance of or compliance with any term of
any evidence of any Indebtedness in an aggregate outstanding principal amount of at least
U.S.$10,000,000 (or its equivalent in the relevant currency of payment) until such time as the 2009
Note Purchase Agreement has been terminated and U.S.$15,000,000 (or its equivalent in the relevant
currency of payment) at all times thereafter or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of such default or condition
such Indebtedness has become, or has been declared (or one or more Persons are entitled to declare
such Indebtedness to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any
event or condition (other than the passage of time or the right of the holder of Indebtedness to
convert such Indebtedness into equity interests), (x) any Obligor or any Subsidiary has become
obligated to purchase or repay Indebtedness before its regular maturity or before its regularly
scheduled dates of payment in an aggregate outstanding principal amount of at least U.S.$10,000,000
(or its equivalent in the relevant currency of payment) until such time as the 2009 Note Purchase
Agreement has been terminated and U.S.$15,000,000 (or its equivalent in the relevant currency of
payment) at all times thereafter, or (y) one or more Persons have the right to require any Obligor
or any Subsidiary so to purchase or repay such Indebtedness other than (in the case of each of
clauses (i) through (iii) immediately above) Indebtedness consisting of Capital Leases if the
non-payment of such Indebtedness has resulted from the loss of the asset which is subject to the
Capital Lease to the extent the obligations under that Capital Lease are covered by insurance; or


 


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



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



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



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



(k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code
for any plan year or part thereof or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any
Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any
Plan or the PBGC shall have notified any Obligor or any ERISA Affiliate that a Plan may become a
subject of any such proceedings, (iii) the sum of (x) the aggregate “amount of unfunded benefit
liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, plus (y) the amount (if any) by which the aggregate present
value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current
value of the assets of such Non-U.S. Plans allocable to such liabilities, shall exceed
U.S.$50,000,000 (or its equivalent in any other currency), (iv) any Obligor or any ERISA Affiliate
shall have incurred or is reasonably


 


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



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



(m) a Material Adverse Effect has occurred; provided that in the event that the Company fails
to comply with clause (b) or (c) of the definition of “Material Adverse Effect” with respect to a
Subsidiary Guarantor, the Company shall have the right, until thirty calendar days after obtaining
knowledge of the occurrence of such event, to cure such failure by providing one or more
replacement Subsidiary Guarantors in accordance with Section 9.10 and such Material Adverse Effect
shall not be a Default or Event of Default until such 30 calendar day period has expired without
cure; or




(n) a Change of Control shall occur.



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



SECTION 12 REMEDIES ON DEFAULT, ETC.



Section 12.1 Acceleration. If an Event of Default with respect to any Obligor described in Section 11(g), (h) or (i)
(other than an Event of Default described in clause (i) of Section 11(g) or described in clause
(vi) of Section 11(g) by virtue of the fact that such clause encompasses clause (i) of Section
11(g)) has occurred or if any other Event of Default has occurred and is continuing, the Issuing
Bank may, at any time at its option, by notice to the Company, declare:



(i) all of the Obligors’ liabilities and obligations hereunder shall become immediately due
and payable without any election or action on the part of the Issuing Bank and (ii) sufficient
Credit Support shall be provided to the Lender pursuant to Section 3.5 with respect to the maximum
amount that may at any time be drawn under all Letters of Credit then outstanding (regardless of
whether any beneficiary under any such Letter of Credit shall have presented, or shall be entitled
at such time to present, the drafts or other documents or certificates required to draw under such
Letters of Credit) shall immediately become due and payable and held in accordance with Section
3.5, in each case without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by each Obligor. Upon any such termination of a Letter of Credit
outstanding hereunder, the Issuing Bank shall be unconditionally and irrevocably released from any
and all obligations thereunder without any further action by the Issuing Bank, beneficiary, the
Obligor or any other Person.


 


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



Section 12.3 [Intentionally Omitted]



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



Section 12.5 Executive Proceedings in Spain. (a) At the discretion of Issuing Bank, the ratification of the position of each Spanish
Obligor as Subsidiary Guarantors under this Agreement shall be formalized into 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 total aggregate
amount of the entries made of the accounts maintained by the Issuing Bank pursuant to Section 3.7.
For the purposes of Articles 571 et seq. of the Civil Procedural Law, the Obligors and the Issuing
Bank expressly agrees 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 Issuing Bank that the determination of the debt to be claimed
through the executive proceedings shall be effected by the Issuing Bank by means of the appropriate
certificate evidencing the balances shown in the relevant account(s) referred to in paragraph (b)
above. By virtue of the foregoing, to exercise executive action by the Issuing Bank 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 Issuing Bank of
the amount due by any Spanish Obligor including an excerpt of the credits and debits, including the
interest applied, which appear in the relevant account(s) referred to in paragraph (b) above,
evidencing that the determination of the amounts due and payable by the
Spanish Obligor has been calculated as agreed in this Agreement and that such amounts coincide
with the balance of such accounts, and (iii) a notarial document (acta notarial) evidencing that
the Obligors have been served notice of the amount that is due and payable.


 


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(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 Issuing Bank 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.



SECTION 13 TAX INDEMNIFICATION




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



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



(a) any Tax that would not have been imposed but for the existence of any present or former
connection between the Issuing Bank (or a fiduciary, settlor, beneficiary, member of, shareholder
of, or possessor of a power over, the Issuing Bank, if the Issuing Bank is an estate, trust,
partnership or corporation or any Person other than the Issuing Bank to whom the Letters of Credit
or any amount payable thereon is attributable for the purposes of such Tax) and the Taxing
Jurisdiction, other than the mere holding of the relevant Letter of Credit or the receipt of
payments thereunder or in respect thereof, including, without limitation, the Issuing Bank (or


 


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such
other Person described in the above parenthetical) being or having
been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or
having had an establishment, office, fixed base or branch therein, provided that this exclusion
shall not apply with respect to a Tax that would not have been imposed but for an Obligor, after
the Effective Date, opening an office in, moving an office to, reincorporating in, or changing the
Taxing Jurisdiction from or through which payments on account of this Agreement are made to, the
Taxing Jurisdiction imposing the relevant Tax;



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




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



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



The Issuing Bank agrees, subject to the limitations of clause (b) above, that it will from
time to time with reasonable promptness (x) duly complete and deliver to or as reasonably directed
by an Obligor all such forms, certificates, documents and returns provided to the Issuing Bank by
such Obligor (collectively, together with instructions for completing the same, “Forms”) required
to be filed by or on behalf of the Issuing Bank in order to avoid or reduce any such Tax pursuant
to the provisions of an applicable statute, regulation or administrative practice of the relevant
Taxing Jurisdiction or of a tax treaty between the United States or the Original Jurisdiction and
such Taxing Jurisdiction and (y) provide an Obligor with such information with respect to the
Issuing Bank as such


 


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Obligor
may reasonably request in order to complete any such Forms, provided that nothing in this Section 13 shall require the Issuing Bank to provide
information with respect to any such Form or otherwise if in the opinion of the Issuing Bank such
Form or disclosure of information would involve the disclosure of tax return or other information
that is confidential or proprietary to the Issuing Bank, and provided further that each the Issuing
Bank shall be deemed to have complied with its obligation under this paragraph with respect to any
Form if such Form shall have been duly completed and delivered by the Issuing Bank to an Obligor or
mailed to the appropriate taxing authority (which shall be deemed to occur when such Form is
submitted to the United States Internal Revenue Service in accordance with instructions contained
in such Form), whichever is applicable, within 60 days following a written request of an Obligor
(which request shall be accompanied by copies of such Form and English translations of any such
Form not in the English language) and, in the case of a transfer of all or a portion of its rights
and obligations under this Agreement, at least 90 days prior to the relevant interest payment date.



On or before the Effective Date the Company will furnish the Issuing Bank with copies of the
appropriate Form (and English translation if required as aforesaid) currently required to be filed
in the British Virgin Islands pursuant to clause (b) of the first paragraph of this Section 13, if
any, and in connection with the transfer of the Issuing Bank’s obligation to issue Letters of
Credit hereunder the Company will furnish the transferee of the Issuing Bank’s obligation to issue
Letters of Credit hereunder with copies of any Form and English translation then required.



If any payment is made by an Obligor to or for the account of the Issuing Bank after deduction
for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this
Section 13, then, if the Issuing Bank at its sole discretion determines that it has received or
been granted a refund of such Taxes, the Issuing Bank shall, to the extent that it can do so
without prejudice to the retention of the amount of such refund, reimburse to such Obligor such
amount as the Issuing Bank shall, in its sole discretion, determine to be attributable to the
relevant Taxes or deduction or withholding. Nothing herein contained shall interfere with the
right of the Issuing Bank to arrange its tax affairs in whatever manner it thinks fit and, in
particular, the Issuing Bank shall not be under any obligation to claim relief from its corporate
profits or similar tax liability in respect of such Tax in priority to any other claims, reliefs,
credits or deductions available to it or (other than as set forth in clause (b) above) oblige the
Issuing Bank to disclose any information relating to its tax affairs or any computations in respect
thereof.



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


 


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



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



The obligations of the Obligors under this Section 13 shall survive the payment in full of all
amounts payable under this Agreement and the other Financing Agreements and cancellation or
expiration of all Letters of Credit, or provision of Credit Support with respect to all Letters of
Credit and the provisions of this Section 13 shall also apply to successive transferees of all or a
portion of the Issuing Bank’s rights and obligations under this Agreement.



SECTION 14 ASSIGNMENT AND PARTICIPATION



Section 14.1 [Intentionally Omitted].



Section 14.2 Assignment and Participation. (a) The Issuing Bank may assign all or a portion of its rights and obligations under this
Agreement and/or sell or otherwise dispose of all or a portion of any of its claims in any case,
proceeding or other action commenced by or against the Obligors under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to it or seeking to adjudicate
it a bankrupt or insolvency, or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to it or its debts, in each
case, so long as no Event of Default has occurred and is continuing, with the consent of the
Company (such consent not to be unreasonably withheld or delayed); provided that the Company’s
consent will not be required in the case of assignments to an Affiliate of the Issuing Bank
(including without limitation, The Royal Bank of Scotland PLC).


 


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(b) In addition, at any time, the Issuing Bank may, without the consent of the Company, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion of the
Issuing Bank’s rights and obligations under this Agreement; provided that (i) the participating
Issuing Bank’s obligations under this Agreement shall remain unchanged, (ii) the participating
Issuing Bank shall remain solely responsible to the Company for the performance of such
obligations, and (iii) the Company shall continue to deal solely and directly with the
participating Issuing Bank in connection with the Issuing Bank’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which the Issuing Bank sells such a
participation shall provide that the Issuing Bank 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 Issuing Bank will not, without the
consent of each Participant, agree to any amendment, modification or waiver which (x) has the
effect of increasing the Maximum Draw Amount, reducing the rate of interest, letter of credit fees
or any other amount payable to the Issuing Bank hereunder or under any other Financing Agreement,
extending the applicable termination date, and releasing all or substantially all of the Subsidiary
Guarantors or all or substantially all of the value of the Guaranty from the Guaranty or all or
substantially all of any Credit Support provided under this Agreement and (y) directly affects such
Participant (it being understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an increase in the Maximum Draw
Amount shall be permitted without consent of any Participant if the Participant’s participation is
not increased as a result thereof). The Company agrees that each Participant shall be entitled to
the benefits of Sections 16.1, 16.2 and 16.3 to the same extent as if it were the Issuing Bank;
provided, that no Participant shall be entitled to receive any greater amount pursuant to such
subsections than the participating Issuing Bank would have been entitled to receive in respect of
the amount of the participation transferred by the participating Issuing Bank to such Participant
had no such transfer occurred. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 15.3 as though it were the Issuing Bank.



Section 14.3 [Intentionally Omitted].



Section 14.4 [Intentionally Omitted].



SECTION 15 PAYMENTS GENERALLY



Section 15.1 Place of Payment. Payments made hereunder shall be made in Stamford, Connecticut at the principal office of
The Royal Bank of Scotland N.V. The Company may at any time, by notice to the Issuing Bank, change
the place of payments hereunder so long as such place of payment shall be either the principal
office of the Company in such jurisdiction or the principal office of a bank or trust company in
such jurisdiction.



Section 15.2 [Intentionally Omitted].



Section 15.3



Section 15.4



Section 15.5 Set-off. The Issuing Bank may set off any matured obligation owed to it by an Obligor under the
Financing Agreements (to the extent beneficially owned by the Issuing Bank) against any obligation
(whether or not matured) owed by the Issuing Bank to an Obligor, regardless of the place of
payment, booking branch or currency of either obligation. If the obligations are in different
currencies, the Issuing Bank may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.


 


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SECTION 16 EXPENSES, ETC.



Section 16.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Obligors will pay
all costs and expenses (including reasonable attorneys’ fees of one special counsel and, if
reasonably required by the Issuing Bank, local or other counsel) incurred by the Issuing Bank in
connection with such transactions and in connection with any amendments, waivers or consents under
or in respect of any Financing Agreement (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under any Financing
Agreement or in responding to any subpoena or other legal process or informal investigative demand
issued in connection with any Financing Agreement, or by reason of being the Issuing Bank, and (b)
the costs and expenses, including financial advisors’ fees, incurred in connection with the
insolvency or bankruptcy of any Obligor or any Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated by any Financing Agreement. The Company will pay,
and will save the Issuing Bank harmless from, all claims in respect of any fees, costs or expenses,
if any, of brokers and finders.



Section 16.2 Indemnification. (a) The Company shall indemnify the Issuing Bank, and each such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any outside counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Financing Agreements or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated hereby or thereby, (ii)
any Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by
the Issuing Bank 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) or
(iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Company or any other Obligor, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee.



(b) Without duplication of any obligation of the Company under Section 16.2(a), in addition to
amounts payable as provided herein, the Company hereby agrees to protect, indemnify, pay and save
harmless the Issuing Bank from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of
counsel and allocated costs of internal counsel) which Issuing Bank may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit by the Issuing Bank,
other than as a result of (1) the bad faith, gross negligence or willful misconduct of the Issuing
Bank or (2) the wrongful dishonor by the Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or (ii) the failure of the Issuing Bank to honor a drawing under any
such Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority.


 


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Section 16.3 Certain Taxes. Each Obligor agrees to pay all stamp, documentary or similar taxes or fees which may be
payable in respect of the execution and delivery or the enforcement of this Agreement, the
Subsidiary Guarantee Agreement or the execution and delivery (but not the assignment or transfer)
or the enforcement of any of the Obligations in any Applicable Jurisdiction or in any jurisdiction
where an Obligor is organized or where an Obligor has assets or of any amendment of, or waiver or
consent under or with respect to, any Financing Agreement, and to pay any value added tax due and
payable in respect of reimbursement of costs and expenses by the Obligors pursuant to this Section
16 or any other tax of a similar nature which might be chargeable, and will save the Issuing Bank
to the extent permitted by applicable law harmless against any loss or liability resulting from
nonpayment or delay in payment of any such tax or fee required to be paid by the Obligors
hereunder.



Section 16.4 Survival. The obligations of the Obligors under this Section 16 will survive the payment or transfer
of all or a portion of the Issuing Bank’s rights and agreements under this Agreement, the
enforcement, amendment or waiver of any provision of any Financing Agreement, and the termination
of any Financing Agreement.



SECTION 17 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT




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



SECTION 18 AMENDMENT AND WAIVER



Section 18.1 Requirements. This Agreement and the other Financing Agreements may be amended, and the observance of any
term hereof or of any other Financing Agreement may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Obligors and the Issuing Bank.



Section 18.2 Solicitation of Issuing Bank. The Company will provide the Issuing Bank (irrespective of the amount of Letters of Credit
then issued by it) with sufficient information, sufficiently far in advance of the date a decision
is required, to enable the Issuing Bank to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions hereof or of any
other Financing Agreement. The Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of this Section 18 to the Issuing
Bank promptly following the date on which it is executed and delivered by, or receives the consent
or approval of, the requisite Issuing Bank.


 


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Section 18.3 Binding Effect, Etc.
Any amendment or waiver consented to as provided in this Section 18 is binding upon the
Issuing Bank and upon the Obligors. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Obligors and the Issuing
Bank nor any delay in exercising any rights hereunder shall operate as a waiver of any rights of
the Issuing Bank. As used herein, the term “this Agreement” and references thereto shall mean this
Agreement as it may from time to time be amended or supplemented.



SECTION 19 NOTICES; ENGLISH LANGUAGE




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




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




(ii) if to any Obligor, to the Company at its address set forth at the beginning hereof
to the attention of Lawrence R. Samuels, Chief Financial Officer, or at such other
address as the Company shall have specified to the Issuing Bank in writing; provided
that notices pursuant to Section 3.2 shall be sent to the address provided therein.



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



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



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


 


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SECTION 20 REPRODUCTION OF DOCUMENTS




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



SECTION 21 CONFIDENTIAL INFORMATION




For the purposes of this Section 21, “Confidential Information” means information delivered to
the Issuing Bank by or on behalf of any Obligor or any Subsidiary in connection with the
transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature
and that was clearly marked or labeled or otherwise adequately identified when received by the
Issuing Bank as being confidential information of such Obligor or such Subsidiary, provided that
such term does not include information that (a) was publicly known or otherwise known to the
Issuing Bank prior to the time of such disclosure, (b) subsequently becomes publicly known through
no act or omission by the Issuing Bank or any person acting on the Issuing Bank’s behalf, (c)
otherwise becomes known to the Issuing Bank other than through disclosure by such Obligor or such
Subsidiary or (d) constitutes financial statements delivered to
the Issuing Bank under Section 7.1 that are otherwise publicly available. The Issuing Bank
will maintain the confidentiality of such Confidential Information in accordance with procedures
adopted by the Issuing Bank in good faith to protect confidential information of third parties
delivered to the Issuing Bank, provided that the Issuing Bank may deliver or disclose Confidential
Information to (i) its directors, trustees, officers, employees and attorneys (to the extent such
disclosure reasonably relates to the Letters of Credit and the obligations of the Issuing Bank
hereunder), and provided the Issuing Bank advises such Person of the confidential nature of such
information, (ii) its financial advisors, other professional advisors, agents and affiliates who
agree to hold confidential the Confidential Information substantially in accordance with the terms
of this Section 21, (iii) any other Issuing Bank, (iv) any assignee or any participant with respect
to the Issuing Bank’s agreements hereunder (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this Section 21), (v) any
Person from which it offers to purchase any security of an Obligor (if such Person has agreed in
writing prior to its receipt of such Confidential Information to be bound by the provisions of this
Section 21), (vi) any federal or state regulatory authority having jurisdiction over the Issuing
Bank, (vii) the NAIC or any similar organization, or any nationally recognized rating agency that
requires access to information about the Issuing Bank’s investment portfolio, or (viii) any other
Person to which such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to the Issuing Bank, (x) in response
to any subpoena or other legal process, (y) in connection with any litigation to which the Issuing
Bank is a party or (z) if an Event of Default has occurred and is continuing, to the extent the
Issuing Bank may reasonably determine such delivery and disclosure to be necessary or appropriate
in the enforcement or for the protection of the rights and remedies under this Agreement and the
other Financing Agreements. The Issuing Bank will be deemed to have agreed to be bound by and to
be entitled to the benefits of this Section 21 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to the Issuing Bank of
information required to be delivered to the Issuing Bank under this Agreement or requested by the
Issuing Bank (other than the Issuing Bank that is a party to this Agreement or its nominee), the
Issuing Bank will enter into an agreement with the Company embodying the provisions of this Section
21.



 


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SECTION 22 [INTENTIONALLY OMITTED]



SECTION 23 SUBSIDIARY GUARANTEE AGREEMENT



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



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



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



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



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



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


 


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



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



Section 23.4 Waiver of Defenses. (a) The obligations of each Subsidiary Guarantor under this Section 23 will not be affected
by any act, omission or thing which, but for this provision, would reduce, release or prejudice any
of its obligations under this Section 23 (whether or not known to it or the Issuing Bank). 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 Financing Agreement or any other document or
security;




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



(viii) any insolvency or similar proceedings;



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




(x) notice of any issuance of Letters of Credit under this Agreement, or the creation,
existence or acquisition of any of the Guaranteed Obligations, subject to such Subsidiary
Guarantor’s right to make inquiry of the Issuing Bank to ascertain the amount of the
Guaranteed Obligations at any reasonable time;


 


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(xi) notice of the amount of the Guaranteed Obligations, subject to such Subsidiary
Guarantor’s right to make inquiry of the Issuing Bank 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 Issuing Bank to institute suit against the
Company or to exhaust its rights and remedies against the Company, the Subsidiary Guarantor
being bound to the payment of each and all Guaranteed Obligations, whether now existing or
hereafter accruing, as fully as if such Guaranteed Obligations were directly owing to the
Issuing Bank by such Subsidiary Guarantor; and




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



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



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



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




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




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




(iii) that the Issuing Bank divides the liability of the Guernsey Obligor under this
Agreement with any other Person.



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


 


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



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



(a) (i) refrain from applying or enforcing any other moneys, security or rights held or
received by the Issuing Bank (or any trustee or agent on its behalf) against those amounts; or




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



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



Section 23.7 Non-competition. Unless:



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




(b) the Issuing Bank, acting reasonably, otherwise direct,



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




(i) be subrogated to any rights, security or moneys held, received or receivable by the
Issuing Bank (or any trustee or agent on its behalf);




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




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




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



Each Subsidiary Guarantor must hold in trust for and immediately pay or transfer to the Issuing
Bank any payment or distribution or benefit of security received by it contrary to this Section 23
or in accordance with any directions given by the Issuing Bank under this Section 23.


 


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



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



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



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



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



(b) assign, sell or transfer, or otherwise dispose of, any one or more of the Letters of
Credit and Obligations hereunder;



(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 amount of the Obligations or any
Letter of Credit or any change in interest rates or make-whole or swap breakage determinations;



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



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



(g) exchange, enforce, waive, or release, by action or inaction, any security for the
Guaranteed Obligations or any other guarantee of any of the Letters of Credit or Obligations
hereunder; 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.


 


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



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



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



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



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



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



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



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



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



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


 


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(d) the validity or enforceability of any Financing Agreement 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 Financing Agreement, so that such
sums would be rendered inadequate or would be unavailable to make the payments herein provided;



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



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



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



Section 23.14 No Election. The Issuing Bank shall have the right to seek recourse against each Subsidiary Guarantor to
the fullest extent provided for in this Section 23 and elsewhere as provided in this Agreement, and
against the Company, to the full extent provided for in this Agreement. Each Subsidiary Guarantor
hereby acknowledges that it has other undertakings in this Agreement and running in favor of the
Issuing Bank that are separate and apart from its obligations under this Section 23. No election
to proceed in


 


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one
form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of the right of the Issuing Bank to proceed in
any other form of action or proceeding or against other parties unless the Issuing Bank has
expressly waived such right in writing. Specifically, but without limiting the generality of the
foregoing, no action or proceeding by the Issuing Bank against the Company or any Subsidiary
Guarantor under any document or instrument evidencing obligations of the Company or such Subsidiary
Guarantor to the Issuing Bank shall serve to diminish the liability of such Subsidiary Guarantor
under this Agreement (including, without limitation, this Section 23) except to the extent that the
Issuing Bank finally and unconditionally shall have realized payment of the Guaranteed Obligations
by such action or proceeding, notwithstanding the effect of any such action or proceeding upon such
Subsidiary Guarantor’s right of subrogation against the Company.



Section 23.15 [Intentionally Omitted].



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



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



Section 23.18 Survival. So long as the Guaranteed Obligations shall not have been fully and finally performed and
indefeasibly paid, the obligations of each Subsidiary Guarantor under this Section 23 shall survive
the payment in full of all amounts payable under this Agreement and the other Financing Agreements
and cancellation, expiration or cash collateralization of all Letters of Credit or receipt of
Credit Support with respect to all Letters of Credit.



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


 


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



Section 23.20 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.



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



Section 23.22 Unenforceability of Obligations. As a separate and continuing undertaking, each Subsidiary Guarantor unconditionally and
irrevocably undertakes to the Issuing Bank 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 Issuing Bank, 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 Issuing Bank immediately on demand against the amount which the
Issuing Bank would otherwise have been able to recover (on a full indemnity basis). In this
Section 23.22 the expression “Guaranteed Obligations” includes any Indebtedness which would have
been included in that expression but for anything referred to in this clause.


 


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Section 23.23 Contribution. To the extent of any payments made under this Subsidiary Guarantee Agreement, each
Subsidiary Guarantor making such payment shall have a right of contribution from the other
Subsidiary Guarantors, but such Subsidiary Guarantor covenants and agrees that such right of
contribution shall be subordinate in right of payment to the rights of the Issuing Bank 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 sums due and payable
under this Agreement have been fully and irrevocably paid and discharged.



Section 23.24 Additional Security. This Subsidiary Guarantee Agreement is in addition to and is not in any way prejudiced by
any other security now or subsequently held by the Issuing Bank.



Section 23.25 Limitations — UK. This Subsidiary Guarantee Agreement 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 ss678-79 of the Companies Act 2006.



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



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



Section 23.28 Limitations — Germany. (a) The Issuing Bank agrees that its right to enforce any guarantee or indemnity granted by
a Subsidiary Guarantor incorporated in Germany which is constituted in the form of a limited
partnership (Kommanditgesellschaft) with a limited liability company (Gesellschaft mit beschränkter
Haftung) as general partner (GmbH & Co. KG) or a limited liability company (Gesellschaft mit
beschränkter Haftung — GmbH) (each a “Relevant German Obligor”) shall, if and to the extent that
such guarantee or indemnity is an up-stream or cross-stream security which secures liabilities of
the Relevant German Obligor’s shareholders or of an affiliated company (verbundenes Unternehmen) of
any such shareholder within the meaning of §15 of the German Stock Corporation Act (Aktiengesetz)
of such Relevant German Obligor, at all times be limited if and to the extent that (i) the
enforcement of the guarantee granted by the Relevant German Obligor would cause the Relevant German
Obligor’s, and, in the case of a GmbH & Co. KG, also such Relevant German Obligor’s general
partner’s, assets (the calculation of which shall


 


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include all items set forth in §266(2) A, B, and
C of the German Commercial Code (Handelsgesetzbuch) less the Relevant German Obligor’s or in the
case of a GmbH & Co. KG, such Relevant German Obligor’s general partner’s, liabilities (the
calculation of which shall take into account the captions reflected in §266(3) B, C (but
disregarding, for the avoidance of doubt, the Relevant German Obligor’s liabilities under this
Agreement and D of the German Commercial Code) (the “Net Asset”), being less than its respective
registered share capital (Stammkapital) plus reserves for its own shares (Rücklage für eigene
Anteile) (the aggregate of the registered share capital and the reserves for its own shares, the
“Protected Capital”) (Begüendung 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 Effective Date 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 Issuing
Bank and which is made out of retained earnings (Kapitalerhöhug aus
Gesellschaftsmitteln) or (2) to the extent that it is not fully paid up shall be
deducted from the share capital; and




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




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




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




(ii) within ten (10) Business Days from the date the Issuing Bank has contested the
Management Determination the Issuing Bank 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.


 


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(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 Issuing Bank 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 Issuing Bank against the Company (in such
capacity) under this Agreement.



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



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




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




terms used in this Section 23.30 are to be construed in accordance with the fraudulent
transfer laws.




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




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




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




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



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




(d) Each U.S. Guarantor represents and warrants to the Issuing Bank 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;


 


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




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




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




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




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




(e) Each acknowledgement, representation and warranty:



(i) in Section 23.30(b) is made by each U.S. Guarantor on the Effective Date;




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




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




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



Section 23.31 Limitation on Pyramid Freight. Under this Section 23.31 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 23.31, 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.



Section 23.32 Limitations — Belgium. This Subsidiary Guarantee Agreement does not apply to any liability to the extent it would
result in this Subsidiary Guarantee Agreement constituting unlawful financial assistance under
Articles 329, 430 and/or 629 of the Belgian Corporate Code (Code des Sociétés).


 


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



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



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



SECTION 24 MISCELLANEOUS



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



Section 24.2 Payments Due on Non-Business Days. Anything in this Agreement or in any other Financing Agreement to the contrary
notwithstanding, any payment required hereunder that is due on a date other than a Business Day
shall be made on the next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.



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


 


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(b) If there is a change in GAAP after the Effective Date that will effect the calculation of
any financial covenant contained in Section 9 or Section 10, then after the announcement but prior
to the implementation of any such changes the Company shall, in consultation with its independent
accountants, negotiate in good faith with the Issuing Bank 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 Issuing Bank substantially with 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, then the
Company’s compliance with such covenant shall be determined on the basis of GAAP in effect at the
Effective Date and each subsequent
compliance certificate delivered to the Issuing Bank pursuant to Section 7.2 shall include
detailed reconciliations reasonably satisfactory to the Issuing Bank 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 Issuing Bank).



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



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



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



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



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


 


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



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



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



(d) Nothing in this Section 24.8 shall affect the right of the Issuing Bank to serve process
in any manner permitted by law, or limit any right that the Issuing Bank 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.



(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 OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR
THEREWITH.


 


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



Section 24.10 No Novation. It is the intent of the parties hereto that this Agreement not constitute a novation of the
obligations and liabilities of the parties under the Existing Facility and that this Agreement
amend and restate in its entirety the Existing Facility and re-evidence the Obligations outstanding
on the Effective Date as contemplated hereby.



This Agreement has been entered into on the date stated at the beginning of this Agreement.




* * * * *



 


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



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	UTi WORLDWIDE INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Craig Braun
 

Duly Authorized Signatory (acting pursuant to,
	 	 
	 

	 	 	 	and in accordance with, an empowering	 	 
	 

	 	 	 	resolution of the Board of Directors of UTi	 	 
	 

	 	 	 	Worldwide Inc.)	 	 





 


 









 






UTI (AUST) PTY LIMITED, ACN 006 734 747

UTI LOGISTICS N.V.

UTI BELGIUM N.V.

GODDARD COMPANY LIMITED

UTI INTERNATIONAL INC.

PYRAMID FREIGHT (PROPRIETARY) LIMITED

UTI CANADA CONTRACT LOGISTICS INC.

UTI, CANADA, INC.

UTI DEUTSCHLAND GMBH

UTI NETWORKS LIMITED

UTI (HK) LIMITED

UTI NEDERLAND B.V.

UTI GLOBAL SERVICES 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, UNITED STATES, INC.

UTI INTEGRATED LOGISTICS, INC.

MARKET TRANSPORT, LTD.

INTRANSIT, INC.

SAMMONS TRANSPORTATION, INC.

UTI INVENTORY MANAGEMENT

SOLUTIONS INC

CONCENTREK, INC.



	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Craig Braun
 

Authorized Signatory
	 	 






 


 









 







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



	 	 	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND N.V., 

as Issuing Bank	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Bhavin Shah	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Bhavin Shah	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






 


 









 







DEFINED TERMS




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



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



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



“2009 Note Purchase Agreement” means the Note Purchase Agreement dated as of July 9, 2009
among the Company, the subsidiary guarantors (as defined therein) and the purchasers of the
US$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.



“2009 Notes” means the notes issued under the 2009 Note Purchase Agreement, all as amended,
modified, replaced or refinanced from time to time.



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



“2011 Note Purchase Agreement” means the Note Purchase Agreement dated as of June 24, 2011
among the Company, 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.



“2011 Notes” means the notes issued under the 2011 Note Purchase Agreement, all as amended,
modified, replaced or refinanced from time to time.



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




“Additional Guarantor” is defined in Section 9.10.



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



SCHEDULE B

(to RBS Facilities Agreement)



 


 









 





“Agreement” means (a) prior to the Effective Date, the Existing Facility, and (b) thereafter,
this Amended and Restated Letter of Credit Agreement, dated as of June 24, 2011, as it may be
amended, restated, supplemented or otherwise modified from time to time.



“Applicable Jurisdiction” means the British Virgin Islands, Australia, Canada or any province
thereof, Germany, Guernsey, Hong Kong, the Netherlands, Spain, the United Kingdom, the United
States of America or any state thereof, Belgium, Ireland, Singapore and any other jurisdiction of
incorporation or reorganization of a Subsidiary Guarantor.



“Bank of the West Facility” means the Credit Agreement dated as of June 24, 2011 between the
Company, the Subsidiary Guarantors thereunder and the Bank of the West.



“Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.



“BBBEE” means Broad Based Black Economic Empowerment 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 Company and/or one or more of its Subsidiaries, which is expected to
include an approximately EUR 10,000,000 revolving credit facility and an approximately EUR
15,000,000 guarantee facility.




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



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



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



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



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



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


 


B-2









 





“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 Effective 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 Effective Date),
directly or indirectly, of more than 50% of the total voting power of all classes then
outstanding of the Company’s voting stock, or




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




“Civil Procedural Law” is defined in Section 9.18.




“Closing” means June 24, 2011.



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



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




“Confidential Information” is defined in Section 21.



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



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



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



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




and all as adjusted by:




(i) adding back Consolidated Interest Payable;


 


B-3









 






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



(iii) adding back depreciation and amortization.



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



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




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




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



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



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




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




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




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



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



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




“Consolidated Total Debt” means, without duplication,




(a) all Indebtedness of the Group on a consolidated basis plus



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



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


 


B-4









 





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




“Credit Date” means the date of the issuing of a Letter of Credit.




“Credit Support” is defined in Section 3.5



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



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




“Disclosure Documents” as defined in Section 5.3.




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



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



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



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




“Disposition” is defined in Section 10.8.



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




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




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




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




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


 


B-5









 






“Dutch Civil Code” means the Burgerlijk Wetboek.




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



“Effective Date” means June 24, 2011, the date on which the conditions set forth in Section 4
shall have been satisfied or waived in accordance with the terms hereof.




“Electronic Delivery” is defined in Section 7.1(a).



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



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



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




“Event of Default” is defined in Section 11.




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



“Existing Facility” means that certain Letter of Credit Agreement dated July 9, 2009 between
and among the Company and the Issuing Bank, as amended from time to time on or prior to the
Effective Date.




“Existing Letters of Credit” is defined in Section 1.1.



“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate
charged to the Issuing Bank on such day on such transactions as determined by the Issuing Bank.



“Final Maturity Date” means the Final Maturity Date (as defined in the 2011 Notes).


 


B-6









 






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



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



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



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




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




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




“French Commercial Code” means the Code de Commerce.



“GAAP” means generally accepted accounting principles, standards and practices as in effect
from time to time in the United States, provided that from and after the date on which the Company
is required or elects to adopt 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 Company and/or one or more of its Subsidiaries, which is expected to
include a revolving credit facility of approximately EUR 17,000,000.



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




“Governmental Authority” means




(a) the government of




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




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




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



“Group” means the Company and its Subsidiaries.


 


B-7









 





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



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



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



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



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



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



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




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



“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.



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



“Impermissible Qualification” means any qualification or exception set forth in the audit
opinion of the Company’s independent public accountant regarding the Company’s consolidated
financial statements



(1) which is of a “going concern”;


 


B-8









 





(2) which limits the scope of examination of matters relevant to such consolidated financial
statements in any material respect; or



(3) which relates to the accounting treatment or classification of any item in such
consolidated financial statements and which, as a condition to its removal, would require any
adjustment to such item the effect of which would be to cause a Default or Event of Default.



Notwithstanding the foregoing, the parties agree that an “Impermissible Qualification” shall
not be deemed to have occurred as a result of any qualification, limitation, treatment or
classification which




(a) is applied or imposed by the Company’s public accountants to public companies generally;




(b) results from the application or adoption of a new accounting pronouncement or IFRS; or




(c) which relates to the audit concerning internal control over financial reporting.



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




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



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



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



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



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



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



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


 


B-9









 





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



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




“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit 1.2.



“Issuing Bank” means RBS as Issuing Bank of Letters of Credit hereunder, together with its
permitted successors and assigns in such capacity.




“Joinder Agreement” is defined in Section 9.10.



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



“Letter of Credit” means a standby letter of credit or bank guarantee issued or to be issued
by the Issuing Bank pursuant to this Agreement in the form attached as Exhibit 1.1 or Exhibit 2 or
as otherwise agreed to by the Issuing Bank issuing such letter of credit or bank guarantee.



“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).



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


 


B-10









 





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




“Maturity Date” means the second anniversary of the Effective Date.




“Maximum Draw Amount” means $50,000,000.



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



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



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



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




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



“NedBank LC Agreement” means that certain Amended and Restated Letter of Credit and Cash Draw
Agreement dated as of June 24, 2011, among the Company, the subsidiary guarantors described therein
and Nedbank Limited, acting through its London Branch, all as amended, modified, replaced or
refinanced from time to time.



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



“Notes Financing Agreements” means the 2009 Note Purchase Agreement and the 2011 Note Purchase
Agreement, the notes issued thereunder and the guarantee provided therein, all as amended,
modified, replaced or refinanced from time to time.



“Obligations” means all obligations of every nature of each Obligor from time to time owed to
the Issuing Bank (including former Issuing Bank), or any of them under any Financing Agreement,
whether for principal, interest (including interest which, but for the filing of a petition in
bankruptcy with respect to such Obligor, would have accrued on any Obligation, whether or not a
claim is allowed against such Obligor for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnification or otherwise.


 


B-11









 






“Obligors” means the Company and the Subsidiary Guarantors.




“OFAC” is defined in Section 5.16(a).




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



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



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



“Optional Currency” means any of the following currencies: Australian dollar, Burundi Franc,
Pula (Botswana), Canadian dollar, Yuan Reenminbi (China), Columbia Peso, Euro, pound sterling, Hong
Kong dollar, Yen (Japan), South African Rand, Sri Lanka Rupee, Mauritius Rupee, Kwacha (Malawi),
Malaysian Ringat, New Zealand dollar, zloty (Poland), Swedish Krona, Singapore dollar, Baht
(Thailand), Turkish Lira and Zimbabwe dollar and any other currency that the Issuing Bank is
permitted to issue under all applicable laws and regulations applicable to it and that is
reasonably acceptable to the Issuing Bank.



“Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended and (v) with respect to any
Subsidiary not organized in the United States, the equivalent thereof in its jurisdiction of
incorporation or organization.



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



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



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



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


 


B-12









 





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



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



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



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



“Prime Rate” means the rate of interest per annum that RBS announces from time to time as its
prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any customer. RBS or any
other Issuing Bank may make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.



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



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




“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” means The Royal Bank of Scotland N.V.



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


 


B-13









 





“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.




“Reimbursement Date” is defined in Section 3.2.



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



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



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




“Restricted Payment” means



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



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



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



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




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




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







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







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





 


B-14









 





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



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



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



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



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



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




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




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



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



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


 


B-15









 





“Spot Exchange Rate” means, at any date of determination thereof, the spot rate of exchange in
London that appears on the display page applicable to the relevant currency on the Telerate System
Incorporated Service (or such other page as may replace such page on such service for the purpose
of displaying the spot rate of exchange in London for the conversion of Dollars into the relevant
Optional Currency or the relevant Optional Currency into Dollars); provided that if there shall at
any time no longer exist such a page on such service, the spot rate of exchange shall be determined
by reference to another similar rate publishing service selected by the Issuing Bank and reasonably
acceptable to the Company.



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



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



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




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



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



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



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




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




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




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


 


B-16









 






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



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



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



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



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




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




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




(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 corporation formed under the laws of
Spain,



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




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




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



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



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



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



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




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


 


B-17









 






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




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


“Summary of Terms” means the Summary of Indicative Terms and Conditions dated as of June 14,
2011 with respect to the facility pursuant to this Agreement.



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



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




“Taxing Jurisdiction” is defined in Section 13.




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



“U.S. Dollar Amount” means (a) if a Letter of Credit is denominated in Dollars, its amount; or
(b) if a Letter of Credit denominated in an Optional Currency, its equivalent in Dollars calculated
on the basis of the Issuing Bank’s Spot Exchange Rate on the date of determination for that Letter
of Credit.



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



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



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



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




 


B-18