EXHIBIT 10.5
EXECUTION COPY
LOAN AGREEMENT
between
PYRAMID FREIGHT (PROPRIETARY) LIMITED
(a company with limited liability registered and incorporated in the British
Virgin Islands and registered as an external company in accordance with the laws
of the Republic of South Africa under registration number 1987/003687/10)
("PYRAMID")
and
UTi SOUTH AFRICA (PROPRIETARY) LIMITED
(a private company with limited liability registered and incorporated in
accordance with the laws of the Republic of South Africa under registration
number: 2004/015747/07)
("THE BORROWER")
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XXXXXX XXXXXXX XXXXXX
2.
TABLE OF CONTENTS
Page/s
1. Loan....................................................................... 3
2. Interest................................................................... 3
3. Repayment of Capital....................................................... 4
4. Place of payment of capital and interest................................... 4
5. Certificates............................................................... 4
6. Renunciation of benefits................................................... 5
7. Events of default.......................................................... 5
8. Miscellaneous matters...................................................... 6
8.1 addresses and notices...................................................... 6
8.2 entire contract............................................................ 7
8.3 no representations......................................................... 7
8.4 variation, cancellation and waiver......................................... 8
8.5 indulgences................................................................ 8
8.6 cession.................................................................... 8
8.7 applicable law............................................................. 8
8.8 jurisdiction............................................................... 8
8.9 costs...................................................................... 8
8.10 counterparts............................................................... 9
3.
1. LOAN
1.1 Pyramid hereby lends to the Borrower, which borrows, the sum of R680
000 000 ("THE CAPITAL") on the terms and conditions set out in this
agreement.
1.2 The Capital will be utilised by the Borrower in payment of the purchase
consideration for the business divisions acquired or to be acquired by
the Borrower from Pyramid in terms of a sale of business agreement
entered into or to be entered into between Pyramid and the Borrower, by
the Borrower crediting a claim on loan account in favour of Pyramid in
its accounting records in the amount of the Capital.
1.3 Notwithstanding the date of signature of this agreement or the sale of
business agreement referred to in 1.2 above, the Borrower shall credit
the claim on loan account in favour of Pyramid in its accounting
records in the amount of the Capital with effect from 1 August 2004,
being the effective date of the sale of business agreement referred to
in 1.2 above ("THE ADVANCE DATE")
2. INTEREST
2.1 The Capital or such balance as shall remain outstanding from time to
time, will bear interest from the advance date to the date on which the
Capital is repaid in full at an effective annual rate of 14.5%.
2.2 Interest shall accrue on a daily basis and if interest is required to
be calculated for a period other than one year, such interest shall be
calculated on the basis of the actual number of days in such period and
a 365 day year, irrespective of whether such year is a leap year or
not.
2.3 The interest will be paid by the Borrower to Pyramid quarterly in
arrear on the last business day of the months of December, April and
August of each year until the Capital and any interest outstanding
thereon has been repaid in full. The first interest payment will be due
and payable on the last business day of December 2004.
2.4 Any interest which is not paid on the due date shall be capitalised and
compounded quarterly in arrear from such due date to the date of
payment.
4.
3. REPAYMENT OF CAPITAL
3.1 The Borrower shall not be obliged to repay the Capital during the
period of five years from the advance date.
3.2 Three months prior to the fifth anniversary of the advance date the
parties shall meet to negotiate in good faith the terms of repayment of
the Capital together with any interest which has accrued on the
Capital. If the parties are unable to agree on the terms of repayment
of the Capital together with any accrued interest thereon, the Capital
and accrued interest thereon shall be repayable in full by the Borrower
on demand by Pyramid.
3.3 Notwithstanding the above, the Borrower shall be entitled to effect
early repayment of the whole or part of the Capital together with any
interest that has accrued to the date of such early repayment, without
any penalty, at any time.
4. PLACE OF PAYMENT OF CAPITAL AND INTEREST
4.1 All payments of the Capital and the interest due in terms of this
agreement shall be made by the Borrower to Pyramid, in immediately
available funds, whether by electronic funds transfer or otherwise,
free of the cost of transfer of funds and without any deduction or
set-off of whatever nature, in Rand, by payment directly into such bank
account in South Africa as notified to the Borrower in writing from
time to time, and otherwise in accordance with the written payment
instructions of Pyramid from time to time.
4.2 All payments received by Pyramid in terms of this agreement shall be
appropriated first to costs, then to interest and thereafter to
Capital.
5. CERTIFICATES
A certificate signed or purporting to be signed by any director of Pyramid
(whose appointment it shall not be necessary to prove) shall be proof,
until the contrary is proved, of:
5.1 the amount of any debt owing by the Borrower to Pyramid (including
accrued interest) in terms of this agreement;
5.2 the due dates of performance in respect thereof; and
5.
5.3 the fact that the debts are due and owing and have not been paid or
otherwise discharged.
6. RENUNCIATION OF BENEFITS
The Borrower:
6.1 renounces all benefits due to it under common law, including the
benefits which may entitle it to resist any claim by Pyramid under this
agreement on the grounds of non causa debiti, non numeratae pecuniae,
errore calculi or revision of accounts;
6.2 acknowledges that it is aware of the meaning and import of such
benefits.
7. EVENTS OF DEFAULT
In the event that:
7.1 the Borrower defaults in the payment on due date of any amount payable
under the terms of this agreement and fails to remedy such default
within 7 days of having been called upon by Pyramid to do so; or
7.2 the Borrower is terminated, dissolved, wound-up or liquidated (whether
provisionally or finally and whether voluntarily or compulsorily) or
passes a resolution providing for any such event without Pyramid's
prior written consent or the Borrower enters into a compromise,
composition or arrangement with its creditors or any class thereof; or
7.3 a writ of execution is levied or enforced upon or sued out against any
assets of the Borrower and is not satisfied within 7 days; or the
Borrower fails to satisfy a judgment against it within 10 (ten) days
after the Borrower becomes aware of the judgment, except that if the
Borrower provides evidence on an ongoing basis to the reasonable
satisfaction of Pyramid that steps have been initiated within the 10
days to appeal, review or rescind the judgment and to procure
suspension of execution and that such steps are being expeditiously
pursued, the period of 10 days shall run from the date the judgment
becomes final or the attempt to procure suspension of execution fails;
or
7.4 the Borrower commits an act of insolvency as defined in the Xxxxxxxxxx
Xxx, 0000; or
6.
7.5 the Borrower breaches any other provision of this agreement and
remains in breach for a period of 14 days after having received
written notice from Pyramid calling upon it to remedy such breach,
then Pyramid shall have the right, in addition to any other rights that it
may have at law or in terms of this agreement, by notice in writing to the
Borrower to declare the Capital and any other amount owing under this
agreement immediately due and payable (whether or not the amount is then
due and payable) and to require the immediate performance by the Borrower
of any other obligations under this agreement. Such obligations shall
include but shall not be limited to, the repayment of the entire amount of
the Capital together with all accrued interest.
8. MISCELLANEOUS MATTERS
8.1 ADDRESSES AND NOTICES
8.1.1 For the purposes of this agreement, including the giving of notices
and the serving of legal process, the parties choose domicilium
citandi et executandi ("DOMICILIUM") at -
8.1.1.1 in the case of Pyramid :
address : 0 Xxxxxx Xxxx (xxx Xxxxx Xxxx
Xxxx)
Xxxxxxxxxxx
0000
telefax no : 011 457 2606
marked for the attention of: Xx Xxxxx Xxxxxxx;
8.1.1.2 in the case of the Borrower:
address : 0 Xxxxxx Xxxx (xxx Xxxxx Xxxx
Xxxx)
Xxxxxxxxxxx
0000
telefax no : 011 457 2606
marked for the attention of: Xx Xxxxxx XxXxxx.
7.
8.1.2 A party may at any time change that party's domicilium by notice in
writing to another address, provided that the new domicilium
consists of, or includes, a physical address at which process can
be served.
8.1.3 Any notice given in connection with this agreement shall -
8.1.3.1 be delivered by hand; or
8.1.3.2 be sent by prepaid registered post; or
8.1.3.3 be sent by telefax (if the domicilium includes a telefax number)
to the domicilium chosen by the party concerned.
8.1.4 A notice given as set out above shall be deemed to have been duly
given -
8.1.4.1 if delivered, on the date of delivery; or
8.1.4.2 if sent by post, 14 days after posting; or
8.1.4.3 if sent by telefax, on the business day that the telefax is
transmitted, except that any telefax transmitted after 16:30
shall be deemed to have been received on the following business
day.
8.2 ENTIRE CONTRACT
This agreement contains all the express provisions agreed on by the
parties with regard to the subject matter of the agreement and the
parties waive the right to rely on any alleged express provision not
contained in the agreement.
8.3 NO REPRESENTATIONS
No party may rely on any representations which allegedly induced that
party to enter into this agreement, unless the representation is
recorded in this agreement.
8.
8.4 VARIATION, CANCELLATION AND WAIVER
No contract varying, adding to, deleting from or cancelling this
agreement, and no waiver of any right under this agreement, shall be
effective unless reduced to writing and signed by or on behalf of the
parties.
8.5 INDULGENCES
No indulgences granted by a party shall constitute a waiver of any of
that party's rights under this agreement; accordingly, that party shall
not be precluded, as a consequence of having granted such indulgence,
from exercising any rights against the other which may have arisen in
the past or which may arise in the future.
8.6 CESSION
No party may cede that party's rights or delegate that party's
obligations under this agreement without the prior written consent of
the other party.
8.7 APPLICABLE LAW
This agreement shall be interpreted and implemented in accordance with
the law of the Republic of South Africa.
8.8 JURISDICTION
8.8.1 A party shall be entitled, but not obliged, to institute any
proceedings arising out of or in connection with this agreement in
the magistrates' courts.
8.8.2 Should a party elect to institute proceedings in the high court the
parties irrevocably consent to the non-exclusive jurisdiction of
the High Court of South Africa (Transvaal Provincial Division).
8.9 COSTS
8.9.1 Each party shall bear that party's own legal costs of and
incidental to the negotiation, preparation, settling, signing and
implementation of this agreement.
9.
8.9.2 Any costs, including attorney and own client costs, incurred by a
party arising out of the breach by the other party of any of the
provisions of this agreement shall be borne by the party in breach.
8.10 COUNTERPARTS
This agreement may be executed in any number of counterparts by the
parties to this agreement and once each party to this agreement has
signed a counterpart, each such counterpart shall be considered an
original and all such counterparts shall constitute one and the same
instrument. Any such counterpart may be a facsimile transmission copy
thereof.
Signed at Bedfordview on 6, December 2004.
WITNESS FOR AND ON BEHALF OF PYRAMID FREIGHT
(PROPRIETARY) LIMITED, DULY AUTHORISED
THERETO
/s/ Xxxxxx XxXxxx /s/ Xxxxxxx X. Xxxxxxx
........................ .........................................
Signed at Johannesburg on 6, December 2004.
WITNESS FOR AND ON BEHALF OF UTi SOUTH AFRICA
(PROPRIETARY) LIMITED, DULY AUTHORISED
THERETO
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
........................ .........................................
