Exhibit 10.1


 




 





CUSIP Number: 
36162HAA8


 


 


AMENDED AND RESTATED


CREDIT AGREEMENT


 


Dated as of February 24, 2006


 


among


 


GFI GROUP INC.


 


and


 


GFI HOLDINGS LIMITED,


as the Borrowers,


 


CERTAIN SUBSIDIARIES OF GFI GROUP INC.,


as the Guarantors,


 


BANK OF AMERICA, N.A.,


as Administrative Agent,


 


THE ROYAL BANK OF SCOTLAND PLC,


as Documentation Agent


 


BARCLAYS BANK PLC,


as Syndication Agent,


 


and


 


THE OTHER LENDERS PARTY HERETO


 


 


BANC OF AMERICA SECURITIES LLC,


as Sole Lead Arranger and Sole Book Manager




 


 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  25

  
	
  1.03

  	
  Accounting Terms

  	
  26

  
	
  1.04

  	
  Rounding

  	
  27

  
	
  1.05

  	
  References to Agreements and Laws

  	
  27

  
	
  1.06

  	
  Times of Day

  	
  27

  
	
  1.07

  	
  Letter of Credit Amounts

  	
  27

  
	
  1.08

  	
  Exchange Rates; Currency Equivalents

  	
  27

  
	
  1.09

  	
  Additional Alternative Currencies

  	
  28

  
	
  1.10

  	
  Change of Currency

  	
  28

  
	
  ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  29

  
	
  2.01

  	
  Revolving Loans

  	
  29

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
  29

  
	
  2.03

  	
  Letters of Credit

  	
  32

  
	
  2.04

  	
  Prepayments

  	
  40

  
	
  2.05

  	
  Termination or Reduction of Aggregate Revolving
  Commitments

  	
  42

  
	
  2.06

  	
  Repayment of Loans

  	
  42

  
	
  2.07

  	
  Interest

  	
  42

  
	
  2.08

  	
  Fees

  	
  43

  
	
  2.09

  	
  Computation of Interest and Fees

  	
  43

  
	
  2.10

  	
  Evidence of Debt

  	
  43

  
	
  2.11

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  44

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  46

  
	
  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  46

  
	
  3.01

  	
  Taxes

  	
  46

  
	
  3.02

  	
  Illegality

  	
  49

  
	
  3.03

  	
  Inability to Determine Rates

  	
  49

  
	
  3.04

  	
  Increased Costs

  	
  50

  
	
  3.05

  	
  Funding Losses

  	
  51

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  52

  
	
  3.07

  	
  Survival

  	
  52

  
	
  ARTICLE IV GUARANTY

  	
  52

  
	
  4.01

  	
  The Guaranty

  	
  52

  
	
  4.02

  	
  Obligations Unconditional

  	
  53

  
	
  4.03

  	
  Reinstatement

  	
  55

  
	
  4.04

  	
  Certain Additional Waivers

  	
  55

  
	
  4.05

  	
  Remedies

  	
  56

  
	
  4.06

  	
  Rights of Contribution

  	
  56

  
	
  4.07

  	
  Guarantee of Payment; Continuing Guarantee

  	
  57

  
	
  ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  57

  
	
  5.01

  	
  Conditions of Initial Credit Extension

  	
  57

  
	
  5.02

  	
  Conditions to all Credit Extensions

  	
  60

  
	
  ARTICLE VI REPRESENTATIONS AND WARRANTIES

  	
  61

  



 


i

















 


	
  6.01

  	
  Existence, Qualification and Power

  	
  61

  
	
  6.02

  	
  Authorization; No Contravention

  	
  61

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  61

  
	
  6.04

  	
  Binding Effect

  	
  61

  
	
  6.05

  	
  Financial Statements; No Material Adverse Effect

  	
  62

  
	
  6.06

  	
  Litigation

  	
  62

  
	
  6.07

  	
  No Default

  	
  62

  
	
  6.08

  	
  Ownership of Property; Liens

  	
  63

  
	
  6.09

  	
  Environmental Compliance

  	
  63

  
	
  6.10

  	
  Insurance

  	
  63

  
	
  6.11

  	
  Taxes

  	
  64

  
	
  6.12

  	
  ERISA Compliance

  	
  64

  
	
  6.13

  	
  Subsidiaries

  	
  64

  
	
  6.14

  	
  Margin Regulations; Investment Company Act; Public
  Utility Holding Company Act

  	
  64

  
	
  6.15

  	
  Disclosure

  	
  65

  
	
  6.16

  	
  Compliance with Laws

  	
  65

  
	
  6.17

  	
  Intellectual Property; Licenses, Etc

  	
  65

  
	
  6.18

  	
  Solvency

  	
  65

  
	
  6.19

  	
  Perfection of Security Interests in the Collateral

  	
  66

  
	
  6.20

  	
  Legal Names

  	
  66

  
	
  6.21

  	
  Brokers’ Fees

  	
  66

  
	
  6.22

  	
  Labor Matters

  	
  66

  
	
  6.23

  	
  Representations as to Foreign Obligations

  	
  66

  
	
  ARTICLE VII AFFIRMATIVE COVENANTS

  	
  67

  
	
  7.01

  	
  Financial Statements

  	
  67

  
	
  7.02

  	
  Certificates; Other Information

  	
  68

  
	
  7.03

  	
  Notices

  	
  70

  
	
  7.04

  	
  Payment of Obligations

  	
  71

  
	
  7.05

  	
  Preservation of Existence, Etc

  	
  71

  
	
  7.06

  	
  Maintenance of Properties

  	
  71

  
	
  7.07

  	
  Maintenance of Insurance

  	
  71

  
	
  7.08

  	
  Compliance with Laws

  	
  71

  
	
  7.09

  	
  Books and Records

  	
  72

  
	
  7.10

  	
  Inspection Rights

  	
  72

  
	
  7.11

  	
  Use of Proceeds

  	
  72

  
	
  7.12

  	
  Additional Subsidiaries

  	
  72

  
	
  7.13

  	
  ERISA Compliance

  	
  73

  
	
  7.14

  	
  Pledged Assets

  	
  73

  
	
  7.15

  	
  Insurance Certificates

  	
  73

  
	
  ARTICLE VIII NEGATIVE COVENANTS

  	
  75

  
	
  8.01

  	
  Liens

  	
  75

  
	
  8.02

  	
  Investments

  	
  76

  
	
  8.03

  	
  Indebtedness

  	
  77

  
	
  8.04

  	
  Fundamental Changes

  	
  79

  
	
  8.05

  	
  Dispositions

  	
  79

  



 


ii

















 


	
  8.06

  	
  Restricted Payments

  	
  80

  
	
  8.07

  	
  Change in Nature of Business

  	
  80

  
	
  8.08

  	
  Transactions with Affiliates and Insiders

  	
  80

  
	
  8.09

  	
  Burdensome Agreements

  	
  81

  
	
  8.10

  	
  Use of Proceeds

  	
  81

  
	
  8.11

  	
  Financial Covenants

  	
  81

  
	
  8.12

  	
  Organization Documents; Fiscal Year; Legal Name,
  State of Formation and Form of Entity

  	
  82

  
	
  8.13

  	
  Sale Leasebacks

  	
  82

  
	
  8.14

  	
  Proprietary Trading

  	
  82

  
	
  8.15

  	
  Prepayment of Other Indebtedness, Etc

  	
  82

  
	
  ARTICLE IX EVENTS OF DEFAULT AND REMEDIES

  	
  83

  
	
  9.01

  	
  Events of Default

  	
  83

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  85

  
	
  9.03

  	
  Application of Funds

  	
  85

  
	
  ARTICLE X ADMINISTRATIVE AGENT

  	
  87

  
	
  10.01

  	
  Appointment and Authority

  	
  87

  
	
  10.02

  	
  Rights as a Lender

  	
  87

  
	
  10.03

  	
  Exculpatory Provisions

  	
  88

  
	
  10.04

  	
  Reliance by Administrative Agent

  	
  88

  
	
  10.05

  	
  Delegation of Duties

  	
  89

  
	
  10.06

  	
  Resignation of Administrative Agent

  	
  89

  
	
  10.07

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
  90

  
	
  10.08

  	
  No Other Duties, Etc

  	
  90

  
	
  10.09

  	
  Administrative Agent May File Proofs of Claim

  	
  90

  
	
  10.10

  	
  Releases

  	
  91

  
	
  ARTICLE XI MISCELLANEOUS

  	
  91

  
	
  11.01

  	
  Amendments, Etc

  	
  91

  
	
  11.02

  	
  Notices; Effectiveness; Electronic Communication

  	
  93

  
	
  11.03

  	
  No Waiver; Cumulative Remedies

  	
  94

  
	
  11.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  94

  
	
  11.05

  	
  Payments Set Aside

  	
  96

  
	
  11.06

  	
  Successors and Assigns

  	
  96

  
	
  11.07

  	
  Confidentiality

  	
  99

  
	
  11.08

  	
  Set-off

  	
  100

  
	
  11.09

  	
  Interest Rate Limitation

  	
  100

  
	
  11.10

  	
  Counterparts

  	
  100

  
	
  11.11

  	
  Integration

  	
  100

  
	
  11.12

  	
  Survival of Representations and Warranties

  	
  101

  
	
  11.13

  	
  Severability

  	
  101

  
	
  11.14

  	
  Replacement of Lenders

  	
  101

  
	
  11.15

  	
  Governing Law; Jurisdiction, Etc

  	
  101

  
	
  11.16

  	
  Waiver of Right to Trial by Jury

  	
  102

  
	
  11.17

  	
  USA PATRIOT Act Notice

  	
  102

  
	
  11.18

  	
  Judgment Currency

  	
  102

  



 


iii

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01(a)

  	
  Existing Letters
  of Credit

  	
   

  
	
  1.01(b)

  	
  Mandatory Cost
  Rate

  	
   

  
	
  2.01

  	
  Commitments and
  Pro Rata Shares

  	
   

  
	
  6.10

  	
  Insurance

  	
   

  
	
  6.13

  	
  Subsidiaries

  	
   

  
	
  6.17

  	
  IP Rights

  	
   

  
	
  8.01

  	
  Liens Existing
  on the Closing Date

  	
   

  
	
  8.02

  	
  Investments
  Existing on the Closing Date

  	
   

  
	
  8.03

  	
  Indebtedness
  Existing on the Closing Date

  	
   

  
	
  11.02

  	
  Certain
  Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Form of
  Loan Notice

  	
   

  
	
  B

  	
  Form of
  Revolving Note

  	
   

  
	
  C

  	
  Form of
  Compliance Certificate

  	
   

  
	
  D

  	
  Form of
  Assignment and Assumption

  	
   

  
	
  E

  	
  Form of
  Joinder Agreement

  	
   

  
	
  F

  	
  Form of
  Report of Letter of Credit Information

  	
   

  



 


iv

















 


AMENDED AND RESTATED


CREDIT AGREEMENT


 


This
AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of February 24,
2006 among GFI GROUP INC., a Delaware corporation (“GFI”), GFI HOLDINGS
LIMITED, a company incorporated under the laws of England and Wales (the “Foreign
Borrower”; together with GFI, the “Borrowers”), the Guarantors
(defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as
Administrative Agent and amends and restates that certain Credit Agreement, dated as of August 23,
2004 (as amended or modified from time to time prior to the date hereof, the “Existing
Credit Agreement”), among the Borrowers, each guarantor from time to time
party thereto, each lender from time to time party thereto and Bank of America,
N.A., as administrative agent.


 


The Borrowers have requested and the Administrative
Agent and the Lenders have agreed to amend and restate the Existing Credit
Agreement, upon and subject to the terms and conditions set forth herein.


 


In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING TERMS


 


1.01                           Defined Terms.


 


As
used in this Agreement, the following terms shall have the meanings set forth
below:


 


“Acquisition”,
by any Person, means the acquisition by such Person, in a single transaction or
in a series of related transactions, of all or any substantial portion of
the Property of another Person or all or substantially all of the Voting Stock
of another Person, in each case whether or not involving a merger or
consolidation with such other Person and whether for cash, property, services,
assumption of Indebtedness, securities or otherwise.


 


“Administrative
Agent” means Bank of America in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time
notify GFI and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. “Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if


 

















 


such other Person
possesses, directly or indirectly, power to vote 10% or more of the securities
having ordinary voting power for the election of directors, managing general
partners or the equivalent.


 


“Aggregate
Revolving Commitments” means the Revolving Commitments of all the Lenders. The
initial amount of the Aggregate Revolving Commitments in effect on the Closing
Date is ONE HUNDRED THIRTY FIVE MILLION DOLLARS ($135,000,000).


 


“Agreement”
means this Credit Agreement, as amended, modified, supplemented and extended
from time to time.


 


“Alternative
Currency” means each of British Pounds Sterling, Euros and each other
lawful currency (other than Dollars) that is freely available and freely
transferable and convertible into Dollars and that is approved by all the
Lenders in accordance with Section 1.09.


 


“Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative
Currency as determined by the Administrative Agent at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.


 


“Alternative
Currency Reserve” means the Dollar Equivalent equal to 2% of Total
Revolving Outstandings denominated in Alternative Currencies.


 


“Alternative
Currency Sublimit” means an amount equal to the lesser of (a) the
Aggregate Revolving Commitments and (b) SEVENTY MILLION DOLLARS ($70,000,000).
The Alternative Currency Sublimit is part of, and not in addition to, the
Aggregate Revolving Commitments.


 


“Applicable
Currency” means Dollars or an Alternative Currency, as applicable.


 


“Applicable
Foreign Loan Party Documents” has the meaning specified in Section 6.23(a)


 


“Applicable
Margin” means the following percentages per annum (as relevant to
Commitment Fee, Letters of Credit and Eurocurrency Rate Loans, and Base Rate
Loans), based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a) for
the most recent fiscal quarter of GFI:


 


	
  Pricing Tier

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Letters of Credit 

  &

  Eurocurrency

  Rate Loans

  	
   

  	
  Base Rate Loans

  	
   

  
	
  1

  	
   

  	
  < 0.5 to 1.0

  	
   

  	
  0.20%

  	
   

  	
  0.75%

  	
   

  	
  0%

  	
   

  
	
  2

  	
   

  	
  < 1.0 to 1.0 but > 0.5 to
  1.0

  	
   

  	
  0.25%

  	
   

  	
  1.00%

  	
   

  	
  0%

  	
   

  
	
  3

  	
   

  	
  < 1.5 to 1.0 but > 1.0 to
  1.0

  	
   

  	
  0.30%

  	
   

  	
  1.25%

  	
   

  	
  0%

  	
   

  
	
  4

  	
   

  	
  < 2.0 to 1.0 but > 1.5 to
  1.0

  	
   

  	
  0.35%

  	
   

  	
  1.625%

  	
   

  	
  0.375%

  	
   

  
	
  5

  	
   

  	
  > 2.0 to 1.0

  	
   

  	
  0.40%

  	
   

  	
  2.00%

  	
   

  	
  0.75%

  	
   

  



 


Any increase or decrease
in the Applicable Margin resulting from a change in the Consolidated Leverage
Ratio shall become effective as of the first Business Day immediately following
the date a Compliance


 


2

















 


Certificate is required
to be delivered pursuant to Section 7.02(a) in connection with
the financial statements referred to in Sections 7.01(a) and (b);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Tier 5 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately
following the date a Compliance Certificate is delivered in accordance with Section 7.02(a),
whereupon the Applicable Margin shall be adjusted based upon the calculation of
the Consolidated Leverage Ratio contained in such Compliance Certificate.
The Applicable Margin in effect from the Closing Date through the first
Business Day immediately following the date a Compliance Certificate is
required to be delivered pursuant to Section 7.02(a) for the
fiscal quarter ending December 31, 2005 shall be determined based upon
Pricing Tier 1.


 


“Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be, to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in
the place of payment.


 


“Application
Period” means, in respect of any Disposition, the period of 180 days
following the consummation of such Disposition.


 


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


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in the form of
Exhibit D.


 


“Attorney
Costs” means and includes all reasonable and documented fees, expenses and
disbursements of any law firm or other external counsel.


 


“Attributable Indebtedness” means, on any date,
(a) in respect of any Capital Lease of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease and (c) in
respect of any Securitization Transaction of any Person, the outstanding
principal amount of such financing, after taking into account reserve accounts
and making appropriate adjustments, determined by the Administrative Agent in
its reasonable judgment.


 


“Audited
Financial Statements” means the audited consolidated and consolidating
balance sheet of GFI and its Subsidiaries for the fiscal year ended December 31,
2004, and the related consolidated and consolidating statements of income or
operations, shareholders’ equity and cash flows for such fiscal year of GFI and
its Subsidiaries, including the notes thereto.


 


“Availability Period” means the period from and
including the Closing Date to the earliest of (i) the Maturity Date, (ii) the
date of termination of the Aggregate Revolving Commitments pursuant to Section 2.05,
and (iii) the date of termination of the commitment of each Lender to make
Revolving Loans and of the obligation of the L/C Issuers to make L/C Credit
Extensions pursuant to Section 9.02.


 


“Bank
of America” means Bank of America, N.A. and its successors.


 


3

















 


“BAS”
means Banc of America Securities LLC, in its capacity as sole lead arranger and
sole book manager.


 


“Base
Rate” means for any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its “prime rate.”  The “prime
rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the “prime rate”
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


 


“Base
Rate Loan” means a Loan that bears
interest based on the Base Rate.


 


“Borrower Materials” has the meaning specified in
Section 7.02.


 


“Borrowers”
has the meaning specified in the introductory paragraph hereto.


 


“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type, in the
same currency and, in the case of Eurocurrency Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.


 


“British
Pounds Sterling” means the lawful currency of the United Kingdom.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state of New York or the state where the Administrative Agent’s
Office with respect to Obligations denominated in Dollars is located and:


 


(a)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments
in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings
in Dollars to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in deposits in
Dollars are conducted by and between banks in the London interbank eurodollar
market;


 


(b)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;


 


(c)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in British Pounds Sterling, any fundings, disbursements,
settlements and payments in British Pounds Sterling in respect of any such
Eurocurrency Rate Loan, or any other dealings in British Pounds Sterling to be
carried out pursuant to this Agreement in respect of any such Eurocurrency Rate
Loan, means any such day on which the relevant financial markets are open for
dealings between banks in London;


 


(d)                                 if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars, Euro or British Pounds Sterling,
means any such


 


4

















 


day on
which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency; and


 


(e)                                  if
such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars, Euro or British Pounds Sterling, in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars, Euro, or
British Pounds Sterling, or any other dealings in any currency other than
Dollars, Euro or British Pounds Sterling to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of such
currency.


 


“Businesses”
means, at any time, a collective reference to the businesses operated by the
Loan Parties at such time.


 


“Capital
Lease” means, as applied to any Person, any lease of any Property by that
Person as lessee which, in accordance with GAAP, is required to be accounted
for as a capital lease on the balance sheet of that Person.


 


“Capital
Stock” means (i) in the case of a corporation, capital stock, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


“Cash
Equivalents” means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (any such bank being an “Approved Bank”),
in each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody’s and maturing within six months of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are administered by (i) any
Lender or (ii) a reputable financial institutions having capital of at
least $500,000,000 and the portfolios of which are limited to Investments of
the character described in the foregoing subdivisions (a) through (d).


 


“Change in Law”
means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental


 


5

















 


Authority or (c) the
making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.


 


“Change
of Control” means an event or series of events by which:


 


(a)                                  any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) other than the Parent becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all Capital Stock that
such person or group has the right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of at least thirty-five percent (35%) of the
voting Capital Stock of GFI entitled to vote for members of the board of
directors or equivalent governing body of GFI on a fully diluted basis (and
taking into account all such securities that such person or group has the right
to acquire pursuant to any option right); or


 


(b)                                 during
any period of 24 consecutive months, a majority of the members of the board of
directors of GFI cease to be composed of individuals (i) who were members
of that board on the first day of such period, (ii) whose election or
nomination to that board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board and/or (iii) whose election or nomination to that board was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of
that board (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a
member of that board occurs as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); or


 


(c)                                  for
so long as any Subordinated Indebtedness is outstanding, the occurrence of a “Change
of Control” (or any comparable term) under, and as defined in the documentation
evidencing such Subordinated Indebtedness.


 


“Closing
Date” means the date hereof.


 


“Collateral”
means a collective reference to all personal Property with respect to which
Liens in favor of the Administrative Agent are purported to be granted pursuant
to and in accordance with the terms of the Collateral Documents.


 


“Collateral
Documents” means a collective reference to the Domestic Security Agreement,
the Foreign Security Agreement, the Domestic Pledge Agreement, the Foreign
Pledge Agreement, the Fenics Software Pledge Agreement and such other security
documents as may be executed and delivered by the Loan Parties pursuant to
the terms of Section 7.12 and/or Section 7.14.


 


“Commitment” means, as to each Lender, the
Revolving Commitment of such Lender.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C.


 


“Consolidated Capital” means, as of any date of
determination, the aggregate of consolidated shareholders’ equity and preferred
equity of GFI and its Subsidiaries as of that date determined in accordance
with GAAP.


 


6

















 


“Consolidated
Capitalized Expenditures” means, for any period, for GFI and its
Subsidiaries on a consolidated basis, the cost of the purchase of fixed assets
and software costs and all other capitalized expenditures, as determined in
accordance with GAAP; provided, however, that Consolidated
Capitalized Expenditures shall not include (a) expenditures made with
proceeds of any Involuntary Disposition to the extent such expenditures are
used to purchase Property that is the same as or similar to the Property
subject to such Involuntary Disposition and (b) Permitted Acquisitions.


 


“Consolidated
Cash Taxes” means, for any period, for GFI and its Subsidiaries on a
consolidated basis, the aggregate of all taxes, as determined in accordance
with GAAP, to the extent the same are paid in cash during such period.


 


“Consolidated EBITDA” means, for any period,
for GFI and its Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income (excluding extraordinary and other non-recurring gains
and losses and interest income) for such period plus the following to
the extent deducted in calculating such Consolidated Net Income:  (a) Consolidated Interest Charges for
such period, (b) the provision for federal, state, local and foreign
income taxes payable by GFI and its Subsidiaries for such period and (c) the
amount of depreciation and amortization expense (excluding any amortization
related to signing bonuses) for such period.


 


“Consolidated Fixed Charge Coverage Ratio” means,
as of any date of determination, the ratio of (a) the sum of (i) Consolidated
EBITDA for the twelve month period most recently ended for which GFI has
delivered financial statements pursuant to Section 7.01(a) or (b) plus
(ii) amortization of signing bonuses during such period minus (iii) capitalized
signing bonuses during such period (not including those signing bonuses
(whether in the form of cash payments or forgivable loans) paid to the
equity team in Paris in the fourth quarter of 2005) to (b) Consolidated
Fixed Charges for the twelve month period most recently ended for which GFI has
delivered financial statements pursuant to Section 7.01(a) or (b).


 


“Consolidated Fixed Charges” means, for any
period, for GFI and its Subsidiaries on a consolidated basis, an amount equal
to the sum of (i) the cash portion of Consolidated Interest Charges for
such period plus (ii) Consolidated Scheduled Funded Debt Payments
for such period plus (iii) Consolidated Capitalized Expenditures
(excluding capitalized signing bonuses) for such period plus (iv) Consolidated
Cash Taxes for such period, all as determined in accordance with GAAP.


 


“Consolidated Funded Indebtedness” means Funded
Indebtedness of GFI and its Subsidiaries on a consolidated basis.


 


“Consolidated Interest Charges” means, for any
period, for GFI and its Subsidiaries on a consolidated basis, an amount equal
to the sum of (i) all interest, premium payments, debt discount, fees,
charges and related expenses of GFI and its Subsidiaries in connection with
Indebtedness (including capitalized interest and other fees and charges
incurred under any asset securitization program) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP; provided however for purposes of the
calculation of interest, any interest expense of GFI and its Subsidiaries paid
to a clearing organization for trades not cleared shall be netted against
interest income of GFI and its Subsidiaries received from a clearing
organization for trades not cleared; provided that such amount shall not
be less than $0 plus (ii) the portion of rent expense of GFI and
its Subsidiaries with respect to such period under Capital Leases or Synthetic
Leases that is treated as interest in accordance with GAAP.


 


“Consolidated Leverage Ratio” means, as of any
date of determination, the ratio of (a) Consolidated Funded Indebtedness
as of such date to (b) Consolidated EBITDA for the twelve month


 


7

















 


period
most recently ended for which GFI has delivered financial statements pursuant
to Section 7.01(a) or (b).


 


“Consolidated Net Income” means, for any
period, for GFI and its Subsidiaries on a consolidated basis, the net income of
GFI and its Subsidiaries for that period.


 


“Consolidated Scheduled Funded Debt Payments”
means for any period, for GFI and its Subsidiaries on a consolidated basis, the
sum of all scheduled payments of principal on Consolidated Funded Indebtedness.
For purposes of this definition, “scheduled payments of principal” (a) shall be deemed to include the Attributable
Indebtedness in respect of Capital Leases and Synthetic Leases, and (b) shall
not include any voluntary prepayments or mandatory prepayments required
pursuant to Section 2.04.


 


“Consolidated Total Assets” means, as of any
date of determination, for GFI and its Subsidiaries on a consolidated basis,
all items, which in accordance with GAAP would be classified as assets of GFI
and its Subsidiaries on a consolidated basis.


 


“Contractual Obligation” means, as to any
Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


 


“Control” has the meaning specified in the
definition of “Affiliate.”


 


“Credit
Extension” means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.


 


“Debt
Issuance” means the issuance by GFI or any Subsidiary of any Indebtedness
other than Indebtedness permitted under Section 8.03.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable jurisdictions
from time to time in effect and affecting the rights of creditors generally.


 


“Default” means any event or condition that
constitutes an Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.


 


“Default Rate” means  (a) with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Margin, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to
a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Margin and any Mandatory Cost)
otherwise applicable to such Eurocurrency Rate Loan plus 2% per annum, and (b) with
respect to Letter of Credit Fees, a rate equal to the Applicable Margin plus 2%
per annum, in all cases to the fullest extent permitted by applicable Laws.


 


“Defaulting Lender” means any Lender that (a) has
failed to fund any portion of the Loans or participations in L/C Obligations
required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.


 


8

















 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any Property by
GFI or any Subsidiary (including the Capital Stock of any Subsidiary),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (i) the sale, lease, license, transfer
or other disposition of inventory or software in the ordinary course of
business of GFI and its Subsidiaries, (ii) the sale, lease, license,
transfer or other disposition of machinery and equipment no longer used or
useful in the conduct of business of GFI and its Subsidiaries, (iii) any
sale, lease, license, transfer or other disposition of Property by GFI or any
Subsidiary to any Domestic Loan Party, (iv) any sale, lease, license,
transfer or other disposition of Property by any Foreign Subsidiary to any
Foreign Loan Party, (v) any Involuntary Disposition by GFI or any
Subsidiary, (vi) any Disposition by GFI or any Subsidiary to the extent
constituting a Permitted Investment, (vii) any sale of receivables by a
Regulated Subsidiary to GFI or any other Loan Party for no more than the fair
value of such receivables, (viii) any sale, lease, license, transfer or
other disposition of Property by any Subsidiary of GFI that is not a Loan Party
to any other Subsidiary of GFI that is not a Loan Party, (ix) the sale,
transfer or other disposition by GFInet Europe Limited of that portion of its
assets comprising its name give-up broker business and/or its matched principal
broker business to any other Subsidiary of GFI that is not a Loan Party, and
(x) the disposition by GFI LLC to the Foreign Borrower of the Capital Stock of
GFInet Europe Limited. The term “Disposition” shall not be deemed to include
any Equity Issuance.


 


“Dollar” and “$” mean lawful money of
the United States.


 


“Dollar Equivalent” means, at any time, (a) with
respect to any amount denominated in Dollars, such amount, and (b) with
respect to any amount denominated in any Alternative Currency, the equivalent
amount thereof in Dollars as determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be, at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of Dollars with such Alternative Currency.


 


“Domestic Guarantor” means each Domestic
Subsidiary of GFI that is a Material Subsidiary identified on the signature pages hereto
as a “Domestic Guarantor” and each other Person that joins as a Domestic
Guarantor of the Obligations pursuant to Section 7.12, together
with their respective successors and permitted assigns.


 


“Domestic Loan Party” means GFI and any
Domestic Guarantor.


 


“Domestic Pledge Agreement” means the amended
and restated pledge agreement dated as of the Closing Date executed in favor of
the Administrative Agent by GFI and each of the Domestic Guarantors party
thereto, as amended, modified, restated or supplemented from time to time.


 


“Domestic Security Agreement” means the amended
and restated security agreement dated as of the Closing Date executed in favor
of the Administrative Agent by GFI and each of the Domestic Guarantors, as
amended, modified, restated or supplemented from time to time.


 


“Domestic Subsidiary” means any Subsidiary that
is organized under the laws of any political subdivision of the United States.


 


“Earn Out Obligations”
means, with respect to an Acquisition, all obligations of GFI or any Subsidiary
to make earn out or other contingency payments pursuant to the documentation
relating to such Acquisition. The amount of any Earn Out Obligation shall be
deemed to be the aggregate liability in respect thereof as recorded on
the balance sheet of GFI and its Subsidiaries in accordance with GAAP.


 


9

















 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuers, and (ii) unless
an Event of Default has occurred and is continuing, GFI (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include GFI or any of GFI’s
Affiliates or Subsidiaries; and provided  further, however,
that an Eligible Assignee shall include only a Lender, an Affiliate of a Lender
or another Person, which, through its Lending Offices, is capable of lending
the applicable Alternative Currencies to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.


 


“Eligible
Reinvestment” means any acquisition of assets or any business (or any
substantial part thereof) used or useful in the same or a similar line of
business as GFI and its Subsidiaries were engaged in on the Closing Date.


 


“EMU” means the economic and monetary union in
accordance with the Treaty of Rome 1957, as amended by the Single European Act
1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.


 


“EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


 


“Environmental
Laws” means any and all federal, state, local, foreign and other applicable
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


 


“Environmental Liability” means any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of GFI, any other
Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.


 


“Equity Issuance” means any issuance by GFI or
any Subsidiary to any Person of shares of its Capital Stock, other than (a) any
issuance of shares of its Capital Stock pursuant to the exercise of options or
warrants, (b) any issuance of shares of its Capital Stock pursuant to the
conversion of any debt securities to equity or the conversion of any class of
equity securities to any other class of equity securities, (c) any
issuance of options or warrants relating to its Capital Stock, (d) any
issuance by GFI of shares of its Capital Stock as consideration for a Permitted
Acquisition and (e) any issuance by GFI of shares of its Capital Stock
upon the vesting of restricted share units. The term “Equity Issuance” shall
not be deemed to include any Disposition.


 


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


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with GFI within the meaning of Section 414(b) or (c) of
the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue
Code for purposes of provisions relating to Section 412 of the Internal Revenue
Code).


 


10

















 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by GFI or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by GFI or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) the occurrence of an “accumulated funding
deficiency” with respect to any Pension Plan, whether or not waived, as such
term is defined in Section 302(a)(2) of ERISA and Section 412(a)(2) of
the Internal Revenue Code, (f) an event or condition which could
reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; or (g) the imposition of any liability under Section 302(f) or
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007
of ERISA, upon GFI or any ERISA Affiliate.


 


“Euro”
means the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.


 


“Eurocurrency
Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time
for any reason, then the “Eurocurrency Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


 


“Eurocurrency
Rate Loan” means a Loan that bears interest at a rate based on the
Eurocurrency Rate. All Loans denominated in an Alternative Currency must be
Eurocurrency Rate Loans.


 


“Event
of Default” has the meaning specified in Section 9.01.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the applicable Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which a Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by a Borrower
under Section 11.14), any withholding tax (i) that is imposed
by the United States on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office), (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 3.01(e), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office


 


11

















 


(or assignment), to receive
additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 3.01(a) or (iii) that
is imposed by the United Kingdom and arises solely as a result of such Foreign
Lender’s designation of a new Lending Office (other than at the request of a
Borrower pursuant to Section 3.06(a)).


 


“Existing
Letters of Credit” means those letters of credit identified on Schedule 1.01(a).


 


“Facilities”
means, at any time, a collective reference to the facilities and real properties
owned, leased or operated by GFI or any Subsidiary.


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.


 


“Fee
Letter” means the letter agreement dated November 4, 2005 among GFI,
Bank of America and BAS.


 


“Fenics Software” means Fenics Software
Limited, a company incorporated under the laws of England and Wales.


 


“Fenics Software Pledge Agreement” means the
amended and restated pledge agreement dated as of the Closing Date executed in
favor of the Administrative Agent by Fenics Software, as amended, modified,
restated or supplemented from time to time.


 


“Foreign
Borrower” has the meaning provided in the introductory paragraph.


 


“Foreign
Guarantors” means each Foreign Subsidiary of GFI that is a Material
Subsidiary identified on the signature pages hereto as a “Foreign
Guarantor” and each other Person that joins as a Foreign Guarantor pursuant to Section 7.12,
together with their respective successors and permitted assigns.


 


“Foreign
L/C Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit denominated in Alternative
Currencies plus the aggregate of all Unreimbursed Amounts related to
such Letters of Credit, including all L/C Borrowings relating thereto. For all
purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.


 


“Foreign
Lender” means, with respect to any Borrower, any Lender that is organized
under the laws of, or is making a Loan through a Lending Office or other branch
located in, a jurisdiction other than that in which such Borrower is resident
for tax purposes. For purposes of this definition, the United States, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.


 


“Foreign
Loan Party” means any Loan Party that is not a Domestic Loan Party.


 


12

















 


“Foreign
Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Foreign Loan Party arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the any Foreign Loan
Party of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding. The foregoing shall also include any Swap
Contract between any Foreign Loan Party and any Lender or Affiliate of a Lender
and all obligations under any Treasury Management Agreement between any Foreign
Loan Party and any Lender or an Affiliate of a Lender.


 


“Foreign
Pledge Agreement” means any pledge agreement or similar document governed
by laws other than the laws of the state of New York entered into by any Loan
Party in favor of the Administrative Agent, in accordance with the terms
hereof, as amended, modified, restated or supplemented from time to time.


 


“Foreign
Security Agreement” means any debentures, security agreement or similar
document governed by laws other than the laws of the state of New York entered
into by any Loan Party in favor of the Administrative Agent, in accordance with
the terms hereof, as amended, modified, restated or supplemented from time to
time.


 


“Foreign
Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.


 


“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.


 


“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.


 


“Funded Indebtedness” means, as to any Person
at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:


 


(a)                                  all
obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;


 


(b)                                 all
purchase money Indebtedness;


 


(c)                                  all
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;


 


(d)                                 all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), including without limitation, any Earn Out
Obligations;


 


(e)                                  the
Attributable Indebtedness of Capital Leases and Synthetic Leases;


 


(f)                                    the
Attributable Indebtedness of Securitization Transactions;


 


13

















 


(g)                                 all
preferred stock or other equity interests providing for mandatory redemptions,
sinking fund or like payments prior to the Maturity Date;


 


(h)                                 all
Guarantees with respect to Indebtedness of the types specified in clauses (a) through
(g) above of another Person; and


 


(i)                                     all
Indebtedness of the types referred to in clauses (a) through (h) above
of any partnership or joint venture for which such Person is liable for all of
the obligations of such joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a
general partner or joint venturer, except to the extent such Indebtedness is
expressly made non-recourse to such Person.


 


For purposes
hereof, (x) the amount of any obligation arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments shall be the maximum amount available to
be drawn thereunder and (y) the amount of any Guarantee shall be the amount of
the Indebtedness subject to such Guarantee.


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied.


 


“GFI
LLC” means GFI Group LLC, a New York limited liability company.


 


“Governmental
Authority” means any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court,
administrative tribunal, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).


 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith. The
term “Guarantee” as a verb has a corresponding meaning.


 


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
and the Lenders pursuant to Article IV hereof.


 


14

















 


“Guarantors”
means a collective reference to (a) GFI, in its capacity as a guarantor of
the Foreign Obligations, (b) the Domestic Guarantors and (c) the
Foreign Guarantors.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Honor
Date” has the meaning set forth in Section 2.03(c).


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)                                  all
Funded Indebtedness;


 


(b)                                 net
obligations under any Swap Contract;


 


(c)                                  all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and


 


(d)                                 all
Indebtedness of the types referred to in clauses (a) through (c) above
of any partnership or joint venture for which such Person is liable for all of
the obligations of such joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which a Borrower or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to such Borrower or such Subsidiary.


 


For
purposes hereof (y) the amount of any net obligation under any Swap Contract on
any date shall be deemed to be the Swap Termination Value thereof as of such
date and (z) the amount of any Guarantee shall be the amount of the Indebtedness
subject to such Guarantee.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitees”
has the meaning specified in Section 11.04.


 


“Interest
Payment Date” means (a) as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a
Eurocurrency Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan, the last
Business Day of each March, June, September and December and the
Maturity Date.


 


“Interest
Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued
as a Eurocurrency Rate Loan and ending on the date (a) one, two, three or
six months thereafter, as selected by the applicable Borrower in its Loan
Notice or (b) any other date thereafter selected by the applicable
Borrower and approved by the Lenders; provided that:


 


(i)                                     any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;


 


15

















 


(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 the
calendar month at the end of such Interest Period; and


 


(iii)                               no
Interest Period shall extend beyond the Maturity Date.


 


“Interim
Financial Statements” has the meaning set forth in Section 5.01(c)(ii).


 


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


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) an Acquisition. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such Investment.


 


“Involuntary
Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of GFI or any of
its Subsidiaries.


 


“IP
Rights” has the meaning set forth in Section 6.17.


 


“IRS”
means the United States Internal Revenue Service.


 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


 


“Issuer
Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by
an L/C Issuer and the applicable Borrower (or any Subsidiary) or in favor of
the applicable L/C Issuer and relating to any such Letter of Credit.


 


“Joinder
Agreement” means a joinder agreement substantially in the form of Exhibit E
executed and delivered by a Loan Party in accordance with the provisions of Section 7.12.


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.


 


16

















 


“L/C
Borrowing” means an extension of credit in Dollars resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.


 


“L/C
Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


 


“L/C
Issuers” means (i) Bank of America, (ii) any other Lender in its
capacity as issuer of Letters of Credit hereunder who has been selected by GFI
and who has agreed to be an L/C Issuer hereunder in accordance with the terms
hereof and (iii) any successor issuer of Letters of Credit hereunder appointed
in accordance with the terms hereof, and “L/C Issuer” means any one of
them.


 


“L/C
Obligations” means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.07.


 


“Lenders”
means each of the Persons identified as a “Lender” on the signature pages hereto
and their successors and assigns and, as the context requires, includes any L/C
Issuers.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify GFI and the
Administrative Agent.


 


“Letter
of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit.


 


“Letter
of Credit Application” means an application and agreement for the issuance
or amendment of a letter of credit in the form from time to time in use by
the applicable L/C Issuer.


 


“Letter
of Credit Expiration Date” means the day that is 30 days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter
of Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) the
Aggregate Revolving Commitments and (b) FIFTY MILLION DOLLARS
($50,000,000), as such amount may be increased pursuant to Section 2.02.
The Letter of Credit Sublimit is part of, and not in addition to, the
Aggregate Revolving Commitments.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, and any financing lease having substantially
the same economic effect as any of the foregoing).


 


“Loan”
means an extension of credit by a Lender to a Borrower under Article II
in the form of a Revolving Loan.


 


17

















 


“Loan
Documents” means this Agreement, each Note, each Letter of Credit, each
Letter of Credit Application, each Joinder Agreement, the Collateral Documents,
each Issuer Document, each Request for Credit Extension, each Compliance
Certificate, the Fee Letter and each other document, instrument or agreement
from time to time executed by GFI or any of its Subsidiaries or any Responsible
Officer thereof and delivered in connection with this Agreement.


 


“Loan
Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.


 


“Loan
Parties” means, collectively, GFI, the Foreign Borrower and each Guarantor,
and “Loan Party” means any one of them.


 


“Mandatory
Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(b).


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of GFI and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of
any Loan Party to perform its material obligations under any Loan Document
to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.


 


“Material
Subsidiary” means, as of any date of determination, any Subsidiary of GFI
that (i) has on such date Total Assets constituting five percent or more
of Consolidated Total Assets or (ii) for the twelve month period most
recently ended has revenues constituting five percent or more of the
consolidated revenues of GFI and its Subsidiaries for such period, as
determined in accordance with GAAP.


 


“Maturity
Date” means February 24, 2011.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which GFI or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Net
Cash Proceeds” means the aggregate proceeds received in cash or Cash
Equivalents by GFI or any Subsidiary in respect of any Disposition, Debt
Issuance, or Involuntary Disposition, net of (a) direct costs incurred in
connection therewith (including, without limitation, legal, accounting and
investment banking fees, underwriting discounts and sales commissions, but only
to the extent owing or paid to a Person that is not an Affiliate of a
Borrower), (b) taxes paid or payable as a result thereof, and (c) in
the case of any Disposition, the amount necessary to retire any Indebtedness
secured by a Permitted Lien (ranking senior to any Lien of the Administrative
Agent) on the related Property; it being understood that “Net Cash Proceeds”
shall include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by GFI or
any Subsidiary in any Disposition, Debt Issuance or Involuntary Disposition; provided,
however, that if in connection with a Disposition (other than any Sale
and Leaseback Transaction) or Involuntary Disposition (x) GFI shall deliver (A) a
certificate of a Responsible Officer to the Administrative Agent at the time of
receipt thereof setting forth GFI’s intention to make Eligible Reinvestments
and (y) no Default or Event of Default shall have occurred and shall be
continuing at


 


18

















 


the time of such
certificate or at the time such proceeds are contractually committed to be
used, such proceeds shall not constitute Net Cash Proceeds except to the extent
not so used or contractually committed to be used at the end of the Application
Period, at which time such proceeds shall be deemed to be Net Cash Proceeds.


 


“Note”
or “Notes” means the Revolving Notes, individually or collectively, as
appropriate.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding. The foregoing shall also include any Swap Contract between any Loan
Party and any Lender or Affiliate of a Lender and all obligations under any
Treasury Management Agreement between any Loan Party and any Lender or an
Affiliate of any Lender.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity,
the partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


“Other
Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment
made hereunder or under any other Loan Document or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.


 


“Outstanding
Amount” means (i) with respect to any Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of any Loans occurring
on such date; and (ii) with respect to any L/C Obligations on any date,
the Dollar Equivalent amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any Letters
of Credit or any reductions in the maximum amount available for drawing under
Letters of Credit taking effect on such date.


 


“Overnight
Rate” means, for any day, (a) with respect to any amount denominated
in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, or the applicable L/C
Issuer as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount denominated in
an Alternative Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such
interbank market.


 


“Parent”
means Jersey Partners Inc., a New York corporation.


 


19

















 


“Participant”
has the meaning specified in Section 11.06(d).


 


“Participating Member State” means each state
so described in any EMU Legislation.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by GFI or any ERISA
Affiliate or to which GFI or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.


 


“Permitted
Acquisition” means any Investments consisting of an Acquisition by GFI or
any Subsidiary,  provided that (i) the
Property acquired (or the Property of the Person acquired) in such Acquisition
is used or useful in the same or a similar line of business as GFI and its
Subsidiaries were engaged in on the Closing Date (or any reasonable extensions
or expansions thereof), (ii) in the case of an Acquisition of the Capital
Stock of another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition, (iii) after
giving effect to any such Acquisition, the Loan Parties are in compliance with
the financial covenants set forth in Section 8.11 as of the end of
the most recent fiscal quarter for which GFI has delivered financial statements
pursuant to Section 7.01(b), and at least five days prior to the
date of the closing of any such Acquisition, GFI shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating that,
upon giving effect to such Acquisition on a Pro Forma Basis the Loan Parties
would be in compliance with the financial covenants set forth in Section 8.11
as of the end of the most recent fiscal quarter for which GFI has delivered
financial statements pursuant to Section 7.01(b), (iv) the
representations and warranties made by any Loan Party in any Loan Document
shall be true and correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto) except to the extent
such representations and warranties expressly relate to an earlier date, (v) no
Default or Event of Default has occurred and is continuing or would result
therefrom, (vi) if such transaction involves the purchase of an interest
in a partnership between GFI (or a Subsidiary of GFI) as a general partner and
entities unaffiliated with GFI or such Subsidiary as the other partners, such
transaction shall be effected by having such equity interest acquired by a
corporate holding company directly or indirectly wholly-owned by GFI newly
formed for the sole purpose of effecting such transaction and (vii) after
giving effect to such Acquisition, (a) the aggregate cash consideration (including
any assumption of liabilities) for such Acquisition shall not exceed $50,000,000
and (b) the aggregate consideration (including any cash and non-cash
consideration, promissory notes, assumption of liabilities, and any earn-out
obligations) for all Acquisitions in any fiscal year shall not exceed $100,000,000.


 


“Permitted
Investments” means, at any time, Investments by GFI or any of its
Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.


 


“Permitted
Liens” means, at any time, Liens in respect of Property of GFI or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by GFI or, with respect to any such plan that is subject to Section 412
of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.


 


20

















 


“Pledge Agreements” means a collective
reference to the Domestic Pledge Agreement, the Foreign Pledge Agreement and
the Fenics Software Pledge Agreement.


 


“Pro Forma Basis” means, for purposes
of calculating the financial covenants set forth in Section 8.11
(including for purposes of determining the Applicable Margin), that any
Disposition, Involuntary Disposition or Acquisition shall be deemed to have
occurred as of the first day of the most recent twelve month period preceding
the date of such transaction for which GFI has delivered financial statements
pursuant to Section 7.01(a) or (b). In connection with
the foregoing, (a) with respect to any Disposition or Involuntary
Disposition, (i) income statement and cash flow statement items (whether
positive or negative) attributable to the Property disposed of shall be
excluded to the extent relating to any period occurring prior to the date of
such transaction and (ii) Indebtedness which is retired shall be excluded
and deemed to have been retired as of the first day of the applicable period
and (b) with respect to any Acquisition (i) income statement items
(whether positive or negative) attributable to the Person or Property acquired
shall be included to the extent relating to any period applicable in such calculations
to the extent (A) such items are not otherwise included in such income
statement items for GFI and its Subsidiaries in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.01 and (B) such
items are supported by audited financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any
Indebtedness incurred or assumed by GFI or any Subsidiary (including the Person
or Property acquired) in connection with such transaction and any Indebtedness
of the Person or Property acquired which is not retired in connection with such
transaction (A) shall be deemed to have been incurred as of the first day
of the applicable period and (B) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at the relevant date of
determination.


 


“Pro Forma Compliance Certificate”
means a certificate of a Responsible Officer of GFI containing reasonably
detailed calculations of the financial covenants set forth in Section 8.11
as of the most recent fiscal quarter end for which GFI has delivered financial
statements pursuant to Section 7.01(b) after giving effect to
the applicable transaction on a Pro Forma Basis.


 


“Pro Rata Share” means, as to each
Lender at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of the Revolving
Commitment of such Lender at such time and the denominator of which is the
amount of the Aggregate Revolving Commitments at such time; provided
that if the commitment of each Lender to make Revolving Loans and the
obligation of each L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 9.02, then the Pro Rata Share of
each Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Property” means any interest of any
kind in any property or asset, whether real, personal or mixed, or tangible or
intangible.


 


“Public Equity Offering” means an
underwritten public offering of common stock by GFI pursuant to a registration
statement filed with the SEC in accordance with the Securities Act.


 


“Register” has the meaning specified
in Section 11.06(c).


 


“Regulated Subsidiary” means GFI
Brokers Limited, GFI Securities Limited, GFInet UK Limited, GFI Securities LLC,
GFI (HK) Securities LLC, and GFI Group Pte. Ltd. and any other


 


21

















 


Subsidiary of GFI which is required by Law to maintain for trading
purposes minimum levels of solvency, or capital, or net assets.


 


“Related Parties” means, with respect
to any Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such Person’s Affiliates.


 


“Reportable Event” means any of the
events set forth in Section 4043(c) of ERISA, other than events for
which the thirty-day notice period has been waived.


 


“Request for Credit Extension” means (a) with
respect to a Borrowing, conversion or continuation of Loans, a Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.


 


“Required Lenders” means, at any time,
Lenders holding in the aggregate more than fifty percent (50%) of (a) the
Revolving Commitments or (b) if the Revolving Commitments have been
terminated, the outstanding Loans, L/C Obligations and participations therein. The
Revolving Commitments of, and the outstanding Loans held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer, general counsel or
corporate controller of a Loan Party and, with respect to any Foreign Loan
Party, any senior managing director, chief operating officer, managing director
or company secretary. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Loan Party.


 


“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Capital Stock of GFI or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Capital Stock or of any
option, warrant or other right to acquire any such Capital Stock.


 


“Revaluation Date” means (a) with
respect to any Loan, each of the following: 
(i) each date of a Borrowing of a Eurocurrency Rate Loan
denominated in an Alternative Currency, (ii) each date of a continuation
of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02,
and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to
any Letter of Credit, each of the following: 
(i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the applicable
L/C Issuer under any Letter of Credit denominated in an Alternative Currency,
and (iv) such additional dates as the Administrative Agent or the
applicable L/C Issuer shall determine or the Required Lenders shall require.


 


“Revolving Commitment” means, as to
each Lender, its obligation to (a) make Revolving Loans to the Borrowers
pursuant to Section 2.01 and (b) purchase participations in
L/C Obligations, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to
time in accordance with this Agreement.


 


22

















 


“Revolving Loan” has the meaning
specified in Section 2.01.


 


“Revolving Note” has the meaning
specified in Section 2.10(a).


 


“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and
any successor thereto.


 


“Sale and Leaseback Transaction”
means, with respect to GFI or any Subsidiary, any arrangement, directly or
indirectly, with any person whereby GFI or such Subsidiary shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.


 


“Same Day Funds” means (a) with
respect to disbursements and payments in Dollars, immediately available funds,
and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the
Administrative Agent or the applicable L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.


 


“Sarbanes-Oxley” means the Sarbanes-Oxley
Act of 2002.


 


“SEC” means the Securities and
Exchange Commission, or any Governmental Authority succeeding to any of its
principal functions.


 


“Securities Act” means the Securities
Act of 1933, as amended, and all regulations issued pursuant thereto.


 


“Securitization Transaction” means any
financing transaction or series of financing transactions (including
factoring arrangements) pursuant to which GFI or any Subsidiary may sell,
convey or otherwise transfer, or grant a security interest in, accounts,
payments, receivables, rights to future lease payments or residuals or similar
rights to payment to a special purpose subsidiary or affiliate of GFI.


 


“Security Agreements” means a
collective reference to the Domestic Security Agreement and the Foreign
Security Agreement.


 


“Solvent” or “Solvency” means,
with respect to any Person as of a particular date, that on such date (a) such
Person is able to pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature in their ordinary course, (c) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person’s Property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the fair
value of the Property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, 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.


 


23

















 


“Special Notice
Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.


 


“Spot Rate” for a
currency means the rate determined by the Administrative Agent or the
applicable L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of
such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the applicable L/C Issuer may obtain
such spot rate from another financial institution designated by the
Administrative Agent or the applicable L/C Issuer if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency; and provided  further that the applicable L/C
Issuer may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Letter of Credit denominated in
an Alternative Currency.


 


“Subordinated Indebtedness”
means any Indebtedness of GFI which by its terms is expressly subordinated in
right of payment to the prior payment of the Obligations under this Agreement
and the other Loan Documents containing terms and conditions (including without
limitation the subordination provisions) reasonably satisfactory to the
Required Lenders.


 


“Subsidiary” of a Person means a
corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of Capital Stock having
ordinary voting power for the election of directors or other governing body
(other than Capital Stock having such power only by reason of the happening of
a contingency) are at the time beneficially owned, or the management of which
is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of GFI.


 


“Swap Contract” means (a) any and
all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap Termination Value” means, in
respect of any one or more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a),
the amount(s) determined as the mark-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).


 


24

















 


“Synthetic Lease” means any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing arrangement whereby the arrangement is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease or does not otherwise appear on the balance sheet under GAAP.


 


“TARGET Day” means any day on which
the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET) payment system (or, if such payment system ceases to be operative,
such other payment system (if any) determined by the Administrative Agent
to be a suitable replacement) is open for the settlement of payments in Euro.


 


“Taxes” means all present or future
taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or
other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.


 


“Threshold Amount” means $15,000,000.


 


“Total Assets” means, as of any date
of determination, for any Person, all items, which in accordance with GAAP,
would be classified as assets of such Person.


 


“Total Revolving Outstandings” means
the aggregate Outstanding Amount of all Revolving Loans and all L/C
Obligations.


 


“Treasury Management Agreement” means
any agreement governing the provision of treasury or cash management services,
including deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.


 


“Type” means, with respect to any
Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.


 


“Unfunded Pension Liability” means the
excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Internal Revenue Code for the applicable plan year.


 


“United States” and “U.S.” mean
the United States of America.


 


“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).


 


“Voting Stock” means, with respect to
any Person, Capital Stock issued by such Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such a
contingency.


 


1.02                           Other Interpretive Provisions.


 


With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:


 


(a)                                  The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


25

















 


(b)                                 (i)                                     The words “herein,”
“hereto,” “hereof” and “hereunder” and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.


 


(ii)                                  Article,
Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.


 


(iii)                               The
term “including” is by way of example and not limitation.


 


(iv)                              The
term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.


 


(c)                                  In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


 


(d)                                 (i) 
Any definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document) and (ii) any reference to any law shall include all statutory
and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented
from time to time.


 


(e)                                  Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03                           Accounting Terms.


 


(a)                                  Except as otherwise
specifically prescribed herein, all accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required
to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited
Financial Statements; provided, however, that calculations of Attributable
Indebtedness under any Synthetic Lease or the implied interest component of any
Synthetic Lease shall be made by GFI in accordance with accepted financial
practice and consistent with the terms of such Synthetic Lease.


 


(b)                                 GFI will provide a
written summary of material changes in GAAP and in the consistent application
thereof with each annual and quarterly Compliance Certificate delivered in
accordance with Section 7.02(a). If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either GFI or the Required Lenders shall so request, the
Administrative Agent, the Lenders and GFI shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided  that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) GFI shall provide to the Administrative Agent and
the Lenders financial statements and other documents required under this


 


26

















 


Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.


 


(c)                                  Notwithstanding the
above, the parties hereto acknowledge and agree that all calculations of the
financial covenants in Section 8.11 (including for purposes of determining
the Applicable Margin) shall be made on a Pro Forma Basis.


 


1.04                           Rounding.


 


Any financial
ratios required to be maintained by the Loan Parties pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).


 


1.05                           References to Agreements and Laws.


 


Unless otherwise expressly provided herein, (a) references
to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


1.06                           Times of Day.


 


Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


 


1.07                           Letter of Credit Amounts.


 


Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent
of the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.


 


1.08                           Exchange Rates; Currency Equivalents.


 


(a)  The Administrative Agent or the applicable L/C
Issuer, as applicable, shall determine the Spot Rates as of each Revaluation
Date to be used for calculating Dollar Equivalent amounts of Credit Extensions
and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates
shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the
next Revaluation Date to occur. Except for purposes of financial statements
delivered by Loan Parties hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall be such
Dollar Equivalent amount as so determined by the Administrative Agent or the
applicable L/C Issuer, as applicable.


 


(b)                                 Wherever in this Agreement in connection with a
Borrowing, conversion, continuation or


 


27

















 


prepayment
of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter
of Credit, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of
Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to the
nearest unit of such Alternative Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent or the applicable L/C
Issuer, as the case may be.


 


1.09                           Additional Alternative Currencies.


 


(a)                                  GFI may from time to time request that
Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a
currency other than those specifically listed in the definition of “Alternative
Currency;” provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely transferable and
convertible into Dollars. In the case of any such request with respect to the
making of Eurocurrency Rate Loans, such request shall be subject to the
approval of the Administrative Agent and the Lenders; and in the case of any
such request with respect to the issuance of Letters of Credit, such request
shall be subject to the approval of the Administrative Agent and the applicable
L/C Issuer.


 


(b)                                 Any such request shall be made to the Administrative
Agent not later than 11:00 a.m., at least 20 Business Days prior to the
date of the desired Credit Extension (or such other time or date as may be
agreed by the Administrative Agent and, in the case of any such request
pertaining to Letters of Credit, the applicable L/C Issuer, in its or their
sole discretion). In the case of any such request pertaining to Eurocurrency
Rate Loans, the Administrative Agent shall promptly notify each Lender thereof;
and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the applicable L/C Issuer thereof. Each
Lender (in the case of any such request pertaining to Eurocurrency Rate Loans)
or the applicable L/C Issuer (in the case of a request pertaining to Letters of
Credit) shall notify the Administrative Agent, not later than 11:00 a.m.,
no later than ten Business Days after receipt of such request whether it
consents, in its sole discretion, to the making of Eurocurrency  Rate Loans or the issuance of Letters of Credit, as
the case may be, in such requested currency.


 


(c)                                  Any failure by a Lender or the applicable L/C
Issuer, as the case may be, to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal by
such Lender or the applicable L/C Issuer, as the case may be, to permit
Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such
requested currency. If the Administrative Agent and all the Lenders consent to
making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify GFI and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for purposes of any Borrowings
of Eurocurrency Rate Loans; and if the Administrative Agent and the applicable
L/C Issuer consent to the issuance of Letters of Credit in  such requested currency, the Administrative Agent
shall so notify GFI and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If the Administrative Agent shall fail to obtain consent to
any request for an additional currency under this Section 1.09, the
Administrative Agent shall promptly so notify GFI.


 


1.10                           Change of Currency.


 


(a)                                  Each obligation of the Borrowers to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall
be redenominated into Euro at the time of such adoption (in accordance with the
EMU Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or


 


28

















 


practice
in the London interbank market for the basis of accrual of interest in respect
of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Borrowing in the currency
of such member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Borrowing, at the end of
the then current Interest Period.


 


(b)                                 Each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative Agent may from
time to time specify to be appropriate to reflect the adoption of the Euro by
any member state of the European Union and any relevant market conventions or
practices relating to the Euro.


 


(c)                                  Each provision of this Agreement also shall be
subject to such reasonable changes of construction as the Administrative Agent may from
time to time specify to be appropriate to reflect a change in currency of any
other country and any relevant market conventions or practices relating to the
change in currency.


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                           Revolving Loans.


 


Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Revolving
Loan”) to GFI in Dollars or in one or more Alternative Currencies and to
the Foreign Borrower in Dollars or in one or more Alternative Currencies from
time to time on any Business Day during the Availability Period in an aggregate
principal amount not to exceed at any time outstanding the amount of such
Lender’s Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender’s Revolving Commitment, and (iii) the
aggregate Outstanding Amount of all Revolving Loans made in Alternative Currencies
plus the Outstanding Amount of Foreign L/C Obligations shall not exceed
the Alternative Currency Sublimit; and provided  further that the
availability of the Aggregate Revolving Commitments at any time for the making
of Loans and the issuance of Letters of Credit shall be reduced by the amount
of the Alternative Currency Reserve. Within the limits of each Lender’s
Revolving Commitment, and subject to the other terms and conditions hereof, the
Borrowers may borrow under this Section 2.01, prepay under Section 2.04,
and reborrow under this Section 2.01. Revolving Loans made to GFI may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein, and all
Revolving Loans made to the Foreign Borrower shall be Eurocurrency Rate Loans
as further provided herein. Notwithstanding the foregoing, all Borrowings in
Alternative Currencies made at any time shall be Eurocurrency Rate Loans.


 


2.02                           Borrowings, Conversions and Continuations of Loans.


 


(a)                                  Each Borrowing, each
conversion of Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon the applicable Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not later
than 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans, (ii) four


 


29

















 


Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies and (iii) on
the requested date of any Borrowing of Base Rate Loans by GFI. Each telephonic
notice by a Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the applicable
Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Section 2.03(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan
Notice (whether telephonic or written) shall specify (i) whether the
applicable Borrower is requesting a Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Loans are to be converted, (v) the currency of such
Loans and (vi) if applicable, the duration of the Interest Period with
respect thereto. If the Foreign Borrower fails to specify a currency in a Loan
Notice requesting a Borrowing, then the Loans so requested shall be made in
Dollars. If GFI fails to specify a Type of a Loan in a Loan Notice or if GFI
fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of GFI’s failure to timely request a
continuation of Loans denominated in an Alternative Currency, such Loans shall
be continued as Eurocurrency Rate Loans in their original currency with an
Interest Period of one month. Any automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurocurrency Rate Loans. If the Foreign Borrower
fails to timely request a continuation of Loans denominated in an Alternative
Currency, such Loans shall be continued as Eurocurrency Rate Loans in their
original currency with an Interest Period of one month. The Foreign Borrower
shall not be permitted to convert any Eurocurrency Rate Loans to Base Rate
Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month. No
Loan may be converted into or continued as a Loan denominated in a
different currency, but instead must be prepaid in the original currency of
such Loan and reborrowed in the other currency.


 


(b)                                 Following receipt of a
Loan Notice, the Administrative Agent shall promptly notify each Lender of the
amount (and currency) of its Pro Rata Share of the applicable Loans, and (x) if
no timely notice of a conversion or continuation is provided by GFI with
respect to any of its Loans, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans or continuation
of Loans denominated in a currency other than Dollars and (y) if no timely
notice of a continuation is provided by the Foreign Borrower with respect to
any of its Loans, the Administrative Agent shall notify each Lender of the
details of any continuation of Loans, in each case as described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in Same Day Funds at
the Administrative Agent’s Office for the Applicable Currency not later than
1:00 p.m., in the case of any Loan denominated in Dollars, and not later
than the Applicable Time specified by the Administrative Agent in the case of
any Loan in an Alternative Currency, in each case on the Business Day specified
in the applicable Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall
make all funds so received available to the applicable Borrower in like funds
as received by the Administrative Agent either by (i) crediting the
account of such Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the applicable Borrower; provided, however, that if, on
the date of a Borrowing of Revolving Loans, there are L/C Borrowings
outstanding, then the proceeds of such 


 


30

















 


Borrowing shall be applied, first, to the payment in full of any
such L/C Borrowings, and second, to the applicable Borrower as provided
above.


 


(c)                                  Except as otherwise
provided herein, a Eurocurrency Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurocurrency Rate Loan. During
the existence of a Default or Event of Default, no Loans may be requested
as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency)
without the consent of the Required Lenders, and the Required Lenders may demand
that (i) any or all of the then outstanding Eurocurrency Rate Loans made
to GFI be converted to Base Rate Loans and (ii) any or all of the then
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be
redenominated into Dollars in the amount of the Dollar Equivalent thereof, in
the case of the preceding clauses (i) and (ii) on the last day of the
then current Interest Period with respect thereto.


 


(d)                                 The Administrative
Agent shall promptly notify the applicable Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon determination of such interest rate. The determination of the Eurocurrency
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error. At any time that Base Rate Loans are outstanding, the Administrative
Agent shall notify GFI and the Lenders of any change in Bank of America’s prime
rate used in determining the Base Rate promptly following the public
announcement of such change.


 


(e)                                  After giving effect
to all Borrowings, all conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more than five
Interest Periods in effect with respect to the Revolving Loans.


 


(f)                                    GFI may at any
time and from time to time, upon prior written notice by GFI to the
Administrative Agent, increase the Aggregate Revolving Commitments by up to
FIFTY MILLION DOLLARS ($50,000,000) with additional Revolving Commitments from
any existing Lender or new Revolving Commitments from any other Person selected
by GFI and approved by the Administrative Agent (not to be unreasonably
withheld); provided that:


 


(i)                                     any
such increase shall be in a minimum principal amount of $5,000,000 and in
integral multiples of $1,000,000 in excess thereof;


 


(ii)                                  no
Default or Event of Default shall be continuing at the time of any such
increase;


 


(iii)                               no
existing Lender shall be under any obligation to increase its Revolving
Commitment and any such decision whether to increase its Revolving Commitment
shall be in such Lender’s sole and absolute discretion;


 


(iv)                              (A) any
new Lender shall join this Agreement by executing such joinder documents
reasonably required by the Administrative Agent and/or (B) any existing
Lender electing to increase its Commitment shall have executed a commitment
agreement reasonably satisfactory to the Administrative Agent; and


 


(v)                                 as
a condition precedent to such increase, GFI shall deliver to the Administrative
Agent a certificate of each Loan Party dated as of the date of such increase
(in sufficient copies for each Lender) signed by a Responsible Officer of such
Loan Party (A) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (B) in the case
of GFI, certifying that, before and after giving effect to such increase, (1) the
representations and warranties contained in Article VI and the
other Loan Documents are true and


 


31

















 


correct in all material respects on and as of
the date of such increase, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.02(f),
the representations and warranties contained in subsections (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 7.01,
and (2) no Default or Event of Default exists.


 


Each Borrower shall prepay any Loans owing by it and outstanding on the
date of any such increase (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Loans ratable with any revised
Revolving Commitments arising from any nonratable increase in the Commitments
under this Section. In connection with any such increase in the Aggregate
Revolving Commitments, the Letter of Credit Sublimit (but not the Alternative
Currency Sublimit) shall be increased by the same amount and Schedule 2.01
shall be revised by the Administrative Agent to reflect the new Revolving
Commitments and distributed to the Lenders.


 


2.03                           Letters of Credit.


 


(a)                                  The Letter of
Credit Commitment.


 


(i)                                     Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of
Credit for the account of GFI or any of its Subsidiaries denominated in Dollars
or in one or more Alternative Currencies or for the account of the Foreign
Borrower or any of its Subsidiaries in Dollars or in one or more Alternative
Currencies, and to amend or extend Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrowers or
their Subsidiaries and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(w) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, (x) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all L/C Obligations shall not exceed such Lender’s Revolving Commitment, (y)
the Outstanding Amount of the L/C Obligations shall not exceed the Letter of
Credit Sublimit and (z) the aggregate Outstanding Amount of all Revolving Loans
made in Alternative Currencies plus the Outstanding Amount of Foreign
L/C Obligations shall not exceed the Alternative Currency Sublimit; and provided
further that the availability of the Aggregate Revolving Commitments at
any time for the making of Loans and the issuance of Letters of Credit shall be
reduced by the amount of the Alternative Currency Reserve. Each request by a
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by such Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the first proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, such Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.


 


(ii)                                  No
L/C Issuer shall issue any Letter of Credit if:


 


32

















 


(A)                              subject
to Section 2.03(b)(iii), the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of issuance or last
renewal, unless the Required Lenders have approved such expiry date; or


 


(B)                                the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date;


 


(iii)                               No L/C Issuer shall be
under any obligation to issue any Letter of Credit if:


 


(A)                              any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital requirement
(for which such L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good faith deems material to it;


 


(B)                                the
issuance of such Letter of Credit would violate one or more policies of such
L/C Issuer applicable to borrowers generally;


 


(C)                                except
as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter
of Credit is in an initial amount less than $500,000, or is to be denominated
in a currency other than Dollars or an Alternative Currency;


 


(D)                               such
L/C Issuer does not as of the issuance date of such requested Letter of Credit
issue Letters of Credit in the requested currency; or


 


(E)                                 a
default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless such L/C
Issuer has entered into satisfactory arrangements with GFI or such Lender to
eliminate such L/C Issuer’s risk with respect to such Lender.


 


(iv)                              No
L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.


 


(v)                                 No
L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such
L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.


 


(vi)                              No
L/C Issuer shall be under any obligation to issue or amend any Letter of Credit
if such L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, on or prior to the Business Day prior
to the requested date of issuance or amendment of such Letter of Credit, that
one or more applicable conditions contained in Article V shall not
then be satisfied.


 


33

















 


(vi)                              Each
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer
shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article X with respect to any acts taken or
omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article X included such L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C
Issuers.


 


(b)                                 Procedures for
Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.


 


(i)                                     Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of a Borrower delivered to the applicable L/C Issuer (with a copy to
the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of such Borrower. Such
Letter of Credit Application must be received by the applicable L/C Issuer and
the Administrative Agent (A) not later than 11:00 a.m. at least two (2) Business
Days (or such later date and time as the Administrative Agent and applicable
L/C Issuer may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may be,
of any Letter of Credit denominated in Dollars, and (B) not later than
11:00 a.m. at least ten Business Days (or such later date and time as the
Administrative Agent and the applicable L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be, of any Letter of Credit
denominated in an Alternative Currency. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the currency of such Letter of Credit and (H) such
other matters as the applicable L/C Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the applicable L/C Issuer may reasonably require. Additionally,
the applicable Borrower shall furnish to the applicable L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the applicable L/C Issuer or the Administrative Agent may reasonably
require.


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the applicable L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that
the Administrative Agent has received a copy of such Letter of Credit
Application from the applicable Borrower and, if not, the applicable L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless the
applicable L/C Issuer has received written notice from any Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested date
of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions in Article V shall not then be satisfied, then,
subject to the terms and conditions hereof, the applicable L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the applicable
Borrower (or the applicable Subsidiary) or enter into the applicable amendment,
as the case may be, in each case in accordance with the applicable L/C


 


34

















 


Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Pro Rata Share times
the amount of such Letter of Credit.


 


(iii)                               If
a Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue
a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit the applicable L/C Issuer to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the applicable L/C Issuer, no Borrower
shall be required to make a specific request to the applicable L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued,
the Lenders shall be deemed to have authorized (but may not require) the
applicable L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the applicable L/C Issuer shall not permit any such
extension if (A) the applicable L/C Issuer has determined that it would
not be permitted, or would have no obligation at such time to issue such Letter
of Credit in its revised (as extended) form under the terms hereof (by
reason of the provisions in clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone
or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or any Loan Party that one or more of the
applicable conditions specified in Section 5.02 is not then
satisfied, and in each such case directing the applicable L/C Issuer not to
permit such extension.


 


(iv)                              Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the applicable L/C Issuer will also deliver to the applicable Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment. In addition, on the last Business Day of each month, each L/C issuer
will provide to the Administrative Agent a report substantially in the form of
Exhibit F hereto, setting forth complete information regarding the
outstanding Letters of Credit issued by such L/C Issuer.


 


(c)                                  Drawings and
Reimbursements; Funding of Participations.


 


(i)                                     Upon
receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the applicable L/C Issuer shall notify the
applicable Borrower and the Administrative Agent thereof. In the case of a
Letter of Credit denominated in an Alternative Currency, the applicable
Borrower shall reimburse the applicable L/C Issuer in such Alternative
Currency, unless (A) such L/C Issuer (at its option) shall have specified
in such notice that it will require reimbursement in Dollars, or (B) in
the absence of any such requirement for reimbursement in Dollars, the
applicable Borrower shall have notified such L/C Issuer promptly following
receipt of the notice of drawing that it will reimburse such L/C Issuer in
Dollars. In the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in an Alternative Currency, the applicable L/C
Issuer shall notify the applicable Borrower of the Dollar Equivalent of the
amount of the drawing promptly following the determination thereof. Not later
than 11:00 a.m. on the date of any payment by the applicable L/C Issuer
under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on
the


 


35

















 


date of any payment by the applicable L/C
Issuer under a Letter of Credit to be reimbursed in an Alternative Currency
(each such date, an “Honor Date”), the applicable Borrower shall
reimburse the applicable L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing and in the Applicable Currency. If
the applicable Borrower fails to so reimburse the applicable L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (expressed in Dollars in the
amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the “Unreimbursed Amount”), and
the amount of such Lender’s Pro Rata Share thereof. In such event, GFI shall be
deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02
(other than the delivery of a Loan Notice). Any notice given by an L/C Issuer
or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone to a Responsible Officer of GFI if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.


 


(ii)                                  Each
Lender shall upon any notice pursuant to Section 2.03(c)(i) of
the Unreimbursed Amount make funds available to the Administrative Agent for
the account of the applicable L/C Issuer, in Dollars, at the Administrative
Agent’s Office for Dollar-denominated payments in an amount equal to its Pro
Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Loan to GFI
in such amount. The Administrative Agent shall remit the funds so received to
the applicable L/C Issuer in Dollars or if requested by the applicable L/C
Issuer, the equivalent amount thereof in an Alternative Currency as determined
by the Administrative Agent at such time on the basis of the Spot Rate
(determined as of such funding date) for the purchase of such Alternative
Currency with Dollars.


 


(iii)                               With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans because the conditions set forth in Section 5.02
cannot be satisfied or for any other reason, GFI shall be deemed to have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender’s payment to the Administrative Agent
for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


(iv)                              Until
each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount
shall be solely for the account of the applicable L/C Issuer.


 


(v)                                 Each
Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
applicable L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may have
against any L/C Issuer, any Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or


 


36

















 


condition, whether or not similar to any of
the foregoing; provided, however, that each Lender’s obligation
to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 5.02 (other than
delivery by the applicable Borrower of a Loan Notice). Without duplication of
any other reimbursement obligation, no such making of an L/C Advance shall
relieve or otherwise impair the obligation of the applicable Borrower to
reimburse the applicable L/C Issuer for the amount of any payment made by such
L/C Issuer under any Letter of Credit, together with interest as provided
herein.


 


(vi)                              If
any Lender fails to make available to the Administrative Agent for the account
of the applicable L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the applicable L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to such L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of the
applicable L/C Issuer submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.


 


(d)                                 Repayment of
Participations.


 


(i)                                     At
any time after an L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of such L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
applicable Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
L/C Advance was outstanding) in the same funds as those received by the Administrative
Agent.


 


(ii)                                  If
any payment received by the Administrative Agent for the account of an L/C
Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of such L/C Issuer its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)                                  Obligations
Absolute. The obligation of a Borrower to reimburse the applicable L/C
Issuer for each drawing under each applicable Letter of Credit and to repay
each applicable L/C Borrowing shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following:


 


(i)                                     any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;


 


(ii)                                  the
existence of any claim, counterclaim, set-off, defense or other right that any
Borrower or any of their Subsidiaries may have at any time against any
beneficiary or any 


 


37

















 


transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the applicable L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;


 


(iii)                               any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;


 


(iv)                              any
payment by the applicable L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the applicable L/C
Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;


 


(v)                                 any
adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Foreign Borrower or any of its
Subsidiaries or in the relevant currency markets generally; or


 


(vi)                              any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Borrower or any Subsidiary.


 


The applicable
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the applicable Borrower’s instructions or other
irregularity, the applicable Borrower will immediately notify the applicable
L/C Issuer. The applicable Borrower shall be conclusively deemed to have waived
any such claim against the applicable L/C Issuer and its correspondents unless
such notice is given as aforesaid.


 


(f)                                    Role of L/C
Issuers. Each Lender and each Borrower agrees that, in paying any drawing
under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuers, the Administrative
Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of any L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrowers hereby assume all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as
they may have against the beneficiary or transferee at law or under any
other agreement. None of the L/C Issuers, the Administrative Agent, any of
their respective Related Parties, nor any correspondent, participant or
assignee of any L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the applicable Borrower may have a claim against the
applicable L/C Issuer, and the applicable L/C Issuer may be liable to the
applicable


 


38

















 


Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by such Borrower which
such Borrower proves were caused by the applicable L/C Issuer’s willful
misconduct or gross negligence or the applicable L/C Issuer’s willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, each L/C Issuer may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and no
L/C Issuer shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.


 


(g)                                 Cash Collateral.


 


(i)                                     Upon
the request of the Administrative Agent, (A) if an L/C Issuer has honored
any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit
Expiration Date, any L/C Obligations for any reason remains outstanding, the
applicable Borrower shall, in each case, immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations.


 


(ii)                                  In
addition, if the Administrative Agent notifies GFI at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds 105% of the
Letter of Credit Sublimit then in effect, then, within two Business Days after
receipt of such notice, GFI shall Cash Collateralize (and/or cause the Foreign
Borrower to Cash Collateralize) the L/C Obligations in an amount equal to the
amount by which the Outstanding Amount of all L/C Obligations exceeds the
Letter of Credit Sublimit.


 


(iii)                               The
Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral be provided
in order to protect against the results of exchange rate fluctuations.


 


(iv)                              Section 2.04
and 9.02(c) set forth certain additional requirements to deliver
Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.04
and Section 9.02(c), “Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
applicable L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the
applicable L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. Each Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuers and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.


 


(h)                                 Applicability of
ISP98. Unless otherwise expressly agreed by the applicable L/C Issuer and
the applicable Borrower when a Letter of Credit is issued, the rules of
the ISP shall apply to each Letter of Credit.


 


(i)                                     Letter of
Credit Fees. Each Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit for which it
is responsible equal to the Applicable Margin times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Letter of Credit
Fees shall be (i) computed on a 


 


39

















 


quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If
there is any change in the Applicable Margin during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while an Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(j)                                     Fronting Fee
and Documentary and Processing Charges Payable to L/C Issuers. The
applicable Borrower shall pay directly to the applicable L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit issued by it, at
the rate specified in the Fee Letter, computed on the Dollar Equivalent of the
actual daily maximum amount available to be drawn under such Letter of  Credit (whether or not such maximum amount is
then in effect under such Letter of Credit), on a quarterly basis in arrears,
and due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. In addition, the applicable Borrower shall pay
directly to the applicable L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of such L/C Issuer relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.


 


(k)                                  Conflict with
Issuer Documents. In the event of any conflict between the terms hereof and
the terms of any Issuer Document, the terms hereof shall control.


 


(l)                                     Letters of
Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Subsidiary, the applicable Borrower shall be obligated to
reimburse the applicable L/C Issuer hereunder for any and all drawings under
such Letter of Credit. Each Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of its Subsidiaries inures to the benefit of
such Borrower, and that such Borrower’s business derives substantial benefits
from the businesses of such Subsidiaries.


 


2.04                           Prepayments.


 


(a)                                  Voluntary
Prepayments of Loans. Each Borrower may, upon notice from GFI to the
Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three (3) Business Days prior to any
date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four
Business Days (or five, in the case of prepayment of Loans denominated in
Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate
Loans denominated in Dollars shall be in a principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding), (iii) any prepayment of Eurocurrency
Rate Loans denominated in Alternative Currencies shall be in a principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if less,
the entire principal amount thereof then outstanding), and (iv) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding). Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by GFI, the


 


40

















 


applicable Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Pro Rata Shares.


 


(b)                                 Mandatory
Prepayments of Loans.


 


(i)                                     (A)  Revolving
Commitments. If for any reason the Total Revolving Outstandings at any time
exceed the Aggregate Revolving Commitments then in effect, GFI shall
immediately prepay (or cause to be prepaid) Revolving Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that GFI shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.04(b)(i) unless after
the prepayment in full of the Revolving Loans the Total Revolving Outstandings
exceed the Aggregate Revolving Commitments then in effect. The Administrative
Agent may, at any time and from time to time after the initial deposit of such
Cash Collateral, request that additional Cash Collateral be provided in order
to protect against the results of further exchange rate fluctuations.


 


(B)                                Alternative
Currency Sublimit. If the Administrative Agent notifies GFI at any time
that as of the most recent Revaluation Date the Outstanding Amount of all Loans
denominated in Alternative Currencies at such time exceeds the Alternative
Currency Sublimit then in effect, then, within five (5) Business Days
after receipt of such notice, GFI shall prepay (or cause to be prepaid) Loans
in an aggregate amount sufficient to reduce such Outstanding Amount as of such
date of payment to an amount not to exceed the
Alternative Currency Sublimit then in effect.


 


(ii)                                  Dispositions
and Involuntary Dispositions. Except as otherwise consented to in writing
by the Required Lenders, GFI shall
promptly, and in any event within five (5) Business Days following the end
of the related Application Period, prepay (or cause to be prepaid) the
Revolving Loans and Cash Collateralize the L/C Obligations in an aggregate
amount equal to 100% of the Net Cash Proceeds of all Dispositions and
Involuntary Dispositions to the extent that (a) (1) the Net
Cash Proceeds of all Dispositions and Involuntary Dispositions received after
the Closing Date exceed $15 million or (2) the Net Cash Proceeds of any
single Disposition or Involuntary Disposition exceed $5 million and (b) the
Net Cash Proceeds of such Disposition or Involuntary Disposition are not
applied (or caused to be applied) by the Loan Parties during the related
Application Period to make Eligible Reinvestments as contemplated by the terms
of Section 8.05. Any prepayment
pursuant to this clause (ii) shall be applied as set forth in clause (iv) below.


 


(iii)                               Debt
Issuances. Promptly, and in any event within five (5) Business Days,
upon receipt by GFI or any Subsidiary of the Net Cash Proceeds of any Debt
Issuance, GFI shall prepay (or cause
to be prepaid) the Revolving Loans and Cash Collateralize the L/C Obligations
in an aggregate amount equal to 100% of such Net Cash Proceeds of all Debt
Issuances. Any prepayment pursuant to this
clause (iii) shall be applied as set forth in clause (iv) below.


 


(iv)                              Application
of Mandatory Prepayments. All amounts required to be paid pursuant to Section 2.04(b) shall
be applied as follows:


 


(A)                              with
respect to all amounts prepaid pursuant to Section 2.04(b)(i)(A) and
(B), to Revolving Loans and (after all Revolving Loans have been repaid)
to Cash Collateralize L/C Obligations; and


 


41

















 


(B)                                with
respect to all amounts prepaid pursuant to Section 2.04(b)(ii) or
(iii), to the Revolving Loans and (after all Revolving Loans have been
repaid) to Cash Collateralize L/C Obligations with, in each case, a
corresponding permanent reduction in the Aggregate Revolving Commitments.


 


Within the parameters of the applications set
forth above, prepayments shall be applied first to Base Rate Loans and then to
Eurocurrency Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.04(b) shall be subject to Section 3.05,
but otherwise without premium or penalty, and shall be accompanied by interest
on the principal amount prepaid through the date of prepayment.


 


2.05                           Termination or Reduction of Aggregate Revolving
Commitments.


 


GFI may, upon notice to the Administrative
Agent, terminate the Aggregate Revolving Commitments, or from time to time
permanently reduce the Aggregate Revolving Commitments to an amount not less
than the Outstanding Amount of Revolving Loans and L/C Obligations plus
the Alternative Currency Reserve; provided that (i) any such notice
shall be received by the Administrative Agent not later than 12:00 noon five (5) Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple
of $1,000,000 in excess thereof and (iii) if, after giving effect to any
reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit
and/or the Alternative Currency Sublimit exceeds the amount of the Aggregate
Revolving Commitments, such sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Revolving Commitments. The amount of any such aggregate commitment reduction
shall not be applied to the Alternative Currency Sublimit or the Letter of
Credit Sublimit unless otherwise specified by GFI or as required by clause (iii) of
the immediately preceding sentence. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Pro Rata Share. All fees accrued with respect thereto until
the effective date of any termination of the Aggregate Revolving Commitments
shall be paid on the effective date of such termination.


 


2.06                           Repayment of Loans.


 


Each Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Revolving Loans made to
such Borrower outstanding on such date.


 


2.07                           Interest.


 


(a)                                  Subject to the
provisions of subsection (b) below, (i) each Eurocurrency Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of (A) the
Eurocurrency Rate for such Interest Period plus (B) the Applicable
Margin plus (C) (in the case of a Eurocurrency Rate Loan of any
Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost; and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Margin.


 


(b)                                 Upon the occurrence
and during the continuation of an Event of Default, at the direction of the
Required Lenders (or automatically if the Event of Default is pursuant to Section 9.01(g)),
all outstanding Obligations shall bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


 


42

















 


(c)                                  Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.


 


2.08                           Fees.


 


In addition to certain fees described in
subsections (i) and (j) of Section 2.03:


 


(a)                                  Commitment
Fee. GFI shall pay (and/or cause to be paid by the Foreign Borrower) to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share, a commitment fee in Dollars equal to the product of (i) the
Applicable Margin times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (y) the Outstanding Amount of
Revolving Loans and (z) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the applicable conditions in Article V
is not met, and the commitment fee shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Margin during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Margin
separately for each period during such quarter that such Applicable Margin was
in effect.


 


(b)                                 Fee
Letter. GFI shall (without duplication of fees described in Section 2.03(j))
pay (and/or cause to be paid by the Foreign Borrower) to BAS and the
Administrative Agent for their own respective accounts, in Dollars, fees in the
amounts and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall be non-refundable for any reason whatsoever.


 


2.09                           Computation of Interest and Fees.


 


All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year), or, in the case of interest in respect of Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.11(a), bear interest for one day. Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.


 


2.10                           Evidence of Debt.


 


(a)                                  The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount
of the Credit Extensions made by the Lenders to the Borrowers and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however,


 


43

















 


limit or otherwise affect the obligation of the Borrowers hereunder to
pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the applicable Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a promissory note, which shall
evidence such Lender’s Loans to such Borrower in addition to such accounts or
records. Each such promissory note shall be in the form of Exhibit B
(a “Revolving Note”). Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount, currency and
maturity of its Loans and payments with respect thereto.


 


(b)                                 In addition to the
accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit. In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.


 


2.11                           Payments Generally; Administrative Agent’s Clawback.


 


(a)                                  General        . All payments to be made
by each Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans
denominated in an Alternative Currency, all payments by each Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments
by each Borrower hereunder with respect to principal and interest on Loans denominated
in an Alternative Currency shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent’s Office in such Alternative Currency and in
Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. If, for any reason, any
Borrower is prohibited by any Law from making any required payment hereunder in
an Alternative Currency, such Borrower shall make such payment in Dollars in
the Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by any Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


(b)                                 Insufficient Funds.
If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.


 


44

















 


(c)                                  (i)   Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any Revolving Loan that such Lender will not make available to the
Administrative Agent such Lender’s share of such Revolving Loan, the
Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in
reliance upon such assumption, make available to the applicable Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Revolving Loan available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the Overnight Rate and (B) in the case of a payment to be
made by such Borrower, the interest rate applicable to Base Rate Loans. If such
Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to such Borrower the amount of such interest paid by such Borrower for
such period. If such Lender pays its share of the applicable Revolving Loan to
the Administrative Agent, then the amount so paid shall constitute such Lender’s
Revolving Loan included in such Borrowing. Any payment by a Borrower shall be
without prejudice to any claim such Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.


 


(ii)                                  Payments by
Borrowers; Presumptions by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or an
L/C Issuer hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the applicable L/C Issuer, as the case may be,
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders or the applicable L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the applicable L/C Issuer, in Same Day
Funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.


 


A notice of the Administrative Agent to any
Lender or any Borrower with respect to any amount owing under this subsection (c) shall
be conclusive, absent manifest error.


 


(d)                                 Failure to Satisfy
Conditions Precedent. If any Lender makes available to the Administrative
Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made
available to the applicable Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article V
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.


 


(e)                                  Obligations of
Lenders Several. The obligations of the Lenders hereunder to make Loans, to
fund participations in Letters of Credit and to make payments pursuant to Section 11.04(c) are
several and not joint. The failure of any Lender to make any Loan, to fund any
such participation or to make any payment under Section 11.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, no Lender shall be responsible
for the failure of any other Lender to so make its Loan, to purchase its
participation or to make its payment under Section 11.04(c).


 


45

















 


(f)                                    Funding Source.
Nothing herein shall be deemed to obligate any Lender to obtain the funds for
any Loan in any particular place or manner or to constitute a representation by
any Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.


 


2.12                           Sharing of Payments by Lenders.


 


If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Revolving Loans made by it, or the
participations in L/C Obligations held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its Pro Rata Share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Revolving Loans and
subparticipations in L/C Obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
participations and other amounts owing them, provided that:


 


(a)                                  if any such
participations or subparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and


 


(b)                                 the provisions of this
Section shall not be construed to apply to (x) any payment made by any
Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of
or sale of a participation in any of its Revolving Loans or subparticipations
in L/C Obligations to any assignee or participant, other than to a Borrower or
any Subsidiary thereof (as to which the provisions of this Section shall
apply).


 


Each Loan Party consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against such Loan Party’s rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such
Loan Party in the amount of such participation.


 


ARTICLE III


 


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                           Taxes.


 


(a)                                  Payments Free of
Taxes. Any and all payments by or on account of any obligation of the
respective Borrowers hereunder or under any other Loan Document shall be made
free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the applicable Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative Agent, Lender
or L/C Issuer, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


46

















 


(b)                                 Payment of Other
Taxes by the Borrowers.  Without
limiting the provisions of subsection (a) above, each Borrower shall
timely pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)                                  Indemnification by
the Borrowers.  Each Borrower shall
indemnify the Administrative Agent, each Lender and each L/C Issuer, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to a Borrower by a Lender or an
L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be
conclusive absent manifest error.


 


(d)                                 Evidence of
Payments.  As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


 


(e)                                  Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which a Borrower is resident for tax purposes, or any treaty to
which such jurisdiction is a party, with respect to payments hereunder or under
any other Loan Document shall deliver to such Borrower or, at the direction of
such Borrower, to the appropriate Governmental Authority, (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by such Borrower or the Administrative Agent, but in no
event any earlier than such Lender is reasonably able, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by a Borrower or the Administrative Agent, shall (i) deliver
such other documentation prescribed by applicable law or reasonably requested
by such Borrower or the Administrative Agent as will enable such Borrower or
the Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements and (ii) promptly
provide to the appropriate Governmental Authority such information as may be
required by such Governmental Authority or reasonably requested by the relevant
Borrower in order to assist the process of obtaining the aforementioned
exemption or reduction of withholding taxes.


 


Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to such Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of such Borrower or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:


 


(i)                                     duly completed
copies of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States is a party,


 


(ii)                                  duly completed copies
of Internal Revenue Service Form W-8ECI,


 


(iii)                               in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of
the Code, (x) a certificate to the effect that such Foreign Lender is


 


47

















 


not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of the applicable Borrower within
the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and
(y) duly completed copies of Internal Revenue Service Form W-8BEN, or


 


(iv)                              any other form prescribed
by applicable law as a basis for claiming exemption from or a reduction in
United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit
such Borrower to determine the withholding or deduction required to be made.


 


Without limiting the obligations of the
Lenders set forth above regarding delivery of certain forms and documents to
establish each Lender’s status for U.S. withholding tax purposes, each Lender
agrees promptly to deliver to the Administrative Agent or a Borrower, as the
Administrative Agent or such Borrower shall reasonably request, and in a timely
fashion, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such
Lender’s entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or
otherwise to establish such Lender’s status for withholding tax purposes in
such other jurisdiction.  Each Lender
shall promptly (i) notify the Administrative Agent of any change in
circumstances which would modify or render invalid any such claimed exemption
or reduction, and (ii) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any such jurisdiction that any
Borrower make any deduction or withholding for taxes from amounts payable to
such Lender.  Additionally, each of the
Borrowers shall promptly deliver to the Administrative Agent or any Lender, as
the Administrative Agent or such Lender shall reasonably request, and in a
timely fashion, such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and completed by
such Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.


 


Without limiting the generality of the
foregoing, in the event that a Borrower is resident for tax purposes in the
United Kingdom, any Foreign Lender entitled to benefits under the US/UK double
tax treaty shall deliver to its Internal Revenue Service center (with copies
delivered to the relevant Borrower and the Administrative Agent, in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the request of such Borrower or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so) duly
completed copies (in triplicate) of the United Kingdom Inland Revenue Form FD-13
(or such other form as may from time to time be prescribed by applicable law or
regulation) claiming exemption from withholding on account of United Kingdom
income tax pursuant to the US/UK double tax treaty.  The relevant Borrower and Foreign Lender
shall each provide all reasonable information and assistance to the Internal
Revenue Service and Inland Revenue on a timely basis in order efficiently to
process the relevant treaty claim, and shall keep each other (through the
Administrative Agent) informed of any matters relating to such claim, including
such Borrower providing a copy of any authority issued by the Inland Revenue
authorizing such Borrower to pay free and clear of any withholding on account
of United Kingdom income tax.


 


(f)                                    Treatment of
Certain Refunds.  If the
Administrative Agent, any Lender or any L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by any Borrower or with respect to which any Borrower
has paid


 


48

















 


additional amounts pursuant to this Section, it shall pay to such
Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or such L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that each Borrower, upon the request of the Administrative Agent, such Lender
or such L/C Issuer, agrees to repay the amount paid over to such Borrower (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the
event the Administrative Agent, such Lender or such L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection shall not be construed
to require the Administrative Agent, any Lender or such L/C Issuer to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to any Borrower or any other Person.


 


3.02                           Illegality.


 


If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars
or an Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the applicable Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate
Loans in the affected currency or currencies or, in the case of Eurocurrency
Rate Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
applicable Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the applicable Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay such Loans or, if applicable and such
Loans are denominated in Dollars, convert all Eurocurrency Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, the
applicable Borrower shall also pay accrued interest on the amount so prepaid or
converted.


 


3.03                           Inability to Determine Rates.


 


If the Required Lenders determine that for
any reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) deposits (whether in
Dollars or an Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable
amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan
(whether in Dollars or an Alternative Currency), or (c) the Eurocurrency
Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan does not adequately and fairly reflect the cost to the Lenders of
funding such Loan, the Administrative Agent will promptly notify GFI and all
Lenders.  Thereafter, the obligation of
the Lenders to make or maintain Eurocurrency Rate Loans in the affected
currency or currencies shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the applicable
Borrower may revoke any pending request for a Borrowing, conversion or
continuation of Eurocurrency Rate Loans in the affected currency or currencies
or, failing that, will be deemed to have converted such request into a request
for a Borrowing of Base Rate Loans in the amount specified therein.


 


49

















 


3.04                           Increased Costs.


 


(a)                                  Increased
Costs Generally.  If any Change in
Law shall:


 


(i)                                     impose, modify or
deem applicable any reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account of,
or credit extended or participated in by, any Lender (except (A) any
reserve requirement contemplated by Section 3.04(e) and (B) the
requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or any L/C Issuer;


 


(ii)                                  subject any Lender or
any L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurocurrency Rate Loan made by it, or change the basis of taxation of payments
to such Lender or such L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such Lender or such
L/C Issuer);


 


(iii)                               cause the Mandatory
Cost, as calculated hereunder, to no longer represent the cost to any Lender of
complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making,
funding or maintaining Eurocurrency Rate Loans denominated in Alternative
Currencies; or


 


(iv)                              impose on any Lender or
any L/C Issuer or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender
or any Letter of Credit or participation therein;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurocurrency Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or such L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or such L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or such L/C
Issuer, the applicable Borrower will pay to such Lender or such L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or such L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)                                 Capital
Requirements.  If any Lender or any
L/C Issuer determines that any Change in Law affecting such Lender or such L/C
Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or such L/C Issuer’s
capital or on the capital of such Lender’s or such L/C Issuer’s holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such L/C Issuer, to a level
below that which such Lender or such L/C Issuer or such Lender’s or such L/C
Issuer’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such L/C Issuer’s policies and the policies
of such Lender’s or such L/C Issuer’s holding company with respect to capital
adequacy), then from time to time the applicable Borrower will pay to such
Lender or such L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or such L/C Issuer or such Lender’s or
such L/C Issuer’s holding company for any such reduction suffered.


 


50

















 


(c)                                  Certificates for
Reimbursement.  A certificate of a
Lender or an L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or such L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to GFI shall be conclusive absent manifest error.  The applicable Borrower shall pay such Lender
or such L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d)                                 Delay in Requests.  Failure or delay on the part of any Lender or
any L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s or such L/C
Issuer’s right to demand such compensation, provided that no Borrower
shall be required to compensate a Lender or an L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or
such L/C Issuer, as the case may be, notifies GFI of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or such L/C
Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof).


 


(e)                                  Additional
Reserve Requirements.  GFI shall pay
(or cause the Foreign Borrower to pay) to each Lender, as long as such Lender
shall be required by the FRB to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to the actual costs of
such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in each
case shall be due and payable on each date on which interest is payable on such
Loan, provided the Company shall have received at least 10 days’ prior
notice (with a copy to the Administrative Agent) of such additional interest
from such Lender.  If a Lender fails to
give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such
notice.


 


3.05                           Funding Losses.


 


Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the applicable Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:


 


(a)                                  any continuation,
conversion, payment or prepayment of any Loan other than a Base Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b)                                 any failure by any
Borrower (for a reason other than the failure of such Lender to make a Loan) to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by such Borrower;


 


(c)                                  any
failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency on
its scheduled due date or any payment thereof in a different currency; or


 


(d)                                 any
assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the applicable Borrower
pursuant to Section 11.14.


 


51

















 


including any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable
to terminate the deposits from which such funds were obtained or from the
performance of any foreign exchange contract. 
The applicable Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.


 


For purposes of calculating amounts payable
by the Borrowers to the Lenders under this Section 3.05, each
Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at
the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in
the offshore interbank market for such currency for a comparable amount and for
a comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.


 


3.06                           Mitigation Obligations; Replacement of Lenders.


 


(a)                                  Designation of a
Different Lending Office.  If any
Lender or L/C Issuer requests compensation under Section 3.04, or
any Borrower is required to pay any additional amount to any Lender, any L/C
Issuer or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender or L/C Issuer gives a notice pursuant to Section 3.02,
then such Lender or L/C Issuer shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans or participations in
Letters of Credit hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the
case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be materially
disadvantageous to such Lender.  The
applicable Borrower(s) hereby agree to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)                                 Replacement of
Lenders.  If any Lender requests
compensation under Section 3.04, if any Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, or if any Lender
becomes a Defaulting Lender, GFI may replace such Lender in accordance with Section 11.14.


 


3.07                           Survival.


 


All of the Borrowers’ obligations under this Article III
shall survive termination of the Aggregate Revolving Commitments and repayment
of all other Obligations hereunder.


 


ARTICLE IV


 


GUARANTY


 


4.01                           The Guaranty.


 


(a)                                  Each of the Domestic
Guarantors hereby jointly and severally guarantees to each Lender, each
Affiliate of a Lender that enters into a Swap Contract or a Treasury Management
Agreement, and the Administrative Agent as hereinafter provided, as primary
obligor and not as surety, the prompt payment of the Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise) strictly in accordance with
the terms thereof.  The Domestic Guarantors
hereby further agree that if any of the Obligations are not paid in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise), the


 


52

















 


Domestic Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.


 


(b)                                 Each of the Foreign
Guarantors hereby jointly and severally guarantees to each Lender, each
Affiliate of a Lender that enters into a Swap Contract or a Treasury Management
Agreement with respect to the Foreign Obligations, and the Administrative Agent
as hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Foreign Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.  The Foreign Guarantors hereby further agree
that if any of the Foreign Obligations are not paid in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Foreign Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Foreign Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.


 


(c)                                  GFI hereby guarantees
to each Lender, each Affiliate of a Lender that enters into a Swap Contract or
a Treasury Management Agreement with respect to the Foreign Obligations, and
the Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Foreign Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof.  GFI hereby further agree that
if any of the Foreign Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), GFI will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time
of payment or renewal of any of the Foreign Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.


 


(d)                                 Notwithstanding any
provision to the contrary contained herein or in any other of the Loan
Documents or Swap Contracts, the obligations of each Guarantor under this
Agreement and the other Loan Documents shall be limited to an aggregate amount
equal to the largest amount that would not render such obligations subject to
avoidance under the Debtor Relief Laws or any comparable provisions of any
applicable Law.


 


4.02                           Obligations Unconditional.


 


(a)                                  The obligations of
the Domestic Guarantors under Section 4.01(a) are joint and
several, absolute, unconditional and irrevocable, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan
Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02(a) that the
obligations of the Domestic Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. 
Each Domestic Guarantor agrees that such Domestic Guarantor shall have
no right of subrogation, indemnity, reimbursement or contribution against the
Borrowers or any other Guarantor for amounts paid under this Article IV
until such time as the Obligations have been paid in full and the Commitments
have expired or terminated.


 


53

















 


(b)                                 The obligations of the
Foreign Guarantors under Section 4.01(b) are joint and several,
absolute, unconditional and irrevocable, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan
Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the
Foreign Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02(b) that the
obligations of the Foreign Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. 
Each Foreign Guarantor agrees that such Foreign Guarantor shall have no
right of subrogation, indemnity, reimbursement or contribution against the
Foreign Borrower or any other Guarantor for amounts paid under this Article IV
until such time as the Obligations have been paid in full and the Commitments
have expired or terminated.


 


(c)                                  The obligations of
GFI under Section 4.01(c) are absolute, unconditional and
irrevocable, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Loan Documents, Swap Contracts or Treasury
Management Agreements, or any other agreement or instrument referred to
therein, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Foreign Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section 4.02(c) that
the obligations of GFI hereunder shall be absolute and unconditional under any
and all circumstances.  GFI agrees that
it shall have no right of subrogation, indemnity, reimbursement or contribution
against the Foreign Borrower or any other Guarantor for amounts paid under this
Article IV until such time as the Obligations have been paid in
full and the Commitments have expired or terminated.


 


(d)                                 Without limiting the
generality of the foregoing subsections (a), (b) and (c),
it is agreed that, to the fullest extent permitted by law, the occurrence of
any one or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain absolute and unconditional as described
above:


 


(i)                                     at
any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;


 


(ii)                                  any
of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan Party and
any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be done or omitted;


 


(iii)                               the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents, any Swap Contract or Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Loan Documents, such
Swap Contracts or such Treasury Management Agreements shall be waived or any
other guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt with;


 


(iv)                              any
Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be
perfected; or


 


54

















 


(v)                                 any
of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall
be subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).


 


With respect to its obligations hereunder,
each Guarantor hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or
proceed against any Person under any of the Loan Documents, any Swap Contract
or any Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents, such Swap Contracts or such Treasury Management Agreements,
or against any other Person under any other guarantee of, or security for, any
of the Obligations.


 


4.03                           Reinstatement.


 


(a)                                  The obligations of
the Domestic Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Obligations is rescinded or
must be otherwise restored by any holder of any of the Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Domestic Guarantor agrees that it will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.


 


(b)                                 The obligations of the
Foreign Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Foreign Obligations is rescinded or must be
otherwise restored by any holder of any of the Foreign Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Foreign Guarantor agrees that it will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.


 


(c)                                  The obligations of
GFI under this Article IV shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of any Person in
respect of the Foreign Obligations is rescinded or must be otherwise restored
by any holder of any of the Foreign Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and GFI agrees that
it will indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees and expenses
of counsel) incurred by the Administrative Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted
a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.


 


4.04                           Certain Additional Waivers.


 


Without limiting the generality of the
provisions of this Article IV, each Guarantor further agrees that
such Guarantor shall have no right of recourse to security for the Obligations,
except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.


 


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4.05                           Remedies.


 


(a)                                  The Domestic
Guarantors agree that, to the fullest extent permitted by law, as between the
Domestic Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have
become automatically due and payable in the circumstances provided in said Section 9.02)
for purposes of Section 4.01(a) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Obligations being
deemed to have become automatically due and payable), the Obligations (whether
or not due and payable by any other Person) shall forthwith become due and
payable by the Domestic Guarantors for purposes of Section 4.01(a).  The Domestic Guarantors acknowledge and agree
that their obligations hereunder are secured in accordance with the terms of
the Collateral Documents and that the Lenders may exercise their remedies
thereunder in accordance with the terms thereof.


 


(b)                                 The Foreign Guarantors
agree that, to the fullest extent permitted by law, as between the Foreign
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, the Foreign Obligations may be declared to be forthwith due and
payable as provided in Section 9.02 (and shall be deemed to have
become automatically due and payable in the circumstances provided in said Section 9.02)
for purposes of Section 4.01(b) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Foreign Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Foreign
Obligations being deemed to have become automatically due and payable), the
Foreign Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Foreign Guarantors for purposes of Section 4.01(b).  The Foreign Guarantors acknowledge and agree
that their obligations hereunder are secured in accordance with the terms of
the Collateral Documents relating thereto and that the Lenders may exercise
their remedies thereunder in accordance with the terms thereof.


 


(c)                                  GFI agrees that, to
the fullest extent permitted by law, as between GFI, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the Foreign
Obligations may be declared to be forthwith due and payable as provided in Section 9.02
(and shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 9.02) for purposes of Section 4.01(c) notwithstanding
any stay, injunction or other prohibition preventing such declaration (or
preventing the Foreign Obligations from becoming automatically due and payable)
as against any other Person and that, in the event of such declaration (or the
Foreign Obligations being deemed to have become automatically due and payable),
the Foreign Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by GFI for purposes of Section 4.01(c).  GFI acknowledges and agrees that its
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.


 


4.06                           Rights of Contribution.


 


(a)                                  The
Domestic Guarantors agree among themselves that, in connection with payments
made hereunder, each Domestic Guarantor shall have contribution rights against
the other Domestic Guarantors as permitted under applicable law.  Such contribution rights shall be subordinate
and subject in right of payment to the obligations of such Domestic Guarantors
under the Loan Documents and no Domestic Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the
Commitments have terminated.


 


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(b)                                 The
Foreign Guarantors agree among themselves that, in connection with payments
made hereunder, each Foreign Guarantor shall have contribution rights against
the other Foreign Guarantors as permitted under applicable law.  Such contribution rights shall be subordinate
and subject in right of payment to the obligations of such Foreign Guarantors
under the Loan Documents and no Foreign Guarantor shall exercise such rights of
contribution until all Obligations have been paid in full and the Commitments
have terminated.


 


(c)                                  GFI
and the Foreign Guarantors agree among themselves that, in connection with
payments made hereunder, GFI shall have contribution rights against the Foreign
Guarantors as permitted under applicable law. 
Such contribution rights shall be subordinate and subject in right of
payment to the obligations of GFI under the Loan Documents and GFI shall not
exercise such rights of contribution until all Obligations have been paid in
full and the Commitments have terminated.


 


4.07                           Guarantee of Payment; Continuing Guarantee.


 


(a)                                  The guarantee given
by the Domestic Guarantors in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and shall apply to
all Obligations whenever arising.


 


(b)                                 The guarantee given by
the Foreign Guarantors in this Article IV is a guaranty of payment
and not of collection, is a continuing guarantee, and shall apply to all
Foreign Obligations whenever arising.


 


(c)                                  The guarantee given
by GFI in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Foreign
Obligations whenever arising.


 


ARTICLE V


 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


5.01                           Conditions of Initial Credit Extension.


 


The obligation of each L/C Issuer and each
Lender to make any initial Credit Extension hereunder on the Closing Date is
subject to satisfaction of the following conditions precedent:


 


(a)                                  Loan
Documents.  Receipt by the
Administrative Agent of executed counterparts of this Agreement and the other
Loan Documents, each properly executed by a Responsible Officer of the signing
Loan Party and, in the case of this Agreement, by each Lender.


 


(b)                                 Opinions
of Counsel. Receipt by the Administrative Agent of favorable opinions of
legal counsel to the Loan Parties (including, without limitation, the Foreign
Borrower), addressed to the Administrative Agent and each Lender, dated as of
the Closing Date, and in form and substance satisfactory to the Administrative
Agent.


 


(c)                                  Financial
Statements.  The Administrative Agent
shall have received:


 


(i)                                     consolidated and
consolidating financial statements of GFI and its Subsidiaries for the fiscal
year ended December 31, 2004, including balance sheets and income and cash
flow statements, in each case, audited by independent public accountants of
recognized national standing and prepared in conformity with GAAP;


 


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(ii)                                  unaudited
consolidated and consolidating financial statements of GFI and its Subsidiaries
for the three month period ending September 30, 2005, including balance
sheets and statements of income or operations, shareholders’ equity and cash
flows and unaudited consolidated financial statements of GFI and its
Subsidiaries for the calendar month ending October 31, 2005, including
balance sheets and statements of income or operations, shareholders’ equity and
cash flows (collectively, the “Interim Financial Statements”); and


 


(iii)                               projections
for GFI and its Subsidiaries for each twelve month period commencing on January 1,
2005 through December 31, 2010.


 


(d)                                 No
Material Adverse Change.  There shall
not have occurred a material adverse change since December 31, 2004 in the
business, assets, properties, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of GFI and its Subsidiaries
taken as a whole.


 


(e)                                  Litigation.  There shall not exist any action, suit,
investigation or proceeding pending or, to the knowledge of any Borrower,
threatened in any court or before an arbitrator or Governmental Authority that
could reasonably be expected to have a Material Adverse Effect.


 


(f)                                    Judgments.  There shall not exist any order, decree,
judgment, ruling or injunction that restrains the consummation of any of the
Loan Documents or the transactions contemplated hereunder.


 


(g)                                 Organization Documents, Resolutions, Etc.  Receipt
by the Administrative Agent of the following, each of which shall be originals
or facsimiles (followed promptly by originals), in form and substance
satisfactory to the Administrative Agent and its legal counsel:


 


(i)                                     copies of the
Organization Documents of each Loan Party certified (except as to the
Organizational Documents of the Foreign Loan Parties and as to a Domestic Loan
Party’s bylaws, if any) to be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its incorporation
or organization, where applicable, and, in all cases, certified by a secretary
or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;


 


(ii)                                  such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with
this Agreement and the other Loan Documents to which such Loan Party is a
party; and


 


(iii)                               such documents and
certifications as the Administrative Agent may reasonably require to evidence
that each Loan Party is duly organized or formed, and is validly existing, in
good standing (to the extent the concept of good standing exists in such
jurisdiction) and qualified to engage in business in its state of organization
or formation and each other jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.


 


(h)                                 Perfection
and Priority of Liens.  Receipt by
the Administrative Agent of the following:


 


58

















 


(i)                                     searches of
Uniform Commercial Code filings (or its equivalent) in the jurisdiction of
formation of such Loan Party or where a filing would need to be made in order
to perfect the Administrative Agent’s security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and evidence
that no Liens exist other than Liens to be immediately discharged with proceeds
of this facility and Permitted Liens;


 


(ii)                                  all certificates
evidencing any certificated Capital Stock pledged to the Administrative Agent
pursuant to the Pledge Agreements, together with duly executed in blank,
undated stock powers attached thereto (unless, with respect to the pledged
Capital Stock of any Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion under the
law of the jurisdiction of incorporation of such Person);


 


(iii)                               searches of ownership
of, and Liens on, intellectual property of each Loan Party in the appropriate
governmental offices; and


 


(iv)                              duly executed notices of
grant of security interest in the form required by the Security Agreements as
are necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the trademarks, copyrights,
patents, material licenses and other material intellectual property rights of
the Loan Parties.


 


(i)                                     Closing
Certificate.  Receipt by the
Administrative Agent of a certificate signed by a Responsible Officer of GFI
certifying that the conditions specified in Sections 5.01(d), (e),
and (f) and Sections 5.02(a), and (b) have been
satisfied.


 


(j)                                     Fees.  Receipt by the Administrative Agent and the
Lenders of any fees agreed by GFI to be paid on or before the Closing Date.


 


(k)                                  Attorney
Costs.  The Borrowers shall have paid
all Attorney Costs of the Administrative Agent to the extent invoiced at least
two (2) Business Days prior to the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute its reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing
proceedings.


 


(l)                                     Closing
Covenant Certificate.  The Administrative
Agent shall have received a certificate signed by a Responsible Officer of GFI
setting forth calculations satisfactory to the Administrative Agent calculating
(i) the Consolidated Fixed Charge Coverage Ratio for GFI’s most recently
ended four full fiscal quarters for which internal financial statements are
available at an amount of at least 1.25 to 1.0 on a Pro Forma Basis, (ii) the
Consolidated Leverage Ratio for GFI’s most recently ended four full fiscal
quarters for which internal financial statements are available at an amount of
no more than 2.25 to 1.0 on a Pro Forma Basis, and (iii) Consolidated
EBITDA for GFI’s most recently ended four full fiscal quarters for which
internal financial statements are available at an amount of at least $50,000,000,
in each case, after giving effect to this Credit Agreement.


 


(m)                               Funding
Indemnity Letter.  To the extent the
Loans to be made on the Closing Date are not Base Rate Loans, receipt by the
Administrative Agent from GFI of a letter in form and substance satisfactory to
the Administrative Agent indemnifying the Administrative Agent and each of the
Lenders against any loss, cost or expense incurred by it as a result of the
failure by GFI to borrow Eurocurrency Rate Loans on the date identified in the
applicable Loan Notice.


 


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(n)                                 Other.  Receipt by the Administrative Agent and the
Lenders of such other documents, instruments, agreements and information as
reasonably and timely requested by the Administrative Agent or any Lender,
including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership,
environmental matters, contingent liabilities and management of GFI and its
Subsidiaries.


 


Without
limiting the generality of the provisions of Section 10.04, for
purposes of determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


5.02                           Conditions to all Credit Extensions.


 


The obligation of each Lender to honor any
Request for Credit Extension (other than a Loan Notice requesting only a
conversion of Revolving Loans to the other Type, or a continuation of
Eurocurrency Rate Loans) is subject to the following conditions precedent:


 


(a)                                  The representations
and warranties of the Borrowers and each other Loan Party contained in Article VI
or any other Loan Document shall be true and correct on and as of the date of
such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and except that for purposes of this Section 5.02,
the representations and warranties contained in subsections (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.


 


(b)                                 No Default shall
exist, or would result from such proposed Credit Extension or from the
application thereof.


 


(c)                                  The Administrative
Agent and, if applicable, the applicable L/C Issuer shall have received a
Request for Credit Extension in accordance with the requirements hereof.


 


(d)                                 In
the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the Administrative Agent,
the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the applicable L/C Issuer (in the case of any Letter
of Credit to be denominated in an Alternative Currency) would make it
impracticable for such Credit Extension to be denominated in the relevant
Alternative Currency.


 


Each Request for Credit Extension (other than
a Loan Notice requesting only a conversion of Revolving Loans to the other Type
or a continuation of Eurocurrency Rate Loans) submitted by a Borrower shall be
deemed to be a representation and warranty that the conditions specified in Sections
5.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.


 


60

















 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


GFI represents and warrants to the
Administrative Agent and the Lenders that:


 


6.01                           Existence, Qualification and Power.


 


Each Loan Party (a) is a corporation,
partnership or limited liability company duly organized or formed, validly
existing and (to the extent the concept of good standing exists in such
jurisdiction) in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, and (c) is duly qualified and is licensed and (to the extent the
concept of good standing exists in such jurisdiction) in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license; except in each case referred to in clause (b)(i) or (c), to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


6.02                           Authorization; No Contravention.


 


The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, have been
duly authorized by all necessary corporate or other organizational action, and
do not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, or require any payment to be made under (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law
(including, without limitation, Regulation U, Regulation T or Regulation X
issued by the FRB) or any applicable Law or regulation in any relevant
jurisdiction concerning the giving of financial assistance by any Loan Party
for the acquisition or subscription of shares in it or concerning the protection
of the shareholders’ capital of such Loan Party.


 


6.03                           Governmental Authorization; Other Consents.


 


No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document other than
those that have already been obtained and are in full force and effect.


 


6.04                           Binding Effect.


 


This Agreement has been and each other Loan
Document to which such Loan Party is a party, when delivered hereunder will
have been duly executed and delivered by each Loan Party.  This Agreement and each other Loan Document
constitutes a legal, valid and binding obligation of each Loan Party that is
party thereto, enforceable against each such Loan Party in accordance with its
terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditor’s rights generally or by equitable principles relating to
enforceability.


 


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6.05                           Financial Statements; No Material Adverse Effect.


 


(a)                                  The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present in all material respects the
financial condition of GFI and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of GFI and its
Subsidiaries as of the date thereof, including material liabilities for taxes,
commitments and Indebtedness in accordance with GAAP.


 


(b)                                 The
Interim Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present in all material respects the
financial condition of GFI and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of GFI and its Subsidiaries as of the
date thereof, including material liabilities for taxes, material commitments
and Indebtedness in accordance with GAAP.


 


(c)                                  From
the date of the Audited Financial Statements to and including the Closing Date,
there has been no Disposition by GFI or any Subsidiary, or any Involuntary
Disposition, of any material part of the business or Property of GFI and its
Subsidiaries, taken as a whole, and no purchase or other acquisition by any of
them of any business or property (including any Capital Stock of any other
Person) material in relation to the consolidated financial condition of GFI and
its Subsidiaries, taken as a whole, in each case, which is not reflected in the
foregoing financial statements or in the notes thereto or has not otherwise
been disclosed in writing to the Administrative Agent on or prior to the
Closing Date or disclosed in any SEC filing.


 


(d)                                 The
financial statements delivered pursuant to Section 7.01(a), (b) and
(c) have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.01(a), (b) and (c))
and present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating financial condition, results of
operations and cash flows of GFI and its Subsidiaries as of such date and for
such periods.


 


(e)                                  Since
the date of the Audited Financial Statements, there has been no event or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.


 


6.06                           Litigation.


 


There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Loan Parties after due
and diligent investigation, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against GFI or any of its Subsidiaries
or against any of their properties or revenues that (a) purport to affect
or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or (b) could reasonably be expected to
have a Material Adverse Effect.


 


6.07                           No Default.


 


Neither GFI nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could reasonably be
expected to have a Material Adverse Effect. 
No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other
Loan Document.


 


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6.08                           Ownership of Property; Liens.


 


Each of GFI and its Subsidiaries has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property material to the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  The property of GFI and its Subsidiaries is
subject to no Liens, other than Permitted Liens.


 


6.09                           Environmental Compliance.


 


Except as would not reasonably be expected to
have a Material Adverse Effect:


 


(a)                                  Each of the
Facilities and all operations at the Facilities are in compliance with all
applicable Environmental Laws, and there is no violation of any Environmental
Law with respect to the Facilities or the Businesses, and there are no
conditions relating to the Facilities or the Businesses that could give rise to
liability under any applicable Environmental Laws.


 


(b)                                 None of the Facilities
contains, or has previously contained, any Hazardous Materials at, on or under
the Facilities in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws.


 


(c)                                  Neither GFI nor any
Subsidiary has received any written notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge that any such
notice will be received or is being threatened in writing.


 


(d)                                 Hazardous Materials
have not been transported or disposed of from the Facilities, or generated,
treated, stored or disposed of at, on or under any of the Facilities or any
other location, in each case by or on behalf of GFI or any Subsidiary in
violation of, or in a manner that would be reasonably likely to give rise to
liability under, any applicable Environmental Law.


 


(e)                                  No judicial
proceeding or governmental or administrative action is pending or, to the
knowledge of the Responsible Officers of the Loan Parties, threatened, under
any Environmental Law to which GFI or any Subsidiary is or (to such knowledge)
will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to GFI, any Subsidiary, the Facilities or the Businesses.


 


(f)                                    There has been no
release or, threat of release of Hazardous Materials at or from the Facilities,
or arising from or related to the operations (including disposal) of GFI or any
Subsidiary in connection with the Facilities or otherwise in connection with
the Businesses, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.


 


6.10                           Insurance.


 


The properties of GFI and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of either Borrower, in such amounts, with such deductibles and
covering such risks as are considered reasonable by management of such
Person.  Set forth on Schedule 6.10
is a summary of the insurance coverage of the Loan Parties as in effect on the
Closing Date.


 


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6.11                           Taxes.


 


GFI and its Subsidiaries have filed all
material federal, state and other tax returns and reports required to be filed,
and have paid all material federal, state and other taxes, assessments, fees
and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against
GFI or any Subsidiary that would, if made, have a Material Adverse Effect.


 


6.12                           ERISA Compliance.


 


(a)                                  Each
Plan is in compliance with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state Laws except to the extent that
noncompliance has not resulted in and would not reasonably be expected to
result in a Material Adverse Effect. 
Each Plan that is intended to qualify under Section 401(a) of
the Internal Revenue Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Loan Parties,
nothing has occurred which would prevent, or cause the loss of, such
qualification except to the extent the event has not resulted in or would not
reasonably be expected to result in a Material Adverse Effect.


 


(b)                                 No ERISA Event has
occurred or is reasonably expected to occur that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


 


6.13                           Subsidiaries.


 


Set forth on Schedule 6.13 is a
complete and accurate list as of the Closing Date of each Subsidiary, together
with (i) jurisdiction of formation, (ii) number of shares of each
class of Capital Stock outstanding, and (iii) number and percentage of
outstanding shares of each class owned (directly or indirectly) by GFI or any
Subsidiary.  Set forth on Schedule 6.13
is a complete and accurate list as of December 31, 2005 of the number and
effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto of
each Subsidiary.  The outstanding Capital
Stock of each Subsidiary is validly issued, fully paid and non-assessable.


 


6.14                           Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.


 


(a)                                  Neither
Borrower is engaged, nor will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulations U and T issued by the FRB), or extending credit for the
purpose of purchasing or carrying margin stock. 
Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets
(either of any Borrower only or of the Borrowers and their Subsidiaries on a
consolidated basis) subject to the provisions of Section 8.01 or Section 8.05
or subject to any restriction contained in any agreement or instrument between
any Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 9.01(f) will be
margin stock.


 


(b)                                 None
of the Borrowers, any Person Controlling a Borrower, or any Subsidiary (i) is
a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company,”
within the meaning of the Public Utility


 


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Holding Company Act of 1935, or (ii) is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.


 


6.15                           Disclosure.


 


Each Loan Party has disclosed to the
Administrative Agent and the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and
all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.


 


6.16                           Compliance with Laws.


 


GFI and each Subsidiary is in compliance with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.


 


6.17                           Intellectual Property; Licenses, Etc.


 


GFI and its Subsidiaries own, or possess the
legal right to use, all of the trademarks, copyrights, patents, material
licenses and other material intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses.  Set forth on Schedule 6.17
is a list of all IP Rights registered or pending registration with the United
States Copyright Office, the United States Patent and Trademark Office, the
United Kingdom Patent Office or the European Community Trademark Office and
owned by each Loan Party as of the Closing Date.  Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, no claim
has been asserted and is pending by any Person challenging or questioning the
use of any IP Rights or the validity or effectiveness of any IP Rights, nor
does any Loan Party know of any such claim, and, to the knowledge of the
Responsible Officers of the Loan Parties, the use of any IP Rights by GFI or
any Subsidiary or the granting of a right or a license in respect of any IP
Rights from GFI or any Subsidiary does not infringe on the rights of any
Person.  None of the IP Rights owned by
any of the Loan Parties is subject to any licensing agreement or similar
arrangement other than (a) licenses of software in the ordinary course of
business to customers, value added resellers and distributors, (b) licenses
of trademarks and tradenames in the ordinary course of business to value added
resellers and distributors, (c) as set forth on Schedule 6.17
or (d) as otherwise not prohibited hereunder.


 


6.18                           Solvency.


 


The Loan Parties are Solvent on a
consolidated basis.


 


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6.19                           Perfection of Security Interests in the Collateral.


 


The Collateral Documents create valid
security interests in, and Liens on, the Collateral purported to be covered
thereby, which security interests and Liens are currently perfected security
interests and Liens, prior to all other Liens other than Permitted Liens.


 


6.20                           Legal Name.


 


The exact legal name and state of
organization of each Loan Party is as set forth on the signature pages hereto
or on the signature pages of any Joinder Agreement delivered in connection
herewith.


 


6.21                           Brokers’ Fees.


 


Except for the Fee Letter, neither GFI nor
any Subsidiary has any obligation to any Person in respect of any finder’s,
broker’s, investment banking or other similar fee in connection with any of the
Credit Extensions contemplated under the Loan Documents.


 


6.22                           Labor Matters.


 


There are no collective bargaining agreements
or Multiemployer Plans covering the employees of GFI or any Subsidiary (other
than any employees in France) as of the Closing Date and neither GFI nor any
Subsidiary has suffered any strikes, material walkouts, material work stoppages or
other material labor difficulty within the last five years.


 


6.23                           Representations as to Foreign Obligations.


 


The
Foreign Borrower and each Foreign Guarantor represents and warrants to the
Administrative Agent and the Lenders that:


 


(a)                                  Such Foreign Loan Party is subject to
civil and commercial Laws with respect to its obligations under this Agreement
and the other Loan Documents to which it is a party (collectively as to such
Foreign Loan Party, the “Applicable Foreign Loan Party Documents”), and
the execution, delivery and performance by such Foreign Loan Party of the
Applicable Foreign Loan Party Documents constitute and will constitute private
and commercial acts and not public or governmental acts.  Neither such Foreign Loan Party nor any of
its property has any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the
jurisdiction in which such Foreign Loan Party is organized and existing in
respect of its obligations under the Applicable Foreign Loan Party Documents.


 


(b)                                 The Applicable Foreign
Loan Party Documents are in proper legal form under the Laws of the
jurisdiction in which such Foreign Loan Party is organized and existing for the
enforcement thereof against such Foreign Loan Party under the Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Loan Party Documents.  It is not necessary to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Loan Party Documents that the Applicable Foreign Loan Party
Documents be filed, registered or recorded with, or executed or notarized
before, any court or other authority in the jurisdiction in which such Foreign
Loan Party is organized and existing or that any registration charge or stamp
or similar tax be paid on or in respect of the Applicable Foreign Loan Party
Documents or any other document, except for (i) any such filing,
registration, recording, execution or notarization as has been made or is not
required to be made until the Applicable Foreign Loan Party Document or any
other document is sought to be enforced and (ii) any charge or tax as has
been timely paid.


 


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(c)                                  There is no tax,
levy, impost, duty, fee, assessment or other governmental charge, or any deduction
or withholding, imposed by any Governmental Authority in or of the jurisdiction
in which such Foreign Loan Party is organized and existing either (i) on
or by virtue of the execution or delivery of the Applicable Foreign Loan Party
Documents or (ii) on any payment to be made by such Foreign Loan Party
pursuant to the Applicable Foreign Loan Party Documents, except as has been
disclosed to the Administrative Agent.


 


(d)                                 The execution,
delivery and performance of the Applicable Foreign Loan Party Documents
executed by such Foreign Loan Party are, under applicable foreign exchange
control regulations of the jurisdiction in which such Foreign Loan Party is
organized and existing, not subject to any notification or authorization except
(i) such as have been made or obtained or (ii) such as cannot be made
or obtained until a later date (provided that any notification or
authorization described in clause (ii) shall be made or obtained as soon
as is reasonably practicable).


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Domestic Loan Parties shall and shall cause each Subsidiary to:


 


7.01                           Financial Statements.


 


Deliver to the Administrative Agent (who shall promptly
furnish to the other Lenders), in form and detail
satisfactory to the Administrative Agent:


 


(a)                                  upon the earlier of the date that is 90 days
after the end of each fiscal year of GFI or
within two Business Days of the date such information is filed with the SEC,
a consolidated and consolidating balance sheet of GFI and its Subsidiaries as
at the end of such fiscal year, the related consolidated and consolidating
statements of income or operations, and the related consolidated shareholders’
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by (i) a
report of an independent certified public accountant of nationally recognized
standing, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception
as to the scope of such audit and (ii) to the extent filed with the SEC, a
copy of the attestation report filed with the SEC of such independent certified
public accountant of nationally recognized standing as to GFI’s internal
controls pursuant to Section 404 of Sarbanes-Oxley;


 


(b)                                 upon the earlier of the date that is 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
GFI or within two Business Days of the
date such information is filed with the SEC, a consolidated and
consolidating balance sheet of GFI and its Subsidiaries as at the end of such
fiscal quarter, the related consolidated and consolidating statements of income
or operations, and the related consolidated shareholders’ equity and cash flows
for such fiscal quarter and for the portion of GFI’s fiscal year then ended,
setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and


 


67

















 


certified by a Responsible Officer of GFI as
fairly presenting the financial condition, results of operations, shareholders’
equity and cash flows of GFI and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes
and such consolidating statements to be certified by a Responsible Officer of GFI
to the effect that such statements are fairly stated in all material respects
when considered in relation to the consolidated financial statements of GFI and
its Subsidiaries;


 


(c)                                  as
soon as available, but in any event within 30 days after the end of each
calendar month of each fiscal year of GFI (other than for the calendar months
ending March 31, June 30 and September 30 of each fiscal year),
a consolidated balance sheet of GFI and its Subsidiaries as at the end of such
calendar month, and the related consolidated statements of income or operations
for such calendar month, setting forth in each case in comparative form the
figures for the corresponding calendar month of the previous fiscal year, all
in reasonable detail and fairly presenting in all material respects the
financial condition and results of operations of GFI and its Subsidiaries,
subject only to normal quarterly and year-end audit adjustments and the absence
of footnotes;


 


(d)                                 as
soon as available, but in any event within 30 days after the end of each fiscal
year of GFI, forecasts prepared by management of GFI, in form reasonably
satisfactory to the Administrative Agent and the Required Lenders, of
statements of income or operations of GFI and its Subsidiaries on a monthly
basis for the immediately following fiscal year (including the fiscal year in
which the Maturity Date occurs);


 


(e)                                  as
soon as available, but in any event within 30 days after the end of each fiscal
quarter of GFI, (i) a copy of any Focus Report filed with the National Association
of Securities Dealers by GFI or any of its Subsidiaries and (ii) a list of
counterparties for which they have mark-to-market limits and/or exposure of at
least $100,000; and


 


(f)                                    promptly
after any request of the Administrative Agent, any reports delivered to any
Governmental Authorities by GFI or any of its Subsidiaries.


 


As to any information contained in materials
furnished pursuant to Section 7.02(d), GFI shall not be separately
required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of GFI to
furnish the information and materials described in subsections (a) and (b) above
at the times specified therein.


 


7.02                           Certificates; Other Information.


 


Deliver to the Administrative Agent (who shall promptly
furnish to the other Lenders), in form and detail
satisfactory to the Administrative Agent:


 


(a)                                  concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and
(b), a duly completed Compliance Certificate signed by a Responsible
Officer of GFI;


 


(b)                                 promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of either
Borrower by independent accountants in connection with the accounts or books of
such Borrower or any Subsidiary, or any audit of any of them;


 


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(c)                                  concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and
(b), a certificate of a Responsible Officer of GFI containing
information regarding the amount of all Dispositions, Involuntary Dispositions,
and Equity Issuances that occurred during the period covered by such financial
statements;


 


(d)                                 promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of GFI, and
copies of all annual, regular, periodic and special reports and registration
statements which GFI may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934 or to a holder of any
Indebtedness owed by GFI or any Subsidiary in its capacity as such a holder and
not otherwise required to be delivered to the Administrative Agent pursuant
hereto;


 


(e)                                  promptly
after the furnishing thereof, copies of any statement or report furnished to
any holder of debt securities of any Loan Party or any Subsidiary thereof
pursuant to the terms of any indenture, loan or credit or similar agreement and
not otherwise required to be furnished to the Lenders pursuant to Section 7.01
or any other clause of this Section 7.02;


 


(f)                                    promptly,
and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S.
jurisdiction) concerning any investigation or possible investigation or other
inquiry by such agency regarding financial or other operational results of any
Loan Party or any Subsidiary thereof;


 


(g)                                 concurrently
with the delivery of the financial statements referred to in Section 7.01(a),
a certificate of a Responsible Officer of GFI (i) listing (A) all
applications, if any, for Copyrights, Patents or Trademarks (each such term as
defined in the Security Agreements) made since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date), (B) all
issuances of registrations or letters on existing applications for Copyrights,
Patents and Trademarks (each such term as defined in the Security Agreements)
received since the date of the prior certificate (or, in the case of the first
such certificate, the Closing Date), (C) all material Trademark Licenses,
Copyright Licenses and Patent Licenses (each such term as defined in the
Security Agreements) that are reasonably necessary for the operation of the
Businesses entered into since the date of the prior certificate (or, in the
case of the first such certificate, the Closing Date) and (D) all such
Copyrights, Patents or Trademarks that are subject to a licensing or franchise
agreement, and (ii) attaching the insurance binder or other evidence of
insurance for any insurance coverage of GFI or any Subsidiary that was renewed,
replaced or modified during the period covered by such financial statements;
and


 


(h)                                 promptly,
such additional information regarding the business, financial or corporate
affairs of GFI or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


Documents required to be delivered pursuant
to Section 7.01(a), (b) or (c) or Section 7.02(d) (to
the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which GFI posts such documents,
or provides a link thereto on GFI’s website on the Internet at the website
address listed on Schedule 11.02; or (ii) on which such
documents are posted on GFI’s behalf on IntraLinks/IntraAgency or another
relevant website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) GFI shall deliver
paper copies of such documents to the Administrative Agent or any Lender that
requests GFI to deliver such paper copies until a written request


 


69

















 


to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) GFI shall notify the Administrative Agent (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. 
Notwithstanding anything contained herein, in every instance GFI shall
be required to provide paper copies of the Compliance Certificates required by Section 7.02(a) to
the Administrative Agent.  Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
GFI with any such request for delivery, and each Lender shall be solely
responsible for requesting from the Administrative Agent delivery to it or
maintaining its copies of such documents.


 


Each
Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS
will make available to the Lenders and the L/C Issuers materials and/or
information provided by or on behalf of such Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to any
Borrower or its securities) (each, a “Public Lender”).  Each Borrower hereby agrees that (w) if it
decides, in its sole discretion, to mark any Borrower Materials “PUBLIC”, it
shall use commercially reasonable efforts to clearly and conspicuously mark
such Borrower Materials “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized
the Administrative Agent, BAS, the L/C Issuers and the Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to the Borrowers or their respective securities for purposes of United
States Federal and state securities laws (provided, however, that
to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 11.07); (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and BAS
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public
Investor.”  Notwithstanding the
foregoing, no Borrower shall be under any obligation to mark any Borrower
Materials “PUBLIC.”


 


7.03                           Notices.


 


Promptly notify the Administrative Agent and
each Lender:


 


(a)                                  of
the occurrence of any Default.


 


(b)                                 of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or
any default under, a Contractual Obligation of GFI or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between GFI or any
Subsidiary and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding affecting GFI or
any Subsidiary, including pursuant to any applicable Environmental Laws (and in
the case of the preceding clauses (i) through (iii), and for the avoidance
of doubt, only to the extent any matter has resulted in or could reasonably be
expected to result in a Material Adverse Effect).


 


(c)                                  of
the occurrence of any ERISA Event.


 


(d)                                 of
any material change in accounting policies or financial reporting practices by
GFI or any Subsidiary.


 


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Each notice pursuant to this Section shall
be accompanied by a statement of a Responsible Officer of GFI setting forth
details of the occurrence referred to therein and stating what action GFI has
taken and proposes to take with respect thereto.  Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


7.04                           Payment of Obligations.


 


Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all
material tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by GFI or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property,
and (c) all material Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.


 


7.05                           Preservation of Existence, Etc.


 


(a)  Preserve, renew and maintain in
full force and effect its legal existence and (to the extent the concept of
good standing exists in such jurisdiction) good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect; and
preserve or renew all of its material registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.


 


7.06                           Maintenance of Properties.


 


(a)  Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect and (c) use the standard of care typical in the industry in
the operation and maintenance of its facilities.


 


7.07                           Maintenance of Insurance.


 


Maintain in full force and effect insurance
(including worker’s compensation insurance, liability insurance, casualty
insurance and business interruption insurance) with financially sound and
reputable insurance companies not Affiliates of a Borrower, in such amounts,
with such deductibles and covering such risks as are considered reasonable by
management of such Person.


 


7.08                           Compliance with Laws.


 


Comply with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


 


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7.09                           Books and Records.


 


(a)  Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of GFI or such Subsidiary, as the case may be;
and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over GFI or such Subsidiary, as the case may be.


 


7.10                           Inspection Rights.


 


Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, at
the expense of the Administrative Agent or such Lender and at such reasonable
times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to GFI; provided, however,
that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of GFI at any time during normal business
hours and upon reasonable advance notice.


 


7.11                           Use of Proceeds.


 


Use the proceeds of the Credit Extensions to
finance working capital, to make capital expenditures, acquisitions and for
other lawful corporate purposes, provided that in no event shall the
proceeds of the Credit Extensions be used in contravention of any Law or of any
Loan Document.


 


7.12                           Additional
Subsidiaries.


 


(a)                                  Promptly,
and in any event, not later than forty-five (45) days, after the acquisition or
formation of any Subsidiary, notify the Administrative Agent thereof in
writing, together with (i) jurisdiction of formation, (ii) number of
shares of each class of Capital Stock outstanding, (iii) number and
percentage of outstanding shares of each class owned (directly or
indirectly) by any Borrower or any Subsidiary, (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto and (v) a
statement as to whether such Subsidiary is a Material Subsidiary; and


 


(b)                                 Promptly,
and in any event, not later than forty-five (45) days, (i) after the
acquisition or formation of any Domestic Subsidiary that is a Material
Subsidiary (other than a Regulated Subsidiary) or (ii) the date on which
any Domestic Subsidiary becomes a Material Subsidiary (other than a Regulated
Subsidiary), cause such Person to (A) become a Domestic Guarantor by
executing and delivering to the Administrative Agent a Joinder Agreement or
such other documents as the Administrative Agent shall reasonably deem
appropriate for such purpose, and (B) deliver to the Administrative Agent
documents of the types referred to in Sections 5.01(g) and (h) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (A)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.


 


(c)                                  Promptly,
and in any event, not later than forty-five (45) days, (i) after the
acquisition or formation of any Foreign Subsidiary that is a Material
Subsidiary (other than a Regulated Subsidiary) or (b) the date on which
any Foreign Subsidiary becomes a Material Subsidiary (other than a Regulated
Subsidiary), cause such Person to (A) become a Foreign


 


72

















 


Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other documents as the
Administrative Agent shall reasonably deem appropriate for such purpose, and (B) deliver
to the Administrative Agent such security documents as the Administrative Agent
shall reasonably request (consistent with those provided by Foreign
Subsidiaries on the Closing Date) and such documents of the types referred to
in Sections 5.01(g) and (h) and favorable opinions of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (A)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


(d)                                 If at any time any Domestic Subsidiary that is
not a Domestic Guarantor provides a guarantee of (i) any Person’s obligations
with respect to any Subordinated Indebtedness or (ii) any Indebtedness
permitted pursuant to Section 8.03(i), then promptly (and in any
event within five (5) days), cause such Subsidiary to (A) become a
Domestic Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other documents as the Administrative Agent shall
reasonably deem appropriate for such purpose, and (B) deliver to the
Administrative Agent such security documents as the Administrative Agent shall
reasonably request (consistent with those provided by Domestic
Subsidiaries on the Closing Date) and such
documents of the types referred to in Section 5.01(g) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (A)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.


 


(e)                                  If at any time any Foreign Subsidiary that is not
a Foreign Guarantor provides a guarantee of (i) any Person’s obligations
with respect to any Subordinated Indebtedness or (ii) any Indebtedness
permitted pursuant to Section 8.03(i), then promptly (and in any
event within five (5) days), cause such Subsidiary to (A) become a
Foreign Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other documents as the Administrative Agent shall
reasonably deem appropriate for such purpose, and (B) deliver to the
Administrative Agent such security documents as the Administrative Agent shall
reasonably request (consistent with those provided by Foreign
Subsidiaries on the Closing Date) and such
documents of the types referred to in Section 5.01(g) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (A)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.


 


7.13                           ERISA Compliance.


 


Do, and cause each of its ERISA Affiliates to
do, each of the following: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Internal Revenue
Code and other federal or state law; and (b) cause each Plan that is
qualified under Section 401(a) of the Internal Revenue Code to
maintain such qualification, except in each case referenced in clause (a) or
(b), to the extent that the failure to do so could not reasonably be expected
to have a Material Adverse Effect.


 


7.14                           Pledged Assets.


 


(a)                                  Cause each Domestic
Loan Party to (subject to the time periods permitted in Section 7.12,
to any exceptions in the Collateral Documents and to the limitations on Liens
in the next sentence) (i) cause all of its owned and leased personal
Property to be subject at all times to first priority, perfected Liens in favor
of the Administrative Agent to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such Property
acquired subsequent to the Closing Date, such other additional security
documents as the Administrative Agent shall reasonably request, subject in any


 


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case to Permitted Liens and (ii) deliver such other documentation
as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing
statements, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
Administrative Agent’s Liens thereunder) and other items of the types required
to be delivered pursuant to Section 5.01(h), all in form, content
and scope reasonably satisfactory to the Administrative Agent. The Domestic
Loan Parties will cause (a) 100% of the issued and outstanding Capital
Stock of each Domestic Subsidiary that is a Material Subsidiary and (b) 65%
(or such greater percentage that, due to a change in an applicable Law after
the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United
States federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary’s United States parent and (2) could not reasonably be
expected to cause any adverse tax consequences) of each class of the
issued and outstanding Capital Stock (and in any event no more than 65% of the
voting stock in the aggregate) in each Foreign Subsidiary that is a Material
Subsidiary directly owned by GFI or any Domestic Subsidiary to be subject at
all times to a first priority, perfected Lien in favor of the Administrative
Agent, subject to Permitted Liens, pursuant to the terms and conditions of the
relevant Collateral Documents or such other security documents as the
Administrative Agent shall reasonably request and no other Capital Stock of any
Subsidiary of any Domestic Loan Party shall be subject to any Lien in favor of
the Administrative Agent.


 


(b)                                 Cause each Foreign
Loan Party to (subject to the time periods permitted in Section 7.12,
to any exceptions in the Collateral Documents and to the limitations on Liens
in the next sentence) (i) cause all of its owned and leased personal
Property to be subject at all times to first priority, perfected Liens in favor
of the Administrative Agent to secure the Foreign Obligations pursuant to the
terms and conditions of the relevant Collateral Documents or, with respect to
any such Property acquired subsequent to the Closing Date, such other
additional security documents as the Administrative Agent shall reasonably
request, subject in any case to Permitted Liens and (ii) deliver such security documents as the Administrative
Agent shall reasonably request (consistent with those provided by
Foreign Subsidiaries on the Closing Date) and
such other documentation as the Administrative Agent may reasonably
request in connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, certified resolutions and other
organizational and authorizing documents of such Person, favorable opinions of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above and the perfection of the Administrative Agent’s Liens thereunder) and
other items of the types required to be delivered pursuant to Section 5.01(h),
all in form, content and scope reasonably satisfactory to the Administrative
Agent. The Foreign Loan Parties will cause 100% of the issued and outstanding
Capital Stock of each Domestic Subsidiary that is a Material Subsidiary and
100% of the issued and outstanding Capital Stock of each Foreign Subsidiary
that is a Material Subsidiary directly owned by any Foreign Loan Party to be
subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the terms and conditions of the Foreign Pledge
Agreements (to secure the Foreign Obligations) or such other security documents
as the Administrative Agent shall reasonably request and no other Capital Stock
of any Subsidiary of any Foreign Loan Party shall be subject to any Lien in
favor of the Administrative Agent.


 


7.15                           Insurance Certificates. 


 


Provide the Administrative Agent with copies
of insurance policies or certificates of insurance of the Loan Parties
evidencing liability and casualty insurance meeting the requirements set forth
in the Loan Documents, including, but not limited to, naming the Administrative
Agent as additional insured (in the case of liability insurance) or loss payee
(in the case of hazard insurance) on behalf of the Lenders.


 


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ARTICLE VIII


 


NEGATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, no Domestic Loan Party shall, nor shall it permit any Subsidiary
to, directly or indirectly:


 


8.01                           Liens.


 


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 the following:


 


(a)                                  Liens
pursuant to any Loan Document;


 


(b)                                 Liens
existing on the date hereof and listed on Schedule 8.01 and any
renewals, refinancings or extensions thereof, provided that (i) the
property covered thereby is not increased, (ii) the amount secured or
benefited thereby is not increased except by an amount equal to a reasonable
premium or other amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder, (iii) the direct or contingent obligor
with respect thereto is not changed and (iv) any renewal, refinancings or
extension of the obligations secured or benefited thereby is permitted by Section 8.03(b);


 


(c)                                  Liens
(other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;


 


(d)                                 statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only obligations that are not overdue by
more than sixty (60) days and no action has been taken to enforce the same or
that are being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established;


 


(e)                                  (i) pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA or (ii) any lien arising by operation
of law and any lien arising in the ordinary course of trading (including any
lien on a brokerage or trading account of GFI or any Subsidiary where such lien
arises in the ordinary course of business of trading, including, for the
avoidance of doubt, any lien in favor of Euroclear);


 


(f)                                    deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business;


 


(g)                                 easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person;


 


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(h)                                 Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 9.01(i) or securing appeal or other
surety bonds related to such judgments;


 


(i)                                     Liens
securing Indebtedness permitted under Section 8.03(e); provided
that (i) such Liens do not at any time encumber any Property other than
the Property financed by such Indebtedness, (ii) the Indebtedness secured
thereby does not exceed the cost of the Property being acquired on the date of
acquisition and (iii) such Liens attach to such Property concurrently with
or within ninety days after the acquisition thereof;


 


(j)                                     leases
or subleases granted to others not interfering in any material respect with the
business of GFI or any of its Subsidiaries;


 


(k)                                  any
interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Agreement;


 


(l)                                     normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;


 


(m)                               Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;


 


(n)                                 Liens
of sellers of goods to GFI and any of its Subsidiaries arising under Article 2
of the Uniform Commercial Code or similar provisions of applicable law in
the ordinary course of business, covering only the goods sold and securing only
the unpaid purchase price for such goods and related expenses;


 


(o)                                 Liens
securing Indebtedness permitted hereunder not to exceed $15,000,000 in the
aggregate on Properties acquired pursuant to Section 8.02(f) or
otherwise approved in writing by the Required Lenders in their sole discretion;
and


 


(p)                                 other
Liens which secure Indebtedness of GFI and its Subsidiaries; provided
that the aggregate principal amount of Indebtedness secured thereby shall not
at any time exceed $5,000,000.


 


8.02                           Investments.


 


Make any Investments, except:


 


(a)                                  Investments
held by GFI or such Subsidiary in the form of cash or Cash Equivalents;


 


(b)                                 Investments
existing as of the Closing Date and set forth in Schedule 8.02;


 


(c)                                  (i) Investments
by any Domestic Loan Party in any other Domestic Loan Party and (ii) Investments
by any Foreign Loan Party in any other Loan Party;


 


(d)                                 Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of


 


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business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(e)                                  Guarantees
permitted by Section 8.03;


 


(f)                                    Permitted
Acquisitions;


 


(g)                                 deposits
by Regulated Subsidiaries with, or pledges of cash by Regulated Subsidiaries
to, clearing agencies, including Euroclear, in the ordinary course of business;


 


(h)                                 advances
or loans to employees, to the extent permitted by applicable Law and to the
extent repaid within twelve (12) months of the date of such advance or loan,
not to exceed $5,000,000 in the aggregate at any one time outstanding; provided,
however, (i) GFI and its Subsidiaries may make advances or
loans to employees in-lieu of sign-on bonuses and (ii) GFI and its
Subsidiaries may make advances or loans to employees in-lieu of
performance/discretionary bonuses including for the purpose of such employee
purchasing equity interests in such Person in an aggregate amount not to exceed
$10,000,000 in any fiscal year plus the unused amount available for such
advances or loans in-lieu of performance/discretionary bonuses not used in any
preceding fiscal year;


 


(i)                                     Investments in
securities permitted by Section 8.14;


 


(j)                                     Investments
in Regulated Subsidiaries necessary to comply with statutory capital
requirements under applicable Laws;


 


(k)                                  the
payment by GFI or any of its Subsidiaries of the ordinary course expenses of
any other Subsidiary of GFI; provided that any such expenses are reimbursable
to GFI or such applicable Subsidiary;


 


(l)                                     (i) the
acquisition by GFI LLC of any shares of GFInet Europe Limited, (ii) the
acquisition by GFI Brokers Limited and/or GFI Securities Limited
of all or any portion of the assets comprising the name give-up
broker business and/or the matched principal broker business of GFInet Europe
Limited, (iii) the acquisition by GFI LLC of any shares of the
Foreign Borrower, (iv) the Investment by GFInet Europe Limited in GFI
Brokers Limited and/or GFI Securities Limited in connection with the transfer
of all or any portion of the assets comprising the name give-up
broker business and/or the matched principal broker business of GFInet Europe
Limited to GFI Brokers Limited and/or GFI Securities Limited and (v) the
loan by GFInet Europe Limited to Fenics Software in connection with the
transfer of the commercial division revenue stream of GFInet Europe Limited to
Fenics Software; and


 


(m)                               other
Investments not exceeding $5,000,000 in the aggregate at any one time
outstanding.


 


8.03                           Indebtedness.


 


Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)                                  Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
of GFI and its Subsidiaries set forth in Schedule 8.03 and any
renewals, refinancings and extensions thereof on terms and conditions not
materially less favorable


 


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to the applicable debtor(s); provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;


 


(c)                                  intercompany
Indebtedness permitted under Section 8.02;


 


(d)                                 obligations
(contingent or otherwise) of GFI or any Subsidiary existing or arising under
any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of mitigating risks associated with liabilities, commitments, investments,
assets, or property held or reasonably anticipated by such Person, or changes
in the value of securities issued by such Person, and not for purposes of
speculation or taking a “market view;” and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party;


 


(e)                                  purchase
money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by GFI or any of its Subsidiaries to
finance the construction, improvement or purchase of fixed assets and renewals,
refinancings and extensions thereof, provided that (i) the total of
all such Indebtedness for all such Persons taken together shall not exceed an
aggregate principal amount of $10,000,000 at any one time outstanding; (ii) such
Indebtedness when incurred shall not exceed the purchase price of the asset(s)
financed; and (iii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon at the
time of such refinancing;


 


(f)                                    Indebtedness
in an aggregate amount not to exceed $15,000,000 incurred or assumed in connection
with a Permitted Acquisition; provided  that, (i) such
Indebtedness is recourse only to the entity or assets so acquired and (ii) GFI
shall have demonstrated that after giving effect to any such Permitted
Acquisition and the incurrence or assumption of the related Indebtedness on a
Pro Forma Basis, GFI is in compliance with all of the covenants set forth in Section 8.11;


 


(g)                                 endorsements
in the ordinary course of business of negotiable instruments for deposit or
collection;


 


(h)                                 Subordinated
Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any
one time outstanding; provided  that, at least 3 days prior to the
date of closing on any such Subordinated Indebtedness, GFI shall have delivered
to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to the incurrence of such Subordinated Indebtedness on
a Pro Forma Basis, the Loan Parties are in compliance with Section 8.11;


 


(i)                                     other
unsecured Indebtedness of the Loan Parties in an aggregate principal amount not
to exceed $15,000,000 at any one time outstanding;


 


(j)                                     obligations
of Regulated Subsidiaries to clearing agencies with respect to transactions
executed by the Regulated Subsidiaries in the ordinary course of business;


 


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(k)                                  any
payable owing by any Subsidiary to GFI or any of its other Subsidiaries for the
payment by GFI or any of its Subsidiaries in accordance with Section 8.02(k)
of the ordinary course expenses of such Subsidiary;


 


(l)                                     any
Indebtedness of any Subsidiary that is not a Loan Party owing to any other
Subsidiary that is not a Loan Party;


 


(m)                               any
Indebtedness owing by a Regulated Subsidiary to any Loan Party; and


 


(n)                                 Guarantees
(which Guarantees in respect of any Indebtedness permitted under clauses (f) and
(h) shall be similarly subordinated) with respect to Indebtedness
permitted under clauses (a) through (i) of this Section 8.03.


 


8.04                           Fundamental Changes.


 


Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person; provided that, subject to Section 7.12
and provided that, after giving effect to any such transaction, no Default or
Event of Default shall exist, (a) GFI may merge
or consolidate with any of its Subsidiaries provided that GFI shall be
the continuing or surviving corporation, (b) the Foreign Borrower may merge or consolidate with any of its
Subsidiaries provided that the Foreign Borrower shall be the continuing
or surviving corporation, (c) any Domestic Subsidiary of GFI may merge
or consolidate with any other Domestic Subsidiary of GFI provided that if a
Loan Party is a party thereto, a Loan Party shall be the continuing or
surviving corporation, (d) any Foreign Subsidiary may merge or
consolidate with any other Foreign Subsidiary provided that if a Loan Party is
a party thereto, a Loan Party shall be the continuing or surviving corporation,
(e) any Foreign Subsidiary may be merged or consolidated with
or into any Loan Party provided that such Loan Party shall be the continuing or
surviving corporation, (f) any
Domestic Subsidiary may wind up, liquidate or dissolve itself so long as
it transfers all or substantially all of its assets to a Domestic Loan Party
prior to such wind up, liquidation or dissolution, (g) any Foreign
Subsidiary may wind up, liquidate or dissolve itself so long as it
transfers all or substantially all of its assets to a Foreign Loan Party prior
to such wind up, liquidation or dissolution, (h) any Subsidiary may wind
up, liquidate or dissolve itself if GFI determines in good faith that such wind
up, liquidation or dissolution is in GFI’s best interests and is not materially
disadvantageous to the Lenders and the assets of such Subsidiary are
transferred to a Loan Party prior to such dissolution and (i) nothing
in this Section 8.04 shall prohibit any Disposition otherwise
permitted under Section 8.05.


 


8.05                           Dispositions.


 


Make any Disposition unless (a) the
consideration paid in connection therewith shall be indebtedness evidenced by
promissory notes and/or cash or Cash Equivalents paid contemporaneously with
consummation of the transaction and shall be in an amount not less than the
fair market value of the Property disposed of, (b) such transaction does
not involve the sale or other disposition of a minority equity interest in any
Material Subsidiary, (c) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to
other Property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.05, and (d) the greater of the
aggregate net book value and the fair market value of all of the assets sold or
otherwise disposed of by GFI and its Subsidiaries in all such transactions in
any fiscal year of GFI shall not exceed $15,000,000; provided that, in determining compliance with this Section 8.05
a Disposition shall be excluded to the extent the proceeds of such Disposition
are used within the Application Period following such Disposition to make
Eligible Reinvestments.


 


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8.06                           Restricted Payments.


 


Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:


 


(a)                                  each
Domestic Subsidiary may make Restricted Payments (directly or indirectly)
to any Domestic Loan Party;


 


(b)                                 each
Foreign Subsidiary may make Restricted Payments (directly or indirectly)
to any Loan Party;


 


(c)                                  each
Borrower and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the Capital Stock of such Person;


 


(d)                                 GFI
may use the proceeds of a Public Equity Offering to make dividends or
purchase, redeem, acquire or retire shares of its Capital Stock of any class or
any warrants or options to purchase any such shares of its Capital Stock so
long as (i) no Default or Event of Default exists immediately prior to and
after giving effect to any such dividend, purchase, redemption, acquisition or
retirement, (ii) the aggregate amount paid by GFI for all Capital Stock so
purchased, redeemed, acquired or retired plus the aggregate amount of such
dividends made by GFI does not exceed 50% of the aggregate proceeds of such
Public Equity Offering and (iii) such dividends, purchases, redemptions,
acquisitions or retirements are made within one hundred eighty (180) days of
the consummation of such Public Equity Offering;


 


(e)                                  GFI
may purchase shares of its Capital Stock issued by GFI to shareholders of
GFI (other than the Parent) and declare and make dividends or other
distributions to its shareholders in an aggregate amount not to exceed
$20,000,000 in any fiscal year plus the unused amount available for such
purchases, dividends and distributions in any preceding fiscal year; provided
that after giving effect to any such purchases, dividends or distributions, GFI
is in compliance with Section 8.11(a) on a Pro Forma Basis;
and


 


(f)                                    such
other dividends and redemptions as may be approved in writing by the
Required Lenders.


 


8.07                           Change in Nature of
Business.


 


Engage in any material line of business
substantially different from those lines of business conducted by GFI and its
Subsidiaries on the Closing Date or any business substantially related or
incidental thereto.


 


8.08                           Transactions with
Affiliates and Insiders.


 


Enter into or permit to exist any transaction
or series of transactions with any officer, director or Affiliate of such
Person other than (a) transactions expressly permitted by this Article VIII,
(b) compensation and reimbursement of expenses of officers and directors
approved by GFI’s compensation committee and (c) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the
ordinary course of such Person’s business on terms and conditions substantially
as favorable to such Person as would be obtainable by it in a comparable arms-length
transaction with a Person other than an officer, director or Affiliate.


 


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8.09                           Burdensome Agreements.


 


(a)                                  Enter into, or permit
to exist, any Contractual Obligation that encumbers or restricts on the ability
of any such Person to (i) pay dividends or make any other distributions to
any Loan Party on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (ii) pay any Indebtedness
or other obligation owed to any Loan Party, (iii) make loans or advances
to any Loan Party, (iv) sell, lease or transfer any of its Property to any
Loan Party, (v) pledge its Property pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof or (vi) act
as a Loan Party pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the
matters referred to in clauses (i)-(v) above) for (1) this Agreement
and the other Loan Documents, (2) any document or instrument governing
Indebtedness incurred pursuant to Sections 8.03(e) or (h), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (3) any Permitted Lien or
any document or instrument governing any Permitted Lien, provided that
any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, (4) customary restrictions and conditions
contained in any agreement relating to the sale of any Property permitted under
Section 8.05 pending the consummation of such sale, (5) customary
nonassignment provisions as to the assets financed in any lease governing a
leasehold interest or in any other contracts which are not material to the
business and operations of GFI and its Subsidiaries or (6) restrictions or
conditions imposed by Laws.


 


(b)                                 Enter into, or permit
to exist, any Contractual Obligation that prohibits or otherwise restricts the
existence of any Lien upon any of its Property in favor of the Administrative
Agent (for the benefit of the Lenders) for the purpose of securing the
Obligations, whether now owned or hereafter acquired, or requiring the grant of
any security for any obligation if such Property is given as security for the
Obligations, except (i) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, (ii) in connection with any Permitted
Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 8.05, pending the consummation
of such sale.


 


8.10                           Use of Proceeds.


 


Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, (a) to purchase or carry margin stock (within the meaning of
Regulations U and T of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose or (b) for any purpose which would be
prohibited by Section 151 of the U.K. Companies Act 1985.


 


8.11                           Financial Covenants.


 


(a)                                  Consolidated
Capital. Permit Consolidated Capital at any time to be less than the sum of
$150,000,000, increased on a cumulative basis as of the end of each fiscal
quarter, commencing with the fiscal quarter ending December 31, 2005 by an
amount equal to 40% of Consolidated Net Income (to the extent positive) for the
fiscal quarter then ended plus 100% of the amount of all Equity
Issuances after the Closing Date and during such fiscal quarter as evidenced on
the books of GFI in accordance with GAAP (less the amount of equity redemptions
to the extent permitted by Section 8.06).


 


(b)                                 Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of
each fiscal quarter of GFI to be greater than 2.25 to 1.0.


 


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(c)                                  Consolidated Fixed
Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio
as of the end of each fiscal quarter of GFI to be less than 1.25 to 1.0.


 


(d)                                 Consolidated EBITDA.
Permit Consolidated EBITDA, as of the end of each fiscal quarter of GFI for the
twelve month period ending on such date to be less than $50,000,000.


 


8.12                           Organization
Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.


 


(a)  Amend, modify or change its
Organization Documents in a manner materially adverse to the Lenders; (b) change
its fiscal year; or (c) without providing ten (10) days prior written
notice to the Administrative Agent, change its name, state of formation or form of
organization.


 


8.13                           Sale Leasebacks.


 


Enter into any Sale and Leaseback
Transaction.


 


8.14                           Proprietary Trading.


 


Engage in any trading activity for its own
account (it being agreed that matched principal transactions will not be
considered trading for its own account) other than (a) any activity
entered into in the ordinary course of business for the purposes of managing
its cash and (b) any trading of securities for its own account; provided
that after giving effect to any such purchase of securities the aggregate
amount of the initial purchase price of all such securities held by GFI and its
Subsidiaries shall not exceed five percent (5%) of Consolidated Capital at the
time of such purchase.


 


8.15                           Prepayment of Other
Indebtedness, Etc.


 


(a)                                  Amend or modify any
of the terms of any Indebtedness of GFI or any Subsidiary (other than
Indebtedness arising under the Loan Documents) if such amendment or
modification would add or change any terms in a manner materially adverse to
GFI or any Subsidiary, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto, except to the extent the
incurrence of such Indebtedness as so amended would be permitted hereunder.


 


(b)                                 After the occurrence
and during the continuation of any Default or Event of Default, with respect to
any Indebtedness other than any Subordinated Indebtedness, make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any such
Indebtedness of GFI or any Subsidiary (other than Indebtedness arising under
the Loan Documents).


 


(c)                                  With respect to any
Subordinated Indebtedness, (i) make or
offer to make any principal payments (other than scheduled principal payments)
with respect to such Subordinated Indebtedness, (ii) redeem or offer to
redeem any of such Subordinated Indebtedness, or (iii) deposit any funds
intended to discharge such Subordinated Indebtedness.


 


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ARTICLE IX


 


EVENTS OF DEFAULT AND REMEDIES


 


9.01                           Events of Default.


 


Any of the following shall constitute an
Event of Default:


 


(a)                                  Non-Payment.
Any Borrower or any other Loan Party fails to pay (i) when and as required
to be paid herein, any amount of principal of any Loan or any L/C Obligation,
or (ii) within three Business Days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any commitment fee or other
fee due hereunder, or (iii) within five Business Days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or


 


(b)                                 Specific
Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.03, 7.05(a),
7.10, 7.11, 7.12, 7.14 or 7.15 or Article VIII
or


 


(c)                                  Information
Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in either Section 7.01 or 7.02
and such failure continues for ten (10) Business Days after the earlier of
(i) written notice to GFI from the Administrative Agent or (ii) a
Responsible Officer of GFI becoming aware of such default; or


 


(d)                                 Other
Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a), (b) or (c) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for thirty days after the earlier of (i) written
notice to GFI from the Administrative Agent or (ii) a Responsible Officer
of GFI becoming aware of such default; or


 


(e)                                  Representations
and Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of any Borrower or any other Loan
Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any
material respect when made or deemed made; or


 


(f)                                    Cross-Default.
(i) GFI or any Subsidiary (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts or Treasury Management
Agreements) having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount,
or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to
its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; provided, that this clause (B) shall
not apply to secured Indebtedness that becomes


 


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due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness if such sale or
transfer and the prepayment of such Indebtedness are otherwise permitted under
this Agreement, or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which GFI or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which GFI or
any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by GFI or such Subsidiary as a result thereof is
greater than the Threshold Amount; or


 


(g)                                 Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, administrator, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, administrator,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or
any material part of its property is instituted without the consent of
such Person and continues undismissed or unstayed for sixty calendar days, or
an order for relief is entered in any such proceeding; or


 


(h)                                 Inability
to Pay Debts; Attachment. (i) GFI or any Subsidiary becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
thirty days after its issue or levy; or


 


(i)                                     Judgments.
There is entered against GFI or any Subsidiary one or more final judgments or
orders for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), and either (i) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (ii) there
is a period of thirty consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal, posting of bond or otherwise, is
not in effect; or


 


(j)                                     ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability
of a Borrower under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) GFI
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or


 


(k)                                  Invalidity
of Loan Documents. Any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and
effect or fails to give the Administrative Agent and/or the Lenders the Liens,
material rights, powers and privileges purported to be created by the Loan
Documents; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any Loan Document; or any Loan Party denies that


 


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it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or


 


(l)                                     Change
of Control. There occurs any Change of Control; or


 


(m)                               Subordinated
Indebtedness. There shall occur an “Event of Default” (or any comparable
term, which, for the avoidance of doubt, will allow for the passage of any
applicable grace or cure period) under, and as defined in, the documentation
evidencing any Subordinated Indebtedness.


 


(n)                                 Licenses/Permits.
GFI or any Subsidiary fails to maintain any license or permit necessary for the
continued operation of its business where the failure to maintain or have such
license or permit could reasonably be expected to have a Material Adverse
Effect.


 


9.02                           Remedies Upon Event of
Default.


 


If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:


 


(a)                                  declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)                                 declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrowers;


 


(c)                                  require
that the Borrowers Cash Collateralize their respective L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and


 


(d)                                 exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


9.03                           Application of Funds.


 


After the exercise of remedies provided for
in Section 9.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02),


 


(a)                                  any amounts received
on account of the Obligations (other than the Foreign Obligations) shall be
applied by the Administrative Agent in the following order:


 


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First, to payment of
that portion of such Obligations constituting fees, indemnities, expenses and
other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;


 


Second, to payment
of that portion of such Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second
payable to them;


 


Third, to payment of
that portion of such Obligations constituting accrued and unpaid interest on
the Loans and L/C Borrowings and fees,
premiums and scheduled periodic payments, and any interest accrued thereon, due
under any Swap Contract between any Domestic Loan Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) in proportion to the respective amounts described in
this clause Third held by them;


 


Fourth, to payment
of that portion of such Obligations constituting unpaid principal of the Loans
and L/C Borrowings, to breakage,
termination or other payments, and any interest accrued thereon, due under any
Swap Contract between any Domestic Loan Party and any Lender, or any Affiliate
of a Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
to amounts due under any Treasury Management Agreement between any Domestic
Loan Party and any Lender or any Affiliate of a Lender, and to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit, ratably among the Lenders (and, in the
case of such Swap Contracts and Treasury Management Agreements, Affiliates of
Lenders) in proportion to the respective amounts described in this clause Fourth
held by them; and


 


Last, the balance,
if any, after all of such Obligations have been indefeasibly paid in full, to
GFI or as otherwise required by Law;


 


provided that,
subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to such other Obligations, if any, in the order set forth above; and


 


(b)                                 any amounts received
on account of the Foreign Obligations shall be applied by the Administrative
Agent in the following order:


 


First, to payment of
that portion of the Foreign Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;


 


Second, to payment
of that portion of the Foreign Obligations constituting fees, indemnities and
other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


Third, to payment of
that portion of the Foreign Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings and
fees, premiums and scheduled periodic payments, and any interest accrued
thereon, due under any Swap Contract between any Foreign Loan Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by


 


86

















 


Section 8.03(d), ratably among the Lenders (and, in the
case of such Swap Contracts, Affiliates of Lenders) in proportion to the
respective amounts described in this clause Third held by them;


 


Fourth, to payment
of that portion of the Foreign Obligations constituting unpaid principal of the
Loans and L/C Borrowings, to breakage,
termination or other payments, and any interest accrued thereon, due under any
Swap Contract between any Foreign Loan Party and any Lender, or any Affiliate
of a Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
to amounts due under any Treasury Management Agreement between any Foreign Loan
Party and any Lender or any Affiliate of a Lender, and to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit, ratably among the Lenders (and, in the
case of such Swap Contracts and Treasury Management Agreements, Affiliates of
Lenders) in proportion to the respective amounts described in this clause Fourth
held by them; and


 


Last, the balance,
if any, after all of the Foreign Obligations have been indefeasibly paid in
full, to the Foreign Borrower or as otherwise required by Law;


 


provided that,
subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Foreign Obligations, if any, in the order set forth above.


 


ARTICLE X


 


ADMINISTRATIVE AGENT


 


10.01                     Appointment and
Authority.


 


Each of the Lenders and each L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. Except as expressly provided in Section 10.06,
the provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuers, and neither the
Borrowers nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.


 


10.02                     Rights as a Lender.


 


The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not
the Administrative Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend
money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of business with any Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


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10.03                     Exculpatory Provisions.


 


The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:


 


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable law; and


 


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrowers or any of their Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02)
or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by a Borrower, a Lender or an L/C Issuer.


 


The Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement, any other Loan Document or any other
agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.


 


10.04                     Reliance by
Administrative Agent.


 


The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) reasonably believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone
and reasonably believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
an L/C


 


88

















 


Issuer, the Administrative Agent may presume that such condition
is satisfactory to such Lender or such L/C Issuer unless the Administrative
Agent shall have received notice to the contrary from such Lender or such L/C
Issuer prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrowers), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


10.05                     Delegation of Duties.


 


The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may perform any
and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


10.06                     Resignation of
Administrative Agent.


 


The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuers and GFI. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with GFI, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify GFI and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held
by the Administrative Agent on behalf of the Lenders or an L/C Issuer under any
of the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and each L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the
other Loan Documents (if not already discharged therefrom as provided above in
this Section). The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor. In the event of any such
resignation, the resigning Administrative Agent shall return to GFI the pro
rated amount of the annual upfront administrative fee paid by GFI for such year.
After the retiring Administrative Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 11.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


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Any resignation by Bank of America as
Administrative Agent pursuant to this Section shall also constitute its
resignation as an L/C Issuer. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer, (b) the retiring L/C Issuer shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring L/C Issuer to
effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit.


 


10.07                     Non-Reliance on
Administrative Agent and Other Lenders.


 


Each Lender and each L/C Issuer acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and each L/C Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


10.08                     No Other Duties, Etc.


 


Anything herein to the contrary
notwithstanding, neither the Sole Lead Arranger nor the Sole Book Manager
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
an L/C Issuer hereunder.


 


10.09                     Administrative Agent May File
Proofs of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrowers) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
(other than obligations under Swap Contracts or Treasury Management Agreements
to which the Administrative Agent is not a party) that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuers and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuers and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the L/C
Issuers and the Administrative Agent under Sections 2.03(i) and (j),
2.08 and 11.04) allowed in such judicial proceeding; and


 


(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


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and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and each L/C Issuer to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C
Issuers, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.08 and 11.04.


 


Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such proceeding.


 


10.10                     Releases.


 


The Lenders and the L/C Issuers irrevocably
authorize the Administrative Agent, at its option and in its discretion,


 


(a)                                  to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Revolving
Commitments and payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii) that
is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 11.01,
if approved, authorized or ratified in writing by the Required Lenders or all
Lenders if so required;


 


(b)                                 to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 8.01(i); and


 


(c)                                  to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


 


Upon request by the Administrative Agent at any time, the Required
Lenders or all Lenders if so required will confirm in writing the
Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 10.10.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01                     Amendments, Etc.


 


No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
any Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrowers or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent,
and each 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:


 


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(a)                                  extend
or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of
such Lender (it being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or Event of
Default or a mandatory reduction in Commitments is not considered an extension
or increase in Commitments of any Lender);


 


(b)                                 postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;


 


(c)                                  reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or any fees or other amounts payable hereunder or under any other
Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
Lenders shall be necessary to amend the definition of “Default Rate” or to
waive any obligation of any Borrower to pay interest at the Default Rate;


 


(d)                                 change
Section 2.12 or Section 9.03 in a manner that would
alter the pro rata sharing of payments or the order of application of payments
required thereby without the written consent of each Lender directly affected
thereby;


 


(e)                                  amend
Section 1.10 or the definition of “Alternative Currency” without
the consent of each Lender directly affected thereby;


 


(f)                                    change
any provision of this Section 11.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of
each Lender directly affected thereby;


 


(g)                                 (i) release
any Borrower or, except in connection with a merger or consolidation permitted
under Section 8.04 or a Disposition permitted under Section 8.05,
all or substantially all of the Guarantors, from its or their obligations under
the Loan Documents without the written consent of each Lender directly affected
thereby; or (ii) except in connection with a Disposition permitted under Section 8.05,
release all or substantially all of the Collateral without the written consent
of each Lender directly affected thereby;


 


and, provided  further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the
applicable L/C Issuer in addition to the Lenders required above, affect the
rights or duties of such L/C Issuer under this Agreement or any Letter of
Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iii) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.


 


Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders shall


 


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determine whether or not to allow a Loan Party to use cash collateral
in the context of a bankruptcy or insolvency proceeding and such determination
shall be binding on all of the Lenders.


 


11.02                     Notices;
Effectiveness; Electronic Communication.


 


(a)                                  General. Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:


 


(i)                                     if
to a Borrower, the Administrative Agent or an L/C Issuer, to the address,
facsimile number, electronic mail address or telephone number specified for
such Person on Schedule 11.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by
such party in a notice to the other parties; and


 


(ii)                                  if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrowers, the
Administrative Agent and the L/C Issuers.


 


Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as
provided in such subsection (b).


 


(b)                                 Electronic
Communications. Notices and other communications to the Lenders and the L/C
Issuers hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant
to Article II if such Lender or such L/C Issuer, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent
or any Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.


 


Unless the Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the
website address therefor.


 


(c)                                  The Platform. THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR


 


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COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM,
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to any Borrower,
any Lender, any L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of any Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Borrower, any
Lender, any L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


(d)                                 Change of Address,
Etc. Each of the Borrowers, the Administrative Agent and the L/C Issuers may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Borrowers, the
Administrative Agent and the L/C Issuers. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.


 


(e)                                  Reliance by
Administrative Agent and Lenders. The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic Loan
Notices) given by a Responsible Officer of any Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. GFI shall indemnify the Administrative Agent, each L/C Issuer, each
Lender and the Related Parties from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice given by a
Responsible Officer of any Borrower. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


11.03                     No Waiver; Cumulative
Remedies.


 


No failure by any Lender, any L/C Issuer or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


11.04                     Expenses; Indemnity;
Damage Waiver.


 


(a)                                  Costs and Expenses.
GFI shall pay (i) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the


 


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credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable and documented out-of-pocket
expenses incurred by any L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or any L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or
any L/C Issuer), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


(b)                                 Indemnification by
GFI. GFI shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender and each L/C Issuer, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by any Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the applicable L/C Issuer to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way
to any Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by GFI or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by GFI or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if GFI or such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction. The agreements in this Section 11.04(b) shall
survive the termination of the Commitments and the repayment, satisfaction or
discharge of all the Obligations.


 


(c)                                  Reimbursement by
Lenders. To the extent that GFI for any reason fails to indefeasibly pay
any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), such L/C
Issuer or such Related Party, as the case may be, such Lender’s Pro Rata
Share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the


 


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Administrative Agent (or any such sub-agent) or such L/C Issuer in
connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.11(e).


 


(d)                                 Waiver of
Consequential Damages, Etc. To the fullest extent permitted by applicable
law, no Borrower shall assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby except to the extent such damages are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee.


 


11.05                     Payments Set Aside.


 


To the extent that any payment by or on
behalf of any Loan Party is made to the Administrative Agent, any L/C Issuer or
any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises
its right of set-off, and such payment or the proceeds of such set-off or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Lender and
each L/C Issuer severally agrees to pay to the Administrative Agent upon demand
its applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the applicable Overnight
Rate from time to time in effect, in the Applicable Currency of such recovery
or payment. The obligations of the Lenders and the L/C Issuers under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.


 


11.06                     Successors and
Assigns.


 


(a)                                  Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither Borrower nor any
other Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


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(b)                                 Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations) at the
time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, GFI, otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s Loans and Commitments, and rights and obligations
with respect thereto, assigned; (iii) any assignment of a Revolving Commitment
must be approved by the Administrative Agent unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$2,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, 11.04
and 11.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, each Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this
Section.


 


(c)                                  Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of
the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register
shall be conclusive, and the Borrowers, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrowers and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(d)                                 Participations.
Any Lender may at any time, without the consent of, or notice to, any
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or a Borrower or any of a Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations) owing to it);


 


97

















 


provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in clauses (a) through (g) of the first
proviso to Section 11.01 that directly affects such Participant. Subject
to subsection (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.08 as
though it were a Lender, provided such Participant agrees to be subject
to Section 2.12 as though it were a Lender.


 


(e)                                  Limitation
upon Participation Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with GFI’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless GFI is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)                                    Certain
Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(g)                                 Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.


 


(h)                                 Resignation as L/C
Issuer after Assignment. Notwithstanding anything to the contrary contained
herein, if at any time Bank of America assigns all of its Commitment and Loans
pursuant to subsection (b) above, Bank of America may, upon thirty
days’ notice to GFI and the Lenders, resign as an L/C Issuer. In the event of
any such resignation as L/C Issuer, GFI shall be entitled to appoint from among
the Lenders a successor L/C Issuer hereunder; provided, however,
that no failure by GFI to appoint any such successor shall affect the
resignation of Bank of America as an L/C Issuer, as the case may be. If
Bank of America resigns as an L/C Issuer, it shall retain all the rights,
powers, privileges and duties of an L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
Upon the appointment of a successor L/C Issuer, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and (b) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit,


 


98

















 


if
any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.


 


11.07                     Confidentiality.


 


Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates’ partners, directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other
party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any
Eligible Assignee of or Participant in, or any prospective Eligible Assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii) any
direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty’s or prospective counterparty’s professional
advisor) to any credit derivative transaction relating to obligations of the
Loan Parties; (g) with the consent of GFI; (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than a Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender’s or its
Affiliates’ investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about
this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to the Administrative Agent and the
Lenders in connection with the administration and management of this Agreement,
the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section, “Information” means all information received
from any Loan Party relating to any Loan Party or its business, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by any Loan Party; provided that, in
the case of information received from a Loan Party after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Notwithstanding
anything herein to the contrary, “Information” shall not include, and the
Borrowers, the other Loan Parties, the Administrative Agent, each Lender and
the respective Affiliates of each of the foregoing (and the respective
partners, directors, officers, employees, agents, advisors and other
representatives of each of the foregoing and their Affiliates)
may disclose to any and all Persons, without limitation of any kind
(a) any information with respect to the U.S. federal and state income tax
treatment of the transactions contemplated hereby and any facts that
may be relevant to understanding such tax treatment, which facts shall not
include for this purpose the names of the parties or any other Person named
herein, or information that would permit identification of the parties or such
other Persons, or any pricing terms or other nonpublic business or financial
information that is unrelated to such tax treatment or facts, and (b) all
materials of any kind (including opinions or other tax analyses) relating to such
tax treatment or facts that are provided to any of the Persons referred to
above.


 


 


99

















 


11.08                     Set-off.


 


In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender, each L/C Issuer and each of their
respective  Affiliates is authorized at
any time and from time to time, without prior notice to any Borrower or any
other Loan Party, any such notice being waived by each Borrower (on its own
behalf and on behalf of each Loan Party) 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 by, and other indebtedness at any
time owing by, such Lender or such L/C Issuer to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender or such L/C Issuer hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent,
such Lender or such L/C Issuer shall have made demand under this Agreement or
any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness. Each Lender and each L/C Issuer agrees promptly to
notify GFI and the Administrative Agent after any such set-off and application
made by such Lender or such L/C Issuer; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.


 


11.09                     Interest Rate Limitation.


 


Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum Rate”). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the applicable
Borrower. In determining whether the interest contracted for, charged, or
received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


11.10                     Counterparts.


 


This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


11.11                     Integration.


 


This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion
of supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.


 


100

















 


11.12                     Survival of Representations and Warranties.


 


All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or
any Letter of Credit shall remain outstanding.


 


11.13                     Severability.


 


If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


11.14                     Replacement of Lenders.


 


Under any circumstances set forth herein providing
that a Borrower shall have the right to replace a Lender as a party to this
Agreement, such Borrower may, upon notice to such Lender and the Administrative
Agent, replace such Lender by causing such Lender to assign its Commitment and
outstanding Loans (with the assignment fee to be paid by such Borrower in such
instance) pursuant to Section 11.06(b) to one or more other
Lenders or Eligible Assignees procured by such Borrower; provided, however,
that if a Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to replace all
Lenders that have made similar requests for compensation pursuant to Section 3.01
or 3.04. The applicable Borrower(s) shall (x) pay in full all principal,
interest, fees and other amounts due and payable to such Lender through the
date of replacement (including any amounts payable pursuant to Section 3.05),
(y) provide appropriate assurances and indemnities (which may include
letters of credit) to the applicable L/C Issuer as such L/C Issuer may reasonably
require with respect to any continuing obligation of the applicable replacement
Lender to fund participation interests in any L/C Obligations then outstanding,
and (z) release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations.


 


11.15                     Governing Law; Jurisdiction, Etc.


 


(a)                                  GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)                                 SUBMISSION
TO JURISDICTION. 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 SITTING IN NEW YORK, NEW


 


101

















 


YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


11.16                     Waiver of Right to Trial by Jury.


 


EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


11.17                     USA PATRIOT Act Notice.


 


Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.


 


11.18                     Judgment Currency.


 


If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of each Borrower in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the “Judgment Currency”)
other than that in which such sum is denominated


 


102

















 


in accordance with the applicable provisions of this Agreement (the “Agreement
Currency”), be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent of any sum adjudged to be so due
in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Administrative Agent from any Borrower in the
Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to such Borrower (or to any other Person who may be
entitled thereto under applicable law).


 


[SIGNATURE PAGES FOLLOW]


 


103

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.


 


 


	
  BORROWER:

  	
  GFI GROUP INC.,

  
	
   

  	
  a Delaware corporation, as a Borrower and,
  with

  
	
   

  	
  respect to the Foreign Obligations, as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  FOREIGN BORROWER:

  	
  GFI HOLDINGS LIMITED,

  
	
   

  	
  a company incorporated under the

  
	
   

  	
  laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  DOMESTIC GUARANTORS:

  	
  GFI GROUP LLC,

  
	
   

  	
  a New York limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  GFINET INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  GFI BROKERS LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  INTERACTIVE VENTURES LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  



 

















 


	
   

  	
  FENICS SOFTWARE INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  FOREIGN GUARANTORS:

  	
  FENICS LIMITED,

  
	
   

  	
  a company incorporated under the

  
	
   

  	
  laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  FENICS SOFTWARE LIMITED,

  
	
   

  	
  a company incorporated under the

  
	
   

  	
  laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  GFINET EUROPE LIMITED,

  
	
   

  	
  a company incorporated under the

  
	
   

  	
  laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  James A. Peers

  	
   

  
	
   

  	
  Name: James A. Peers

  
	
   

  	
  Title: Chief Financial Officer

  



 

















 


	
  ADMINISTRATIVE

  	
   

  
	
  AGENT:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Sean Cassidy

  	
   

  
	
   

  	
  Name: Sean Cassidy

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
  LENDERS:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender and an L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Sean Cassidy

  	
   

  
	
   

  	
  Name: Sean Cassidy

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Peter Richardson

  	
   

  
	
   

  	
  Name: Peter Richardson

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  BROWN BROTHERS HARRIMAN & CO.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Ann L. Hobart

  	
   

  
	
   

  	
  Name: Ann L. Hobart

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Jon Bowring

  	
   

  
	
   

  	
  Name: Jon Bowring

  
	
   

  	
  Title: Head of Financial Services