Exhibit
4.15


 


SECOND AMENDMENT TO

AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT

AND WAIVER


 


THIS SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”),
dated as of August 21, 2003, 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”), AIR FREIGHT
CONSOLIDATORS INTERNATIONAL, INC., a New York corporation (“ACI”), and
GEOLOGISTICS EXPO SERVICES, LLC, a Georgia limited liability company, as
successor in interest to LEP FAIRS INC., a Georgia corporation (“EXPO’’
and together with MIL, GLA and ACI, 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 (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.                                     The following Events of Default have occurred and are continuing, under the
Loan Agreement: (i) the failure of ACI to continue to do business in contravention
of, without limitation, the terms of Sections 9.7(e), 9.7(f) and 10.1 (g) of the
Loan Agreement and the transfer of all of ACI’s business operations and certain
of its assets and a grant of a license to use the ACI name to Carotrans
International, Inc, in contravention of, without limitation, the terms of Section 9.7(b)
of the Loan Agreement and (ii) the formation of GeoLogistics Expo Services, LLC
in contravention of, without limitation, the terms of Sections 9.7(c) and 9.10
of the Loan Agreement, the merger of LEP Fairs Inc. with and into GeoLogistics
Expo Services, LLC with LEP Fairs Inc. ceasing to exist in contravention of,
without limitation, Sections 9. l(a), 9.1(b), 9.7(a), 9.7(c), 9.7(b) and 10.l(g)
of the Loan Agreement and the changing of LEP Fairs Inc.’s chief executive
office to 1123 Zonolite Road, Atlanta, Georgia 30306 in contravention of Section 9.1(c) of the Loan Agreement (collectively,
the Known Existing Defaults”).


 


C.                                     Borrower have requested that, Lender waive
the Known Existing Defaults and amend
the Loan Agreement on the terms
and conditions set forth herein.


 


D.                                    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.


 


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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)                                  Each,
reference in the Loan Agreement and the other Financing Agreements to “LEP”
shall mean and be a reference to “EXPO.” As used in the Loan Agreement and the
other Financing Agreements, the term “Borrowers” shall include EXPO.


 


(b)                                 The
first sentence of Section 12.1 (a) of the Loan Agreement is hereby amended
to read as follows:


 


“This
Agreement and the other Financing Agreements shall become effective as of the
date set forth on the first page hereof and shall continue in full force and
effect for a term ending on January 31, 2005 (the “Renewal Date”)
unless sooner terminated pursuant to the terms hereof.”


 


2.                                       Acknowledgement
by EXPO; Grant Security Interest, etc.


 


(a)                                  EXPO
hereby acknowledges and agrees that, by operation of its merger with LEP Fairs
Inc., it has succeeded to all of the liabilities and obligations of such entity
under the Loan Agreement and the other Financing Agreements and further
acknowledges and agrees that: (i) it shall be jointly and severally liable for
all Obligations; (ii) it shall perform all of the covenants and agreements
applicable to Borrowers in the Loan Agreement and the other Financing
Agreements; and (iii) Lenders, shall have all of the rights, remedies, interests
and powers as against EXPO provided to Lender in relation to Borrowers in the
Loan Agreement and the other Financing Agreements.


 


(b)                                 To
secure payment and performance of all Obligations, EXPO hereby grants to Lender
a continuing security interest in, a lien upon, and a right of set off against,
and hereby assigns to Lender as security, all Collateral, whether now owned or
hereafter acquired or existing, and wherever located. EXPO hereby represents
and warrants to Lender the truth and accuracy of all representations and
warranties applicable to Borrowers in the Loan Agreement.


 


3.                                       Waiver
of Known Existing Defaults.   Lender
hereby waives the Known Existing Defaults and all of its rights against
Borrowers arising from the Known Existing Defaults; provided, however,
nothing herein shall be deemed a waiver with respect to any other or future
failure of any Borrower to comply fully with Sections 9.l(a), 9.l(b), 9.1(c), 9.7(a),
9.7(b) 9.7(e), 9.7(f), 9.10 and 10.1(g) of the Loan Agreement. This waiver shall
be effective only for the specific defaults comprising the Known Existing Defaults,
and in no event shall this waiver be deemed to be a waiver of enforcement of
Lender’s rights with respect to any other Defaults or Events of Default now
existing or hereafter arising. Nothing contained in this Amendment nor any
communications between any Borrower and Lender shall be a waiver of any rights
or remedies Lender has or may have against any Borrower, except as specifically
provided herein.


 


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Except as specifically provided herein,
Lender hereby reserves and preserves all of its rights and remedies against each
Borrower under the Loan Agreement and the other Financing Agreements.


 


4.                                       Release:
Covenant Not to Sue.


 


(a)                                  Each
Borrower hereby absolutely and unconditionally releases and forever discharges
the Lender, and any and all participants, parent corporations, subsidiary
corporations, affiliated corporations, insurers, indemnitors, successors and
assigns thereof, together with all of the present and former directors,
officers, agents and employees of any of the foregoing (each a “Released
Party”), from any and all claims, demands or causes of action of any kind,
nature or description, whether arising in law or equity or upon contract or tort
or under any state or federal law or otherwise, which such Borrower has had,
now has or has made claim to have against any such person for or by reason of
any act, omission, matter, cause or thing whatsoever arising from the beginning
of time to and including the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown. It is the intention
of each Borrower in providing this release that the same shall be effective as
a bar to each and every claim, demand and cause of action specified, and in
furtherance of this intention it waives and relinquishes all rights and
benefits under Section 1542 of the Civil Code of the State of California,
which provides:


 


“A general
release does not extend to claim’s which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him might have materially affected his settlement with the debtor.”


 


Each Borrower acknowledges that it may
hereafter discover facts different from or in addition to those now known or
believed to be true with respect to such claims, demands, or causes of action
and agree that this instrument shall be and remain effective in all respects
notwithstanding any such differences or additional facts. Each Borrower
understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the provisions of such release.


 


(b)                                 Each
Borrower, on behalf of itself and its successors, assigns, and other legal representatives,
hereby absolutely, unconditionally and irrevocably, covenants and agrees with
and in favor of each Released Party above that will not sue (at law, in equity,
in any regulatory proceeding or otherwise) any Released Party on the basis of
any claim released, remised and discharged by Borrower pursuant to the above
release. If any Borrower or any of its successors, assigns or other legal
representations violates the foregoing covenant, such Borrower, for itself and
its successors, assigns and legal representatives, agrees to pay, in addition
to such other damages as any Released Party may sustain as a result of such
violation, all attorney’s fees and costs incurred by such Released Party as a
result of such violation.


 


5.                                       Effectiveness
of this Amendment.   Lender must have
received the following items, each in form and content acceptable to Lender,
before this Amendment, and the waivers provided for herein are effective.


 


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


 


(b)                                 Amendment Fee.   An
amendment fee, which may be paid by way of a charge against Borrowers’ loan
account, in the amount of One Hundred Twenty-Two Thousand Seven Hundred
Twenty-Seven Dollars ($122,727), which fee is fully earned as of the date
hereof and is due and payable on September 15, 2003.


 


(c)                                  Perfection
of Lieus.   Evidence of Lender’s first priority perfected
security interest in the assets of
EXPO, subject only to the liens that arc expressly permitted under the terms of
the Loan Agreement.


 


(d)                                 Certified Resolutions, Charter Documents and
Incumbency.   A certificate, of the manager or secretary of
EXPO, as applicable as to the resolutions of EXPO’s members with respect to the transactions contemplated
hereby, the incumbency of the
officers or managers (as applicable) of EXPO and including certified copies of
EXPO’s operating agreement and certificate of formation.


 


(e)                                  Information Certificate.   An
Information Certificate duly executed by EXPO, in form satisfactory to Lender.


 


(f)                                    UK Facility Amendment.   A
fully-executed amendment to the UK Loan Agreement effecting such amendments
thereto as may be necessary to reflect the amendments herein.


 


(g)                                 Equity Contribution by Questor.   Evidence
of (i) the receipt by GLC of no less than $13,500,000 in equity contributions
or loans from Questor Management Company, LLC for its affiliate funds) and (ii)
the receipt by the Borrowers and GL UK, of a significant portion of the funds
so provided to GLC, to be used for working capital purpose.


 


(h)                                 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 that the date hereof, must be true and correct.


 


(i)                                     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, including,
without limitation, amendments or joinders to any Financing Agreements
previously executed by LEP Fairs Inc. pursuant to which EXPO acknowledges its
obligations thereunder as successor in interest to LEP Fairs Inc.


 


6.                                       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,


 


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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.


 


(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.   After giving effect to the
waivers contained in this Amendment,
no event has occurred and is continuing that constitutes an Event of Default.


 


(f)                                    No
Duress.   This Amendment has been
entered into without force or duress, of the free will of each Borrower. Each
Borrower’s decision to enter into this Amendment is a fully informed decision
and such Borrower is aware of all legal and other ramifications of such
decision.


 


(g)                                 Counsel.
  Each Borrower has read and understands
this Amendment, has consulted with and been represented by legal counsel in
connection herewith, and has been advised by its counsel of its rights and
obligations hereunder and thereunder.


 


7.                                       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, and construed in accordance with the
internal laws of the State of California governing contracts only to be
performed in that State.


 


8.                                       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.


 


9.                                       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


 


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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.


 


10.                                     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.


 


11.                                    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.


 


12.                                   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.


 


13.                                    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.


 


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


 


	
  “LENDER”

  	
   

  	
  “BORROWERS”

  
	
   

  	
   

  	
   

  
	
  CONGRESS FINANCIAL CORPORATION

  (WESTERN),

  	
   

  	
  MATRIX INTERNATIONAL LOGISTICS

  INC.

  
	
  a California corporation

  	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Gary Whitaker

  	
   

  	
   

  	
  By:

  	
  /s/ Steven Davison

  	
   

  
	
  Title:

  	
  V.P.

  	
   

  	
   

  	
  Title:

  	
  V.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GEOLOGISTICS AMERICAS INC,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven Davison

  	
   

  
	
   

  	
   

  	
  Title:

  	
  V.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AIR FREIGHT CONSOLIDATORS

  INTERNATIONAL, INC.,

  a New York corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven Davison

  	
   

  
	
   

  	
   

  	
  Title:

  	
  V.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GEOLOGISTICS EXPO SERVICES, LLC,

  
	
   

  	
   

  	
  a Georgia limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven Davison

  	
   

  
	
   

  	
   

  	
  Title:

  	
  V.P.

  	
   

  
									



 


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ACKNOWLEDGEMENT AND
RELEASE BY GUARANTOR


 


Dated, as of August 21,
2003


 


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 Second Amendment to Amended and Restated Loan and Security Agreement
and Waiver (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 to
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.


 


Guarantor hereby absolutely
and unconditionally releases and forever discharges each Released Party, from
any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which Guarantor has had, now has or has made
claim to have against any such person for or by reason of any act, omission,
matter, cause or thing whatsoever arising from the beginning of time to and
including the date hereof, whether such claims, demands and causes of action
arc matured or unmatured or known or unknown. It is the intention of Guarantor
in providing this release that the same shall be effective as a bar to each and
every claim, demand and cause of action specified, and on furtherance of this
intention it waives and relinquishes all rights and benefits under Section 1542
of the Civil Code of the State of California, which provides:


 


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him might have materially affected his
settlement with the debtor.”


 


Guarantor acknowledges that
it may hereafter discover facts different from or in addition to those now
known or believed to be true with respect to such claims, demands, or causes of
action and agree that this instrument shall be and remain effective in all
respects notwithstanding any such differences or additional facts. Guarantor
understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the provisions of such
release. Guarantor, on behalf of itself and its successors, assigns and other
legal representatives, hereby absolutely, unconditionally and irrevocably,
covenants and agrees with and in favor of each Released Party above that it
will not sue (at law,  in equity,
in any regulatory proceeding or otherwise) any Released Party on the basis of any claim released, remised and discharged by Guarantor pursuant


 


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to the above release. If Guarantor or any of its
successors, assigns or other legal representations violates the foregoing
covenant, Guarantor, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any
Released Party may sustain as a result of such violation, all attorneys' fees
and costs incurred by such Released Party as a result of such violation.


 


	
   

  	
   

  	
  GEOLOGISTICS CORPORATION,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven Davison

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Exec. V.P.

  	
   

  
						



 


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