Exhibit 10.1
EXECUTION COPY
[Published CUSIP Number: ____________]
AMENDED AND RESTATED
--------------------
REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
Dated as of November 12, 2004
among
GENESEE & WYOMING INC.,
AS US BORROWER
QUEBEC GATINEAU RAILWAY INC.,
AS CANADIAN BORROWER
THE GUARANTORS,
THE LENDING INSTITUTIONS LISTED
ON SCHEDULE II HERETO,
AS LENDERS
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT
with
BANC OF AMERICA SECURITIES LLC
AS SOLE LEAD ARRANGER AND BOOK MANAGER
JPMORGAN CHASE BANK
AS SYNDICATION AGENT
and
LASALLE BANK NATIONAL ASSOCIATION AND
KEY BANK NATIONAL ASSOCIATION
AS CO-DOCUMENTATION AGENTS
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION............................................................ 1
1.1. Definitions................................................................................. 1
1.2. Rules of Interpretation..................................................................... 21
2. THE REVOLVING CREDIT FACILITIES...................................................................... 22
2.1. Commitment to Lend.......................................................................... 22
2.2. Commitment Fee.............................................................................. 22
2.3. Reduction of Commitments.................................................................... 23
2.4. The Revolving Credit Notes.................................................................. 23
2.5. Interest on Revolving Credit Loans.......................................................... 23
2.6. Requests for Revolving Credit Loans......................................................... 23
2.7. The Swingline............................................................................... 24
2.8. US Borrower's Conversion Options; Continuation of Loans..................................... 26
2.9. Funds for Revolving Credit Loans............................................................ 27
3. THE CANADIAN TERM LOAN............................................................................... 28
3.1. Commitment to Lend.......................................................................... 28
3.2. Canadian Term Notes......................................................................... 28
3.3. Schedule of Installment Payments of Principal of Canadian Term Loan......................... 28
3.4. Interest on Canadian Term Loan.............................................................. 29
3.5. Notification by Canadian Borrower........................................................... 29
3.6. Interest Periods............................................................................ 30
4. MANDATORY REPAYMENT OF LOANS......................................................................... 30
4.1. Maturity of Loans........................................................................... 30
4.2. Mandatory Repayments of Loans............................................................... 30
4.3. Optional Repayments of Loans................................................................ 30
5. LETTERS OF CREDIT.................................................................................... 31
5.1. Letter of Credit Commitments................................................................ 31
5.2. Reimbursement Obligation of the US Borrower................................................. 33
5.3. Letter of Credit Payments................................................................... 34
5.4. Obligations Absolute........................................................................ 35
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5.5. Role of Issuing Lender...................................................................... 35
5.6. Cash Collateral............................................................................. 36
5.7. Applicability of International Standby Practices and Uniform Customs........................ 36
5.8. Letter of Credit Amounts.................................................................... 36
5.9. Letters of Credit Issued for Subsidiaries................................................... 36
5.10. Letter of Credit Fee........................................................................ 36
6. CERTAIN GENERAL PROVISIONS........................................................................... 37
6.1. Fees........................................................................................ 37
6.2. Funds for Payments.......................................................................... 37
6.3. Computations................................................................................ 39
6.4. Inability to Determine LIBOR Rate or Canadian LIBOR Rate.................................... 39
6.5. Illegality.................................................................................. 40
6.6. Additional Costs, Etc....................................................................... 40
6.7. Capital Adequacy............................................................................ 41
6.8. Certificate................................................................................. 42
6.9. Indemnity................................................................................... 42
6.10. Interest After Default...................................................................... 42
6.11. Replacement of Lenders...................................................................... 43
6.12. Taxes....................................................................................... 43
6.13. Interest Limitation......................................................................... 44
6.14. Subordination Agreements of the Borrowers................................................... 45
7. GUARANTY............................................................................................. 45
7.1. Guaranty.................................................................................... 45
7.2. Guarantors Agreement to Pay Enforcement Costs, Etc.......................................... 46
7.3. Effectiveness; Enforcement.................................................................. 47
7.4. Waivers..................................................................................... 47
7.5. Expenses.................................................................................... 47
7.6. Concerning Joint and Several Liability of the Guarantors.................................... 47
7.7. Indemnity................................................................................... 50
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TABLE OF CONTENTS
(continued)
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8. REPRESENTATIONS AND WARRANTIES....................................................................... 50
8.1. Corporate Authority......................................................................... 51
8.2. Governmental Approvals...................................................................... 51
8.3. Title to Properties; Leases................................................................. 51
8.4. Financial Statements and Projections........................................................ 52
8.5. No Material Changes, Etc.; Solvency......................................................... 52
8.6. Franchises, Patents, Copyrights, Etc........................................................ 53
8.7. Litigation.................................................................................. 53
8.8. Compliance with Other Instruments, Laws, Etc................................................ 53
8.9. Tax Status.................................................................................. 53
8.10. No Event of Default......................................................................... 53
8.11. Holding Company and Investment Company Acts................................................. 53
8.12. Certain Transactions........................................................................ 53
8.13. Employee Benefit Plans...................................................................... 54
8.14. Use of Proceeds; Regulations U and X........................................................ 55
8.15. Environmental Compliance.................................................................... 55
8.16. Subsidiaries, Etc........................................................................... 57
8.17. Capitalization.............................................................................. 57
8.18. Fiscal Year................................................................................. 57
8.19. Operation of Railroads...................................................................... 57
8.20. Disclosure.................................................................................. 57
8.21. No Withholding.............................................................................. 57
9. AFFIRMATIVE COVENANTS OF THE BORROWERS............................................................... 57
9.1. Punctual Payment............................................................................ 57
9.2. Maintenance of Office....................................................................... 57
9.3. Records and Accounts........................................................................ 58
9.4. Financial Statements, Certificates and Information.......................................... 58
9.5. Notices..................................................................................... 59
9.6. Corporate Existence; Maintenance of Properties.............................................. 60
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9.7. Insurance................................................................................... 61
9.8. Taxes....................................................................................... 61
9.9. Inspection of Properties and Books, Etc..................................................... 61
9.10. Compliance with Laws, Contracts, Licenses, and Permits...................................... 62
9.11. Employee Benefit Plans...................................................................... 62
9.12. Use of Proceeds............................................................................. 62
9.13. Further Assurances.......................................................................... 62
9.14. Additional Subsidiaries..................................................................... 63
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.......................................................... 63
10.1. Restrictions on Indebtedness................................................................ 63
10.2. Restrictions on Liens....................................................................... 65
10.3. Restrictions on Investments................................................................. 66
10.4. Distribution and Restricted Payments........................................................ 67
10.5. Merger, Permitted Acquisitions and Disposition of Assets.................................... 67
10.6. Sale and Leaseback.......................................................................... 69
10.7. Compliance with Environmental Laws.......................................................... 69
10.8. Employee Benefit Plans...................................................................... 69
10.9. Business Activities......................................................................... 70
10.10. Capitalization.............................................................................. 70
10.11. Fiscal Year................................................................................. 70
10.12. Restrictions on Negative Pledges and Upstream Limitations................................... 70
10.13. Transactions with Affiliates................................................................ 71
10.14. Modification of Certain Documents........................................................... 71
11. FINANCIAL COVENANTS OF THE BORROWERS................................................................. 71
11.1. Funded Debt to EBITDAR Ratio................................................................ 71
11.2. Interest Coverage........................................................................... 71
11.3. Consolidated Tangible Net Worth............................................................. 71
11.4. Capital Expenditures........................................................................ 71
12. CLOSING CONDITIONS................................................................................... 72
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12.1. Loan Documents, etc......................................................................... 72
12.2. Certified Copies of Charter Documents; Good Standing Certificates........................... 72
12.3. Corporate or Other Action................................................................... 72
12.4. Incumbency Certificate...................................................................... 72
12.5. Payoff and Termination of Liens............................................................. 72
12.6. Opinion of Counsel.......................................................................... 72
12.7. Payment of Fees............................................................................. 73
12.8. Closing Certificate......................................................................... 73
12.9. Senior Notes................................................................................ 73
13. CONDITIONS TO ALL BORROWINGS......................................................................... 73
13.1. Representations True; No Event of Default................................................... 73
13.2. Documents................................................................................... 73
14. EVENTS OF DEFAULT; ACCELERATION; ETC................................................................. 73
14.1. Events of Default and Acceleration.......................................................... 73
14.2. Termination of Commitments.................................................................. 76
14.3. Remedies.................................................................................... 76
15. SETOFF............................................................................................... 77
16. THE ADMINISTRATIVE AGENT............................................................................. 77
16.1. Appointment and Authorization............................................................... 77
16.2. Rights as a Lender.......................................................................... 78
16.3. Exculpatory Provisions...................................................................... 78
16.4. Reliance by Administrative Agent............................................................ 79
16.5. Delegation of Duties........................................................................ 79
16.6. Resignation of Administrative Agent......................................................... 79
16.7. Non-Reliance on Administrative Agent and Other Lenders...................................... 80
16.8. No Other Duties, Etc........................................................................ 80
16.9. Closing Documentation, Etc.................................................................. 80
16.10. Payments.................................................................................... 81
16.11. Holders of Notes............................................................................ 82
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16.12. Indemnity................................................................................... 82
16.13. Notification of Defaults and Events of Default.............................................. 82
17. EXPENSES............................................................................................. 82
18. INDEMNIFICATION...................................................................................... 83
19. SURVIVAL OF COVENANTS, ETC........................................................................... 83
20. SUCCESSORS AND ASSIGNS............................................................................... 84
20.1. General Conditions.......................................................................... 84
20.2. Assignments................................................................................. 84
20.3. Register.................................................................................... 85
20.4. Participations.............................................................................. 85
20.5. Payments to Participants.................................................................... 86
20.6. Miscellaneous Assignment Provisions......................................................... 86
20.7. Assignee or Participant Affiliated with the Borrowers....................................... 86
20.8. New Notes................................................................................... 87
20.9. Special Purpose Funding Vehicle............................................................. 87
21. NOTICES, ETC......................................................................................... 88
21.1. Notices Generally........................................................................... 88
21.2. Electronic Communications................................................................... 88
21.3. Change of Address, Etc...................................................................... 89
21.4. Reliance by Administrative Agent, Issuing Lender and Lenders................................ 89
22. GOVERNING LAW........................................................................................ 89
23. HEADINGS............................................................................................. 90
24. COUNTERPARTS......................................................................................... 90
25. ENTIRE AGREEMENT, ETC................................................................................ 90
26. WAIVER OF JURY TRIAL, ETC............................................................................ 90
27. CONSENTS, AMENDMENTS, WAIVERS, ETC................................................................... 90
27.1. Consents and Approvals...................................................................... 90
27.2. Increase in Commitments or Addition of a New Term Loan...................................... 92
28. SEVERABILITY......................................................................................... 92
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29. TRANSITIONAL ARRANGEMENTS............................................................................ 92
29.1. Existing Credit Agreement Superseded........................................................ 92
29.2. Return and Cancellation of Prior Notes...................................................... 93
29.3. Interest and Fees under Superseded Agreement................................................ 93
30. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.................................................... 93
31. USA PATRIOT ACT...................................................................................... 93
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EXHIBITS AND SCHEDULES
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Canadian Term Note
Exhibit C-1 Form of Revolving Credit Loan Request
Exhibit C-2 Form of Swingline Loan Request
Exhibit C-3 Form of Continuation Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Instrument of Adherence (Guaranty)
Exhibit F Form of Assignment and Assumption
Schedule I Guarantors
Schedule II Lenders and Commitments
Schedule III Existing Letters of Credit
Schedule 8.3 Titles to Properties; Leases
Schedule 8.7 Litigation
Schedule 8.12 Certain Transactions
Schedule 8.13 ERISA
Schedule 8.15 Environmental Compliance
Schedule 8.16(a) Subsidiaries
Schedule 8.16(b) Joint Ventures
Schedule 8.17 Capitalization
Schedule 8.19 Operating Locations
Schedule 9.7 Insurance
Schedule 10.1 Existing Indebtedness
Schedule 10.2 Existing Liens
Schedule 10.3 Existing Investments
Schedule 10.13 Transactions with Affiliates
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this
"Credit Agreement") is made as of November 12, 2004 by and among (a) GENESEE &
WYOMING INC., a Delaware corporation ("GWI" or the "US Borrower"), (b) QUEBEC
GATINEAU RAILWAY INC., a corporation constituted under the laws of Quebec,
Canada ("Quebec" or the "Canadian Borrower", collectively the US Borrower and
the Canadian Borrower, the "Borrowers"), (c) the Subsidiaries of the US Borrower
listed on Schedule I hereto and any other Person which may become a guarantor of
the Obligations in accordance with Sections 9.14 (the "US Guarantors"), (d)
GENESEE & WYOMING CANADA INC. ("GWCA"), MIRABEL RAILWAY INC. ("Mirabel"), HURON
CENTRAL RAILWAY INC. and ST. ▇▇▇▇▇▇▇▇ & ATLANTIC RAILROAD (QUEBEC) INC. and any
other Person which may become a guarantor of the Canadian Obligations in
accordance with Sections 9.14 (thE "Canadian Guarantors"), (e) BANK OF AMERICA,
N.A., a national banking association and the other lending institutions listed
on Schedule II hereto, (f) BANK OF AMERICA, N.A., as administrative agent for
itself and such lending institutions (acting in such capacity, the
"Administrative Agent"), and (g) JPMorgan Chase Bank as syndication agent (the
"Syndication Agent").
WHEREAS, pursuant to that certain Fourth Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of October 31, 2002 (as heretofore
amended, the "Existing Credit Agreement"), certain Lenders have made loans to
the US Borrower and the Canadian Borrower for the purposes described therein;
and
WHEREAS, GWI has requested that the Lenders and the Administrative Agent
amend and restate the Existing Credit Agreement in its entirety to, among other
things:
(a) decrease the Total Commitment to $150,000,000;
(b) increase the Canadian Term Loan to $38,500,000 Canadian Dollars;
(c) convert the loans and letters of credit under the Existing Credit
Agreement into Loans and Letters of Credit hereunder;
(d) provide for release of the Collateral; and
(e) make certain other changes to the terms and provisions of the
Existing Credit Agreement.
NOW THEREFORE, the Borrowers, the Guarantors, the Lenders and the
Administrative Agent hereby agree that, subject to Sections 29 hereof, the
Existing Credit Agreement (including all the schedules and exhibits thereto) is
hereby amended and restated in its entirety as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Sections.1 or elsewhere in the provisions of this Credit
Agreement referred to below:
Adjustment Date. Each April 1, June 1, September 1 and December 1 of each
calendar year.
Administrative Agent. See preamble.
Administrative Agent's Office. The Administrative Agent's office located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as
the Administrative Agent may designate from time to time.
Administrative Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or such
other counsel as may be approved by the Administrative Agent.
Administrative Questionnaire. An Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affected Lender. See Sections 6.11.
Affiliate. Any Person that would be considered to be an affiliate of
another Person under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if such other Person
were issuing securities.
Agents. Collectively, the Administrative Agent and the Syndication Agent.
Agent's Fees. See Sections 6.1.1.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Funded Debt to EBITDAR Ratio, as determined for
the fiscal period of the Borrowers and their Restricted Subsidiaries ending
immediately prior to the applicable Rate Adjustment Period (except for any Rate
Adjustment Period beginning on April 1 of any calendar year for which the
Applicable Margin will be determined by reference to the Funded Debt to EBITDAR
Ratio for the fiscal period ending on the immediately preceding December 31).
Base Rate, LIBOR Rate,
Canadian Base Canadian LIBOR Letter of
Funded Debt to Rate Rate Credit
EBITDAR Applicable Applicable Applicable Commitment
Level Ratio Margin Margin Margin Fee Rate
----- ----- ------ ------ ------ --------
I Greater than or
equal to 3.00 to
1.00 0.25% 1.500% 1.500% 0.350%
II Greater than or
equal to 2.50 to
1.00 but less
than 3.00 to 1.00 0.0% 1.250% 1.250% 0.300%
III Greater than or
equal to 2.00 to
1.00 but less
than 2.50 to 1.00 0.0% 1.000% 1.000% 0.250%
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IV Greater than or
equal to 1.50 to
1.00 but less
than 2.00 to 1.00 0.0% 0.875% 0.875% 0.200%
V Less than 1.50 to
1.00 0.0% 0.750% 0.750% 0.175%
Notwithstanding the foregoing, (a) during the period commencing on the Closing
Date through March 31, 2005, the Applicable Margin shall be no lower than the
Applicable Margin set forth for Level III above, and (b) if the Borrowers fail
to deliver any Compliance Certificate pursuant to Sections.9.4(c) hereof, then,
for the period commencing on the date such Compliance Certificate was due
pursuant to Sections.9.4(c) through the date such Compliance Certificate is
actually delivered to the Lenders, the Applicable Margin shall be the highest
Applicable Margin set forth above.
Approved Fund. Any Fund that is administered or managed by (a) a Lender,
(b) a Lender Affiliate or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
Arranger. Banc of America Securities, Inc.
Assignment and Assumption. An assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Sections 20.1), and accepted by the Administrative Agent, in
substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
Balance Sheet Date. December 31, 2003.
Bank of America. Bank of America, N.A., a national banking association.
Base Rate. 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 such 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 Loans. Revolving Credit Loans bearing interest calculated by
reference to the Base Rate.
Borrowers. Collectively, the US Borrower and the Canadian Borrower, and
the term Borrower shall apply to each of them individually.
Canadian Base Rate. The applicable per annum rate of interest quoted or
announced from time to time and charged by the Administrative Agent for
commercial loans made by it to third parties in Canada in Canadian Dollars, as
determined by the Administrative Agent based upon various factors including its
cost of funds and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans.
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Canadian Base Rate Loans. All or any portion of the Canadian Term Loan
bearing interest calculated by reference to the Canadian Base Rate.
Canadian Borrower. See preamble.
Canadian Business Day. Any day on which banking institutions in Montreal,
Quebec and Boston, Massachusetts are open for the transaction of banking
business, and also in the case of Canadian LIBOR Rate Loans, a day which is a
LIBOR Business Day.
Canadian Counsel. Stikeman Elliott or such other counsel as may be
approved by the Administrative Agent.
Canadian Dollar Equivalent. On any date of determination, with respect to
an amount denominated in Canadian Dollars, such amount of Canadian Dollars, and
with respect to an amount denominated in a currency other than Canadian Dollars,
the amount of Canadian Dollars (as conclusively ascertained by the
Administrative Agent absent manifest error) which could be purchased by the
Administrative Agent with that amount of such other currency at the spot rate of
exchange quoted by the Administrative Agent in the applicable foreign exchange
market on the date of determination for the purchase of Canadian Dollars with
such currency.
Canadian Dollars or Cdn.$. Lawful currency of Canada.
Canadian Guaranteed Obligations. See Sections 7.1.
Canadian Guarantors. See preamble.
Canadian LIBOR Rate. In respect of each Interest Period for a Canadian
LIBOR Rate Loan, means (a) the applicable Screen Rate for such Interest Period
or (b) if the applicable Screen Rate shall not be available, the rate per annum
determined by the Administrative Agent as the rate of interest at which deposits
in Canadian Dollars for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Canadian LIBOR 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 Canadian Business Days prior to the first day of
such Interest Period.
Canadian LIBOR Rate Loans. All or any portion of the Canadian Term Loan
bearing interest calculated by reference to the Canadian LIBOR Rate.
Canadian Obligations. All indebtedness, obligations and liabilities of
the Canadian Borrower to the Lenders and the Administrative Agent (a) under or
in respect of or in connection with the Canadian Term Loan and the Canadian Term
Notes and including any interest thereon or fees or expenses in respect thereof,
(b) under any Hedging Agreement between the Canadian Borrower and any Lender
(including the Swingline Lender and Issuing Lender) or any Lender Affiliate, and
(c) under any of the other Loan Documents to which the Canadian Borrower or the
Canadian Guarantors are a party.
Canadian Plans. All the employee benefit, fringe benefit, supplemental
unemployment benefit, bonus, incentive, profit sharing, termination, change of
control, pension, retirement, stock option, stock purchase, stock appreciation,
health, welfare, medical, dental, disability, life insurance and similar plans,
programmes, arrangements or practices relating to the current or former
employees, officers or directors of the Canadian Borrower and the Canadian
Guarantors maintained, sponsored or funded by the Canadian
4
Borrower or the Canadian Guarantors (as the case may be), whether written or
oral, funded or unfunded, insured or self-insured, registered or unregistered.
Canadian Term Loan. The term loan made by the Lenders in accordance with
their Commitment Percentages to the Canadian Borrower on the Closing Date
pursuant to Sections 3.1 in the principal amount of Cdn.$38,500,000.
Canadian Term Notes. See Sections 3.2.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or indebtedness incurred (without
duplication) by the Borrowers or their Restricted Subsidiaries in connection
with the purchase or lease by any of the Borrowers or any of their Restricted
Subsidiaries of Capital Assets that would be required to be capitalized and
shown on the balance sheet of such Person in accordance with GAAP, less amounts
reimbursed by third parties.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
Capitalized Leases. Leases under which any of the Borrowers or any of
their Restricted Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with GAAP.
Cash Collateral. Cash or deposit account balances pledged and deposited
with or delivered to the Administrative Agent, for the benefit of the Issuing
Lender and the Lenders which have Revolving Credit Loans pursuant to Sections 5,
as collateral for the Letter of Credit Obligations, pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent and the
Issuing Lender (which documents are hereby consented to by the Lenders). Cash
Collateral shall be maintained in collateral accounts with the Administrative
Agent.
Cash Equivalents. (a) Marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or the Canadian
government or issued by any agency thereof and backed by the full faith and
credit of the United States or Canada, in each case maturing within one year
from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States or Canada or any
state or province thereof having combined capital and surplus of not less than
$500,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard &
Poor's Ratings Services ("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), or carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within six months from the date
of acquisition; (d) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a term
of not more than 30 days, with respect to securities issued or fully guaranteed
or insured by the United States government or the Canadian government; (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, province, commonwealth or territory of
the United States or Canada, by any political subdivision or taxing authority of
any such state, province,
5
commonwealth or territory or by any other foreign government, the securities of
which state, province, commonwealth, territory, political subdivision, taxing
authority or other foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest in assets
satisfying the requirements of clauses (a) through (f) of this definition; or
(h) money market funds that (i) comply with the criteria set forth in SEC Rule
2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody's and (iii) have portfolio assets of at least
$5,000,000,000.
Casualty Event. With respect to any property (including any interest in
property) of the Borrowers or any of their Subsidiaries, any loss of, damage to,
or condemnation or other taking of, such property for which such Borrower or
such Subsidiary receives insurance proceeds, proceeds of a condemnation award or
other compensation.
CERCLA. See Section 8.15.
CFCM. Compania de Ferrocarriles Chiapas-Mayab S.A. de C.V. a Mexican
corporation and an Unrestricted Subsidiary of GWI.
Closing Date. The first date on which the conditions set forth in Sections
12 and 13 have been satisfied and any Loans are to be converted or made or any
Letters of Credit are to be converted or issued hereunder.
Code. The Internal Revenue Code of 1986, as amended, together with any
regulations issued thereunder.
Collateral. All of the property, rights and interests of the Borrowers and
their Restricted Subsidiaries that were subject to security interests granted
under or in connection with the Existing Credit Agreement.
Commitment. With respect to each Lender, the amount set forth on Schedule
II hereto as the amount of such Lender's commitment to make Revolving Credit
Loans to, to participate in Swingline Loans to, and to participate in the
issuance and extension of Letters of Credit for the account of, the US Borrower,
as the same may be increased or reduced from time to time.
Commitment Fee. See Section 2.2.
Commitment Fee Rate. The Commitment Fee Rate set forth in accordance with
the definition of Applicable Margin hereof.
Commitment Percentage. With respect to each Lender, the percentage set
forth next to such Lender's name on Schedule II hereto as such Lender's
percentage of the aggregate Commitments of all of the Lenders, and with respect
to the Canadian Term Loan, such Lender's percentage of the outstanding Canadian
Term Loan, as the same may be adjusted in accordance with Section 20.
Compliance Certificate. See Section 9.4(c).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrowers and their
Restricted Subsidiaries, consolidated in accordance with GAAP.
6
Consolidated EBITDA. For any fiscal period of the Borrowers and their
Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated Net
Income for such fiscal period, plus in each case, to the extent deducted in
computing Consolidated Net Income and without duplication, (b) Consolidated
Total Interest Expense for such fiscal period, (c) income tax expense for such
fiscal period, (d) the aggregate amount of depreciation and amortization for
such fiscal period, and (e) all losses from the sale of assets of the Borrowers
and their Restricted Subsidiaries (except to the extent the losses from sales of
assets are related to sales of assets purchased during the fiscal period) minus
(f) to the extent included in computing Consolidated Net Income, all gains from
the sale of assets of the Borrowers and their Restricted Subsidiaries (except to
the extent the gains from sales of assets are related to sales of assets
purchased during the fiscal period).
Consolidated EBITDAR. For any fiscal period of the Borrowers and their
Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA
for such fiscal period (which shall include EBITDA of the businesses acquired by
the Borrowers or any of their Restricted Subsidiaries through Permitted
Acquisitions during such fiscal period (each an "Acquired Business"), or the
Restricted Subsidiaries acquired or formed during such fiscal period (each a
"New Subsidiary"); in each case, on a pro forma basis in an amount such that the
actual EBITDA of such Acquired Business or New Subsidiary included in such
period plus the amount of pro forma EBITDA of such Acquired Business or New
Subsidiary included in such period (the "ProForma EBITDA") equals one year of
EBITDA credit; provided that, (i) such calculations shall be made with reference
to the audited financial statements of such Acquired Businesses or New
Subsidiaries for the most recent fiscal year ended of such Acquired Businesses
or New Subsidiaries and any unaudited quarterly statements which have been
received since the most recent fiscal year ended of such Acquired Business or
New Subsidiaries, or (ii) in the event that there are only unaudited financial
results or no financial results available with respect to such Acquired
Businesses or New Subsidiaries, such calculations shall be made with reference
to other acceptable financial statements or reasonable estimates of such past
performance made by the Borrowers based on existing data and other available
information, such financial statements or, as the case may be, estimates to be
agreed upon by the Borrowers and the Administrative Agent and, with respect to
Permitted Acquisitions for which the total consideration (other than
consideration in the form of Capital Stock of any Borrower or any Restricted
Subsidiary) therefor exceeds $75,000,000, the Required Lenders) plus (b) to the
extent deducted in computing Consolidated Net Income, all payments and rental
charges made by any of the Borrowers or any of their Restricted Subsidiaries
(including any Acquired Business or New Subsidiary) during such fiscal period in
respect to operating leases plus (c) expenses for such fiscal period with
respect to Permitted Acquisitions which are (i) discontinued upon the effective
date of Permitted Acquisition or within sixty days thereof, (ii) approved by the
Administrative Agent (which approval shall not be unreasonably withheld) and
(iii) otherwise consistent with Regulation S-X. By way of example only, ProForma
EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any
time during the first four fiscal quarters following a Permitted Acquisition or
the formation of a New Subsidiary, by multiplying (A) the annual pro forma
EBITDA of such Person determined at the time of such acquisition or formation by
(B) a fraction, the numerator of which equals 365 minus the number of days
elapsed from the closing date of such acquisition or formation to the applicable
date of determination, and the denominator of which equals 365.
Consolidated Funded Debt. As at any date of determination, an amount equal
to the aggregate amount of Indebtedness of the Borrowers and their Restricted
Subsidiaries, determined on a consolidated basis, related to the borrowing of
money or the obtaining of credit (which the parties hereto agree for the
purposes of this definition does not include Indebtedness permitted under
Sections 10.1(b), (c), (d), (e), (h) and (j) hereof) whether absolute or
contingent, including, to the extent not included in such Indebtedness, the net
present value (using a discount rate of 8% per annum) of all operating leases
with a non-cancellable term of longer than one year and all Indebtedness
guaranteed by any of the Borrowers or any of their Restricted Subsidiaries.
7
Consolidated Net Income. The consolidated net income of the Borrowers and
their Restricted Subsidiaries, after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP, after eliminating therefrom
all extraordinary nonrecurring items of income or loss; minus any equity in the
net income of (or plus any equity in the net loss of) any minority equity
investment of any Borrower or any Restricted Subsidiary in any Unrestricted
Subsidiary, plus cash dividends or similar cash Distributions paid to the
Borrowers or their Restricted Subsidiaries from any Unrestricted Subsidiary,
during the applicable period.
Consolidated Tangible Net Worth. The excess of Consolidated Total Assets
over Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of the Borrowers and their
Restricted Subsidiaries properly classified as intangible assets under GAAP,
including such items as good will, the purchase price of acquired assets in
excess of the fair market value thereof, trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with respect to the
foregoing; plus
(b) all amounts representing any write-up in the book value of any
assets of the Borrowers or their Restricted Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date; plus
(c) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any subscriptions receivable.
Consolidated Total Assets. All assets ("consolidated balance sheet
assets") of the Borrowers and their Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP.
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrowers and their Restricted
Subsidiaries during such period on all Indebtedness of the Borrowers and their
Restricted Subsidiaries related to the borrowing of money or the obtaining of
credit outstanding during all or any part of such period, including payments
consisting of interest in respect of any Capitalized Lease and including
commitment fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of money (other than non-cash
interest or fees) solely to the extent that such fees are properly included as
interest expense in accordance with GAAP.
Consolidated Total Liabilities. All liabilities of the Borrowers and their
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP and classified as such on the consolidated balance sheet of the Borrowers
and their Restricted Subsidiaries.
Continuation Request. A notice given by the Canadian Borrower to the
Administrative Agent of the Canadian Borrower's election to continue a Canadian
LIBOR Rate Loan in accordance with Section 3.5.
Conversion Request. A notice given by the US Borrower to the
Administrative Agent of such Borrower's election to convert or continue a Loan
in accordance with Section 2.8.
Credit Agreement. This Amended and Restated Revolving Credit and Term Loan
Agreement, as amended, modified or supplemented and in effect from time to time,
including the Schedules and Exhibits hereto.
Creditors. See Section 7.7.
8
Debtor Relief Laws. 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. See Section 14.1.
Defaulting Lender. See Section 6.11.
Delinquent Lender. See Section 16.10.3.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of Capital Stock of any Person, other than dividends
payable solely in shares of common stock or similar non-preferred equity
interests of such Person; the purchase, redemption, or other retirement of any
shares of any class of Capital Stock of any Person, directly or indirectly
through a Subsidiary of such Person or otherwise; the return of capital by any
Person to its shareholders or equity holders as such; or any other distribution
on or in respect of any shares of any class of Capital Stock of any Person.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated
as such in Schedule II hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which all or any portion of any Loan is converted or continued in
accordance with Sections 2.8 or 3.5, as applicable.
Eligible Assignee. Any of (a) a Lender, (b) a Lender Affiliate, and (c)
any other Person (other than a natural person) approved by (i) the
Administrative Agent and (ii) unless an Event of Default under Sections 14.1(a),
(b), (c) (with respect to compliance with the covenants set forth in Section 11
only), (g) or (h) has occurred and is continuing, the Borrowers (each such
approval not to be unreasonably withheld or delayed).
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the US Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 8.15(a).
EPA. See Section 8.15(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate. Any Person which is treated as a single employer with the
US Borrower under Section 414(b), (c), (m) or (o) of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
9
Eurocurrency Interbank Market. Any lawful recognized market in which
deposits of Dollars and Canadian Dollars are offered by international banking
units of United States banking institutions and by foreign banking institutions
to each other and in which foreign currency and exchange operations or
eurocurrency funding operations are customarily conducted.
Eurocurrency Reserve Percentage. For any day during any Interest Period,
the reserve percentage (expressed as a decimal, carried out to five decimal
places) in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The LIBOR Rate
for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve Percentage.
Event of Default. See Section 14.1.
Excluded Taxes. With respect to the Administrative Agent, any Lender, or
any other recipient of any payment to be made by or on account of any obligation
of a Borrower hereunder or under any Loan Document, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction 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 of America or any similar tax imposed
by any other jurisdiction in which a branch of any Lender is located and (c) in
the case of a Non-U.S. Lender (other than an assignee pursuant to a request by a
Borrower under Section 6.11), any withholding tax that is imposed on amounts
payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes a party
to this Credit Agreement or is attributable to such Non-U.S. Lender's failure or
inability to comply with Section 6.12(d), except to the extent that such
Non-U.S. Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from a Borrower with respect to such withholding tax
pursuant to Section 6.12.
Existing Credit Agreement. See preamble.
Existing Letters of Credit. Those letters of credit issued by Fleet
National Bank for the account of the US Borrower or any of its Restricted
Subsidiaries prior to the Closing Date and listed on Schedule III hereto.
Federal Funds Rate. 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 US Business Day next
succeeding such day; provided that (a) if such day is not a US Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding US Business Day as so published on the next succeeding US
Business Day, and (b) if no such rate is so published on such next succeeding US
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. The fee letter dated as of September 29, 2004 among the
Administrative Agent, the Arranger and the Borrowers (the "Fee Letter").
Financial Affiliate. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary is engaging in any of the activities permitted by
Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. Section 1843).
10
FRA. The United States of America, represented by the Secretary of
Transportation acting through the Administrator of Federal Railroad
Administration or the Federal Railroad Administrator's designee.
Fund. 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 Debt to EBITDAR Ratio. At any date as of which such ratio shall be
determined, the ratio of (a) the aggregate outstanding amount of Consolidated
Funded Debt on such date to (b) Consolidated EBITDAR for the period of four
consecutive fiscal quarters most recently ended.
GAAP or generally accepted accounting principles. (a) When used in Section
11 and in the calculation of the Funded Debt to EBITDAR Ratio, whether directly
or indirectly through reference to a capitalized term used therein, means (i)
principles that are consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, in effect for the
fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent
with such principles, the accounting practice of the Borrowers reflected in its
financial statements for the year ended on the Balance Sheet Date, and (b) when
used in general, other than as provided above, means principles that are (i)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time,
and (ii) consistently applied with past financial statements of the Borrowers
adopting the same principles.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, its by-laws or, as the case may be, its certificate
of formation, its operating agreement or other constitutive documents and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of its Capital Stock.
Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Guaranteed Obligations. Collectively, the US Guaranteed Obligations and
the Canadian Guaranteed Obligations.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the US Borrower
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Guarantors. Collectively, GWI, Quebec, the Canadian Guarantors and the US
Guarantors, each of which guaranty certain Obligations pursuant to Section 7
hereof, which Guarantors for avoidance of doubt, shall not include GWI Holdings
Pty. Limited, an Australian limited company.
Guaranty. The guaranty of certain Obligations by each of the Guarantors
set forth in Section 7 of this Credit Agreement.
GWCA. See preamble.
GWCA Obligations. All obligations of GWCA to the Lenders and the
Administrative Agent (a) under or in respect of or in connection with GWCA's
guaranty of the Canadian Guaranteed Obligations
11
and including any interest thereon or fees in respect thereof and (b) all other
obligations of GWCA under the Loan Documents to which it is a party.
GWI Holdings Pty. Limited. An Australian limited company and wholly owned
Subsidiary of GWI.
GWI. See preamble.
Hazardous Substances. See Section 8.15(b).
Hedging Agreement. Any agreement, device or arrangement providing for
payments which are related to fluctuations of interest rates, exchange rates or
forward rates, including, but not limited to, dollar-denominated or
cross-currency interest rate agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency or
interest rate options, commodity swap agreements, commodity options, puts and
warrants.
Huron. Huron Central Railway Inc., a corporation constituted under the
laws of Ontario, Canada.
IFC. International Finance Corporation.
IFC Documents. Collectively, (a) the Project Documents consisting of: (i)
Concession Agreement, (ii) Asset Purchase Agreement, (iii) Technical Assistance
Agreement, (iv) Security Trust Indenture, (v) Urgent Repairs Agreement, (vi)
Credit Line Agreement, and (vii) Intercompany Loan Agreement; and (b) the
Transaction Documents consisting of: (i) Investment Agreement (IFC loan
agreement), (ii) Financial Support Agreement; (iii) Security Documents; (iv)
Subscription Agreement; (v) Put Option Agreement;(vi) Debt Service Reserve
Account Agreement; (vii) Custodian Bank Agreement; (viii) Letters of Credit;
(ix) CFCM Guarantee; (x) GoM Letter; and (xi) Concession Termination
Compensation Assignment Agreement.
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more
than 90 days overdue or which are being contested in good faith),
(e) every obligation of such Person under any Capitalized Lease,
(f) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps,
12
floors, collars and similar agreements), the value of which is dependent
upon interest rates, currency exchange rates, commodities or other indices
(a "derivative contract"),
(g) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result of
such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor and such terms are enforceable
under applicable law,
(h) every obligation, contingent or otherwise, of such Person
guarantying, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(a) through (h) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (t) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (u) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (v) any derivative contract
shall be the maximum amount of any termination or loss payment required to be
paid by such Person if such derivative contract were, at the time of
determination, to be terminated by reason of any event of default or early
termination event thereunder, whether or not such event of default or early
termination event has in fact occurred, and (w) any guaranty or other contingent
liability referred to in clause (h) shall be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such guaranty
or other contingent obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.
Indemnified Taxes. Taxes other than Excluded Taxes.
Instrument of Adherence (Guaranty). See Section 9.14.
Interest Payment Date. (a) As to any Base Rate Loan or Canadian Base Rate
Loan, the last day of the calendar quarter; (b) as to any LIBOR Rate Loan or
Canadian LIBOR Rate Loan in respect of which the Interest Period is (A) 3 months
or less, the last day of such Interest Period and (B) more than 3 months, the
date that is 3 months from the first day of such Interest Period and on the last
day of the Interest Period; and (c) with respect to any Swingline Loan, the day
that such Swingline Loan is required to be repaid.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by a Borrower in a Loan Request or
resulting from a conversion under Sections 2.8 or 3.5 (i) for any Base Rate Loan
or Canadian Base Rate Loan, the last day of the calendar quarter; (ii) for any
LIBOR Rate Loan, 1, 2, 3 or 6 (or, if agreed to by all Lenders, 9 or 12) months;
and (iii) for any Canadian LIBOR Rate Loan, 1, 2, 3 or 6 (or, if agreed to by
all Lenders, 9 or 12) months; and (b) thereafter, each period commencing on the
last
13
day of the preceding Interest Period applicable to such Loan and ending on the
last day of one of the periods set forth above, as selected by the applicable
Borrower; provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall be extended to the next succeeding LIBOR Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding LIBOR Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a US Business Day, that Interest Period shall end
on the next succeeding US Business Day;
(c) if any Interest Period with respect to a Canadian LIBOR Rate
Loan would end on a day that is not a Canadian Business Day or LIBOR
Business Day, that Interest Period shall end on the next succeeding
Canadian Business Day or LIBOR Business Day (as the case may be) unless
the result of such extension would be to cause such Interest Period to be
carried into its ninety-first (91st) day, in which event such Interest
Period shall end on the immediately preceding Canadian Business Day or
LIBOR Business Day (as the case may be);
(d) if the US Borrower shall fail to give notice as provided in
Section 2.8, such Borrower shall be deemed to have requested a conversion
of the affected LIBOR Rate Loan to a one month LIBOR Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last day of
the then current Interest Period with respect thereto;
(e) if the Canadian Borrower shall fail to give notice as provided
in Section 3.5, such Borrower shall be deemed to have requested a
conversion of the affected Canadian LIBOR Rate Loan to a 30-day Canadian
LIBOR Rate Loan on the last day of the then current Interest Period with
respect thereto;
(f) any Interest Period relating to any LIBOR Rate Loan that
begins on the last LIBOR 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 LIBOR Business Day
of a calendar month;
(g) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(h) interest shall accrue for the first day of each Interest
Period and each day thereafter up to but (provided that interest is timely
paid) not including the last day of such Interest Period.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98) as promulgated by the Institute
of International Banking Law & Practice, Inc., or any successor code of standby
letter of credit practices among banks adopted by the Issuing Lender in the
ordinary course of its business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to (other
than dispositions of property permitted by Section 10.5.3), or in respect of any
guaranties (or
14
other commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be included as an Investment
all interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (d) without duplication there shall be deducted in
respect of any Investment any amounts received as cash earnings on such
Investment, whether as dividends, interest or otherwise; and (e) there shall not
be deducted from the aggregate amount of Investments any decrease in the value
thereof.
Issuer Document. With respect to any Letter of Credit, the Letter of
Credit Application, and any other document, agreement and instrument entered
into by the Issuing Lender and US Borrower (or any Subsidiary) or in favor of
the Issuing Lender and relating to any such Letter of Credit.
Issuing Lender. Bank of America, in its capacity as issuer of Letters of
Credit pursuant to Section 5, or any other Lender selected by the Administrative
Agent to issue such Letter of Credit with the consent of the Borrowers and such
Lender.
Lender Affiliate. With respect to any Lender, (a) an Affiliate of such
Lender or (b) any Approved Fund.
Lenders. The Lenders listed on Schedule II, acting in their role as makers
of the Revolving Credit Loans and Canadian Term Loan and any other Person who
becomes an assignee of any rights and obligations of a Lender pursuant to
Section 20. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender and the Issuing Lender.
Letter of Credit. See Section 5.1.1.
Letter of Credit Application. See Section 5.1.1.
Letter of Credit Borrowing. An extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Revolving Credit Loan.
Letter of Credit Expiration Date. The day that is seven days prior to the
Maturity Date (or, if such day is not a US Business Day, the next preceding US
Business Day).
Letter of Credit Fee. See Section 5.10.
Letter of Credit Obligations. As of any date, the sum of the Maximum
Drawing Amount as of such date and all Unpaid Reimbursement Obligations as of
such date. 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 5.8. For all purposes of this Credit 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 International Standby Practices, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn.
Letter of Credit Participation. See Section 5.1.4.
15
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar and Canadian Dollar
deposits) in London or such other eurodollar interbank market as may be selected
by the Administrative Agent in its sole discretion acting in good faith.
LIBOR Lending Office. Initially, the office of each Lender designated as
such in Schedule II hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate Loans. Revolving Credit Loans bearing interest calculated by
reference to the LIBOR Rate.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, a
rate per annum determined by the Administrative Agent pursuant to the following
formula:
LIBOR Rate
LIBOR Base Rate = --------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"LIBOR Base Rate" means, for such Interest Period:
(a) the applicable Screen Rate for such Interest Period; or
(b) if the applicable Screen Rate shall not be available, the rate per
annum determined by the Administrative Agent as the rate of interest 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 LIBOR 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
4:00 p.m. (London time) two LIBOR Business Days prior to the first day of such
Interest Period.
Lien. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, or any financing lease
involving substantially the same economic effect as any of the foregoing).
Loan Documents. Collectively, this Credit Agreement, the Notes, the Letter
of Credit Applications, the Letters of Credit, the Fee Letter and any
Instruments of Adherence executed in connection herewith.
Loan Requests. Any Revolving Credit Loan or Swingline Loan Request.
Loans. Collectively, the Revolving Credit Loans, the Swingline Loans, and
the Canadian Term Loan.
Material Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
16
(a) a material adverse effect on the business, properties, financial
condition, assets, operations or income of the Borrowers and their Restricted
Subsidiaries, taken as a whole; or
(b) a material adverse effect on the rights, remedies or benefits
available to the Administrative Agent or any Lender under any Loan Document.
Maturity Date. November 12, 2009, or such earlier date as the Obligations
become due and payable pursuant to the terms of this Credit Agreement.
Maximum Drawing Amount. The sum of the maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Mirabel. See preamble.
▇▇▇▇▇'▇. ▇▇▇▇▇'▇ Investors Services, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the US Borrower or any ERISA
Affiliate.
Net Cash Proceeds. With respect to any sale or other disposition of any
assets of either Borrower or any of their Restricted Subsidiaries, or the
issuance and sale of equity securities or debt of either Borrower or any of
their Restricted Subsidiaries, or any Casualty Event, the gross consideration
received by either Borrower or any of their Restricted Subsidiaries (in cash)
from such sale, disposition, equity or debt issuance, net of commissions,
customary direct sales costs, normal closing adjustments, the amount used to
permanently repay any Indebtedness permitted by Section 10.1 (other than
Indebtedness under this Credit Agreement) secured by such assets, income taxes
attributable to such sale or disposition and professional fees and expenses
incurred directly in connection therewith, to the extent the foregoing are
actually paid in connection with such sale or disposition or equity or debt
issuance.
Non-U.S. Lender. See Section 6.12(d).
Note Record. The grid attached to a Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
Notes. Collectively, the Revolving Credit Notes and the Canadian Term
Notes.
Obligations. Collectively, the US Obligations and the Canadian
Obligations.
Other Taxes. See Section 6.12(b).
Outstanding or outstanding. With respect to the Loans, the aggregate
unpaid principal thereof as of the date of determination.
Participant. See Section 20.4.
Payment Event of Default. See Section 6.10.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
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Permitted Acquisition(s). See Section 10.5.2.
Permitted Liens. Liens permitted by Section 10.2.
Person. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, unincorporated association,
business, or other legal entity, and any government or any governmental agency
or political subdivision thereof.
Purchase Price. With respect to any Permitted Acquisition, all
consideration (other than consideration in the form of Capital Stock of any
Borrower or any Restricted Subsidiary) payable by any of the Borrowers or any of
their Restricted Subsidiaries in connection with such Permitted Acquisition,
including, without limitation, cash payments, the principal amount of any
promissory notes issued by any of the Borrowers or any of their Restricted
Subsidiaries, any amounts payable by any of the Borrowers or any of their
Restricted Subsidiaries in consideration for any non-compete covenant, deferred
purchase price, earn-out or similar payment and the amount of any Indebtedness
assumed by any of the Borrowers or any of their Restricted Subsidiaries.
Quebec. See preamble.
Rate Adjustment Period. See the definition of Applicable Margin.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by any of the Borrowers or any of their Restricted Subsidiaries.
Register. See Section 20.3.
Reimbursement Obligation. The US Borrower's obligation to reimburse the
Issuing Lender and the Lenders on account of any drawing under any Letter of
Credit as provided in Section 5.2.
Regulation S-X. Regulation S-X as defined and promulgated by the United
States Securities and Exchange Commission.
Related Parties. With respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
Replacement Lender. See Section 6.11.
Replacement Notice. See Section 6.11.
Required Lenders. As of any date, any two or more Lenders holding more
than fifty percent (50%) of the principal amount of the Loans on such date
(including the unfunded portion of the Commitments); and if no such principal is
outstanding, the Lenders whose aggregate Commitments constitute more than fifty
percent (50%) of the Total Commitment.
Restricted Payments. In relation to the Borrowers and their Restricted
Subsidiaries, any (a) Distribution or (b) derivatives or other transactions with
any financial institution, commodities or stock exchange or clearinghouse (a
"Derivatives Counterparty") obligating the Borrowers or any Restricted
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of any Capital Stock of the Borrowers or such Restricted
Subsidiary.
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Restricted Subsidiaries. Any Subsidiary which is not an Unrestricted
Subsidiary. The Borrowers shall not have the right to change the status of a US
or Canadian Unrestricted Subsidiary to a Restricted Subsidiary unless (a) such
US or Canadian Unrestricted Subsidiary becomes a Guarantor hereunder or (b) such
US or Canadian Unrestricted Subsidiary would fit within the exception set forth
in the last sentence of Section 9.14. The Borrowers shall not have the right to
change the status of a Restricted Subsidiary to an Unrestricted Subsidiary
without the consent of the Required Lenders.
Revolving Credit Loans. The revolving credit loans to be made by the
Lenders to the US Borrower pursuant to Section 2.1 hereof.
Revolving Credit Loan Request. See Section 2.6.
Revolving Credit Notes. See Section 2.4.
Same Day Funds. With respect to disbursement and payments (a) in Dollars,
immediately available funds, and (b) in Canadian Dollars, same day or other
funds as may be determined by the Administrative Agent or the Issuing Lender, as
the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in Canadian Dollars.
Screen Rate. For any Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two LIBOR Business Days prior to the first day of such Interest
Period; or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall cease to be available, the
rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in the
relevant currency (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two LIBOR Business Days prior to the first day of such
Interest Period.
Senior Notes. The 4.85% Series 2004-A notes issued by GWI pursuant to the
Note Purchase Agreement dated as of November 12, 2004 (the "NPA") in a principal
amount not to exceed $75,000,000.
Solvent. See Section 8.5.2.
S&P. Standard & Poor's Ratings Group.
St. ▇▇▇▇▇▇▇▇ & Atlantic Railroad (Quebec) Inc. A company existing under
the laws of the Province of Quebec, Canada.
STB. The Surface Transportation Board (the entity which succeeded to the
function and duties of the Interstate Commerce Commission) or any governmental
authority(ies) which succeeds to the function or duties of the Surface
Transportation Board or any portion thereof.
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Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Swingline Lender. Bank of America in its capacity as lender of Swingline
Loans hereunder.
Swingline Loan. Any loan made by the Swingline Lender to the US Borrower
pursuant to Section 2.7.1 hereof.
Swingline Expiry Date. The date which is five (5) US Business Days prior
to the Maturity Date.
Swingline Exposure. At any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender
at any time shall be its Commitment Percentage of the total Swingline Exposure
at such time.
Swingline Loan Request. See Section 2.7.2.
Swingline Sublimit. $15,000,000.
Syndication Agent. See preamble.
Taxes. Any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any foreign, federal, state,
regional, local, municipal or other government, or any department, commission,
board, bureau, agency, public authority or instrumentality thereof, or any court
or arbitrator.
Total Commitment. The sum of the Commitments of the Lenders, as in effect
from time to time.
Total Revolver Exposure. At any time, the sum of the outstanding Revolving
Credit Loans, Letter of Credit Obligations and Swingline
Loans.
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan or a
LIBOR Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Lender in the ordinary course of its business as a letter of credit
issuer and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the US Borrower does not reimburse the Issuing Lender and the Lenders on the
date specified in, and in accordance with, Section 5.2.
Unrestricted Subsidiaries. The Subsidiaries of the Borrowers as reflected
in Schedule 8.16 hereto. The Borrowers shall not have the right to change the
status of an Unrestricted Subsidiary to a Restricted Subsidiary unless such
Subsidiary (a) is a US or Canadian Subsidiary of a Borrower or Restricted
Subsidiary and (b) (i) shall become a Guarantor hereunder or (ii) fits within
the exception set forth in the last sentence of Section 9.14.
US Borrower. See preamble.
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US Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of LIBOR Rate Loans, also a day which is a LIBOR
Business Day.
US Guaranteed Obligations. See Section 7.1.
US Guarantors. See preamble.
US Obligations. All indebtedness, obligations and liabilities of the US
Borrower to the Lenders (including the Swingline Lender and the Issuing Lender)
and the Administrative Agent individually or collectively existing on the date
of this Credit Agreement or arising thereafter (a) under or in respect of or in
connection with any of the Revolving Credit Notes, Letters of Credit or Letter
of Credit Applications, or Revolving Credit Loans or Swingline Loans made, or
Reimbursement Obligations incurred and including any interest thereon,
Commitment Fees or other fees or expenses in respect thereof, (b) under any
Hedging Agreement between the US Borrower and any Lender (including the
Swingline Lender and the Issuing Lender) or any Lender Affiliate, and (c) all
other obligations under the Loan Documents.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification
to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein, with the term "instrument" being that defined
under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that section of
this Credit Agreement unless otherwise indicated.
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(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, 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."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Administrative Agent and the Borrowers and are the product of
discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be construed
against any party merely on account of such party's involvement in the
preparation of such documents.
2. THE REVOLVING CREDIT FACILITIES.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Credit Agreement, each of the Lenders severally agrees (a)
on the Closing Date, to convert the revolving credit loans and letters of
credit outstanding under the Existing Credit Agreement, if any, to
Revolving Credit Loans and Letters of Credit under this Credit Agreement
and (b) to lend to the US Borrower and the US Borrower may borrow, repay,
and reborrow from time to time between the Closing Date and the Maturity
Date upon notice by the US Borrower to the Administrative Agent given in
accordance with Section 2.6, such sums as are requested by the US Borrower
up to a maximum aggregate principal amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Lender's
Commitment (as such Commitment has been deemed to be reduced by such
Lender's Swingline Exposure), minus the amount of such Lender's Commitment
Percentage of the Letter of Credit Obligations; provided, that the Total
Revolver Exposure (after giving effect to all amounts requested) does not
exceed the Total Commitment. The Revolving Credit Loans shall be made pro
rata in accordance with each Lender's Commitment Percentage. Each request
for a Revolving Credit Loan hereunder shall constitute a representation
and warranty by the US Borrower that the conditions set forth in Section
12 and Section 13 hereof, in the case of the initial Revolving Credit
Loans to be made on the Closing Date, and Section 13 hereof, in the case
of all other Revolving Credit Loans, have been satisfied on the date of
such request.
2.2. COMMITMENT FEE. The US Borrower hereby agrees to pay to the
Administrative Agent for the accounts of the Lenders in accordance with
their respective Commitment Percentages, a commitment fee (the "Commitment
Fee") at the applicable Commitment Fee Rate per annum on the actual daily
amount during each calendar quarter or portion thereof from the Closing
Date to the Maturity Date by which the Total Commitment exceeds the sum of
the outstanding Revolving Credit Loans and the Letter of Credit
Obligations. The Commitment Fees shall be payable quarterly in arrears
within three days of the last day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the Closing Date, with a final payment on the Maturity Date or
any earlier date on which the applicable Commitments shall terminate.
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2.3. REDUCTION OF COMMITMENTS.
The US Borrower shall have the right at any time and from time to time
upon three (3) US Business Days prior written notice to the Administrative Agent
to reduce by $5,000,000 or a whole multiple of $1,000,000 in excess thereof or
to terminate entirely the Total Commitment, whereupon the Commitments of the
Lenders shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the US Borrower delivered
pursuant to this Section 2.3, the Administrative Agent will notify the Lenders
of the substance thereof. No reduction or termination of the Commitments may be
reinstated.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall
be evidenced by separate promissory notes of the US Borrower in
substantially the form of Exhibit A hereto (each a "Revolving Credit
Note"), dated as of the Closing Date (or other such date on which a Lender
may become a party hereto in accordance with Section 20 hereof) and
completed with appropriate insertions. One Revolving Credit Note shall be
payable to the order of each Lender in a principal amount equal to such
Lender's Commitment on the Closing Date. The US Borrower irrevocably
authorizes each Lender to make or cause to be made, at or about the time
of the Drawdown Date of any Revolving Credit Loan or at the time of
receipt of any payment of principal on such Lender's Revolving Credit
Notes, an appropriate notation on such Lender's Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt
of such payment. The outstanding amount of the Revolving Credit Loans set
forth on such Lender's Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Lender, but the failure
to record, or any error in so recording, any such amount on such Lender's
Note Record shall not limit or otherwise affect the obligations of the US
Borrower hereunder or under any Revolving Credit Notes to make payments of
principal of or interest on any Revolving Credit Notes when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise
provided in Section 6.10:
(a) Each Revolving Credit Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at a rate per annum equal to (i)
the Base Rate plus the Applicable Margin with respect to Base Rate Loans
as in effect from time to time or (ii) the LIBOR Rate determined for such
Interest Period plus the Applicable Margin with respect to LIBOR Rate
Loans as in effect from time to time.
(b) The US Borrower promises to pay interest on the outstanding
amount of its Revolving Credit Loans on each Interest Payment Date with
respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS. The US Borrower shall
give to the Administrative Agent written notice in the form of Exhibit C-1
hereto (or telephonic notice confirmed in a writing in the form of Exhibit
C-1 hereto) of each Revolving Credit Loan requested hereunder (a
"Revolving Credit Loan Request") not later than (a) one (1) US Business
Day prior to any Drawdown Date of any Base Rate Loan or (b) three (3)
LIBOR Business Days prior to any Drawdown Date of any LIBOR Rate Loan.
Each such notice shall specify (i) the principal amount of the Revolving
Credit Loan requested, (ii) the proposed Drawdown Date of such Revolving
Credit Loan, (iii) the Interest Period for such Revolving Credit Loan, and
(iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Lenders
thereof. Each such notice shall be irrevocable and binding on the US
Borrower and shall obligate the US Borrower to accept the
23
requested Revolving Credit Loan on the proposed Drawdown Date thereof.
Each Revolving Credit Loan Request shall be in a minimum aggregate amount
of $500,000 or an integral multiple thereof.
2.7. THE SWINGLINE.
2.7.1. SWINGLINE LOANS. Subject to the terms and conditions
hereinafter set forth, upon notice by the US Borrower made to the
Swingline Lender in accordance with Section 2.7.2 hereof, the Swingline
Lender agrees to lend to the US Borrower Swingline Loans on any US
Business Day prior to the Swingline Expiry Date in an aggregate principal
amount not to exceed the Swingline Sublimit. Each Swingline Loan shall be
in a minimum amount equal to $500,000 or a multiple of $100,000 in excess
thereof. Notwithstanding any other provisions of this Credit Agreement and
in addition to the limit set forth above, at no time shall the Total
Revolver Exposure exceed the Total Commitment at such time. The Swingline
Loans are being made for the administrative convenience of the US
Borrower, the Swingline Lender and the Lenders. Notwithstanding any other
provisions of this Credit Agreement, the Swingline Lender shall not
advance any Swingline Loans after it has received notice from any Lender
or the Administrative Agent that a Default or Event of Default has
occurred and is continuing and stating that no new Swingline Loans are to
be made until such Default or Event of Default has been cured or waived in
accordance with the provisions of this Credit Agreement. The Swingline
Lender shall not be obligated to make any Swingline Loans at any time when
any Lender is a Delinquent Lender unless the Swingline Lender has entered
into arrangements satisfactory to it to eliminate the Swingline Lender's
risk with respect to such Delinquent Lender, including by cash
collateralizing such Delinquent Lender's Commitment Percentage of the
outstanding Swingline Loans and any such additional Swingline Loans to be
made. Within the foregoing limits and subject to the terms and conditions
set forth herein, the US Borrower may borrow, prepay and reborrow
Swingline Loans.
2.7.2. REQUEST FOR SWINGLINE LOANS. To request a Swingline Loan, the
US Borrower shall send to the Administrative Agent and the Swingline
Lender written notice in the form of Exhibit C-2 hereto (or telephonic
notice confirmed in a writing in the form of Exhibit C-2 hereto) of each
Swingline Loan requested hereunder (a "Swingline Loan Request") not later
than 1:00 p.m. (Eastern time) on the proposed Drawdown Date of any
Swingline Loan. Each such Swingline Loan Request shall set forth the
principal amount of the proposed Swingline Loan and the Drawdown Date of
such Swingline Loan. Each Swingline Loan Request shall be irrevocable and
binding on the US Borrower and shall obligate the US Borrower to borrow
the Swingline Loan from the Swingline Lender on the proposed Drawdown Date
thereof. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from the US Borrower. Upon satisfaction
of the applicable conditions set forth in this Credit Agreement, on the
proposed Drawdown Date the Swingline Lender shall make the Swingline Loan
available to the US Borrower no later than 3:00 p.m. (Eastern time) on the
proposed Drawdown Date by crediting the amount of the Swingline Loan to
the general deposit account of the US Borrower maintained with the
Swingline Lender.
2.7.3. BORROWINGS TO REPAY SWINGLINE LOANS. The US Borrower,
absolutely, irrevocably and unconditionally promises to pay on the
Swingline Expiry Date in full the outstanding principal balance of all
Swingline Loans. The US Borrower may prepay the Swingline Loans at any
time without penalty or premium. In addition, the Swingline
24
Lender may, on any US Business Day, in its sole discretion, demand
repayment of the Swingline Loans and the Administrative Agent shall give
notice to the Lenders that the outstanding Swingline Loans shall be funded
with a borrowing of Revolving Credit Loans (provided that each such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or Event of Default under Section 14.1(g) or (h) or upon the
exercise of remedies provided in the last paragraph of Section 14.1), in
which case each of the Lenders shall make Revolving Credit Loans
constituting Base Rate Loans to the US Borrower, on the next succeeding US
Business Day following such notice, in an amount equal to such Lender's
Commitment Percentage of the aggregate amount of all Swingline Loans
outstanding to the US Borrower. The proceeds thereof shall be applied
directly to the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each Lender hereby absolutely,
unconditionally and irrevocably agrees to make such Revolving Credit Loans
upon one US Business Day's notice as set forth above, notwithstanding (a)
that the amount of such Revolving Credit Loan may not comply with the
applicable minimums otherwise required hereunder, (b) the failure of the
US Borrower to meet the conditions set forth in Sections 12 or 13 hereof,
(c) the occurrence or continuance of a Default or an Event of Default
hereunder, (d) the date of such Revolving Credit Loan, and (e) the amount
of, or termination of, the Total Commitment at such time. In the event
that it is impracticable for such Revolving Credit Loan to be made for any
reason on the date otherwise required above (including as a result of the
commencement of a proceeding under the federal Bankruptcy Code in respect
of either of the Borrowers or any of the Restricted Subsidiaries), then
each Lender hereby agrees that it shall forthwith purchase (as of the date
such Revolving Credit Loan would have been made, but adjusted for any
payments received from the US Borrower on or after such date and prior to
such purchase) from the Swingline Lender, and the Swingline Lender shall
sell to each Lender, such participations in the Swingline Loans (including
all accrued and unpaid interest thereon) outstanding as shall be necessary
to cause the Lenders to share in such Swingline Loans pro rata based on
their respective Commitment Percentages (without regard to any termination
of the Total Commitment hereunder) by making available to the Swingline
Lender an amount equal to such Lender's participation in the Swingline
Loans; provided that (x) all interest payable on the Swingline Loans shall
be for the account of the Swingline Lender as a funding and administrative
fee until the date as of which the respective participation is purchased,
and (y) at the time any purchase of such participation is actually made,
the purchasing Lender shall be required to pay the Swingline Lender
interest on the principal amount of the participation so purchased for
each day from and including the date such Revolving Credit Loan would
otherwise have been made until the date of payment for such participation
at the rate of interest in effect applicable to Base Rate Loans during
such period.
2.7.4. EVIDENCE OF SWINGLINE LOAN OBLIGATIONS. The Swingline Lender
shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the US Borrower to the Swingline
Lender resulting from each Swingline Loan made by the Swingline Lender,
including the amounts of principal and interest payable and paid to the
Swingline Lender from time to time hereunder. The outstanding amount of
the Swingline Loans set forth on such accounts shall be prima facie
evidence of the principal amount thereof owing and unpaid to the Swingline
Lender, but the failure to record, or any error in so recording, any such
amount on such accounts shall not limit or otherwise affect the actual
amount of the obligations of the US Borrower hereunder to make payments of
principal of or interest on the Swingline Loans when due.
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2.7.5. INTEREST ON SWINGLINE LOANS. Except as otherwise provided in
Section 6.10, each Swingline Loan shall bear interest from the Drawdown
Date thereof until repaid in full or converted into a Revolving Credit
Loan at the rate per annum equal to the Base Rate plus the Applicable
Margin as in effect from time to time. Swingline Loans may not be
converted into LIBOR Rate Loans. The US Borrower promises to pay interest
on the outstanding amount of its Swingline Loans on each Interest Payment
Date with respect thereto.
2.8. US BORROWER'S CONVERSION OPTIONS; CONTINUATION OF LOANS.
2.8.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The US
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (a)
with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the US Borrower shall give the Administrative Agent at least one (1)
US Business Day prior written notice of such election; (b) with respect to
any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the US
Borrower shall give the Administrative Agent at least three (3) LIBOR
Business Days prior written notice of such election; (c) with respect to
any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; (d) no Base Rate Loan may be converted into a LIBOR Rate
Loan when a Payment Event of Default or an Event of Default under Section
14.1 (g) or (h) has occurred and is continuing; and (e) no more than ten
(10) LIBOR Rate Loans having different Interest Periods may be outstanding
at any time. On the date on which such conversion is being made, each
Lender shall take such action as is necessary to transfer its Commitment
Percentage of such Revolving Credit Loans to its Domestic Lending Office
or its LIBOR Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted into a
Revolving Credit Loan of another Type as provided herein, provided that
any partial conversion shall be in an aggregate principal amount of
$500,000 or a whole multiple thereof. Each Conversion Request relating to
the conversion of a Revolving Credit Loan to a LIBOR Rate Loan shall be
irrevocable by the US Borrower.
2.8.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loan of any Type may be continued by the US Borrower as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the US Borrower with the notice
provisions contained in Section 2.8.1; provided that no LIBOR Rate Loan
may be continued as such when a Payment Event of Default or an Event of
Default under Section 14.1 (g) or (h) has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of
the first Interest Period relating thereto ending during the continuance
of such an Event of Default of which officers of the Administrative Agent
active upon the US Borrower's account have actual knowledge. In the event
that the US Borrower fails to provide any such notice with respect to the
continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan
shall be automatically continued with an Interest Period of one month on
the last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Lenders promptly when any such
automatic continuation contemplated by this Section 2.8 is scheduled to
occur.
2.8.3. LIBOR RATE LOANS.
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(a) Any conversion by the US Borrower to or from LIBOR Rate Loans
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all LIBOR
Rate Loans having the same Interest Period shall not be less than $500,000
or a whole multiple of $500,000.
(b) If the US Borrower wishes to request LIBOR Rate Loans having
an Interest Period other than 1, 2, 3 or 6 months in duration as provided
in the definition of "Interest Period", the applicable notice must be
received by the Administrative Agent not later than 11:00 a.m. four (4)
LIBOR Business Days prior to the requested date of such borrowing,
conversion or continuation of LIBOR Rate Loans in Dollars, whereupon the
Administrative Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable
to all of them. Not later than 11:00 a.m., three (3) LIBOR Business Days
before the requested date of such borrowing, conversion or continuation of
LIBOR Rate Loans denominated in Dollars, the Administrative Agent shall
notify the US Borrower (which notice may be by telephone) whether or not
the requested Interest Period has been consented to by all the Lenders.
2.9. FUNDS FOR REVOLVING CREDIT LOANS.
2.9.1. FUNDING PROCEDURES. Not later than 2:00 p.m. (Boston time) on
the proposed Drawdown Date of any Revolving Credit Loan, each of the
Lenders will make available to the Administrative Agent at its head
office, in immediately available funds, the amount of such Lender's
Commitment Percentage of such Revolving Credit Loans made or to be made on
such date. Upon receipt from each Lender of such amount, and upon receipt
of the documents required by Sections 12 (with respect to Revolving Credit
Loans to be made on the Closing Date) and 13 hereof and the satisfaction
of the other conditions set forth herein, to the extent applicable, the
Administrative Agent will make available to the US Borrower the aggregate
amount of such Revolving Credit Loans made available to the Administrative
Agent by the Lenders. The failure or refusal of any Lender to make
available to the Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Lender from its several
obligation hereunder to make available to the Administrative Agent the
amount of such other Lender's Commitment Percentage of any requested
Revolving Credit Loans. In the event that the Administrative Agent becomes
aware of any Lender's failure to make available the amount of its
Commitment Percentage of any requested Revolving Credit Loan, the
Administrative Agent shall notify the US Borrower of the identity of such
Lender and the amount such Lender has not made available to the
Administrative Agent.
2.9.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative Agent
may, unless notified to the contrary by any Lender prior to a Drawdown
Date of a Revolving Credit Loan, assume that such Lender has made
available to the Administrative Agent on such Drawdown Date the amount of
such Lender's Commitment Percentage of the Revolving Credit Loans to be
made on such Drawdown Date, and the Administrative Agent may (but it shall
not be required to), in reliance upon such assumption, make available to
the US Borrower a corresponding amount. If any Lender makes available to
the Administrative Agent such amount on a date after such Drawdown Date,
such Lender shall pay to the Administrative Agent on demand an amount
equal to the product of (a) the average computed for the period referred
to in clause (c) below, of the Federal Funds Rate, times (b) the amount of
such Lender's Commitment Percentage of such Revolving Credit Loans, times
(c) a fraction, the numerator of which is the number of days that shall
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have elapsed from and including such Drawdown Date to the date on which
the amount of such Lender's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the Administrative Agent, and
the denominator of which is 360. A statement of the Administrative Agent
submitted to such Lender with respect to any amounts owing under this
paragraph shall be prima facie evidence of the amount due and owing to the
Administrative Agent by such Lender. If the amount of such Lender's
Commitment Percentage of such Revolving Credit Loans is not made available
to the Administrative Agent by such Lender within three (3) US Business
Days following such Drawdown Date, the Administrative Agent shall be
entitled to recover such amount from the US Borrower on demand, with
interest thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.
3. THE CANADIAN TERM LOAN.
3.1. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Credit Agreement, each Lender agrees to lend Canadian
Dollars to the Canadian Borrower on the Closing Date in the amount of its
Commitment Percentage of the principal amount of Cdn.$38,500,000 (the
"Canadian Term Loan").
3.2. CANADIAN TERM NOTES. The Canadian Term Loan shall be evidenced
by separate promissory notes of the Canadian Borrower in substantially the
form of Exhibit B hereto (a "Canadian Term Note"), dated the Closing Date
(or such other date on which a Lender may become a party hereto in
accordance with Section 20 hereof) and completed with appropriate
insertions. One Canadian Term Note shall be payable to the order of each
Lender in a principal amount equal to such Lender's Commitment Percentage
of the Canadian Term Loan and representing the Obligation of the Canadian
Borrower to pay to such Lender such principal amount, in Canadian Dollars,
plus interest accrued thereon, as set forth below. The Canadian Borrower
irrevocably authorizes each Lender to make or cause to be made a notation
on such Lender's Note Record reflecting the original principal amount of
such Lender's Commitment Percentage of the Canadian Term Loan and, at or
about the time of such Lender's receipt of any principal payment on such
Lender's Canadian Term Note, an appropriate notation on such Lender's Note
Record reflecting such payment. The aggregate unpaid amount set forth on
such Lender's Note Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Lender, but the failure to record,
or any error in so recording, any such amount on such Lender's Note Record
shall not affect the obligations of the Canadian Borrower hereunder or
under any Canadian Term Note to make payments of principal of and interest
on any Canadian Term Note when due.
3.3. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF CANADIAN TERM
LOAN.
3.3.1. INSTALLMENT PAYMENTS. The Canadian Borrower promises to
pay to the Administrative Agent for the account of the Lenders, in
accordance with their respective Commitment Percentages, the
principal amount of the Canadian Term Loan in twenty (20)
consecutive quarterly installments as set forth below:
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PRINCIPAL AMOUNT OF
PAYMENT DATE EACH QUARTERLY INSTALLMENT
------------ --------------------------
March 31, 2005 - September 30, 2009 1.25% of the original principal amount of the
Canadian Term Loan
Maturity Date An amount equal to 76.25% of the original
principal amount of the Canadian Term Loan
Notwithstanding the foregoing mandatory repayment schedule, the Lenders and the
Canadian Borrower agree that in no event shall the aggregate amount of scheduled
repayments of principal of the Canadian Term Loan exceed twenty-five percent
(25%) of the original principal amount of the Canadian Term Loan during the
period commencing on the Closing Date and ending on the last date immediately
prior to the Maturity Date, and, in no event, other than upon an acceleration
after an occurrence of an Event of Default, shall the Canadian Borrower be
obliged to make principal payments to the Lenders in excess of such amount prior
to the Maturity Date. Installments on the Canadian Term Loan shall be due and
payable on the last Canadian Business Day of each quarter after the Closing
Date, commencing on March 31, 2005, with a final payment on the Maturity Date.
3.4. INTEREST ON CANADIAN TERM LOAN. Except as otherwise provided
in Section 6.10, the outstanding amount of the Canadian Term Loan shall
bear interest at the Canadian LIBOR Rate or, solely pursuant to Sections
6.4 or 6.5, the Canadian Base Rate plus the Applicable Margin for Canadian
LIBOR Rate Loans or Canadian Base Rate Loans (as the case may be) as in
effect from time to time. Interest shall be payable on each Interest
Payment Date with respect thereto and on the Maturity Date. The Canadian
Borrower promises to pay interest on the Canadian Term Loan from the
Closing Date until the Maturity Date in accordance with the provisions of
this Section 3.4.
3.5. NOTIFICATION BY CANADIAN BORROWER. The Canadian Borrower shall
notify the Administrative Agent, such notice to be irrevocable, at least
three (3) LIBOR Business Days prior to the Drawdown Date of the Canadian
Term Loan of the Interest Period for the Canadian Term Loan; provided,
however, that if the Canadian Borrower wishes to request Canadian LIBOR
Rate Loans having an Interest Period other than 1, 2, 3 or 6 months in
duration as provided in the definition of "Interest Period", the
applicable notice must be received by the Administrative Agent not later
than 11:00 a.m. five (5) LIBOR Business Days prior to the requested date
of such borrowing, conversion or continuation of Canadian LIBOR Rate Loans
denominated in Canadian Dollars, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether
the requested Interest Period is acceptable to all of them. Not later than
11:00 a.m. three (3) LIBOR Business Days before the requested date of such
borrowing, conversion or continuation of Canadian LIBOR Rate Loans
denominated in Canadian Dollars, the Administrative Agent shall notify the
Canadian Borrower (which notice may be by telephone) whether or not the
requested Interest Period has been consented to by all the Lenders. After
the Canadian Term Loan has been made, so long as the provisions of
Sections 6.4 or 6.5 do not apply, the Canadian Borrower shall deliver to
the Administrative Agent at least three (3) LIBOR Business Days prior to
the last day of any Interest Period applicable to the Canadian Term Loan,
a Continuation Request in substantially the form of Exhibit C-3 attached
hereto specifying the next subsequent Interest Period for the Canadian
Term Loan; provided that no Canadian LIBOR Rate Loan may be continued as
such when a Payment Event of Default or an Event of Default under Section
14.1 (g) or (h) has occurred and is continuing, but shall be automatically
converted to a Canadian Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of such an
Event of Default of which officers of the Administrative Agent active upon
the Canadian Borrower's account have actual knowledge.
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3.6. INTEREST PERIODS. No Interest Period relating to the Canadian
Term Loan or any portion thereof bearing interest at the Canadian LIBOR
Rate shall extend beyond the date on which the regularly scheduled
installment payments of the principal of the Canadian Term Loan is to be
made, unless a portion of the Canadian Term Loan at least equal to such
installment payments has an Interest Period ending on such date.
4. MANDATORY REPAYMENT OF LOANS.
4.1. MATURITY OF LOANS. The Canadian Term Loan and the Revolving
Credit Loans shall be absolutely due and payable on the Maturity Date. The
US Borrower hereby promises to pay to the Administrative Agent for the pro
rata accounts of the Lenders all of the outstanding Revolving Credit
Loans, together with any and all accrued and unpaid interest thereon on
the Maturity Date. The Canadian Borrower hereby promises to pay to the
Administrative Agent for the pro rata accounts of the Lenders, the
outstanding Canadian Term Loan, together with any and all accrued and
unpaid interest thereon, on the Maturity Date.
4.2. MANDATORY REPAYMENTS OF LOANS. If at any time for any reason
the Total Revolver Exposure exceeds the Total Commitment, then the US
Borrower shall immediately pay the amount of such excess to the
Administrative Agent for the respective accounts of the applicable
Lenders.
4.3. OPTIONAL REPAYMENTS OF LOANS.
4.3.1. REVOLVING CREDIT LOANS. The US Borrower shall have the
right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without
penalty or premium, provided that, subject to compliance with
Section 6.9, any full or partial prepayment of the outstanding
amount of any Revolving Credit Loan that is a LIBOR Rate Loan
pursuant to this Section 4.3.1 may be made on a day other than the
last day of the Interest Period relating thereto. The US Borrower
shall give the Administrative Agent, no later than 10:00 a.m.,
Boston time, at least (a) one (1) US Business Day prior written
notice of any proposed prepayment of a Revolving Credit Loan that is
a Base Rate Loan pursuant to this Section 4.3.1, and (b) two (2)
LIBOR Business Days prior written notice of any proposed prepayment
of a Revolving Credit Loan that is a LIBOR Rate Loan pursuant to
this Section 4.3.1, in each case specifying the proposed date of
prepayment of such Revolving Credit Loan and the principal amount to
be paid. Each such partial prepayment of the Revolving Credit Loan
shall be in an integral multiple of $500,000 and shall be applied by
the Administrative Agent, in the absence of instruction by the US
Borrower, first to the principal of Base Rate Loans and then to the
principal of LIBOR Rate Loans. Each partial prepayment shall be
allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
Lender's Revolving Credit Note being prepaid, with adjustments to
the extent practicable to equalize any prior repayments not exactly
in proportion.
4.3.2. CANADIAN TERM LOAN. The Canadian Borrower shall have
the right at any time to prepay the Canadian Term Loan on or before
the Maturity Date, as a whole, or in part, upon not less than two
(2) Canadian Business Days prior written notice to the
Administrative Agent, without premium or penalty, provided that,
subject to compliance with Section 6.9, (a) each partial prepayment
shall be in an integral multiple of Cdn. $500,000, (b) any full or
partial portion of the Canadian Term Loan bearing interest at the
Canadian LIBOR Rate may be prepaid pursuant to this Section 4.3.2 on
a day other than the last day of the Interest Period relating
thereto, and (c) each partial prepayment shall be allocated among
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the Lenders in accordance with such Lender's Commitment Percentage.
Any prepayment of principal of the Canadian Term Loan shall include
all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Canadian
Term Loan in direct order of maturity. No amount repaid with respect
to the Canadian Term Loan may be reborrowed.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof and the execution
and delivery by the US Borrower of a letter of credit application on the
Issuing Lender's customary form (a "Letter of Credit Application"), the
Issuing Lender on behalf of the Lenders and in reliance upon the agreement
of the Lenders set forth in Section 5.1.4 and upon the representations and
warranties of the US Borrower contained herein, agrees, in its individual
capacity, to issue and extend for the account of the US Borrower (to
support obligations of the US Borrower or its Subsidiaries) one or more
standby or documentary letters of credit (individually, a "Letter of
Credit"), in such form as may be requested from time to time by the US
Borrower and agreed to by the Issuing Lender; provided, however, that,
after giving effect to such request, (i) the outstanding Letter of Credit
Obligations do not exceed $15,000,000, and (ii) the Total Revolver
Exposure shall not exceed the Total Commitment. Notwithstanding any other
provisions of this Credit Agreement, the Issuing Lender shall not issue or
extend a Letter of Credit after it has received notice from any Lender or
the Administrative Agent that a Default or Event of Default has occurred
and stating that no Letters of Credit are to be issued or extended until
such Default or Event of Default has been cured or waived in accordance
with the provisions of this Credit Agreement.
(b) The Issuing Lender shall not be under any obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from issuing such Letter of Credit, or
any Law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall prohibit,
or request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Lender with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which
the Issuing Lender is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the Issuing Lender
any unreimbursed loss, cost or expense which was not applicable on
the date hereof and which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(ii) the issuance of such Letter of Credit would violate (A)
any Laws or (B) one or more policies of the Issuing Lender, provided
that such policies have been disclosed to the US Borrower prior to
its request for the issuance of such Letter of Credit;
(iii) except as otherwise agreed by the Issuing Lender, such
Letter of Credit is in an initial face amount less than $50,000;
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(iv) such Letter of Credit is to be denominated in a currency
other than Dollars;
(v) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(vi) a default of any Lender's obligations to fund under
Section 5.3 exists or any Lender which has a Revolving Credit Loan
has failed to fund any portion of any participations in Letter of
Credit Obligations required to be funded by it hereunder, unless the
Issuing Lender has entered into satisfactory arrangements with the
US Borrower or such Lender to eliminate the Issuing Lender's risk
with respect to such Lender.
5.1.2. LETTER OF CREDIT APPLICATIONS.
(a) Each Letter of Credit Application shall be completed to the
satisfaction of the Issuing Lender. In the event that any provision of any
Letter of Credit Application shall be inconsistent with any provision of
this Credit Agreement, then the provisions of this Credit Agreement shall,
to the extent of any such inconsistency, govern. Such Letter of Credit
Application must be received by the Issuing Lender not later than 11:00
a.m. at least two US Business Days (or such later date and time as the
Administrative Agent and the Issuing Lender may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. 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 satisfactory to the Issuing Lender: (i)
the proposed issuance date of the requested Letter of Credit (which shall
be a US Business Day); (ii) the amount thereof; (iii) the expiry date
thereof; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (vii) such other
matters as the Issuing Lender may 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 satisfactory to the Issuing
Lender (w) the Letter of Credit to be amended; (x) the proposed date of
amendment thereof (which shall be a US Business Day); (y) the nature of
the proposed amendment; and (z) such other matters as the Issuing Lender
may require. Additionally, US Borrower shall furnish to the Issuing Lender
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 Issuing Lender or the
Administrative Agent may require. Unless the Issuing Lender has received
written notice from any Lender, the Administrative Agent or any Loan
Party, at least one US Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions in Section 13 shall not then be satisfied, then,
subject to the terms and conditions hereof, the Issuing Lender shall, on
the requested date, issue a Letter of Credit for the account of US
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the Issuing Lender'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 Issuing Lender a risk
participation in such Letter of Credit in an amount equal to the product
of such Lender's Revolving Credit Loan Percentage times the amount of such
Letter of Credit.
(b) Promptly after receipt of any Letter of Credit Application,
the Issuing Lender 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 Company and, if not, the
32
Issuing Lender will provide the Administrative Agent with a copy thereof.
Unless the Issuing Lender has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one US Business Day prior
to the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in Section 13
shall not then be satisfied, then, subject to the terms and conditions
hereof, the Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the US Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the Issuing
Lender'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
Issuing Lender a risk participation in such Letter of Credit in an amount
equal to the product of Lender's Commitment Percentage times the amount of
such Letter of Credit.
5.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit
issued or extended hereunder shall, among other things, (a) provide
for the payment of sight drafts for honor thereunder when presented
in accordance with the terms thereof and when accompanied by the
documents described therein, (b) subject to clause (c) hereof, shall
have a term of not more than one (1) year from the date of issuance
or extension thereof and (c) have an expiry date no later than the
date which is five (5) US Business Days prior to the Maturity Date.
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.
5.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS. Each Lender
severally agrees that it shall be absolutely liable, without regard
to the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Lender's
Commitment Percentage, to reimburse the Issuing Lender on demand for
the amount of each draft paid by the Issuing Lender under each
Letter of Credit to the extent that such amount is not reimbursed by
the US Borrower pursuant to Section 5.2 (such agreement for a Lender
being called herein the "Letter of Credit Participation" of such
Lender). Without limiting the foregoing, each Lender's obligation to
purchase Letter of Credit Participations 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 the Administrative
Agent, the Issuing Lender, the US Borrower or any other Person for
any reason whatsoever; (b) the occurrence and continuation of any
Default or Event of Default; (c) any adverse change in the condition
(financial or otherwise) of the US Borrower, any of the US
Guarantors or any Lender; (d) any breach of any of the Loan
Documents by the US Borrower, any of the US Guarantors or any
Lender; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
5.1.5. PARTICIPATIONS OF LENDERS. Each such payment made by a
Lender shall be treated as the purchase by such Lender of a
participating interest in the US Borrower's Reimbursement Obligation
under Section 5.2 in an amount equal to such payment. Each Lender
shall share in accordance with its participating interest in any
interest which accrues pursuant to Section 5.2.
5.2. REIMBURSEMENT OBLIGATION OF THE US BORROWER. In order to
induce the Issuing Lender to issue and extend each Letter of Credit and
the Lenders to participate therein, the US Borrower hereby agrees to
reimburse or pay to the Administrative Agent, for the account of the
Issuing Lender or (as the case may be) the Lenders, with respect to each
Letter of Credit issued or extended by the Issuing Lender hereunder:
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(a) except as otherwise expressly provided in Section 5.2(b) and
(c), on each date that any draft presented under such Letter of Credit is
honored by the Issuing Lender, or the Issuing Lender otherwise makes a
payment with respect thereto, (i) the amount paid by the Issuing Lender
under or with respect to such Letter of Credit, and (ii) the amount of any
taxes, fees, charges or other costs and expenses whatsoever incurred by
the Issuing Lender or any Lender in connection with any payment made by
the Issuing Lender or any Lender under, or with respect to, such Letter of
Credit;
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be held by the Administrative
Agent for the benefit of the Issuing Lender as cash collateral for all
Reimbursement Obligations; and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters
of Credit in accordance with Section 14, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which amount shall be
held by the Administrative Agent for the benefit of the Issuing Lender as
cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the US Borrower under this Section 5.2 at
any time from the date such amounts become due and payable (whether as stated in
this Section 5.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent.
5.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Issuing Lender shall notify the US Borrower and the Administrative Agent
of the date and amount of the draft presented or demand for payment and of
the date and time when it expects to pay such draft or honor such demand
for payment. If the US Borrower fails to reimburse the Administrative
Agent for the account of the Issuing Lender as provided in Section 5.2 on
or before the date that such draft is paid or other payment is made by the
Issuing Lender, the Administrative Agent will promptly notify the Lenders
of the amount of any such Unpaid Reimbursement Obligation and shall
specify such amount required from each of the Lenders. No later than 3:00
p.m. (Boston time) on the US Business Day next following the receipt of
such notice, each US Lender shall make available to the Administrative
Agent, at its Head Office, in immediately available funds, such Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation, together
with an amount equal to (a) the average, computed for the period referred
to in clause (c) below, of the Federal Funds Rate, times (b) the amount
equal to such Lender's Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which is the number of
days that elapse from and including the date the Issuing Lender paid the
draft presented for honor or otherwise made payment to the date on which
such Lender's Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to the Administrative Agent,
and the denominator of which is 360. The responsibility of the Issuing
Lender to the US Borrower and the Lenders shall be only to determine that
the documents (including each draft) delivered under each Letter of Credit
in connection with such presentment shall be in conformity in all material
respects with such Letter of Credit. From and after such purchase of the
applicable Letter of Credit Participations, such Unpaid Reimbursement
Obligations shall be deemed to have been converted into Base Rate Loans
made by the Lenders.
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5.4. OBLIGATIONS ABSOLUTE. The obligation of US Borrower to
reimburse the Issuing Lender for each drawing under each Letter of Credit
shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement under all
circumstances (other than in the case of gross negligence or willful
misconduct of the Issuing Lender), including the following:
(a) any lack of validity or enforceability of such Letter of
Credit, this Credit Agreement, or any other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense or
other right that US Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the Issuing Lender
or any other Person, whether in connection with this Credit Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(c) 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;
(d) any payment by the Issuing Lender 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
Issuing Lender 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; or
(e) 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, US
Borrower.
US 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 US Borrower's instructions or other irregularity, US Borrower
will immediately notify the Issuing Lender. US Borrower shall be conclusively
deemed to have waived any such claim against the Issuing Lender and its
correspondents unless such notice is given as aforesaid.
5.5. ROLE OF ISSUING LENDER. Each Lender and US Borrower agree
that, in paying any drawing under a Letter of Credit, the Issuing Lender
shall not 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 Issuing Lender, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant
or assignee of the Issuing Lender shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with
the approval of 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. US Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use
of
35
any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude US Borrower's pursuing such rights
and remedies as it may have against the beneficiary or transferee at law
or under any other agreement. None of the Issuing Lender, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the Issuing Lender, shall be
liable or responsible for any of the matters described in clauses (a)
through (e) of Section 5.4; provided, however, that anything in such
clauses to the contrary notwithstanding, US Borrower may have a claim
against the Issuing Lender, and the Issuing Lender may be liable to US
Borrower, to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by US Borrower which US
Borrower proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender'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, the Issuing Lender 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 the Issuing Lender shall not 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.
5.6. CASH COLLATERAL. Upon the request of the Administrative Agent,
(i) if the Issuing Lender has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an Letter of
Credit Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
any Letter of Credit Obligation for any reason remains outstanding, US
Borrower shall, in each case, immediately Cash Collateralize the then
outstanding amount of all Letter of Credit Obligations.
5.7. APPLICABILITY OF INTERNATIONAL STANDBY PRACTICES AND UNIFORM
CUSTOMS. Unless otherwise expressly agreed by the Issuing Lender and US
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), the rules of the
International Standby Practices shall apply to each standby Letter of
Credit.
5.8. LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein
the amount of a Letter of Credit at any time shall be deemed to be 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 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.
5.9. 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 US
Borrower shall be obligated to reimburse the Issuing Lender hereunder for
any and all drawings under such Letter of Credit. The US Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the US Borrower, and the US
Borrower's business derives substantial benefits from the businesses of
such Subsidiaries.
5.10. LETTER OF CREDIT FEE. The US Borrower shall, on the first day
of each calendar quarter for the immediately preceding calendar quarter,
pay a fee (in each case, a "Letter of Credit Fee") to the Administrative
Agent in respect of each Letter of Credit at a rate per annum equal to the
Applicable Margin with respect to Letters of Credit multiplied by the face
amount of such
36
Letter of Credit. Such Letter of Credit Fee shall be allocated pro rata
(according to the applicable Commitment Percentages) to each Lender. In
addition, the US Borrower shall pay to the Administrative Agent, for the
account of the Issuing Lender, (a) a fee at a rate per annum equal to
one-eighth of one percent (0.125%) multiplied by the face amount of each
Letter of Credit, such fee to be payable quarterly in arrears on the first
US Business Day after the end of each calendar quarter for such calendar
quarter then ending and (b) standard issuance, extension, processing,
negotiating, amendment and administration fees, as determined in
accordance with the Issuing Lender's or the Administrative Agent's
customary fees and charges for similar facilities, such fees to be payable
at such time or times as such charges are customarily made by the Issuing
Lender.
6. CERTAIN GENERAL PROVISIONS.
6.1. FEES.
6.1.1. AGENT'S FEES. The Borrowers agree to pay from time to
time to the Administrative Agent, for its own account, such fees
(collectively, the "Agent's Fees") as are set forth in the Fee
Letter.
6.1.2. CLOSING FEES. The Borrowers agree to pay to the
Administrative Agent on the Closing Date the closing fees set forth
in the Fee Letter.
6.2. FUNDS FOR PAYMENTS.
6.2.1. PAYMENTS TO ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall debit an account of the US
Borrower with the Administrative Agent for all (i) interest payments when
due as provided in Section 2.5 with respect to the Revolving Credit Notes
or otherwise due hereunder, (ii) Commitment Fees when due as provided in
Section 2.2, and (iii) Letter of Credit Fees when due as provided in
Section 5.10. The failure of the Administrative Agent to debit such
account as provided herein with respect to any such payments shall not
constitute a waiver of any payment due hereunder. All payments of
principal, Reimbursement Obligations and any other amounts due hereunder
or under any of the other Loan Documents in respect to the Notes shall be
made to the Administrative Agent, for the respective accounts of the
Lenders and the Administrative Agent, at the Administrative Agent's Office
or at such other location that the Administrative Agent may from time to
time designate, in each case in immediately available funds without setoff
or counterclaim or other deduction.
(b) The Administrative Agent shall debit an account of the
Canadian Borrower with the Administrative Agent for all interest payments
when due as provided in Section 3.4 with respect to the Canadian Term
Notes or otherwise due hereunder. The failure of the Administrative Agent
to debit such account as provided herein with respect to any such payments
shall not constitute a waiver of any payment due hereunder. All payments
of principal and any other amounts due hereunder or under any of the other
Loan Documents in respect to the Canadian Term Notes shall be made to the
Administrative Agent, for the respective accounts of the applicable
Lenders and the Administrative Agent, at the Administrative Agent's Office
or at such other location in the United States that the Administrative
Agent may from time to time designate, in each case in immediately
available funds.
6.2.2. CURRENCY MATTERS.
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(a) Dollars are the currency of account and payment for each and
every sum at any time due from the US Borrower hereunder.
(b) Canadian Dollars are the currency of account and payment for
each and every sum at any time due from the Canadian Borrower hereunder;
provided that:
(i) each payment in respect of costs, expenses and
indemnities shall be made in the currency in which the same were
incurred; and
(ii) any amount expressed to be payable in a currency other
than Canadian Dollars shall be paid in that other currency.
(c) No payment to any of the Administrative Agent or any Lender
(whether under any judgment or court order or otherwise) shall discharge
the obligation or liability in respect of which it was made unless and
until the Administrative Agent or such other Lender shall have received
payment in full in the currency in which such obligation or liability was
incurred, and to the extent that the amount of any such payment shall, on
actual conversion into such currency, fall short of such obligation or
liability actual or contingent expressed in that currency, the Borrowers
shall indemnify and reimburse the Administrative Agent or such other
Lender, as the case may be, with respect to the amount of the shortfall,
with such indemnity surviving the termination of this Credit Agreement and
any legal proceeding, judgment or court order pursuant to which the
original payment was made which resulted in the shortfall.
(d) If, for the purpose of obtaining judgment in any court or
obtaining an order enforcing a judgment, it becomes necessary to convert
any amount due under this Credit Agreement in Dollars or in any other
currency (hereinafter in this Section 6.2.2 called the "first currency")
into any other currency (hereinafter in this Section 6.2.2 called the
"second currency"), then the conversion shall be made at the spot rate of
exchange of the Administrative Agent (as conclusively determined by the
Administrative Agent) at the Administrative Agent's close of business on
the US or Canadian Business Day (as the case may be) next preceding the
day on which the judgment is given or (as the case may be) the order is
made. Any payment made to the Administrative Agent or any Lender pursuant
to this Credit Agreement in the second currency shall constitute a
discharge of the obligations of the Borrowers to pay to the Administrative
Agent and the Lenders any amount originally due to the Administrative
Agent and the Lenders in the first currency under this Credit Agreement
only to the extent of the amount of the first currency which the
Administrative Agent and each of the Lenders is able, on the date of the
receipt by it of such payment in any second currency, to purchase, in
accordance with the Administrative Agent's and such Lender's normal
banking procedures, with the amount of such second currency so received.
If the amount of the first currency falls short of the amount originally
due to the Administrative Agent and the Lenders in the first currency
under this Credit Agreement, the Borrowers hereby jointly and severally
agree that they will indemnify the Administrative Agent and each of the
Lenders against and save the Administrative Agent and each of the Lenders
harmless from any shortfall so arising. This indemnity shall constitute a
joint and several obligation of the Borrowers separate and independent
from the other obligations contained in this Credit Agreement, shall give
rise to a separate and independent cause of action and shall continue in
full force and effect notwithstanding any judgment or order for a
liquidated sum or sums in respect of amounts due to the Administrative
Agent or any Lender under this Credit Agreement or under any such judgment
or order. Any such shortfall shall be deemed to constitute a loss suffered
by the Administrative Agent and each such Lender, as the case may be, and
the Borrowers shall not be entitled to require any proof or evidence of
any actual loss. The covenant
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contained in this Section 6.2.2 shall survive the payment in full of all
of the other obligations of the Borrowers under this Credit Agreement.
(e) For all purposes of this Credit Agreement, the amount in one
currency which shall be equivalent on any particular date to a specified
amount in another currency shall be that amount (as conclusively
ascertained by the Administrative Agent) in the first currency which is or
could be purchased by the Administrative Agent (in accordance with its
normal banking practices) with such specified amount in the second
currency in any recognized Eurocurrency Interbank Market selected by the
Administrative Agent in good faith for delivery on such date at the spot
rate of exchange prevailing at or about 11:00 a.m., London time (or as
soon thereafter as practicable), on such date.
6.3. COMPUTATIONS. All computations of interest on LIBOR Rate
Loans, Canadian LIBOR Rate Loans and of Commitment Fees, Letter of Credit
Fees or other fees shall, unless otherwise expressly provided herein, be
based on a 360-day year and paid for the actual number of days elapsed.
All computations of interest with respect to Base Rate Loans and Canadian
Base Rate Loans shall be based on a 365-day year, and paid for the actual
number of days elapsed. Except as otherwise provided in the definition of
the term "Interest Period" with respect to LIBOR Rate Loans and Canadian
LIBOR Rate Loans, whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a US or Canadian Business
Day (as the case may be) the due date for such payment shall be extended
to the next succeeding US or Canadian Business Day (as the case may be)
and interest shall accrue during such extension. The outstanding amount of
the Loans as reflected on the applicable Note Records from time to time
shall be considered correct and binding on the applicable Borrower unless
within five (5) US or Canadian Business Days (as the case may be) after
receipt of any notice by the Administrative Agent or Lender of such
outstanding amount, the Administrative Agent or such Lender shall notify
the applicable Borrower to the contrary. With respect to the Canadian Term
Loan, whenever interest is payable hereunder on the basis of a year of 365
or 360 days, for the purposes of the Interest Act (Canada), the yearly
rate of interest which is equivalent to the rate payable hereunder is the
rate payable hereunder multiplied by the actual number of days in the year
and divided by 365 or 360, as applicable. All interest will be calculated
using the nominal rate method and not the effective rate method and the
deemed reinvestment principle shall not apply to such calculations.
6.4. INABILITY TO DETERMINE LIBOR RATE OR CANADIAN LIBOR RATE. In
the event, prior to the commencement of any Interest Period relating to
any LIBOR Rate Loan or Canadian LIBOR Rate Loan (as the case may be), the
Administrative Agent shall determine that adequate and reasonable methods
do not exist for ascertaining the LIBOR Rate or Canadian LIBOR Rate (as
the case may be) that would otherwise determine the rate of interest to be
applicable to any such Loan during any Interest Period, the Administrative
Agent shall forthwith give notice of such determination (which shall be
conclusive and binding on the US Borrower, the Canadian Borrower and the
Lenders) to the US Borrower or the Canadian Borrower (as the case may be)
and the Lenders. In such event (a) any Loan Request or Conversion Request
with respect to LIBOR Rate Loans shall be automatically withdrawn and
shall be deemed a request for Base Rate Loans, (b) each LIBOR Rate Loan
will automatically, on the last day of the then current Interest Period
relating thereto, become a Base Rate Loan, (c) each Continuation Request
with respect to Canadian LIBOR Rate Loans shall be automatically withdrawn
and shall be deemed a request for Canadian Base Rate Loans, and (d) the
obligations of the Lenders to make LIBOR Rate Loans or Canadian LIBOR Rate
Loans (as the case may be) shall be suspended until the Administrative
Agent determines that the circumstances giving rise to such suspension no
longer exists,
39
whereupon the Administrative Agent shall so notify the US Borrower or the
Canadian Borrower (as the case may be) and the Lenders.
6.5. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful for any
Lender to make or maintain LIBOR Rate Loans or Canadian LIBOR Rate Loans,
such Lender shall forthwith give notice of such circumstances to the
Borrowers and the other Lenders and thereupon (a) the commitment of such
Lender to make LIBOR Rate Loans or Canadian LIBOR Rate Loans or convert
Base Rate Loans to LIBOR Rate Loans shall forthwith be suspended and (b)
such Lender's then outstanding LIBOR Rate Loans or Canadian LIBOR Rate
Loans, if any, shall (i) if comprising LIBOR Rate Loans, be converted
automatically to Base Rate Loans on the last day of each Interest Period
applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law, and (ii) if comprising Canadian LIBOR Rate Loans, be
converted automatically to Canadian Base Rate Loans on the last day of
each Interest Period applicable to such Canadian LIBOR Rate Loans. Each of
the US Borrower and the Canadian Borrower, as the case may be, hereby
agrees promptly to pay the Administrative Agent for the account of such
Lender, upon demand by such Lender, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this Section 6.5, including any interest or
fees payable by such Lender to Lenders of funds obtained by it in order to
make or maintain its LIBOR Rate Loans or its Canadian LIBOR Rate Loans (as
the case may be) hereunder.
6.6. ADDITIONAL COSTS, ETC. If the adoption of any future
applicable law or any change in any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made
upon or otherwise issued to any Lender or the Administrative Agent by any
central bank or other fiscal, monetary or other authority (whether or not
having the force of law), shall:
(a) subject any Lender or the Administrative Agent to any tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Credit Agreement (including, without limitation,
taxes or other charges imposed as a result of such Lender's non-resident
status), the other Loan Documents, any Letters of Credit, such Lender's
Commitment or the Loans (other than taxes based upon or measured by the
income or profits of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender or
the Administrative Agent under this Credit Agreement or any of the other
Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, prudential assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force of
law) against assets held by, or deposits in or for the account of, or
loans by, or letters of credit issued by, or commitments of an office of
any Lender, or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of
40
Credit, the Loans, such Lender's Commitment, or any class of loans,
letters of credit or commitments of which any of the Loans or such
Lender's Commitment forms a part, and the result of any of the foregoing
is
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender, or
the Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Lender or the Administrative Agent to
make any payment or to forego any interest or Reimbursement
Obligation or other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement Obligation or other
sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Administrative
Agent from any of the Borrowers hereunder,
then, and in each such case, the applicable Borrower will, within ten (10) US or
Canadian (as applicable) Business Days after such Borrower's receipt of a
written request (setting forth a reasonably detailed explanation as to the
reason for any additional amounts payable pursuant to this Section 6.6) made by
such Lender or the Administrative Agent at any time and from time to time and as
often as the occasion therefor may arise, pay to such Lender or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Lender or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum; provided
that the applicable Borrower shall not be required to compensate a Lender
pursuant to this Section 6.6 for any amounts incurred more than six months prior
to the date that such Lender notifies such Borrower of such Lender's intention
to claim compensation therefor; and provided further that, if the circumstances
giving rise to such claim have a retroactive effect, then such six-month period
shall be extended to include the period of such retroactive effect.
6.7. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any
law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital requirements
for banks or bank holding companies or any change in the interpretation or
application thereof by a court or governmental authority with appropriate
jurisdiction, or (b) compliance by such Lender or Administrative Agent or
any corporation controlling such Lender or the Administrative Agent with
any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on such Lender's
or the Administrative Agent's commitment with respect to any Loans to a
level below that which such Lender or the Administrative Agent could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Administrative Agent's then existing
policies with respect to capital adequacy and assuming full utilization of
such entity's capital) by any amount deemed by such Lender or (as the case
may be) the Administrative Agent to be material, then such Lender or the
Administrative Agent may notify the applicable Borrower of such fact. To
the extent that the amount of such reduction in the return on capital is
based on the Commitment, or the Loans and is not reflected in the interest
or fees payable by the US Borrower or the Canadian Borrower (as the case
may be), such Borrower and such Lender shall thereafter attempt to
negotiate in good faith, within thirty (30) days of the day on which such
Borrower receives such notice, an adjustment payable
41
hereunder that will adequately compensate such Lender in light of these
circumstances. If such Borrower and such Lender are unable to agree to
such adjustment within thirty (30) days of the date on which such Borrower
receives such notice, then commencing on the date of such notice (but not
earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that
will, in such Lender's reasonable determination, provide adequate
compensation. Each Lender shall allocate such cost increases among its
customers in good faith and on an equitable basis.
6.8. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to Sections 6.6 or 6.7 and a brief explanation of
such amounts which are due, submitted by any Lender or the Administrative
Agent to the Borrowers, shall be conclusive, absent manifest error, that
such amounts are due and owing.
6.9. INDEMNITY. The US Borrower and the Canadian Borrower (as the
case may be) agree to indemnify each Lender and to hold such Lender
harmless from and against any loss, cost or expense that such Lender may
sustain or incur as a consequence of (a) default by such Borrower in
payment of the principal amount of or any interest on any LIBOR Rate Loans
or Canadian LIBOR Rate Loans (as the case may be) as and when due and
payable, including any such loss or expense arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to
maintain its LIBOR Rate Loans or Canadian LIBOR Rate Loans (as the case
may be), (b) default by such Borrower in making a borrowing or conversion
after such Borrower has given (or is deemed to have given) a Revolving
Credit Loan Request or a Conversion Request or Continuation Request
relating thereto in accordance with Sections 2.6, 2.8, or 3.5 or (iii) the
making of any payment of a LIBOR Rate Loan or Canadian LIBOR Rate Loan (as
the case may be) or the making of any conversion of any LIBOR Rate Loan to
a Base Rate Loan, on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable
by such Lender to lenders of funds obtained by it in order to maintain any
such Loans, including, without limitation, repayments required by Section
4.2. Such loss or reasonable expense shall include an amount equal to (A)
the excess, if any, as reasonably determined by the applicable Lender of
its cost of obtaining the funds for the LIBOR Rate Loan or Canadian LIBOR
Rate Loan being paid, prepaid, converted, not converted, or not borrowed,
as the case may be (based on the applicable LIBOR Rate or Canadian LIBOR
Rate) for the period from the date of such payment, prepayment,
conversion, or failure to borrow or convert, as the case may be, to the
last day of the Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for the Loan which would have
commenced on the date of such failure to borrow) over (B) the amount of
interest (as reasonably determined by such Lender) that would be realized
by such Lender in reemploying the funds so paid, prepaid, converted, or
not borrowed, converted, or prepaid for such period or Interest Period, as
the case may be, which determinations shall be prima facie evidence
thereof absent manifest error.
6.10. INTEREST AFTER DEFAULT. During the continuance of an Event of
Default, pursuant to Sections 14.1(a) or 14.1(b) (a "Payment Event of
Default"), the principal and (to the extent permitted by applicable law)
interest on the Loans and all other amounts payable hereunder or under any
of the other Loan Documents (whether or not overdue) shall, until such
Payment Event of Default has been cured or remedied or such Payment Event
of Default has been waived by the Required Lenders pursuant to Section 27,
bear interest at a rate per annum equal to two percent (2%) above the rate
of interest then applicable thereto (or, if no rate of interest is then
applicable thereto, the Base Rate or Canadian Base Rate, as applicable)
until such amount shall be paid in full (after as well as before
judgment).
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6.11. REPLACEMENT OF LENDERS. If any Lender (an "Affected Lender")
(a) makes demand upon a Borrower for (or if a Borrower is otherwise
required to pay) amounts pursuant to Sections 6.12(d), 6.6, or 6.7, (b) is
unable to make or maintain LIBOR Rate Loans as a result of a condition
described in Section 6.4 or (c) defaults in its obligation to make Loans,
in accordance with the terms of this Credit Agreement or participate in
any Swingline Loan (such Lender being referred to as a "Defaulting
Lender"), such Borrower within ninety (90) days of receipt of such demand,
notice (or the occurrence of such other event causing such Borrower to be
required to pay such compensation or causing.06.4 to be applicable), or
default, as the case may be, by notice (a "Replacement Notice") in writing
to the Administrative Agent and such Affected Lender (i) request the
Affected Lender to cooperate with such Borrower in obtaining a replacement
lender satisfactory to the Administrative Agent and such Borrower (the
"Replacement Lender"); (ii) request the non-Affected Lenders to acquire
and assume all of the Affected Lender's Loans and Commitments, as provided
herein, but none of such Lenders shall be under an obligation to do so; or
(iii) designate a Replacement Lender approved by the Administrative Agent,
such approval not to be unreasonably withheld or delayed. If any
satisfactory Replacement Lender shall be obtained, and/or if any one or
more of the non-Affected Lenders shall agree to acquire and assume all of
the Affected Lender's Loans and Commitments, then such Affected Lender
shall assign, in accordance with Section 20, all of its Commitments,
Loans, Letter of Credit Participations, and other rights and obligations
under this Credit Agreement and all other Loan Documents to such
Replacement Lender or non-Affected Lenders, as the case may be, in
exchange for payment of the principal amount so assigned and all interest
and fees accrued on the amount so assigned, plus all other Obligations
then due and payable to the Affected Lender; provided, however, that (A)
such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Affected
Lender and such Replacement Lender and/or non-Affected Lenders, as the
case may be, and (B) prior to any such assignment, the Borrowers shall
have paid to such Affected Lender all amounts properly demanded and
unreimbursed under Sections 6.1.2(d), 6.6 or 6.7. Upon the effective date
of such assignment, the applicable Borrower shall issue replacement Notes,
if applicable, to such Replacement Lender and/or non-Affected Lenders, as
the case may be, and such institution shall become a "Lender" for all
purposes under this Credit Agreement and the other Loan Documents.
6.12. TAXES.
(a) All payments by the Borrowers hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any Indemnified Taxes or Other
Taxes unless any Borrower is compelled by law to make such deduction or
withholding. If any such Indemnified Taxes or Other Taxes is imposed upon
a Borrower with respect to any amount payable by it hereunder or under any
of the other Loan Documents, (i) such Borrower will pay to the
Administrative Agent, for the account of the applicable Lenders or (as the
case may be) the Administrative Agent, on the date on which such amount is
due and payable hereunder or under such other Loan Document, such
additional amount as shall be necessary to enable the applicable Lenders,
or Administrative Agent to receive the same net amount which the
applicable Lenders, or Administrative Agent would have received on such
due date had no such obligation been imposed upon such Borrower, (ii) such
Borrower shall make such deductions or withholding and (iii) such Borrower
shall pay the full amount deducted to the relevant authority in accordance
with applicable law. Such Borrower will deliver promptly to the
Administrative Agent certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by such
Borrower hereunder or under such other Loan Document.
43
(b) In addition, each of the Borrowers agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
under any Loan or from the execution or delivery of, or otherwise with
respect to, this Credit Agreement or any Loan ("Other Taxes").
(c) If a Lender determines in its sole and absolute discretion
that it has received a credit or other benefit in respect of any such tax
deduction reimbursed or made on its behalf by the Borrowers, it shall
promptly remit the same to or for the account of such Borrower; provided
that no Lender shall be required to take a tax reporting position pursuant
to the foregoing provision which will produce any net benefit to it with
respect to foreign tax payments.
(d) On or before the date it becomes a party to this Credit
Agreement and from time to time thereafter upon any change in status
rendering any certificate or document previously delivered pursuant to
this Section 6.12 invalid or inaccurate, each Lender that is not a U.S.
Person as defined in Section 7701(a)(30) of the Code for federal income
tax purposes (a "Non-U.S. Lender") shall (if legally able to do so)
deliver to the US Borrower such certificates, documents or other evidence,
as required by the Code or Treasury Regulations issued pursuant thereto,
including (A) in the case of a Non-U.S. Lender that is a "bank" for
purposes of Section 881(c)(3)(A) of the Code, Internal Revenue Service
Form W-8BEN or Form W-8ECI or any applicable successor form or other
applicable form pertaining to any such Lender and any other certificate or
statement of exemption required by Treasury Regulation Section 1.1441-1,
1.1441-4 or 1.1441-6(c) or any subsequent version thereof or subsequent
version thereto, properly completed and duly executed by such Lender
establishing that such payment is (A) not subject to United States Federal
withholding tax under the Code because such payment is effectively
connected with conduct by such Lender of a trade or business in the United
States or (B) totally exempt from United States Federal withholding tax
or, if due to a change in law occurring after the date such Lender became
a party hereto, subject to a reduced rate of such tax under a provision of
an applicable tax treaty and (ii) in the case of a Non-U.S. Lender that is
not a "bank" for purposes of Section 881(c)(3)(A) of the Code, a
certificate in form and substance reasonably satisfactory to the
Administrative Agent and the US Borrower and to the effect that (A) such
Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A) of
the Code, is not subject to regulatory or other legal requirements as a
bank in any jurisdiction, and has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
governmental authority, any application made to a rating agency or
qualification for any exemption from any tax, securities law or other
legal requirements, (B) is not a ten (10) percent shareholder for purposes
of Section 881(c)(3)(B) or Section 871(h)(3)(B) of the Code and (C) is not
a controlled foreign corporation receiving interest from a related person
for purposes of Section 881(c)(3)(C) of the Code, together with a properly
completed Internal Revenue Service Form W-8 (or successor form). Each
Lender agrees that it shall, promptly upon a change of its lending office
or the selection of any additional lending office, to the extent the forms
previously delivered by it pursuant to this section are no longer
effective, and promptly upon the US Borrower's or the Administrative
Agent's reasonable request after the occurrence of any other event
(including the passage of time) requiring the delivery of a Form W-8BEN,
Form W-8ECI, or other applicable Form W-8 in addition to or in replacement
of the forms previously delivered, deliver to the US Borrower and the
Administrative Agent, as applicable, if and to the extent it is properly
entitled to do so, a properly completed and executed Form W-8BEN, Form
W-8ECI, or other applicable Form W-8 (or any successor forms thereto).
6.13. INTEREST LIMITATION. Notwithstanding any other term of this
Credit Agreement or any Note or any other document referred to herein or
therein, the maximum amount of interest which may be charged to or
collected from any Person liable hereunder or under any Note by any
44
Lender shall be absolutely limited to, and shall in no event exceed, the
maximum amount of interest which could lawfully be charged or collected
under applicable law (including, to the extent applicable, the provisions
of Section 5197 of the Revised Statutes of the United States of America,
as amended, 12 U.S.C. Section 85, as amended and the Criminal Code
(Canada)), so that the maximum of all amounts constituting interest under
applicable law, however computed, shall never exceed as to any Person
liable therefor such lawful maximum, and any term of this Credit Agreement
or any other Loan Document referred to herein or therein which could be
construed as providing for interest in excess of such lawful maximum shall
be and hereby is made expressly subject to and modified by the provisions
of this paragraph.
6.14. SUBORDINATION AGREEMENTS OF THE BORROWERS.
(a) Each of the Borrowers hereby agrees that the payment of any
amounts due with respect to the indebtedness owing by the other Borrower
to such Borrower is hereby subordinated to the prior payment in full in
cash of the Obligations. If such Borrower shall collect, enforce or
receive any amounts in respect of such indebtedness before payment in full
in cash of the Obligations, such amounts shall be collected, enforced,
received by such Borrower as trustee for the Administrative Agent and be
paid over to the Administrative Agent for the pro rata accounts of the
relevant Lenders to be applied to repay (or be held as security for the
repayment of) the Obligations or Canadian Obligations, as applicable.
(b) The payment of any amounts due with respect to any
indebtedness of the Borrowers or GWCA for money borrowed or credit
received now or hereafter owed to the Guarantors is hereby subordinated to
the prior payment in full in cash of all of the Obligations. If any
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by such Guarantor as trustee for
the Lenders and the Administrative Agent and be paid over to the
Administrative Agent, for the benefit of the Lenders and the
Administrative Agent on account of the Obligations without affecting in
any manner the liability of such Guarantor under the other provisions
hereof.
(c) The provisions of this Section 6.14 are made for the benefit
of the Administrative Agent and the Lenders and their successors and
assigns, and may be enforced in good faith by them from time to time
against either or both of the Borrowers as often as the occasion therefor
may arise and without requirement on the part of the Administrative Agent
or the Lenders first to marshal any of their claims or to exercise any of
their rights against the other Borrower or to exhaust any remedies
available to them against the other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder
or to elect any other remedy. The provisions of this Section 6.14 shall
remain in effect until all of the Obligations shall have been paid in full
or otherwise fully satisfied. If at any time, any payment, or any part
thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by the Administrative Agent or the
Lenders upon the insolvency, bankruptcy or reorganization of either of the
Borrowers or is repaid in good faith settlement of a pending or threatened
avoidance claim, or otherwise, the provisions of this Section 6.14 will
forthwith be reinstated in effect, as though such payment had not been
made.
7. GUARANTY
7.1. GUARANTY. As an inducement to the Lenders to make the Loans
and the Issuing Lender to issue the Letters of Credit (where applicable)
available to the Borrowers, (a) the US Guarantors hereby unconditionally
and irrevocably guarantee (i) the full punctual payment when
45
due, whether at stated maturity, by acceleration or otherwise, of all
Obligations of the Borrowers now or hereafter existing whether for
principal, interest, fees, expenses or otherwise under this Credit
Agreement or any of the other Loan Documents, and (ii) the strict
performance and observance by the Borrowers of all agreements, warranties
and covenants applicable to the Borrowers in the Loan Documents (such
Obligations collectively being hereafter referred to as the US Guarantors'
"US Guaranteed Obligations"); and (b) to the fullest extent permitted by
applicable law, GWI and the Canadian Guarantors hereby unconditionally and
irrevocably guarantee (i) the full punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of the Canadian
Obligations, and (ii) the strict performance and observance by the
Canadian Borrower of all agreements, warranties and covenants applicable
to the Canadian Borrower in the Loan Documents (such obligations
collectively being referred to as GWI's and the Canadian Guarantors'
"Canadian Guaranteed Obligations").
7.2. GUARANTORS AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. To
the extent the Guarantors are permitted to do so by applicable law, each
of the Guarantors guarantees that its Guaranteed Obligations will be paid
strictly in accordance with the terms hereof, regardless of (a) any law,
regulation, order, decree or directive (whether or not having the force of
law) or any interpretation thereof now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Lender or
the Administrative Agent with respect thereto, including, without
limitation, any law, regulation, order, decree or directive or
interpretation thereof that purports to require or permit the satisfaction
of any Guaranteed Obligation other than strictly in accordance with the
terms of this Credit Agreement (such as by the tender of a currency other
than as provided in Section 6.2.2 or that restricts the procurement of
such currency by the Borrowers or the Guarantors), or (b) any agreement,
whether or not signed by or on behalf of the Administrative Agent or the
Lenders, in connection with the restructuring or rescheduling of public or
private obligations in any Borrower's country, whether or not such
agreement is stated to cause or permit the discharge of the Obligations
prior to the final payment in full of the Obligations in the currency
required by Section 6.2.2 in strict accordance with this Credit Agreement.
The liability of each Guarantor with regard to its Guaranteed Obligations
shall be absolute and unconditional irrespective of:
(i) any change in the time, manner or place of payment
of, or in any other term of, all or any of its Guaranteed
Obligations or any other amendment or waiver of or any consent
to departure from this Credit Agreement or any other Loan
Document;
(ii) any release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of its
Guaranteed Obligations;
(iii) any change in ownership of the Borrowers;
(iv) any acceptance of any partial payment(s) from the
Borrowers or any other Guarantor; or
(v) any setoff, defense, counterclaim or other
circumstance whatsoever (in any case, whether based on
contract, tort or any other theory) which might otherwise
constitute a legal or equitable defense available to, or a
discharge of (other than by payment in full in cash), any of
the Borrowers or a Guarantor in respect of its Obligations
under any Loan Document.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any Guaranteed Obligation is rescinded or
must otherwise be returned by the Lenders or
46
the Administrative Agent upon the insolvency, bankruptcy or reorganization of
any Borrower or otherwise, all as though such payment had not been made.
7.3. EFFECTIVENESS; ENFORCEMENT. This Guaranty shall be effective
and shall be deemed to be made with respect to each Loan made and each
Letter of Credit issued as of the time it is made or issued, as
applicable. No invalidity, irregularity or unenforceability by reason of
any bankruptcy or similar law, or any law or order of any government or
agency thereof purporting to reduce, amend or otherwise affect any
liability of any Borrower, and no defect in or insufficiency or want of
powers of any Borrower or irregular or improperly recorded exercise
thereof, shall impair, affect, be a defense to or claim against this
Guaranty. This Guaranty is a continuing guaranty and shall (a) survive any
termination of this Credit Agreement, and (b) remain in full force and
effect until all Commitments have expired, all Outstanding Letters of
Credit have expired, matured or otherwise been terminated, and all
Guaranteed Obligations and all other amounts payable hereunder have been
performed and paid in full in cash or otherwise satisfied. This Guaranty
is made for the benefit of the Administrative Agent and the Lenders and
their successors and assigns, and may be enforced from time to time as
often as occasion therefor may arise and without requirement on the part
of the Administrative Agent or the Lenders first to exercise any rights
against the Borrowers, or to resort to any other source or means of
obtaining payment of any of the said obligations or to elect any other
remedy.
7.4. WAIVERS. Except as otherwise specifically provided in any of
the Loan Documents, each of the Guarantors hereby waives promptness,
diligence, protest, notice of protest, all suretyship defenses, the
benefit of discussion, the benefit of division, notice of acceptance and
any other notice with respect to any of its Guaranteed Obligations and
this Guaranty or any right to insist that the Administrative Agent first
exhaust any right or take any action against the Borrowers, or any other
Person. Each of the Guarantors also irrevocably waives, to the fullest
extent permitted by law, all defenses which at any time may be available
to it in respect of its Guaranteed Obligations by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect.
7.5. EXPENSES. Each of the Guarantors hereby promises to reimburse
(a) the Administrative Agent for all reasonable out-of-pocket fees and
disbursements (including all reasonable attorneys' fees), incurred or
expended in connection with the preparation, filing or recording, or
interpretation of this Guaranty, the Credit Agreement and the other Loan
Documents to which such Guarantor is a party, or any amendment,
modification, approval, consent or waiver hereof or thereof, and (b) the
Administrative Agent and the Lenders and their respective Affiliates for
all reasonable out-of-pocket fees and disbursements (including reasonable
attorneys' fees for the Administrative Agent's counsel, including local
and special counsel, and one additional firm of counsel for the Lenders),
incurred or expended in connection with the enforcement of its Guaranteed
Obligations (whether or not legal proceedings are instituted).
7.6. CONCERNING JOINT AND SEVERAL LIABILITY OF THE GUARANTORS.
(a) Each of the Guarantors hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the applicable Borrower, with respect to the payment and
performance of all of its Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations arising under this Section 7), it
being the intention of the parties hereto that (i) all such Guaranteed
Obligations shall be the joint and several Guaranteed Obligations of the
US Guarantors; and (ii) the Canadian Guaranteed Obligations shall be the
joint
47
and several Obligations of GWI and the Canadian Guarantors without
preferences or distribution among them.
(b) If and to the extent that the applicable Borrower shall fail
to make any payment with respect to any of its Obligations as and when due
or to perform any of its Obligations in accordance with the terms thereof,
then in each such event the applicable co-Guarantors will make such
payment with respect to, or perform, such Guaranteed Obligations.
(c) The Guaranteed Obligations of each Guarantor under the
provisions of this Section 7 constitute full recourse obligations of such
Guarantor enforceable against such Guarantor to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Credit Agreement or any other circumstance
whatsoever.
(d) Except as otherwise expressly provided in this Credit
Agreement, each of the Guarantors hereby waives notice of acceptance of
its joint and several liability, notice of any Loans made or Letters of
Credit issued under this Credit Agreement, notice of any action at any
time taken or omitted by the Administrative Agent or the Lenders under or
in respect of any of the Guaranteed Obligations, and, generally, to the
extent permitted by applicable law, all demands, notices and other
formalities of every kind in connection with this Credit Agreement and
this Guaranty. Each of the Guarantors hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of
the Guaranteed Obligations, the acceptance of any payment of any of the
Guaranteed Obligations, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by the Administrative
Agent or the Lenders at any time or times in respect of any Default or
Event of Default by any of the Borrowers or the Guarantors in the
performance or satisfaction of any term, covenant, condition or provision
of this Credit Agreement, any and all other indulgences whatsoever by the
Administrative Agent or the Lenders in respect of any of the Guaranteed
Obligations, and the taking, addition, substitution or release, in whole
or in part, at any time or times, of any security for any of the
Guaranteed Obligations or the addition, substitution or release, in whole
or in part, of any of the Borrowers or any other Guarantor. Without
limiting the generality of the foregoing, each of the Guarantors assents
to any other action or delay in acting or failure to act on the part of
the Lenders or the Administrative Agent with respect to the failure by any
of the Borrowers or any other Guarantor to comply with its respective
Obligations or Guaranteed Obligations, including, without limitation, any
failure strictly or diligently to assert any right or to pursue any remedy
or to comply fully with applicable laws or regulations thereunder, which
might, but for the provisions of this Section 7, afford grounds for
terminating, discharging or relieving any Guarantor, in whole or in part,
from any of the Guaranteed Obligations under this Section 7, it being the
intention of the Guarantors that, so long as any of the Guaranteed
Obligations hereunder remain unsatisfied, the Guaranteed Obligations of
each of the Guarantors under this Section 7 shall not be discharged except
by performance and then only to the extent of such performance. The
Guaranteed Obligations of each of the Guarantors under this Section 7
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any of the Borrowers or the Guarantors or the
Lenders or the Administrative Agent. The joint and several liability of
each of the Guarantors hereunder shall continue in full force and effect
notwithstanding any absorption, merger, consolidation, amalgamation or any
other change whatsoever in the name, membership, constitution or place of
formation of the Borrowers or the Guarantors, the Lenders or the
Administrative Agent.
(e) The US Guarantors, GWI (solely in its capacity as a Guarantor
of the Canadian Guaranteed Obligations under this Section 7) and the
Canadian Guarantors (solely in their capacity as Guarantors of the
Canadian Guaranteed Obligations), shall be liable under the Guaranty under
48
this Section 7 only for the maximum amount of such liabilities that can be
incurred under applicable law without rendering this Credit Agreement, as
it relates to the guaranty under this Section 7, voidable under applicable
law relating to fraudulent conveyance, fraudulent transfer and corporate
financial assistance, and not for any greater amount. Accordingly, if any
obligation under any provision of the guaranty under this Section 7 shall
be declared to be invalid or unenforceable in any respect or to any
extent, it is the stated intention and agreement of the Guarantors, the
Administrative Agent and the Lenders that any balance of the obligation
created by such provision and all other obligations of the Guarantors
under this Section 7 to the Lenders or the Administrative Agent shall
remain valid and enforceable, and that all sums not in excess of those
permitted under applicable law shall remain fully collectible by the
Lenders and the Administrative Agent from the US Guarantors, GWI, the
Canadian Borrower and the Canadian Guarantors, as the case may be.
(f) To the extent any Guarantor makes a payment hereunder in
excess of the aggregate amount of the benefit received by such Guarantor
in respect of the extensions of credit under the Credit Agreement (the
"Benefit Amount"), then such Guarantor, after the payment in full, in
cash, of all of the Obligations, shall be entitled to recover from the
Borrowers and each other Guarantor such excess payment, pro rata, in
accordance with the ratio of the Benefit Amount received by each such
other Guarantor to the total Benefit Amount received by all Guarantors,
and the right to such recovery shall be deemed to be an asset and property
of such Guarantor so funding; provided, that each of the Guarantors hereby
agrees that it will not enforce any of its rights of contribution or
subrogation against the other Guarantors with respect to any liability
incurred by it hereunder or under any of the other Loan Documents, any
payments made by it to any of the Lenders or the Administrative Agent with
respect to any of the Obligations or any collateral security therefor
until such time as all of the Obligations have been irrevocably paid in
full in cash. Any claim which any Guarantor may have against any other
Guarantor with respect to any payments to the Lenders or the
Administrative Agent hereunder or under any other Loan Document are hereby
expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full in cash of the Obligations and,
in the event of any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceeding under the laws of any
jurisdiction relating to any Guarantor, its debts or its assets, whether
voluntary or involuntary, all such Obligations shall be paid in full in
cash before any payment or distribution of any character, whether in cash,
securities or other property, shall be made to any other Guarantor
therefor.
(g) Each of the Guarantors hereby agrees that the payment of any
amounts due with respect to the indebtedness owing by any Guarantor to any
other Guarantor or Borrower is hereby subordinated to the prior payment in
full in cash of the Obligations. If, notwithstanding the foregoing
sentence, such Guarantor shall collect, enforce or receive any amounts in
respect of such indebtedness before payment in full in cash of the
Obligations, such amounts shall be collected, enforced, received by such
Guarantor as trustee for the Lenders, and the Administrative Agent and be
paid over to the Administrative Agent, for the benefit of the Lenders and
the Administrative Agent, to be applied to repay (or be held as security
for the repayment of) the Obligations.
(h) The provisions of this Section 7 (other than 7.6(f), which is
made for the benefit of the Guarantors) are made for the benefit of the
Administrative Agent and the Lenders and their successors and assigns, and
may be enforced in good faith by them from time to time against the
Guarantors as often as occasion therefor may arise and without requirement
on the part of the Administrative Agent or the Lenders first to marshal
any of their claims or to exercise any of their rights against the
Borrowers or the Guarantors or to exhaust any remedies available to them
49
against the Borrowers or the Guarantors or to resort to any other source
or means of obtaining payment of any of the obligations hereunder or to
elect any other remedy. The provisions of this Section 7 shall remain in
effect until all of the Guaranteed Obligations shall have been paid in
full or otherwise fully satisfied and the Commitments have expired and all
outstanding Letters of Credit have expired, matured or otherwise been
terminated. If at any time, any payment, or any part thereof, made in
respect of any of the Guaranteed Obligations, is rescinded or must
otherwise be restored or returned by the Lenders or the Administrative
Agent upon the insolvency, bankruptcy or reorganization of any of the
Borrowers or the Guarantors, or otherwise, the provisions of this Section
7 will forthwith be reinstated in effect, as though such payment had not
been made.
Until the final payment and performance in full in cash of all of the
Obligations, no Guarantor shall exercise, and each Guarantor hereby waives any
rights such Guarantor may have against any of the Borrowers or any other
Guarantor arising as a result of payment by such Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will not
prove any claim in competition with the Administrative Agent or any Lender in
respect of any payment hereunder in any bankruptcy, insolvency or reorganization
case or proceedings of any nature; such Guarantor will not claim any setoff,
recoupment or counterclaim against the Borrowers or the other Guarantor in
respect of any liability of the Borrowers to such Guarantor; and such Guarantor
waives any benefit of and any right to participate in any collateral security
which may be held by the Administrative Agent or any Lender.
7.7. INDEMNITY. Each of the Guarantors, as a separate and
additional liability, further undertakes and agrees to indemnify and keep
indemnified upon written demand (setting forth a reasonably detailed
explanation as to the reason for any additional amounts payable pursuant
to this Section 7.7), each of the Lenders and the Administrative Agent
(together and each separately in this Section 7.7 called the "Creditors")
against any loss, damage, cost, charge or expense whatsoever that the
Creditors suffer by reason of, in connection with, or as a consequence of:
(a) the non-payment of any of its Guaranteed Obligations or the
non-performance or non-observance of any of its Guaranteed Obligations;
(b) the liability of the Borrowers or GWCA, as applicable, to pay
the Guaranteed Obligations to the Creditors or to perform the Guaranteed
Obligations being void, voidable or unenforceable in whole or in part, as
a result of any lack of capacity, power or authority or any improper
exercise of power or authority on the part of the Borrowers or GWCA;
(c) the Borrowers or GWCA becoming insolvent, including: (i) the
amount of any payment made to the Creditors which is void or voidable
against any person; and (ii) the amount of any interest (including
capitalized interest) which does not accrue from the date of insolvency or
is not recoverable by reason of the insolvency, and which would otherwise
have been recoverable from the Guarantors under this Credit Agreement; or
(d) the Guaranteed Obligations being (or moneys which would have
been Guaranteed Obligations had they not been irrecoverable) not
recoverable from the Borrowers or GWCA in whole or in part and not
recoverable from the Guarantors under the guaranty in this Section 7 by
reason of any other fact or circumstance whatsoever and whether the
transactions or any of them relating to such moneys have been void,
voidable or illegal or have been subsequently avoided and whether or not
any of the matters or facts relating thereto have been or ought to have
been within the knowledge of the Creditors.
8. REPRESENTATIONS AND WARRANTIES.
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Each of the Borrowers represents and warrants to the Lenders and the
Administrative Agent as follows:
8.1. CORPORATE AUTHORITY.
8.1.1. INCORPORATION; GOOD STANDING. Each of the Borrowers and
its Restricted Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized, validly existing and in
good standing under the laws of its state or country of
incorporation or formation, (b) has all requisite corporate or other
power to own its property and conduct its business as now conducted
and as presently contemplated, and (c) is in good standing as a
foreign corporation (or similar business entity) and is duly
authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a Material Adverse Effect.
8.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which any
of the Borrowers or any of their Restricted Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby
(a) are within the corporate or other authority of such Person, (b)
have been duly authorized by all necessary corporate or other
proceedings, (c) do not and will not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which any such Person is subject or any judgment,
order, writ, injunction, license or permit applicable to any such
Person unless no Material Adverse Effect and (d) do not conflict
with any provision of the Governing Documents of, or any agreement
or other material instrument binding upon any such Person.
8.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which any of the
Borrowers or any of their Restricted Subsidiaries is or is to become
a party will result in valid and legally binding obligations of such
Person enforceable against it in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of
creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding therefor may
be brought.
8.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance by each of the Borrowers and each of its Restricted
Subsidiaries of this Credit Agreement, the other Loan Documents to which
any of the Borrowers or any of their Restricted Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval, consent, order, authorization or license by, or
giving of notice to, or taking of any other action with respect to, any
governmental agency or authority of any jurisdiction (including, without
limitation, the STB), or other fiscal, monetary or other authority, under
any provisions of any laws or governmental rules, regulations, orders, or
decrees of any jurisdiction or the central bank of any jurisdiction or
other fiscal, monetary or other authority, under any provision of any laws
or governmental rules, regulations, orders or decrees of any jurisdiction
applicable to or binding on any Borrower or any of their Restricted
Subsidiaries.
8.3. TITLE TO PROPERTIES; LEASES. Except as indicated on Schedule
8.3 hereto, each of the Borrowers and each of its Restricted Subsidiaries
own all of the assets reflected in the consolidated and consolidating
balance sheets of the US Borrower and its Restricted Subsidiaries as at
the Balance Sheet Date or acquired since that date (except property and
assets sold or
51
otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements, Liens or other
encumbrances except Permitted Liens and the rights of lessees and other
parties lawfully in possession in the ordinary course of business.
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.
8.4.1. FINANCIAL STATEMENTS. There has been furnished to each
of the Lenders the consolidated balance sheet of the US Borrower and
its Subsidiaries as of the Balance Sheet Date, and consolidated
statements of income and cash flows of the US Borrower and its
Subsidiaries, in each case for the fiscal year then ended, audited
by PriceWaterhouseCoopers LLP. There has also been furnished to each
of the Lenders the consolidated balance sheets for the Borrowers and
their Restricted Subsidiaries and the consolidating balance sheets
of the Borrowers and their Restricted Subsidiaries, in each case as
of the Balance Sheet Date and June 30, 2004, and the related
consolidated statements of income and cash flow for the Borrowers
and their Restricted Subsidiaries for the fiscal quarters then
ended, and the consolidating statements of income and cash flow for
the Borrowers and their Restricted Subsidiaries for the fiscal
quarters then ended, each setting forth in comparative form the
figures for the previous fiscal year. All such balance sheets,
statements of income, cash flow statements and financial statements
have been prepared in accordance with GAAP and fairly present the
financial condition of the Borrowers and their Restricted
Subsidiaries, as at the close of business on the dates thereof and
the results of operations for the fiscal year or other period then
ended. There are no contingent liabilities of the Borrowers or their
Restricted Subsidiaries as of such dates involving material amounts,
to the best of the knowledge of the officers of any of the
Borrowers, which were not disclosed in such balance sheet and
statements and the notes related thereto.
8.4.2. PROJECTIONS. The projections of the Borrowers and their
Restricted Subsidiaries including (a) on an annual basis,
consolidated balance sheets, income and cash flow statements of the
Borrowers and their Restricted Subsidiaries, in each case for the
period from January 1, 2004 through December 31, 2009 and (b) annual
calculations of the covenants contained in Section 11 hereof for the
2004 through 2009 fiscal years, copies of which have been delivered
to each Lender, disclose all assumptions made with respect to
general economic, financial and market conditions used in
formulating such projections. To the best knowledge of the
Borrowers, no facts exist that (individually or in the aggregate)
would result in any material change in any of such projections. The
projections are based upon reasonable estimates and assumptions,
have been prepared on the basis of the assumptions stated therein
and reflect the reasonable estimates of the Borrowers of the results
of operations and other information projected therein.
8.5. NO MATERIAL CHANGES, ETC.; SOLVENCY.
8.5.1. CHANGES. Since the Balance Sheet Date there has been no
event or occurrence which has had a Material Adverse Effect. Since
the Balance Sheet Date, the Borrowers have not made any Restricted
Payment other than as permitted by Section 10.4 hereof.
8.5.2. SOLVENCY. Both before and after giving effect to the
transactions contemplated by this Credit Agreement and the other
Loan Documents, the Borrowers and their Restricted Subsidiaries, on
a consolidated basis, are Solvent. As used herein,
52
"Solvent" shall mean that the Borrowers and their Restricted
Subsidiaries on a consolidated basis (a) have assets having a fair
value in excess of their liabilities, (b) have assets having a fair
value in excess of the amount required to pay their liabilities on
existing debts as such debts become absolute and matured, and (c)
have, and expect to continue to have, access to adequate capital for
the conduct of their business and the ability to pay their debts
from time to time incurred in connection with the operation of their
business as such debts mature.
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrowers
and each of their Restricted Subsidiaries possesses all franchises,
patents, copyrights, trademarks, trade names, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of its
business substantially as now conducted without, to the best of its
knowledge, conflict with any rights of others.
8.7. LITIGATION. Except as set forth in Schedule 8.7 hereto, there
are no actions, suits, proceedings or investigations of any kind pending
or threatened against any of the Borrowers or their Restricted
Subsidiaries before any court, tribunal or administrative agency or board
(a) that, if adversely determined, would have a Material Adverse Effect,
or (b) which question the validity of this Credit Agreement or any of the
other Loan Documents, or any action taken or to be taken pursuant hereto
or thereto.
8.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrowers or any of their Restricted Subsidiaries is in violation of any
provision of its Governing Documents, or any agreement or instrument to
which it may be subject or by which it or any of its properties may be
bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could have a
Material Adverse Effect.
8.9. TAX STATUS. The Borrowers and their Restricted Subsidiaries
(a) have made, filed or duly extended all federal, provincial, state and
income and all other material tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (b) have
paid all Taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations and all
estimated Taxes in connection with any extensions, except those being
contested in good faith and by appropriate proceedings and (c) have set
aside on their books provisions reasonably adequate for the payment of all
Taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid Taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Borrowers know of no basis for any such claim.
8.10. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
8.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrowers or any of their Restricted Subsidiaries is a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is it an "investment company", or an "affiliated
company" or a "principal underwriter" of an "investment company", as such
terms are defined in the Investment Company Act of 1940.
8.12. CERTAIN TRANSACTIONS. Except as set forth on Schedule 8.12 and
except for arm's length transactions pursuant to which any of the
Borrowers or any of their Restricted Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than
53
such Borrower or such Restricted Subsidiary could obtain from third
parties, none of the officers, directors, or employees of any of the
Borrowers or any of their Restricted Subsidiaries or other Affiliates is
presently a party to any transaction with any of the Borrowers or any of
their Restricted Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the best
knowledge of such Person, any corporation, partnership, trust or other
entity in which any officer, director, other Affiliates or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
8.13. EMPLOYEE BENEFIT PLANS.
8.13.1. IN GENERAL. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in
compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited
to the provisions thereunder respecting prohibited transactions and
the bonding of fiduciaries and other persons handling plan funds as
required by Section 412 of ERISA except where failure to comply
would not reasonably be expected to cause a Material Adverse Effect
or otherwise create a Default or Event of Default hereunder. Except
as set forth in Schedule 8.13, the US Borrower has heretofore
delivered to the Administrative Agent the most recently completed
annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under Section 103(d) of
ERISA, with respect to each Guaranteed Pension Plan.
8.13.2. GUARANTEED PENSION PLANS. Except as set forth in
Schedule 8.13, each contribution required to be made to a Guaranteed
Pension Plan, whether required to be made to avoid the incurrence of
an accumulated funding deficiency, or the notice or lien provisions
of Section 302(f) of ERISA has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods
has been received with respect to any Guaranteed Pension Plan and
neither the US Borrower nor any ERISA Affiliate is obligated to or
has posted security in connection with an amendment to a Guaranteed
Pension Plan pursuant to Section 307 of ERISA or Section 401(a)(29)
of the Code. No liability to the PBGC (other than required insurance
premiums, which to the extent heretofore due have been timely paid)
has been incurred by any of the Borrowers or any ERISA Affiliate
with respect to any Guaranteed Pension Plan and there has not been
any ERISA Reportable Event, or any other event or condition which
presents a material risk of termination of any Guaranteed Pension
Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of
the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, or where the initial
valuation of any Guaranteed Pension Plan has not been completed,
based on the US Borrower's reasonable estimate of the benefit
liabilities and assets of such Plan, the aggregate benefit
liabilities of all such Guaranteed Pension Plans within the meaning
of Section 4001 of ERISA did not exceed the aggregate value of the
assets of all such Guaranteed Pension Plans, disregarding for this
purpose the benefit liabilities and assets of any Guaranteed Pension
Plan with assets in excess of benefit liabilities, by more than
$5,000,000.
8.13.3. MULTIEMPLOYER PLANS. Neither the US Borrower nor any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets described
in
54
Section 4204 of ERISA. Neither the US Borrower nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of Section
4241 or Section 4245 of ERISA or is at risk of entering
reorganization or, becoming insolvent, or that any Multiemployer
Plan intends to terminate or has been terminated under Section 4041A
of ERISA.
8.13.4. CANADIAN PLANS. To the extent applicable: (a) all
contributions or premiums to be paid by the Canadian Borrower and
the Canadian Guarantors under the terms of each Canadian Plan or by
applicable law have been made in a timely fashion in accordance with
applicable law and the terms of the Canadian Plans, and each
Canadian Plan has been registered, administered, and invested in
accordance with its terms and applicable law; (b) the Canadian
Borrower and the Canadian Guarantors may unilaterally amend or
terminate, in whole or in part, each of their Canadian Plans; (c)
except as set forth in Schedule 8.13, as of the date hereof, neither
the aggregate going concern unfunded liability nor the aggregate
solvency deficiency in respect of all the Canadian Plans which are
funded plans, determined pursuant to the actuarial assumptions and
methodology utilized in the most recent actuarial valuations
therefor, exceeds the Canadian Dollar Equivalent of $5,000,000; and
(d) the Canadian Borrower and Canadian Guarantors have delivered to
the Administrative Agent such valuations for any funded Canadian
Plan.
8.14. USE OF PROCEEDS; REGULATIONS U AND X. The proceeds of the
Loans shall be used by (a) the US Borrower solely to restate and refinance
the Loans under the Existing Credit Agreement, for Permitted Acquisitions,
investments permitted under Section 10.3 and for working capital, Capital
Expenditures and general corporate purposes, and (b) the Canadian Borrower
to refinance existing Indebtedness, working capital and general corporate
purposes. The US Borrower will obtain Letters of Credit solely for working
capital and general corporate purposes. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for the
purpose of purchasing or carrying any "margin security" or "margin stock"
as such terms are used in Regulations U and X of the Board of Governors of
the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
8.15. ENVIRONMENTAL COMPLIANCE. Each of the Borrowers and their
Restricted Subsidiaries have taken all reasonable steps to investigate the
past and present condition and usage of the Real Estate and the operations
conducted thereon and, based upon such reasonable investigation, has
determined that:
(a) except as set forth on Schedule 8.15 attached hereto, none of
the Borrowers, none of their Restricted Subsidiaries nor any operator of
the Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any Canadian,
federal, provincial, state or local statute, regulation, ordinance, order
or decree relating to health, safety or the environment or otherwise
relating to land use or occupation of land or buildings, heritage
preservation, protection or conservation of natural or cultural sources,
pollution or contamination of air, water or soil, waste or chemical
disposal, toxic, hazardous, poisonous, or dangerous substances or noise or
odor (hereinafter "Environmental Laws"), which violation could have a
Material Adverse Effect;
55
(b) except as set forth in Schedule 8.15 attached hereto, none of
the Borrowers nor any of their Restricted Subsidiaries has received notice
from any third party including, without limitation, any Canadian, federal,
provincial, state or local governmental authority, (i) that any one of
them has been identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities List, 40 C.F.R. Part
▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any hazardous waste, as defined by 42 U.S.C.
Section 6903(5) or by any applicable Environmental Laws, any hazardous
substances as defined by 42 U.S.C. Section 9601(14) or by any applicable
Environmental Laws, any pollutant or contaminant as defined by 42 U.S.C.
Section 9601(33) or by any applicable Environmental Laws and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any one
of them has generated, transported or disposed of has been found at any
site at which a federal, provincial, state or local agency or other third
party has conducted or has ordered that the Borrowers or any of their
Restricted Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint,
or legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs, expenses,
losses or damages of any kind whatsoever in connection with the release of
Hazardous Substances, in each case which has or has the potential of
having a Material Adverse Effect;
(c) except as set forth on Schedule 8.15 attached hereto: (i) to
the best knowledge of any of the Borrowers, no portion of the Real Estate
has been used for the handling, processing, storage or disposal of
Hazardous Substances which would have a Material Adverse Effect, except in
accordance with applicable Environmental Laws; (ii) in the course of any
activities conducted by any Borrower, its Restricted Subsidiaries or
operators of its properties, no Hazardous Substances have been generated
or are being used on the Real Estate except in accordance with applicable
Environmental Laws; (iii) to the best knowledge of any Borrower, there
have been no releases (i.e. any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping) or threatened releases of Hazardous
Substances on, upon, into or from the properties of any Borrower or its
Restricted Subsidiaries, which releases would have a material adverse
effect on the value of any of the Real Estate or adjacent properties or
the environment; (iv) to the best knowledge of any Borrower, there have
been no releases on, upon, from or into any real property in the vicinity
of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a
material adverse effect on the value of, the Real Estate; and (v) in
addition, to the best knowledge of any Borrower, any Hazardous Substances
that have been generated on any of the Real Estate after the effective
date of RCRA and applicable regulations have been transported offsite only
by carriers having an identification number issued by the EPA and with
respect to Real Estate located in Canada, an identification number issued
by any Canadian federal or provincial agency, treated or disposed of only
by treatment or disposal facilities maintaining valid permits as required
under applicable Environmental Laws, which transporters and facilities
have been and are, to the best knowledge of each Borrower, operating in
compliance with such permits and applicable Environmental Laws; and
(d) except as listed on Schedule 8.15 hereto, none of the
Borrowers and their Restricted Subsidiaries, nor any of the Real Estate is
subject to any applicable Environmental Law requiring the performance of
Hazardous Substances site assessments, or the removal or remediation of
Hazardous Substances, or the giving of notice to any governmental agency
or the recording or delivery to other Persons of an environmental
disclosure document or statement by virtue of the transactions set forth
herein and contemplated hereby, or as a condition to the effectiveness of
any other transactions contemplated hereby.
56
8.16. SUBSIDIARIES, ETC. Each of the Borrowers' direct and indirect
Subsidiaries are as set forth on Schedule 8.16(a) hereof and each Borrower
holds the ownership interests in each direct and indirect Subsidiary
described on Schedule 8.16(a). None of the Subsidiaries of the Borrowers
has any other Subsidiaries except as set forth on Schedule 8.16(a) hereto.
Except as set forth on Schedule 8.16(b), none of the Borrowers or any of
their Subsidiaries is engaged in any joint venture or partnership with any
other Person.
8.17. CAPITALIZATION. The Borrowers and their Subsidiaries are the
record and beneficial owners of the issued and outstanding Capital Stock
of the Persons described in and in the manner set forth on Schedule 8.17
hereof, free and clear of all Liens, other than Permitted Liens. All
shares of such Capital Stock have been validly issued, are outstanding,
fully paid and nonassessable and no options, warrants or other rights to
subscribe to additional shares of the Capital Stock of such Persons have
been granted or exist.
8.18. FISCAL YEAR. Each of the Borrowers and their Restricted
Subsidiaries has a fiscal year which is twelve calendar months ending on
December 31 of each year.
8.19. OPERATION OF RAILROADS. Each of the Borrowers is a rail
carrier or is primarily engaged in the business of providing management
and administrative services to rail carriers and other entities in the
transportation business, and holding stock of its Restricted Subsidiaries.
8.20. DISCLOSURE. No representation or warranty made by any of the
Borrowers or any of their Restricted Subsidiaries in any Loan Document to
which it is a party and no document or information furnished to the
Administrative Agent or the Lenders by or on behalf of or at the request
of any of the Borrowers or any of their Restricted Subsidiaries in
connection with any of the transactions contemplated by the Loan Documents
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained therein
not misleading in light of the circumstances in which they are made.
8.21. NO WITHHOLDING. As of the Closing Date, none of the Borrowers
is required by the laws of any jurisdiction to make any deduction or
withholding of any nature whatsoever from any payment to be made by the
Borrowers, or the amount and likelihood of such deductions or withholdings
are not, in the Administrative Agent's reasonable discretion, material.
Neither this Credit Agreement nor any of the other Loan Documents is
subject to any registration or stamp tax or any other similar or like
taxes payable in any jurisdiction.
9. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Lender has any
obligation to issue or extend any Letters of Credit:
9.1. PUNCTUAL PAYMENT. Each of the Borrowers will duly and
punctually pay or cause to be paid the principal and interest on the
Loans, all Reimbursement Obligations, Letter of Credit Fees, Commitment
Fees, Agent's Fees and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which such Borrower or any of
its Restricted Subsidiaries is a party, all in accordance with the terms
of this Credit Agreement and such other Loan Documents.
9.2. MAINTENANCE OF OFFICE.
57
9.2.1. US BORROWER AND US GUARANTORS. The US Borrower and the
US Guarantors will maintain their chief executive office at
Corporate Headquarters, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or
at such other place in the United States of America as the US
Borrower shall designate, upon thirty (30) days' prior written
notice to the Administrative Agent, where notices, presentations and
demands to or upon the US Borrower and the US Guarantors in respect
of the Loan Documents to which the US Borrower is a party may be
given or made.
9.2.2. CANADIAN BORROWER AND CANADIAN GUARANTORS. The Canadian
Borrower and each of the Canadian Guarantors (other than Huron) will
maintain their registered office at ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and Huron will maintain its registered
office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, or
at such other places in Canada as the Canadian Borrower shall
designate, upon thirty (30) days' prior written notice to the
Administrative Agent, where notices, presentations and demands to or
upon the Canadian Borrower and the Canadian Guarantors in respect of
the Loan Documents to which the Canadian Borrower or any of the
Canadian Guarantors are party may be given or made.
9.3. RECORDS AND ACCOUNTS. Each Borrower will (a) keep, and cause
each of its Restricted Subsidiaries to keep, true and accurate records and
books of account in which full, true and correct entries will be made in
accordance with GAAP and (b) maintain adequate accounts and reserves for
all taxes (including income taxes), depreciation, depletion, obsolescence
and amortization of its properties and the properties of its Restricted
Subsidiaries, contingencies, and other reserves.
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrowers will deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrowers, the
consolidated balance sheets for GWI and its Subsidiaries and the
consolidating balance sheets of GWI and its Subsidiaries, in each case as
at the end of such year, and the related consolidated statements of income
and cash flow for GWI and its Subsidiaries for the period then ended, and
the consolidating statements of income and cash flow for GWI and its
Subsidiaries for the period then ended, each setting forth in comparative
form the figures for the previous fiscal year (with the exception of the
comparative consolidating statements for fiscal year 2004 which will not
be provided), and all such consolidated and consolidating statements to be
in reasonable detail and prepared in accordance with GAAP, and all such
consolidated and consolidating statements to be certified without
qualification by PriceWaterhouseCoopers LLP or by other independent
certified public accountants satisfactory to the Administrative Agent,
together with (i) a written statement from such accountants to the effect
that they have read a copy of this Credit Agreement, and that, in making
the examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such accountants
shall have obtained knowledge of any then existing Default or Event of
Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Lenders
for failure to obtain knowledge of any Default or Event of Default and
(ii) their accountants' management letter relating to such fiscal year;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal
quarters of the Borrowers, copies of the unaudited consolidated balance
sheets of the Borrowers and their Restricted Subsidiaries and the
58
consolidating balance sheets of the Borrowers and their Restricted
Subsidiaries, in each case as at the end of such quarter, the related
consolidated statements of income and cash flow for the Borrowers and
their Restricted Subsidiaries for the portion of the Borrowers' fiscal
year then elapsed, and the consolidating statements of income and cash
flow for the Borrowers and their Restricted Subsidiaries for the portion
of the Borrower's fiscal year then elapsed, all in reasonable detail and
prepared in accordance with GAAP, together with a certification by the
principal financial or accounting officers of the Borrowers that the
information contained in such financial statements fairly present the
financial position of the Borrowers and their Restricted Subsidiaries on
the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsection (a) and subsection (b) above a statement
certified by the principal financial or accounting officers of the
Borrowers in substantially the form of Exhibit D hereto (a "Compliance
Certificate") and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 11 and, in
each case, (if applicable) reconciliations to reflect changes in GAAP
since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature (i) filed with the Securities and
Exchange Commission or (ii) sent to the stockholders of the Borrowers;
(e) no later than February 28 of each fiscal year of the
Borrowers, the annual budgets of the Borrowers and their Restricted
Subsidiaries, including projected consolidated balance sheets for the end
of such fiscal year and the end of each quarter of such fiscal year and
consolidated statements of income and cash flow for such fiscal year and
the end of each quarter of such fiscal year of the Borrowers and their
Restricted Subsidiaries; and
(f) from time to time such other financial data and information as
the Administrative Agent or any Lender may reasonably request.
Borrowers hereby acknowledge that (i) the Administrative Agent will make
available to Lenders and the Issuing Lender materials and/or information
provided by or on behalf of Borrowers hereunder (collectively, "Borrowers
Materials") by posting Borrowers Materials on IntraLinks or another similar
electronic system (the "Platform") and (ii) 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 Borrowers or their securities) (each, a
"Public Lender"). Borrowers hereby agree that (w) all Borrowers Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrowers Materials
"PUBLIC", Borrowers shall be deemed to have authorized the Administrative Agent,
the Issuing Lender and the Lenders to treat such Borrowers Materials as either
publicly available information or not material information (although it may be
sensitive and proprietary) with respect to Borrowers or their securities for
purposes of United States Federal and state securities laws; (y) all Borrowers
Materials marked "PUBLIC" are permitted to be made available through a portion
of the Platform designated "Public Investor"; and (z) the Administrative Agent
shall be entitled to treat any Borrowers Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor".
9.5. NOTICES.
9.5.1. DEFAULTS. Each Borrower will promptly notify the
Administrative Agent and each of the Lenders in writing of the
occurrence of any Default or Event of Default
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of which they become aware. If any Person shall give any notice or
take any other action in respect of a claimed default (whether or
not constituting an Event of Default) under this Credit Agreement or
any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which any of the Borrowers or
any of their Restricted Subsidiaries are parties or obligors,
whether as principal, guarantor, surety or otherwise, such Borrower
shall forthwith give written notice thereof to the Administrative
Agent and each of the Lenders, describing the notice or action and
the nature of the claimed default.
9.5.2. ENVIRONMENTAL EVENTS. Each Borrower will within fifteen
(15) days of becoming aware thereof, give notice to the
Administrative Agent and each of the Lenders (a) of any violation of
any Environmental Law that any of the Borrowers or any of their
Restricted Subsidiaries reports in writing or is reportable by such
Person in writing (or for which any written report supplemental to
any oral report is made) to any federal, provincial, state or local
environmental agency and (b) upon becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any
federal, provincial, state or local environmental agency or board,
that has the potential to have a Material Adverse Effect.
9.5.3. NOTICE OF LITIGATION AND JUDGMENTS. Each Borrower will,
and will cause each of its Restricted Subsidiaries to, give notice
to the Administrative Agent and each of the Lenders in writing
within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and
proceedings affecting any of the Borrowers or any of their
Restricted Subsidiaries or to which any of the Borrowers or any of
their Restricted Subsidiaries is or becomes a party involving an
uninsured claim against any of the Borrowers or any of their
Restricted Subsidiaries that could reasonably be expected to have a
Material Adverse Effect on such Borrower and its Restricted
Subsidiaries taken as a whole and stating the nature and status of
such litigation or proceedings. Each Borrower will, and will cause
each of its Restricted Subsidiaries to, give notice to the
Administrative Agent and each of the Lenders, in writing, in form
and detail satisfactory to the Administrative Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise,
against any of the Borrowers or any of their Restricted Subsidiaries
in an amount in excess of $5,000,000.
9.5.4. NOTIFICATION OF DERAILMENTS. Each Borrower will, and
will cause each of its Restricted Subsidiaries to, give notice to
the Administrative Agent and each of the Lenders in writing within
five (5) days of becoming aware thereof of any derailments or other
types of accidents which result (or could result) in the incurrence
of costs by the Borrowers and their Restricted Subsidiaries
reasonably estimated to be or exceed $5,000,000 and which could
reasonably be expected to have a Material Adverse Effect. The US
Borrower shall deliver to the Administrative Agent and each of the
Lenders all reports filed with the FRA regarding any occurrence
referred to in this Section 9.5.4. The Canadian Borrower shall
deliver to the Administrative Agent and each of the Lenders all
reports filed with relevant governmental authorities to which
derailments or other types of accidents relating to railway
operations are obliged to be reported.
9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. Each Borrower
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises and
those of its Restricted Subsidiaries and will not, and will not cause or
permit any of its Restricted Subsidiaries to, convert to a limited
liability company or a limited liability partnership. Each Borrower (a)
will cause all of its properties and those of its
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Restricted Subsidiaries used or useful in the conduct of its business or
the business of their Restricted Subsidiaries to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment, (b) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of each Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times, and (c) will, and will cause each of its Restricted Subsidiaries
to, continue to engage primarily in the businesses now conducted by them
and in related businesses; provided that nothing in this Section 9.6 shall
prevent any of the Borrowers from discontinuing the operation and
maintenance of any of its properties or any of those of its Restricted
Subsidiaries, including the existence of any Restricted Subsidiary of any
of the Borrowers or the conversions of any Restricted Subsidiary of the
Borrowers to a limited liability company or limited liability partnership,
if such discontinuance or conversion is, in the judgment of such Borrower,
desirable in the conduct of its or their business and that do not in the
aggregate have a Material Adverse Effect and, with respect to the
conversions of a Borrower or a Restricted Subsidiary to a limited
liability company or limited liability partnership, simultaneously with
such conversion, such Borrower or Restricted Subsidiary shall have
executed and delivered to the Administrative Agent all documentation which
the Administrative Agent reasonably determines is necessary to continue
such Borrower's or such Restricted Subsidiary's obligations in respect of
this Credit Agreement and the other Loan Documents. Specifically, but not
in limitation of the foregoing, the US Borrower and each of the US
Guarantors will maintain such an appropriate FRA Class rating on its
railroad lines as is reasonable and prudent in light of all the relevant
facts and circumstances.
9.7. INSURANCE. Each Borrower will, and will cause each of its
Restricted Subsidiaries to, maintain with financially sound and reputable
insurers insurance with respect to their properties and business against
such casualties and contingencies as shall be in accordance with the
general practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms and
for such periods as described on Schedule 9.7 hereto and as may be
reasonable and prudent.
9.8. TAXES. Each Borrower will, and will cause each of its
Restricted Subsidiaries to, duly pay and discharge, or cause to be paid
and discharged, all material Taxes imposed upon it and its real
properties, sales and activities, or any part thereof, or upon the income
or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a Lien or charge upon any of
its property in each case, that if not paid, is reasonably likely to
result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof
shall currently be contested in good faith by appropriate proceedings and
(b) such Borrower or such Restricted Subsidiary shall have set aside on
its books adequate reserves with respect thereto; provided, however, that
each Borrower and each of their Restricted Subsidiaries will pay all such
Taxes forthwith upon the commencement of proceedings to foreclose any Lien
that may have attached as security therefor.
9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
9.9.1. GENERAL. Each Borrower shall permit the Lenders,
through the Administrative Agent or any of the Lenders' other
designated representatives, to visit and inspect any of the
properties of the Borrowers or any of their Restricted Subsidiaries,
to examine the books of account of the Borrowers and their
Restricted Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the
Borrowers and their Restricted Subsidiaries with, and to be advised
as to
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the same by, their officers, all at such reasonable times and
intervals as the Administrative Agent or any Lender may reasonably
request.
9.9.2. COMMUNICATIONS WITH ACCOUNTANTS. The Borrowers
authorize the Administrative Agent and, if accompanied by the
Administrative Agent, the Lenders, to communicate directly with the
Borrowers' independent certified public accountants and authorize
such accountants to disclose to the Administrative Agent and the
Lenders any and all financial statements and other supporting
financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other
affairs of the Borrowers or any of their Restricted Subsidiaries. At
the request of the Administrative Agent, the Borrowers shall deliver
a letter addressed to such accountants instructing them to comply
with the provisions of this Section 9.9.2.
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each
Borrower will, and will cause each of its Restricted Subsidiaries to,
comply with (a) the applicable laws and regulations wherever their
business is conducted, including all Environmental Laws, (b) the
provisions of its Governing Documents, (c) all material agreements and
instruments by which they or any of their properties may be bound and (d)
all applicable decrees, orders, and judgments, where, with respect to
clauses (a), (c) and (d) only, failure to so comply could have a Material
Adverse Effect. If any authorization, consent, approval, permit or license
from any officer, agency or instrumentality of any government shall become
necessary or required in order that the Borrowers or any of their
Restricted Subsidiaries may fulfill any of their obligations hereunder or
any of the other Loan Documents to which such Borrower or such Restricted
Subsidiary is a party, such Borrower will, or (as the case may be) will
cause such Restricted Subsidiary to, immediately take or cause to be taken
all reasonable steps within the power of such Borrower or such Restricted
Subsidiary to obtain such authorization, consent, approval, permit or
license and furnish the Administrative Agent and the Lenders with evidence
thereof.
9.11. EMPLOYEE BENEFIT PLANS. The US Borrower will (a) within ten
(10) days of receipt of a written request by the Administrative Agent,
furnish to the Administrative Agent a copy of the most recent actuarial
statement required to be submitted under Section 103(d) of ERISA and
Annual Report, Form 5500, with all required attachments, in respect of
each Guaranteed Pension Plan and (b) within ten (10) days of receipt or
dispatch, furnish to the Administrative Agent any notice, report or demand
sent or received in respect of a Guaranteed Pension Plan under Sections
302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect
of a Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or 4245
of ERISA. The Canadian Borrower and the Canadian Guarantors will (i)
within ten (10) days of receipt of a written request by the Administrative
Agent, furnish to the Administrative Agent a copy of the most recent
actuarial valuation submitted to the relevant authorities in respect of
each funded Canadian Plan and (ii) within ten (10) days of receipt or
dispatch, furnish to the Administrative Agent any material correspondence
from or to the relevant authorities or any other Person in respect of any
Canadian Plan.
9.12. USE OF PROCEEDS. Each Borrower will use the proceeds of the
Loans and the US Borrower will obtain Letters of Credit solely for the
purposes set forth in Section 8.14 hereof.
9.13. FURTHER ASSURANCES. Each Borrower will, and will cause each of
its Restricted Subsidiaries to, cooperate with the Lenders and the
Administrative Agent and execute such further instruments and documents as
the Lenders or the Administrative Agent shall reasonably request to carry
out to their reasonable satisfaction the transactions contemplated by this
Credit Agreement and the other Loan Documents.
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9.14. ADDITIONAL SUBSIDIARIES. The Borrowers shall upon the
creation, acquisition or designation after the Closing Date of a new
Restricted Subsidiary, cause each such Restricted Subsidiary to execute
and deliver to the Administrative Agent for the benefit of the Lenders and
the Administrative Agent, an Instrument of Adherence (Guaranty), in
substantially the form of Exhibit E hereto (an "Instrument of Adherence
(Guaranty)"), whereby such Restricted Subsidiary becomes a party to the
applicable Loan Documents, provided that foreign Restricted Subsidiaries
of the US Borrower will not execute a Guaranty of the US Obligations, but
foreign Restricted Subsidiaries of the US Borrower shall execute a
Guaranty of the Canadian Obligations (unless there would be a material tax
or legal impediment with respect to any such Guaranty as determined by the
Borrowers and the Administrative Agent). If requested by the
Administrative Agent, the Borrowers shall deliver to the Administrative
Agent and the Lenders legal opinions in form and substance satisfactory to
the Administrative Agent opining as to the authorization, validity and
enforceability of such Instrument of Adherence (Guaranty) and the other
documentation delivered in connection therewith, and as to such other
matters as the Administrative Agent may request. In addition, the
Borrowers shall upon the acquisition or creation of any new Subsidiary,
promptly notify (and in any event within 30 days) the Lenders thereof and
provide the Administrative Agent and the Lenders with an updated Schedule
I, Schedule 8.16 and Schedule 8.17 hereto to reflect the formation or
acquisition of each new Subsidiary. The Borrowers shall inform the
Administrative Agent in writing within two (2) US Business Days of the
delivery of an updated Schedule I, Schedule 8.16 and Schedule 8.17
whether the newly formed or acquired Subsidiary is a Restricted
Subsidiary or an Unrestricted Subsidiary under this Credit Agreement.
Notwithstanding the other provisions of this Section 9.14, any Restricted
Subsidiary in which any of the Borrowers or any of the Restricted
Subsidiaries have collectively invested less than $100,000, and so long
as such Restricted Subsidiary shall not have (a) assets in excess of
$100,000, (b) annual revenue in excess of $100,000 or (c) liabilities in
excess of $100,000, shall not be required to become a party to the
Guaranty.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
Each Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Issuing Lender has any obligation to
issue or extend any Letters of Credit:
10.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers will not, and will
not permit any of their Restricted Subsidiaries to, create, incur, assume,
guarantee or be or remain liable, contingently or otherwise, with respect
to any Indebtedness other than:
(a) Indebtedness to the Lenders, the Issuing Lender and the
Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 9.8;
(c) Indebtedness in respect of judgments or awards that have been
in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which any Borrower
or any of their Restricted Subsidiaries shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a
stay of execution shall have been obtained pending such appeal or review;
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(d) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(e) Indebtedness of any of the Borrowers or any of their
Restricted Subsidiaries to any of the Borrowers or any of their other
Restricted Subsidiaries consisting of rights of reimbursement,
contribution, subrogation and the like in connection with the joint and
several obligations of the Borrowers and their Restricted Subsidiaries
under the Loan Documents;
(f) Indebtedness incurred (other than under this Credit Agreement)
or assumed in connection with the acquisition after the date hereof of any
real or personal property by the Borrowers or their Restricted
Subsidiaries (including Indebtedness in respect of Capitalized Leases),
provided that the aggregate principal amount of such Indebtedness of (i)
the US Borrower and its Restricted Subsidiaries shall not exceed the
amount of $35,000,000 at any one time and (ii) GWCA and its Restricted
Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any
one time;
(g) Indebtedness existing on the date hereof and listed and
described on Schedule 10.1 hereto including any extensions or refinancings
thereof on substantially similar terms as the Indebtedness being
refinanced and provided there is no increase in the amount thereof;
(h) Indebtedness of (i) the US Borrower to any of the US
Guarantors or any of the US Guarantors to the US Borrower or any of the
other US Guarantors or (ii) the Canadian Borrower to any of the Canadian
Guarantors or any of the Canadian Guarantors to the Canadian Borrower or
any of the other Canadian Guarantors or (iii) (A) the US Borrower to the
Canadian Borrower or any of the Canadian Guarantors, (B) the Canadian
Borrower to the US Borrower or any of the US Guarantors, or (C) any of the
Canadian Guarantors to the US Borrower or any of the US Guarantors, or (D)
any of the US Guarantors to the Canadian Borrower or any of the Canadian
Guarantors, provided that the aggregate amount of Indebtedness under this
clause (iii) together with Investments permitted under Section 10.3(e)(ii)
shall not exceed $15,000,000 at any one time;
(i) Indebtedness of the Borrowers with respect to Hedging
Agreements provided that such Hedging Agreements are in form and substance
acceptable to the Administrative Agent;
(j) Indebtedness in respect of performance, surety, statutory,
insurance, appeal or similar bonds obtained in the ordinary course of
business;
(k) Indebtedness of the Borrowers or any of their Restricted
Subsidiaries in respect of guaranties of obligations in connection with
Permitted Acquisitions and other Investments permitted by Section 10.3(h)
and for the operation of any of their Restricted Subsidiaries (in each
case, to the extent the underlying Indebtedness with respect thereto is
otherwise permitted under this Section 10.1), not to exceed $20,000,000 in
aggregate for all such permitted at any time;
(l) Indebtedness of the US Borrower with respect to the put option
of IFC pursuant to the IFC Documents;
(m) Indebtedness with respect to the US Borrower's $8,000,000
Letter of Credit in favor of CFCM until Technical Completion (as defined
in the IFC Documents);
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(n) Indebtedness with respect to the US Borrower's $7,500,000
guarantee of CFCM's obligations to IFC until Financial Completion (as
defined in the IFC Documents);
(o) Indebtedness with respect to the Senior Notes, not to exceed
$75,000,000 at any one time; and
(p) Other Indebtedness not included in the foregoing provisions of
this Section 10.1 not to exceed $20,000,000 in the aggregate at any time
outstanding.
10.2. RESTRICTIONS ON LIENS. Each Borrower will not, and will not
permit any of its Restricted Subsidiaries to, (i) create or incur or
suffer to be created or incurred or to exist any Lien upon any of their
property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (ii) transfer any of
such property or assets or the income or profits therefrom for the purpose
of subjecting the same to the payment of Indebtedness or performance of
any other obligation in priority to payment of its general creditors;
(iii) acquire, or agree (except where such agreement is not binding on
such Borrower or Restricted Subsidiary) or have a non-revocable option to
acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; or
(iv) suffer to exist for a period of more than thirty (30) days after the
same shall have been incurred any Indebtedness or claim or demand against
it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority or preference whatsoever over its general
creditors; provided that such Borrower and any of its Restricted
Subsidiaries may create or incur or suffer to be created or incurred or to
exist:
(a) Liens in favor of the Administrative Agent for the benefit of
the Lenders and the Administrative Agent under the Loan Documents;
(b) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) Liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by Section 10.1(c);
(e) Liens of carriers, warehousemen, mechanics and materialmen,
and other like Liens on properties, in existence less than 120 days from
the date of creation thereof in respect of obligations not overdue;
(f) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
Liens under leases to which any of the Borrowers or any of their
Restricted Subsidiaries is a party, and other minor Liens or encumbrances
none of which in the opinion of such Borrower interferes materially with
the use of the property affected in the ordinary conduct of the business
of such Borrower and its Restricted Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of any of the Borrowers individually or of the Borrowers and
their Restricted Subsidiaries on a consolidated basis;
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(g) Liens existing on the date hereof and listed on Schedule 10.2
hereto and any extensions or renewals thereof provided that the principal
amount secured thereby is not thereafter increased and no additional
assets become subject to such Lien;
(h) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof to
secure purchase money Indebtedness of the type and amount permitted by
Section 10.1(f), incurred or assumed in connection with the acquisition of
such property, which security interests or mortgages cover only the real
or personal property so acquired;
(i) Liens consisting of deposits to secure Indebtedness permitted
by Section 10.1(j) hereof;
(j) Liens on the Capital Stock of any Unrestricted Subsidiary so
long as such Liens are otherwise non-recourse to the Borrowers and their
Restricted Subsidiaries; and
(k) other Liens not included in the foregoing provisions of this
Section 10.2 securing Indebtedness permitted by Section 10.1(p) so long as
the fair market value of the assets encumbered by such Liens does not
exceed $10,000,000 in the aggregate.
10.3. RESTRICTIONS ON INVESTMENTS. Each Borrower will not, and will
not permit its Restricted Subsidiaries to, make or permit to exist or to
remain outstanding any Investment except the Borrowers and their
Restricted Subsidiaries may make or permit to exist or to remain
outstanding Investments in:
(a) Cash Equivalents;
(b) Investments existing on the date hereof and listed on Schedule
10.3 hereto;
(c) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $750,000 in the aggregate at any time
outstanding;
(d) Investments by any of the Borrowers or any of their Restricted
Subsidiaries consisting of rights of reimbursement, contribution,
subrogation and the like in connection with the joint and several
obligations of such Restricted Subsidiaries under the Loan Documents;
(e) Investments so long as the entities referred to in this
paragraph (e) remain Restricted Subsidiaries of a Borrower (i) with
respect to Indebtedness permitted by Section 10.1(h) or (ii) consisting of
transfers of assets from (A) the US Borrower to the Canadian Borrower or
any of the Canadian Guarantors, (B) the Canadian Borrower to the US
Borrower or any of the US Guarantors, (C) any of the Canadian Guarantors
to the US Borrower or any of the US Guarantors, or (D) any of the US
Guarantors to the Canadian Borrower or any of the Canadian Guarantors,
provided that the aggregate amount of Investments under this clause (ii)
together with Indebtedness permitted under Section 10.1(h)(iii) shall not
exceed $15,000,000 at any one time;
(f) Investments between (i) the US Borrower and any of (A) the US
Guarantors, and (B) Quebec (so long as it remains the Canadian Borrower)
or (ii) the Canadian Borrower and any of the Canadian Guarantors;
(g) Investments made in connection with a Permitted Acquisition;
and
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(h) Other Investments by the Borrowers and the Restricted
Subsidiaries, so long as the aggregate amount of such Investments does not
exceed $75,000,000, and so long as no Default or Event of Default shall
have occurred and be continuing at the time such Investment is made or
would result therefrom.
10.4. DISTRIBUTION AND RESTRICTED PAYMENTS. Each Borrower will not,
and will not permit any of its Restricted Subsidiaries to, declare or make
any Restricted Payments, provided however that (a) the Borrowers'
Restricted Subsidiaries may make Distributions to a Borrower or other
Restricted Subsidiaries, (b) the Borrowers may make the Investments
permitted by Section 10.3(h) hereof, and (c) so long as no Default or
Event of Default shall have occurred and be continuing, and so long as
none would result after giving effect thereto, the Borrowers may make
other Restricted Payments consisting of stock repurchases and cash
dividends if the Funded Debt to EBITDAR Ratio on a pro forma basis
calculated as of the end of the most recently ended fiscal quarter after
giving effect to such Restricted Payments and any borrowings incurred to
make such repurchases and payments is less than 3.00 to 1.
10.5. MERGER, PERMITTED ACQUISITIONS AND DISPOSITION OF ASSETS.
10.5.1. MERGERS. Each Borrower will not, and will not permit
any of its Restricted Subsidiaries to, consummate any merger,
amalgamation or consolidation other than the merger, amalgamation or
consolidation of (a) a Restricted Subsidiary of the Borrowers into
any other Restricted Subsidiary, (b) a Restricted Subsidiary of any
Borrower with and into such Borrower, or (c) two or more Restricted
Subsidiaries of the Borrowers with each other.
10.5.2. PERMITTED ACQUISITIONS.
Each Borrower will not, and will not permit any of its Restricted
Subsidiaries to, effect any asset acquisition or stock acquisition except
(a) the acquisition of assets in the ordinary course of business
consistent with past practices, (b) Capital Expenditures or (c)
acquisitions by the Borrowers or any Restricted Subsidiary of the
Borrowers (with the proceeds of a capital contribution from such Borrower
or otherwise) of any other US or Canadian Person, or of any business,
division or operating unit of any other US or Canadian Person (whether by
way of a purchase of assets or Capital Stock) (each such acquisition
satisfying all the conditions and requirements of this Section 10.5.2
being referred to herein as a "Permitted Acquisition") provided that:
(i) the aggregate Purchase Price for any one Permitted
Acquisition (or group of related acquisitions) shall not exceed
$75,000,000, for any U.S. or Canadian Person or any business,
division or operating unit of any U.S. or Canadian Person;
(ii) such Borrower shall have demonstrated to the reasonable
satisfaction of the Administrative Agent (based on, among other
things, operating and financial projections and pro forma financial
statements delivered to the Administrative Agent and certified by
the chief financial officer of such Borrower) that, after giving
pro-forma effect to the Permitted Acquisition and the incurrence of
any Indebtedness in connection therewith, all covenants contained in
Section 11 would have been satisfied on a pro forma basis as at the
end of and for the most recent fiscal quarter, and will be satisfied
on a pro forma basis for the next four fiscal quarters ending after
the date of such Investment;
(iii) with respect to any such Permitted Acquisition:
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(A) such Borrower shall have delivered to the
Administrative Agent reasonable (and, in any event, fifteen
(15) days) prior written notice of such acquisition, which
notice shall provide the Administrative Agent with a
reasonably detailed description of the proposed acquisition,
and shall include true and complete copies of (to the extent
available at such time but in any event prior to the closing
of any such Permitted Acquisition) all instruments and
agreements executed or delivered or to be executed or
delivered by such Borrower or any of its Restricted
Subsidiaries in connection with such acquisition, all of which
shall be reasonably satisfactory in form and substance to the
Administrative Agent;
(B) the business and assets so acquired shall be
acquired by such Borrower or any of its Restricted
Subsidiaries free and clear of all Liens (other than Permitted
Liens) and Indebtedness (other than Indebtedness permitted by
Section 10.1(f) or otherwise consented to in writing by the
Required Lenders) and the business so acquired shall be
substantially the same line of business as that presently
conducted by such Borrower and its Restricted Subsidiaries or
lines of business reasonably related thereto;
(C) no contingent obligations, Indebtedness or
liabilities will be incurred or assumed in connection with
such acquisition which could reasonably be expected to have a
Material Adverse Effect;
(D) in the case of any acquisition of Capital Stock,
(x) the acquired Person shall become a Restricted Subsidiary
of a Borrower (or of any existing Restricted Subsidiary of
such Borrower) or shall be merged with and into such Borrower
or any existing Restricted Subsidiary of such Borrower; and,
unless such acquired Person fits within the exception set
forth in the last sentence of Section 9.14, such Borrower or
the applicable Restricted Subsidiary and such acquired Person
shall have become a Guarantor hereunder, and shall have
otherwise complied with all the applicable provisions of
Section 9.14 and (y) the board of directors (or other
applicable governing body) of the acquired Person shall have
approved such proposed acquisition;
(iv) no Default or Event of Default shall exist immediately
prior to such Permitted Acquisition or would result from such
Permitted Acquisition and provided further that if such Permitted
Acquisition would result in a change in control of the acquired
Person, such Investment shall have been approved by the board of
directors of such Person prior to the making of such Investment; and
(v) with respect to any Permitted Acquisition, any debt
instruments or preferred stock evidencing, governing or issued in
connection with such Investment shall be reasonably satisfactory to
the Administrative Agent and shall be permitted by this Credit
Agreement.
10.5.3. DISPOSITION OF ASSETS. Each Borrower will not, and
will not permit any of its Restricted Subsidiaries to, become a
party to or agree to or effect any disposition of assets or stock or
other equity interests, other than the disposition of assets in the
ordinary course of business and sale leasebacks to the extent
permitted under Section 10.6. Notwithstanding the foregoing, (a) if
no Default or Event of Default exists or will occur as a result of
such disposition or sale, the Borrowers and their Restricted
Subsidiaries may lease, sell or otherwise dispose of assets (other
than stock and other equity interests)
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for cash; provided that the aggregate net book value (at the time of
disposition thereof and after giving effect to the contemplated
disposition) of all such assets shall not exceed $25,000,000 during
any period of twelve consecutive months, and (b) neither Borrower
will, nor will permit any of its Restricted Subsidiaries to, become
a party to or agree to or effect any sales by such Borrower or
Restricted Subsidiary of (i) accounts or general intangibles for
money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or
(iii) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than in
connection with the disposition of the business operations of such
Borrower or Restricted Subsidiary relating thereto or a disposition
of defaulted receivables for collection and not as a financing
arrangement, and together with any obligation of such Borrower or
Restricted Subsidiary to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in
connection therewith.
10.6. SALE AND LEASEBACK. After the Closing Date, each Borrower will
not, and will not permit any of its Restricted Subsidiaries to, enter into
any arrangement, directly or indirectly, whereby any of the Borrowers or
any Restricted Subsidiary of a Borrower shall sell or transfer any
property owned by it in order then or thereafter to lease such property or
lease other property that a Borrower or any Restricted Subsidiary of a
Borrower intends to use for substantially the same purpose as the property
being sold or transferred, provided that any Borrower or any of their
Restricted Subsidiaries may enter into such sale leaseback transactions to
the extent that the aggregate net book value (at the time of disposition
thereof and after giving effect to the contemplated disposition) of the
assets sold in connection with all such sale leasebacks does not exceed
(a) with respect to the US Borrower, $15,000,000 in the aggregate for any
calendar year, and (b) with respect to the Canadian Borrower, $5,000,000
in the aggregate for any calendar year.
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. Except in compliance with
all applicable Environmental Laws, each Borrower will not, and will not
permit any of its Restricted Subsidiaries to, (a) use any of the Real
Estate or any portion thereof for the handling, processing, storage or
disposal of Hazardous Substances, (b) cause or permit to be located on any
of the Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any Hazardous Substances
on any of the Real Estate, (d) conduct any activity at any Real Estate or
use any Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping) or
threatened release of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real Estate or use any
Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law.
10.8. EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule 8.13
or as would not, individually or in the aggregate, be reasonably expected
to result in a Material Adverse Effect, none of the Canadian Borrower, the
Canadian Guarantors, the US Borrower nor any ERISA Affiliate will,
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for the Borrowers or any of their Restricted
Subsidiaries which could have a Material Adverse Effect; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in Section 302 of ERISA,
whether or not such deficiency is or may be waived; or
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(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a Lien or encumbrance on the assets of the
Borrowers or any of their Restricted Subsidiaries pursuant to Section
302(f) or Section 4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities, by
more than $1,000,000;
(e) fail to contribute to any Canadian Plan any amount required to
be contributed thereto in accordance with applicable law or the terms of
such Canadian Plan, by more than $1,000,000 in the aggregate for all
Canadian Plans;
(f) permit or take any action which would result in the aggregate
going concern unfunded liability or the aggregate solvency deficiency in
respect of all the Canadian Plans which are funded plans, determined
pursuant to the actuarial assumptions and methodology utilized in the most
recent actuarial valuations therefor, to exceed the Canadian Dollar
Equivalent of $1,000,000; or
(g) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to Section 307 of ERISA or Section
401(a)(29) of the Code.
10.9. BUSINESS ACTIVITIES. Each Borrower will not, and will not
permit any of its Restricted Subsidiaries, to engage directly or
indirectly (whether through Restricted Subsidiaries or otherwise) in any
type of business not engaged in by such Borrower or such Restricted
Subsidiary on the Closing Date, unless incidental or related to any type
of business engaged in by such Borrower or such Restricted Subsidiaries on
such date.
10.10. CAPITALIZATION. Each Borrower will not, and will not permit
any of its Restricted Subsidiaries to, authorize, issue or sell any
Capital Stock, grant any options (other than under current option plans),
warrants or other rights to purchase any Capital Stock or in any way
change the capitalization of any of its Restricted Subsidiaries in such a
manner as to cause such Borrower to own directly or indirectly less than
one hundred percent of the Capital Stock, of each of its Restricted
Subsidiaries (except as set forth in Section 8.17 or Section 10.5.2). Each
Borrower will not issue any Capital Stock having debt-like features (such
as mandatory cash dividends, mandatory redemption provisions or other
provisions which create monetary obligations on such Borrower payable in
cash during a period when Loans may be outstanding) except to the extent
that such Capital Stock, if classified as Indebtedness of such Borrower,
would be permitted by Section 10.1 hereof.
10.11. FISCAL YEAR. Each Borrower will not, and will not permit its
Restricted Subsidiaries to, change the date of the end of their fiscal
year from that set forth in Section 8.18 hereof.
10.12. RESTRICTIONS ON NEGATIVE PLEDGES AND UPSTREAM LIMITATIONS.
The Borrowers will not, nor will they permit any of their Restricted
Subsidiaries to, (a) enter into any agreement or arrangement (excluding
this Credit Agreement and the Loan Documents) prohibiting the creation or
assumption of any Lien upon its properties, revenues or assets whether now
owned or hereafter acquired or (b) enter into any agreement, contract or
arrangement (excluding this Credit Agreement and the other Loan Documents)
restricting the ability of any US Guarantor or any Restricted Subsidiary
of the Canadian Borrower to (i) pay or make dividends or distributions in
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cash or kind to the US Borrower (in the case of any US Guarantor) or the
Canadian Borrower (in the case of Restricted Subsidiaries of the Canadian
Borrower), (ii) make loans, advances or other payments of whatsoever
nature to the US Borrower (in the case of US Guarantors) and the Canadian
Borrower (in the case of Restricted Subsidiaries of the Canadian Borrower)
or (iii) make transfers or distributions of all or any part of its assets
to the US Borrower (in the case of US Guarantors) and the Canadian
Borrower (in the case of Restricted Subsidiaries of the Canadian
Borrower); in each case other than (i) restrictions on specific assets
which assets are the subject of purchase money security interests to the
extent permitted under Section 10.2, and (ii) customary anti-assignment
provisions contained in leases and licensing agreements entered into by
the Borrowers or such Subsidiary in the ordinary course of its business.
10.13. TRANSACTIONS WITH AFFILIATES. Each Borrower will not, and
will not permit any of its Restricted Subsidiaries to, engage in any
transaction with any Affiliate (other than the Borrowers or any of their
Restricted Subsidiaries) (other than (i) for services as employees,
officers and directors, (ii) equity awards related to common stock to
employees and directors pursuant to incentive compensation plans involving
not more than 25% of the common stock of such Borrower and (iii)
transactions pursuant to agreements listed on Schedule 10.13), including
any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to
or from, or otherwise requiring payments to or from any such Affiliate or,
to the knowledge of such Borrower, any corporation, partnership, trust or
other entity in which any such Affiliate has a substantial interest or is
an officer, director, trustee or partner, on terms more favorable to such
Person than would have been obtainable on an arm's-length basis in the
ordinary course of business.
10.14. MODIFICATION OF CERTAIN DOCUMENTS. Each Borrower will not,
and will not permit any of its Restricted Subsidiaries to, modify, amend
or supplement the Senior Notes in a manner which affects the amount or
timing of payments to be made thereunder or any other debt-like features
thereof, or which results in more restrictive covenants and events of
default than in this Credit Agreement, without the prior written consent
of the Administrative Agent.
11. FINANCIAL COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Lender has any
obligation to issue or extend any Letters of Credit:
11.1. FUNDED DEBT TO EBITDAR RATIO. The Borrowers will not permit
the Funded Debt to EBITDAR Ratio to exceed 3.50 to 1 as of the last day of
any fiscal quarter.
11.2. INTEREST COVERAGE. The Borrowers will not permit the ratio of
(a) Consolidated EBITDA for the preceding period of four (4) consecutive
fiscal quarters to (b) Consolidated Total Interest Expense for such
period, to be less than 3.50 to 1 as of the last day of any fiscal
quarter.
11.3. CONSOLIDATED TANGIBLE NET WORTH. The Borrowers will not permit
Consolidated Tangible Net Worth as of the last day of any fiscal quarter
to be less than the sum of (a) eighty percent (80%) of Consolidated
Tangible Net Worth for the most recent fiscal quarter ended prior to the
Closing Date plus (b) on a cumulative basis, fifty percent (50%) of
positive Consolidated Net Income for each fiscal quarter ending subsequent
to the Closing Date.
11.4. CAPITAL EXPENDITURES. The Borrowers will not make, or permit
any Restricted Subsidiaries to make, Capital Expenditures in any fiscal
year that exceed, in the aggregate,
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$42,000,000; provided, however, that, if during any fiscal year the amount
of Capital Expenditures permitted for that fiscal year is not so utilized,
fifty percent (50%) of such unutilized amount may be utilized in the next
succeeding fiscal year but not in any subsequent fiscal year.
12. CLOSING CONDITIONS.
The obligations of certain of the Lenders to convert their claims against
the Borrowers and certain of their Restricted Subsidiaries with respect to the
Existing Credit Agreement into Obligations under this Credit Agreement, to amend
and restate the Existing Credit Agreement and to make the initial Loans and the
Issuing Lender to convert any existing letters of credit into Letters of Credit
under this Credit Agreement and issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
the Closing Date.
12.1. LOAN DOCUMENTS, ETC. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall
be in full force and effect and shall be in form and substance
satisfactory to each of the Lenders.
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS; GOOD STANDING
CERTIFICATES. The Administrative Agent shall have received from each of
the Borrowers and each of their Restricted Subsidiaries (a) a copy,
certified by a duly authorized officer of such Person to be true and
complete and in full force and effect on the Closing Date, of each of the
Governing Documents as in effect on such date of certification and (b)
certificates of good standing, all in form and substance satisfactory to
the Administrative Agent and its counsel.
12.3. CORPORATE OR OTHER ACTION. All corporate or other action
necessary for the valid execution, delivery and performance by each of the
Borrowers and each of their Restricted Subsidiaries of this Credit
Agreement and the other Loan Documents to which it is or is to become a
party shall have been duly and effectively taken, and evidence thereof
shall have been provided to the Administrative Agent.
12.4. INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received from each of the Borrowers and each of their Restricted
Subsidiaries an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of such Borrower or such Restricted
Subsidiary, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign, in the name and on behalf
of each Borrower or such Restricted Subsidiary, each of the Loan Documents
to which such Borrower or such Restricted Subsidiary is or is to become a
party; (b) in the case of the US Borrower, to make Loan Requests and
Conversion Requests, in the case of the Canadian Borrower, Continuation
Requests and, in the case of the US Borrower, to apply for Letters of
Credit; and (c) to give notices and to take other action on its behalf
under the Loan Documents.
12.5. PAYOFF AND TERMINATION OF LIENS. The Administrative Agent
shall have received satisfactory evidence of (a) payment in full of the
Existing Credit Agreement, including all interest and fees in accordance
with Section 29 hereof, and (b) the discharge of all Liens granted with
respect to the Existing Credit Agreement.
12.6. OPINION OF COUNSEL. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the
Lenders and the Administrative Agent, dated as of the Closing Date, in
form and substance satisfactory to the Lenders and the Administrative
Agent, from:
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(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the US Borrower and
the US Guarantors;
(b) local counsel to certain US Guarantors in the states of
Georgia and Utah; and
(c) local counsel to the Canadian Borrower and the Canadian
Guarantors (including a so called "525" opinion).
12.7. PAYMENT OF FEES. The Borrowers shall have reimbursed the
Administrative Agent for, or paid directly, all fees, costs and expenses
incurred by the Administrative Agent's Special Counsel and the Canadian
Counsel in connection with the closing of the transactions contemplated
hereby and all other fees payable under the Fee Letter.
12.8. CLOSING CERTIFICATE. The Borrowers shall have delivered to the
Administrative Agent a certificate, dated as of the Closing Date, stating
that, as of such date (a) the representations and warranties set forth
herein or in any other Loan Document are true and correct, (b) no Default
or Event of Default has occurred and is continuing and (c) the conditions
set forth in this Section 12 have been satisfied.
12.9. SENIOR NOTES. The Administrative Agent shall have received
satisfactory evidence that the US Borrower will issue the Senior Notes in
a principal amount of $75,000,000 on the Closing Date.
13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loans and of the Issuing Lender
to issue or extend any Letter of Credit, in each case whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of the Borrowers and their Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true in all material respects at and as of the
time of the making of such Loan or the issuance or extension of such
Letter of Credit (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and
to the extent that such representations and warranties relate expressly to
an earlier date) and no Default or Event of Default shall have occurred
and be continuing.
13.2. DOCUMENTS. The Loan Documents and all other documents incident
thereto shall be satisfactory in substance and in form to the Lenders and
to the Administrative Agent and the Administrative Agent's Special Counsel
and the Lenders and such counsel shall have received all information and
such counterpart originals or certified or other copies of such documents
as the Administrative Agent may reasonably request.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of
time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
73
(a) any Borrower shall fail to pay any principal of its Loans or
the US Borrower shall fail to pay any Reimbursement Obligation when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for
payment;
(b) any Borrower shall fail to pay (i) any interest on its Loans,
any Commitment Fee, any Letter of Credit Fee, or Agent's Fees due
hereunder, when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment, and such failure shall continue for three
(3) days; or (ii) any other sums due hereunder or under any of the other
Loan Documents, when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment, and such failure shall continue for thirty
(30) days;
(c) any of the Borrowers or any of their Restricted Subsidiaries
shall fail to comply with any of the covenants contained in Sections 9.1,
9.4, 9.5.1, the first sentence of Section 9.6, 9.12, 9.14, 10 or 11;
(d) any of the Borrowers or any of their Restricted Subsidiaries
shall fail to perform any term, covenant or agreement contained herein or
in any of the other Loan Documents (other than those specified elsewhere
in this Section 14.1) for thirty (30) days after written notice of such
failure has been given to the applicable Borrower by the Administrative
Agent;
(e) any representation or warranty of any of the Borrowers or any
of their Restricted Subsidiaries in this Credit Agreement or any of the
other Loan Documents or in any other document or instrument delivered
pursuant to or in connection with this Credit Agreement shall prove to
have been false in any material respect upon the date when made or deemed
to have been made;
(f) any of the Borrowers or any of their Restricted Subsidiaries
shall fail to pay when due, or within any applicable period of grace, any
obligation in excess of the aggregate amount of $20,000,000, for borrowed
money or credit received or in respect of any Capitalized Leases, or fail
to observe or perform any material term, covenant or agreement contained
in any agreement by which it is bound, evidencing or securing borrowed
money or credit received or in respect of any Capitalized Leases for such
period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof;
(g) any of the Borrowers or any of their Restricted Subsidiaries
shall make an assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator, administrator or receiver of any of the
Borrowers or any of their Restricted Subsidiaries or of any substantial
part of the assets of any of the Borrowers or any of their Restricted
Subsidiaries or shall commence any case or other proceeding relating to
any of the Borrowers or any of their Restricted Subsidiaries under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any of the Borrowers or any of their Restricted
Subsidiaries and the Borrowers or any of their Restricted Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence
therein or such petition or application shall not have been dismissed
within sixty (60) days following the filing thereof;
74
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers or
any of their Restricted Subsidiaries bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for
relief is entered in respect of any of the Borrowers or any Restricted
Subsidiary of the Borrowers in an involuntary case under federal
bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against any of the Borrowers or any of their Restricted
Subsidiaries that, with other outstanding final judgments, undischarged,
against any of the Borrowers or any of their Restricted Subsidiaries
exceeds in the aggregate $20,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof
or with the express prior written agreement, consent or approval of the
Lenders, or any action at law, suit or in equity or other legal proceeding
to cancel, revoke or rescind any of the Loan Documents shall be commenced
by or on behalf of any of the Borrowers or any of their Restricted
Subsidiaries party thereto or any of their respective stockholders, or any
court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in accordance with
the terms thereof;
(k) the US Borrower or any ERISA Affiliate incurs any liability to
the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $20,000,000, or the US Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$20,000,000, or any of the following occurs with respect to any Guaranteed
Pension Plan: (i) an ERISA Reportable Event shall have occurred and the
Required Lenders shall have determined in their reasonable discretion that
such event reasonably could be expected to result in liability of the US
Borrower or the US Guarantors to the PBGC or such Guaranteed Pension Plan
in an aggregate amount exceeding $20,000,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC, for the
appointment by the appropriate United States District Court of a trustee
to administer such Guaranteed Pension Plan or for the imposition of a Lien
in favor of such Guaranteed Pension Plan; or (ii) a trustee shall have
been appointed by the United States District Court to administer such
Guaranteed Pension Plan; or (iii) the PBGC shall have instituted
proceedings to terminate such Guaranteed Pension Plan;
(l) any of the Borrowers or any of their Restricted Subsidiaries
shall be enjoined, restrained or in any way prevented by the order of any
court or any administrative or regulatory agency from conducting any
material part of its business and such order shall continue in effect for
more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty, which in any
such case causes, for more than thirty (30) consecutive days, the
cessation or substantial curtailment of revenue producing activities at
any facility of the US Borrower or any of its Restricted Subsidiaries if
such event or circumstance is not covered by business interruption
insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrowers or any of their Restricted
75
Subsidiaries if such loss, suspension, revocation or failure to renew
would have a Material Adverse Effect;
(o) any of the Borrowers or any of their Restricted Subsidiaries
shall be indicted for a state or federal crime, or any civil or criminal
action shall otherwise have been brought against any of the Borrowers or
any of their Restricted Subsidiaries, a punishment for which in any such
case could include the forfeiture of any assets of such Borrower or such
Restricted Subsidiary having a fair market value in excess of $20,000,000;
or
(p) (i) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other
than ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, his interest in his father's estate and any
of his children or grandchildren and any trust or other Person controlled
by, and a majority of the beneficial ownership interest of which is owned
by, any of such individuals, singly or jointly, shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of more than
twenty-five percent (25%) of the outstanding shares of the common stock of
GWI, (ii) during any period of twelve consecutive calendar months,
individuals who were directors of GWI on the first day of such period
shall cease to constitute a majority of the board of directors of GWI,
(iii) any of the Borrowers shall at any time own directly or indirectly
less than 100% of the shares of the Capital Stock of each of their
Restricted Subsidiaries, as adjusted pursuant to any stock split, stock
dividend or recapitalization or reclassification of the capital of such
Person, except as otherwise consented to by the applicable Lenders
pursuant to Section 10.5.2, and except as otherwise described in Section
8.17; or (iv) any event shall occur which would constitute a "Change of
Control" as defined in any other Indebtedness in excess of $40,000,000;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by each of the Borrowers;
provided that in the event of any Event of Default specified in Sections 14.1(g)
or 14.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative
Agent or any Lender.
14.2. TERMINATION OF COMMITMENTS. If any one or more of the Events
of Default specified in Sections 14.1(g) or 14.1(h) shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each
of the Lenders shall be relieved of all further obligations to make Loans
to the Borrowers and the Issuing Lender shall be relieved of all further
obligations to issue or extend Letters of Credit. If any other Event of
Default shall have occurred and be continuing, or if on any Drawdown Date
or other date for issuing or extending any Letter of Credit the conditions
precedent to the making of the Loans to be made on such Drawdown Date or
(as the case may be) to issuing or extending such Letter of Credit on such
other date are not satisfied, the Administrative Agent may and, upon the
request of the Required Lenders, shall, by notice to the Borrowers,
terminate the unused portion of the credit hereunder, and upon such notice
being given such unused portion of the credit hereunder shall terminate
immediately and each of the Lenders shall be relieved of all further
obligations to make Loans and the Issuing Lender shall be relieved of all
further obligations to issue or extend Letters of Credit. No termination
of the credit hereunder shall relieve any Borrower of any of its
Obligations.
14.3. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Lenders
shall have accelerated the maturity of the
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Loans pursuant to Section 14.1, each Lender, if owed any amount with
respect to the Loans or the Reimbursement Obligations, may, with the
consent of the Required Lenders but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or
agreement contained in this Credit Agreement and the other Loan Documents
or any instrument pursuant to which the Obligations to such Lender are
evidenced, including as permitted by applicable law the obtaining of the
ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or the Administrative Agent or the holder of any
Note or purchaser of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute or any
other provision of law.
15. SETOFF.
If an Event of Default shall have occurred and be continuing, each Lender,
the Issuing Lender and each of their respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the Issuing
Lender or any such Affiliate to or for the credit or the account of any Borrower
or any other Loan Party against any and all of the obligations of such Borrower
or such Loan Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender or the Issuing Lender, irrespective of whether or
not such Lender or the Issuing Lender shall have made any demand under this
Agreement or any other Loan Document and although such obligations of such
Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender or the Issuing Lender different from the branch
or office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the Issuing Lender and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the Issuing Lender or their respective Affiliates may
have. Each Lender and the Issuing Lender agrees to notify the Borrowers and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
16. THE ADMINISTRATIVE AGENT.
16.1. APPOINTMENT AND AUTHORIZATION.
(a) Each of the Lenders and the Issuing Lender 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. The provisions of this Section 16 are solely for the
benefit of the Administrative Agent, the Lenders and the Issuing Lender,
and no Borrower shall have rights as a third party beneficiary of any of
such provisions.
(b) The relationship between the Administrative Agent and each of
the Lenders is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this
Credit
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Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Administrative
Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Lenders, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of actions for the
benefit of the Lenders and the Administrative Agent with respect to the
guaranties contemplated by the Loan Documents.
16.2. 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 the
Borrowers or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to
account therefore to the Lenders.
16.3. 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 any of the
Borrowers or any of their respective 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 27 and 14.3 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 the Borrowers, a Lender or
the Issuing Lender.
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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 Section 12 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
16.4. 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) 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 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 the Issuing
Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such
Lender or the Issuing Lender 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.
16.5. 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 Section 16 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.
16.6. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent
may at any time give notice of its resignation to the Lenders, the Issuing
Lender and the Borrowers. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, with the US Borrower's consent,
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 Issuing
Lender, appoint a successor Administrative Agent, with the US Borrower's
consent, meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrowers 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
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 the Issuing Lender directly,
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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. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the
provisions of this Section 16 and Sections 17 and 18 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.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as Issuing Lender and Swing Line
Lender. 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 Issuing Lender and Swing
Line Lender, (b) the retiring Issuing Lender and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (c) the successor Issuing Lender 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 Issuing Lender to effectively assume the obligations of the retiring
Issuing Lender with respect to such Letters of Credit.
16.7. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the Issuing Lender 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 the Issuing Lender 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.
16.8. NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers or Syndication Agents
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 the Issuing Lender hereunder.
16.9. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in Section 12, each Lender that
has executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent or the
Arranger to such Lender for consent, approval, acceptance or satisfaction,
or required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative Agent
or the Arranger active upon the Borrowers' account shall have received
notice from such Lender prior to the Closing Date specifying such Lender's
objection thereto and such objection shall not have been withdrawn by
notice to the Administrative Agent or the Arranger to such effect on or
prior to the Closing Date.
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16.10. PAYMENTS.
16.10.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by either
of the Borrowers to the Administrative Agent hereunder or any of the
other Loan Documents for the account of any Lender shall constitute
a payment to such Lender. The Administrative Agent agrees promptly
to distribute to each Lender such Lender's pro rata share of
payments received by the Administrative Agent for the account of
such Lenders except as otherwise expressly provided herein or in any
of the other Loan Documents.
16.10.2. DISTRIBUTION BY ADMINISTRATIVE AGENT.
(a) Unless Administrative Agent shall have received notice from
either of the Borrowers prior to the date on which any payment is due to
Administrative Agent for the account of the Lenders or the Issuing Lender
hereunder that such Borrower will not make such payment, 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 Lenders or the Issuing Lender, as the case may be, the amount due. In
such event, if such Borrower has not in fact made such payment, then each
of Lenders or the Issuing Lender, as the case may be, severally agrees to
repay to Administrative Agent forthwith on demand the amount so
distributed to such Lender or the Issuing Lender, in immediately available
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
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by Administrative Agent in accordance with banking industry
rules on interbank compensation. A notice of Administrative Agent to any
Lender or Borrowers with respect to any amount owing under this subsection
(a) shall be conclusive, absent manifest error.
(b) If in the opinion of the Administrative Agent the distribution
of any amount received by it in such capacity hereunder, under the Notes,
this Credit Agreement or under any of the other Loan Documents might
involve it in liability, it may refrain from making such distribution
until its right to make such distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
16.10.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (a) to make available to the
Administrative Agent its applicable pro rata share (if any) of any
Loan or to purchase its applicable pro rata amount (if any) of any
Letter of Credit Participation or participate in any Swingline Loan
or (b) to comply with the provisions of Section 15 with respect to
making dispositions and arrangements with the other Lenders, where
such Lender's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata (based on all applicable
outstanding Loans and Unpaid Reimbursement Obligations) share of
such payments due and payable to all of the Lenders, in each case
as, when and to the full extent required by the provisions of this
Credit Agreement, shall be deemed delinquent (a "Delinquent Lender")
and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied. A Delinquent Lender shall be deemed to
have assigned any and all payments due to it from the Borrowers,
whether on account of the applicable outstanding Loans, Unpaid
Reimbursement Obligations, interest, fees or otherwise, to the
remaining applicable
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nondelinquent Lenders for application to, and reduction of, their
respective applicable pro rata shares of all then applicable
outstanding Loans and Unpaid Reimbursement Obligations so affected
by such delinquency. The Delinquent Lender hereby authorizes the
Administrative Agent to distribute such payments to the
nondelinquent Lenders in proportion to their respective applicable
pro rata shares of all such applicable outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Lender shall be deemed to
have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and
Unpaid Reimbursement Obligations of the nondelinquent Lenders so
affected by such delinquency, the applicable Lenders' respective pro
rata shares of all such applicable outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to
the nonpayment causing such delinquency.
16.11. HOLDERS OF NOTES. The Administrative Agent may deem and treat
the payee of any Note or the purchaser of any Letter of Credit
Participation as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a different name
by such payee or by a subsequent holder, assignee or transferee.
16.12. INDEMNITY. The Lenders ratably (computed by reference to each
Lender's Commitment Percentage) agree hereby to indemnify and hold
harmless the Administrative Agent and its Affiliates from and against any
and all claims, actions and suits (whether groundless or otherwise),
losses, damages, costs, expenses (including any expenses for which the
Administrative Agent or such Affiliate has not been reimbursed by the
Borrowers as required by Section 17), and liabilities of every nature and
character arising out of or related to this Credit Agreement, the Notes,
or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Administrative Agent's or such
Affiliate's actions taken hereunder or thereunder and which are related to
its role as Administrative Agent, except to the extent the Borrowers have
indemnified the Administrative Agent for the same in accordance with
Section 18, and except to the extent that any of the same shall be
directly caused by the Administrative Agent's or such Affiliate's willful
misconduct or gross negligence. This Section 16.12 covers any Lender which
is also acting as Administrative Agent solely in its capacity as
Administrative Agent and such Lender, in its capacity as a Lender, shall
be liable for its actions and liable to indemnify the Administrative Agent
in the same manner as any other Lender.
16.13. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender
hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Administrative Agent
thereof. The Administrative Agent hereby agrees that upon receipt of any
notice under this Section 16.13 it shall promptly notify the other Lenders
of the existence of such Default or Event of Default.
17. EXPENSES.
Each of the Borrowers agrees to pay (a) any Indemnified Taxes or other
Taxes (including any interest and penalties in respect thereto) payable by the
Administrative Agent, the Arranger or any of the Lenders (other than Excluded
Taxes) on or with respect to the transactions contemplated by this Credit
Agreement (the Borrowers hereby agreeing to indemnify the Administrative Agent,
the Arranger and each Lender with respect thereto), (b) the reasonable fees,
expenses and disbursements of the Administrative Agent's Special Counsel, the
Canadian Counsel and any local counsel to the Administrative Agent incurred in
connection with the preparation, syndication, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, any amendments, modifications, approvals, consents or waivers hereto
or hereunder, or the cancellation of any Loan
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Document upon payment in full in cash of all of the Obligations or pursuant to
any terms of such Loan Document providing for such cancellation, provided that
such counsel shall provide the Borrowers with invoices reflecting the expenses
incurred in connection with the foregoing, and (c) all reasonable out-of-pocket
expenses (including local and special counsel, and one additional firm of
counsel for the Lenders, and reasonable consulting, accounting, appraisal and
similar professional fees and charges) incurred by any Lender or the
Administrative Agent in connection with (i) the enforcement of or preservation
of rights under any of the Loan Documents against any of the Borrowers or any of
their Restricted Subsidiaries or the administration thereof after the occurrence
of a Default or Event of Default and (ii) any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related to any Lender's or
the Administrative Agent's relationship with the Borrowers or any of their
Restricted Subsidiaries except in connection with a claim that any of the
Borrowers has against any of the Lenders or the Administrative Agent and in
which claim such Borrower is the prevailing party after entry of a final
non-appealable judgment or order. The covenants of this Section 17 shall survive
payment or satisfaction of all other Obligations.
18. INDEMNIFICATION.
Each of the Borrowers agrees to indemnify and hold harmless the
Administrative Agent, the Arranger and the Lenders and each of their Affiliates
and their directors, officers, employees, agents and advisors or control persons
from and against any and all claims, actions and suits whether groundless or
otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Credit Agreement or
any of the other Loan Documents or the transactions contemplated hereby
including, without limitation, (a) any actual or proposed use by any of the
Borrowers or any of their Restricted Subsidiaries of the proceeds of any of the
Loans or Letters of Credit, (b) any of the Borrowers or any of their Restricted
Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents, or (c) with respect to the Borrowers and their Restricted
Subsidiaries and their respective properties and assets, the violation of any
Environmental Law, the presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release or threatened release of any Hazardous Substances
or any action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to, claims with
respect to wrongful death, personal injury or damage to property), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding other than as a result of the
gross negligence or willful misconduct of the Administrative Agent, the Arranger
or any Lender. In the event that any claim is made against the Administrative
Agent, the Arranger or any Lender for which indemnity is provided under this
Section 18, the Administrative Agent, the Arranger or such Lender shall provide
prompt notice to the Borrowers of any such claim not otherwise known to the
Borrowers, but the failure of the Administrative Agent, the Arranger or such
Lender to provide such notice shall not impair the liability of any Borrower
with respect to its indemnification for such claim except to the extent that
such Borrower has been actually prejudiced by such failure. In litigation, or
the preparation therefor, the Lenders, the Arranger and the Administrative Agent
shall be entitled to select their own counsel and to participate in the defense
and the investigation of such claim, action or proceeding and, in addition to
the foregoing indemnity, the Borrowers agree to pay promptly the reasonable fees
and expenses of such counsel. If, and to the extent that the obligations of the
Borrowers under this Section 18 are unenforceable for any reason, the Borrowers
hereby agree to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law. The covenants
contained in this Section 18 shall survive payment or satisfaction in full of
all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
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All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of a Borrower or any of its Restricted
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Lenders and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans and the issuance or extension of any Letters of
Credit, as herein contemplated, and shall continue in full force and effect so
long as any Letter of Credit or any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Lender
has any obligation to make any Loans or the Issuing Lender has any obligation to
issue or extend any Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate or other paper delivered to any Lender or the Administrative
Agent at any time by or on behalf of the Borrowers or any of their Restricted
Subsidiaries pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by such Borrower or such
Restricted Subsidiary hereunder.
20. SUCCESSORS AND ASSIGNS.
20.1. GENERAL CONDITIONS. The provisions of this Credit Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that the
Borrowers may not assign or otherwise transfer any of their 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 (a) to an Eligible Assignee in accordance
with the provisions of Section 20.2 or (b) by way of participation in
accordance with the provisions of Section 20.4 or (c) by way of pledge or
assignment of a security interest subject to the restrictions of Section
20.6 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Credit 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 Section 20.4 and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Credit Agreement or any of the other
Loan Documents.
20.2. ASSIGNMENTS. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment and
the same portion of the Revolving Credit Loans at the time owing to it and
its participating interest in the risk relating to any Letters of Credit
and Swingline Loans and all or the same portion of the Canadian Term Loan
owing to it); provided that (a) 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 a
Lender Affiliate, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the
Loan of the assigning Lender subject to each such assignment (determined
as of the date on which the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no
Default or Event of Default pursuant to Sections 14.1(a), (b), (c)(with
respect to compliance with the covenants set forth in Section 11 only),
(g) or (h) has occurred and is continuing, the Borrowers otherwise consent
(each such consent not to be unreasonably withheld or delayed); (b) each
partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Credit
Agreement with respect to the Loan or the Commitment assigned, it being
understood that non-pro rata assignments of or among any of the
Commitments, the Revolving Credit Loans,
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Reimbursement Obligations, participations in Swingline Loans and the
Canadian Term Loan are not permitted; (c) no Lender may make any
assignment of all or a portion of its interests, rights and obligations in
the Canadian Term Loan to an assignee who is not dealing at "arms length"
with the Canadian Borrower (as such term is defined in the Income Tax Act
of Canada); and (d) 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 $3,500, 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 Section 20.3, from and
after the effective date specified in each Assignment and Assumption the
Eligible Assignee thereunder shall be a party to this Credit Agreement
and, to the extent of the interest assigned by such Assignment and
Assumption have the rights and obligations of a Lender under this Credit
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 Credit Agreement (and, in the case of an Assignment
and Assumption covering all of the assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of
Sections 6.6, 6.7, 6.9, 6.12(d) and 18 with respect to facts and
circumstances occurring prior to the effective date of such assignment.
Such release shall not include any claims which the Borrowers may have
against such Lender arising prior to the date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this
Credit Agreement that does not comply with this paragraph shall be treated
for purposes of this Credit Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
20.4.
20.3. 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 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 Credit Agreement,
notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrowers and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
20.4. PARTICIPATIONS. Any Lender may at any time, without the
consent of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrowers
and their Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Credit
Agreement (including all or a portion of its Commitment and/or the Loans
owing to it); provided that (a) such Lender's obligations under this
Credit Agreement shall remain unchanged, (b) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (c) 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 Credit
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 Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the
Commitment of such Lender as it relates to such Participant, reduce the
amount of any Commitment Fee or Letter of Credit Fees to which such
Participant is entitled or extend any
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regularly scheduled payment date for principal or interest. Subject to
Section 20.5, the Borrowers agree that each Participant shall be entitled
to the benefits of Sections 6.6, 6.7, 6.9 and 6.12 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant
to Section 20.2. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 15 as though it were a
Lender, provided such Participant agrees to be subject to Section 15 as
though it were a Lender.
20.5. PAYMENTS TO PARTICIPANTS. A Participant shall not be entitled
to receive any greater payment under Sections 6.6, 6.7 and 6.12 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 the Borrowers' prior
written consent.
20.6. MISCELLANEOUS ASSIGNMENT PROVISIONS.
(a) A Lender may at any time grant a security interest in all or
any portion of its rights under this Credit Agreement and its Notes to
secure obligations of such Lender, including without limitation (i) any
pledge or assignment to secure obligations to any of the twelve Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341 and (ii) with respect to any Lender that is a Fund, to
any lender or any trustee for, or any other representative of, holders of
obligations owed or securities issued by such Fund as security for such
obligations or securities or any institutional custodian for such Fund or
for such lender; provided that no such grant shall release such Lender
from any of its obligations hereunder, provide any voting rights hereunder
to the secured party thereof, substitute any such secured party for such
Lender as a party hereto or affect any rights or obligations of the
Borrowers or Administrative Agent hereunder.
(b) 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.
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
assignee Lender is an Affiliate of a Borrower, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of
the other Loan Documents for purposes of granting consents or waivers or
for purposes of agreeing to amendments or other modifications to any of
the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 14.1 or Section 14.2, and the
determination of the Required Lenders shall for all purposes of this
Credit Agreement and the other Loan Documents be made without regard to
such assignee Lender's interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of the
Loans or Reimbursement Obligations to a Participant, and such Participant
is a Borrower or an Affiliate of a Borrower, then such transferor Lender
shall promptly notify the Administrative Agent of the sale of such
participation. A transferor Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making
requests to the Administrative Agent pursuant to Section 14.1 or Section
14.2 to the extent that such participation is beneficially owned by a
Borrower or any Affiliate of a Borrower, and the determination of the
Required Lenders shall for all purposes of this Credit Agreement and the
other Loan Documents be made without regard to the interest of
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such transferor Lender in the Loans or Reimbursement Obligations to the
extent of such participation. The provisions of this Section 20.7 shall
not apply to an assignee Lender or participant which is also a Lender on
the Closing Date or to an assignee Lender or participant which has
disclosed to the other Lenders that it is an Affiliate of a Borrower and
which, following such disclosure, has been excepted from the provisions of
this Section 20.7 in a writing signed by the Required Lenders determined
without regard to the interest of such assignee Lender or transferor
Lender, to the extent of such participation, in Loans or Reimbursement
Obligations.
20.8. NEW NOTES. Upon its receipt of an Assignment and Assumption
executed by the parties to such assignment, together with each Note
subject to such assignment, the Administrative Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrowers and the Lenders (other than the assigning
Lender). Within five (5) US or Canadian (as applicable) Business Days
after receipt of such notice, the Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such assignee in an amount
equal to the amount assumed by such assignee pursuant to such Assignment
and Assumption and, if the assigning Lender has retained some portion of
its obligations hereunder, a new Note to the order of the assigning Lender
in an amount equal to the amount retained by it hereunder. Such new Notes
shall provide that they are replacements for the surrendered Notes, shall
be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such
Assignment and Assumption and shall otherwise be in substantially the form
of the assigned Notes. The surrendered Notes shall be cancelled and
returned to the Borrowers.
20.9. SPECIAL PURPOSE FUNDING VEHICLE. Notwithstanding anything to
the contrary contained in this Section 20, any Lender (a "Granting
Lender") may grant to a special purpose funding vehicle (an "SPC") of such
Granting Lender, identified as such in writing from time to time delivered
by the Granting Lender to the Administrative Agent and the Borrowers, the
option to provide to a Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to such Borrower
pursuant to this Credit Agreement, provided that (a) nothing herein shall
constitute a commitment to make any Loan by any SPC, (b) the Granting
Lender's obligations under this Credit Agreement shall remain unchanged,
(c) the Granting Lender should retain the sole right to enforce this
Credit Agreement and to approve any amendment, modification or waiver of
any provision of this Credit Agreement and (d) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by the Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any expense reimbursement, indemnity or
similar payment obligation under this Credit Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Credit Agreement) that, prior to the date that is
one year and one day after the later of (i) the payment in full of all
outstanding senior indebtedness of any SPC and (ii) the Maturity Date, it
will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or similar proceedings under the laws of the
United States of America or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 20.9,
any SPC may (A) with notice to, but (except as specified below) without
the prior written consent of, the Borrowers or the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to its Granting Lender or to any financial
institutions (consented to by the Administrative Agent and, so long as no
Default or Event of Default has occurred and is
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continuing, the Borrowers, which consents shall not be unreasonably
withheld or delayed) providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Loans made by such SPC or to
support the securities (if any) issued by such SPC to fund such Loans and
(B) disclose on a confidential basis any non-public information relating
to its Loans (other than financial statements referred to in Sections 8.4
or 9.4) to any rating agency, commercial paper dealer or provider of a
surety, guarantee or credit or liquidity enhancement to such SPC. In no
event shall the Borrowers be obligated to pay to an SPC that has made a
Loan any greater amount than the Borrowers would have been obligated to
pay under this Credit Agreement if the Granting Lender had made such Loan.
An amendment to this Section 20.9 without the written consent of an SPC
shall be ineffective insofar as it alters the rights and obligations of
such SPC.
21. NOTICES, ETC.
21.1. NOTICES GENERALLY. 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:
(a) if to the US Borrower or any US Guarantor, at Genesee &
Wyoming Inc., Corporate Headquarters, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer, or at such
other address for notice as the US Borrower shall last have furnished in
writing to the Person giving the notice;
(b) if to the Canadian Borrower or any Canadian Guarantor, at
Corporate Headquarters, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or such other address for notice as the Canadian
Borrower shall last have furnished in writing to the Person giving notice;
(c) if to the Administrative Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Division, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Director, (▇▇▇) ▇▇▇-▇▇▇▇, or such other address
for notice as the Administrative Agent shall last have furnished in
writing to the Person giving the notice;
(d) if to any Lender, at such Lender's address set forth on
Schedule II hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
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 Section 21.2 below, shall be effective as provided in such Section
21.2.
21.2. ELECTRONIC COMMUNICATIONS. Notices and other communications to
the Lenders and the Issuing Lender hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites, such as Intralinks) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or the Issuing Lender pursuant to Section 5 if such
Lender or the Issuing Lender, as
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applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Section 5 by electronic communication. The
Administrative Agent or the Borrowers may, in their discretion, agree to
accept notices and other communications to them hereunder by electronic
communications pursuant to procedures approved by them, 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.
21.3. CHANGE OF ADDRESS, ETC. Each of the Borrowers, the
Administrative Agent, the Issuing Lender and the Swing Line Lender 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, the Issuing Lender and the Swing Line Lender.
21.4. RELIANCE BY ADMINISTRATIVE AGENT, ISSUING LENDER AND LENDERS.
The Administrative Agent, the Issuing Lender and the Lenders shall be
entitled to rely and act upon any notices purportedly given by or on
behalf 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. The
Borrowers shall indemnify the Administrative Agent, the Issuing Lender,
each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person
on each notice purportedly given by or on behalf of any Borrower (other
than in the case of gross negligence or willful misconduct of such
indemnified party). All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereby consents to such
recording.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL, PURSUANT TO NEW YORK GENERAL
OBLIGATIONS LAW Section 5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK. EACH OF THE BORROWERS CONSENTS AND AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER IN
ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED IN Section 21. EACH OF THE
BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
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23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought. Delivery by facsimile by any of the
parties hereto of an executed counterpart hereof or of any amendment or waiver
hereto shall be as effective as an original executed counterpart hereof or of
such amendment or waiver and shall be considered a representation that an
original executed counterpart hereof or such amendment or waiver, as the case
may be, will be delivered.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
Section 27.
26. WAIVER OF JURY TRIAL, ETC.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE BORROWERS HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE, ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES AND WAIVES ALL SURETYSHIP DEFENSES
GENERALLY. EACH OF THE BORROWERS (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY LENDER, THE ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH LENDER OR THE ADMINISTRATIVE AGENT WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT
THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS BECAUSE OF, AMONG OTHER THINGS,
EACH OF THE BORROWER'S WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
27.1. CONSENTS AND APPROVALS. Any consent or approval required or
permitted by this Credit Agreement to be given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or
any other instrument related hereto or mentioned herein may be amended,
and the performance or observance by any of the Borrowers or any of their
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Restricted Subsidiaries of any terms of this Credit Agreement, the other
Loan Documents or such other instrument or the continuance of any Default
or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with,
the written consent of the Borrowers and the written consent of the
Required Lenders. Notwithstanding the foregoing, no amendment,
modification or waiver shall:
(a) without the written consent of the Borrowers and each Lender
directly affected thereby:
(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the
Notes or the amount of the Commitment Fee or Letter of Credit Fees
(other than interest accruing pursuant to Section 6.10 following the
effective date of any waiver by the Required Lenders of the Default
or Event of Default relating thereto);
(ii) increase the amount of such Lender's Commitment or
extend the expiration date of such Lender's Commitment; and
(iii) postpone or extend the Maturity Date or any other
regularly scheduled dates for payments of principal of, or interest
on, the Loans or Reimbursement Obligations or any fees or other
amounts payable to such Lender (it being understood that (A) a
waiver of the application of the default rate of interest pursuant
to Section 6.10 and (B) any vote to rescind any acceleration made
pursuant to Section 14.1 of amounts owing with respect to the Loans
and other Obligations shall require only the approval of the
Required Lenders);
(b) without the written consent of the Required Lenders,
(i) release any Guarantor from its guaranty obligations
under the Guaranty;
(c) without the written consent of all the Lenders,
(i) amend or waive this Section 27 or the definition of
Required Lenders (except as required to reflect the addition of a
New Term Loan and New Term Loan Lender pursuant to Section 27.2);
(d) without the written consent of the Administrative Agent, amend
or waive Section 16, the amount or time of payment of the Agent's Fee or
any other provision applicable to the Administrative Agent;
(e) without the written consent of the Swingline Lender, amend or
waive any provision applicable to the Swingline Lender; and
(f) without the written consent of the Issuing Lender, amend or
waive the amount or time of payment of any Letter of Credit Fees or other
fees payable for the Issuing Lender's account or any other provision
applicable to the Issuing Lender.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto.
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No notice to or demand upon the Borrowers shall entitle the Borrowers to other
or further notice or demand in similar or other circumstances.
27.2. INCREASE IN COMMITMENTS OR ADDITION OF A NEW TERM LOAN.
Notwithstanding anything in this Credit Agreement to the contrary, each of
the Lenders agrees that at any time following the Closing Date and so long
as a Default or Event of Default shall not have occurred and be continuing
or would result therefrom, the US Borrower may, on not more than two
occasions request, by notice to the Administrative Agent, that the Total
Commitment be increased and/or a term loan be made to the US Borrower (the
"New Term Loan") in an aggregate amount of up to $100,000,000. The
Administrative Agent shall have the right to solicit additional financial
institutions to become Lenders for purposes of this Credit Agreement or to
encourage any Lender to increase its Commitment or join in the making of
the New Term Loan, provided that (a) each financial institution that
becomes a Lender shall agree to become a -------- party to, and shall
assume and agree to be bound by, this Credit Agreement, subject to all
terms and conditions hereof; (b) the Administrative Agent shall have no
obligation to the US Borrower or to any Lender to solicit additional
financial institutions or any Lender pursuant to this Section 27.2; (c) no
Lender shall have an obligation to the Borrowers, the Administrative Agent
or any other Lender to increase its Commitment or its Commitment
Percentage or to make the New Term Loan to the US Borrower; and (d) in no
event shall the addition of any Lender or Lenders, the increase in the
Commitment of any Lender or the addition of the New Term Loan under this
Section 27.2 increase the sum of the total amount of Loans, Letter of
Credit Obligations and unused Commitments of the Lenders under this Credit
Agreement to an amount greater than $300,000,000. Each of the Lenders
agrees that upon the addition of any Lender, the increase in the
Commitment of any Lender or the making of the New Term Loan to the US
Borrower, the Administrative Agent may, without the further consent of the
Lenders, amend Schedule II to reflect such increase or addition and may
amend the Credit Agreement and the other Loan Documents to make such
conforming changes to the Credit Agreement and the other Loan Documents as
the Administrative Agent may determine are necessary to accomplish the
increase in the Total Commitment and/or addition of the New Term Loan and
the adjustments to the Commitment Percentages and the assignability
provisions relating thereto. The Administrative Agent agrees to provide to
the Lenders and the Borrowers an executed copy of any amendments made
pursuant to this Section 27.2.
28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. TRANSITIONAL ARRANGEMENTS.
29.1. EXISTING CREDIT AGREEMENT SUPERSEDED. On the Closing Date,
this Credit Agreement shall supersede the Existing Credit Agreement in its
entirety, except as provided in this Section 29. On the Closing Date, the
rights and obligations of the parties hereto evidenced by the Existing
Credit Agreement shall be evidenced by the Credit Agreement and the other
Loan Documents, the "Loans" as defined in the Existing Credit Agreement
shall be converted to Loans as defined herein and the Existing Letters of
Credit issued by the Issuing Lender for the account of the US Borrower or
any of its Restricted Subsidiaries prior to the Closing Date shall be
converted into Letters of Credit under this Credit Agreement.
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29.2. RETURN AND CANCELLATION OF PRIOR NOTES. As soon as reasonably
practicable after the Closing Date, the Lenders under the Existing Credit
Agreement will promptly return to the Borrowers, marked "Substituted" or
"Cancelled", as the case may be, any notes held by the Lenders pursuant to
the Existing Credit Agreement.
29.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT. All interest and
fees and expenses (including any LIBOR breakage costs arising under
Section 6.9 thereof), if any, owing or accruing under or in respect of the
Existing Credit Agreement through the Closing Date shall be calculated as
of the Closing Date (pro rated in the case of any fractional periods), and
shall be paid on the Closing Date. Commencing on the Closing Date, the
Commitment Fees hereunder shall be payable by the Borrowers to the
Administrative Agent for the account of the Lenders in accordance with
Section 2.2.
30. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
Each of the Administrative Agent, the Lenders and the Issuing Lender
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (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 purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
a Borrower and its obligations, (g) with the consent of the Borrowers or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the Issuing Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrowers.
For purposes of this Section, "Information" means all information received
from the Borrowers or any of their Subsidiaries relating to the Borrowers or any
of their Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
Issuing Lender on a nonconfidential basis prior to disclosure by the Borrowers
or any their Subsidiaries. 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.
31. USA PATRIOT ACT.
Each Lender that is subject to the Act (as hereinafter defined) 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.
93
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
BORROWERS: GENESEE & WYOMING INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
QUEBEC GATINEAU RAILWAY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary - Treasurer
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement
LENDERS: BANK OF AMERICA, N.A., individually and as
Administrative Agent, Issuing Lender and
Swingline Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: AVP
JPMORGAN CHASE BANK, individually and as
Syndication Agent
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
individually and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: AVP
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BRANCH BANKING AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
COMERICA BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
COMERICA BANK CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement
US GUARANTORS: GENESEE & WYOMING RAILROAD SERVICES,
INC.
GENESEE AND WYOMING RAILROAD
COMPANY
ROCHESTER & SOUTHERN RAILROAD, INC.
BUFFALO & PITTSBURGH RAILROAD, INC.
LOUISIANA & DELTA RAILROAD, INC.
ILLINOIS & MIDLAND RAILROAD, INC.
PORTLAND & WESTERN RAILROAD, INC.
WILLAMETTE & PACIFIC RAILROAD, INC.
GOLDEN ISLES TERMINAL RAILROAD, INC.
SAVANNAH PORT TERMINAL RAILROAD, INC.
COMMONWEALTH RAILWAY,
INCORPORATED
CORPUS CHRISTI TERMINAL RAILROAD, INC.
RAIL LINK, INC.
TALLEYRAND TERMINAL RAILROAD
COMPANY, INC.
SOUTH BUFFALO RAILWAY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Arkansas Louisiana & Mississippi
Railroad Company
▇▇▇▇▇▇▇ and Princeton R. R. Co.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Chattahoochee Industrial Railroad
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Treasurer
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement
US GUARANTORS: YORK RAIL LOGISTICS, INC. (FORMERLY EMONS
(CONTINUED) LOGISTICS SERVICES, INC.)
EMONS TRANSPORTATION GROUP, INC.
EMONS RAILROAD GROUP, INC.
MAINE INTERMODAL TRANSPORTATION,
INC.
ST. ▇▇▇▇▇▇▇▇ & ATLANTIC RAILROAD
COMPANY
YORK RAILWAY COMPANY
SLR LEASING CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
EMONS INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President/
Assistant Secretary
MARYLAND AND PENNSYLVANIA RAILROAD, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ALLEGHENY & EASTERN RAILROAD, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sole Manager and CEO
PITTSBURG & SHAWMUT RAILROAD, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sole Manager and CEO
YORKRAIL, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement
US GUARANTORS:
(CONTINUED) GWI CANADA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
GWI LEASING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
P & L JUNCTION HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
UTAH RAILWAY COMPANY
SALT LAKE CITY SOUTHERN RAILROAD
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
Emons Finance Corp.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement
CANADIAN
GUARANTORS: GENESEE & WYOMING CANADA INC.
MIRABEL RAILWAY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
HURON CENTRAL RAILWAY INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
ST. ▇▇▇▇▇▇▇▇ & ATLANTIC RAILROAD (QUEBEC)
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
Signature Page to Amended and Restated Revolving Credit and Term Loan Agreement