Exhibit 4.18


 


FIFTH AMENDMENT TO


AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


 


THIS
FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”),
dated as of December     , 2004, is entered into by and among CONGRESS
FINANCIAL CORPORATION (WESTERN), a California corporation (“Lender”) and
MATRIX INTERNATIONAL LOGISTICS, INC., a Delaware corporation (“MIL”),
GEOLOGISTICS AMERICAS INC., a Delaware corporation (“GLA”), and
GEOLOGISTICS EXPO SERVICES, LLC, a Georgia limited liability company (“EXPO”
and together with MIL and GLA, collectively referred to herein as “Borrowers”
and individually each a “Borrower”).


 


RECITALS


 


A.                                   Borrowers and Lender have previously entered
into that certain Amended and Restated Loan and Security Agreement dated as of
November 7, 2001, as amended by that certain letter amendment dated December
31,2001, that certain Second Amendment to Amended and Restated Loan and
Security Agreement and Waiver dated August 21, 2003, that certain Third
Amendment to Amended and Restated Loan and Security Agreement dated March 26,
2004 and that certain Fourth Amendment to Amended and Restated Loan and
Security Agreement and Waiver dated as of November 4, 2004 (as amended, the “Loan
Agreement”), pursuant to which Lender has made certain loans and financial
accommodations available to Borrowers. Terms used herein without definition
shall have the meanings ascribed to them in the Loan Agreement.


 


B.                                     Borrowers have requested that Lender consent
to the “Second Lien Loan Documents” (as defined below), and Lender is willing
to consent thereto subject to the terms and conditions set forth herein.


 


C.                                     Borrowers are entering into this Amendment
with the understanding and agreement that, except as specifically provided
herein, none of Lender’s rights or remedies as set forth in the Loan Agreement
is being waived or modified by the terms of this Amendment.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:


 


1.                                       Amendments to Loan Agreement.


 


(a)                                      A new Section 1.87.5 is hereby added to the
Loan Agreement as follows:


 


“1.87.5 ‘Second Lien Loan Documents’ shall
mean that certain Second Lien Credit Agreement dated as of December     ,
2004 among GLC, the lenders party thereto, Citicorp North America, Inc., as
administrative agent, and Bear Stearns Corporate Lending Inc., as syndication
agent, that certain Second Lien Facility


 





















 


Agreement dated December         ,
2004 among GL UK, GLC and those subsidiaries of GLC party thereto as
guarantors, the lenders party thereto, Citicorp Global Markets Inc. and Bear,
Stearns & Co. Inc. as joint lead arrangers and joint book-running managers,
Citicorp North America, Inc., as administrative agent, and Bear Stearns
Corporate Lending Inc., as syndication agent, together with any and all
agreements, instruments and other documents executed by GLC, GL UK or any of their
Subsidiaries or Affiliates at any time in connection therewith, in each case as
they may be amended, modified, supplemented, restated or replaced from time to
time.”


 


(b)                                      Section 1.65 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:


 


“1.65 ‘Maximum Credit’ shall mean, with
reference to the Revolving Loans and Letter of Credit Accommodations, the
amount of Thirty Million Dollars ($30,000,000); provided, that,
so long as no Default or Event of Default has occurred and is continuing, such
amount shall be increased to Thirty-Five Million Dollars ($35,000,000) during
the period from November 4, 2004 to December 31 2004.”


 


(c)                                       Clause (D) of Section 2.1(b)(i) of the Loan
Agreement is hereby deleted in its entirety.


 


(d)                                      Section 2.1(c) of the Loan Agreement is
hereby deleted in its entirety.


 


(e)                                       A new Section 9.8(h) is hereby added to the
Loan Agreement as follows:


 


“(h) subordinated security interests held by
Citicorp North America, Inc. as administrative agent under the Second Lien Loan
Documents, in essentially all of the property of Borrowers and Sea Bridge
Container Lines, Inc., a Delaware corporation, as guarantors thereunder.”


 


(f)                                         A new Section 9.9(h) is hereby added to the
Loan Agreement as follows:


 


“(h) guarantees of Borrowers and Sea Bridge
Container Lines, Inc., a Delaware corporation, pursuant to the Second Lien Loan
Documents.”


 


(g)                                      A new Section 9.24 is hereby added to the
Loan Agreement as follows;


 


“9.24 Second Lien Loan Documents. No Borrower
shall, nor permit any of its Subsidiaries or Affiliates to, (a) make any
voluntary principal prepayments on account of the Second Lien Loan Documents,
or (b) amend, supplement or otherwise modify any of the Second Lien Loan
Documents in a manner that would (i) increase the principal amount owing
thereunder or the amount of any interest, fees or other charges thereon, (ii)
shorten the maturity thereof or require any additional principal payments
thereon, or (iii) make any of the covenants therein materially more restrictive
upon such Borrower or any of its Subsidiaries


 


2





















 


or Affiliates or materially increase the likelihood
of the occurrence of any ‘Event of Default’ thereunder and as defined therein.”


 


(h)                                   A new Section 10. l(s) is hereby added to the
Loan Agreement as follows:


 


“(s) any ‘Event of Default’ shall occur under and as
defined in any of the Second Lien Loan Documents.”


 


2.                                        Effectiveness of this Amendment. Lender must have received the following
items, each in form and content acceptable to Lender, before this Amendment is
effective.


 


(a)                                     Amendment; Acknowledgement. This Amendment and the attached
Acknowledgement by Guarantor, each fully executed in a sufficient number of
counterparts for distribution to all parties.


 


(b)                                    Intercreditor Agreement. An Intercreditor Agreement duly executed
and delivered by Citicorp North America, Inc. as administrative and collateral
agent under the Second Lien Loan Documents and by GLC and each of its
Subsidiaries that are named as a “Loan Party” thereto.


 


(c)                                     Guarantees and Security Agreements. Guarantees and Security Agreements duly
executed and delivered by LIW Holding Corp., a Delaware corporation and Sea
Bridge Container Lines, Inc., a Delaware corporation, respectively.


 


(d)                                    Representations and Warranties. The representations and warranties set
forth herein and in the Loan Agreement, other than any such representations or
warranties that, by their terms, are specifically made as of a date other than
the date hereof, must be true and correct.


 


(e)                                     Other Required Documentation. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Lender.


 


3.                                        Representations and Warranties. Borrowers represent and warrant as follows:


 


(a)                                     Authority. Each Borrower has the requisite corporate power and authority to
execute and deliver this Amendment, and to perform its obligations hereunder
and under the Financing Agreements (as amended or modified hereby) to which it
is a party. The execution, delivery and performance by each Borrower of this
Amendment have been duly approved by all necessary corporate action and no
other corporate proceedings are necessary to consummate such transactions.


 


(b)                                    Enforceability. This Amendment has been duly executed and
delivered by each Borrower. This Amendment and each Financing Agreement (as
amended or modified hereby) is the legal, valid and binding obligation of each
Borrower, enforceable against such Borrower in accordance with its terms, and
is in full force and effect.


 


3





















 


(c)                                    Representations and Warranties. The representations and warranties
contained in each Financing Agreement (other than any such representations or
warranties that, by their terms, are specifically made as of a date other than
the date hereof) are correct on and as of the date hereof as though made on and
as of the date hereof.


 


(d)                                   Due Execution. The execution, delivery and performance of
this Amendment are within the power of each Borrower, have been duly authorized
by all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions
binding on such Borrower.


 


(e)                                    No Default. No event has occurred and is continuing that constitutes an Event of
Default.


 


4.                                       Choice of Law. The validity of this Amendment, its
construction, interpretation and enforcement, the rights of the parties hereunder,
shall be determined under, governed by, an construed in accordance with the
internal laws of the State of California governing contracts only to be
performed in that State.


 


5.                                       Counterparts. This Amendment may be executed in any number
of counterparts and by different parties and separate counterparts, each of
which when so executed and delivered, shall be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment.


 


6.                                        Reference to and Effect on the Financing Agreements.


 


(a)                                     Upon and after the effectiveness of this
Amendment, each reference in the Loan Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Loan Agreement,
and each reference in the other Financing Agreements to “the Loan Agreement”,
“thereof” or words of like import referring to the Loan Agreement, shall mean
and be a reference to the Loan Agreement as modified and amended hereby.


 


(b)                                    Except as specifically amended above, the
Loan Agreement and all other Financing Agreements, are and shall continue to be
in full force and effect and are hereby in all respects ratified and confirmed
and shall constitute the legal, valid, binding and enforceable obligations of
Borrower to Lender.


 


(c)                                     The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of Lender under any of the Financing
Agreements, nor constitute a waiver
of any provision of any of the Financing Agreements.


 


(d)                                    To the extent that any terms and conditions
in any of the Financing Agreements shall contradict or be in conflict with any
terms or conditions of the Loan Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Loan Agreement as
modified or amended hereby.


 


4





















 


7.                                        Ratification. Each Borrower hereby restates, ratifies and
reaffirms each and every term and condition set forth in the Loan Agreement, as
amended hereby, and the Financing Agreements effective as of the date hereof.


 


8.                                        Estoppel. To induce Lender to enter into this Amendment and to continue to make
advances to Borrowers under the Loan Agreement, each Borrower hereby
acknowledges and agrees that, as of the date hereof, there exists no right of
offset, defense, counterclaim or objection in favor of any Borrower as against
Lender with respect to the Obligations.


 


9.                                        Integration. This Amendment, together with the other Financing Agreements, incorporates
all negotiations of the parties hereto with respect to the subject matter
hereof and is the final expression and agreement of the parties hereto with
respect to the subject matter hereof.


 


10.                                 Severability. In case any provision in this Amendment
shall be invalid, illegal or unenforceable, such provision shall be severable
from the remainder of this Amendment and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby,


 


[Signatures follow on next page]


 


5





















 


IN WITNESS WHEREOF, the
parties have entered into this Amendment as of the date first above written.


 


	
  “LENDER”

  	
  “BORROWERS”

  
	
   

  	
   

  
	
  CONGRESS
  FINANCIAL CORPORATION

  	
  MATRIX
  INTERNATIONAL LOGISTICS,

  
	
  (WESTERN),

  	
  INC.,

  
	
  a
  California corporation

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Gary Whitaker

  	
   

  	
  By:

  	
  /s/
  R. Jackson

  	
   

  
	
  Name:

  	
  Gary
  Whitaker

  	
   

  	
  Name:

  	
  R.
  Jackson

  	
   

  
	
  Title:

  	
  Vice
  President

  	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
  GEOLOGISTICS
  AMERICAS INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Jackson

  	
   

  
	
   

  	
  Name:

  	
  R.
  Jackson

  	
   

  
	
   

  	
  Title:

  	
  Ass
  Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
  GEOLOGISTICS
  EXPO SERVICES, LLC,

  
	
   

  	
  a
  Georgia limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Jackson

  	
   

  
	
   

  	
  Name:

  	
  R.
  Jackson

  	
   

  
	
   

  	
  Title:

  	
  Ass
  Secretary

  	
   

  



 


6





















 


ACKNOWLEDGEMENT
BY GUARANTOR


 


Dated as of December 10, 2004


 


The
undersigned, being the Guarantor under its Amended and Restated Guaranty and
Security Agreement, dated November 7, 2001, made in favor of Lender (as
amended, modified or supplemented, the “Guaranty”), hereby acknowledges
and agrees to the foregoing Fifth Amendment to Amended and Restated Loan and
Security Agreement (the “Amendment”) and confirms and agrees that the
Guaranty is and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the effectiveness of,
and on and after the date of the Amendment, each reference in the Guaranty to
the Loan Agreement (as defined in the Amendment), “thereunder”, “thereof” or
words of like import referring to the “Loan Agreement”, shall mean and be a
reference to the Loan Agreement as amended or modified by the Amendment.
Although Lender has informed Guarantor of the matters set forth above, and
Guarantor has acknowledged the same, Guarantor understands and agrees that Lender
has no duty under the Loan Agreement, the Guaranty or any other agreement with
Guarantor so notify Guarantor or to seek such an acknowledgement, and nothing
contained herein is intended to or shall create such a duty as to any advances
or transaction hereafter.


 


	
   

  	
  GEOLOGISTICS
  CORPORATION,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  R. Jackson

  	
   

  
	
   

  	
  Name:

  	
  R.
  Jackson

  	
   

  
	
   

  	
  Title:

  	
  VP
  - General Counsel

  	
   

  



 


7