Exhibit 4.12


 


$4,000,000


 


SECOND LIEN
CREDIT AGREEMENT


 


Dated as of
December 28, 2004


 


among


 


GEOLOGISTICS CORPORATION


as Borrower


 


and


 


THE LENDERS PARTY HERETO


 


and


 


CITICORP NORTH AMERICA, INC,

as Administrative
Agent


 


and


 


BEAR STEARNS CORPORATE LENDING
INC.

as Syndication Agent


 


***


 


CITIGROUP GLOBAL MARKETS INC.


 


and


 


BEAR, STEARNS & CO. INC.

as  Joint
Lead Arrangers and Joint Book-Running Managers


 


 


WEIL, GOTSHAL & MANGES LLP

767 FIFTH AVENUE


NEW YORK, NEW YORK 10153-0119


 





















 


TABLE OF
CONTENTS


 


	
  Article I
  Definitions, Interpretation And Accounting Terms

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Defined Terms

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Computation of Time
  Periods

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Accounting Terms
  and Principles

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 1.4

  	
  Conversion and Rounding
  Off

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 1.5

  	
  Certain Terms

  	
  21

  
	
   

  	
   

  	
   

  
	
  Article II The
  Facility

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  The Commitments

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Borrowing
  Procedures

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  Reduction and
  Termination of the Commitments

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 2.4

  	
  Repayment of Loans

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 2.5

  	
  Evidence of Debt

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 2.6

  	
  Optional
  Prepayments

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 2.7

  	
  Mandatory
  Prepayments

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 2.8

  	
  Interest

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 2.9

  	
  Conversion/Continuation
  Option

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  Fees

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  Payments and Computations

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 2.12

  	
  Special
  Provisions Governing Eurodollar Rate Loans

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 2.13

  	
  Capital Adequacy

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 2.14

  	
  Taxes

  	
  31

  
	
   

  	
   

  	
   

  
	
  Article III
  Conditions To Loans

  	
   

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Conditions
  Precedent to Loans

  	
  33

  
	
   

  	
   

  	
   

  
	
  Article IV
  Representations and Warranties

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Corporate/Company
  Existence, Power and Authority; Subsidiaries

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Financial
  Statements; No Material Adverse Change

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Title to Properties

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  Tax Returns

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Litigation

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Compliance with
  Other Agreements and Applicable Laws

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Environmental
  Compliance

  	
  38

  



 


i





















 


	
  Section 4.8

  	
  Employee Benefits

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 4.9

  	
  Intellectual
  Property

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Subsidiaries;
  Affiliates; Capitalization; Solvency

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 4.11

  	
  Labor Disputes

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 4.12

  	
  Restrictions on
  Subsidiaries

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 4.13

  	
  Material
  Contracts

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 4.14

  	
  Margin
  Regulations

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 4.15

  	
  Investment
  Company Act; Public Utility Holding Company Act 

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 4.16

  	
  Accuracy and
  Completeness of Information

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 4.17

  	
  Survival of
  Warranties; Cumulative

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 4.18

  	
  Ranking

  	
  42

  
	
   

  	
   

  	
   

  
	
  Article V
  Financial Covenants

  	
   

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Minimum EBITDA

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Minimum Tangible
  Net Worth

  	
  43

  
	
   

  	
   

  	
   

  
	
  Article VI
  Affirmative and Negative Covenants

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Maintenance of
  Existence

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Compliance with
  Laws, Regulations, Etc.

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Payment of Taxes
  and Claims

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Insurance

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Financial
  Statements and Other Information

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  Sale of Assets, Consolidation, Merger,
  Dissolution, Etc.

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Encumbrances

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  Indebtedness

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Loans, Investments,
  Etc.

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Dividends and
  Redemptions; Management Fees; Reimbursement 

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Transactions with
  Affiliates

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.12

  	
  Compliance with
  ERISA

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.13

  	
  End of Fiscal
  Years, Fiscal Quarters

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.14

  	
  Change in
  Business

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.15

  	
  Limitation of
  Restrictions Affecting Subsidiaries

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 6.16

  	
  License
  Agreements

  	
  58

  



 


ii





















 


	
  Section 6.17

  	
  Use of Proceeds

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 6.18

  	
  Access to Premises

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 6.19

  	
  Collection of Accounts

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 6.20

  	
  No Speculative Transactions

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 6.21

  	
  Ranking

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 6.22

  	
  Post-Closing Deliveries

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 6.23

  	
  Further Assurances

  	
  61

  
	
   

  	
   

  	
   

  
	
  Article VII Events of Default

  	
   

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Events of Default

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Remedies

  	
  64

  
	
   

  	
   

  	
   

  
	
  Article VIII The Agents

  	
   

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Authorization and Action

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  Agents’ Reliance, Etc.

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 8.3

  	
  Agents Individually

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 8.4

  	
  Lender Credit Decision

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 8.5

  	
  Indemnification

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 8.6

  	
  Successor Administrative Agent

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 8.7

  	
  Concerning the Collateral and the
  Collateral Documents

  	
  68

  
	
   

  	
   

  	
   

  
	
  Article IX Miscellaneous

  	
   

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Amendments, Waivers, Etc.

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Assignments and Participations

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Costs and Expenses

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 9.4

  	
  Indemnities

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 9.5

  	
  Limitation of Liability

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 9.6

  	
  Right of Set-off

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 9.7

  	
  Sharing of Payments, Etc.

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 9.8

  	
  Notices, Etc.

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 9.9

  	
  No Waiver; Remedies

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 9.10

  	
  Binding Effect

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 9.11

  	
  Governing Law

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 9.12

  	
  Submission to Jurisdiction; Service
  of Process

  	
  78

  



 


iii





















 


	
  Section 9.13

  	
  Waiver of Jury
  Trial

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 9.14

  	
  Marshaling; Payments
  Set Aside

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 9.15

  	
  Section Titles

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 9.16

  	
  Execution in
  Counterparts

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 9.17

  	
  Entire Agreement

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 9.18

  	
  Confidentiality

  	
  80

  



 


iv
















 


SECOND LIEN CREDIT AGREEMENT, dated as of December 28, 2004 among GEOLOGISTICS CORPORATION, a
Delaware corporation (the “Borrower”),
the Lenders party hereto (as defined below), CITICORP NORTH
AMERICA, INC. (“CNAI”), as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”) and BEAR STEARNS CORPORATE LENDING
INC. (“Bear Stearns”), as syndication agent for the
Lenders (in such capacity, the “Syndication Agent”).


 


WlTNESSETH:


 


WHEREAS, 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, the
“US
Senior Borrowers”) are
parties to an Amended and Restated Loan and Security Agreement, dated November 7,
2001, as amended by that certain first amendment, dated December 31, 2001,
as further amended by that certain second amendment, dated as of August 21,
2003, as further amended by that certain third amendment, dated as of March 26,
2004, and as further amended by that certain fourth amendment, dated as of November 4,
2004, and as further amended by that certain fifth amendment, dated as of December 28,
2004 (collectively, as amended, modified or supplemented from time to time to
the extent permitted herein, the “US Senior Credit Agreement”) with Congress Financial
Corporation (Western), a California corporation (together with its successors
and permitted assigns, the “US Senior Lender”);


 


WHEREAS, Geologistics Limited, a limited company registered in England
and Wales (together with its successors, the “UK Borrower”) entered into a Facility
Agreement, dated March 31, 2000, as amended by that certain letter
amendment dated March 26, 2004 (as amended, supplemented or otherwise
modified from time to time to the extent permitted herein, the “UK
Senior Credit Agreement”), with
Burdale Financial Limited, a limited company registered in England and Wales
(together with its successors and permitted assigns, the “UK
Senior Lender”);


 


WHEREAS, the UK Borrower has entered into a Second Lien Facility
Agreement (the “UK Credit Agreement”), dated the date hereof, with the
lenders party thereto (together with its successors and permitted assigns, the “UK  Lender”), CNAI,
as administrative agent for such lenders (in such capacity and together with
its successors, the “UK Administrative Agent”), Bear Stearns, as syndication
agent for such lenders (in such capacity and together with its successors, the “UK
Syndication Agent”);


 


WHEREAS, the Borrower has requested that the Lenders make available for
the purposes specified in this Agreement a term loan facility; and


 


WHEREAS, the Lenders are willing to make available to the Borrower such
term loan facility upon the terms and subject to the conditions set forth herein;


 


NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:


 





















 


CREDIT AGREEMENT


GEOLOGISTICS CORPORATION


 


ARTICLE I


 


DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS


 


Section 1.1                                   Defined Terms


 


As used in this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):


 


“Administrative
Agent”  has the meaning specified in the preamble to
this Agreement.


 


“Affiliate”  means, with respect to any Person, any other Person directly or
indirectly controlling or that is controlled by or is under common control with
such Person, each officer, director, general partner or joint-venturer of such
Person, and each Person that is the beneficial owner of 10% or more of any
class of voting Capital Stock of such Person. For the purposes of this
definition, “control”  means
the possession of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.


 


“Agents”  means each of the Administrative Agent and the Syndication Agent.


 


“Agreement”  means this Second Lien Credit Agreement.


 


“Applicable
Lending Office”  means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.


 


“Applicable
GAAP”  means either GAAP or UK GAAP, as the case may
be, in accordance with which the audited financial statements of the relevant
Person are prepared.


 


“Applicable Margin”  means:


 


(a)                                  during the period commencing on the Closing
Date and ending on the date that is 270 days after the Closing Date, with respect
to Loans maintained as (i) Base Rate Loans, a rate equal to 5.50% per annum and
(ii) Eurodollar Rate Loans, a rate equal to 6.50% per annum;


 


(b)                                 during the period commencing on the date that
is 271 days after the Closing Date and ending on the date that 450 days after
the Closing Date, with respect to Loans maintained as (i) Base Rate Loans, a
rate equal to 7.50% per annum and (ii) Eurodollar Rate Loans, a rate equal to
8.50% per annum; and


 


(c)                                  thereafter, as of any date of determination,
with respect to Loans maintained as (i) Base Rate Loans, a rate equal to 9.50%
per annum and (ii) Eurodollar Rate Loans, a rate equal to 10.50% per annum.


 


2





















 


 


“Approved
Fund”  means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.


 


“Arranger”  means each of Citigroup Global Markets Inc. and Bear, Stearns & Co.
Inc., each in their capacity as joint lead arrangers and joint book-running
managers.


 


“Asia
Pacific”  means GeoLogistics (Asia Pacific) Limited, a
company organized and existing under the law of the British Virgin Islands.


 


“Asset
Sale”  has the meaning specified in Section 6.6(a)(iii)
(Sale of Assets, Consolidation, Merger, Dissolution, Etc.).


 


“Assignment
and Acceptance”  means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit A (Form of
Assignment and Acceptance).


 


“Bankruptcy
Code”  means title 11, United States Code.


 


“Base
Rate”  means, for any period, a  fluctuating
interest rate per annum as shall be in effect from time to time, which rate per
annum shall be equal at all times to the highest of the following:


 


(a)                                  the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as Citibank’s base rate;


 


(b)                                 the sum (adjusted to the nearest 0.25% or, if
there is no nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum,
(ii) the rate per annum obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market banks,
such three-week moving average being determined weekly on each Monday (or, if
any such day is not a Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by Citibank on the basis of
such rates reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus
the average of the daily percentages specified during such
three-week period by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) for Citibank in respect of liabilities consisting of or
including (among other liabilities) three-month U.S. dollar nonpersonal time
deposits in the United States and (iii) the average during such three-week
period of the maximum annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for insuring Dollar
deposits in the United States; and


 


(c)                                  0.5% per annum plus the Federal Funds Rate.


 


3





















 


 


“Base
Rate Loan”  means any Loan during any period in which it
bears interest based on the Base Rate.


 


“Bear Stearns”  has
the meaning specified in the preamble to this Agreement.


 


“Bermuda
Stock Pledge”  means the Charge Over Shares, dated the date hereof, between International Management and CNAI.


 


“Borrower”  has the meaning specified in the preamble to this Agreement.


 


“Borrowing”  means the borrowing consisting of Loans made on the Closing Date by the
Lenders ratably according to their respective Commitments.


 


“Breach
Amount”  has the meaning specified in Section 7.1(c)(ii) (Events of Default).


 


“Business
Day”  means a day of the year on which banks are
not required or authorized to
close in any of the states of New York or California and, if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Eurodollar Rate or any Eurodollar Rate Loan, a day on which
dealings in Dollar deposits are also carried on in the London interbank market.


 


“BVI
Stock Pledge”  means the Charge Over Shares, dated the date
hereof, among Holdings Bermuda
and CNAI.


 


“Capital
Lease”  means, as applied to any Person, any lease of
(or any agreement conveying the right to use) any property (whether real,
personal or mixed) by such Person as lessee that, in accordance with GAAP, is required to be reflected as a liability
on the balance sheet of such Person.


 


“Capital
Stock”  means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated)
of such Person’s capital stock, partnership interests or limited liability
company interests at any time outstanding, and any and all rights, warrants or
options exchangeable for or convertible into such capital stock or other
interests (but excluding any debt security that is exchangeable for or
convertible into such capital stock).


 


“Cash
Equivalents”  means, at any time, each of the following:


 


(a)                                  any evidence of indebtedness with a maturity
date of 90 days or less issued or directly and fully guaranteed or insured by
the United States of America of any agency or instrumentality thereof; provided, however, that the full faith and
credit of the United States of America is pledged in support thereof;


 


(b)                                 certificates of deposit or bankers’
acceptances with a maturity of 90 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250,000,000;


 


(c)                                  commercial paper (including variable rate
demand notes) with a maturity of 90 days or less issued by a corporation
(except an Affiliate of any Restricted Person)


 


4





















 


organized under the laws of any state of the United States of America
or the District of Columbia and rated at least A-1 by S&P or at least P-1
by Moody’s;


 


(d)                                 repurchase obligations with a term of not
more than 30 days for underlying securities of the types described in clause (a) above entered into with any financial
institution having combined capital and surplus and undivided profits of not
less than $250,000,000;


 


(e)                                  repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally
guaranteed by the United States of America or issued by any governmental agency
thereof and backed by the full faith and credit to the United States of
America, in each case maturing within 90 days or less from the date of
acquisition; provided, however, that
the terms of such agreements comply with the guidelines set forth in the
Federal Financial Agreements of Depository Institutions with Securities Dealers
and Others, as adopted by the Comptroller of the Currency on October 31, 1985;
and


 


(f)                                    investments in money market funds and mutual
funds which invest substantially all of their assets in securities of the types
described in clauses (a) through (e) above.


 


“Change
of Control”  means (a) the acquisition by any Person or
group (as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended), except
for one or more Questor Funds, of beneficial ownership, directly or indirectly,
of 50% or more of the voting power of the total outstanding voting Capital
Stock of the Borrower or (b) the failure of the Borrower to own, directly or
indirectly, the beneficial ownership of 100% of the voting power of the total
outstanding voting Capital Stock of any Loan Party.


 


“Citibank”  means Citibank, N.A., a national banking association.


 


“Closing
Date”  means the date on which the Loans are made.


 


“CNAI”  has the meaning specified in the preamble to this Agreement.


 


“Code”  means the U.S. Internal Revenue Code of 1986, as currently amended.


 


“Collateral”  means all property and interests in property and proceeds thereof now
owned or hereafter acquired by any Loan Party in or upon which a lien or
security interest is granted under any Collateral Document.


 


“Collateral
Documents”  means the Security Agreement, the Pledge
Agreement, each Deposit Account Control Agreement and each other document
executed and delivered by a Loan Party granting a lien on any of its property
to secure payment of any Secured Obligation.


 


“Commitment”  means, with respect to each Lender, the commitment of such Lender to
make a Loan to the Borrower in the aggregate principal amount outstanding not
to exceed the amount set forth opposite such Lender’s name on Schedule I under the caption “Commitment”
and as such amount may be reduced pursuant to this Agreement.


 


5





















 


“Compliance
Certificate”  has the meaning assigned to it in Section 6.5(a) (Financial Statements and Other
Information).


 


“Debt
Issuance”  means the incurrence by the Borrower or any
of its Subsidiaries of indebtedness for borrowed money or of any other
obligation evidenced by bonds, notes, debentures or similar instruments,
excluding any indebtedness permitted pursuant to clauses (a) through (d) and
clauses (f) through (j)
of Section 6.8 (Indebtedness) and
excluding, in the case of clause (e) and
to the extent of any Breach Amount, any credit support provided pursuant to clause 7.1(c)(ii)(Events of Default).


 


“Default”  means any event that, with the passing of time or the giving of notice
or both, would become an Event of Default.


 


“Deposit
Account Control Agreement”  means an agreement in writing, in form and
substance satisfactory to each Agent, by and among the Administrative Agent,
each Loan Party and any bank at which any deposit account of such Loan Party is
at any time maintained.


 


“Disclosure
Documents”  means, collectively, each document filed by
any Restricted Person with the Securities and Exchange Commission, as amended
from time to time.


 


“Dollars”  and the sign “$”  each
mean the lawful money of the United States of America.


 


“Domestic
Lending Office”  means, with respect to any Lender, the office
of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule II or on the Assignment and
Acceptance by which it became a Lender or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the
Administrative Agent.


 


“Domestic
Person”  means any “United States person” under and as
defined in Section 7701(a)(30) of the Code.


 


“Domestic
Subsidiary”  means any Subsidiary of the Borrower
organized under the laws of any state of the United States of America or the
District of Columbia.


 


“EBITDA”  means, with respect to any Person (on an unconsolidated basis for each
component hereof), with respect to any period, an amount equal to the
following: (a) the Net Income of such Person for such period determined in
accordance with GAAP, plus (b) depreciation, amortization and other
non-cash charges (including, but not limited to, imputed interest, write down
of goodwill and deferred compensation) of such Person for such period (to the
extent deducted in the computation of Net Income), all in accordance with GAAP,
plus (c) Interest Expense of such Person for such period (to the extent
deducted in the computation of Net Income), and plus (d) the Provision
for Taxes for such period (to the extent deducted in the computation of Net
Income).


 


“Eligible
Assignee”  means (a) a Lender or any Affiliate or
Approved Fund of such Lender, (b) a commercial bank having total assets in
excess of $5,000,000,000, (c) a finance company, insurance company or any other
financial institution or fund, in each case reasonably acceptable to the
Administrative Agent and regularly engaged in making, purchasing or investing
in loans and having a net worth, determined in accordance with GAAP, in excess
of $250,000,000 or, to the extent net worth is less than such amount, a finance
company, insurance


 


6





















 


company,
other financial institution or fund, reasonably acceptable to the
Administrative Agent or (d) a savings and loan association or savings bank
organized under the laws of the United States or any state thereof having a net
worth, determined in accordance with GAAP, in excess of $250,000,000.


 


“Environmental
Laws”  means all federal, state, district, local and
foreign laws, rules, regulations, ordinances, and consent decrees relating to
health, safety, hazardous substances, pollution and environmental matters, as now
or at any time hereafter in effect, applicable to any Restricted Person’s
business and facilities (whether or not owned by it), including laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contamination, chemicals, or hazardous, toxic or dangerous substances,
materials or wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata) or
otherwise relating to the generation, manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals, or hazardous, toxic or dangerous substances, materials
or wastes.


 


“Equity
Issuance”  means the issue or sale of any Capital Stock
of (a) the Borrower to any Person other than to the Permitted Holders and (b)
any Subsidiary of the Borrower to any Person other than the Borrower and its
Subsidiaries.


 


“ERISA”  means the United States Employee Retirement Income Security Act of
1974.


 


“ERISA
Affiliate”  means any Person required to be aggregated
with any Restricted Person under Sections 414(b), 414(c), 414(m) or 414(o) of
the Code.


 


“ERISA
Event”  means (a) any “reportable event”, as defined
in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan or Multiemployer Plan; (b) the adoption of any amendment to a
Plan or Multiemployer Plan that would require the provision of security
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA;
(c) the existence with respect to any Plan or Multiemployer Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived; (d) the filing pursuant to Section 412
of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan or Multiemployer Plan;
(e) the occurrence of a non-exempt “prohibited transaction” with respect to
which any Restricted Person is a “disqualified person” (within the meaning of Section 4975
of the Code) or with respect to which any Restricted Person could otherwise be
liable; (f) a complete or partial withdrawal by any Restricted Person or any
ERISA Affiliate from a Multiemployer Plan or a cessation of operations which is
treated as such a withdrawal or notification that a Multiemployer Plan is in
reorganization; (g) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the Pension Benefit Guaranty
Corporation to terminate a Plan or Multiemployer Plan; (h) an event or
condition which might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan or Multiemployer Plan; (i) the imposition of any liability under Title
IV of ERISA, other than the Pension Benefit Guaranty Corporation premiums due
but not delinquent under Section 4007 of ERISA, upon any Restricted Person
or any ERISA Affiliate; and (j) any other event or condition with respect to a
Plan or Multiemployer Plan including any Plan or Multiemployer Plan subject to
Title IV of ERISA maintained, or contributed to, by any ERISA Affiliate that
could reasonably be


 


7





















 


expected
to result in liability of any Restricted Person in excess of $500,000 (other
than liabilities for routine funding of benefits).


 


“Eurocurrency
Liabilities”  has the meaning assigned to that term in
Regulation D of the Federal Reserve Board.


 


“Eurodollar
Base Rate”  means, with respect to any Interest Period
for any Eurodollar Rate Loan, the rate determined by the Administrative Agent
to be the offered rate for deposits in Dollars for the applicable Interest Period
appearing on the Dow Jones Markets Telerate Page 3750 as of 11:00 a.m., London
time, on the second full Business Day next preceding the first day of each
Interest Period.  In the event that such
rate does not appear on the Dow Jones Markets Telerate Page 3750 (or otherwise
on the Dow Jones Markets screen), the Eurodollar Base Rate for the purposes of
this definition shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected
by the Administrative Agent, or, in the absence of such availability, the
Eurodollar Base Rate shall be the rate of interest determined by the
Administrative Agent to be the rate per annum at which deposits in Dollars are
offered by the principal office of Citibank in London to major banks in the
London interbank market at 11:00 a.m. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal to the
Eurodollar Rate Loan of Citibank for a period equal to such Interest Period.


 


“Eurodollar
Lending Office”  means, with respect to any Lender, the office
of such Lender specified as its “Eurodollar Lending Office” opposite its name
on Schedule II or on the
Assignment and Acceptance by which it became a Lender (or, if no such office is
specified, its Domestic Lending Office) or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the
Administrative Agent.


 


“Eurodollar
Rate”  means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage
equal to 100% minus (ii) the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the Eurodollar Rate is determined) having a term equal to such Interest
Period.


 


“Eurodollar
Rate Loan”  means any Loan that, for an Interest Period,
bears interest based on the Eurodollar Rate.


 


“Event of
Default”  has the meaning specified in Section 7.1
(Events of Default).


 


“Excluded
Foreign Subsidiary”  means any Subsidiary that is not a Domestic
Subsidiary in respect of which either (a) the pledge of all of the Capital
Stock of such Subsidiary as Collateral to secure payment of the Obligations of
the Borrower or (b) the guaranteeing by such Subsidiary of the Obligations of
the Borrower, would, in the good faith judgment of the Borrower based on an
analysis reasonably satisfactory to each Agent, result in materially adverse
tax consequences to the Restricted Persons, taken as a whole; provided, however, that no such Subsidiary
shall be an “Excluded Foreign Subsidiary” if such Subsidiary has entered into
any


 


8





















 


arrangement
to guarantee, or has granted a security interest in any of its assets, or
pledged to secure, any indebtedness or other obligations of any Loan Party and
such guarantee, grant or pledge and has substantially similar tax consequences.


 


“Expo”  has the meaning specified in the recitals to this Agreement.


 


“Facilities”  means the Commitments and the provisions herein relating to the Loans.


 


“Federal
Funds Rate”  means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Federal
Reserve Board”  means the Board of Governors of the United
States Federal Reserve System, or any successor thereto.


 


“Fee
Letter”  means the fee letter, dated November 8,
2004, addressed to the Borrower from the Agents and the Arrangers and accepted
by the Borrower on November 8, 2004, with respect to certain fees,
expenses and other amounts to be paid from time to time to the Agents and the
Arrangers.


 


“Financial
Statements”  means the financial statements of the
Borrower and its Subsidiaries delivered in accordance with Section 4.2 (Financial Statements; No Material
Adverse Change) and Section 6.5 (Financial Statements and Other
Information).


 


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


 


“GIFL”  means GeoLogistics International Finance Ltd., a limited company
organized under the laws of Ireland.


 


“GIFL US
Intercompany Obligations”  means any loan or advance from any Loan Party
to GIFL, together with any interest thereon and any guaranties thereof by any
UK Loan Party.


 


“GAAP”  means generally accepted accounting principles in the United States of
America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.


 


“GLA”  has the meaning specified in the recitals to this Agreement.


 


9





















 


“Governmental
Authority”  means any nation or government, any state,
province, or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.


 


“Grantor
Parties”  means each Restricted Person other than the
Subsidiaries of Holdings Bermuda.


 


“Guarantor”  means a Person party to the Guaranty or otherwise guarantor of any
Secured Obligation.


 


“Guaranty”  means the guaranty and security agreement, in substantially the form of
Exhibit F (Form of Guaranty), executed by the Guarantors
party thereto.


 


“Hedging
Contracts”  means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.


 


“Holdings
Bermuda”  means GeoLogistics Holdings (Bermuda)
Limited, a company organized and existing under the law of Bermuda.


 


“Indemnified
Matter”  has the meaning specified in Section 9.4 (Indemnities).


 


“Indemnitee”  has the meaning specified in Section 9.4
(Indemnities).


 


“Intellectual
Property” has
the meaning specified in the Security Agreement.


 


“Intercreditor
Agreements”  means the US Intercreditor Agreement and the
UK Intercreditor Agreement.


 


“Interest
Expense”  means, for any period, with respect to any
Person and its Subsidiaries, all of the following as determined in accordance
with GAAP, total interest expense, whether paid or accrued (including the
interest component of Capital Leases for such period), including, without
limitation, all bank fees, commissions, discounts and other fees and charges
owed with respect to letters of credit, banker’s acceptances or similar
instruments, but excluding (a) amortization of discount and amortization of
deferred financing fees and closing costs paid in cash in connection with the
transactions contemplated hereby, (i) interest paid in property other than cash
and (b) any other interest expense not payable in cash.


 


“Interest
Period”  means, in the case of any Eurodollar Rate
Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan is made or on the date of conversion of
a Base Rate Loan to such Eurodollar Rate Loan and ending one, two, three or six
months thereafter as selected by the Borrower in its Notice of Borrowing or
Notice of Conversion or Continuation given to the Administrative Agent pursuant
to Section 2.2 (Borrowing Procedures) or
2.9 (Conversion/Continuation Option) and
(b) thereafter, if such Loan is continued, in whole or in part, as a Eurodollar
Rate Loan pursuant to Section 2.9
(Conversion/Continuation Option), a period commencing on the last
day of the immediately


 


10





















 


preceding
Interest Period therefor and ending one, two, three or six months thereafter as
selected by the Borrower in its Notice of Conversion or Continuation given to
the Administrative Agent pursuant to Section 2.9
(Conversion/Continuation Option); provided, however, that all of the
foregoing provisions relating to Interest Periods in respect of Eurodollar Rate
Loans are subject to the following:


 


(i)                                     if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would be to
extend such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;


 


(ii)                                  any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;


 


(iii)                               the Borrower may not select any Interest
Period that ends after the Maturity Date;


 


(iv)                              the Borrower may not select any Interest
Period in respect of Loans having an aggregate principal amount of less than
$1,000,000; and


 


(v)                                 there shall be outstanding at any one time no
more than two Interest Periods in the aggregate.


 


“Interest
Rate Contracts”  means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.


 


“Intermediate
Holding Company”  means each Person (a) in which, directly or
indirectly the Borrower owns Capital Stock and (b) that owns directly or
indirectly any Capital Stock of Asia Pacific, beneficially or otherwise.


 


“International
Management”  means GeoLogistics International Management
(Bermuda) Limited.


 


“Inventory” means all of each Restricted
Person’s now owned and hereafter existing or acquired goods, whenever located,
which (a) are leased by such Restricted Person as lessor, (b) are held by such
Restricted Person for sale or lease or to be furnished under a contract of
service, (c) are furnished by such Restricted Person under a contract of
service or (d) consist of raw materials, work in process, finished goods or materials
used or consumed in its business.


 


“IRS”  means the Internal Revenue Service of the United States or any
successor thereto.


 


“Lender”  means each financial institution or other entity that (a) is listed on
the signature pages hereof as a “Lender” or (b) from time to time becomes a
party hereto by execution of an Assignment and Acceptance.


 


11





















 


“License
Agreement”  has the meaning specified in Section 4.9 (Intellectual Property).


 


“LIW”  means LIW Holdings Corp., a Delaware corporation.


 


“Loan”  has the meaning specified in Section 2.1
(The Commitments).


 


“Loan
Documents”  means, collectively, this Agreement, the
Notes (if any), the Guaranty, the US Intercreditor Agreement, the Fee Letter,
the Collateral Documents and each certificate, agreement or document or
instrument now or at any time hereafter executed and/or delivered by any Loan
Party to the Administrative Agent or any Lender in connection with or pursuant
to any of the foregoing.


 


“Loan
Party”  means each of the Borrower, each Guarantor
and each other Subsidiary of the Borrower that executes and delivers a Loan
Document and any guarantor, endorser, acceptor, surety or other Person liable
on or with respect to the Obligations or who is the owner of any property which
is security for the Obligations.


 


“Material
Contract”  shall mean (a) any contract or other
agreement (other than the Loan Documents), written or oral, of any Restricted
Person involving monetary liability of or to any Person in an amount in excess
of $1,000,000 in any fiscal year, and (b) any other contract or other agreement
(other than the Loan Documents), whether written or oral, to which any
Restricted Person is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto would have a material
adverse effect on the business, assets, condition (financial or otherwise) or
results of operations or prospects of such Restricted Person or the validity or
enforceability of this Agreement, any of the other Loan Documents, or any of
the rights and remedies of the Agents hereunder or thereunder.


 


“Maturity
Date”  means the earlier of (a) the 547th
day after the Closing Date and (b) the earliest of the final maturities of the
US Senior Facility, UK Senior Facility and the UK Facility (whether scheduled,
by acceleration of otherwise).


 


“MIL” has the meaning specified in the
recitals to this Agreement.


 


“Moody’s” means Moody’s Investors Services, Inc.


 


“Multiemployer
Plan”  means a “multi-employer plan” as defined in Section 4001(a)(3)
of ERISA which is or was at any time during the current plan year or the
immediately preceding 6 plan years contributed to by any Loan Party or any
ERISA Affiliate.


 


“Net Cash
Proceeds”  means proceeds received by any Loan Party or
any of its Subsidiaries after the Closing Date in cash or Cash Equivalents from
any of the following:


 


(a)                                  Property Loss Event or Asset Sale, other than
an Asset Sale permitted under clause
(a)(iii)(A), (B), (C), (D), (E), (F), (G), (H), (I) or (J) of Section 6.6 (Sale of Assets,
Consolidation, Merger, Dissolution, Etc.), net of (i) the reasonable
cash costs of sale, collection, assignment or other disposition, (ii) taxes
paid or reasonably estimated to be payable as a result thereof and (iii) any
amount required to be paid or prepaid on indebtedness (other than the Secured
Obligations and obligations under the Senior Facility Documents, if any)
secured by the assets subject to such Asset


 


12





















 


Sale; provided, however, that
evidence of each of (i), (ii) and (iii) above is provided to the Administrative
Agent in form and substance satisfactory to each Agent;


 


(b)                                 (i) Equity Issuance (other than any such
issuance of common stock of the Borrower occurring in the ordinary course of
business to any director, member of the management or employee of the Borrower
or its Subsidiaries) or (ii) any Debt Issuance, in each case net of brokers’
and advisors’ fees and other costs incurred in connection with such
transaction; provided, however, that
in the case of this clause (b), evidence of such costs is provided to the
Administrative Agent in form and substance satisfactory to each Agent.


 


“Net
Income”  means, with respect to any Person, for any
period, the aggregate of the net income (loss) of such Person and its
Subsidiaries, on a consolidated basis, for such period (excluding to the extent
included therein any extraordinary or one-time gains or losses) after deducting
all charges which should be deducted before arriving at the net income (loss)
for such period and after deducting the Provision for Taxes for such period,
all as determined in accordance with GAAP; provided, however, that the effect
of any change in accounting principles adopted by such Person or its
Subsidiaries after the date hereof shall be excluded. For the purpose of this
definition, net income excludes any gain or loss, together with any related
Provision for Taxes for such gain or loss realized upon the sale or other
disposition of any assets that are not sold in the ordinary course of business
(including, without limitation, dispositions pursuant to sale and leaseback
transactions), or of any Capital Stock of such Person or a Subsidiary of such
Person and any net income realized as a result of changes in accounting
principles or the application thereof to such Person.


 


“Non-US
Lender”  means each Lender or Agent that is not a “United
States person” as defined in Section 7701(a)(30) of the Code.


 


“Note”  means a promissory note of the Borrower payable to the order of any
Lender in a principal amount equal to the amount of such Lender’s Loan to the
Borrower evidencing the indebtedness of the Borrower to such Lender resulting
from such Loan.


 


“Notice
of Borrowing”  has the meaning specified in Section 2.2 (Borrowing Procedures).


 


“Notice
of Conversion or Continuation”  has the meaning specified in Section 2.9 (Conversion/Continuation Option).


 


“Obligations”  means the Loans and all other amounts, obligations, covenants and
duties owing by the Borrower to either Agent, any Lender, any Affiliate of any
of them or any Indemnitee, of every type and description (whether by reason of
an extension of credit, opening or amendment of a letter of credit or payment
of any draft drawn or other payment thereunder, loan, guaranty, indemnification,
foreign exchange or currency swap transaction, interest rate hedging
transaction or otherwise), present or future, arising under this Agreement, any
other Loan Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any
note, guaranty or other instrument or for the payment of money, including all
letter of credit, cash management and other fees, interest, charges, expenses,
attorneys’ fees and disbursements and other sums chargeable to the Borrower
under this Agreement, any other Loan Document.


 


13





















 


“Other
Restricted Person”  means any Subsidiary of Holdings Bermuda.


 


“Other
Taxes”  has the meaning specified in Section 2.14(b)(Taxes).


 


“Permitted
Holders”  means the Questor Funds and the other Persons
listed on Schedule 1.1 and
their respective successors and assigns.


 


“Permitted
Holder Stock”  means the preferred stock of the Borrower
issued to the Questor Funds upon conversion of convertible debt owed to the
Questor Funds in an aggregate principal amount of not more than $25,781,219.62
plus any unpaid interest accrued to such principal (which, on the date of such
issuance, equaled $710,415.84);


 


“Permitted
European Consolidation”  means the sale by the Borrower and LEP
Holdings GmbH of their interests in GeoLogistics SarL (Italy) to GeoLogistics
GmbH (Germany).


 


“Permitted
Liquidation”  means the liquidation of (a) any US Group
Member into any other US Group Member or the Borrower, (b) any Intermediate
Holding Company (other than Holdings Bermuda or International Management) into
any other Intermediate Holding Company or the Borrower, (c) any UK Group Member
other than the UK Borrower into another UK Group Member or the UK Borrower, or
(d) any Other Restricted Person (other than Asia/Pacific) into any Other
Restricted Person; provided, however, that,
in order to qualify as a Permitted Liquidation, each Restricted Person shall
have complied with Section 6.23(Further
Assurances) to the satisfaction of each Agent prior to the
consummation of the liquidation and after giving effect thereto.


 


“Permitted
Sale”  means any sale, assignment, lease, transfer
or other disposition of any assets of the Borrower or its Subsidiaries out of
the ordinary course of business in an aggregate amount not the exceed
$3,000,000 per fiscal year (or $1,500,000 for the fiscal year in which the
Maturity Date occurs) for all such sales, assignments, acquisitions or
dispositions made by the Borrower or any of its Subsidiaries.


 


“Permitted
Subsidiaries”  means any wholly-owned subsidiary of any US
Group Member, UK Group Member or any Other Restricted Person; provided, however, that in the case of any
US Group Member or UK Group Member, such US Group Member or UK Group Member
shall have complied (and caused such subsidiary to comply) with Section 6.23 (Further Assurances) to the satisfaction of each Agent.


 


“Person”  means any individual, sole proprietorship, partnership, corporation
(including, without limitation, any corporation which elects subchapter S
status under the Code), limited liability company, limited liability
partnership, business trust, unincorporated association, joint stock corporation,
trust, joint venture or other entity or any government or any agency or
instrumentality or political subdivision thereof.


 


“Plan”  means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Restricted Person or any ERISA Affiliate sponsors, maintains,
or to which it makes, is making, or is obligated to make contributions, other
than a Multiemployer Plan.


 


“Pledge
Agreement”  means an agreement, in substantially the form
of Exhibit H (Form of Pledge Agreement), executed
by the Borrower and each Guarantor.


 


14





















 


“Property
Loss Event”  means (a) any loss of or damage to property
of any Loan Party or any Subsidiary of any Loan Party that results in the
receipt by such Person of proceeds of insurance in excess of $500,000
(individually or in the aggregate) or (b) any taking of property of any Loan
Party or any Subsidiary of any Loan Party that results in the receipt by such
Person of a compensation payment in respect thereof in excess of $500,000
(individually or in the aggregate).


 


“Provision
for Taxes”  means, with respect to any Person, for any
period, an amount equal to all taxes imposed on or measured by net income,
whether Federal, state or local, and whether foreign or domestic, that are paid
or payable by such Person and its Subsidiaries in respect of such period on a
consolidated basis in accordance with GAAP.


 


“Purchasing
Lender”  has the meaning specified in  Section 9.7 (Sharing of
Payments, Etc.).


 


“Questor
Funds”  means the Persons listed on Item I of Schedule 1.1 and
their respective successors.


 


“Ratable
Portion”  or (other than in the expression “equally
and ratably”) “ratably”
means, with respect to any Lender, the percentage obtained by
dividing (a) the Commitment of such Lender by (b) the aggregate Commitments of
all Lenders (or, at any time after the Closing Date, the percentage obtained by
dividing the principal amount of such Lender’s Loans by the aggregate Loans of
all Lenders).


 


“Records”  means all of each Restricted Person’s present and future books of
account of every kind or nature, purchase and sale agreements, invoices, ledger
cards, bills of lading and other shipping evidence, statements, correspondence,
memoranda, credit files and other data relating to the Collateral or any
account debtor, together with the tapes, disks, diskettes and other data and
software storage media and devices, file cabinets or containers in or on which
the foregoing are stored (including any rights of such Restricted Person with
respect to the foregoing maintained with or by any other Person).


 


“Register”  has the meaning specified in Section 2.5
(Evidence of Debt).


 


“Requisite
Lenders”  means collectively, Lenders having more than
fifty percent (50%) of the sum of the aggregate outstanding amount of the
Commitments or, after the Closing Date, more than fifty percent (50%) of the
principal amount of all Loans then outstanding.


 


“Responsible
Officer”  means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person but, in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.


 


“Restricted
Person” means
each of the following: (a) the Borrower, (b) each US Group Member and each Subsidiary
of each US Group Member, (c) each Intermediate Holding Company, (d) each UK
Group Member and (e) each Subsidiary of Holdings Bermuda.


 


“Restricted
Persons Sale and Investment Amount”
means the sum
of the following:


 


(a)                                  the aggregate outstanding principal amount of
loans and advances made by any Restricted Person to any Subsidiary of the
Borrower in reliance


 


15





















 


on Section 6.9(g)(v)(Loans,
Investments, Etc.) together with the aggregate outstanding principal
amount of any such loans and advances made by such Restricted Person after October 31,
2004 and on or before the date hereof;


 


(b)                                 the aggregate maximum amount for which
Restricted Persons could be liable in connection with any assumptions by such Restricted
Person’s of reimbursement obligations of any Subsidiary of the Borrower (if the
related letters of credit are fully drawn) made in reliance on Section 6.9(g)(v)(Loans, Investments, Etc.) together
with the aggregate maximum amount of such assumption of reimbursement
obligations assumed by such Restricted Person after October 31, 2004 and
on or before the date hereof;


 


(c)                                  the aggregate maximum amount any Restricted
Person could be liable under any guarantees for the benefit of any Subsidiary
of the Borrower made in reliance on Section 6.9(g)(v)(Loans,
Investments, Etc.) together with the aggregate maximum amount of
such guarantees made by such Restricted Person after October 31, 2004 and
on or before the date hereof;


 


(d)                                 the aggregate capital contributions made by
any Restricted Person to any Subsidiary of the Borrower pursuant to Section 6.9(g)(v)(Loans, Investments, Etc.) together
with the aggregate amount of such capital contributions made by such Restricted
Person after October 31, 2004 and on or before the date hereof; and


 


(e)                                  the fair market value of all assets
transferred in Asset Sales made in reliance on

Section 6.6(a)(iii)(G) (Sale of Assets,
Consolidation, Merger, Dissolution, Etc.) together with the fair
market value of all such assts transferred in Asset Sales made after October 31,
2004 and on or before the date hereof.


 


“S&P”  means Standard & Poor’s Rating Services.


 


“Secured
Obligation”  means, in the case of the Borrower, the
Obligations, and, in the case of any other Loan Party, the obligations of such
Loan Party under the Guaranty and the other Loan Documents to which it is a
party.


 


“Secured
Parties”  means the Lenders, the Agents, the
Indemnitees and any other holder of any Secured Obligation.


 


“Security”  means any Capital Stock, voting trust certificate, bond, debenture,
note or other evidence of indebtedness, whether or not secured, convertible or
subordinated, or any certificate of interest, share or participation in, any
temporary or interim certificate for the purchase or acquisition of, or any
warrant, option or other right to subscribe to, purchase or acquire, any other
Security.


 


“Security
Agreement”  means an agreement, in substantially the form
of Exhibit
G (Form of Security Agreement),  executed
by the Borrower and each Guarantor.


 


“Selling Lender”  has
the meaning specified in Section 9.7
(Sharing of Payments, Etc.).


 


“Senior
Facilities”  means the US Senior Facility and the UK
Senior Facility.


 


16





















 


“Senior
Facility Document”  means, collectively, each US Senior Facility
Document and each UK Senior Facility Document.


 


“Senior
Lender”  means each of the US Senior Lender and the UK
Senior Lender.


 


“Senior
Secured Party”  means any US Senior Secured Party or UK
Senior Secured Party.


 


“Solvent”  means, with respect to any Person as of any date of determination,
that, as of such date, (a) the value of the assets of such Person (both at fair
value and present fair saleable value) is greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person,
(b) such Person is able to pay all liabilities of such Person as such
liabilities mature and (c) such Person does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“Special
Purpose Vehicle”  means any special purpose funding vehicle
identified as such in writing by any Lender to the Administrative Agent.


 


“Subsidiary”  means, with respect to any Person, any corporation, limited or general
partnership, limited liability company, trust, association or other business
entity of which more than 50% of the voting stock or other voting equity
interests (in the case of a business entity other than a corporation) is owned
or controlled directly or indirectly by such Person, or one or more
Subsidiaries of such Person, or a combination thereof.


 


“Syndication
Agent”  has the meaning specified in the preamble to
this Agreement.


 


“Tangible
Net Worth”  means with respect to any Person (on an
unconsolidated basis), at any time, in accordance with GAAP (except as
otherwise specifically set forth below), the amount equal to the sum of the
following: (a) the difference between (i) the aggregate net book value of all
assets of such Person, calculating the book value of inventory for this purpose
on a first-in-first-out basis, after excluding from such assets all goodwill,
capitalized financing costs and other assets deemed intangible under GAAP, and
after deducting from such book values all appropriate reserves in accordance
with GAAP (including any reserves for doubtful receivables, obsolescence,
depreciation or amortization) and (ii) the aggregate amount of the indebtedness
and other liabilities of such Person (including tax and other proper accruals),
plus (b) indebtedness of such Person which is subordinated in right of payment
to the full and final payment of all of the Obligations on terms and conditions
acceptable to Lender. For purposes of this definition, indebtedness and
liabilities shall not include preferred stock, whether or not redeemable.


 


“Tax
Affiliate”  means, with respect to any Person, (a) any
Subsidiary of such Person, and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.


 


“Tax
Return”  has the meaning specified in Section 2.14 (Taxes).


 


“Taxes”  has the meaning specified in Section 2.14
(Taxes).


 


17





















 


“UCC” has the meaning specified in the
Security Agreement.


 


“UK
Administrative Agent”  has the meaning specified in the recitals to
this Agreement.


 


“UK
Agents”  means the UK Administrative Agent, the UK
Syndication Agent and the UK Security Trustee.


 


“UK
Borrower”  has the meaning specified in the recitals to
this Agreement.


 


“UK
Credit Agreement”  has the meaning specified in the recitals to
this Agreement.


 


“UK GAAP”  means generally accepted accounting principles in the United Kingdom as
in effect from time to time.


 


“UK Group
Member”  means each of the UK Borrower and each
Subsidiary of the UK Borrower.


 


“UK
Intercompany Pledge and Guarantee Agreement”  means the Pledge and Guarantee Agreement, dated as of March 23,
2000, between Holdings Bermuda and the UK Borrower (as amended, modified or
supplemented from time to time to the extent permitted herein).


 


“UK
Intercompany Secured Obligations”
means any
amount secured by the UK Intercompany Pledge and Guarantee Agreement, including
the “Secured Obligations”  under
and as defined in the UK Intercompany Pledge and Guarantee Agreement.


 


“UK
Intercreditor Agreement”  means the Intercreditor Agreement, dated December 28,
2004 among the UK Lenders, the UK Security Trustee, the Syndication Agent, each
UK Senior Lender, the UK Borrower and each other Grantor party thereto, in the
form of Exhibit I (UK Intercreditor
Agreement).


 


“UK Lenders”  has the meaning specified in the recitals to this Agreement.


 


“UK Loan
Document”  means, collectively, the UK Credit Agreement
and each certificate, agreement or document or instrument now or at any time
hereafter executed and/or delivered by any Loan Party to either UK Agent or any
UK Lender in connection with or pursuant to any of the foregoing.


 


“UK Loan
Party”  means the UK Borrower and each “Obligor”
under and as defined in the UK Loan Documents, together with their successors
and permitted assigns.


 


“UK
Parent”  means GeoLogistics International Holdings
(Bermuda) Ltd.


 


“UK Sale
and Investment Amount”  means the sum of the following:


 


(a)                                  the aggregate outstanding principal amount of
loans and advances made by any UK Group Member to any Other Restricted Person
in reliance on Section 6.9(g)(iv)(Loans,
Investments, Etc.) together with the aggregate outstanding


 


18





















 


principal amount of any such loans and advances made by such UK Group
Member after October 31, 2004 and on or before the date hereof;


 


(b)                                 the aggregate maximum amount for which any UK
Group Member could be liable in connection with any of such UK Group Member’s
assumption of reimbursement obligations of any Other Restricted Person (if the
related letters of credit are fully drawn) in reliance on Section 6.9(g)(iv)(Loans, Investments, Etc.) together
with the aggregate maximum amount of such assumption of reimbursement
obligations assumed by such UK Group Member after October 31, 2004 and on
or before the date hereof;


 


(c)                                  the aggregate maximum amount for which any UK
Group Member could be liable under any guarantees made for the benefit of any
Other Restricted Person in reliance on Section 6.9(g)(iv)(Loans,
Investments, Etc.) together with the aggregate maximum amount of
such guarantees made by Such UK Group Member after October 31, 2004 and on
or before the date hereof;


 


(d)                                 the aggregate amount of capital contributions
made by any UK Group Member to any Other Restricted Person in reliance on Section 6.9 (g)(iv)(Loans, Investments, Etc.) together
with the aggregate amount of such capital contributions made by such UK Group
Member after October 31, 2004 and on or before the date hereof;


 


(e)                                  the aggregate outstanding principal amount of
loans and advances made by any UK Group Member to GIFL in reliance on Section 6.9(k)(Loans, Investments, Etc.) together
with the aggregate outstanding principal amount of such loans and advanced made
by such UK Group Member after October 31, 2004 and on or before the date
hereof; and


 


(f)                                    the fair market value of all assets transferred
in Asset Sales made in reliance on

Section 6.6(a)(iii)(F) (Sale of Assets,
Consolidation, Merger, Dissolution, Etc.) together with the fair
market value of all such assts transferred in Asset Sales made after October 31,
2004 and on or before the date hereof.


 


“UK
Secured Obligations” means the “Obligations”  under and as defined in UK Credit Agreement.


 


“UK
Secured Party”  means each UK Agent, each UK Lender and each
other holder of an obligation under any UK Loan Document, together with their
successors and permitted assigns.


 


“UK
Security Trustee”  means Citicorp Trustee Company Limited.


 


“UK
Senior Credit Agreement”  has the meaning specified in the recitals to
this Agreement.


 


“UK
Senior Facility”  means the facility established pursuant to,
and governed by, the UK Senior Facility Documents.


 


“UK
Senior Facility Documents”  means, collectively, the UK Senior Credit
Agreement and each certificate, agreement or document or instrument now or at
any time


 


19





















 


hereafter
executed and/or delivered by any Grantor Party or any Affiliate of any Grantor
Party to the UK Senior Lender or any other UK Senior Secured Party in
connection with or pursuant to any of the foregoing.


 


“UK
Senior Lender”  has the meaning specified in the recitals to
this Agreement.


 


“UK
Senior Secured Party”  means, collectively, the UK Senior Lender and
each other holder of an obligation under the UK Senior Facility.


 


“UK
Syndication Agent”  has the meaning specified in the recitals to
this Agreement.


 


“Unrestricted
Subsidiary” means each Subsidiary of any Restricted Person that is not a Restricted
Person.


 


“US Group
Member” means
each Loan Party other than LIW and the Borrower.


 


“US Intercreditor
Agreement”  means the Intercreditor Agreement, dated as
of December 28, 2004 among the Administrative Agent, each US Senior
Lender, the Borrower, and each other Grantor party thereto, in the form of
Exhibit J (US Intercreditor Agreement).


 


“US Lender”  means each Lender or Agent that is a Domestic Person.


 


“US
Senior Borrowers”  has the meaning specified in the recitals to
this Agreement.


 


“US Senior Credit Agreement”  has the meaning specified in the recitals to this Agreement.


 


“US
Senior Facility”  means the facility established pursuant to,
and governed by, the US Senior Facility Documents.


 


“US
Senior Facility Document”  means, collectively, the US Senior Credit
Agreement and each certificate, agreement or document or instrument now or at
any time hereafter executed and/or delivered by any Grantor Party or any
Affiliate of any Grantor Party to the US Senior Lender or any other US Senior
Secured Party in connection with or pursuant to any of the foregoing.


 


“US
Senior Lender”  has the meaning specified in the recitals to
this Agreement.


 


“US
Senior Secured Party”  means, collectively, the US Senior Lender and
each other holder of an obligation under the US Senior Facility or the UK
Senior Facility.


 


“Voting
Stock”  means the Capital Stock of any Person having
ordinary power to vote in the election of members of the board of directors,
managers, trustees or other controlling Persons, of such Person (irrespective
of whether, at the time, Capital Stock of any other class or classes of such
entity shall have or might have voting power by reason of the happening of any
contingency).


 


20





















 


Section 1.2                                   Computation
of Time Periods


 


In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word “from”  means “from and including” and the
words “to”  and “until”  each mean “to but excluding” and
the word “through”  means
“to and including.”


 


Section 1.3                                   Accounting
Terms and Principles


 


(a)                                  Except as set forth below, all accounting
terms not specifically defined herein shall be construed in conformity with
GAAP and all accounting determinations required to be made pursuant hereto
(including for purpose of measuring compliance with Article V (Financial Covenants)) shall, unless expressly otherwise provided herein, be made in
conformity with GAAP.


 


(b)                                 If any change in the accounting principles
used in the preparation of the most recent Financial Statements referred to in Section 4.2 (Financial Statements; No Material
Adverse Change) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) and such change is adopted by the Borrower with the
agreement of the Borrower’s accountants and results in a change in any of the
calculations required by Article V
(Financial Covenants) or Article VI
(Affirmative and Negative Covenants) that would not have resulted
had such accounting change not occurred, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably reflect such
change such that the criteria for evaluating compliance with such covenants by
the Borrower shall be the same after such change as if such change had not been
made; provided, however,  that
no change in GAAP that would affect a calculation that measures compliance with
any covenant contained in Article V
(Financial Covenants) or Article VI
(Affirmative and Negative Covenants) shall be given effect until
such provisions are amended to reflect such changes in GAAP.


 


Section 1.4                                   Conversion
and Rounding Off


 


The Administrative Agent may set up appropriate conversion and rounding
off mechanisms and may otherwise round-off amounts hereunder to the nearest
higher or lower amount in whole Dollar or cent to ensure amounts owing by any
party hereunder or that otherwise need to be calculated or converted hereunder
are converted or expressed in whole Dollars or in whole cents, as may be
necessary or appropriate.


 


Section 1.5                                   Certain
Terms


 


(a)                                  The terms “herein,”  “hereof”  and “hereunder”  and similar terms refer to this
Agreement as a whole, and not to any particular Article, Section, subsection or
clause in, this Agreement.


 


(b)                                 Unless otherwise expressly indicated herein,
(i) references in this Agreement to an Exhibit, Schedule, Article, Section,
clause or sub-clause refer to the appropriate Exhibit or Schedule to, or
Article, Section, clause or sub-clause in this Agreement and (ii) the words “above”  and “below”,  when following a reference to a
clause or a sub-clause of any Loan Document, refer to a clause or sub-clause
within, respectively, the same Section or clause.


 


21





















 


(c)                                  Each agreement defined in (or whose
definition is referenced in) this Article I
shall include all appendices, exhibits and schedules thereto. Unless
the prior written consent of any Lender, either Agent or any other Person is
required hereunder for an amendment, restatement, supplement or other
modification to any such agreement and such consent is not obtained, references
in this Agreement to such agreement shall be to such agreement as so amended,
restated, supplemented or modified.


 


(d)                                 References in this Agreement to any statute
shall be to such statute as amended or modified from time to time and to any
successor legislation thereto, in each case as in effect at the time any such
reference is operative.


 


(e)                                  The term “including”  when used in any Loan Document
means “including without limitation” except when used in the computation of
time periods.


 


(f)                                    The terms “Lender”, “Administrative Agent”, “Syndication
Agent”, “Agent”, “UK Syndication Agent”, “UK Administrative Agent”, “UK Agent”
and “UK Security Trustee” include, without limitation, their respective
successors.


 


(g)                                 Upon the appointment of any successor
Administrative Agent pursuant to Section 8.6
(Successor Administrative Agent), references to CNAI in Section 8.3 (The Agents Individually) and
in the definitions of Base Rate and Eurodollar Rate shall be deemed to refer to
the financial institution then acting as the Administrative Agent or one of is
Affiliates if it so designates.


 


ARTICLE II


 


THE FACILITY


 


Section 2.1                                   The Commitments


 


On the terms and subject to the conditions contained in this Agreement,
each Lender severally agrees to make a loan (each a “Loan”) in Dollars to the Borrower in an
amount not to exceed such Lender’s Commitment. Any amount of a Loan prepaid or
repaid may not be reborrowed.


 


Section 2.2                                       Borrowing
Procedures


 


(a)                                  The Borrowing shall be made upon receipt of
the Notice of Borrowing given by the Borrower to the Administrative Agent not
later than 11:00 a.m. (New York City time) (i) one Business Day, in the case of
a Borrowing of Base Rate Loans and (ii) three Business Days, in the case of
Eurodollar Rate Loans. The Notice of Borrowing shall specify (A) the Closing
Date, (B) the aggregate amount of the proposed Borrowing, (C) whether any
portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate
Loans, and (D) for each Eurodollar Rate Loan, the initial Interest Period or
Periods therefor. The Loans shall be made as Base Rate Loans unless (subject to
Section 2.12 (Special Provisions
Governing Eurodollar Rate Loans)) the Notice of Borrowing specifies
that all or a portion thereof shall be Eurodollar Rate Loans. The Borrowing
shall be in an aggregate amount of not less than $1,000,000 and multiples of
$500,000 in excess thereof.


 


22





















 


(b)                                 The Administrative Agent shall give to each
Lender prompt notice of the Administrative Agent’s receipt of the Notice of
Borrowing and, if Eurodollar Rate Loans are properly requested in the Notice of
Borrowing, the applicable interest rate determined pursuant to Section 2.12(a) (Determination of Interest
Rate). Each Lender shall, before 11:00 a.m. (New York time) on the
date of the proposed Borrowing, make available to the Administrative Agent at
its address referred to in Section 9.8
(Notices, Etc.), in immediately available funds, such Lender’s
Ratable Portion of the proposed Borrowing. Upon fulfillment (or due waiver in
accordance with Section 9.1
(Amendments, Waivers, Etc.)) on the Closing Date, of the applicable
conditions set forth in Section 3.1
(Conditions Precedent to Initial Loans) and after the Administrative
Agent’s receipt of such funds, the Administrative Agent shall make such funds
available to the Borrower.


 


(e)                                  Unless the Administrative Agent shall have
received notice from a Lender prior to the Closing Date that such Lender will
not make available to the Administrative Agent such Lender’s Ratable Portion of
the Borrowing (or any portion thereof), the Administrative Agent may assume
that such Lender has made such Ratable Portion available to the Administrative
Agent on the Closing Date in accordance with this Section 2.2(c) and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such Ratable Portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising the
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate for the
first Business Day and thereafter at the interest rate applicable at the time
to the Loans comprising the Borrowing. If such Lender shall repay to the
Administrative Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender’s Loan as part of the Borrowing for
purposes of this Agreement. If the Borrower shall repay to the Administrative
Agent such corresponding amount, such payment shall not relieve such Lender of
any obligation it may have hereunder to the Borrower.


 


(d)                                 The failure of any Lender to make on the
Closing Date the Loan or any payment required by it shall not relieve any other
Lender of its obligations to make such Loan or payment on such date but no such
other Lender shall be responsible for the failure of any Lender to make a Loan
or payment required under this Agreement.


 


Section 2.3                                   Reduction
and Termination of the Commitments


 


The Commitments shall be reduced to zero on the Closing Date
immediately after the funding of the Loans.


 


Section 2.4                                   Repayment
of Loans


 


The Borrower shall repay the entire unpaid principal amount of the
Loans together with all accrued but unpaid interest thereon on the Maturity
Date.


 


23





















 


Section 2.5                                   Evidence of
Debt


 


(a)                                  Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.


 


(b)                                 The Administrative Agent, acting as agent of
the Borrower solely for this purpose and for tax purposes, shall establish and
maintain at its address referred to in Section 9.8
(Notices, Etc.) a record of ownership (the “Register”) in which the
Administrative Agent agrees to register by book entry the Administrative Agent’s,
each Lender’s interest in each Loan, and in the right to receive any payments
hereunder and any assignment of any such interest or rights. In addition, the
Administrative Agent, acting as agent of the Borrower solely for this purpose
and for tax purposes, shall establish and maintain accounts in the Register in accordance
with its usual practice in which it shall record (i) the names and addresses of
the Lenders, (ii) the amount of each Loan made and, if a Eurodollar Rate Loan,
the Interest Period applicable thereto, (iii) the amount of any principal or
interest due and payable, and paid, by the Borrower to, or for the account of,
each Lender hereunder and (iv) the amount of any sum received by the
Administrative Agent hereunder from the Borrower, whether such sum constitutes
principal or interest (and the type of Loan to which it applies), fees,
expenses or other amounts due under the Loan Documents and each Lender’s share
thereof, if applicable.  Notwithstanding
anything to the contrary contained in this Agreement, the Loans (including the Notes
evidencing such Loans) are registered obligations and the right, title, and
interest of the Lenders and their assignees in and to such Loans shall be
transferable only upon notation of such transfer in the Register. A Note shall
only evidence the Lender’s or a registered assignee’s right, title and interest
in and to the related Loan, and in no event is any such Note to be considered a
bearer instrument or obligation. This Section 2.5
and Section 9.2 (Assignments
and Participations) shall be construed so that the Loans are at all
times maintained in “registered form”  within
the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any
related regulations (or any successor provisions of the Code or such
regulations).


 


(c)                                  The entries made in the Register and in the
accounts therein maintained pursuant to clauses
(a) and (b) above
shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided,
however, that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligations of the Borrower to repay the Loans in accordance with their
terms. In addition, the Loan Parties, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register as a Lender for
all purposes of this Agreement. Information contained in the Register with
respect to any Lender shall be available for inspection by the Borrower, the
Administrative Agent or such Lender at any reasonable time and from time to
time upon reasonable prior notice.


 


(d)                                 Notwithstanding any other provision of the
Agreement, in the event that any Lender requests that the Borrower execute and
deliver a promissory note or notes payable to such Lender in order to evidence
the indebtedness owing to such Lender by the Borrower hereunder, the Borrower
shall promptly execute and deliver a Note or Notes to such Lender evidencing
any Loans of such Lender, substantially in the forms of Exhibit B (Form of Note).


 


24





















 


Section 2.6                                   Optional
Prepayments


 


The Borrower may, upon at least three Business Days’ prior notice to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, prepay the outstanding principal amount of the Loans,
in whole or in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that if any prepayment of any Eurodollar Rate Loan is made
by the Borrower other than on the last day of an Interest Period for such Loan,
the Borrower shall also pay any amounts owing pursuant to Section 2.12(e) (Breakage Costs); and,
provided, further, that each
partial prepayment shall be in an aggregate amount not less than $1,000,000 or
integral multiples of $500,000 in excess thereof. Upon the giving of such
notice of prepayment, the principal amount of the Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.


 


Section 2.7                                   Mandatory
Prepayments


 


Upon receipt by the Borrower or any of its Subsidiaries of Net Cash
Proceeds arising (i) from an Asset Sale or Property Loss Event, the Borrower
shall immediately prepay the Loans in an amount equal to 100% of such Net Cash
Proceeds and (ii) from an Equity Issuance or Debt Issuance, the Borrower shall immediately prepay the Loans in an amount
equal to 100% of such Net Cash Proceeds; provided,
however, that in the case of Net Cash Proceeds arising from an Asset
Sale or Property Loss Event in respect of assets securing the Senior
Facilities, no such prepayment shall be required to the extent that a reduction
of the “Maximum Credit”  under
and as defined in the US Senior Credit Agreement is effective pursuant to the
US Senior Credit Agreement (or because of a valid waiver or consent thereunder)
or a reduction of the “Facility Limit”  under
and as defined in the UK Senior Credit Agreement is effective pursuant to the
UK Senior Credit Agreement (or because of a valid waiver or consent
thereunder), in each case, because of such Asset Sale or Property Loss Event.
Any such mandatory prepayment shall be applied, notwithstanding the provisions
of the Section 2.11(f) (Payments and
Computations) but subject to the provisions of Section 2.11(g) (Payments and Computations), to
repay the outstanding principal balance of the Loans, until such Loans shall
have been prepaid in full.


 


Section 2.8                                   Interest


 


(a)                                  Rate of Interest. All Loans and the outstanding amount of all
other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of
such other Obligations, from the date such other Obligations are due and
payable until, in all cases, paid in full, except as otherwise provided in clause (c) below, as follows:


 


(i)                                     if a Base Rate Loan, at a rate per annum
equal to the sum of (A) the Base Rate as in effect from time to time and (B)
the Applicable Margin;


 


(ii)                                  if a Eurodollar Rate Loan, at a rate per
annum equal to the sum of (A) the Eurodollar Rate determined for the applicable
Interest Period and (B) the Applicable Margin in effect from time to time
during such Interest Period; and


 


(iii)                               if any other Obligation, as separately
provided in a written agreement between the Secured Party owed such Obligation
and the Loan Party owing such Obligation, and, in the absence of any such
agreement, at a rate per annum equal to


 


25





















 


the sum of (A) the Base  Rate
as in effect from time to time and (B) the Applicable Margin.


 


(b)                                 Interest Payments. (i) Interest accrued on each Base Rate Loan
shall be payable in arrears (A) on the first Business Day of each calendar
month, commencing on the first such day following the making of such Base Rate
Loan, (B) upon the payment or prepayment thereof in full or in part and (C) if
not previously paid in full, at maturity (whether by acceleration or otherwise)
of such Base Rate Loan, (ii) interest accrued on each Eurodollar Rate Loan
shall be payable in arrears (A) on the last day of each Interest Period
applicable to such Loan and, if such Interest Period has a duration of more
than three months, on each day during such Interest Period occurring every
three months from the first day of such Interest Period, (B) upon the payment
or prepayment thereof in full or in part and (C) if not previously paid in
full, at maturity (whether by acceleration or otherwise) of such Eurodollar
Rate Loan and (iii) interest accrued on the amount of all other Obligations
shall be payable on demand from and after the time such Obligation becomes due
and payable (whether by acceleration or otherwise).


 


(c)                                  Default Interest.  Notwithstanding the rates of interest specified in clause (a) above or elsewhere herein,
effective immediately upon the occurrence of an Event of Default and for as
long thereafter as such Event of Default shall be continuing, the principal
balance of all Loans and the amount of all other Obligations then due and
payable shall bear interest at a rate that is two percent per annum in excess
of the rate of interest applicable to such Loans or other Obligations from time
to time.  Such interest shall be payable
on the date that would otherwise by applicable pursuant to clause (b) above or otherwise on demand.


 


Section 2.9                                   Conversion/Continuation
Option


 


(a)                                  The Borrower may elect (i) at any time on any
Business Day to convert Base Rate Loans or any portion thereof to Eurodollar
Rate Loans and (ii) at the end of any applicable Interest Period, to convert
Eurodollar Rate Loans or any portion thereof into Base Rate Loans or to
continue such Eurodollar Rate Loans or any portion thereof for an additional
Interest Period; provided, however, that
the aggregate amount of the Eurodollar Loans for each Interest Period must be
in the amount of at least $1,000,000 or an integral multiple of $500,000 in
excess thereof.  Each conversion or
continuation shall be allocated among the Loans of each Lender in accordance
with such Lender’s Ratable Portion. Each such election shall be in
substantially the form of Exhibit D (Form of
Notice of Conversion or Continuation) (a “Notice of Conversion or
Continuation”) and
shall be made by giving the Administrative Agent at least three Business Days’
prior written notice specifying (A) the amount and type of Loan being converted
or continued, (B) in the case of a conversion to or a continuation of
Eurodollar Rate Loans, the applicable Interest Period and (C) in the case of a
conversion, the date of such conversion.


 


(b)                                 The Administrative Agent shall promptly
notify each Lender of its receipt of a Notice of Conversion or Continuation and
of the options selected therein. Notwithstanding the foregoing, no conversion
in whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon the expiration
of any applicable Interest Period, shall be permitted at any time at which (A)
a Default or an Event of Default shall have occurred and be continuing or (B)
the continuation of, or conversion into, a Eurodollar Rate Loan would violate
any provision of Section 2.12 (Special
Provisions Governing Eurodollar Rate Loans).  If, within the
time period required under the terms of this Section 2.9,
the Administrative Agent does not receive a Notice of Conversion or
Continuation from the Borrower containing a permitted election to continue any
Eurodollar Rate


 


26





















 


Loans
for an additional Interest Period or to convert any such Loans, then, upon the
expiration of the applicable Interest Period, such Loans shall be automatically
converted to Base Rate Loans. Each Notice of Conversion or Continuation shall
be irrevocable.


 


Section 2.10                            Fees


 


The Borrower has agreed to pay to the Agents and the Arrangers certain
fees, expenses and other amounts, the amount and dates of payment of all of
which are embodied in the Fee Letter.


 


Section 2.11                            Payments and
Computations


 


(a)                                  The Borrower shall make each payment
hereunder (including fees and expenses) not later than 1:00 p.m. (New York
time) on the day when due, in Dollars, to the Administrative Agent at its
address referred to in Section 9.8
(Notices, Etc.) in immediately available funds without set-off or
counterclaim.  The Administrative Agent
shall promptly thereafter cause to be distributed immediately available funds
relating to the payment of principal, interest or fees to the Lenders, in
accordance with the application of payments set forth in Section 2.7 (Mandatory Prepayments) and
in clauses (f) or (g) below, as applicable, for the account
of their respective Applicable Lending Offices; provided, however, that amounts payable pursuant to Section 2.13 (Capital Adequacy), 2.14 (Taxes) or
Section 2.12(c) (Increased Costs) or
(d) (Illegality) shall be paid
only to the affected Lender or Lenders. Payments received by the Administrative
Agent after 1:00 p.m. (New York time) shall be deemed to be received on
the next Business Day.


 


(b)                                 All computations of interest and of fees shall
be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest and fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.


 


(c)                                  Each payment by the Borrower of any Loan
(including interest or fees in respect thereof) and each reimbursement of
various costs, expenses or other Obligation shall be made in Dollars.


 


(d)                                 Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be; provided,
however, that if such extension would cause payment of interest on
or principal of any Eurodollar Rate Loan to be made in the next calendar month,
such payment shall be made on the immediately preceding Business Day.  All repayments of any Loans shall be applied
as follows: first, to repay such
Loans outstanding as Base Rate Loans and then,
to repay such Loans outstanding as Eurodollar Rate Loans, with those
Eurodollar Rate Loans having earlier expiring Interest Periods being repaid
prior to those having later expiring Interest Periods.


 


(e)                                  Unless the Administrative Agent shall have
received notice from the Borrower to the Lenders prior to the date on which any
payment is due hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the


 


27





















 


Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent that the Borrower shall not have made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon at the Federal Funds Rate, for the first Business Day, and, thereafter,
at the rate applicable to Base Rate Loans, for each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Administrative Agent.


 


(f)                                    Except for payments and other amounts
received by the Administrative Agent and applied in accordance with the
provisions of clause (g) below
(or required to be applied in accordance with Section 2.7
(Mandatory Prepayments)), all payments and any other amounts
received by the Administrative Agent from or for the benefit of the Borrower
shall be applied as follows: first, to
pay principal of, and interest on, any portion of the Loans the Administrative
Agent may have advanced pursuant to the express provisions of this Agreement on
behalf of any Lender, for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower, second,
to pay all other Obligations then due and payable and third, as the Borrower so designates.
Payments in respect of the Loans received by the Administrative Agent shall be
distributed to each Lender in accordance with such Lender’s Ratable Portion of
the Loans; and all payments of fees and all other payments in respect of any
other Obligation shall be allocated among such of the Lenders as are entitled
thereto and, for such payments allocated to the Lenders, in proportion to their
respective Ratable Portions.


 


(g)                                 The Borrower hereby irrevocably waives the right
to direct the application of any and all payments in respect of the Obligations
and any proceeds of Collateral after the occurrence and during the continuance
of an Event of Default and agrees that, notwithstanding the provisions of Section 2.7
(Mandatory Prepayments) and clause
(f) above, the Administrative Agent may, and, upon either (A) the
written direction of the Requisite Lenders or (B) the acceleration of the
Obligations pursuant to Section 7.2
(Remedies), shall, apply all payments in respect of any Secured
Obligations and all other proceeds of Collateral in the following order:


 


(i)                                     first, to pay interest on and then principal of any
portion of the Loans that the Administrative Agent may have advanced on behalf
of any Lender and for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower;


 


(ii)                                  second, to pay Secured Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Administrative
Agent;


 


(iii)                               third, to pay Secured Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lenders;


 


(iv)                              fourth, to pay interest then due and payable in
respect of the Loans;


 


(v)                                 fifth, to pay or prepay principal amounts on the
Loans, ratably to the aggregate principal amount of such Loans; and


 


(vi)                              sixth, to the ratable payment of all other Secured
Obligations;


 


28





















 


provided, however, that if sufficient funds are not available to fund all payments to be
made in respect of any Secured Obligation described in any of clauses first, second, third, fourth, fifth and
sixth, above, the available funds being applied with respect to any
such Secured Obligation (unless otherwise specified in such clause) shall be
allocated to the payment of such Secured Obligations ratably, based on the
proportion of Administrative Agent’s and each Lender’s interest in the
aggregate outstanding Secured Obligations described in such clauses. The order
of priority set forth in clauses first,
second, third, fourth, fifth and sixth above may at any time and
from time to time be changed by the agreement of the Requisite Lenders without
necessity of notice to or consent of or approval by the Borrower, any Secured
Party that is not a Lender or by any other Person that is not a Lender. The
order of priority set forth in clauses first
and second above  may be changed only with the prior
written consent of the Administrative Agent in addition to that of the
Requisite Lenders.


 


Section 2.12                            Special
Provisions Governing Eurodollar Rate Loans


 


(a)                                  Determination of Interest Rate


 


The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans
shall be determined by the Administrative Agent pursuant to the procedures set
forth in the definition of “Eurodollar Rate”  The Administrative Agent’s determination shall be
presumed to be correct absent manifest error and shall be binding on the
Borrower.


 


(b)                                 Interest Rate Unascertainable, Inadequate or
Unfair


 


In the event that (i) the Administrative Agent determines that adequate
and fair means do not exist for ascertaining the applicable interest rates by
reference to which the Eurodollar Rate then being determined is to be fixed or
(ii) the Requisite Lenders notify the Administrative Agent that the Eurodollar
Rate for any Interest Period will not adequately reflect the cost to the
Lenders of making or maintaining such Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon each Eurodollar Loan shall automatically, on the last day of the
current Interest Period for such Loan, convert into a Base Rate Loan and the
obligations of the Lenders to make Eurodollar Rate Loans or to convert Base
Rate Loans into Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrower that the Requisite Lenders have
determined that the circumstances causing such suspension no longer exist.


 


(c)                                  Increased Costs


 


If at any time any Lender determines that the introduction of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Eurodollar Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force
of law), in each case occurring after the date of this Agreement, shall have
the effect of increasing the cost to such Lender of agreeing to make or making,
funding or maintaining any Eurodollar Rate Loans, then the Borrower shall from
time to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to such amounts submitted to the Borrower and
the Administrative Agent by such Lender shall be conclusive and binding for all
purposes absent manifest error; provided,
however,


 


29





















 


that
notwithstanding the foregoing, the Borrower shall not be required to compensate
any Lender for any such amount incurred more than 90 days prior to the delivery
of such certificate (such period to be extended to include the period of a
retroactive effect of the event described in such certificate as having
triggered such compensation).


 


(d)                                 Illegality


 


Notwithstanding any other provision of this Agreement, if any Lender
determines that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order after the date of
this Agreement shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to fund
or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Administrative Agent (i) the
obligation of such Lender to make or to continue Eurodollar Rate Loans and to
convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, and each
such Lender shall make a Base Rate Loan as part of the Borrowing of Eurodollar
Rate Loans and (ii) if the affected Eurodollar Rate Loans are then outstanding,
the Borrower shall immediately convert each such Loan into a Base Rate Loan.


 


If, at any time after a Lender gives notice under this Section 2.12(d), such Lender
determines that it may lawfully make Eurodollar Rate Loans, such Lender shall
promptly give notice of that determination to the Borrower and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender. The Borrower’s right to request, and such Lender’s
obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.


 


(e)                                  Breakage Costs


 


In addition to all amounts required to be paid by the Borrower pursuant
to Section 2.8 (Interest), the
Borrower shall compensate each Lender, upon demand, for all losses, expenses
and liabilities (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender’s Eurodollar Rate Loans to the Borrower but
excluding any loss of the Applicable Margin on the relevant Loans) that such Lender
may sustain (i) if for any reason a proposed conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in the Notice
of Borrowing or a Notice of Conversion or Continuation given by the Borrower or
in a telephonic request by it for borrowing or conversion or continuation or a
successive Interest Period does not commence after notice therefor is given
pursuant to Section 2.9
(Conversion/Continuation Option), (ii) if for any reason any
Eurodollar Rate Loan is prepaid (including mandatorily pursuant to Section 2.7 (Mandatory Prepayments)) on
a date that is not the last day of the applicable Interest Period, (iii) as a
consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate
Loan as a result of any of the events indicated in clause (d) above or (iv) as a consequence of any failure by
the Borrower to repay Eurodollar Rate Loans when required by the terms hereof.
The Lender making demand for such compensation shall deliver to the Borrower
concurrently with such demand a written statement as to such losses, expenses
and liabilities, and this statement shall be conclusive as to the amount of
compensation due to such Lender, absent manifest error.


 


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Section 2.13                            Capital Adequacy


 


If at any time any Lender determines that (a) the adoption of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation or order or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) shall
have the effect of reducing the rate of return on such Lender’s (or any
corporation controlling such Lender’s) capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, compliance or
interpretation, then, upon demand from time to time by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes absent manifest error; provided, however, that notwithstanding the foregoing, the
Borrower shall not be required to compensate any Lender for any such amount
incurred more than 90 days prior to the delivery of such certificate (such
period to be extended to include the period of a retroactive effect of the
event described in such certificate as having triggered such compensation).


 


Section 2.14                            Taxes


 


(a)                                  Except as otherwise provided in this Section 2.16, any and all payments by
any Loan Party under each Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) in the case of each Lender and Agent (A) taxes measured by its
net income, and franchise taxes imposed on it and similar taxes imposed by the
jurisdiction (or any political subdivision thereof) under the laws of which
such Lender or Agent (as the case may be) is organized and (B) any United
States withholding taxes payable with respect to payments under the Loan
Documents under laws (including any statute, treaty or regulation) in effect on
the Closing Date (or, in the case of (x) an Eligible Assignee, the date of the
Assignment and Acceptance and (y) a successor Administrative Agent, the date of
the appointment of such Administrative Agent) applicable to such Lender or
Agent, as the case may be, but not excluding any United States withholding
taxes payable as a result of any change in such laws occurring after the
Closing Date (or the date of such Assignment and Acceptance or of appointment
of such Agent) and (ii) in the case of each Lender, taxes measured by its net
income, and franchise taxes imposed on it as a result of a present or former
connection between such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any taxing authority thereof or therein (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as “Taxes”).
If any Taxes shall be required by law to be deducted from or in respect of any
sum payable under any Loan Document to any Lender or Agent (w) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.14(a) such Lender or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (x) the relevant Loan Party shall make such deductions, (y) the relevant
Loan Party shall pay the full amount deducted to the relevant taxing authority
or other authority in accordance with applicable law and (z) the relevant Loan
Party shall deliver to the Administrative Agent evidence of such payment.


 


31





















 


(b)                                 In addition, each Loan Party agrees to pay
any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies of the United States or any political
subdivision thereof or any applicable foreign jurisdiction, and all liabilities
with respect thereto, in each case arising from any payment made under any Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document (collectively, “Other Taxes”).


 


(c)                                  Each Loan Party shall, jointly and severally,
indemnify each Lender and Agent for the full amount of Taxes and Other Taxes
(including any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14(c))  paid
by such Lender or Agent (as the case may be) and any liability (including for
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted.  This indemnification shall be
made within 30 days from the date such Lender or Agent (as the case may be)
makes written demand therefor.


 


(d)                                 Within 30 days after the date of any payment
of Taxes or Other Taxes by any Loan Party, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.8 (Notices, Etc.), the original or a
certified copy of a receipt evidencing payment thereof.


 


(e)                                  Without prejudice to the survival of any
other agreement of any Loan Party hereunder or under the Guaranty, the
agreements and obligations of such Loan Party contained in this Section 2.14 shall survive the
payment in full of the Obligations.


 


(f)                                    (i)                                     Each Non-US Lender that is entitled at such
time to an exemption from United States withholding tax, or that is subject to
such tax at a reduced rate under an applicable tax treaty, shall (v) on or
prior to the Closing Date in the case of each Non-U.S. lender that is a
signatory hereto, (w) on or prior to the date of the Assignment and Acceptance
pursuant to which such Non-US Lender becomes a Lender the date a successor
Administrative Agent becomes the Administrative Agent hereunder, (x) on or
prior to the date on which any such form or certification expires or becomes
obsolete, (y) after the occurrence of any event requiring a change in the most
recent form or certification previously delivered by it to the Borrower and the
Administrative Agent and (z) from time to time if requested by the Borrower or
either Agent, provide the Administrative Agent and the Borrower with two
completed originals of each of the following, as applicable:


 


(A)                              Form W-8ECI (claiming exemption from U.S.
withholding tax because the income is effectively connected with a U.S. trade
or business) or any successor form;


 


(B)                                Form W-8BEN (claiming exemption from, or a
reduction of, U.S. withholding tax under an income tax treaty) or any successor
form;


 


(C)                                in the case of a Non-US Lender claiming
exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from U.S. withholding tax under the portfolio interest exemption) or
any successor form; or


 


(D)                               any other applicable form, certificate or
document prescribed by the IRS certifying as to such Non-US Lender’s
entitlement to such exemption from


 


32





















 


United States withholding tax or reduced rate with respect to all
payments to be made to such Non-US Lender under the Loan Documents.


 


Unless
the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document
to or for a Non-US Lender are not subject to United States withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the Loan
Parties and the Administrative Agent shall withhold amounts required to be
withheld by applicable Requirements of Law from such payments at the applicable
statutory rate.


 


(ii)                                  Each US Lender shall (v) on or prior to the
Closing Date in the case of each US Lender that is a signatory hereto, (w) on
or prior to the date of the Assignment and Acceptance pursuant to which such US
Lender becomes a Lender, the date a successor Administrative Agent becomes the
Administrative Agent hereunder, (x) on or prior to the date on which any such
form or certification expires or becomes obsolete, (y) after the occurrence of
any event requiring a change in the most recent form or certification
previously delivered by it to the Borrower and the Administrative Agent and (z)
from time to time if requested by the Borrower or either Agent, provide the
Administrative Agent and the Borrower with two completed originals of Form W-9
(certifying that such US Lender is entitled to an exemption from U.S. backup
withholding tax) or any successor form. Solely for purposes of this clause (f), a US Lender shall not include
a Lender or Agent that may be treated as an exempt recipient based on the
indicators described in Treasury Regulation section 1.6049-4(c)(l)(ii).


 


(g)                                 Any Lender claiming any additional amounts
payable pursuant to this Section 2.14 shall
use its reasonable efforts (consistent with its internal policies and
applicable laws and other legal requirements) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.


 


ARTICLE III


 


CONDITIONS TO LOANS


 


Section 3.1                                   Conditions
Precedent to Loans


 


The obligation of each Lender to make the Loans requested to be made by
it is subject to the satisfaction or due waiver in accordance with Section 9.1 (Amendments, Waivers, Etc.) of
each of the following conditions precedent:


 


(a)                                  Certain Documents. The Administrative Agent shall have received
on or prior to the Closing Date each of the following, each dated the Closing
Date unless otherwise indicated or agreed to by the Administrative Agent, in
form and substance satisfactory to each Agent and in sufficient copies for each
Lender:


 


(i)                                     this Agreement, duly executed and delivered
by the Borrower and, for the account of each Lender requesting the same, a Note
or Notes of the Borrower conforming to the requirements set forth herein;


 


33





















 


(ii)                                  the Guaranty, duly executed by each
Guarantor;


 


(iii)                               (A) the UK Intercreditor Agreements, duly
executed by each of the UK Lenders, the UK Security Trustee, the Syndication
Agent, each UK Senior Lender and the UK Borrower and (B) the US Intercreditor
Agreement, duly executed by each of the Administrative Agent, each US Senior
Lender and the Borrower;


 


(iv)                              the Security Agreement, duly executed by the
Borrower and each Guarantor, together with evidence satisfactory to each Agent
that, upon the filing and recording of instruments delivered at the Closing,
the Administrative Agent (for the benefit of the Secured Parties) shall have a
valid and perfected security interest in the Collateral, including (A) such
documents duly executed by each Loan Party as either Agent may request with
respect to the perfection of such security interest (including financing (statements
under the UCC, patent, trademark and copyright security agreements suitable for
filing with the Patent and Trademark Office or the Copyright Office, as the
case may be, and other applicable documents under the laws of any jurisdiction
with respect to the perfection of liens created by the Security Agreement) and
(B) copies of UCC search reports as of a recent date listing all effective
financing statements that name any Loan Party as debtor, together with copies
of such financing statements, none of which shall cover the Collateral except
for those that shall be terminated on the Closing Date or are otherwise
permitted hereunder;


 


(v)                                 the Notice of Borrowing, duly executed by the
Borrower;


 


(vi)                              a favorable opinion of (A) Drinker Biddle
& Reath LLP, counsel to the Loan Parties, in substantially the form of Exhibit
E (Form of Opinion of Counsel for the Loan Parties), (B)
Georgia counsel to the Loan Parties acceptable to each Agent and in form and
substance satisfactory to each Agent and (C) counsel to the Administrative
Agent as to the enforceability of this Agreement and the other Loan Documents
to be executed on the Closing Date;


 


(vii)                           a copy of each amendment to the Senior
Facility Documents executed in connection herewith, together with all documents
executed in connection therewith, each certified as being complete and correct
by a Responsible Officer of the Borrower;


 


(viii)                        a copy of the articles or certificate of
incorporation (or equivalent constituent document) of each Loan Party,
certified as of a recent date by the Secretary of State of the state of organization
of such Loan Party, together with certificates of such official attesting to
the good standing of each such Loan Party;


 


(ix)                                a certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party that has been authorized to
execute and deliver any Loan Document or other document required hereunder to
be executed and delivered by or on behalf of such Loan Party, (B) the by-laws
(or equivalent constituent document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party’s Board of
Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (D) that there have been no changes in the
certificate of incorporation (or


 


34





















 


equivalent constituent document) of such Loan Party from the
certificate of incorporation (or equivalent constituent document) delivered
pursuant to clause (viii) above;


 


(x)                                   a certificate of a Responsible Officer of the
Borrower, stating that the Borrower is Solvent after giving effect to the
initial Loans, the application of the proceeds thereof in accordance with Section 6.17 (Use of Proceeds) and
the payment of all estimated legal, accounting and other fees related hereto
and thereto;


 


(xi)                                a certificate of a Responsible Officer to the
effect that (A) the condition set forth in Section 3.1
(Conditions Precedent to Loans) has been satisfied and (B) no
litigation not listed on Schedule 4.5 shall
have been commenced against any Loan Party or any of its Subsidiaries that, if
adversely determined, would have a material adverse effect on the assets,
liabilities, properties and condition, financial or otherwise, of the Borrower
and its Subsidiaries, taken as a whole;


 


(xii)                             evidence satisfactory to each Agent that the
insurance policies required by Section 6.4
(Insurance) and any Collateral Document are in full force and
effect, together with endorsements naming the Administrative Agent, on behalf
of the Secured Parties, as an additional insured or loss payee under all
insurance policies to be maintained with respect to the properties of the Borrower
and its Subsidiaries; and


 


(xiii)                          such other certificates, documents,
agreements and information respecting any Loan Party as either Agent may
reasonably request.


 


(b)                                 Fee and Expenses Paid.  There shall have been paid to the Administrative Agent, for the account
of the Agents and the Lenders, as applicable, all fees, expenses and other
amounts (including reasonable fees and expenses of counsel) due and payable on
or before the Closing Date (including all such fees, expenses and other amounts
described in the Fee Letter).


 


(c)                                  Additional Facilities.  Each Agent shall be satisfied that all conditions precedent to the
funding of the loans pursuant to UK Facility Documents (including without
limitation, the delivery by the UK Borrower and each UK Loan Party (other than
the Loan Parties) of guaranties, debentures, pledges, charges, security
documents and related opinions of counsel in the United Kingdom, Bermuda and
the British Virgin Islands and other related documents, in each case which
shall be satisfactory to each Agent, with respect to the GIFL US Intercompany
Obligations) and to the effectiveness of all amendments to the Senior Facility
Documents executed in connection herewith shall have been satisfied.


 


(d)                                 Consents, Etc.  Each of the Borrower and its Subsidiaries shall have received all
consents and authorizations required pursuant to any material agreement with
any other Person and shall have obtained all permits of, and effected all
notices to and filings with, any governmental authority, in each case, as may
be necessary to allow each Loan Party and each of its Subsidiaries lawfully (i)
to execute, deliver and perform, in all material respects, their respective
obligations hereunder and under the Loan Documents to which each of them,
respectively, is, or shall be, a party and each other agreement or instrument
to be executed and delivered by each of them, respectively, pursuant thereto or
in connection therewith and (ii) to create and perfect the liens on the
Collateral to be owned by each of them in the manner and for the purpose
contemplated by the Loan Documents.


 


35





















 


(e)                                  Representations and Warranties. Both
before and after giving effect to the funding of the Loans and to the
application of the proceeds therefrom;


 


(i)                                     the representations and warranties set forth
in Article IV (Representations and
Warranties) and in the other Loan Documents shall be true and
correct on and as of the Closing Date; and


 


(ii)                                  no Default or Event of Default shall have
occurred and be continuing.


 


(i)                                     No Legal Impediments. The making of the Loans on the Closing Date
does not violate any law or other legal requirement.


 


(g)                                 Pro Forma Balance Sheet. The unaudited pro forma consolidated balance
sheet of the Borrower and its Subsidiaries has been delivered to the
Administrative Agent and has been prepared as of the last day of the
immediately preceding fiscal month (except that the aggregate outstanding
principal amount of any long term indebtedness set forth on such balance sheet
will be reflected thereon as of the Closing Date), and reflects as of such
date, on a pro forma basis, the consolidated financial condition of the
Borrower and its Subsidiaries after giving effect to Borrowings on the Closing
Date, and the assumptions expressed therein were reasonable based on the
information available to the Borrower at the time so furnished and on the
Closing Date.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


To induce the Lenders and the Agents to enter into this Agreement, the
Borrower represents and warrants each of the following to the Lenders and the
Agents, on and as of the Closing Date and after giving effect to the making of
the Loans and the other financial accommodations on the Closing Date:


 


Section 4.1                                   Corporate/Company
Existence, Power and Authority; Subsidiaries


 


Each Restricted Person is a corporation, limited liability company or
entity duly organized, as the case may be, and in good standing under the laws
of its jurisdiction of incorporation or organization, as the case may be. Each
Grantor Party is in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be. Each Restricted Person that
is not a Grantor Party and is not organized under the laws of any State of the
United States is in good standing under the laws of its jurisdiction or
organization or incorporation, as the case may be, and each Restricted Person
is duly qualified as a foreign corporation and is in good standing in all
states or other jurisdictions where the nature and extent of the business
transacted by it or the ownership of assets makes such qualification necessary,
except for those jurisdictions in which failure to so qualify would, in the
aggregate, not have a material adverse effect on the financial condition,
results of operation or business of the Borrower and its Subsidiaries, taken as
a whole, or the rights of the Agents and the Lenders in or to any of the
Collateral. Attached as Schedule 4.1 is
a true and correct organizational chart of the Borrower and each of its
Subsidiaries as of the date hereof identifying each Person that is an
Intermediate Holding Company and each Person that is a Restricted Person on the
date hereof. The execution, delivery


 


36





















 


and performance of this
Agreement, the other Loan Documents and the transactions contemplated hereunder
and thereunder (a) are all within each Loan Party’s corporate or company
powers, (b) have been duly authorized, (c) are not in contravention of law or the
terms of such Loan Party’s certificate of incorporation or by-laws, articles of
formation, operating agreement or other organizational documentation, as the
case may be, or any indenture, agreement or undertaking to which such Loan
Party is a party or by which such Loan Party or its property are bound and (d)
will not result in the creation or imposition of, or require or give rise to
any obligation to grant, any lien, security interest, charge or other
encumbrance upon any property of any Loan Party other than under this Agreement
and the other Loan Documents. This Agreement and the other Loan Documents
constitute legal, valid and binding obligations of each Loan Party enforceable
in accordance with their respective terms. No Restricted Person has any Subsidiary
except as set forth on Schedule 4.1.


 


Section 4.2                                   Financial
Statements; No Material Adverse Change


 


All financial statements relating to the Borrower and its Subsidiaries
that have been delivered hereunder or in connection herewith (whether before or
after the Closing Date) have been prepared in accordance with GAAP (except as
to any interim financial statements, to the extent such statements are subject
to normal year-end adjustments and do not include any notes) and fairly
present, in all material respects, the financial condition and the results of
operations of the Borrower and its Subsidiaries as at the dates and for the
periods set forth therein. There has been no material adverse change in the
assets, liabilities, properties and condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole since December 31, 2003.


 


Section 4.3                                   Title to
Properties


 


Each Restricted Person has valid leasehold interests in all of its real
property (it being understood that Expo occupies premises leased by GLA) and
good, valid and merchantable title to all of its other properties and assets
subject to no liens, mortgages, pledges, security interests, encumbrances or
charges of any kind, except those granted to the Administrative Agent and such
others as are specifically listed on Schedule 6.7
or permitted under Section 6.7
(Encumbrances).


 


Section 4.4                                   Tax Returns


 


Each Restricted Person has filed, or caused to be filed, in a timely
manner all tax returns, reports and declarations that are required to be filed
by it (without requests for extension except as previously disclosed in writing
to the Administrative Agent). All information in such tax returns, reports and
declarations is complete and accurate in all material respects. Each Restricted
Person has paid or caused to be paid all taxes due and payable or claimed due
and payable in any assessment received by it, except taxes the validity of
which are being contested in good faith by appropriate proceedings diligently
pursued and available to such Restricted Person and with respect to which
adequate reserves have been set aside on its books. Adequate provision has been
made for the payment of all accrued and unpaid Federal, state, county, local,
foreign and other taxes whether or not yet due and payable and whether or not
disputed.


 


37





















 


Section 4.5                                   Litigation


 


Except as set forth on Schedule 4.5,
there is no present investigation by any Governmental Authority
pending, or to the best of any Restricted Person’s knowledge threatened,
against or affecting any Restricted Person, its assets or business and there is
no action, suit, proceeding or claim by any Person pending, or to the best of
any Restricted Person’s knowledge threatened, against any Restricted Person or
its assets or goodwill, or against or affecting any transactions contemplated
by this Agreement, that has a material possibility (as reasonably determined by
either Agent) of being adversely determined against any Restricted Person, and
if adversely determined against such Restricted Person would result in any
material adverse change in the assets, business or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole, or would
impair the ability of such Restricted Person to perform its obligations
hereunder or under any of the other Loan Documents to which it is a party or of
the Administrative Agent to enforce any Obligations or realize upon any
Collateral.


 


Section 4.6                                   Compliance
with Other Agreements and Applicable Laws


 


No Restricted Person is in default under, or in violation of any of the
terms of, any agreement, contract, instrument, lease or other commitment to
which it is a party or by which it or any of its assets are bound and each
Restricted Person is in compliance with all applicable provisions of laws,
rules, regulations, licenses, permits, approvals and orders of any foreign,
Federal, state or local Governmental Authority where such non-compliance would
result in any material adverse change in the assets, business or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a
whole, or would impair the ability of such Restricted Person to perform its
obligations hereunder or under any of the other Loan Documents to which it is
party or of the Administrative Agent to enforce any Obligations or realize upon
any Collateral.


 


Section 4.7                                   Environmental
Compliance


 


(a)                                  Except
as set forth on Schedule 4.7, no Restricted
Person has generated, used, stored, treated, transported, manufactured,
handled, produced or disposed of any Hazardous Materials, on or off its
premises (whether or not owned by it) in any manner that at any time violates
any applicable Environmental Law or any license, permit, certificate, approval
or similar authorization thereunder and the operations of such Restricted
Person complies in all material respects with all Environmental Laws and all
licenses, permits, certificates, approvals and similar authorizations
thereunder.


 


(b)                                 Except as set forth on Schedule 4.7, there has been no
investigation, proceeding, complaint, order, directive, claim, citation or
notice by any Governmental Authority or any other Person nor is any pending or
to the best of any Restricted Person’s knowledge threatened, with respect to
any non compliance with or violation of the requirements of any Environmental
Law by any Restricted Person or the release, spill or discharge, threatened or
actual, of any Hazardous Material or the generation, use, storage, treatment,
transportation, manufacture, handling, production or disposal of any Hazardous
Materials or any other environmental, health or safety matter, that affects any
Restricted Person or its business, operations or assets or any properties at
which any Restricted Person has transported, stored or disposed of any
Hazardous Materials.


 


(c)                                  No Restricted Person has material liability
(contingent or otherwise) in connection with a release, spill or discharge,
threatened or actual, of any Hazardous Materials or


 


38





















 


the generation, use, storage, treatment, transportation, manufacture,
handling, production or disposal of any Hazardous Materials.


 


(d)                                 Each Restricted Person has all licenses,
permits, certificates, approvals or similar authorizations required to be
obtained or filed in connection with the operations of such Restricted Person
under any Environmental Law and all of such licenses, permits, certificates,
approvals or similar authorizations are valid and in full force and effect.


 


Section 4.8                                   Employee
Benefits


 


(a)                                  Schedule 4.8 sets forth a complete and
correct list of Plans subject to Title IV of ERISA and Multiemployer Plans.
Except as set forth on Schedule 4.8, each
Plan is in material compliance with the applicable provisions of ERISA, the
Code and other federal or state law. 
Each Plan or Multiemployer Plan that is intended to qualify under Section 401(a)
of the Code has received a favorable determination letter from the IRS and to
the best of each Loan Party’s knowledge, nothing has occurred that would cause
the loss of such qualification.  Each
Restricted Person and its ERISA Affiliates have made all required contributions
to any Plan and any Multiemployer Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to
any Plan or any Multiemployer Plan.


 


(b)                                 There are no pending or, to the best of each
Restricted Person’s knowledge, threatened, claims, actions or lawsuits, or
action by any Governmental Authority, with respect to any Plan, other than
routine claims for benefits. To the best of each Restricted Person’s knowledge,
there has been no nonexempt prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan.


 


(c)                                  (i) No ERISA Event has occurred or is
reasonably expected to occur; (ii) the current value of each Plan’s assets
(determined in accordance with the assumptions used for funding such Plan
pursuant to Section 412 of the Code) is not less than such Plan’s
liabilities under Section 4001(a)(16) of ERISA; (iii) no Restricted Person
or any of its ERISA Affiliates have incurred, nor do any of them reasonably
expect to incur, any liability under Title IV of ERISA (other than premiums due
and not delinquent under Section 4007 of ERISA) that has not been
satisfied in full; (iv) no Restricted Person or any of its ERISA Affiliates
have incurred, nor do any of them reasonably expect to incur, any liability
(and no event has occurred that, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) no Restricted Person or any
of its ERISA Affiliates have engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


Section 4.9                                   Intellectual
Property


 


Each
Restricted Person owns or licenses or otherwise has, pursuant to a valid and
enforceable written agreement, all rights to all Intellectual Property that are
necessary and sufficient for the operation of its business as presently
conducted and proposed to be conducted. As of the date hereof, no Restricted
Person has any Intellectual Property registered, or subject to pending
applications, in the United States Patent and Trademark Office or the United
States Copyright Office or any similar office or agency in the United States,
any state thereof, any political subdivision thereof or in any other country,
other than those described on Schedule 4.9
and has not granted any licenses or other rights with respect
thereto other than as set forth on


 


39





















 


Schedule 4.9. No event has occurred that permits or would
permit after notice or passage of time or both, the revocation, suspension or
termination of such rights. To the best of each Restricted Person’s knowledge,
the use, sale, offer for sale, manufacture, or import of any slogan or other
advertising device, product, process, method, substance or other Intellectual
Property, goods or services by such Restricted Person does not infringe any
patent, trademark, servicemark, tradename, copyright, license or other
Intellectual Property owned by any other Person and no claim or litigation is
pending or threatened against or affecting such Restricted Person with respect
to the foregoing or otherwise contesting its right to sell or use any such
Intellectual Property. Schedule 4.9 sets
forth all of the agreements or other arrangements of each Restricted Person
pursuant to which such Restricted Person has a license or other right to use
any trademarks, logos, designs, representations or other Intellectual Property
owned by another Person as in effect on the date hereof and the dates of the
expiration of such agreements or other arrangements of such Restricted Person
as in effect on the date hereof (collectively, together with such agreements or
other arrangements as may be entered into by such Restricted Person after the
date hereof other than licenses related to commercial off the shelf software or
embedded software, the “License Agreements”). No trademark,
servicemark or other Intellectual Property at any time used by any Restricted
Person that is owned by another Person, or owned by such Restricted Person
subject to any security interest, lien, collateral assignment, pledge or other
encumbrance in favor of any Person other than the Secured Parties, the UK
Secured Parties or the Senior Secured Parties, is affixed to any Inventory,
except to the extent permitted under the terms of the License Agreements listed
on Schedule 4.9.


 


Section 4.10                            Subsidiaries;
Affiliates; Capitalization; Solvency


 


(a)                                  Except as set forth on Schedule 4.10, no Restricted Person
has any direct or indirect Subsidiaries or Affiliates and no Restricted Person
is engaged in any joint venture or partnership, in each case except as set
forth on Schedule 4.10 and
subject to the right of each Restricted Person to form or acquire Subsidiaries
in accordance with Section 6.9 (Loans,
Investments, Etc.).


 


(b)                                 Each Restricted Person is the record and
beneficial owner of all of the issued and outstanding shares of Capital Stock
of the each of its Subsidiaries listed on Schedule 4.10
as being owned by such Restricted Person and there are no proxies,
irrevocable or otherwise, with respect to such shares and no equity securities
of any of such Subsidiaries are or may become required to be issued by reason
of any options, warrants, rights to subscribe to, calls or commitments of any
kind or nature and there are no contracts, commitments, understandings or
arrangements by which any such Subsidiary is or may become bound to issue
additional shares of it Capital Stock or securities convertible into or
exchangeable for such shares.


 


(c)                                  The issued and outstanding shares of Capital
Stock of each Restricted Person are directly and beneficially owned and held by
the Persons indicated on Schedule 4.10,
and in each case all of such shares have been duly authorized and
are fully paid and non-assessable, free and clear of all claims, liens, pledges
and encumbrances of any kind, except as disclosed in writing to the
Administrative Agent prior to the date hereof.


 


(d)                                 As of the date hereof, each Loan Party and
each UK Loan Party is Solvent.


 


40





















 


Section 4.11                            Labor
Disputes


 


(a)                                  Set forth on Schedule 4.11
is a list (including dates of termination) of all collective
bargaining or similar agreements between or applicable to each Restricted
Person and any union, labor organization or other bargaining agent in respect
of the employees of such Restricted Person on the date hereof.


 


(b)                                 There is (i) no significant unfair labor
practice complaint pending against any Restricted Person or, to the best of
each Restricted Person’s knowledge, threatened against it, before the National
Labor Relations Board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is
pending on the date hereof against any Restricted Person or, to the best of such
Restricted Person’s knowledge, threatened against it, and (ii) no significant
strike, labor dispute, slowdown or stoppage is pending against any Restricted
Person or, to the best of each Restricted Person’s knowledge, threatened
against such Restricted Person.


 


Section 4.12                            Restrictions
on Subsidiaries


 


Except
for restrictions contained in this Agreement, any other agreement with respect
to indebtedness of any Restricted Person permitted hereunder as in effect on
the date hereof or any agreement with respect to any Subsidiary of a Restricted
Person described on Schedule 4.12 or
any other agreement entered into after the date hereof as part of, and by the
parties to, a financing entered into in reliance on Section 6.6(b)(i) (Sale of Assets, Consolidation, Merger,
Dissolution, Etc.) or Section 6.8(i)
(Indebtedness), there are no contractual or consensual restrictions
on any Restricted Person or any Subsidiary of any Restricted Person that
prohibit or otherwise restrict (a) the transfer of cash or other assets to or
between Restricted Persons or (b) the ability of any Restricted Person to incur
indebtedness or grant security interests to any Secured Party or UK Secured
Parry in the Collateral.


 


Section 4.13                            Material
Contracts


 


Schedule 4.13 sets forth all Material Contracts to which
each Restricted Person is a party or is bound as of the date hereof. Each
Restricted Person has delivered true, correct and complete copies of such
Material Contracts to the Administrative Agent on or before the date hereof.


 


Section 4.14                            Margin
Regulations


 


The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Federal Reserve Board), and no proceeds of any Loan will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock in contravention of Regulation T,
U or X of the Federal Reserve Board.


 


Section 4.15                            Investment
Company Act; Public Utility Holding Company Act


 


No
Restricted Person is (a) an “investment company”  or an “affiliated person”  of, or “promoter”  or “principal underwriter”  for, an “investment company,”  as such terms are defined in the
Investment Company Act of 1940, as amended or (b) a “holding company,”  or an


 


41





















 


“affiliate”  or a “holding company”  or a “subsidiary company”  of a “holding company,”  as each such term is defined and
used in the Public Utility Holding Company Act of 1935, as amended.


 


Section 4.16                            Accuracy
and Completeness of Information


 


All
information furnished by or on behalf of any Restricted Person in writing to
any Secured Party or UK Secured Party in connection with this Agreement or any
of the other Loan Documents or any UK Loan Document or any transaction
contemplated hereby or thereby, including, without limitation, all information
on any Schedule or any schedule or annex to any other Loan Document
is true and correct in all material respects on the date as of which such
information is dated or certified and does not omit any material fact necessary
in order to make such information not misleading. No event or circumstance has
occurred that has had or could reasonably be expected to have a material
adverse affect on the business, assets or condition (financial or otherwise) of
the Borrower and its Subsidiaries, taken as a whole, that has not been fully
and accurately disclosed to the Administrative Agent in writing.


 


Section 4.17                            Survival
of Warranties; Cumulative


 


All
representations and warranties contained in this Agreement or any of the other
Loan Documents shall survive the execution and delivery of this Agreement and
shall be conclusively presumed to have been relied on by each Agent regardless
of any investigation made or information possessed by either Agent. The
representations and warranties set forth herein shall be cumulative and in
addition to any other representations or warranties that any Restricted Person
shall give, or cause to be given, to either Agent pursuant to any Loan
Document.


 


Section 4.18                            Ranking


 


The
Loans and other Obligations payable hereunder and under the Notes and the other
Loan Documents are direct, unconditional and unsubordinated general obligations
of the Borrower, are entitled to the benefit and security of the Collateral as
provided herein, and rank at least pari passu in right and priority of payment
with all other present and future outstanding unsubordinated indebtedness of
the Restricted Persons; provided, however, that
the rights and obligations among the Secured Parties and the Senior Secured
Parties in respect of the Collateral shall be as set forth in the US
Intercreditor Agreement.


 


ARTICLE V


 


FINANCIAL COVENANTS


 


The
Borrower agrees with the Lenders and the Agents to each of the following as
long as any Obligation remains outstanding and, in each ease, unless the
Requisite Lenders otherwise consent in writing and the Borrower shall, and
shall cause each Restricted Person and each Loan Party, as applicable, to
comply with the following:


 


Section 5.1                                   Minimum
EBITDA


 


The
Borrower and its Subsidiaries shall achieve, on a consolidated basis, EBITDA,
measured as at the end of each month on a rolling twelve-month basis, of not
less than the amount set forth opposite such month:


 


42





















 


	
  TWELVE-MONTH
  PERIOD ENDING

  	
   

  	
  MINIMUM EBITDA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  November 2004

  	
   

  	
  $

  	
  11,600,000

  	
   

  
	
  December 2004

  	
   

  	
  $

  	
  17,250,000

  	
   

  
	
  January 2005

  	
   

  	
  $

  	
  17,800,000

  	
   

  
	
  February 2005

  	
   

  	
  $

  	
  17,800,000

  	
   

  
	
  March 2005

  	
   

  	
  $

  	
  18,500,000

  	
   

  
	
  April 2005

  	
   

  	
  $

  	
  19,000,000

  	
   

  
	
  May
  2005

  	
   

  	
  $

  	
  19,000,000

  	
   

  
	
  June 2005

  	
   

  	
  $

  	
  19,700,000

  	
   

  
	
  July 2005

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  August 2005

  	
   

  	
  $

  	
  21,000,000

  	
   

  
	
  September 2005

  	
   

  	
  $

  	
  21,600,000

  	
   

  
	
  October 2005

  	
   

  	
  $

  	
  22,500,000

  	
   

  
	
  November 2005

  	
   

  	
  $

  	
  23,300,000

  	
   

  
	
  December 2005

  	
   

  	
  $

  	
  24,000,000

  	
   

  
	
  January 2006

  	
   

  	
  $

  	
  24,500,000

  	
   

  
	
  February 2006

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  March 2006

  	
   

  	
  $

  	
  26,000,000

  	
   

  
	
  April 2006

  	
   

  	
  $

  	
  27,000,000

  	
   

  



 


Section 5.2                                   Minimum
Tangible Net Worth


 


The
Borrower and its Subsidiaries shall maintain, on a consolidated basis, Tangible
Net Worth, measured as at the end of each fiscal quarter, of not less than the
amount set forth opposite such quarter:


 


	
  QUARTER
  ENDING

  	
   

  	
  MINIMUM TANGIBLE

  NET WORTH(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2004

  	
   

  	
  $

  	
  -39,800,000

  	
   

  
	
  March 31,
  2005

  	
   

  	
  $

  	
  -44,000,000

  	
   

  
	
  June 30,
  2005

  	
   

  	
  $

  	
  -46,000,000

  	
   

  
	
  September 30,
  2005

  	
   

  	
  $

  	
  -46,400,000

  	
   

  
	
  December 31,
  2005

  	
   

  	
  $

  	
  -39,800,000

  	
   

  
	
  March 31,
  2006

  	
   

  	
  $

  	
  -42,000,000

  	
   

  



 


ARTICLE VI


 


AFFIRMATIVE AND NEGATIVE
COVENANTS


 


The Borrower agrees with the
Lenders and the Agents to each of the following, as long as any Obligation
remains outstanding and, in each case, unless the Requisite Lenders otherwise
consent in writing:


 










(1) “-” indicates negative Tangible Net Worth.


 


43





















 


Section 6.1                                   Maintenance of
Existence


 


Each
Restricted Person shall at all times preserve, renew and keep in full, force
and effect its corporate or company existence and rights and franchises with
respect thereto (other than as expressly permitted under clauses (a)(i) or (v) of Section 6.6 (Sale of Assets, Consolidation, Merger,
Dissolution, Etc.)) and maintain in full force and effect all
permits, licenses, trademarks, trade names, approvals, authorizations, leases
and contracts necessary to carry on the business as presently or proposed to be
conducted.


 


Section 6.2                                   Compliance with
Laws, Regulations, Etc.


 


(a)                                  Each Restricted Person shall (and, in the
case of ERISA, shall cause its ERISA Affiliates), at all times, comply in all
material respects with all laws, rules, regulations, licenses, permits,
approvals and orders applicable to it and duly observe all requirements of any
foreign, Federal, state or local Governmental Authority, including, without
limitation, in the case of the Loan Parties and their ERISA Affiliates, ERISA
and otherwise in the case of the Loan Parties, the Code, the Occupational
Safety and Health Act of 1970, as amended, the Fair Labor Standards Act of
1938, as amended, and all statutes, rules, regulations, orders, permits and
stipulations relating to environmental pollution and employee health and safety,
including, without limitation, all of the Environmental Laws where such
noncompliance would result in a material adverse effect on the assets, business
or condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, or would materially impair the ability of such Restricted
Person to perform its obligations under the Loan Documents to which it is a
party or of the Administrative Agent to enforce any Obligations or realize upon
the Collateral.


 


(b)                                 Each Restricted Person shall give written
notice to the Administrative Agent immediately upon such Restricted Person’s
receipt of any notice of, or such Restricted Person otherwise obtaining
knowledge of: (i) the occurrence of any event involving the release, spill or
discharge, threatened or actual, of any Hazardous Material; or (ii) any
investigation, proceeding, complaint, order, directive, claims, citation or
notice with respect to: (A) any non-compliance with or violation of any
Environmental Law by any Restricted Person; (B) the release, spill or
discharge, threatened or actual, of any Hazardous Material; or (C) the
generation, use, storage, treatment, transportation, manufacture, handling,
production or disposal of any Hazardous Materials other than in the ordinary
course of and other than as permitted under any applicable Environmental Law. Copies
of all environmental surveys, audits, assessments, feasibility studies and
results of remedial investigations shall be promptly furnished, or caused to be
furnished, by each Restricted Person to the Administrative Agent. Each
Restricted Person shall take prompt and appropriate action to respond to any
non-compliance with any of the Environmental Laws and shall regularly report to
the Administrative Agent on such response.


 


(c)                                  Without limiting the generality of the
foregoing, whenever either Agent reasonably determines that there is any
material non-compliance, or any condition that requires any action by or on
behalf of any Restricted Person in order to avoid any material non-compliance,
with any Environmental Law, such Restricted Person shall, at either Agent’s
request such Restricted Person’s expense:


 


(i)                                     cause an independent environmental engineer
acceptable to each Agent to conduct such tests of the site where any Restricted
Person’s non-compliance or alleged non-compliance with such Environmental Laws
has occurred as to such non-compliance and prepare and deliver to the
Administrative Agent a report as to such non-


 


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compliance setting forth the results of such tests, a proposed plan for
responding to any environmental problems described therein, and an estimate of
the costs thereof; and


 


(ii)                                  provide to the Administrative Agent a
supplemental report of such engineer whenever the scope of such non-compliance,
or such Restricted Person’s response thereto or the estimated costs thereof,
shall change in any material respect.


 


(d)                                 Each Loan Party shall indemnify and hold
harmless each Agent, its directors, officers, employees, agents, invitees,
representatives, successors and assigns, from and against any and all losses,
claims, damages, liabilities, costs, and expenses (including attorneys’ fees
and legal expenses) directly or indirectly arising out of or attributable to
the use, generation, manufacture, reproduction, storage, release, threatened
release, spill, discharge, disposal or presence of a Hazardous Material,
including, without limitation, the costs of any required or necessary repair,
cleanup or other remedial work with respect to any property of any Restricted
Person and the preparation and implementation of any closure, remedial or other
required plans. All representations, warranties, covenants and indemnifications
in this Section 6.2(d) shall
survive the payment of the Obligations and the termination or non-renewal of
this Agreement.


 


Section 6.3                                   Payment of
Taxes and Claims


 


Each
Restricted Person shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets, except for taxes the validity of which are being contested in good
faith by appropriate proceedings diligently pursued and available to such
Restricted Person and with respect to which adequate reserves have been set
aside on its books.


 


Section 6.4                                   Insurance


 


Each
Restricted Person shall, at all times, maintain with financially sound and
reputable insurers insurance with respect to the Collateral against loss or
damage and all other insurance of the kinds and in the amounts customarily
insured against or carried by corporations of established reputation engaged in
the same or similar businesses and similarly situated. Each Restricted Person
shall furnish certificates, policies or endorsements to the Administrative
Agent as any Lender shall require as proof of such insurance, and, if any
Restricted Person fails to do so, the Administrative Agent is authorized, but
not required, to obtain such insurance at the expense of such Restricted
Person. All policies shall provide for at least 30 days prior written notice to
the Administrative Agent of any cancellation or material reduction of coverage.
Each Loan Party shall cause the Administrative Agent to be named as a loss
payee and an additional insured (but without any liability for any premiums)
under its insurance policies and each Loan Party shall obtain non-contributory
lender’s loss payable endorsements to all casualty insurance policies in form
and substance satisfactory to each Agent. The Administrative Agent’s loss
payable endorsements shall specify that, subject to the rights of the Senior
Secured Parties pursuant to the US Intercreditor Agreement, the proceeds of
such insurance shall be payable to the Administrative Agent as its interests
may appear and further specify that the Administrative Agent shall be paid
regardless of any act or omission by any Restricted Person or any of its
Affiliates. At its option and subject to the provisions of the US Intercreditor
Agreement, the Administrative Agent may apply any insurance proceeds received
by any Lender at any time to the cost of repairs or replacement of Collateral
and/or to payment of the Obligations, whether or not then due, in any order and
in such manner as the Administrative Agent may determine or hold such proceeds
as cash collateral for the Obligations.


 


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Section 6.5                                   Financial
Statements and Other Information


 


(a)                                  The Borrower and its Subsidiaries shall keep
proper books and records in which true and complete entries shall be made of
all dealings or transactions of or in relation to the Collateral and the
business of the Borrower and its Subsidiaries in accordance with Applicable
GAAP. Without limiting any other provision of this Agreement, the Borrower
shall furnish or cause to be furnished to the Administrative Agent:


 


(i)                                     within 30 days after the end of each fiscal
month, unaudited consolidated financial statements of the Borrower and its
Subsidiaries and consolidating financial statements of the Borrower and its
Subsidiaries (including in each case balance sheets, statements of income and
loss and statements of cash flow), all in reasonable detail, fairly presenting
in all material respects the financial position and the results of the
operations of such entities as of the end of and through such month, certified
to be correct by the chief financial officer of each such entity, subject to
normal year-end adjustments and accompanied by a compliance certificate
substantially in the form of Exhibit K (Form
of Compliance Certificate), along with a schedule, in form
reasonably satisfactory to each Agent, of the calculations used in determining,
as of the end of such month, whether the Borrower and its Subsidiaries were in
compliance with the terms and conditions of this Agreement for such month, including
the covenants set forth in Section 5.1
(Minimum EBITDA) and Section 5.2 (Minimum Tangible Net Worth); and


 


(ii)                                  within 120 days after the end of each fiscal
year, audited consolidated financial statements of the Borrower and its
Subsidiaries (including in each case balance sheets, statements of income and
loss, statements of cash flow and statements of shareholders’ equity and
setting forth in comparative form the figures for the corresponding period in
the prior year, and, if applicable, the latest budgets, forecasts and
projections delivered pursuant to clause (f)
below and a management discussion and analysis of such financial
statements and such comparisons), and the accompanying notes thereto, all in
reasonable detail, and fairly presenting in all material respects the financial
position and the results of the operations of such entities as of the end of
and for such fiscal year, together with the opinion of independent certified
public accountants, which accountants shall be a nationally recognized independent
accounting firm or, if not, another independent accounting firm selected by
such entities and reasonably acceptable to each Agent, that such financial
statements have been prepared in accordance with Applicable GAAP, and present
fairly in all material respects the results of operations and financial
condition of such entities as of the end of and for the fiscal year then ended.


 


(b)                                 Prior to any Asset Sale anticipated to
generate in excess of $500,000 in Net Cash Proceeds, the Borrower shall send to
the Administrative Agent a notice (i) describing such Asset Sale or the nature
and material terms and conditions of such transaction and (ii) stating the
estimated Net Cash Proceeds anticipated to be received.


 


(c)                                  Promptly after the sending or receipt
thereof, the Borrower shall send to the Administrative Agent copies of all
material notices, certificates or reports delivered or received pursuant to, or
in connection with, any Senior Facility Document.


 


(d)                                 The Borrower shall promptly notify the Administrative
Agent in writing of the details of (i) any loss, damage, investigation, action,
suit, proceeding or claim relating to the Collateral or any other property that
is security for the Obligations or that would result in any


 


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material adverse change in any Restricted Person’s business,
properties, assets, goodwill or condition, financial or otherwise, (ii) any
order, judgment or decree in excess of $1,000,000 having been entered against
any Restricted Person or any properties or assets of any Restricted Person, (iii)
any notification of a violation of any law or regulation received by any
Restricted Person, (iv) any ERISA Event, and (v) the occurrence of any Default
or Event of Default.


 


(e)                                  The Borrower shall, promptly after the
sending or filing thereof, furnish or cause to be furnished to the
Administrative Agent copies of all financial reports that the Borrower sends to
its stockholders generally.


 


(f)                                    The Borrower shall furnish or cause to be
furnished to the Administrative Agent such budgets, forecasts, projections and
other information in respect of the Collateral and the business of the Borrower
and its Subsidiaries, as either Agent may, from time to time, reasonably
request and to notify the auditors and accountants of each Restricted Person
that each Agent is authorized to obtain such information directly from them.
Each Agent is hereby authorized to deliver a copy of any financial statement or
any other information relating to the business of any Restricted Person to any
court or other Governmental Authority or to any participant or assignee or
prospective participant or assignee. The Borrower hereby irrevocably authorizes
and directs all accountants or auditors to deliver to the Administrative Agent,
at the Borrower’s expense, copies of the financial statements of any Restricted
Person and any reports or management letters prepared by such accountants or
auditors on behalf of any Restricted Person and to disclose to the
Administrative Agent such information as they may have regarding the business
of any Restricted Person. Any information provided to the Administrative Agent
pursuant to this Section 6.5(f) shall
be subject to the provisions of Section 9.18 (Confidentiality) hereof.
Any documents, schedules, invoices or other papers delivered to the
Administrative Agent may be destroyed or otherwise disposed of by the
Administrative Agent one year after the same are delivered to the
Administrative Agent, except as otherwise designated by any Restricted Person
to the Administrative Agent in writing.


 


Section 6.6                                   Sale of Assets, Consolidation, Merger, Dissolution, Etc.


 


(a)                                  No Restricted Person shall directly or
indirectly do any of the following:


 


(i)                                     merge into or with or consolidate with any
other Person or permit any other Person to merge into or with or consolidate
with it except for the following:


 


(A)  any US Group Member may merge into or with
any other US Group Member or the Borrower; provided,
however, that, in the case of any merger involving the Borrower, the
Borrower shall be the surviving corporation;


 


(B)  any Intermediate Holding Company (other than
Holdings Bermuda or International Management) may merge into or with any other
Intermediate Holding Company or the Borrower; provided,
however, that, (x) in the case of any merger involving the Borrower,
the Borrower shall be the surviving corporation, (y) in the case of any merger
involving LIW, other than a merger of LIW into the Borrower, LIW shall be the
surviving corporation and (z) in the case of a merger of Holdings Bermuda or
International Management, either Holdings


 


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Bermuda or International Management shall be the surviving corporation;


 


(C)  any UK Group Member may merge into or with
any other UK Group Member; provided,
however, that, in the case of any merger involving the UK Borrower,
the UK Borrower shall be the surviving corporation; and


 


(D)  any Other Restricted Person may merge into or
with any other Other Restricted Person; provided, however, that in the
case of any merger involving Asia Pacific, Asia Pacific shall be the surviving
corporation; and provided, further, that,
after giving effect to such merger, all Capital Stock of Asia Pacific shall be
pledged to the Administrative Agent for the benefit of the Secured Parties;


 


(ii)                                  sell, issue, assign, transfer or otherwise
dispose of any Capital Stock to any Person except for sales or issuances by the
Borrower of Capital Stock of the Borrower to the extent permitted pursuant to clause (vi) below and any sale, issuance,
assignment, transfer or other disposition:


 


(A)                              of all of the outstanding Capital Stock of
any US Group Member to any other US Group Member or the Borrower;


 


(B)                                of all of the outstanding Capital Stock of
any Intermediate Holding Company (other than LIW and Holdings Bermuda) to any
other Intermediate Holding Company or the Borrower;


 


(C)                                of all of the outstanding Capital Stock of
any UK Group Member to any other UK Group Member or the UK Parent; provided, however, that such transaction
will be permitted solely if, concurrently with the consummation thereof (but
after giving effect to such transaction), the UK Security Trustee, for the
benefit of the UK Secured Parties, is granted a perfected security interest on
such Capital Stock to secure the UK Secured Obligations with the same priority
as the pledge of such Capital Stock to secure the UK Secured Obligations
entered into as of the date hereof (or as otherwise agreed by the
Administrative Agent); and


 


(D)                               of all of the outstanding Capital Stock of
any Other Restricted Person other than Asia/Pacific to any Other Restricted
Person or Holdings Bermuda;


 


(iii)                               sell, assign, lease, transfer or otherwise
dispose of any other Person or any of its assets (other than sales of Capital
Stock permitted by clause (ii) above
or clause (iv) below to any other
Person (an “Asset Sale”) except
for the following:


 


(A)                              sales of Inventory in the ordinary course of
business;


 


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(B)                                the disposition of worn-out or obsolete
equipment or equipment no longer used in the business of such Restricted Person
so long as (x) if an Event of Default exists or has occurred and is continuing,
any proceeds are paid to Lender and (y) such sales do not involve equipment
having an aggregate fair market value in excess of $1,000,000 for all such
equipment disposed of by the Restricted Persons in any fiscal year, or $500,000
in the fiscal year in which the Maturity Date occurs;


 


(C)                                any sale, assignment, lease or other
disposition by any Loan Party to any other Loan Party;


 


(D)                               any sale, assignment, lease or
other disposition by any UK Group Member to any Loan Party or any other UK
Group Member;


 


(E)                                 any sale, assignment, lease or
other disposition by any Other Restricted Person to any Other Restricted
Person;


 


(F)                                 any sale, assignment, lease or other disposition by any UK Group Member to any Other Restricted
Person; provided, however, that
(x) no Default or Event of Default is continuing or would result therefrom, (y)
such Asset Sale shall be for a fair market value and other consideration
therefor shall be payable in cash and (z) that after giving effect to such
Asset Sale, the UK Sale and Investment Amount shall not exceed $7,500,000;


 


(G)                                any sale, assignment, lease or other
disposition by any Restricted Person to any Subsidiary of the Borrower, provided, however, that (x) no Default or
Event of Default is continuing or would result therefrom, (y) such Asset Sale
shall be for fair market value and other consideration therefor shall be
payable in cash and (z) that after giving effect to such Asset Sale, the
Restricted Persons Sale and investment Amount shall not exceed $7,500,000;


 


(H)                               any sale, assignment or other transfer by any
Other Restricted Person to any counterparty (other than to the Borrower or to
any Subsidiary of the Borrower) to any factoring arrangement in connection with
any financing made in reliance on Section 6.8(i)
(Indebtedness);


 


(I)                                    any Permitted Sale not otherwise permitted
under this clause (iii); and


 


(J)                                   any sale or disposition by any Restricted
Person permitted pursuant to the US Senior Credit Agreement (or permitted
pursuant to a valid waiver or consent if the sale or disposition is otherwise
prohibited by the US Senior Credit Agreement) but otherwise not permitted under
this Agreement; provided, however, that
the aggregate fair market value of such sales or dispositions made in reliance
on this clause
(J) shall not exceed $5,000,000.


 


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(iv)                              acquire (A) the Capital Stock of any Person
in a transaction in which such Person would become a Subsidiary of such
Restricted Person or (B) substantially all of the assets of any Person (except,
in each case of clauses (A) and (B) hereof, from a Restricted Person
pursuant to a transaction permitted in clause
(i), (ii) or (iii) above
or in connection with the formation of a Permitted Subsidiary);


 


(v)                                 wind up, liquidate or dissolve except in
connection with a Permitted Liquidation;


 


(vi)                              issue or permit to remain outstanding any
Capital Stock other than (A) common stock (and, in the case of the Borrower,
options and warrants to purchase common stock), (B) in the case of any
Subsidiary of the Borrower, preferred stock issued to a Restricted Person (to
the extent the investment by such Restricted Person in such preferred stock is
otherwise permitted hereunder), and (C) in the case of the Borrower, Permitted
Holder Stock; provided, however, that
each of the following conditions is satisfied as determined by the
Administrative Agent: (1) the Administrative Agent shall have received true,
correct and complete copies of all agreements, documents and instruments
evidencing or otherwise related to such Permitted Holder Stock; (2) such
Permitted Holder Stock shall be and remain on terms and conditions satisfactory
(including subordination terms) to each Agent and the Borrower shall not,
directly or indirectly, redeem, retire, defease, purchase or otherwise acquire
such Permitted Holder Stock or set aside or otherwise deposit or invest any
sums for such purpose; and (3) the Borrower shall furnish to the Administrative
Agent all notices or demands in connection with such Permitted Holder Stock
either received by the Borrower or on its behalf promptly after the receipt thereof,
or sent by such the Borrower or on its behalf concurrently with the sending
thereof, as the case may be; or


 


(vii)                           agree to do any of the foregoing.


 


(b)                                 The Borrower shall not permit any of its
Unrestricted Subsidiaries to sell, assign, lease, transfer or otherwise dispose
any of its assets out of the ordinary course of business except for:


 


(i)                                     financing transactions including secured
financings and factoring arrangements, entered into by any Unrestricted
Subsidiary;


 


(ii)                                  transactions solely between or among the
Borrower and any Subsidiary of the Borrower or solely between or among two or
more Subsidiaries of the Borrower (including, in each case, capital
contributions, dividends and other distributions, loans, mergers,
consolidations, liquidations, and dissolutions); and


 


(iii)                               Permitted Sales.


 


(c)                                  Notwithstanding anything prohibited by clauses (a) and
(b) above, the Borrower may, and
may permit its Subsidiaries, to (i) sell, assign, lease transfer or otherwise
dispose of the assets identified on Schedule 6.6
and (ii) consummate the Permitted European Consolidation.


 


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Section 6.7                                     Encumbrances


 


No Restricted Person shall create, incur, assume or suffer to exist any
security interest, mortgage, pledge, lien, charge or other encumbrance of any
nature whatsoever on any of its assets or properties, including, without
limitation, the Collateral, except for the following:


 


(a)                                  (i) liens and security interests in favor of
the Secured Parties or the UK Secured Parties; and (ii) in the case of the
assets and properties of the UK Loan Parties (other than the Borrower and the
Guarantors), liens and security interests in favor of any Loan Party to secure
the GIFL US Intercompany Obligations;


 


(b)                                 liens and security interests on the
Collateral securing indebtedness of the Senior Secured Parties under the Senior
Secured Documents, to the extent such liens, security interest and indebtedness
are subject to any Intercreditor Agreement;


 


(c)                                  liens securing the payment of taxes, either
not yet overdue or the validity of which are being contested in good faith by
appropriate proceedings diligently pursued and available to such Restricted
Person and with respect to which adequate reserves have been set aside on its
books;


 


(d)                                 security deposits in the ordinary course of
business;


 


(e)                                  non-consensual statutory liens (other than
liens securing the payment of taxes) arising in the ordinary course of such
Restricted Person’s business to the extent:


 


(i)                                     such liens secure obligations that are not
yet overdue;


 


(ii)                                  such liens are not in imminent danger of
foreclosure; or


 


(iii)                               such liens secure indebtedness relating to
claims or liabilities that are fully insured and being defended at the sole
cost and expense and at the sole risk of the insurer (subject to applicable
deductibles) or being contested in good faith by appropriate proceedings
diligently pursued and available to such Restricted Person, in each case prior
to the commencement of foreclosure or other similar proceedings and with
respect to which adequate reserves have been set aside on its books;


 


(f)                                    zoning restrictions, easements, licenses,
covenants and other restrictions affecting the use of real property that do not
interfere in any material respect with the use of such real property or
ordinary conduct of the business of such Restricted Person as presently
conducted thereon or materially impair the value of the real property that may
he subject thereto;


 


(g)                                 purchase money security interests in
equipment (including Capital Leases) and purchase money mortgages on real
property to secure indebtedness permitted under Section 6.8 (Indebtedness);


 


(h)                                 the security interests and liens set forth on
Schedule 6.7 or replacements
therefor that do not extend to any other property or increase the amounts
secured; and


 


(i)                                     security interests and liens on the assets of
any Other Restricted Person having entered into any financing transaction
permitted pursuant to Section 6.6(b)(i)
(Sale of


 


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Assets, Consolidation, Merger, Dissolution, Etc.) or Section 6.8(i)
(Indebtedness) securing
the obligations under such financing transaction.


 


Section 6.8                                   Indebtedness


 


No Restricted Person shall incur, create, assume, become or be liable
in any manner with respect to, suffer or permit to exist, any indebtedness for
borrowed money or sale and leaseback transactions, or guarantee, assume,
endorse or otherwise become responsible for (directly or indirectly) the
performance, dividends or other obligations of any Person, except for the
following:


 


(a)                                  the Obligations and indebtedness and other
obligations owing under the UK Loan Documents;


 


(b)                                 (i)                                     indebtedness owing by the US Senior Borrowers
(together with any guaranty thereof provided by any Restricted Person) in
respect of the US Senior Facility Documents in an aggregate amount (including
any outstanding interest, fees and other charges) not to exceed $40,000,000
(or, beginning on the Closing Date and ending on prior to December 31,
2004, $45,000,000); and


 


(ii)                                  indebtedness owing by the UK Borrower in
respect of the UK Senior Facility Documents in an aggregate amount (including
any outstanding interest, fees and other charges) not to exceed £25,000,000; provided, however, that such amount shall
be reduced by the amount any reduction in the “Facility Limit”  (under and as defined in the UK
Senior Credit Agreement) and any term of similar effect required under the UK
Senior Credit Agreement (or any consent or waiver thereunder) because of the
receipt by any Restricted Person or a Subsidiary of any Restricted Person of
net cash proceeds from an Asset Sale of Property Loss Event;


 


(c)                                  trade obligations and normal accruals in the
ordinary course of business not yet due and payable, or with respect to which
such Restricted Person is contesting in good faith the amount or validity
thereof by appropriate proceedings diligently pursued and available to such
Restricted Person, and with respect to which adequate reserves have been set
aside on its books;


 


(d)                                 purchase money indebtedness (including
Capital Leases) (i) not incurred in violation of any other provision of this
Agreement, (ii) incurred to finance the acquisition of fixed assets, and (iii)
whose aggregate outstanding principal amount does not exceed $2,000,000 at any
time;


 


(e)                                  unsecured indebtedness of such Loan Party
arising after the date hereof to any Person other than the Borrower or any
Subsidiary of the Borrower (other than indebtedness of the kind described in
any other clause of this Section 6.8);
provided, however,  that
each of the following conditions is satisfied as determined by the
Administrative Agent:     (i) such
indebtedness shall be at all times on terms and conditions acceptable to each
Agent and shall be subordinated to the prior payment in full in cash of the
Secured Obligations and the UK Secured Obligations (including interest accruing
after the beginning of any bankruptcy or insolvency proceeding, whether or not
allowed in such proceeding) on terms and conditions satisfactory to each Agent,
(ii) the Administrative Agent shall have received not less than 10 days prior
written notice of the intention of such Loan Party to incur such indebtedness,
which notice shall set forth


 


52





















 


in reasonable detail
satisfactory to each Agent the amount of such indebtedness, the Persons to whom
such indebtedness will be owed, the interest rate, the schedule of
repayments and maturity date with respect hereto and such other information as
either Agent may reasonably request with respect thereto, (iii) the
Administrative Agent shall have received true, correct and complete copies of
all agreements, documents and instruments evidencing or otherwise related to
such indebtedness, (iv) on and before the date of incurring such indebtedness
and after giving effect thereto, no Default or Event of Default shall exist or
have occurred, (v) such Loan Party shall not, directly or indirectly, (A)
amend, modify, alter or change the terms of such indebtedness or any agreement,
document or instrument related thereto, except, that, such Loan Party may,
after prior written notice to the Administrative Agent, amend, modify, alter or
change the terms thereof so as to extend the maturity thereof, or defer the
timing of any payments in respect thereof, or to forgive or cancel any portion
of such indebtedness (other than pursuant to payments thereof), or to reduce
the interest rate or any fees in connection therewith, or (B) redeem, retire,
defease, purchase or otherwise acquire such indebtedness (except pursuant to
regularly scheduled payments permitted herein), or set aside or otherwise
deposit or invest any sums for such purpose, and (vi) the Borrower shall
furnish to the Administrative Agent all notices or demands in connection with
such indebtedness either received by such Loan Party or on its behalf promptly
after the receipt thereof, or sent by such Loan Party or on its behalf
concurrently with the sending thereof, as the case may be;


 


(f)                                    indebtedness owing to any Person other than
the Borrower or any Subsidiary of the Borrower, existing on the date hereof and
set forth on Schedule 6.8(f);
provided, however, that (i) 
such Restricted Person may only make regularly scheduled payments of
principal and interest in respect of such indebtedness in accordance with the
terms of the agreement or instrument evidencing or giving rise to such
indebtedness as in effect on the date hereof, (ii) such Restricted Person shall
not, directly or indirectly, (A) amend, modify, alter or change the terms of
such indebtedness or any agreement, document or instrument related thereto as
in effect on the date hereof except that, such Restricted Person may, after
prior written notice to the Administrative Agent, amend, modify, alter or
change the terms thereof so as to extend the maturity thereof, or defer the
timing of any payments in respect thereof, or to forgive or cancel any portion
of such indebtedness (other than pursuant to payment thereof), or to reduce the
interest rate or any fees in connection therewith, or (B) except as otherwise
permitted under this Agreement, redeem, retire, defease, purchase or otherwise
acquire such indebtedness, or set aside or otherwise deposit or invest any sums
for such purpose; and (iii) each Restricted Person shall furnish to the
Administrative Agent all notices or demands in connection with such
indebtedness either received by any Restricted Person or on its behalf,
promptly after the receipt thereof, or sent by any Restricted Person or on its
behalf, concurrently with the sending thereof, as the case may be;


 


(g)                                 unsecured indebtedness (including, where
applicable guaranties and assumptions of letter of credit obligations) owing to
any Restricted Person to the extent it constitutes an investment permitted to
be made by such Restricted Person pursuant to Section 6.9
(Loans, Investments, Etc.) and (ii) indebtedness owing to GIFL in
respect of any loan or advance made by GIFL using the proceeds of any loan or
advance made by any Restricted Person to GIFL in reliance of clause (f) of Section 6.9
(Loans, Investments, Etc.) hereof; provided, however,  that, in each case of clauses (i) and (ii)
hereof, (A) no Default or Event of Default exists or has occurred and is
continuing immediately prior to and after giving effect to the incurrence,
creation or assumption of such indebtedness and (B) all such indebtedness shall
be subordinated on terms


 


53





















 


and conditions
satisfactory to each Agent to the prior payment in full in cash of the Secured
Obligations and the UK Secured Obligations;


 


(h)                                 other unsecured indebtedness of the UK Loan
Parties not exceeding $2,000,000, in the aggregate, owing to any Person other
than the Borrower or any Subsidiary of the Borrower, at any one time outstanding;


 


(i)                                     indebtedness pursuant to any financing
transaction (but not guaranties thereof by any Intermediate Holdings Company,
Loan Party or UK Loan Party), including secured financings and factoring
arrangements, entered into by any Other Restricted Person to any Person other
than the Borrower or Subsidiaries of the Borrower having an aggregate principal
amount at any time outstanding not to exceed $7,500,000;


 


(j)                                     loans or advances owing to the Borrower or
any Subsidiary of the Borrower constituting an investment of the Borrower or
such Subsidiary permitted to be made hereunder in reliance on Section 6.9 (c) (Loans, Investments, Etc.);


 


provided, however,  that the aggregate amount of the UK Intercompany Secured Obligations at
any time outstanding will not exceed $1,000,000.


 


Section 6.9                                   Loans,
Investments, Etc.


 


No Restricted Person shall directly or indirectly, make, or suffer or
permit to exist, any loans or advance money or property to any Person, or any
investment in (by capital contribution, dividend or otherwise) or purchase or
repurchase the Capital Stock or indebtedness or all or a substantial part of
the assets or property of any Person, or form or acquire any Subsidiaries, or
agree to do any of the foregoing, except for the following:


 


(a)                                  the endorsement of instruments for collection
or deposit in the ordinary course of business;


 


(b)                                 investments in cash or Cash Equivalents; provided, however,  that the terms
and conditions of the Security Agreement shall have been satisfied with respect
to the deposit account or investment account in which such cash or Cash
Equivalents are held;


 


(c)                                  (i) the equity investments of such Restricted
Person in its Subsidiaries existing on or prior to October 31, 2004 or
issued solely as a result of a conversion of existing intercompany loans (with
no additional consideration therefor), (ii) investments (including all loans
and advances existing on October 31, 2004 for the appropriate category
other than to the extent repaid in cash since October 31, 2004 and all
other outstanding loans and advances) in the Borrower or any Subsidiary of the
Borrower made after October 31, 2004, in an aggregate principal amount
outstanding not to exceed, for each category set forth on Schedule 6.9(c) (and calculated on a
net basis in the manner set forth on such schedule), the amount set forth on
such Schedule 6.9(c) for
such category (which represents the outstanding amount of all such loans and
advances existing on October 31, 2004 for such category on a net basis),
and (iii) investments in each such Subsidiary in an amount not exceeding the
amount of any dividend or similar return on capital (but not including any
repayments, cancellations of, or other reductions in indebtedness) in the form
of cash with respect to any such investment, in either case received or
declared, after the date hereof, by such Restricted Person from such Subsidiary
or in connection with such Restricted Person’s investment therein;
provided, however,  that
such Restricted Person shall have


 


54





















 


no obligation to make any other investment in, or loans to, or other
payments in respect of, any such Subsidiaries;


 


(d)                                 any transaction permitted by Section 6.6
(Sale of Assets, Consolidation, Merger, Dissolution, Etc.);


 


(c)                                  loans or advances to, or investments in, or
purchases or repurchases of the stock, assets or indebtedness of any Restricted
Person or guaranties or the assumption of letter of credit obligations for the
benefit of another Restricted Person; provided,
however, that (i) no Default or Event of Default exists or has
occurred and is continuing immediately prior to and after giving effect to any
such loan, advance, investment, purchase, repurchase, guaranty or assumption of
letter of credit obligation and (ii) such loans, advances, investments,
purchases or repurchases do not violate the capitalization requirements of any
Restricted Person, under applicable laws;


 


(f)                                    loans or advances consisting of the GIFL US
Intercompany Obligations or loans or advances by the UK Borrower to GIFL; provided, however, that (i) no Default or
Event of Default exists or has occurred and is continuing immediately prior to
and after giving effect to such loans or advances, (ii) such loans or advances
do not violate the capitalization requirements of any Restricted Person, under
applicable laws, (iii) all the proceeds of such loans or advances are
immediately loaned or advanced by GIFL, to (A) the UK Borrower in the case of
the GIFL US Intercompany Obligations, or (B) the Loan Parties otherwise and
(iv) all of such loans or advances are evidenced by promissory notes or
otherwise subject to a credit agreement (in each case, in form, and substance
satisfactory to each Agent), and, in the case of promissory notes, delivered,
subject to any prior delivery requirement set forth in the Intercreditor
Agreements, to the Administrative Agent; and provided, further, that loans and
advances made in reliance on this clause (f)
shall be subordinated on terms and conditions satisfactory to each
Agent in to the prior payment in full in cash of the Secured Obligations and
the UK Secured Obligations;


 


(g)                                 investments in the form of loans, advances,
the assumption of reimbursement obligations under letters of credit, guaranties
or capital contributions from:


 


(i)                                     any Loan Party to any other Loan Party;


 


(ii)                                  any UK Group Member or Intermediate Holding
Company to any other UK Loan Party;


 


(iii)                               any Other Restricted Person to any Other
Restricted Person;


 


(iv)                              any UK Group Member to any Other Restricted
Person; provided, however, that
after giving effect to such investment, the UK Sale and Investment Amount shall
not exceed $7,500,000; or


 


(v)                                 a Restricted Person to any Subsidiary of the
Borrower; provided, however, that
after giving effect to such investment, the sum of the Restricted Persons Sale
and Investment Amount shall not exceed $7,500,000;


 


provided,
further,  that in each case of clauses (i) through (v) hereof, (x) no Default or Event of
Default exists or has occurred and is continuing immediately prior to and after
giving effect to


 


55





















 


such investment (y) and
any loans or other obligations made or incurred under such clauses are
subordinated to the prior payment in full in cash of the Obligations and the UK
Obligations on terms and conditions satisfactory to each Agent;


 


(h)                                 stock or obligations issued to any Restricted
Person by any Person (or the representative of such Person) in respect of
indebtedness of such Person owing to any Restricted Person in connection with
the insolvency, bankruptcy, receivership or reorganization of such Person or a
composition or readjustment of the debts of such Person; provided, however,  that, subject to
any requirement to deliver such original to any Senior Secured Party, the original
of any such stock or instrument evidencing such obligations shall, subject to
the provisions of the Intercreditor Agreements, be promptly delivered to the
Administrative Agent, upon either Agent’s request, together with such stock
power, assignment or endorsement by such Restricted Person as Lender may
request;


 


(i)                                     obligations of account debtors to any
Restricted Persons arising from account receivables that are past due evidenced
by a promissory note made by such account debtor payable to such Restricted
Person; provided, however,  that
promptly upon the receipt of the original of any such promissory note by such
Restricted Person, such promissory note shall, subject to the provisions of the
Intercreditor Agreements, be endorsed to the order of the Administrative Agent
by such Restricted Person and promptly delivered to the Administrative Agent as
so endorsed;


 


(j)                                     the loans and advances to Persons other than
the Borrower or Subsidiaries of the Borrower set forth on Schedule 6.9(j); provided,
however,  that
as to such loans and advances (i) no Restricted Person shall, directly or
indirectly, amend, modify, alter or change the terms of such loans and advances
or any agreement, document or instrument related thereto, and (ii) each
Restricted Person shall furnish to the Administrative Agent all notices or
demands in connection with such loans and advances either received by such
Restricted Person or on its behalf, promptly after the receipt thereof, or sent
by such Restricted Person or on its behalf, concurrently with the sending
thereof, as the case may be; and


 


(k)                                  loans or advances by any UK Group Member to GIFL;
provided, however,  that
(i) no Default or Event of Default exists or has occurred and is continuing
immediately prior to and after giving effect to such loans or advances, (ii)
such loans or advances do not violate the capitalization requirements of any
Restricted Person, under applicable laws, (iii) all the proceeds of such loans
or advances are immediately loaned or advanced by GIFL to Other Restricted
Persons; (iv) all of such loans or advances are evidenced by promissory notes
or credit agreements (in each case, in form and substance satisfactory to each
Agent) and, in the case of promissory notes, delivered, subject to any prior
delivery requirement set forth in the Intercreditor Agreements, to the
Administrative Agent; (v) after giving effect to such loan or advance, no
violation of clauses (g)(iii) of
this Section 6.9 shall have
occurred, and provided, further, that
loans and advances made in reliance on this clause
(k) shall be subordinated on terms and conditions satisfactory to
each Agent in to the prior payment in full in cash of the Secured Obligations
and the UK Secured Obligations, and (vi) after giving effect to such loans or
advances, the aggregate amount of loans and advances made in reliance on this clause (k) plus the UK Sale and Investment
Amount does not exceed $7,500,000.


 


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Section 6.10                            Dividends
and Redemptions; Management Fees; Reimbursement


 


(a)                                  The Borrower shall not, directly or
indirectly, declare or pay any dividends on account of any shares of any class
of its Capital Stock now or hereafter outstanding, or set aside or otherwise
deposit or invest any sums for such purpose, or redeem, retire, defease,
purchase or otherwise acquire any shares of any class of its Capital Stock (or
set aside or otherwise deposit or invest any sums for such purpose) for any
consideration or apply or set apart any sum, or make any other distribution (by
reduction of capital or otherwise) in respect of any such shares or agree to do
any of the foregoing, except in any case in the form of shares of Capital Stock
consisting of common stock. 
Notwithstanding the foregoing, with respect to the Permitted Holder
Stock, the Borrower may pay dividends to holders of Permitted Holder Stock in
accordance with the terms thereof at a rate not to exceed 12% per annum for
those paid in cash; provided, however,  that
no Default or Event of Default shall then exist or arise as a result of such payment.


 


(b)                                 The Restricted Persons may collectively pay
to the Permitted Holders or their Affiliates (other than the Restricted Persons
and their Subsidiaries) management fees not to exceed $2,500,000 in the
aggregate in any fiscal year, or $1,250,000 in the fiscal year in which the
Maturity Date occurs; provided, however, that no Default
or Event of Default shall then exist or arise as a result of such payment.


 


Section 6.11                            Transactions
with Affiliates


 


No Restricted Person shall, directly or indirectly, except as provided
in Section 6.10 (Dividends and
Redemptions; Management Fees; Reimbursement), (a) purchase, acquire
or lease any property from, or sell, transfer or lease any property to any
officer, director, agent or other Person affiliated with any Restricted Person
(other than the Borrower and its Subsidiaries), except in the ordinary course
of and pursuant to the reasonable requirements of such Restricted Person’s
business and upon fair and reasonable terms no less favorable to such
Restricted Person than such Restricted Person would obtain in a comparable arm’s
length transaction with an unaffiliated Person, or (b) make any payments to any
officer, employee, natural person shareholder or director of any Restricted
Person of management, consulting or other fees for management or similar
services, or of any indebtedness, owing to such individual except reasonable
compensation to officers, employees and directors for services rendered to such
Restricted Person in the ordinary course of business. For this purpose,
Affiliate shall not include any other Restricted Person.


 


Section 6.12                            Compliance
with ERISA


 


Each Restricted Person shall and shall cause each of its ERISA
Affiliates to do all of the following: (a) maintain each Plan in compliance in
all material respects with the applicable provisions of ERISA, the Code and
other Federal and state law; (b) cause each Plan that is qualified under Section 401(a)
of the Code to maintain such qualification; (c) not terminate any of such Plans
so as to incur any liability to the Pension Benefit Guaranty Corporation; (d)
not allow or suffer to exist any prohibited transaction involving any of such
Plans or any trust created thereunder that would subject such Restricted Person
or such ERISA Affiliate to a tax or penalty or other liability on prohibited
transactions imposed under Section 4975 of the Code or ERISA; (e) make all
required contributions to any Plan or Multiemployer Plan that it is obligated
to pay under Section 302 of ERISA, Section 412 of the Code or the
terms of such Plan or Multiemployer


 


57





















 


Plan; (f) not allow or suffer to exist any accumulated funding
deficiency, whether or not waived, with respect to any Plan; or (g) not allow
or suffer to exist any occurrence of a reportable event as defined in Section 4043
of ERISA or any other event or condition that presents a material risk of
termination by the Pension Benefit Guaranty Corporation of any Plan that is a
single employer plan, which termination could result in any liability to the
Pension Benefit Guaranty Corporation.


 


Section 6.13                            End of
Fiscal Years, Fiscal Quarters


 


Each Restricted Person shall, for financial reporting purposes, cause
its (a) fiscal years to end on December 31 of each year and (b) fiscal
quarters to end on March 31, June 30, September 30 and December 31
of each year.


 


Section 6.14                            Change in
Business


 


(a)                                  No Restricted Person shall engage in any
business other than the business of such Restricted Person on the date hereof
and any business reasonably related, ancillary or complimentary to the business
in which such Restricted Person is engaged on the date hereof.


 


(b)                                 Neither International Management nor Holdings
Bermuda shall engage in any business or activity other than (i) holding shares
in the Stock of their respective Subsidiaries and Affiliates, (ii) paying
taxes, (iii) preparing reports to Governmental Authorities and to its
shareholders and (iv) holding directors and shareholders meetings, preparing corporate
records and other corporate activities required to maintain its separate
corporate structure.


 


Section 6.15                            Limitation
of Restrictions Affecting Subsidiaries


 


No Restricted Person shall, directly, or indirectly, create or
otherwise cause or suffer to exist any encumbrance or restriction that
prohibits or limits the ability of any Subsidiary of such Restricted Person to
(a) pay dividends or make other distributions or pay any indebtedness owed to
any Restricted Person (b) make loans or advances to such Restricted Person, (c)
transfer any of its properties or assets to any Restricted Person, or (d)
create, incur, assume or suffer to exist any lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than encumbrances
and restrictions arising under (i) applicable law, (ii) this Agreement, (iii)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of such Restricted Person, (iv) customary
restrictions on dispositions of real property interests found in reciprocal
easement agreements of such Restricted Person, (v) any agreement relating to
permitted indebtedness incurred by any Restricted Person (other than any
Grantor Party) prior to the date on which such Restricted Person became a
Restricted Person and outstanding on such date, (vi) any agreement set forth on
Schedule 4.12, as in effect on the date hereof, (vii) the extension or
continuation of contractual obligations of any Restricted Person in existence
on the date hereof; provided, however, that
(x) any such encumbrances or restrictions contained in such extension or
continuation are no less favorable to Lender than those encumbrances and
restrictions under or pursuant to the contractual obligations so extended or continued
and (y) in the case of any agreement with respect to any Unrestricted
Subsidiary or otherwise set forth on Schedule 4.12, such extension or
continuation (together with, if requested by either Agent, the delivery of a
copy of the relevant documentation) is disclosed to each Agent reasonably prior
to the effectiveness thereof, and (viii) the terms of any financing transaction
permitted by Section 6.8(i) with
respect to the property of the Other Restricted Person having entered into such
financing transaction.


 


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Section 6.16                            License
Agreements


 


Each Restricted Person shall (a) promptly and faithfully observe and
perform all of the material terms, covenants, conditions and provisions of the
material License Agreements to be observed and performed by it, at the times
set form therein, if any, (b) not do, permit, suffer or refrain from doing
anything could reasonably be expected to result in a default under or breach of
any of the terms of any material License Agreement, (c) not cancel, surrender,
modify, amend, waive or release any material License Agreement in any material
respect or any term, provision or right of the licensee thereunder in any
material respect, or consent to or permit to occur any of the foregoing;
except, that any Restricted Person may cancel, surrender or release any
material License Agreement in the ordinary course of the business of such
Restricted Person; provided, however,  that
such Restricted Person shall give the Administrative Agent not less than 30
days prior written notice of its intention to so cancel, surrender and release
any such material License Agreement, (d) give the Administrative Agent prompt
written notice of any material License Agreement entered into by such Restricted
Person after the date hereof, together with a true, correct and complete copy
thereof and such other information with respect thereto as either Agent may
request, (e) give the Administrative Agent prompt written notice of any
material breach of any obligation, or any default, by any party under any
material License Agreement, and deliver to the Administrative Agent (promptly
upon the receipt thereof by such Restricted Person in the case of a notice to
such Restricted Person, and concurrently with the sending thereof in the case
of a notice from such Restricted Person) a copy of each notice of default and
every other notice and other communication received or delivered by such
Restricted Person in connection with any material License Agreement that relates
to the right of such Restricted Person to continue to use the property subject
to such License Agreement, and (f) furnish to the Administrative Agent,
promptly upon the request of either Agent, such information and evidence as
either Agent may require from time to time concerning the observance,
performance and compliance by such Restricted Person or the other party or
parties thereto with the terms, covenants or provisions of any material License
Agreement.


 


Section 6.17                            Use of
Proceeds


 


All Loans made by any Lender to the Borrower pursuant to the provisions
hereof shall be used by the Borrower or any of its Subsidiaries only for
general operating, working capital and other proper corporate purposes of the
Borrower or any of its Subsidiaries not otherwise prohibited by the terms
hereof. None of the proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin security or for the purposes of
reducing or retiring any indebtedness that was originally incurred to purchase
or carry any margin security or for any other purpose that might cause any of
the Loans to be considered a “purpose credit” within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System, as amended.


 


Section 6.18                            Access to
Premises


 


From time to time as requested by the Administrative Agent, at the cost
and expense of the Borrower (a) the Administrative Agent (or its designee)
shall have complete access to all of the Restricted Persons’ premises during
normal business hours and after notice to the Borrower, or at any time and
without notice to any Restricted Person if an Event of Default exists or has
occurred and is continuing, for the purposes of inspecting, verifying and
auditing the Collateral and all Restricted Persons’ books and records,
including, without limitation, the Records and (b) each Restricted Person shall
promptly furnish to the Administrative Agent such


 


59





















 


copies of such books and
records or extracts therefrom as either Agent may request, and (c) the
Administrative Agent (or its designee) may use during normal business hours
such of the Restricted Persons’ personnel, equipment, supplies and premises as
may be reasonably necessary for the foregoing and if an Event of Default exists
or has occurred and is continuing for the realization of Collateral.


 


Section 6.19                            Collection
of Accounts


 


(a)                                  No Loan Party has any deposit accounts as of
the date hereof, except as set forth on Schedule 6.19.
No Loan Party shall directly or indirectly, after the date hereof
open, establish or maintain any deposit account unless each of the following
conditions is satisfied: (i) the Administrative Agent shall have received not
less than five Business Days prior written notice of the intention of such Loan
Party to open or establish such account which notice shall specify in
reasonable detail and specificity acceptable to Lender the name of the account,
the owner of the account, the name and address of the bank at which such
account is to be opened or established, the individual at such bank with whom
such Loan Party is dealing and the purpose of the account, (ii) the bank where
such account is opened or maintained shall be acceptable to the Administrative
Agent, and (iii) if such deposit account is opened after the payment in full of
all non-contingent obligations under the US Senior Facility Documents, on or
before the opening of such deposit account, such Loan Party shall as the
Administrative Agent may specify either (A) deliver to the Administrative Agent
a Deposit Account Control Agreement with respect to such deposit account duly
authorized, executed and delivered by such Loan Party and the bank at which
such deposit account is opened and maintained or (B) arrange for the
Administrative Agent to become the customer of the bank with respect to the
deposit account on terms and conditions acceptable to the Administrative Agent.
The terms of this Section 6.19(a) shall
not apply to deposit accounts specifically and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the
benefit of a Loan Party’s salaried employees.


 


(b)                                 No Loan Party owns or holds, directly or
indirectly, beneficially or as record owner or both, any investment property,
as of the date hereof, or have any investment account, securities account,
commodity account or other similar account with any bank or other financial
institution or other securities intermediary or commodity intermediary as of
the date hereof, in each case except as set forth on Schedule 6.19.  No Loan Party shall, directly or
indirectly, after the date hereof open, establish or maintain any investment
account, securities account, commodity account or any other similar account
(other than a deposit account) with any securities intermediary or commodity
intermediary unless each of the following conditions is satisfied: (i) the
Administrative Agent shall have received not less than five Business Days prior
written notice of the intention of such Loan Party to open or establish such
account which notice shall specify in reasonable detail and specificity
acceptable to each Agent the name of the account, the owner of the account, the
name and address of the securities intermediary or commodity intermediary at
which such account is to be opened or established, the individual at such
intermediary with whom such Loan Party is dealing and the purpose of the
account, and (ii) the securities intermediary or commodity intermediary (as the
case may be) where such account is opened or maintained shall be acceptable to
each Agent.


 


Section 6.20                            No
Speculative Transactions


 


No Restricted Person shall permit, and no Restricted Person shall
permit any of its Subsidiaries to, engage in any speculative transaction or in
any transaction involving Hedging


 


60





















 


Contracts except for the
sole purpose of hedging in the normal course of business and consistent with
industry practices.


 


Section 6.21                            Ranking


 


The Borrower will ensure that the payment obligations of the Borrower
under this Agreement and the Notes will at all times have the ranking specified
in Section 4.18 (Ranking).


 


Section 6.22                            Post-Closing
Deliveries


 


Borrower shall, and shall cause each Subsidiary of the Borrower to, (a)
deliver to the Administrative Agent each item set forth on Schedule 6.22 in form and substance
reasonably satisfactory to the Administrative Agent and (b) perform each action
set forth in Schedule 6.22 in
a manner reasonably satisfactory to the Administrative Agent, in each case (x)
within the periods set forth opposite each such item or action on such Schedule and
(y) unless otherwise agreed by the Administrative Agent in respect of any such
item or action.


 


Section 6.23                            Further
Assurances


 


(a)                                  To the extent not delivered to the
Administrative Agent on or before the Closing Date (including in respect of
after-acquired property and Persons that become Grantor Parties after the
Closing Date), the Borrower agrees promptly to do, or cause each Grantor Party
(and, to the extent deemed by either Agent to be necessary or appropriate to
consummate the transactions contemplated in this Section 6.23,  each other Restricted Person) to
do, each of the following, unless otherwise agreed by each Agent:


 


(i)                                     deliver to the Administrative Agent such duly
executed supplements and amendments to the Guaranty (or, in the case of any
Grantor Party that is not a Domestic Subsidiary or that holds shares in any
Person that is not a Domestic Subsidiary, foreign guarantees and related
documents), in each case in form and substance reasonably satisfactory to each
Agent and as either Agent deems necessary or advisable in order to ensure that
(A) each Grantor Party and (B) each Subsidiary of any Grantor Party that has
guaranteed indebtedness owing under any Senior Facility Document or
indebtedness permitted pursuant to Section 6.8(e)
(Indebtedness) hereunder guaranties, as primary obligor and not as
surety, the full and punctual payment when due of the Obligations or any part
thereof; provided, however,  that
in no event shall any Excluded Foreign Subsidiary be required to guaranty the
payment of the Obligations, unless the Borrower and the Administrative Agent
otherwise agree;


 


(ii)                                  deliver to the Administrative Agent such
duly-executed joinder and amendments to the Pledge Agreement, the Security
Agreement and, if applicable, other Collateral Documents (or, in the case of
any such Grantor Party that is not a Domestic Subsidiary or that holds shares
in any Person that is not a Domestic Subsidiary, foreign charges, pledges,
security agreements and other Collateral Documents), in each case in form and
substance reasonably satisfactory to each Agent and as either Agent deems
necessary or advisable in order to:


 


(A) effectively grant to the
Administrative Agent, for the benefit of the Secured Parties, a valid,
perfected and enforceable security interest (junior only to


 


61





















 


the liens and security interests permitted pursuant to clauses (a)(ii) and (b) of Section 6.7
(Encumbrances))  in the Capital Stock and other
debt securities owned by (1) each Grantor Party and (2) each Subsidiary of any
Grantor Party that has granted (and then only to the extent of such grant) a
security interest in such Capital Stock or other debt securities to secure
indebtedness owing under any Senior Facility Document or indebtedness permitted
pursuant to Section 6.8(e)
(Indebtedness) hereunder; and


 


(B) effectively grant to the
Administrative Agent, for the benefit of the Secured Parties, a valid,
perfected and enforceable security interest (junior only to the liens and
security interests permitted pursuant to clauses
(a)(ii) and (b) of Section 6.7
(Encumbrances))  in all property interests and
other assets of any Loan Party, any Subsidiary of (1) each Grantor Party and
(2) each Subsidiary of any Grantor Party that has granted (and then only to the
extent of such grant) a security interest in any such property interests or
other assets to secure indebtedness owing under any Senior Facility Document or
indebtedness permitted pursuant to Section 6.8(e)
(Indebtedness) hereunder;


 


provided, however,  that, in no event shall (x) any Grantor Party, individually or
collectively, be required to pledge in excess of 66% of the outstanding Voting
Stock of any Excluded Foreign Subsidiary or (y) any assets of any Excluded
Foreign Subsidiary be required to be pledged, in either case unless (t) the
Borrower and the Administrative Agent otherwise agree.


 


(b)                                 At the request of the Administrative Agent at
any time and from time to time, each Grantor Party shall, at its expense, duly
execute and deliver, or cause to be duly executed and delivered, such further
agreements, documents and instruments (including promissory notes evidencing
intercompany indebtedness owed by or owed to GIFL), and do or cause to be done
such further acts as may be necessary or proper to evidence, perfect, maintain
and enforce the security interests and the priority thereof in the Collateral
and to otherwise effectuate the provisions or purposes of this Agreement or any
of the other Loan Documents.


 


ARTICLE VII


 


EVENTS OF DEFAULT


 


Section 7.1                                   Events of
Default


 


The occurrence or existence of any one or more of the following events
are referred to herein individually as an “Event of Default,”  and collectively as “Events
of Default”:


 


(a)                                  any Loan Party fails to pay when due any of
the Obligations (other than interest or fees due hereunder);


 


(b)                                 any Loan Party fails to pay any interest or
fees within three days after such interest or fees become due hereunder;


 


(c)                                  any Loan Party fails to perform any of the
terms, covenants, conditions or provisions contained in this Agreement or any
of the other Loan Documents and:


 


(i)                                     such failure shall continue for 10 Business
Days; provided, however, that, such
10 Business Day period shall not apply in the case of (A) any failure to
perform a term, covenant, condition or provision that results in the occurrence
of an


 


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Event of Default addressed in any other provision or paragraph of this Section 7.1,
(B) any failure to perform any such term, covenant, condition or provision that
has been the subject of two previous failures within the prior twelve-month
period or (C) an intentional breach by any Loan Party of such term, covenant,
condition or provision; and


 


(ii)                                  with respect to a breach of the covenant set
forth in Section 5.1 (Minimum EBITDA) and
Section 5.2 (Minimum Tangible Net
Worth),  such breach shall not be deemed an
Event of Default if (A) such breach arises from either (1) a failure to meet
the minimum EBITDA amount set forth in Section 5.1
(Minimum EBITDA) by no more than $5,000,000 or (2) a failure to meet
the minimum Tangible Net Worth amount set forth in Section 5.2 (Minimum Tangible Net Worth) by no more
than $7,500,000 and (B) within 30 days (which period may not be extended by any
other cure period provided for in this Agreement) of the date of such failure
any one or more Questor Funds or one or more Affiliates of the Questor Funds
shall have (1) executed and delivered, or arranged to have issued, to the
Lenders, a guaranty (provided, however,  that if any Affiliate of a Questor
Fund, rather than a Questor Fund is issuing a guaranty, such Affiliate must be
acceptable to each Agent) with respect to the Obligations, irrevocable standby
letter of credits issued for the benefit of the Lenders or other such credit
support, in each case that shall be in form and substance satisfactory to each
Agent and furthermore, in the case of a letter of credit, be issued by a bank
acceptable to each Agent, and shall continue in full force and effect, without
decrease, until such time as the Obligations are indefeasibly paid in full or
(2) provide to the Borrower cash as a capital contribution or on a subordinated
(in a manner satisfactory to each Agent) indebtedness basis, in either case for
an amount equal to the absolute difference between (I) the covenanted minimum
EBITDA amount and the actual EBITDA amount then reported pursuant to Section 5.1  (Minimum EBITDA) or (II) the covenanted
minimum Tangible Net Worth amount and the actual Tangible Net Worth amount then
reported pursuant to Section 5.2
(Minimum Tangible Net Worth),  as the case may be (the “Breach
Amount”); provided, however, that
in the event of a subsequent such breach of either Section 5.1 (Minimum EBITDA) or Section 5.2 (Minimum Tangible Net Worth), such
breach shall not be an Event of Default if within the same time period as set
forth in this clause (ii) such
Persons take any of the actions described in clauses
(1) or (2) above for
the amount that the subsequent Breach Amount exceeds the prior Breach Amount;


 


(d)                                 any representation, warranty or statement of
fact made by any Loan Party to any Secured Party in this Agreement, the other
Loan Documents or any other agreement, schedule, confirmatory assignment or
otherwise shall when made or deemed made be false or misleading in any material
respect;


 


(e)                                  any Secured Party grants or suffers to exist,
or purports to grant or suffer to exist, a lien, security interest or other
encumbrance on the GIFL US Intercompany Obligations other than (i) in favor of
the US Senior Secured Parties to secure indebtedness under the US Senior
Facility and (ii) in favor of the Secured Parties;


 


(f)                                    any Loan Party revokes or terminates any of
the terms, covenants, conditions or provisions of any guaranty, endorsement or
other agreement of such party in favor of any Secured Party;


 


(g)                                 any judgment for the payment of money is
rendered against any Loan Party in excess of $2,500,000 in any one case or in
excess of $5,000,000 in the aggregate and


 


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shall remain undischarged
or unvacated for a period in excess of 30 days or execution shall at any time
not be effectively stayed, or any material judgment other than for the payment
of money, or injunction, attachment, garnishment or execution is rendered
against any Loan Party or any of their assets;


 


(h)                                 any Loan Party, which is a partnership,
limited liability company, limited liability partnership or corporation,
dissolves or suspends or discontinues doing business;


 


(i)                                     any Loan Party becomes unable generally to
pay its debts as they become due, makes an assignment for the benefit of
creditors, makes or sends notice of a bulk transfer or calls a meeting of its
creditors or principal creditors;


 


(j)                                     a case or proceeding under the bankruptcy
laws of the United States of America now or hereafter in effect or under any
insolvency, reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at law or in equity) is filed against any Loan Party or all or any
part of its properties and any Loan Party shall file any answer admitting or
not contesting such petition or application or indicates its consent to,
acquiescence in or approval of, any such action or proceeding or such petition
or application is not dismissed within 90 days after the date of its filing or
the relief requested is granted sooner;


 


(k)                                  a case or proceeding under the bankruptcy
laws of the United States of America now or hereafter in effect or under any
insolvency, reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at a law or equity) is filed by any Loan Party or for all or any part
of any Loan Party’s property;


 


(1)                                  any default by any Loan Party under any
agreement, document or instrument relating to any indebtedness for borrowed
money other than any Loan Document, or any capitalized lease obligations,
contingent indebtedness in connection with any guaranty, letter of credit,
indemnity or similar type of instrument in favor of any Person other than the
Secured Parties, in any case in an amount in excess of $2,500,000, which
default continues for more than the applicable cure period, if any, with
respect thereto;


 


(m)                               an ERISA Event shall occur which results in
or could reasonably be expected to result in liability of any Loan Party in an
aggregate amount in excess of $500,000;


 


(n)                                 any Change of Control shall occur;


 


(o)                                 the indictment by any Governmental Authority,
or as either Agent may reasonably and in good faith determine, the threatened
indictment by any Governmental Authority of any Loan Party of which any Loan
Party, or either Agent receives notice, in either case, as to which there is a
reasonable possibility of an adverse determination, in the good faith
determination of either Agent, under any criminal statute, or commencement or
threatened commencement of criminal or civil proceedings against any Loan
Party, pursuant to which statute or proceedings the penalties or remedies
sought or available include forfeiture of (i) any of the Collateral having a
value in excess of $500,000 or (ii) any other property of such Loan Party that
is necessary or material to the conduct of its business;


 


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(p)                                 any “Event of Default” shall occur under any
Senior Facility Document, any UK Loan Document or any other agreement,
document, note and/or instrument executed or delivered in connection therewith;


 


(q)                                 without the prior written consents of each
Agent, which consents shall not be unreasonably withheld, the Borrower or any
Subsidiary of the Borrower (other than the Guarantors or the UK Borrower), in
connection with sales of all or substantially all the assets of a Subsidiary of
the Borrower (other than the Guarantors or the UK Borrower) or sales of all the
Capital Stock of a Subsidiary of the Borrower (other than the Guarantors or the
UK Borrower), sells or agrees to sell assets or Capital Stock having a fair
market value in excess of $10,000,000 in the aggregate at any time during the
term of this Agreement; or


 


(r)                                    there shall occur an event of default under any
of the other Loan Documents.


 


Section 7.2                                     Remedies


 


During the continuance of any Event of Default, the Administrative
Agent may and, at the request of the Requisite Lenders, shall, by notice to the
Borrower, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that
upon the occurrence of the Events of Default specified in clause (i) or (j) of Section 7.1
(Events of Default), the Loans,
all such interest and all such amounts and Obligations shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
In addition to the remedies set forth above, the Administrative Agent may,
subject to the terms of the Intercreditor Agreements, exercise any remedies
provided for by the Collateral Documents in accordance with the terms thereof
or any other remedies provided by applicable law.


 


ARTICLE VIII


 


THE AGENTS


 


Section 8.1                                   Authorization
and Action


 


(a)                                  Each Lender hereby appoints CNAI as the
Administrative Agent hereunder and each Lender authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent under such agreements and to exercise such powers as are
reasonably incidental thereto. Without limiting the foregoing, each Lender
hereby authorizes the Administrative Agent to execute and deliver the
Intercreditor Agreements on behalf of each Lender, to execute and deliver, and
to perform its obligations under, each of the Loan Documents to which the
Administrative Agent is a party, to exercise all rights, powers and remedies that
the Administrative Agent may have under such Loan Documents and, in the case of
the Collateral Documents, to act as agent for the Lenders and the other Secured
Parties under such Collateral Documents. Each Lender hereby appoints Bear Stearns
Corporate Lending Inc. as Syndication Agent, and each Lender hereby authorizes
the Syndication Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are


 


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delegated to the Syndication Agent thereunder and to
exercise such powers as are reasonably incidental thereto.


 


(b)                                 As to any matters not expressly provided for
by this Agreement and the other Loan Documents (including enforcement or
collection), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders, and such instructions shall be
binding upon all Lenders; provided, however,
that the Administrative Agent shall not be required to take any
action that (i) the Administrative Agent in good faith believes exposes it to
personal liability unless the Administrative Agent receives an indemnification
satisfactory to it from the Lenders with respect to such action or (ii) is
contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender prompt notice of each notice given to it by any Loan
Party pursuant to the terms of this Agreement or the other Loan Documents.


 


(c)                                  In performing its functions and duties
hereunder and under the other Loan Documents, the Administrative Agent is
acting solely on behalf of the Lenders (except as provided in Section 2.5 (Evidence of Debt))  and
its duties are entirely administrative in nature. The Administrative Agent does
not assume and shall not be deemed to have assumed any obligation other than as
expressly set forth herein and in the other Loan Documents or any other
relationship as the agent, fiduciary or trustee of or for any Lender or holder
of any other Obligation. The Administrative Agent may perform any of its duties
under any Loan Document by or through its agents or employees.


 


(d)                                 Duties of Certain
Agents.  Notwithstanding anything to the contrary
contained in this Agreement, the Syndication Agent is a Lender designated as ‘Syndication Agent’ for title purposes
only and in such capacity shall have no obligations or duties whatsoever under
this Agreement or any other Loan Document to any Loan Party, any Lender or any
Issuer and shall have no rights separate from its rights as a Lender except as
expressly provided in this Agreement.


 


Section 8.2                                   Agents’
Reliance, Etc.


 


No Agent, Affiliate of either Agent or any of their respective
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it, him, her or them under or in connection with this
Agreement or the other Loan Documents, except for its, his, her or their own
gross negligence or willful misconduct. Without limiting the foregoing, the
Administrative Agent (a) may treat the payee of any Note as its holder until
such Note has been assigned in accordance with Section 9.2
(Assignments and Participations), (b) may rely on the Register to
the extent set forth in Section 2.5
(Evidence of Debt), (c) may consult with legal counsel (including
counsel to the Loan Party or any other Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts, (d) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made by or on behalf of any
Restricted Person or any of Subsidiary of any Restricted Person in or in
connection with this Agreement or any other Loan Document, (e) shall not have
any duty to ascertain or to inquire either as to the performance or observance
of any term, covenant or condition of this Agreement or any other Loan
Document, as to the financial condition of any Restricted Person or as to the
existence or possible existence of any Default or Event of Default, (f) shall
not be responsible to


 


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any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the attachment, perfection or priority of any lien
created or purported to be created under or in connection with, this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto and (g) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which writing may be a telecopy or
electronic mail) or any telephone message believed by it to be genuine and
signed or sent by the proper party or parties.


 


Section 8.3                                   Agents
Individually


 


With respect to its Ratable Portion, each Agent that is a Lender shall
have and may exercise the same rights and powers hereunder and is subject to
the same obligations and liabilities as and to the extent set forth herein for
any other Lender. The terms “Lenders”, “Requisite Lenders”  and any similar terms shall,
unless the context clearly otherwise indicates, include, without limitation,
each Agent in its individual capacity as a Lender or as one of the Requisite
Lenders. Each Agent and each of its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with, any Restricted Person as if such Agent were not acting as Agent.


 


Section 8.4                                   Lender
Credit Decision


 


Each Lender acknowledges that it shall, independently and without
reliance upon either Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of each Restricted Person
in connection with the making and continuance of the Loans. Each Lender also
acknowledges that it shall, independently and without reliance upon either
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement and other Loan Documents.


 


Section 8.5                                   Indemnification


 


Each Lender agrees to indemnify each Agent and each of its Affiliates,
and each of their respective directors, officers, employees, agents and
advisors (to the extent not reimbursed by the Borrower), from and against such
Lender’s aggregate Ratable Portion of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements (including fees, expenses and disbursements of financial and
legal advisors) of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against, such Agent or any of its Affiliates,
directors, officers, employees, agents and advisors in any way relating to or
arising out of this Agreement or the other Loan Documents or any action taken
or omitted by such Agent under this Agreement or the other Loan Documents; provided, however, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s or such Affiliate’s gross negligence or willful
misconduct. Without limiting the foregoing, each Lender agrees to reimburse
each Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including fees, expenses and disbursements of financial and legal
advisors) incurred by such Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of its rights or responsibilities under, this


 


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Agreement or the other
Loan Documents, to the extent that such Agent is not reimbursed for such
expenses by the Borrower or another Loan Party.


 


Section 8.6                                   Successor
Administrative Agent


 


The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Requisite Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent’s giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, selected from among the Lenders. In either
case, such appointment shall be subject to the prior written approval of the
Borrower (which approval may not be unreasonably withheld and shall not be
required upon the occurrence and during the continuance of an Event of
Default). Upon the acceptance of any appointment as Administrative Agent by a
successor Administrative Agent, such successor Administrative Agent shall
succeed to, and become vested with, all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. Prior to any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the retiring Administrative
Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under the
Loan Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article VIII
as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.


 


Section 8.7                                   Concerning
the Collateral and the Collateral Documents


 


(a)                                  Each Lender agrees that any action taken by
either Agent or the Requisite Lenders (or, where required by the express terms
of this Agreement, a greater proportion of the Lenders) in accordance with the
provisions of this Agreement or of the other Loan Documents, and the exercise
by either Agent or the Requisite Lenders (or, where so required, such greater
proportion) of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding
upon all of the Lenders and other Secured Parties. Without limiting the
generality of the foregoing, the Administrative Agent shall have the sole and
exclusive right and authority to (i) act as the disbursing and collecting agent
for the Lenders with respect to all payments and collections arising in
connection herewith and with the Collateral Documents, (ii) execute and deliver
each Collateral Document and accept delivery of each such agreement delivered
by the Borrower or any other Loan Party or any of their Subsidiaries, (iii) act
as collateral agent for the Lenders and the other Secured Parties for purposes
of the perfection of all security interests and liens created by such
agreements and all other purposes stated therein; provided, however, that the Administrative Agent hereby
appoints, authorizes and directs each Lender to act as collateral sub-agent for
the Administrative Agent and the Lenders for purposes of the perfection of all
security interests and liens with respect to the Collateral, including any
deposit accounts maintained by any Loan Party with, and cash and Cash
Equivalents held by, such Lender, (iv) manage, supervise and otherwise deal
with the Collateral, (v) take such action as is necessary or desirable to
maintain the perfection and priority of the security interests and liens
created or purported to be created by the Collateral Documents and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the


 


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Administrative Agent, the Lenders and the other Secured Parties with
respect to the Collateral under the Loan Documents relating thereto, applicable
law or otherwise.


 


(b)                                 Each Lender hereby consents to the release
and directs, in accordance with the terms hereof, the Administrative Agent to
release (or, in the case of clause (ii) below,
release or subordinate) any lien held by the Administrative Agent for the
benefit of the Lenders against any of the following:


 


(i)                                     all of the Collateral and all Loan Parties,
upon termination of the Commitments and payment and satisfaction in full of all
Loans and all other Obligations that the Administrative Agent has been notified
in writing are then due and payable;


 


(ii)                                  any assets that are subject to a replacement
lien permitted by Section 6.7(h)
(Encumbrances) or to a lien permitted by Section 6.7(g) (Encumbrances);  and


 


(iii)                               any part of the Collateral sold or disposed
of by a Loan Party if such sale or disposition is permitted by this Agreement
(or permitted pursuant to a waiver of or consent to a transaction otherwise
prohibited by this Agreement).


 


Each of the Lenders hereby directs the Administrative Agent to execute
and deliver or file such termination and partial release statements and do such
other things as are necessary to release liens and to be released pursuant to
this Section 8.7 promptly upon the effectiveness of any such release.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.1                                   Amendments, Waivers, Etc.


 


(a)                                  No amendment or waiver of any provision of
this Agreement or any other Loan Document (other than the Fee Letter) nor
consent to any departure by any Restricted Person therefrom shall in any event
be effective unless the same shall be in writing and (x) in the case of an
amendment, modification or supplement to cure any typographical error,
ambiguity, omission, defect or inconsistency that does not materially adversely
affect the rights of any Lender, signed by the Administrative Agent and the
Borrower, (y) in the case of any such waiver or consent, signed by the
Requisite Lenders (or by the Administrative Agent with the consent of the
Requisite Lenders) and (z) in the case of any other amendment, by the Requisite
Lenders (or by the Administrative Agent with the consent of the Requisite
Lenders) and by the Borrower, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no
such amendment, waiver or consent shall, unless in writing and signed by each
Lender directly affected thereby, in addition to the Administrative Agent (or
the Administrative Agent with the consent thereof), do any of the following:


 


(i)                                     waive any condition specified in Section 3.1
(Conditions Precedent to Initial Loans), subject to the provisions of Section 3.2
(Determinations of Initial Borrowing Conditions);


 


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(ii)                                  increase the Commitment of such Lender or
subject such Lender to any additional obligation;


 


(iii)                               extend the scheduled final maturity of any
Loan owing to such Lender, or waive, reduce or postpone any scheduled date
fixed for the payment or reduction (or waive any such payment) of principal,
interest or fees owing to such Lender (it being understood that Section 2.7 (Mandatory Prepayments) does
not provide for scheduled dates fixed for payment) or for the reduction of such
Lender’s Commitment;


 


(iv)                              reduce, or release the Borrower from its
obligations to repay, the principal amount of any Loan owing to such Lender
(other than by the payment or prepayment thereof);


 


(v)                                 reduce the rate of interest on any Loan
outstanding and owing to such Lender or any fee payable hereunder to such
Lender;


 


(vi)                              change the aggregate Ratable Portions of
Lenders required for any or all Lenders to take any action hereunder;


 


(vii)                           release all or substantially all of the
Collateral except as provided in Section 8.7(b)
(Concerning the Collateral and the Collateral Documents) or release
the Borrower from its payment obligation to such Lender under this Agreement or
the Notes owing to such Lender (if any) or release any Guarantor from its
obligations under the Guaranty except in connection with the sale or other
disposition of a Guarantor (or all or substantially all of the assets thereof)
permitted by this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement); or


 


(viii)                        amend Section 8.7(b)
(Concerning the Collateral and the Collateral Documents), this Section 9.1 or either definition of
the terms “Requisite Lenders” or “Ratable Portion”;


 


provided, further, that (x) no amendment, waiver or consent
shall, unless in writing and signed by any Special Purpose Vehicle that has
been granted an option pursuant to Section 9.2(e)
(Assignments and Participations) affect the grant or nature of such
option or the right or duties of such Special Purpose Vehicle hereunder, (y) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or the other Loan Documents and (z) no amendment, waiver or consent
shall, unless in writing and signed by the Syndication Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Syndication Agent under this Agreement or the other Loan Documents.


 


(b)                                 The Administrative Agent may, but shall have
no obligation to, with the written concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or demand
in similar or other circumstances.


 


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Section 9.2                                   Assignments
and Participations


 


(a)                                  Each Lender may sell, transfer, negotiate or
assign to one or more Eligible Assignees all or a portion of its rights and
obligations hereunder (including all of its rights and obligations with respect
to the Loans); provided, however, that
(i) if any such assignment shall be of the assigning Lender’s Loans and
Commitment, such assignment shall cover the same percentage of such Lender’s
Loans and Commitment, (ii) the aggregate amount being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event (if less than the Assignor’s
entire interest) be less than $1,000,000 or an integral multiple of $1,000,000
in excess thereof, except, in either case, (A) with the consent of the Administrative
Agent or (B) if such assignment is being made to a Lender or an Affiliate or
Approved Fund of such Lender, and (iii) if such Eligible Assignee is not, prior
to the date of such assignment, a Lender or an Affiliate or Approved Fund of a
Lender, such assignment shall be subject to the prior consent of the
Administrative Agent (which consents shall not be unreasonably withheld or
delayed).


 


(b)                                 The parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
(if the assigning Lender’s Loans are evidenced by a Note) subject to such
assignment. Upon the execution, delivery, acceptance and recording in the
Register of any Assignment and Acceptance and the receipt by the Administrative
Agent from the assignee of an assignment fee in the amount of $3,500 from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall become a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender, (ii) the Notes (if any) corresponding to the Loans assigned thereby
shall be transferred to such assignee by notation in the Register and (iii) the
assignor thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (except for those surviving the payment in full of the
Obligations) and be released from its obligations under the Loan Documents,
other than those relating to events or circumstances occurring prior to such
assignment (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender’s rights and obligations under the
Loan Documents, such Lender shall cease to be a party hereto).


 


(c)                                  The Administrative Agent shall maintain at
its address referred to in Section 9.8
(Notices, Etc.) a copy of each Assignment and Acceptance delivered
to and accepted by it and shall record in the Register the names and addresses
of the Lenders and the principal amount of the Loans owing to each Lender from
time to time. Any assignment pursuant to this Section 9.2
shall not be effective until such assignment is recorded in the
Register.


 


(d)                                 Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee, the Administrative
Agent shall, if such Assignment and Acceptance has been completed, (i) accept
such Assignment and Acceptance, (ii) record or cause to be recorded the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall, if requested by such assignee,
execute and deliver to the Administrative Agent new Notes to the order of such
assignee in an amount equal to the Commitments and Loans assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has surrendered
any Note for exchange in connection with the assignment and has retained
Commitments or Loans hereunder, new Notes to the order of the assigning Lender
in an amount


 


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equal to the Commitments
and Loans retained by it hereunder. Such new Notes shall be dated the same date
as the surrendered Notes and be in substantially the form of
Exhibit B (Form of Note).


 


(c)                                  In addition to the other assignment rights
provided in this Section 9.2, each
Lender may do the following:


 


(i)                                     grant to a Special Purpose Vehicle the option
to make all or any part of any Loan that such Lender would otherwise be
required to make hereunder and the exercise of such option by any such Special
Purpose Vehicle and the making of Loans pursuant thereto shall satisfy (once
and to the extent that such Loans are made) the obligation of such Lender to
make such Loans thereunder; provided, however,  that (x) nothing herein shall
constitute a commitment or an offer to commit by such a Special Purpose Vehicle
to make Loans hereunder and no such Special Purpose Vehicle shall be liable for
any indemnity or other Obligation (other than the making of Loans for which
such Special Purpose Vehicle shall have exercised an option, and then only in
accordance with the relevant option agreement) and (y) such Lender’s
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain responsible to the other parties for the performance of its obligations
under the terms of this Agreement and shall remain the holder of the
Obligations for all purposes hereunder; and


 


(ii)                                  assign, as collateral or otherwise, any of
its rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans), to (A)
without notice to or consent of the Administrative Agent or the Borrower, any
Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board)
and (B) without consent of the Administrative Agent or the Borrower, (1) any
holder of, or trustee for the benefit of, the holders of such Lender’s
Securities and (2) any Special Purpose Vehicle to which such Lender has granted
an option pursuant to clause (i) above;


 


provided, however, that no such assignment or grant shall release such Lender from any of
its obligations hereunder except as expressly provided in clause (i) above and except, in the case
of a subsequent foreclosure pursuant to an assignment as collateral, if such
foreclosure is made in compliance with the other provisions of this Section 11.2 other than this clause (e) or clause (f) below. Each party hereto acknowledges and agrees
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior debt of any such Special
Purpose Vehicle, such party shall not institute against, or join any other
Person in instituting against, any Special Purpose Vehicle that has been
granted an option pursuant to this clause
(e) any bankruptcy, reorganization, insolvency or liquidation
proceeding (such agreement shall survive the payment in full of the
Obligations). The terms of the designation of, or assignment to, such Special
Purpose Vehicle shall not restrict such Lender’s ability to, or grant such
Special Purpose Vehicle the right to, consent to any amendment or waiver to
this Agreement or any other Loan Document or to the departure by the Borrower
from any provision of this Agreement or any other Loan Document without the
consent of such Special Purpose Vehicle except, as long as the Administrative
Agent and the Lenders and other Secured Parties shall continue to, and shall be
entitled to continue to, deal solely and directly with such Lender in
connection with such Lender’s obligations under this Agreement, to the extent
any such consent would reduce the principal amount of, or the rate of interest
on, any Obligations, amend this clause (e) or
postpone any scheduled date of payment of such principal or interest. Each
Special Purpose Vehicle shall be entitled to the benefits of Sections
2.13 (Capital Adequacy) and 2.14
(Taxes) and of 2.12(d)
(Illegality) as if it were such Lender; provided, however,
that anything


 


72





















 


herein
to the contrary notwithstanding, no Borrower shall, at any time, be obligated
to make under Section 2.13 (Capital
Adequacy), 2.14 (Taxes) or 2.12(d)
(Illegality) to any such Special Purpose Vehicle and any such Lender
any payment in excess of the amount the Borrower would have been obligated to
pay to such Lender in respect of such interest if such Special Purpose Vehicle
had not been assigned the rights of such Lender hereunder; and provided, further, that such Special
Purpose Vehicle shall have no direct right to enforce any of the terms of this
Agreement against the Borrower, the Administrative Agent or the other Lenders.


 


(f)                                       Each Lender may sell participations to one or
more Persons in or to all or a portion of its rights and obligations under the
Loan Documents (including all its rights and obligations with respect to the
Loans). The terms of such participation shall not, in any event, require the
participant’s consent to any amendments, waivers or other modifications of any
provision of any Loan Documents, the consent to any departure by any Loan Party
therefrom, or to the exercising or refraining from exercising any powers or
rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce the obligations of the Loan Parties), except if
any such amendment, waiver or other modification or consent would (i) reduce
the amount, or postpone any date fixed for, any amount (whether of principal,
interest or fees) payable to such participant under the Loan Documents, to
which such participant would otherwise be entitled under such participation or
(ii) result in the release of all or substantially all of the Collateral other
than in accordance with Section 8.7(b)
(Concerning the Collateral and the Collateral Documents). In the
event of the sale of any participation by any Lender, (w) such Lender’s
obligations under the Loan Documents shall remain unchanged, (x) such Lender
shall remain solely responsible to the other parties for the performance of
such obligations, (y) such Lender shall remain the holder of such Obligations
for all purposes of this Agreement and (z) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. Each participant shall be entitled to the benefits of Sections 2.13 (Capital Adequacy) and 2.14 (Taxes) and of Section 2.12(d) (Illegality) as if it
were a Lender; provided, however, that
anything herein to the contrary notwithstanding, the Borrower shall not, at any
time, be obligated to make under Section 2.13
(Capital Adequacy), 2.14 (Taxes) or 2.12(d)
(Illegality) to the participants in the rights and obligations of
any Lender (together with such Lender) any payment in excess of the amount the
Borrower would have been obligated to pay to such Lender in respect of such
interest had such participation not been sold; and provided, further, that such participant in the rights and obligations
of such Lender shall have no direct right to enforce any of the terms of this
Agreement against the Borrower, the Administrative Agent or any other Secured
Party.


 


Section 9.3                                   Costs and
Expenses


 


(a)                                  The Borrower agrees upon demand to pay, or reimburse
the Administrative Agent for, all of the Administrative Agent’s reasonable
internal and external audit, legal, appraisal, valuation and field examination,
filing, document duplication and reproduction and investigation expenses and
for all other reasonable out-of-pocket costs and expenses of every type and
nature (including, without limitation, the reasonable fees, expenses and
disbursements of the Administrative Agent’s counsel, Weil, Gotshal & Manges
LLP, local legal counsel, auditors, accountants, appraisers, printers,
insurance and environmental advisors, and other consultants and agents)
incurred by the Administrative Agent in connection with any of the following:
(i) the Administrative Agent’s audit and investigation of the Restricted
Persons and their Subsidiaries in connection with the preparation, negotiation
or execution of any Loan Document or the Administrative Agent’s periodic audits
of the Restricted Persons or any of their


 


73





















 


Subsidiaries,
as the case may be, (ii) the preparation, negotiation, execution or
interpretation of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Loans), any
Loan Document or any proposal letter or commitment letter issued in connection
therewith, or the making of the Loans hereunder, (iii) the creation, perfection
or protection of the liens under any Loan Document (including any reasonable
fees, disbursements and expenses for local counsel in various jurisdictions),
(iv) the ongoing administration of this Agreement and the Loans, including
consultation with attorneys in connection therewith and with respect to the
Administrative Agent’s rights and responsibilities hereunder and under the
other Loan Documents, (v) the protection, collection or enforcement of any
Obligation or the enforcement of any Loan Document, (vi) the commencement,
defense or intervention in any court proceeding relating in any way to the
Obligations, any Restricted Person, any Subsidiary of any Restricted Person,
this Agreement or any other Loan Document, UK Loan Document or Senior Facility
Document, (vii) the response to, and preparation for, any subpoena or request
for document production with which the Administrative Agent is served or
deposition or other proceeding in which the Administrative Agent is called to
testify, in each case, relating in any way to the Obligations, any Restricted
Person, any Subsidiary of any Restricted Person, this Agreement or any other
Loan Document, UK Loan Document or Senior Facility Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any Loan
Document or the preparation, negotiation, and execution of the same.


 


(b)                                    The Borrower further agrees to pay or
reimburse each Agent and each Lender upon demand for all out-of-pocket costs
and expenses, including, without limitation, reasonable attorneys’ fees
(including allocated costs of internal counsel and costs of settlement),
incurred by such Agent or such Lender in connection with any of the following:
(i) in enforcing any Loan Document or Obligation or any security therefor or
exercising or enforcing any other right or remedy available by reason of an
Event of Default, (ii) in connection with any refinancing or restructuring of
the credit arrangements provided hereunder in the nature of a “work-out” or in
any insolvency or bankruptcy proceeding, (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer,
motion or other pleadings in any legal proceeding relating to the Obligations,
any Restricted Person, any Subsidiary of any Restricted Person and related to
or arising out of the transactions contemplated hereby or by any other Loan Document,
UK Loan Document or Senior Facility Document or (iv) in taking any other action
in or with respect to any suit or proceeding (bankruptcy or otherwise)
described in clause (i), (ii) or (iii) above.


 


Section 9.4                                   Indemnities


 


(a)                                  The Borrower agrees to indemnify and hold
harmless each Agent, each Arranger and each Lender and each of their respective
Affiliates, and each of the directors, officers, employees, agents, trustees,
representatives, attorneys, consultants and advisors of or to any of the foregoing
(including those retained in connection with the satisfaction or attempted
satisfaction of any condition set forth in Article III
(Conditions To Loans)) (each such Person being an “Indemnitee”) from and against any and all
claims, damages, liabilities, obligations, losses, penalties, actions,
judgments, suits, costs, disbursements and expenses, joint or several, of any
kind or nature (including fees, disbursements and expenses of financial and
legal advisors to any such Indemnitee) that may be imposed on, incurred by or
asserted against any such Indemnitee in connection with or arising out of any
investigation, litigation or proceeding, whether or not such investigation,
litigation or proceeding is brought by any such Indemnitee or any of its
directors, security holders or creditors or any such Indemnitee, director,
security holder


 


74





















 


or
creditor is a party thereto, whether direct, indirect, or consequential and
whether based on any federal, state or local law or other statutory regulation,
securities or commercial law or regulation, or under common law or in equity,
or on contract, tort or otherwise, in any manner relating to or arising out of
this Agreement, any other Loan Document, any Obligation, any Disclosure
Document, UK Loan Document or Senior Facility Document, or any act, event or
transaction related or attendant to any thereof, or the use or intended use of
the proceeds of the Loans or in connection with any investigation of any
potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the
Borrower shall not have any liability under this Section 9.4 to an Indemnitee with respect to any
Indemnified Matter that has resulted primarily from the gross negligence or
willful misconduct of that Indemnitee, as determined by a court of competent
jurisdiction in a final non-appealable judgment or order.


 


(b)                                 The Borrower shall indemnify each Agent, each
Arranger and each Lender for, and hold each Agent, each Arranger and each
Lender harmless from and against, any and all claims for brokerage commissions,
fees and other compensation made against either Agent, either Arranger or any
Lender for any broker, finder or consultant with respect to any agreement,
arrangement or understanding made by or on behalf of any Restricted Person or
any Subsidiary of any Restricted Person in connection with the transactions
contemplated by this Agreement.


 


(c)                                  The Borrower agrees that any indemnification
or other protection provided to any Indemnitee pursuant to this Agreement
(including pursuant to this Section 9.4) or any other Loan Document shall
(i) survive payment in full of the Obligations and (ii) inure to the benefit of
any Person that was at any time an Indemnitee under this Agreement or any other
Loan Document.


 


Section 9.5                                     Limitation of
Liability


 


The Borrower agrees that no Indemnitee shall have any liability
(whether in contract, tort or otherwise) to any Restricted Person or any
Subsidiary of any Restricted Person or any of their respective equity holders
or creditors for or in connection with the transactions contemplated hereby and
in the other Loan Documents, except to the extent such liability is determined
in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnitee’s gross negligence or willful misconduct. In no
event shall any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings). The Borrower
hereby waives, releases and agrees (each for itself and on behalf of its
Subsidiaries) not to sue upon any such claim for any special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.


 


Section 9.6                                   Right of
Set-off


 


Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of the Borrower against any and
all of the Obligations now or hereafter existing whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
even though such Obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off


 


75





















 


and application made by
such Lender or its Affiliates; provided,
however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this Section 9.6 are in addition to the
other rights and remedies (including other rights of set-off) that such Lender
may have.


 


Section 9.7                                       Sharing of
Payments, Etc.


 


(a)                                  If any Lender (directly or through an
Affiliate thereof) obtains any payment (whether voluntary or involuntary) of
the Loans owing to it, any interest thereon, fees in respect thereof or amounts
due pursuant to Section 9.3 (Costs and
Expenses) or 9.4 (Indemnities) or
otherwise receives any Collateral or proceeds thereof (in each case whether or
not through the exercise of any right of set-off (including pursuant to Section 9.6 (Right of Set-Off)) hut
other than payments pursuant to Section 2.12
(Special Provisions Governing Eurodollar Rate Loans), 2.13 (Capital Adequacy) or
2.14 (Taxes)) in excess of its
Ratable Portion of all payments of such Obligations obtained by all the
Lenders, such Lender (a “Purchasing Lender”) shall forthwith purchase from the
other Lenders (each, a “Selling Lender”) such participations in their Loans or other
Obligations as shall be necessary to cause such Purchasing Lender to share the
excess payment ratably with each of them.


 


(b)                                 If all or any portion of any payment received
by a Purchasing Lender is thereafter recovered from such Purchasing Lender,
such purchase from each Selling Lender shall be rescinded and such Selling
Lender shall repay to the Purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Selling Lender’s ratable
share (according to the proportion of (i) the amount of such Selling Lender’s
required repayment in relation to (ii) the total amount so recovered from the
Purchasing Lender) of any interest or other amount paid or payable by the
Purchasing Lender in respect of the total amount so recovered.


 


(c)                                  The Borrower agrees that any Purchasing
Lender so purchasing a participation from a Selling Lender pursuant to this Section 9.7 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.


 


Section 9.8                                   Notices, Etc.


 


(a)                                  Addresses for Notices.  All notices, demands, requests and other communications provided for in
this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows;


 


(i)                                     if to the Borrower:


 


GEOLOGISTICS CORPORATION


1251 East Dyer Road, Suite 200 


Santa Ana, CA 92705 


Attention: 


Telecopy no: 


E-Mail Address:


 


76





















 


(ii)                                  if to any Lender, at its Domestic Lending
Office specified opposite its name on Schedule II
or on the signature page of any applicable Assignment and
Acceptance;


 


(iii)                               if to the Administrative Agent:


 


CITICORP NORTH AMERICA, INC.


390 Greenwich Street


New York, New York 10013


Attention: Mr. Rob Ziemer, Director


Telecopy no: (212)723-8547


E-Mail Address: rob.ziemer@citigroup.com


 


with a copy to:


 


WEIL, GOTSHAL & MANGES LLP


767 Fifth Avenue


New York, New York 10153-0119


Attention: Daniel S. Dokos


Telecopy no: (212) 310-8007


E-Mail Address: daniel.dokos@weil.com


 


(iv)                              if to the Syndication Agent:


 


BEAR STEARNS CORPORATE LENDING INC.


383 Madison Avenue 


New York, NY 10179 


Attention: Stephen J. Kampf 


Telecopy no: (917) 849-2127 


E-Mail Address: skampf@bear.com


 


or at such other address as shall be notified in writing (x) in the
ease of the Borrower and the Administrative Agent, to the other parties and (y)
in the case of all other parties, to the Borrower and the Administrative Agent.


 


(b)                                 Effectiveness of Notices.  All notices, demands, requests, consents and other communications
described in clause (a) above
shall be effective (i) if delivered by hand, including any overnight courier
service, upon personal delivery, (ii) if delivered by mail, when deposited in
the mails, (iii) if delivered by posting to an Internet website or a similar
telecommunication device requiring a user prior access to such website or other
device, when such notice, demand, request, consent or other communication shall
have been made generally available on such Internet website or similar device
to the class of Person being notified (regardless of whether any such Person
must accomplish, and whether or not any such Person shall have accomplished,
any action prior to obtaining access to such items, including registration,
disclosure of contact information, compliance with a standard user agreement or
undertaking a duty of confidentiality),
provided, however, that this clause
(b)(iii) shall only apply to notices to Lenders, and (iv) if
delivered by electronic mail or any other telecommunications device, when
transmitted to an electronic mail address (or by another means of electronic


 


77





















 


delivery) as provided in clause (a) above;
provided, however,  that notices and communications to
the Administrative Agent pursuant to Article II
(The Facilities) or Article VIII
(The Administrative Agent) shall not be effective until received by
the Administrative Agent.


 


Section 9.9                                   No Waiver;
Remedies


 


No failure on the part of any Lender or either Agent to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.


 


Section 9.10                              Binding Effect


 


This Agreement shall become effective when it shall have been executed
by the Borrower and each Agent and when the Administrative Agent shall have
been notified by each Lender that such Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, each Agent and
each Lender and, in each case, their respective successors and assigns; provided, however,  that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.


 


Section 9.11                              Governing Law


 


This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.


 


Section 9.12                            Submission to
Jurisdiction; Service of Process


 


(a)                                  Any legal action or proceeding with respect
to this Agreement or any other Loan Document may be brought in the courts of
the State of New York located in the City of New York or of the United States
of America for the Southern District of New York, and, by execution and
delivery of this Agreement, the Borrower hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts.  The parties hereto
hereby irrevocably waive any objection, including any objection to the laying
of venue or based on the grounds of forum non conveniens, that any of
them may now or hereafter have to the bringing of any such action or proceeding
in such respective jurisdictions.


 


(b)                                 The Borrower hereby irrevocably consents to
the service of any and all legal process, summons, notices and documents in any
suit, action or proceeding brought in the United States of America arising out
of or in connection with this Agreement or any other Loan Document by the
mailing (by registered or certified mail, postage prepaid) or delivering of a
copy of such process to the Borrower at its address specified in Section 9.8 (Notices, Etc.).  The Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.


 


(c)                                  Nothing contained in this Section 9.12 shall affect the right
of the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrower or any other Restricted Person or Subsidiary of any Restricted Person
in any other jurisdiction.


 


78





















 


(d)                                 If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at the spot rate of exchange quoted
by the Administrative Agent at 11:00 a.m. (New York time) on the Business Day
preceding that on which final judgment is given, for the purchase of Dollars,
for delivery two Business Days thereafter.


 


Section 9.13                            Waiver of
Jury Trial


 


EACH OF THE AGENTS, THE LENDERS AND THE BORROWER
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.


 


Section 9.14                            Marshaling;
Payments Set Aside


 


No Agent or Lender shall be under any obligation to marshal any assets
in favor of the Borrower or any other party or against or in payment of any or
all of the Obligations. To the extent that the Borrower makes a payment or
payments to either Agent or any Lender or any such Person receives payment from
the proceeds of the Collateral or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all liens, right and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.


 


Section 9.15                            Section Titles


 


The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to reference
a section. Any reference to the number of a clause, sub-clause or subsection hereof
immediately followed by a reference in parenthesis to the title of the Section containing
such clause, sub-clause or subsection is a reference to such clause,
sub-clause or subsection and not to the entire Section; provided, however,  that, in case of direct conflict
between the reference to the title and the reference to the number of such
Section, the reference to the title shall govern absent manifest error. If any
reference to the number of a Section (but not to any clause, sub-clause or
subsection thereof) is followed immediately by a reference in parenthesis
to the title of a Section, the title reference shall govern in case of direct
conflict absent manifest error.


 


Section 9.16                            Execution
in Counterparts


 


This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be as
effective as delivery of a manually


 


79





















 


executed counterpart
hereof. A set of the copies of this Agreement signed by all parties shall be
lodged with the Borrower and the Administrative Agent.


 


Section 9.17                            Entire
Agreement


 


This Agreement, together with all of the other Loan Documents and all
certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. In the event of any
conflict between the terms of this Agreement and any other Loan Document, the
terms of this Agreement shall govern.


 


Section 9.18                            Confidentiality


 


Each Lender and Agent shall use all reasonable efforts to keep
information obtained by it pursuant hereto and the other Loan Documents confidential
in accordance with such Lender’s or Agent’s, as the case may be, customary
practices and agrees that it shall only use such information in connection with
the transactions contemplated by this Agreement and not disclose any such
information other than (a) to such Lender’s or Agent’s, as the case may be,
employees, representatives and agents that are or are expected to be involved
in the evaluation of such information in connection with the transactions
contemplated by this Agreement and are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or Agent, as the case may be, on a
non-confidential basis from a source other than the Borrower, any other Restricted
Person or any Subsidiary of any Restricted Person, (c) to the extent disclosure
is required by law, regulation or judicial order or requested or required by
bank regulators or auditors or (d) to current or prospective assignees,
participants and Special Purpose Vehicles grantees of any option described in Section 9.2(e) (Assignments and Participations) and
their respective legal or financial advisors, in each case and to the extent
such assignees, participants or grantees agree to be bound by, and cause their
advisors to comply with, the provisions of this Section 9.18.


 


[SIGNATURE PAGES FOLLOW]


 


80





















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
  GEOLOGISTICS CORPORATION

  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen P. Bishop

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Stephen P. Bishop

  
	
   

  	
   

  	
  Title:

  	
  EVP & CFO

  
					



 


 


[SIGNATURE PAGE TO GEOLOGISTICS CREDIT AGREEMENT]


 





















 


	
   

  	
  CITICORP NORTH AMERICA, INC.

  
	
   

  	
  as Administrative Agent and Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rob Ziemer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Rob Ziemer

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


 


[SIGNATURE PAGE TO GEOLOGISTICS CREDIT AGREEMENT]


 





















 


	
   

  	
  BEAR STEARNS CORPORATE LENDING INC.

  
	
   

  	
  as Syndication Agent and Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Victor
  Bulzacchelli

  	
   

  
	
   

  	
   

  	
  Name:

  	
  VICTOR
  BULZACCHELLI

  	
   

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  	
   

  
						



 


 


[SIGNATURE PAGE TO GEOLOGISTICS CREDIT
AGREEMENT]


 





















 


TABLE OF
CONTENTS


 


SCHEDULES


 


	
   

  	
  Schedule I

  	
  -

  	
  Commitments

  	
   

  
	
   

  	
  Schedule II

  	
  -

  	
  Applicable
  Lending Offices and Addresses for Notices

  	
   

  
	
   

  	
  Schedule 1.1

  	
  -

  	
  Permitted
  Holders

  	
   

  
	
   

  	
  Schedule 4.1

  	
  -

  	
  Organizational
  Chart

  	
   

  
	
   

  	
  Schedule 4.5

  	
  -

  	
  Litigation

  	
   

  
	
   

  	
  Schedule 4.7

  	
  -

  	
  Environmental

  	
   

  
	
   

  	
  Schedule 4.8

  	
  -

  	
  ERISA

  	
   

  
	
   

  	
  Schedule 4.9

  	
  -

  	
  Intellectual
  Property

  	
   

  
	
   

  	
  Schedule 4.10

  	
  -

  	
  Subsidiaries

  	
   

  
	
   

  	
  Schedule 4.11

  	
  -

  	
  Labor

  	
   

  
	
   

  	
  Schedule 4.12

  	
  -

  	
  Restriction
  on Subsidiaries

  	
   

  
	
   

  	
  Schedule 4.13

  	
  -

  	
  Material
  Contracts

  	
   

  
	
   

  	
  Schedule 6.6

  	
  -

  	
  Permitted
  Dispositions

  	
   

  
	
   

  	
  Schedule 6.7

  	
  -

  	
  Existing
  liens

  	
   

  
	
   

  	
  Schedule 6.8(f)

  	
  -

  	
  Existing
  indebtedness

  	
   

  
	
   

  	
  Schedule 6.9(c)

  	
  -

  	
  Existing
  intercompany indebtedness

  	
   

  
	
   

  	
  Schedule 6.9(j)

  	
  -

  	
  Existing
  investments

  	
   

  
	
   

  	
  Schedule 6.19

  	
  -

  	
  Deposit
  accounts

  	
   

  
	
   

  	
  Schedule 6.22

  	
  -

  	
  Post-Closing
  Deliveries

  	
   

  



 


EXHIBITS


 


	
   

  	
  Exhibit
  A

  	
  -

  	
  Form
  of Assignment and Acceptance

  	
   

  
	
   

  	
  Exhibit
  B

  	
  -

  	
  Form
  of Note

  	
   

  
	
   

  	
  Exhibit
  C

  	
  -

  	
  Form
  of Notice of Borrowing

  	
   

  
	
   

  	
  Exhibit
  D

  	
  -

  	
  Form
  of Notice of Conversion or Continuation

  	
   

  
	
   

  	
  Exhibit
  E

  	
  -

  	
  Form
  of Opinion of Counsel for the Loan Parties

  	
   

  
	
   

  	
  Exhibit
  F

  	
  -

  	
  Form
  of Guaranty

  	
   

  
	
   

  	
  Exhibit
  G

  	
  -

  	
  Form
  of Security Agreement

  	
   

  
	
   

  	
  Exhibit
  H

  	
  -

  	
  Form
  of Pledge Agreement

  	
   

  
	
   

  	
  Exhibit
  I

  	
  -

  	
  Form
  of UK Intercreditor Agreement

  	
   

  
	
   

  	
  Exhibit
  J

  	
  -

  	
  Form
  of US Intercreditor Agreement

  	
   

  
	
   

  	
  Exhibit
  K

  	
  -

  	
  Form
  of Compliance Certificate

  	
   

  



 


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