Exhibit 10.1
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Published CUSIP Numbers: Deal - 39365LAA8
U.S. Rev - 39365LAB6
Canadian Rev - 39365LAC4
CREDIT AGREEMENT
Dated as of June 29, 2005
among
THE GREENBRIER COMPANIES, INC., A DELAWARE CORPORATION
as the U.S. Borrower,
and
TRENTONWORKS LIMITED
as the Canadian Borrower
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager,
BANK OF AMERICA, NATIONAL ASSOCIATION,
acting through its Canada branch
as the Canadian Lender
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS............................... 1
1.01 Defined Terms.............................................. 1
1.02 Other Interpretive Provisions.............................. 27
1.03 Accounting Terms........................................... 27
1.04 Exchange Rates; Currency Equivalents....................... 28
1.05 Additional Alternative Currencies.......................... 29
1.06 Change of Currency......................................... 29
1.07 Times of Day............................................... 30
1.08 Letter of Credit Amounts................................... 30
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS......................... 30
2.01 Revolving Credit Facilities and Committed Loans............ 30
2.02 Borrowings, Conversions and Continuations of Committed
Loans...................................................... 31
2.03 Letters of Credit.......................................... 34
2.04 Swing Line Loans........................................... 43
2.05 Security................................................... 46
2.06 Prepayments................................................ 46
2.07 Termination or Reduction of Commitments.................... 47
2.08 Repayment of Loans......................................... 48
2.09 Interest................................................... 48
2.10 Fees....................................................... 49
2.11 Computation of Interest and Fees........................... 50
2.12 Evidence of Debt........................................... 50
2.13 Payments Generally; Administrative Agent's Clawback........ 51
2.14 Sharing of Payments by Lenders............................. 53
2.15 Increase in Commitments.................................... 54
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY....................... 55
3.01 Taxes...................................................... 55
3.02 Illegality................................................. 57
3.03 Inability to Determine Rates............................... 58
3.04 Increased Costs............................................ 58
3.05 Compensation for Losses.................................... 60
3.06 Mitigation Obligations; Replacement of Lenders............. 61
3.07 Survival................................................... 61
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..................... 61
4.01 Conditions of Initial Credit Extension..................... 61
4.02 Conditions to all Credit Extensions........................ 64
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................. 64
5.01 Existence, Qualification and Power; Compliance with Laws... 65
5.02 Authorization; No Contravention............................ 65
5.03 Governmental Authorization; Other Consents................. 65
5.04 Binding Effect............................................. 65
5.05 Financial Statements; No Material Adverse Effect; No
Internal Control Event..................................... 65
5.06 Litigation................................................. 66
5.07 No Default................................................. 66
TABLE OF CONTENTS (CONTINUED)
Section Page
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5.08 Ownership of Property; Liens............................... 66
5.09 Environmental Compliance................................... 66
5.10 Insurance.................................................. 67
5.11 Taxes...................................................... 67
5.12 ERISA Compliance........................................... 67
5.13 Subsidiaries; Equity Interests............................. 68
5.14 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act................................ 68
5.15 Disclosure................................................. 68
5.16 Compliance with Laws....................................... 68
5.17 Intellectual Property; Licenses, Etc....................... 69
5.18 Representations as to Foreign Obligors..................... 69
ARTICLE VI. AFFIRMATIVE COVENANTS......................................... 70
6.01 Financial Statements....................................... 70
6.02 Certificates; Other Information............................ 71
6.03 Notices.................................................... 73
6.04 Payment of Obligations..................................... 73
6.05 Preservation of Existence, Etc. With respect to
Subsidiaries, other than Immaterial Subsidiaries,.......... 74
6.06 Maintenance of Properties.................................. 74
6.07 Maintenance of Insurance................................... 74
6.08 Compliance with Laws....................................... 74
6.09 Books and Records.......................................... 74
6.10 Inspection Rights.......................................... 74
6.11 Use of Proceeds............................................ 75
6.12 Approvals and Authorizations............................... 75
6.13 Additional Subsidiary Guarantors........................... 75
ARTICLE VII. NEGATIVE COVENANTS........................................... 75
7.01 Liens...................................................... 75
7.02 Investments................................................ 76
7.03 Indebtedness............................................... 77
7.04 Fundamental Changes........................................ 78
7.05 Dispositions............................................... 78
7.06 Restricted Payments........................................ 79
7.07 Change in Nature of Business............................... 80
7.08 Transactions with Affiliates............................... 80
7.09 Burdensome Agreements...................................... 80
7.10 Use of Proceeds............................................ 80
7.11 Financial Covenants........................................ 80
7.12 Capital Expenditures....................................... 81
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.............................. 81
8.01 Events of Default.......................................... 81
8.02 Remedies Upon Event of Default............................. 83
8.03 Application of Funds....................................... 83
ARTICLE IX. ADMINISTRATIVE AGENT.......................................... 84
9.01 Appointment and Authority.................................. 84
9.02 Rights as a Lender......................................... 85
9.03 Exculpatory Provisions..................................... 85
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TABLE OF CONTENTS (CONTINUED)
Section Page
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9.04 Reliance by Administrative Agent........................... 86
9.05 Delegation of Duties....................................... 86
9.06 Resignation of Administrative Agent........................ 86
9.07 Non-Reliance on Administrative Agent and Other Lenders..... 87
9.08 No Other Duties, Etc....................................... 87
9.09 Administrative Agent May File Proofs of Claim.............. 88
9.10 Collateral and Guaranty Matters............................ 88
ARTICLE X. MISCELLANEOUS.................................................. 89
10.01 Amendments, Etc............................................ 89
10.02 Notices; Effectiveness; Electronic Communication........... 90
10.03 No Waiver; Cumulative Remedies............................. 92
10.04 Expenses; Indemnity; Damage Waiver......................... 92
10.05 Payments Set Aside......................................... 94
10.06 Successors and Assigns..................................... 94
10.07 Treatment of Certain Information; Confidentiality.......... 98
10.08 Right of Setoff............................................ 99
10.09 Interest Rate Limitation................................... 99
10.10 Counterparts; Integration; Effectiveness................... 99
10.11 Survival of Representations and Warranties................. 100
10.12 Severability............................................... 100
10.13 Replacement of Lenders..................................... 100
10.14 Governing Law; Jurisdiction; Etc........................... 101
10.15 Waiver of Jury Trial....................................... 102
10.16 USA PATRIOT Act Notice..................................... 102
10.17 Time is of the Essence..................................... 102
10.18 Judgment Currency.......................................... 102
10.19 Statutory Notice........................................... 103
SIGNATURES.......................................................... S-1
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SCHEDULES
1.01 Mandatory Cost Formulae
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.09 Environmental Matters
5.11 Tax Disclosures
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Processing and Recordation Fees
11.01 Letters of Credit
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Subsidiary Guaranty
G Opinion Matters
H Borrowing Base Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of June 29, 2005,
among The Greenbrier Companies, Inc., a Delaware corporation (the "Company"),
TrentonWorks Limited, a Nova Scotia company ("TWI," or together with the
Company, the "Borrowers" and, each a "Borrower"), each lender from time to time
a party hereto (collectively, the "Lenders" and individually, a "Lender"), BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and
BANK OF AMERICA, NATIONAL ASSOCIATION, acting through its Canada branch (a
"Lender" and the "Canadian Lender").
The Company and TWI have requested that the Lenders provide each of them
with a revolving credit facility, and the Lenders are willing to do so on the
terms and conditions set forth herein. The facility extended to the Company
represents a consolidation and restructure of existing credit facilities held by
Subsidiaries of the Company, while the facility extended to TWI represents a
renewal and amendment of an existing facility extended by the Canadian Lender to
TWI.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Account" has the meaning provided in the Uniform Commercial Code in
effect in Oregon as of the Closing Date.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
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"Alternative Currency" means each of the Euro, the Mexican Peso, the
Canadian Dollar, Sterling, and each other currency (other than Dollars) that is
approved in accordance with Section 1.05.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, or in Canadian Dollars with respect to the
Canadian Revolving Credit Facility, the equivalent amount thereof in the
applicable Alternative Currency as determined by the Administrative Agent or the
L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars, or Canadian Dollars, as the case may be.
"Alternative Currency Sublimit" means an amount equal to the lesser of
$25,000,000 and the amount available under the U.S. Revolver Ceiling. The
Alternative Currency Sublimit is part of, and not in addition to the U.S.
Revolving Credit Facility.
"Applicable Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the Commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable. If the Commitments have been terminated
pursuant to Section 8.02, or if the Aggregate Commitments have expired, the
amount outstanding under the Canadian Revolving Credit Facility shall be
converted from Canadian dollars to Dollars as of the date of determination.
Notwithstanding the above, for all matters herein which require a vote of the
Lenders, the Voting Percentage set forth in Schedule 2.01 shall apply rather
than the Applicable Percentage.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Consolidated Capitalization Ratio as set forth below:
APPLICABLE RATE
(IN BASIS POINTS)
EUROCURRENCY
CONSOLIDATED RATE +
PRICING CAPITALIZATION LETTERS OF BASE RATE
LEVEL RATIO COMMITMENT FEE CREDIT MARGIN
----- ----- -------------- ------ ------
Greater than 30.0 bps 150.0 bps 0.0 bps
1 or equal to
57.5%
2 Greater than 25.0 bps 125.0 bps 0.0 bps
or equal to
47.5% and
less than
57.5%
2
3 Greater than 20.0 bps 100.0 bps 0.0 bps
or equal to
37.5% and
less than
47.5%
4 Less than 20.0 bps 87.5 bps 0.0 bps
37.5%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Capitalization Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 1 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and Pricing
Level 1 shall remain in effect until such time as the Compliance Certificate has
been delivered pursuant to Section 6.02(b). The Applicable Rate in effect from
the Closing Date through delivery of the first Compliance Certificate shall be
determined based upon Pricing Level 1.
"Applicable Time" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated reasonable cost of internal legal services and all
expenses and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that
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would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP, in each case (a) and (b) if such lease were accounted for
as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Company and its Subsidiaries for the fiscal year ended August 31,
2004, and the related consolidated statements of income or operations,
stockholders' equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the Commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"BBRM" means Babcock and Brown Rail Management LLC, a Delaware limited
liability company.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in 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 Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Borrower" and "Borrowers" each has the meaning specified in the
introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing, a Swing Line Borrowing, or an
Overdraft, as the context may require.
"Borrowing Base Certificate" means a certificate in a form attached as
Exhibit H or other form reasonably acceptable to the Administrative Agent, which
calculates both the U.S. Borrowing Base and Canadian Borrowing Base as of any
date of determination.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is
4
located, or the applicable state in Canada with respect to the Canadian
Revolving Credit Facility, and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"Canadian Borrowing Base" means, as of any date of determination, with
respect to both the assets of TWI and any assets of the Company and the
Subsidiary Guarantors which are not required under the U.S. Borrowing Base to
support advances under the U.S. Revolving Credit Facility, the sum of (i) 80% of
the Canadian Dollar amount of Eligible Accounts, (ii) 50% of the Canadian Dollar
amount of Eligible Inventory, and (iii) 50% of the Canadian Dollar amount of
Eligible Property, Plant and Equipment.
"Canadian Dollar" or "CDN$" means lawful money of Canada.
"Canadian Dollar Equivalent" means at any time with regard to a Letter of
Credit issued under the Canadian Revolving Credit Facility, (a) with respect to
any amount denominated in Canadian Dollars, such amount, and (b) with respect to
any amount denominated in any Alternative Currency, the equivalent amount
thereof in Canadian Dollars as determined by the Canadian Lender, at such time
on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of Canadian Dollars with such Alternative
Currency.
"Canadian GAAP" means generally accepted accounting principles in Canada
set forth in the opinions and pronouncements of the Canadian Institute of
Chartered Accountants or such other principles as may be approved by a
significant segment of the accounting profession in
5
Canada, that are applicable to the circumstances as of the date of
determination, consistently applied.
"Canadian Lender" has the meaning specified in the introductory paragraph
hereto.
"Canadian Letter of Credit Sublimit" means an amount equal to the lesser
of CDN$5,000,000 or the amount available under the Canadian Revolver Ceiling.
The Canadian Letter of Credit Sublimit is part of, and not in addition to, the
Canadian Revolving Credit Facility.
"Canadian Revolving Credit Facility" has the meaning provided in Section
2.01(a)(ii).
"Canadian Revolver Ceiling" means the amount that is the lesser of (a)
CDN$30,000,000; or (b) the amount available under the Canadian Borrowing Base.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), other than the Excluded Affiliates,
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, except that a person or group shall
be deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option right"),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 35% or more of the equity securities of
the Company entitled to vote for members of the board of directors or
equivalent governing body of the Company on a fully-diluted basis (and
taking into account all such securities that such person or group has the
right to acquire pursuant to any option right);
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Company cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that
6
board or equivalent governing body (excluding, in the case of both clause
(ii) and clause (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies
or consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly,
Control over the management or policies of the Company.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means any and all assets and rights and interests in or to
property of TWI and each of the Subsidiary Guarantors, whether tangible or
intangible, in which a Lien is granted or purported to be granted pursuant to
the Loan Documents.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrowers pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the Dollar or Canadian Dollar amount set forth opposite such Lender's
name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Company" has the meaning specified in the introductory paragraph hereto.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Capitalization Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) Consolidated Funded Indebtedness plus Stockholders' Equity.
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"Consolidated EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
the Company and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) other non-recurring expenses of the Company and its
Subsidiaries reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period, and minus (b) the following to the
extent included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Company and its Subsidiaries for
such period and (ii) any other non-recurring income of the Company and its
Subsidiaries increasing such Consolidated Net Income which does not represent a
cash item in such period or any future period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA plus rent expense for the
period of the four prior fiscal quarters ending on such date to (b) Consolidated
Interest Charges plus rent expense for such period. Solely for purposes of this
definition, "rent expense" shall include operating lease expense. In addition,
solely for purposes of this definition and in the sole discretion of the
Company, Consolidated EBITDA and Consolidated Interest Charges shall include
pro-forma adjustments to incorporate the financial results of any entity
acquired during the subject period by the Company or its Subsidiaries. Finally,
any prepayment fees, swap expenses or breakage fees associated with the
prepayment of debt with the proceeds of the Senior Debt Offering shall be
excluded from the denominator for purposes of this ratio.
"Consolidated Funded Indebtedness" means, as of any date of determination,
the sum of all Indebtedness of the Company and its Subsidiaries on a
consolidated basis that appear on the consolidated balance sheet of the Company
and its Subsidiaries under the following line items: revolving notes, notes
payable and any other funded Indebtedness that may be classified under any
future line item on the consolidated balance sheet of the Company and its
Subsidiaries.
"Consolidated Interest Charges" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, prepayment fees, Swap expenses or breakage fees,
charges and related expenses of the Company and its Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the portion of rent expense of the
Company and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the net income of the Company and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Consolidated Tangible Net Worth" means, as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis, Stockholders'
Equity of the Company and its Subsidiaries on that date minus the Intangible
Assets of the Company and its Subsidiaries on that date.
8
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions within the United States from time to time in effect
and affecting the rights of creditors generally, as well as the Bankruptcy and
Insolvency Act (Canada), and the Companies Creditors Restructuring Act (Canada).
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate
equal to the Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder when
required to be funded by it hereunder, (b) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or
9
the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Account" means an Account owned by the Borrower or any
Subsidiary Guarantor or Subsidiary thereof which satisfies all of the following
requirements:
(a) The Account is a genuine obligation resulting from the sale of
goods or services by the Borrower or any Subsidiary Guarantor to a Person
other than a Subsidiary in the ordinary course of the business which have
been accepted by the account debtor.
(b) The Account is subject to a first priority perfected Lien to
secure the Obligations.
(c) There are no conditions which must be satisfied before the
Borrower or any Subsidiary Guarantor or Subsidiary thereof is entitled to
receive payment of the Account.
(d) The account debtor has not asserted in writing any defense to
payment and has not asserted in writing any counterclaim or offset against
the Borrower or any Subsidiary.
(e) To the extent any credit balance exists in favor of the account
debtor, such credit balance has been deducted from the Account balance.
(g) Except with respect to car hire receivables, the Borrower or any
Subsidiary Guarantor or Subsidiary thereof has sent an invoice or
statement to the account debtor in the amount of the Account.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Company (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Company or any of the Company's Affiliates or Subsidiaries.
"Eligible Inventory" means the Dollar value of Inventory, including raw
materials, work-in-process, and finished goods, valued at the lower of cost (on
a FIFO basis) or market value, in accordance with GAAP or Canadian GAAP, as
applicable, which satisfies all of the following requirements:
(a) The Inventory is owned by the Borrower or any Subsidiary
Guarantor or Subsidiary thereof and is subject to a first priority
perfected Lien to secure the Obligations.
10
(b) The Inventory is held for sale in the business of the Borrower
or any Subsidiary Guarantor or Subsidiary thereof, is of good and
merchantable title, and is not obsolete, defective or unsalable.
(c) The Inventory is covered by insurance to any extent required by
any Loan Document.
(d) The Inventory is not subject to any licensing agreement,
trademark or other proprietary right to which the Borrower is not subject
or has the benefit of, and which would prohibit or restrict its sale by
the Lender to third parties.
(e) The Inventory is stored in the United States or Canada.
"Eligible Property, Plant and Equipment" means certain real property,
along with related equipment and fixtures, of the Company, TWI, or the
Subsidiary Guarantors, which has been pledged to the Lenders as security for the
Obligations and against which the Lenders have obtained a first priority,
perfected security interest.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation by the Company or any Subsidiary of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal by the
Company or any Subsidiary of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release by the Company or any
Subsidiary of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or
11
options for the purchase or acquisition from such Person of such shares (or such
other interests), and all of the other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means, for any Interest Period with respect to a
Eurocurrency Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such rate is
not available at such time for any reason, then the "Eurocurrency Rate" for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in the relevant currency for delivery on
the first day of such Interest Period in Same Day Funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch (or other Bank of America branch or
Affiliate) to major banks in the London or other offshore interbank market for
such currency at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in Dollars or in an
12
Alternative Currency. All Committed Loans denominated in an Alternative Currency
must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Affiliates" means Mr. William A. Furman, his spouse, direct
descendants, any Person Controlled by any of them and/or a trust for the
benefit of any of them.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of any Borrower hereunder, (a) taxes imposed on or
measured by net income (however denominated), doing business taxes, and
franchise taxes imposed on it (in lieu of net income taxes), by any Governmental
Authority or other taxing authority, (b) any branch profits taxes imposed by the
United States or any similar tax imposed by any other jurisdiction in which such
Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Company under Section 10.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Foreign Lender's failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding
tax pursuant to Section 3.01(a).
"Existing Credit Agreement" means, collectively, those certain credit
agreements or loan agreements, as may have been amended or modified to date,
by and between Gunderson, Inc., U.S. Bank National Association and Bank of
America, N.A.; Greenbrier Leasing Corporation, Greenbrier Railcar, Inc.,
Autostack Corporation, Union Bank of California, N.A. and Bank of America,
N.A., as lender and agent for other lenders; TrentonWorks Limited, The
Greenbrier Companies, Inc., as guarantor, and Bank of America, National
Association, acting through its Canada branch.
"Existing Letters of Credit" means those Letters of Credit of the Company
or any Subsidiary Guarantor listed on Schedule 11.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated April 9, 2005, among the
Company, the Administrative Agent and the Arranger.
13
"Foreign Lender" means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Obligor" means a Loan Party that is a Foreign Subsidiary.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Golden West Agreements" means the Re-marketing Agreement dated as of
November 19, 1987 among Southern Pacific Transportation Company, St. Louis
Southwestern Railway Company, Greenbrier Leasing Corporation and the
Greenbrier Railcar, Inc., the Amendment to Re-marketing Agreement among
Southern Pacific Transportation Company, St. Louis Southwestern Railway
Company, Greenbrier Leasing Corporation and Greenbrier Railcar, Inc. dated as
of November 15, 1988, the Amendment No. 2 to Re-marketing Agreement among
Southern Pacific Transportation Company, St. Louis Southwestern Railway
Company, Greenbrier Leasing Corporation and Greenbrier Railcar, Inc., and the
Amendment No. 3 to Re-marketing Agreement dated November 19, 1987 among
Southern Pacific Transportation Company, St. Louis Southwestern Railway
Company, Greenbrier Leasing Corporation and Greenbrier Railcar, Inc. dated as
of March 5, 1991, in each case as in effect on the date of this Agreement.
"Governmental Authority" means the government of the United States,
Canada, or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantee" means, as to any Person, any (a) any Contractual Obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such
14
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), or (b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness or
other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guaranties" means the (i) Subsidiary Guaranties of the Company's
Obligations and those of TWI, and (ii) the Company's guaranty of all Obligations
of TWI. All Guaranties, other than the Company's guaranty of the Obligations of
TWI, shall be secured.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Immaterial Subsidiary" means, as of any date, any Restricted Subsidiary
whose total assets, as of that date, are less than $5.0 million and whose total
revenues for the most recent 12-month period does not exceed $5.0 million.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank Guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business
15
and, in each case, not past due for more than 60 days after the date on
which such trade account payable was created);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date that is seven
(7) days, fourteen (14) days, one, two, three or six months thereafter, as
selected by the Company in its Committed Loan Notice or
16
such other period that is twelve months or less requested by the Company and
consented to by all the Lenders; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Company's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Inventory" has the meaning provided in the Uniform Commercial Code in
effect in Oregon as of the Closing Date.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a series
of transactions) of assets of another Person that constitute a business unit.
For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Company (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or any of its
17
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage. All L/C Advances shall be denominated in Dollars.
"L/C Borrowing" means 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 Committed Borrowing. All L/C Borrowings shall be denominated
in Dollars, except for L/C Borrowings under the Canadian Revolving Credit
Facility, which may be denominated in Dollars, Canadian Dollars or an
Alternative Currency.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or the Canadian Lender as issuer of Letters of Credit on
behalf of TWI, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.08. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Company and
the Administrative Agent.
"Letter of Credit" means a standby or commercial or comment letter of
credit issued hereunder and shall include the Existing Letters of Credit.
Letters of Credit may be issued in Dollars, Canadian Dollars or in an
Alternative Currency.
18
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day), or up to one year beyond such date provided that
the subject letter of credit is Cash Collateralized pursuant to Section
2.03(g)(iv).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan, and includes
advances under either the U.S. Revolving Credit Facility or the Canadian
Revolving Credit Facility.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
the Fee Letter, the Guaranties, and each security agreement, pledge, deed of
trust, mortgage or other document related to the Collateral.
"Loan Parties" means, collectively, the Borrowers, and each Subsidiary
Guarantor.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or financial
condition or results of operations of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which it
is a party.
"Maturity Date" means June 29, 2010.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender to such Borrower, substantially in the form
of Exhibit C.
19
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document, Swap
Contract, or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any Person as of
any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
(i) the unrecovered investment of purchasers or transferees of assets so
transferred, and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such type and
that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors
of the assets so transferred nor (y) impair the characterization of the
transaction as a true sale under applicable Laws (including Debtor Relief Laws);
(b) the monetary obligations under any financing lease or so-called "synthetic,"
tax retention or off-balance sheet lease transaction which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
characterized as indebtedness; or (c) the monetary obligations under any sale
and leaseback transaction which does not create a liability on the consolidated
balance sheet of such Person and its Subsidiaries; or (d) any other monetary
obligation arising with respect to any other transaction which (i) is
characterized as indebtedness for tax purposes but not for accounting purposes
in accordance with GAAP or (ii) is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheet of such Person and its Subsidiaries (for purposes of this clause
(d), any transaction structured to provide tax deductibility as interest expense
of any dividend, coupon or other periodic payment will be deemed to be the
functional equivalent of a borrowing).
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or
20
under any other Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans on any
date, the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Committed Loans occurring on such date; (ii) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line
Loans occurring on such date; and (iii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Company of Unreimbursed Amounts.
"Overdraft" means an overdraft on a deposit account maintained by TWI with
the Canadian Lender.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Participant" has the meaning specified in Section 10.06(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Perfected Lease Assets" means those certain lease-related assets,
including, but not limited to, rail cars, marine barges and other surface
transportation equipment, and related chattel paper, of Borrowers, or of
Subsidiary Guarantors, which have been pledged to the Lenders as security for
the Obligations, and against which the Lenders have obtained a first priority,
perfected security interest.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
21
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Company as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders and deemed to equal zero.
For purposes of this definition, and calculation of the requisite percentage,
the Canadian Revolving Credit Facility shall be deemed to constitute
$20,000,000, rather than CDN$25,000,000. If the Commitments have been terminated
pursuant to Section 8.02, or if the Aggregate Commitments have expired, the
amount outstanding under the Canadian Revolving Credit Facility shall be
converted from Canadian dollars to Dollars as of the date of determination.
Notwithstanding the above and except as otherwise provided in this Agreement,
the unanimous consent of all Lenders shall be required with respect to (i)
increases of the Aggregate Commitments, (ii) reductions of interest or fees,
(iii) extensions of scheduled maturities or payment due dates, or (iv) releases
of all or substantially all of the collateral or the Guarantors from their
obligations under the Guaranties.
"Responsible Officer" means the chief executive officer, president, vice
president, chief financial officer, controller, secretary or assistant
secretary, treasurer or assistant treasurer of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
22
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Company or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Company's stockholders, partners
or members (or the equivalent Person thereof) other than dividends or
distributions payable to a Borrower or a Subsidiary Guarantor.
"Restricted Subsidiary" means a Subsidiary of the Company that is not a
Subsidiary Guarantor.
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, and (ii) each date of a continuation of a
Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
Section 2.02, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to any
Letter of Credit, each of the following: (i) each date of issuance of a Letter
of Credit denominated in an Alternative Currency, (ii) each date of an amendment
of any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any payment by
the L/C Issuer under any Letter of Credit denominated in an Alternative
Currency, and (iv) such additional dates as the Administrative Agent or the L/C
Issuer shall determine or the Required Lenders shall require.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
"Sarbanes-Oxley" means the Sarbanes-Oxley Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Senior Debt Offering" means that certain offering of $175,000,000 in 8
3/8% Senior Notes due 2015, which closed on May 11, 2005.
"Stockholders' Equity" means, as of any date of determination,
consolidated stockholders' equity of the Company and its Subsidiaries as of that
date determined in accordance with GAAP.
23
"Special Notice Currency" means at any time an Alternative Currency, other
than the currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.
"Spot Rate" for a currency means the rate determined by the Administrative
Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 8:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another
financial institution designated by the Administrative Agent or the L/C Issuer
if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further
that the L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.
"Sterling" and "L" means the lawful currency of the United Kingdom.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Company.
"Subsidiary Guarantors" means, collectively, Greenbrier Leasing
Corporation, Greenbrier Railcar, Inc., Greenbrier Leasing Ltd., Autostack
Corporation, Gunderson, Inc., Gunderson Rail Services, Inc., Gunderson
Marine, Inc., and Greenbrier-Concarril, LLC.
"Subsidiary Guaranty" means the Subsidiary Guaranty made by each of the
Subsidiary Guarantors in favor of the Administrative Agent and the Lenders,
substantially in the form of Exhibit F.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement,
24
or any other master agreement (any such master agreement, together with any
related schedules, a "Master Agreement"), including any such obligations or
liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of
$10,000,000 and the amount available under the U.S. Revolver Ceiling. The
Swing Line Sublimit is part of, and not in addition to, the U.S. Revolving
Credit Facility.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Debt" means a private offering of debt securities or long-term debt
by the Company to institutional investors or financial institutions which is
secured by lease-related
25
assets, including, but not limited to, rail cars, marine barges and other
surface transportation equipment, and related chattel paper, that is excluded
from both the U.S. Borrowing Base and the Canadian Borrowing Base.
"Threshold Amount" means $5,000,000 as to Section 8.01(e), and $15,000,000
as to each of Sections 8.01(h) and (i).
"Total Outstandings" means the aggregate Outstanding Amount of all Loans,
L/C Obligations, and Overdrafts.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"U.S. Borrowing Base" means, as of any date of determination, with respect
to the assets of the Company and the Subsidiary Guarantors, and excluding the
assets of TWI, the sum of (i) 90% of the Dollar amount of Perfected Lease
Assets, (ii) 60% of the Dollar amount of Unperfected Lease Assets (not to exceed
$10,000,000 in the aggregate), (iii) 80% of the Dollar amount of Eligible
Accounts, (iv) 50% of the Dollar amount of Eligible Inventory, and (v) 50% of
the Dollar amount of Eligible Property, Plant and Equipment.
"U.S. Letter of Credit Sublimit" means an amount equal to the lesser of
$25,000,000 or the amount available under the U.S. Revolver Ceiling. The U.S.
Letter of Credit Sublimit is part of, and not in addition to, the U.S.
Revolving Credit Facility.
"U.S. Revolver Ceiling" means the amount that is the lesser of (a)
$125,000,000; or (b) the amount available under the U.S. Borrowing Base.
"U.S. Revolving Credit Facility" has the meaning specified in Section
2.01(a)(i).
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unperfected Lease Assets" means those certain lease-related assets,
including, but not limited to, rail cars, marine barges and other surface
transportation equipment, and related chattel paper, of Borrowers, or of
Subsidiary Guarantors, which have been pledged to the Lenders as security for
the Obligations, but for which the Lenders have not received a first priority,
perfected security interest.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Voting Percentage" means the percentage interest set forth in the
appropriate column opposite the name of each Lender in Schedule 2.01.
26
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) 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."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, or Canadian
GAAP with respect to TWI, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.
(b) Changes in GAAP or Canadian GAAP. If at any time any change in GAAP,
or Canadian GAAP with respect to TWI, would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Company or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such
27
change in GAAP, or Canadian GAAP with respect to TWI, (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP, or Canadian
GAAP with respect to TWI, prior to such change therein and (ii) the Company
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP, or
Canadian GAAP with respect to TWI.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Company and its Subsidiaries or to the
determination of any amount for the Company and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Company is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Administrative Agent or
the L/C Issuer, as applicable, shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. Such
Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan Documents
shall be such Dollar Equivalent amount as so determined by the Administrative
Agent or the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such Committed
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by
the Administrative Agent or the L/C Issuer, as the case may be.
28
1.05 ADDITIONAL ALTERNATIVE CURRENCIES. (a) The Company may from time to
time request that Eurocurrency Rate Loans be made and/or Letters of Credit be
issued in a currency other than those specifically listed in the definition of
"Alternative Currency;" provided that such requested currency is a lawful
currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with respect to
the making of Eurocurrency Rate Loans, such request shall be subject to the
approval of the Administrative Agent and the Lenders; and in the case of any
such request with respect to the issuance of Letters of Credit, such request
shall be subject to the approval of the Administrative Agent and the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not later
than 8:00 a.m., 20 Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the
L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly
notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer
thereof. Each Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of
Credit) shall notify the Administrative Agent, not later than 8:00 a.m., ten
Business Days after receipt of such request whether it consents, in its sole
discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters
of Credit, as the case may be, in such requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be, to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender or the L/C Issuer, as
the case may be, to permit Eurocurrency Rate Loans to be made or Letters of
Credit to be issued in such requested currency. If the Administrative Agent and
all the Lenders consent to making Eurocurrency Rate Loans in such requested
currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Committed Borrowings of Eurocurrency Rate Loans;
and if the Administrative Agent and the L/C Issuer consent to the issuance of
Letters of Credit in such requested currency, the Administrative Agent shall so
notify the Company and such currency shall thereupon be deemed for all purposes
to be an Alternative Currency hereunder for purposes of any Letter of Credit
issuances. If the Administrative Agent shall fail to obtain consent to any
request for an additional currency under this Section 1.05, the Administrative
Agent shall promptly so notify the Company. Any specified currency of an
Existing Letter of Credit that is neither Dollars nor one of the Alternative
Currencies specifically listed in the definition of "Alternative Currency" shall
be deemed an Alternative Currency with respect to such Existing Letter of Credit
only.
1.06 CHANGE OF CURRENCY. (a) Each obligation of the Borrowers to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date hereof
shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis
29
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Committed Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Committed Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
1.07 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Pacific time (daylight or standard, as
applicable), or Eastern Standard Time with respect to the Canadian Revolving
Credit Facility and notices to the Canadian Lender.
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING CREDIT FACILITIES AND COMMITTED LOANS
(a) CREDIT FACILITIES.
(i) Subject to the terms and conditions set forth herein, the
Lenders agree to make available to the Company a $125,000,000 multiple advance
revolving credit facility (the "U.S. Revolving Credit Facility"). Subject to the
limitations imposed by the U.S. Revolver Ceiling, and by the Aggregate
Commitments as provided below, the Company may borrow under this facility, repay
and reborrow as provided below. If for any reason, the outstanding obligations
under the Revolving Credit Facility at any time exceed the U.S. Revolver
Ceiling, the Company shall immediately repay Loans and/or Cash Collateralize L/C
Obligations under this facility in an aggregate amount equal to such excess.
Each Borrowing hereunder shall be as provided in Section 2.02 below.
(ii) Subject to the terms and conditions set forth herein, the
Canadian Lender agrees to make available to TWI a CDN$30,000,000 multiple
advance revolving credit facility
30
(the "Canadian Revolving Credit Facility"). Subject to the limitations imposed
by the Canadian Revolver Ceiling, and by the Aggregate Commitments as provided
below, TWI may borrow under this facility, repay and reborrow as provided below.
If for any reason, the outstanding obligations under the Canadian Revolving
Credit Facility at any time exceed the Canadian Revolver Ceiling, TWI shall
immediately repay Loans and/or Cash Collateralize L/C Obligations under this
facility in an aggregate amount equal to such excess. It is anticipated that the
Canadian Revolving Credit Facility will be used primarily by TWI to accommodate
Overdrafts. Overdrafts incurred by TWI shall constitute Borrowings under the
Canadian Revolving Credit Facility. Each Borrowing hereunder, other than the
accommodation of Overdrafts, shall be made as provided in Section 2.02 below.
TWI shall provide notice of Borrowings under this facility directly to the
Canadian Lender, and all payments made under this facility shall be made by TWI
directly to the Canadian Lender. Notwithstanding anything to the contrary
herein, all ordinary functions of a lender under the Canadian Revolving Credit
Facility, including, but not limited to, matters such as the processing of
notices pursuant to Section 2.02 below, payments and prepayments, and
determination of the interest rate, shall be the exclusive responsibility of the
Canadian Lender. All fees payable to the Canadian Lender shall be calculated by
the Canadian Lender and paid directly to the Canadian Lender by TWI. This
facility constitutes a renewal and amendment of an existing revolving credit
facility extended from the Canadian Lender to TWI.
(b) COMMITTED LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a "Committed Loan")
to the Borrowers in Dollars or in one or more Alternative Currencies from time
to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment; provided, however, that after giving effect to any Committed
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount
of all L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, (iii) the aggregate Outstanding Amount of all Committed Loans
denominated in Alternative Currencies shall not exceed the Alternative Currency
Sublimit, and (iv) the outstanding obligations under either the U.S. Revolving
Credit Facility or the Canadian Revolving Credit Facility shall not exceed their
respective limits under the U.S. Revolver Ceiling or the Canadian Revolver
Ceiling. Within the limits of each Lender's Commitment, and subject to the other
terms and conditions hereof, the Borrowers may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans
may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurocurrency Rate Loans shall be
made upon the Company's, or TWI's with respect to Borrowings which are not
Overdrafts under the Canadian Revolving Credit Facility, irrevocable notice to
the Administrative Agent, or the Canadian Lender, as appropriate, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in
31
Dollars to Base Rate Committed Loans, (ii) four Business Days (or five Business
Days in the case of a Special Notice Currency) prior to the requested date of
any Borrowing or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Committed Loans; provided, however, that if the Company wishes to request
Eurocurrency Rate Loans having an Interest Period other than seven (7) days,
fourteen (14) days, one, two, three or six 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. (i) four Business Days prior to
the requested date of such Borrowing, conversion or continuation of Eurocurrency
Rate Loans denominated in Dollars, or (ii) five Business Days (or six Business
days in the case of a Special Notice Currency) prior to the requested date of
such Borrowing, conversion or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, 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., (i) three Business Days before the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or
(ii) four Business Days (or five Business days in the case of a Special Notice
Currency) prior to the requested date of such Borrowing, conversion or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
the Administrative Agent shall notify the Company (which notice may be by
telephone) whether or not the requested Interest Period has been consented to by
all the Lenders. Each telephonic notice by the Company pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided
in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. The amounts set forth above shall not
apply to Overdrafts under the Canadian Revolving Credit Facility. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the
Company is requesting a Committed Borrowing, a conversion of Committed Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Committed
Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans
to be borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, and (vi)
the currency of the Committed Loans to be borrowed. If the Company fails to
specify a currency in a Committed Loan Notice requesting a Borrowing, then the
Committed Loans so requested shall be made in Dollars. If the Company fails to
specify a Type of Committed Loan in a Committed Loan Notice or if the Company
fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans;
provided, however, that in the case of a failure to timely request a
continuation of Committed Loans denominated in an Alternative Currency, such
Loans shall be continued as Eurocurrency Rate Loans in their original currency
with an Interest Period of one month. Any automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurocurrency Rate Loans. If the Company
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be
32
deemed to have specified an Interest Period of one month. No Committed Loan may
be converted into or continued as a Committed Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Committed
Loan and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount (and currency) of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans or continuation of Committed Loans denominated in a currency other than
Dollars, in each case as described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in Same Day Funds at the Administrative
Agent's Office for the applicable currency not later than 11:00 a.m., in the
case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Company or the other applicable Borrower in
like funds as received by the Administrative Agent either by (i) crediting the
account of such Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Company; provided, however, that if, on the date the Committed Loan
Notice with respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the applicable Borrower as
provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans (whether in
Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be
prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent
thereof, on the last day of the then current Interest Period with respect
thereto.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Company and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than eight Interest Periods in
effect with respect to Committed Loans.
33
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit denominated in Dollars, Canadian Dollars, or in one
or more Alternative Currencies for the account of the Company or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Company or
its Subsidiaries and any drawings thereunder, except for Letters of Credit
issued under the Canadian Revolving Credit Facility which shall be issued
by the Canadian Lender without the participation of the other Lenders;
provided that after giving effect to any L/C Credit Extension with respect
to any Letter of Credit, (x) the Total Outstandings under the U.S.
Revolving Credit Facility or the Canadian Revolving Credit Facility shall
not exceed the U.S. Revolver Ceiling or the Canadian Revolver Ceiling,
respectively, (y) the aggregate Outstanding Amount of the Committed Loans
of any Lender, plus such Lender's Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender's Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the U.S. Letter of Credit Sublimit or the Canadian Letter
of Credit Sublimit, as appropriate. Each request by the Company for the
issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso[s] to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Company's ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Company may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing Letters
of Credit shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any
34
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and
which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $100,000, in the case of a commercial Letter of Credit, or
$250,000, in the case of a standby Letter of Credit; or CDN $100,000
and CDN $250,000, respectively, with regard to such Letters of Credit
based under the Canadian Revolving Credit Facility;
(D) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is to be denominated in a
currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency;
(F) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(G) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Company or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer
35
Documents pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Company delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Company. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 10:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer 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
reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the
amount and currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer 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
reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the Company shall
furnish to the L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Company and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the Company
(or the applicable Subsidiary) or enter into the applicable amendment, as
the case may be, in each case in accordance with the L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter
36
of Credit in an amount equal to the product of such Lender's Applicable
Percentage times the amount of such Letter of Credit.
(iii) If the Company or TWI so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an "Auto-Extension Letter of Credit"); provided that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice
to the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Company shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration
Date; provided, however, that the L/C Issuer shall not permit any such
extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter
of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and
in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the Company
and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Company, or TWI, as applicable, and the Administrative Agent
thereof. In the case of a Letter of Credit denominated in an Alternative
Currency, the Company, or TWI, as applicable, shall reimburse the L/C
Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its
option) shall have specified in such notice that it will require
reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Company, or TWI, as applicable, shall have
notified the L/C Issuer promptly following receipt of the notice of drawing
that the Company, or TWI, as applicable, will reimburse the L/C Issuer in
Dollars, or Canadian Dollars, as applicable. In the case of any such
reimbursement in Dollars, or Canadian Dollars, as applicable, of a drawing
under a Letter of Credit denominated in an Alternative Currency, the L/C
Issuer shall notify the Company, or TWI, as applicable, of the Dollar
Equivalent, or Canadian Dollar Equivalent
37
as applicable, of the amount of the drawing promptly following the
determination thereof. Not later than 10:00 a.m. on the date of any payment
by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or
the Applicable Time on the date of any payment by the L/C Issuer under a
Letter of Credit to be reimbursed in an Alternative Currency (each such
date, an "Honor Date"), the Company, or TWI, as applicable, shall reimburse
the L/C Issuer through the Administrative Agent, or the Canadian Lender
directly, as applicable, in an amount equal to the amount of such drawing
and in the applicable currency. If the applicable Letter of Credit is under
the U.S. Revolving Credit Facility and the Company fails to so reimburse
the L/C Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent thereof in the
case of a Letter of Credit denominated in an Alternative Currency) (the
"Unreimbursed Amount"), and the amount of such Lender's Applicable
Percentage thereof. In such event, the Company, or TWI, as applicable,
shall be deemed to have requested a Committed Borrowing of Base Rate Loans
to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the conditions
set forth in Section 4.02 (other than the delivery of a Committed Loan
Notice). In no event may the Company, or TWI, as applicable, extend the
time for reimbursing any drawing under a commercial Letter of Credit by
obtaining a banker's acceptance from the L/C Issuer. Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C
Issuer, in Dollars, at the Administrative Agent's Office for
Dollar-denominated payments in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 10:00 a.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the
Company in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Company, or TWI, as applicable, shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest
at the Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
38
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, and in any event with respect to an L/C
Advance on behalf of TWI, interest in respect of such Lender's Applicable
Percentage of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), with regard to Letters of Credit
under the U.S. Revolving Line of Credit, shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Company, any Subsidiary or any
other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each Lender's
obligation to make Committed Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than delivery by
the Company of a Committed Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Company to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (vi) shall be conclusive absent
manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Company or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
Dollars and in the same funds as those received by the Administrative
Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the
39
circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Lender
shall pay to the Administrative Agent for the account of the L/C Issuer its
Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Company, and TWI, as
applicable, to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Company or any Subsidiary 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
L/C Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Company or any
Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or any Subsidiary.
The Company, or TWI, as applicable, 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
40
noncompliance with the Company's instructions or other irregularity, the
Company, or TWI, as applicable, will promptly notify the L/C Issuer. The
Company, or TWI, as applicable, shall be conclusively deemed to have waived any
such claim against the L/C Issuer and its correspondents unless such notice is
given as aforesaid.
(f) Role of L/C Issuer. Each Lender, the Company and TWI agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer 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 L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Company, or TWI, as applicable, hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Company's, or TWI's, as applicable, pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any
of the matters described in clauses (i) through (vi) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Company, or TWI, as applicable, may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company, or TWI, as
applicable, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company, or TWI, as
applicable, which the Company, or TWI, as applicable, proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's wrongful
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 L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer 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.
(g) Cash Collateral. (i) Upon the request of the Administrative Agent, or
the Canadian Lender, as applicable, if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Company shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations.
(ii) In addition, if the Administrative Agent or the Canadian Lender
notifies the Company or TWI at any time that the Outstanding Amount of all
L/C Obligations at such time exceeds the U.S. Letter of Credit Sublimit or
the Canadian Letter of Credit Sublimit then in effect, then, within two
Business Days after receipt of such notice, the
41
Company shall Cash Collateralize the L/C Obligations in an amount equal to
the amount by which the Outstanding Amount of all L/C Obligations exceeds
the U.S. Letter of Credit Sublimit or the Canadian Letter of Credit
Sublimit, as applicable.
(iii) The Administrative Agent or the Canadian Lender may, at any time
and from time to time after the initial deposit of Cash Collateral, request
that additional Cash Collateral be provided in order to protect against the
results of exchange rate fluctuations.
(iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03, Section 2.05 and Section 8.02(c), "Cash Collateralize" means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Company hereby
grants to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall
be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Company when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.
(i) Letter of Credit Fees. With regard to Letters of Credit issued under
the U.S. Revolving Credit Facility, the Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, in Dollars, a Letter of Credit fee (the "Letter of Credit Fee") (i)
for each commercial Letter of Credit equal to 0.125% of 1% per annum times the
Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit, and (ii) for each standby Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit. With regard to any Letters of Credit issued under the Canadian
Revolving Credit Facility, TWI shall pay the equivalent amounts as provided
above in Canadian Dollars to the Canadian Lender. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.08.
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily amount available to be drawn under each standby Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained
42
herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Company, or TWI, as applicable, shall pay directly to the L/C Issuer
for its own account, in Dollars, or Canadian Dollars, as applicable, a fronting
fee (i) with respect to each commercial Letter of Credit, at the rate specified
in the Fee Letter, computed on the Dollar Equivalent, or Canadian Dollar
Equivalent, as applicable, of the amount of such Letter of Credit, and payable
upon the issuance thereof, (ii) with respect to any amendment of a commercial
Letter of Credit increasing the amount of such Letter of Credit, at a rate
separately agreed between the Company and the L/C Issuer, computed on the Dollar
Equivalent, or Canadian Dollar Equivalent, as applicable, of the amount of such
increase, and payable upon the effectiveness of such amendment, and (iii) with
respect to each standby Letter of Credit, at the rate per annum specified in the
Fee Letter, computed on the Dollar Equivalent, or the Canadian Dollar
Equivalent, as applicable, of the daily amount available to be drawn under such
Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.08. In addition, the Company, or TWI, as applicable, shall pay directly to the
L/C Issuer for its own account, in Dollars, or Canadian Dollars, as applicable,
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Company hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Company, and that the Company's business derives substantial benefits from the
businesses of such Subsidiaries.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans in Dollars (each such
loan, a "Swing Line Loan") to the Company from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting
as Swing Line Lender,
43
may exceed the amount of such Lender's Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings under the U.S.
Revolving Credit Facility shall not exceed the U.S. Revolver Ceiling, and (ii)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender's Commitment, and provided, further,
that (i) the Company shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Company may borrow under
this Section 2.04, prepay under Section 2.05, and reborrow under this Section
2.04. Notwithstanding the Company's ability to borrow and reborrow hereunder,
each Swing Line Loan shall be repaid in full not later than ten (10) Business
Days after the date such loan was made. Each Swing Line Loan shall bear interest
at a rate equal to the Base Rate minus one percent (1.0%). Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Company's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $100,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 2:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Company at its office by crediting the account of the
Company on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Company (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such Lender's
Applicable Percentage of the amount of Swing Line
44
Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The
Swing Line Lender shall furnish the Company with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds for the account of
the Swing Line Lender at the Administrative Agent's Office for
Dollar-denominated payments not later than 10:00 a.m. on the day specified
in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Company in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the applicable Overnight Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Company or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Company to repay Swing Line Loans, together
with interest as provided herein.
45
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded) in
the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the applicable Overnight Rate.
The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Company for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Committed Loan or risk participation
pursuant to this Section 2.04 to refinance such Lender's Applicable Percentage
of any Swing Line Loan, interest in respect of such Applicable Percentage shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 SECURITY. All Obligations of Borrowers under this Agreement, all other
Loan Documents, and any obligations arising pursuant to a Swap Contract, shall
be secured by the Collateral in accordance with the Loan Documents.
2.06 PREPAYMENTS. (a) Each Borrower may, upon notice from the Company to
the Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Administrative Agent not later than
10:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five,
in the case of prepayment of Loans denominated in Special Notice Currencies)
prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed
Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars
shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000
in excess thereof; and (iii) any prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurocurrency Loans are to be prepaid, the
Interest Period(s) of such Loans. The
46
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Applicable Percentage of such
prepayment. If such notice is given by the Company, the applicable Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Committed Loans of
the Lenders in accordance with their respective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the
Total Outstandings under either the U.S. Revolving Credit Facility or the
Canadian Revolving Credit Facility at such time exceed the U.S. Revolver Ceiling
or the Canadian Revolver Ceiling, respectively, or the Aggregate Commitments
then in effect, then, within two Business Days after receipt of such notice, the
Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding Amount
as of such date of payment to an amount not to exceed 100% of the U.S. Revolver
Ceiling or the Canadian Revolver Ceiling, respectively, or the Aggregate
Commitments then in effect; provided, however, that, subject to the provisions
of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment
in full of the Loans the Total Outstandings exceed the U.S. Revolver Ceiling or
the Canadian Revolver Ceiling, respectively, or the Aggregate Commitments then
in effect. The Administrative Agent may, at any time and from time to time after
the initial deposit of such Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the results of further
exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all Loans denominated in Alternative Currencies at such
time exceeds the Alternative Currency Sublimit then in effect, then, within two
Business Days after receipt of such notice, the Borrowers shall prepay Loans in
an aggregate amount sufficient to reduce such Outstanding Amount as of such date
of payment to an amount not to exceed 100% of the Alternative Currency Sublimit
then in effect.
2.07 TERMINATION OR REDUCTION OF COMMITMENTS. The Company may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or from time
to time permanently reduce the Aggregate Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $1,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Company shall not
47
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Alternative Currency Sublimit, the U.S. Letter of
Credit Sublimit or the Canadian Letter of Credit Sublimit, or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. The amount of any such Aggregate Commitment
reduction shall not be applied to the Alternative Currency Sublimit or the U.S.
Letter of Credit Sublimit or the Canadian Letter of Credit Sublimit unless
otherwise specified by the Company. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.08 REPAYMENT OF LOANS.(a) Each Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Committed Loans made to such
Borrower outstanding on such date, including any Overdrafts outstanding.
(b) The Company shall repay each Swing Line Loan on the earlier to occur of
(i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date.
2.09 INTEREST.(a) Subject to the provisions of subsection (b) below, (i)
each Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus the Applicable Rate, plus (in
the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory
Cost; (ii) each Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate minus one
percent (1.0%).
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by any
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrowers shall pay interest on the principal amount of
all outstanding
48
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), and to the extent such
Act shall apply to such loan, (i) whenever a rate of interest or fee rate
hereunder is calculated on the basis of a year (the "deemed year") that contains
fewer days than the actual number of days in the calendar year of calculation,
such rate of interest or fee rate shall be expressed as a yearly rate by
multiplying such rate of interest or fee rate by the actual number of days in
the calendar year of calculation and dividing it by the number of days in the
deemed year, (ii) the principle of deemed reinvestment of interest shall not
apply to any interest calculation hereunder and (iii) the rates of interest
stipulated herein are intended to be nominal rates and not effective rates or
yields.
2.10 FEES. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Commitment Fee. The Company shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
commitment fee in Dollars equal to the Applicable Rate times the actual daily
amount by which the Aggregate Commitments (including only the U.S. Revolving
Credit Facility) exceed the sum of (i) the Outstanding Amount of Committed
Loans, excluding the Canadian Revolving Credit Facility, and (ii) the
Outstanding Amount of L/C Obligations, excluding the Canadian Revolving Credit
Facility. TWI shall pay to the Canadian Lender for the account of the Canadian
Lender a commitment fee in Canadian Dollars equal to the Applicable Rate times
the actual daily amount by which the Aggregate Commitments (including only the
Canadian Revolving Credit Facility) exceed the sum of (i) the outstanding amount
of Committed Loans under the Canadian Revolving Credit Facility and (ii) the
outstanding number of L/C Obligations under the Canadian Revolving Credit
Facility. The commitment fee shall accrue at all times during the Availability
Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the Maturity Date.
The commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees.
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(i) The Company shall pay to the Arranger and the Administrative Agent
for their own respective accounts, in Dollars, fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
(ii) The Company shall pay to the Lenders, in Dollars, such fees as
shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(iii) The Borrowers agree (a) to pay or reimburse the Administrative
Agent, on behalf of the Lenders, for all reasonable costs and expenses incurred
in connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the Lenders
for all reasonable costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Lenders and the cost of independent public accountants
and other outside experts retained by Lenders. All amounts due under this
Section 2.10 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations
2.11 COMPUTATION OF INTEREST AND FEES. Except as provided in Section
2.09(d), all computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or, in the case of
interest in respect of Committed Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such
market practice. Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.12 EVIDENCE OF DEBT.(a) The Credit Extensions made by each Lender shall
be evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or
50
otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender to a Borrower made through the Administrative Agent,
such Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's Loans to such
Borrower in addition to such accounts or records. Each Lender may attach
schedules to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.(a) General. All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in Dollars and in Same Day Funds not later than
1:00 p.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent's Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without
limiting the generality of the foregoing, the Administrative Agent may require
that any payments due under this Agreement be made in the United States. If, for
any reason, any Borrower is prohibited by any Law from making any required
payment hereunder in an Alternative Currency, such Borrower shall make such
payment in Dollars in the Dollar Equivalent of the Alternative Currency payment
amount. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent (i) after 1:00 p.m.,
in the case of payments in Dollars, or (ii) after the Applicable Time specified
by the Administrative Agent in the case of payments in an Alternative Currency,
shall in each case be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to be
made by any Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
51
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance
upon such assumption, make available to the applicable Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate and (B) in the case of a payment to be made by such
Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to such
Borrower the amount of such interest paid by such Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Committed Loan included in such Committed Borrowing. Any payment by such
Borrower shall be without prejudice to any claim such Borrower may have against
a Lender that shall have failed to make such payment to the Administrative
Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if such Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in Same Day Funds with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender to any
Borrower as provided in the foregoing provisions of this Article II, and such
funds are not made available to such Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof,
52
the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Committed Loans or subparticipations in L/C Obligations or
Swing Line Loans to any assignee or participant, other than to the Company
or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with
53
respect to such participation as fully as if such Lender were a direct creditor
of such Loan Party in the amount of such participation.
2.15 INCREASE IN COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Company
may from time to time, request an increase in the Aggregate Commitments by an
amount (for all such requests) not exceeding $50,000,000; provided that (i) any
such request for an increase shall be in a minimum amount of $5,000,000. At the
time of sending such notice, the Company (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Company and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent and
the L/C Issuer (which approvals shall not be unreasonably withheld), the Company
may also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Company shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Company and the Lenders of the final allocation of such increase and
the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, the Company shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (ii) in the case of the Company,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct in all material respects on and as of the
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that
for purposes of this Section 2.16, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default exists. The Borrowers shall prepay any
54
Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Committed Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the Commitments under this
Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.14 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the respective Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the applicable
Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, each Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to a Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
55
(e) Status of Lenders. Without the prior written consent of the Borrowers,
no Person that is either (a) organized or incorporated under the laws of a
jurisdiction or (b) resident for tax purposes in a jurisdiction, other than that
in which such Borrower is resident for tax purposes, shall become a recipient of
any payment to be made by or on account of any obligation of any Borrower
hereunder, including as the Administrative Agent, a Lender, the L/C Issuer or
otherwise, for purposes of this provision, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is resident for tax purposes, or any treaty to which such jurisdiction
is a party, with respect to payments hereunder or under any other Loan Document
shall deliver to the Company (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Company or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any
Lender, if requested by the Company or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by
the Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to Company and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but only
if such Foreign Lender is legally entitled to do so), whichever of the following
is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
stockholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Company
to determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes,
56
each Lender agrees promptly to deliver to the Administrative Agent or the
Company, as the Administrative Agent or the Company shall reasonably request, on
or prior to the Closing Date, and in a timely fashion thereafter, such other
documents and forms required by any relevant taxing authorities under the Laws
of any other jurisdiction, duly executed and completed by such Lender, as are
required under such Laws to confirm such Lender's entitlement to any available
exemption from, or reduction of, applicable withholding taxes in respect of all
payments to be made to such Lender outside of the U.S. by the Borrowers pursuant
to this Agreement or otherwise to establish such Lender's status for withholding
tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify
the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Additionally, each of the Borrowers shall
promptly deliver to the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms
required by any relevant taxing authorities under the Laws of any jurisdiction,
duly executed and completed by such Borrower, as are required to be furnished by
such Lender or the Administrative Agent under such Laws in connection with any
payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or
otherwise in connection with the Loan Documents, with respect to such
jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by any
Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.
3.02 ILLEGALITY. If any Lender reasonably determines that any Law has made
it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or
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any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the Company through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans in the
affected currency or currencies or, in the case of Eurocurrency Rate Loans in
Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall
be suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrowers shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders reasonably
determine that for any reason in connection with any request for a Eurocurrency
Rate Loan or a conversion to or continuation thereof that (a) deposits (whether
in Dollars or an Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable amount
and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan (whether
denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans in the affected currency or currencies shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except (A) any reserve requirement
reflected in the Eurocurrency Rate and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank
reflected in the Mandatory Cost, other than as set forth below) or the L/C
Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made by
it, or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified
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Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer);
(iii) prevent the Mandatory Cost, as calculated hereunder, from
representing the cost to any Lender of complying with the requirements of
the Bank of England and/or the Financial Services Authority or the
European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or
(iv) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurocurrency Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
the L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Company will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Company will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender and its
legal counsel or the L/C Issuer and its legal counsel setting forth the amount
or amounts necessary to compensate such Lender or the L/C Issuer or its holding
company, as the case may be, as specified in subsection (a) or (b) of this
Section and delivered to the Company shall be conclusive absent manifest error.
The Company shall pay to such Lender or the L/C Issuer, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that no
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Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to
the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or
the L/C Issuer, as the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or the
L/C Issuer's intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) Additional Reserve Requirements. The Company shall pay to each Lender,
as long as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any other central banking or financial
regulatory authority imposed in respect of the maintenance of the Commitments or
the funding of the Eurocurrency Rate Loans, such additional costs (expressed as
a percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive, absent manifest error), which in each case shall be due and
payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least 10 days' prior notice (with a copy to the
Administrative Agent) of such additional costs from such Lender. If a Lender
fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional costs shall be due and payable 10 days from receipt of such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Company shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Company;
(c) any failure by any Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a
different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the Company
pursuant to Section 10.13;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan, from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract. The Company shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Loan made by it at
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the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in
the offshore interbank market for such currency for a comparable amount and for
a comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
3.01 or 3.04, as the case may be, in the future, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Company may replace such Lender in accordance with Section
10.13.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement and the Guaranties,
sufficient in number for distribution to the Administrative Agent, each
Lender and the Borrowers;
(ii) Notes executed by the Borrowers in favor of each Lender
requesting Notes;
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(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may reasonably require evidencing
the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized
or formed, and that each of the Company and the Subsidiary Guarantors is
validly existing, in good standing, as applicable in their respective
jurisdictions of formation, and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(v) such executed documents as the Administrative Agent may require
to perfect the Lenders' first priority security interest in the
Collateral;
(vi) evidence that the Administrative Agent, on behalf of the
Lenders, shall have a perfected, first priority interest in the
Collateral, subject to the liens set forth in Schedule 7.01, other than
those to be removed in connection with the Existing Credit Agreement (and
not including the TWI facility referenced therein);
(vii) favorable opinions of Tonkon Torp LLP and Patterson Palmer,
counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit G and such other
matters concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Company
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, (B) that there has been no event or circumstance
since the date of the Audited Financial Statements that has had or could
be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect, and (C) that there is no action, suit,
investigation or proceeding pending or, to the knowledge of the Borrowers,
threatened in any court or before any arbitrator or governmental authority
that could reasonably be expected to (x) have a Material Adverse Effect;
(x) a certificate of a Responsible Officer of each Subsidiary
Guarantor certifying that there are no provisions contained in the
articles or bylaws of the Subsidiary Guarantor, or any agreements to which
the Subsidiary Guarantor is a party, that would limit the ability of a
Subsidiary Guarantor to make a Restricted Payment or to
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otherwise transfer property to the Company, other than those existing on
the Closing Date and listed in Schedule 7.09;
(xi) a duly completed Compliance Certificate dated as of the last
day of the fiscal quarter of the Company ended on February 28, 2005, as
adjusted on a pro-forma basis to reflect the Senior Debt Offering, and
signed by a Responsible Officer of the Company;
(xii) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect;
(xiii) evidence that the Existing Credit Agreements have been or,
concurrently with the Closing Date, are being terminated and all Liens
securing obligations under the Existing Credit Agreements have been or,
concurrently with the Closing Date, are being released;
(xiv) no representations made by the Company and its affiliates to
Bank of America and the Arranger in connection with the transactions
contemplated by this Credit Agreement shall be incorrect in any material
respect, and the Administrative Agent and the Lenders have not learned of
any additional information since April 13, 2005, that could reasonably be
expected to result in a Material Adverse Effect;
(xv) the Administrative Agent shall have received, in form and
substance reasonably satisfactory to it, all environmental reports, asset
appraisals, field audits, and such other reports, audits or certifications
as it may reasonably request; and
(xvi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
(b) Notwithstanding the above, certain Loan Documents with respect to TWI
and Greenbrier Leasing, Ltd. may, in the sole discretion of the Administrative
Agent, be provided to the Administrative Agent up to five (5) Business Days
after the Closing Date.
(c) Any fees required to be paid on or before the Closing Date shall have
been paid.
(d) Unless waived by the Administrative Agent, the Company shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Company
and the Administrative Agent).
(e) The Closing Date shall have occurred on or before June 30, 2005.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be
63
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of (i) the Borrowers contained in
Article V and (ii) each Loan Party contained in each other Loan Document or in
any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the Administrative Agent,
the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to
be denominated in an Alternative Currency) would make it impracticable for such
Credit Extension to be denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurocurrency Rate Loans) submitted by the Company shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Except as otherwise provided in Section 5.18, each of the Company, on
behalf of itself and the Subsidiary Guarantors, and TWI, solely on behalf of
itself, represents and warrants to the Administrative Agent and the Lenders
that:
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5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not (a) contravene the terms of any of such
Person's Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Company and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
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(b) The unaudited consolidated balance sheets of the Company and its
Subsidiaries dated February 28, 2005, and the related consolidated statements of
income or operations, stockholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05
sets forth all material indebtedness and other liabilities exceeding $1,000,000,
direct or contingent, of the Company and its consolidated Subsidiaries as of the
date of such financial statements, including liabilities for taxes and
Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
is reasonably expected to have a Material Adverse Effect.
(d) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Company after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) except as specifically disclosed in
Schedule 5.06, either individually or in the aggregate, if determined adversely,
is reasonably be expected to have a Material Adverse Effect, and there has been
no adverse change in the status, or financial effect on any Loan Party or any
Subsidiary thereof, of the matters described on Schedule 5.06.
5.07 NO DEFAULT. Neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Company and each Subsidiary
has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Company and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01 and those existing as of the date hereof.
5.09 ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof the Company has reasonably concluded that, except as
specifically disclosed in Schedule 5.09, such Environmental
66
Laws and claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies that are not
Affiliates of the Company, in such amounts, and with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Company or the
applicable Subsidiary operates.
5.11 TAXES. The Company and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. Except as disclosed to the
Administrative Agent in writing there is no proposed tax assessment against the
Company or any Subsidiary that would, if made, have a Material Adverse Effect.
Neither any Loan Party nor any Subsidiary thereof is party to any formal tax
sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Company, nothing has occurred which would prevent, or cause the
loss of, such qualification. The Company and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Company nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
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5.13 SUBSIDIARIES; EQUITY INTERESTS. The Company has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens. The Company
has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding
Equity Interests in the Company have been validly issued and are fully paid and
nonassessable.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Borrower is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b) None of the Company, any Person Controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Company has disclosed to the Administrative Agent and
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to all financial projections,
budgets, forecasts, pro forma data and other forward looking statements
("Projections") provided by the Company have been prepared in good faith based
upon assumptions believed to be reasonable at the time (it being understood that
such Projections are subject to significant uncertainties and contingencies,
many of which are beyond the Company's control, and that no assurance can be
given that any particular Projections will be realized).
5.16 COMPLIANCE WITH LAWS. Each of the Company and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, is not expected to have a Material Adverse Effect.
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5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Company or any Subsidiary infringes upon any valid rights held
by any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Company, threatened, which, either
individually or in the aggregate, is reasonably expected to have a Material
Adverse Effect.
5.18 REPRESENTATIONS AS TO FOREIGN OBLIGORS. Each of the Company and each
Foreign Obligor represents and warrants to the Administrative Agent and the
Lenders that:
(a) Such Foreign Obligor is subject to civil and commercial Laws with
respect to its obligations under this Agreement and the other Loan Documents to
which it is a party (collectively as to such Foreign Obligor, the "Applicable
Foreign Obligor Documents"), and the execution, delivery and performance by such
Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will
constitute private and commercial acts and not public or governmental acts.
Neither such Foreign Obligor nor any of its property has any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) under the laws of the jurisdiction in which such Foreign Obligor
is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.
(b) The Applicable Foreign Obligor Documents are in proper legal form
under the Laws of the jurisdiction in which such Foreign Obligor is organized
and existing for the enforcement thereof against such Foreign Obligor under the
Laws of such jurisdiction, and to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Obligor
Documents. It is not necessary to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Obligor
Documents that the Applicable Foreign Obligor Documents be filed, registered or
recorded with, or executed or notarized before, any court or other authority in
the jurisdiction in which such Foreign Obligor is organized and existing or that
any registration charge or stamp or similar tax be paid on or in respect of the
Applicable Foreign Obligor Documents or any other document, except for (i) any
such filing, registration, recording, execution or notarization as has been made
or is not required to be made until the Applicable Foreign Obligor Document or
any other document is sought to be enforced and (ii) any charge or tax as has
been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or other
governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Foreign Obligor
is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to
be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor
Documents, except as has been disclosed to the Administrative Agent.
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(d) The execution, delivery and performance of the Applicable Foreign
Obligor Documents executed by such Foreign Obligor are, under applicable foreign
exchange control regulations of the jurisdiction in which such Foreign Obligor
is organized and existing, not subject to any notification or authorization
except (i) such as have been made or obtained or (ii) such as cannot be made or
obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably
practicable).
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Company (commencing with the fiscal year ended August
31, 2005), a consolidated balance sheet of the Company and its Subsidiaries as
at the end of such fiscal year, and the related consolidated statements of
income or operations, stockholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be audited and accompanied by (i) a report and
opinion of a Registered Public Accounting Firm of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit and (ii) an attestation report of such Registered Public Accounting
Firm as to the Borrower's internal controls pursuant to Section 404 of
Sarbanes-Oxley expressing a conclusion to which the Required Lenders do not
reasonably object; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Company
(commencing with the fiscal quarter ended May 31, 2005), a consolidated balance
sheet of the Company and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated statements of income or operations, stockholders'
equity and cash flows for such fiscal quarter and for the portion of the
Company's fiscal year then ended, setting forth in each case in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated statements to be certified by a Responsible Officer of the
Company as fairly presenting the financial condition, results of operations,
stockholders' equity and cash flows of the Company and its Subsidiaries in
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accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; and
(c) as soon as available, but in any event at least 45 days after the
beginning of each fiscal year of the Company, forecasts prepared by management
of the Company, in form reasonably satisfactory to the Administrative Agent and
the Required Lenders, of consolidated balance sheets and statements of income or
operations and cash flows of the Company and its Subsidiaries on a monthly basis
for such fiscal year (including the fiscal year in which the Maturity Date
occurs).
As to any information contained in materials furnished pursuant to Section
6.02(d), the Company shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders:
(a) within 45 days after the end of each fiscal quarter, a Borrowing Base
Certificate as of the last day of such fiscal quarter;
(b) upon a pledge of assets, permitted pursuant to Section 7.01, or at the
Company's sole discretion upon the acquisition of assets by the Company or any
of its Subsidiaries outside of the ordinary course of business (but otherwise
permitted hereunder), an updated Borrowing Base Certificate as of the most
recently completed fiscal quarter which incorporates the acquired or pledged
assets to reflect such assets on a pro-forma basis;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended May 31, 2005), a duly completed
Compliance Certificate signed by a Responsible Officer of the Company;
(c) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Company by independent accountants in connection with the
accounts or books of the Company or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to all of the
stockholders of the Company, and copies of all annual, regular, periodic and
special reports and registration statements which the Company may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and
(e) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms
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of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to Section 6.01 or any other clause of
this Section 6.02; and
(f) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request;
(h) upon closing of any offering of Term Debt which affects the U.S.
Borrowing Base or the Canadian Borrowing Base, an updated Borrowing Base
Certificate; and
(i) within thirty (30) days after closing of any offering of Term Debt, a
certificate signed by a Responsible Officer which confirms that such offering
(i) did not cause an Event of Default, and (ii) the documentation associated
with such offering, a copy of which shall be attached to the certificate, does
not impose a limitation on the ability of the Company or its Subsidiaries to
make Restricted Payments to the Company or its Subsidiaries.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Company's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Company shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the
Company shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Company shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information
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provided by or on behalf of such Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to any Borrower or its securities) (each, a
"Public Lender"). Each Borrower hereby agrees that so long as such Borrower is
the issuer of any outstanding debt or equity securities that are registered or
issued pursuant to a private offering or is actively contemplating issuing any
such securities (w) all Borrower 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 Borrower Materials "PUBLIC," the Borrowers shall be
deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrowers or their respective
securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Administrative
Agent and the Arranger shall be entitled to treat any Borrower Materials that
are not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor." Notwithstanding the foregoing, no
Borrower shall be under any obligation to mark any Borrower Materials "PUBLIC."
6.03 NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or is reasonably expected to result in
a Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Company or any Subsidiary; and
(e) of the occurrence of any Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness,
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as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. With respect to Subsidiaries, other
than Immaterial Subsidiaries, (a) preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction
of its organization except in a transaction permitted by Section 7.04 or 7.05;
(b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its material facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Company, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its Responsible Officers, and independent public accountants, all
at the expense of the Administrative Agent and each Lender, unless an Event of
Default has occurred and is continuing, and at such reasonable times during
normal business
74
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Company; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12 APPROVALS AND AUTHORIZATIONS. Maintain all authorizations, consents,
approvals and licenses from, exemptions of, and filings and registrations with,
each Governmental Authority of the jurisdiction in which each Foreign Obligor is
organized and existing, and all approvals and consents of each other Person in
such jurisdiction, in each case that are required in connection with the Loan
Documents.
6.13 ADDITIONAL SUBSIDIARY GUARANTORS. Notify the Administrative Agent at
the time that any Person becomes a Domestic Subsidiary, and promptly thereafter
(and in any event within 30 days), cause such Person to (a) become a Subsidiary
Guarantor by executing and delivering to the Administrative Agent a counterpart
of the Subsidiary Guaranty or such other document as the Administrative Agent
shall deem appropriate for such purpose, and (b) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of Section
4.01(a) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability of
the documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent; provided that any Domestic
Subsidiary that constitutes an Immaterial Subsidiary need not become a
Subsidiary Guarantor until such time as it ceases to be an Immaterial
Subsidiary, or it contributes assets to the U.S. Borrowing Base.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
75
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Section 7.03(f); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition; and
(j) Liens held by Gunderson, Inc. on the assets of Greenbrier-Concarril,
LLC to secure any Indebtedness owed from Greenbrier-Concarril, LLC to Gunderson,
Inc.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Company or such Subsidiary in the form of cash
equivalents or the Company's cash investment policy as approved by the Company's
board of directors;
(b) advances to officers, directors and employees of the Company and
Subsidiaries in an aggregate amount not to exceed $500,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Company in any Subsidiary Guarantor and Investments
of any Subsidiary Guarantor in the Company or in another Subsidiary Guarantor;
76
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) other Investments not exceeding $500,000 in the aggregate in any
fiscal year of the Company;
(f) Investments in Restricted Subsidiaries not exceeding $30,000,000 in
the aggregate at any time, plus the total amount of all such Investments in
Restricted Subsidiaries as of the date of this Agreement, plus any excess amount
of Restricted Payments available to be paid pursuant to Section 7.06(d) and not
otherwise distributed;
(g) Investments in Joint Ventures not exceeding $20,000,000 in the
aggregate at any time, plus the total amount of all such Investments in Joint
Ventures as of the date of this Agreement, plus any excess amount of Restricted
Payments available to be paid pursuant to Section 7.06(e) and not otherwise
distributed; and
(h) Investments of the Company in (i) BBRM or its affiliates for the
purpose of acquiring an interest in rail cars owned by BBRM or its affiliates or
(ii) one or more Joint Ventures between the Company or any of its Subsidiaries
and BBRM or its affiliates formed for the purpose of acquiring, managing,
marketing, remarketing, leasing and/or selling rail cars and other surface
transportation equipment, in an aggregate amount for all Investments made
pursuant to this Section 7.02(i) not to exceed $25,000,000 at any time
outstanding; and
(i) Purchases of Inventory by Gunderson, Inc. on behalf of
Greenbrier-Concarril, LLC.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Guarantees of the Company or any Subsidiary Guarantor in respect of
Indebtedness otherwise permitted hereunder of the Company or any other
Subsidiary Guarantor;
(d) Obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not
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contain any provision exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness of the Company, TWI or the Subsidiary Guarantors or other
Domestic Subsidiaries in respect of (i) Term Debt, or (ii) Guarantees of
Indebtedness of any Person other than the Company, TWI, or the Subsidiary
Guarantors, provided; however, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $100,000,000;
(f) Capital leases (including sale-leaseback transactions) or purchase
money obligations for fixed or capital assets, within the limitations set forth
in Section 7.01(i), and in an aggregate amount not to exceed $25,000,000;
(g) Unsecured Indebtedness and/or subordinated indebtedness, on terms
reasonably acceptable to the Agent, in an aggregate principal amount not to
exceed $100,000,000 at any time outstanding; and
(h) Indebtedness of Restricted Subsidiaries and Joint Ventures, so long as
such Indebtedness is (i) on a "non-recourse" basis to the Borrowers and all
Subsidiary Guarantors; or (ii) is guaranteed pursuant to Section 7.03(e).
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Company, provided that the
Company shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any Subsidiary Guarantor is merging with
another Subsidiary, the Subsidiary Guarantor shall be the continuing or
surviving Person; and
(b) the Company may merge or consolidate with another corporation or
entity which merger or consolidation merely effects the form or domicile of the
Company without changing the respective holdings of capital stock in the Company
(or in the surviving entity) by stockholders and pursuant to which all
obligations of the Company in respect of this Agreement are and remain
obligations of the surviving entity; and
(c) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Company or to another
Subsidiary; provided that if the transferor in such a transaction is a
Subsidiary Guarantor, then the transferee must either be the Company or a
Subsidiary Guarantor.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
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(b) Dispositions of inventory in the ordinary course of business and of
equipment on or held for lease, including sales or exchanges of such assets, and
in connection with the Golden West Agreements, in each case in the ordinary
course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Subsidiary Guarantor, the transferee thereof must either be the Company or a
Subsidiary Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of lease assets in lease securitization or syndication
transactions, provided that the Borrower remains in compliance with their
limitations under both the U.S. Borrowing Base and the Canadian Borrowing Base
and all other terms and conditions of this Agreement;
(g) Dispositions pursuant to any sale-leaseback transactions under Section
7.03(f).
provided, however, that any Disposition pursuant to clauses (a) through (f)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Company, the
Subsidiary Guarantors and any other Person that owns an Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;
(b) the Company and each Subsidiary may declare and make dividend payments
or other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) the Company and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests;
(d) the Company or a Subsidiary may purchase equity interests of 3048389
Nova Scotia Limited pursuant to contractual obligations existing on the date of
this Agreement in an amount not to exceed $10,000,000; and
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(e) excluding any payments made by the Company to the Estate of Alan
James prior to August 31, 2005, the Company may declare or pay Restricted
Payments in an amount not to exceed 50% of the cumulative net income of the
Company and its Subsidiaries since February 28, 2005.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Other than Investments in or
Restricted Payments to Subsidiaries, enter into any transaction of any kind with
any Affiliate of the Company, whether or not in the ordinary course of business,
other than on fair and reasonable terms substantially as favorable to the
Company or such Subsidiary as would be obtainable by the Company or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate.
7.09 BURDENSOME AGREEMENTS. Other than those in existence as of the
date of this Agreement and set forth in Schedule 7.09, enter into any
Contractual Obligation (other than this Agreement or any other Loan Document)
that (a) limits the ability (i) of any Subsidiary Guarantor to make Restricted
Payments to the Company or any Subsidiary Guarantor or to otherwise transfer
property to the Company or any Subsidiary Guarantor, (ii) of any Subsidiary
Guarantor to Guarantee the Indebtedness of the Company or (iii) of the Company
or any Subsidiary Guarantor to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.
The Company and the Subsidiary Guarantors shall not renew or extend the
agreements set forth in Schedule 7.09 unless any limitation on Restricted
Payments shall have been terminated as part of such renewal or extension.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 FINANCIAL COVENANTS. Beginning with the fiscal quarter ended May
31, 2005:
(a) CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated Tangible Net
Worth at any time to be less than the sum of (i) an amount equal to 80% of the
Company's Consolidated Tangible Net Worth as of May 31, 2005, (ii) an amount
equal to 50% of the Consolidated Net Income earned in each full fiscal quarter
ending after May 31, 2005 (with no deduction for a net loss in any such fiscal
quarter), and (iii) an amount equal to 50% of the aggregate increases in
Stockholders' Equity of the Company and its Subsidiaries after the date hereof
by reason of the issuance and sale of Equity Interests of the Company or any
Subsidiary (other than issuances to
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the Company or a wholly-owned Subsidiary), including upon any conversion of debt
securities of the Company into such Equity Interests.
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio on a rolling four quarter basis of the Company to be
less than 1.75 to 1.00.
(c) CONSOLIDATED CAPITALIZATION RATIO. Permit the Consolidated
Capitalization Ratio as of the end of any fiscal quarter of the Company to be
greater than .675 to 1.00.
7.12 CAPITAL EXPENDITURES. Make or become legally obligated to make any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations), except for capital expenditures in the ordinary
course of business not exceeding $25,000,000 in the aggregate in any fiscal year
for the Company and its Subsidiaries, and any such expenditures made for leasing
assets.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, and in the currency required hereunder,
any amount of principal of any Loan or any L/C Obligation, or (ii) within three
days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. The Company fails to perform or observe any
term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10, 6.11 or 6.13 or Article VII, other than pursuant to Sections 7.02 and
7.03, or any Subsidiary Guarantor fails to perform or observe any term, covenant
or agreement contained in its Subsidiary Guaranty; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and
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Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
the Threshold Amount, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which the Company or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Company or any
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Company or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Company or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that the Company Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents and applicable
law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C
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Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such, and
including any amounts owed pursuant to any Swap Contracts;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and Letter
of Credit Fees) payable to the Lenders and the L/C Issuer (including fees,
charges and disbursements of counsel to the respective Lenders and the L/C
Issuer (including fees and time charges for attorneys who may be employees of
any Lender or the L/C Issuer) and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause
Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C
Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer
in proportion to the respective amounts described in this clause Third payable
to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank
of America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with
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such actions and powers as are reasonably incidental thereto. The provisions of
this Article are solely for the benefit of the Administrative Agent, the Lenders
and the L/C Issuer, and no Borrower shall have rights as a third party
beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with 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 therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other
Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to 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 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Company, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other
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document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) 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 L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), 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.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Company 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
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its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer 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 L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer 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 L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements reasonably satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners or Arrangers 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 L/C Issuer hereunder.
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9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative
Agent under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by
the Administrative Agent under any Loan Document (i) upon termination
of the Aggregate Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration
or termination of all Letters of Credit, (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, or (iii) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required Lenders;
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(b) to subordinate any Lien on any property granted to or held
by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 7.01(i); and
(c) to release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty if such Person ceases to be a Subsidiary
as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Subsidiary Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Company or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
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(f) amend Section 1.06 or the definition of "Alternative Currency"
without the written consent of each Lender; or
(g) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder without the written
consent of each Lender; or
(h) release any of the subsidiaries from the Subsidiary Guaranty
without the written consent of each Lender; or
(i) release all or substantially all of the Collateral in any
transaction or series of related transactions without the written consent of
each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (iv)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) 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:
(i) if to the Borrowers, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person
on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
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
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recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to any Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of any Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
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(d) Change of Address, Etc. Each of the Borrowers, the Administrative
Agent, the L/C Issuer 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 Company, the Administrative Agent, the L/C Issuer and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) 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 Company shall indemnify the Administrative Agent, the L/C Issuer,
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 given by or on behalf of any Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or
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Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
any Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Company or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for breach in bad faith of
such Indemnitee's obligations hereunder or under any other Loan Document, if the
Company or such other Loan Party has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Company for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity.
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The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, no Borrower or Lender shall assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the payment in
full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and
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each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Company otherwise
consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to members of
an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has
been met;
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to
rights in respect of Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless
the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible
Assignee); and
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and
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recordation fee in the amount, if any, required as set forth in
Schedule 10.06, and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrowers, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrowers and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender may request and
receive from the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of,
or notice to, any Borrower or the Administrative Agent, sell participations to
any Person (other than a natural person or the Company or any of the Company's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitation upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Company is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Company and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Company,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Company shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer
97
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Committed
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer
and/or Swing Line Lender, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer 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 Company
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 L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Company.
For purposes of this Section, "Information" means all information
received from the Company or any Subsidiary relating to the Company or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Company or any
Subsidiary. 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.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Company or a
98
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including
Federal and state securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and
be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, 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 L/C Issuer or any such Affiliate to or for the credit or the
account of any Borrower against any and all of the obligations of such Borrower
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, irrespective of whether or not such Lender or the
L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Company 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.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Company. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
99
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Company may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Company shall have paid (or caused a Designated Subsidiary to
pay) to the Administrative Agent the assignment fee specified in Section
10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Company or applicable Designated Subsidiary (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
100
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF OREGON.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND LENDER IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF OREGON SITTING IN MULTNOMAH COUNTY
AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH OREGON STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER AND LENDER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
101
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. 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.
10.17 TIME IS OF THE ESSENCE. Time is of the essence of the Loan
Documents.
10.18 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the Business
Day preceding that on which final judgment is given. The obligation of each
Borrower in respect of any such sum due from it to the Administrative Agent or
the Lenders hereunder or under the other Loan Documents shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent from any Borrower
in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return
the amount of any excess to such Borrower (or to any other Person who may be
entitled thereto under applicable law).
102
10.19 STATUTORY NOTICE. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
COMMITMENTS MADE BY THE LENDERS CONCERNING LOANS AND OTHER CREDIT EXTENSIONS
WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY
THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED
BY THE LENDERS TO BE ENFORCEABLE.
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE GREENBRIER COMPANIES, INC., a
Delaware corporation
By: /s/ Mark Rittenbaum
------------------------------------
Name: Mark Rittenbaum
----------------------------------
Title: Senior Vice President
---------------------------------
TRENTONWORKS LIMITED, a Nova Scotia
corporation
By: /s/ Robert Hickey
------------------------------------
Name: Robert Hickey
----------------------------------
Title: Vice President & General
Manager/Secretary
---------------------------------
By: /s/ Eldon MacDonald
------------------------------------
Name: Eldon MacDonald
----------------------------------
Title: Controller
--------------------------------
S - 1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Tiffany Shin
------------------------------------
Name: Tiffany Shin
----------------------------------
Title: Assistant Vice President
--------------------------------
S - 2
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Eric Eidler
------------------------------------
Name: Eric Eidler
----------------------------------
Title: Senior Vice President
---------------------------------
S - 3
BANK OF AMERICA, NATIONAL ASSOCIATION,
acting through its Canada Branch
By: /s/ Medina Sales De Andrade
------------------------------------
Name: Medina Sales De Andrade
----------------------------------
Title: Assistant Vice President
--------------------------------
S - 4
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ Thomas Marks
-----------------------------------
Name: Thomas Marks
---------------------------------
Title: Vice President
--------------------------------
S - 5
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Scott J. Bell
------------------------------------
Name: Scott J. Bell
----------------------------------
Title: Senior Vice President
---------------------------------
S - 6
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Steve Maxwell
------------------------------------
Name: Steve Maxwell
----------------------------------
Title: Vice President
---------------------------------
S - 7
BRANCH BANKING & TRUST COMPANY, as
a Lender
By: /s/ Robert M. Searson
------------------------------------
Name: Robert M. Searson
----------------------------------
Title: Senior Vice President
---------------------------------
S - 8
CAYLON NEW YORK BRANCH, as a Lender
By: /s/ Olivier Audemard
------------------------------------
Name: Olivier Audemard
----------------------------------
Title: Managing Director
---------------------------------
By: /s/ Angel Naranjo
------------------------------------
Name: Angel Naranjo
----------------------------------
Title: Vice President
---------------------------------
S - 9
CREDIT INDUSTRIEL ET COMMERCIAL,
NEW YORK BRANCH, as a Lender
By: /s/ Adrienne Molloy
------------------------------------
Name: Adrienne Molloy
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Alex Aupoix
------------------------------------
Name: Alex Aupoix
----------------------------------
Title: Vice President
---------------------------------
S - 10
OTHER LENDERS
S - 11
SCHEDULE 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable pursuant to Section 2.09)
is an addition to the interest rate to compensate Lenders for the cost
of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority
which replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) the Administrative Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender, in
accordance with the paragraphs set out below. The Mandatory Cost will
be calculated by the Administrative Agent as a weighted average of the
Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum. The Administrative Agent
will, at the request of the Company or any Lender, deliver to the
Company or such Lender as the case may be, a statement setting forth
the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office
in a Participating Member State will be the percentage notified by that
Lender to the Administrative Agent. This percentage will be certified
by such Lender in its notice to the Administrative Agent as the cost
(expressed as a percentage of such Lender's participation in all Loans
made from such Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Loans made from
that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office
in the United Kingdom will be calculated by the Administrative Agent as
follows:
(a) in relation to any Loan in Sterling:
AB+C(B-D)+E x 0.01 per cent per annum
------------------
100 - (A+C)
(b) in relation to any Loan in any currency other than Sterling:
E x 0.01 per cent per annum
--------
300
Where:
"A" is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as
Schedule 1.01
Page 1
an interest free cash ratio deposit with the Bank of England
to comply with cash ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable
Rate, the Mandatory Cost and any interest charged on overdue
amounts pursuant to the first sentence of Section 2.08(b)
and, in the case of interest (other than on overdue amounts)
charged at the Default Rate, without counting any increase in
interest rate effected by the charging of the Default Rate)
payable for the relevant Interest Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of
England to the Administrative Agent on interest bearing
Special Deposits.
"E" is designed to compensate Lenders for amounts payable under
the Fees Regulations and is calculated by the Administrative
Agent as being the average of the most recent rates of charge
supplied by the Lenders to the Administrative Agent pursuant
to paragraph 7 below and expressed in pounds per L1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "Fees Regulations" means the FSA Supervision Manual or such
other law or regulation as may be in force from time to time
in respect of the payment of fees for the acceptance of
deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Regulations under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant
to the Fees Regulations but taking into account any applicable
discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5% will be included in the formula as
5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. If requested by the Administrative Agent or the Company, each Lender
with a Lending Office in the United Kingdom or a Participating Member
State shall, as soon as practicable after publication by the Financial
Services Authority, supply to the
Schedule 1.01
Page 2
Administrative Agent and the Company, the rate of charge payable by
such Lender to the Financial Services Authority pursuant to the Fees
Regulations in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by such Lender as being
the average of the Fee Tariffs applicable to such Lender for that
financial year) and expressed in pounds per L1,000,000 of the Tariff
Base of such Lender.
8. Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the
following information in writing on or prior to the date on which it
becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the
Lending Office out of which it is making available its
participation in the relevant Loan; and
(b) any other information that the Administrative Agent may
reasonably require for such purpose.
Each Lender shall promptly notify the Administrative Agent in writing of any
change to the information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Lender for the purpose of A,
C and E above shall be determined by the Administrative Agent based
upon the information supplied to it pursuant to paragraphs 7 and 8
above and on the assumption that, unless a Lender notifies the
Administrative Agent to the contrary, each Lender's obligations in
relation to cash ratio deposits, Special Deposits and the Fees
Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Lending Office in the same
jurisdiction as such Lender's Lending Office.
10. The Administrative Agent shall have no liability to any Person if such
determination results in an Additional Cost Rate which over- or
under-compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3, 7 and 8
above is true and correct in all material respects.
11. The Administrative Agent shall distribute the additional amounts
received as a result of the Mandatory Cost to the Lenders on the basis
of the Additional Cost Rate for each Lender based on the information
provided by each Lender pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Administrative Agent pursuant to this Schedule
in relation to a formula, the Mandatory Cost, an Additional Cost Rate
or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all parties hereto.
13. The Administrative Agent may from time to time, after consultation with
the Company and the Lenders, determine and notify to all parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which
Schedule 1.01
Page 3
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
parties hereto.
Schedule 1.01
Page 4
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
APPLICABLE VOTING
I. U.S. REVOLVING CREDIT FACILITY COMMITMENT PERCENTAGE PERCENTAGE
--------------------------------- ---------- ---------- ----------
1. Bank of America, N.A. $ 11,000,000 0.088000000 0.073333333
2. Union Bank of California, N.A. $ 26,250,000 0.210000000 0.175000000
3. U.S. Bank National Association $ 26,250,000 0.210000000 0.175000000
4. KeyBank National Association $ 17,500,000 0.140000000 0.116666667
5. Branch Banking & Trust Company $ 15,000,000 0.120000000 0.100000000
6. Calyon New York Branch $ 15,000,000 0.120000000 0.100000000
7. Credit Industriel et Commercial, $ 14,000,000 0.112000000 0.093333333
New York Branch
TOTALS $125,000,000 100%
II.CANADIAN REVOLVING APPLICABLE VOTING
CREDIT FACILITY COMMITMENT PERCENTAGE PERCENTAGE
--------------- ---------- ---------- ----------
Bank of America, National Association CDN$ 30,000,000(1) 100% 0.166666667(1)
acting through its Canada Branch
TOTALS CDN$ 30,000,000 100%
- --------
(1) For voting purposes only, the Canadian facility shall be deemed to
constitute US$ 25,000,000.
Schedule 2.01
Page 1
SCHEDULE 5.05
SUPPLEMENT TO INTERIM
FINANCIAL STATEMENTS
AMOUNT
(in thousands)
1. Participation as of May 31, 2005(2) $ 21,447
2. Railcar Operating Leases as of August 31, 2004* $ 16,058
3. Other Operating Leases as of August 31, 2004* $ 13,356
4. Purchase Commitments as of May 31, 2005(3) $ 152,000
5. See also Schedule 7.03
* Minimum future amounts payable under noncancellable leases
(2) Participation is payable to Union Pacific under the Golden West Agreements
over the next five years.
(3) Commitments to purchase new rail cars from unaffiliated manufacturers to be
leased to third party customers.
Schedule 5.05
SCHEDULE 5.06
LITIGATION
Litigation was initiated against the Company on April 20, 2004
in the Supreme Court of Nova Scotia by a customer, BC Rail Partnership, alleging
breach of contract and negligent manufacture and design of railcars which were
involved in a derailment.
On November 3, 2004, and November 4, 2004, in the District
Court of Tarrant County, Texas, and in the District Court of Lancaster County,
Nebraska, respectively, litigation was initiated against the Company by
Burlington Northern Santa Fe (BNSF). BNSF alleges the failure of a component
part on a railcar manufactured by Greenbrier in 1988, resulted in a derailment
and a chemical spill. The complaint alleges in excess of $14 million in damages.
Answers have been filed in both cases and the parties have agreed to stay the
Nebraska action and proceed with the litigation in Texas.
On September 23, 2004, two current and one former Company
employees filed a civil complaint in Multnomah County Circuit Court, State of
Oregon, alleging that Greenbrier failed to comply with Oregon wage and hour
laws. Plaintiffs seek injunctive relief and unspecified unpaid wages, penalty
wages, costs, disbursements and attorneys' fees.
Schedule 5.06
SCHEDULE 5.09
ENVIRONMENTAL
Environmental studies have been conducted of owned and leased
properties that indicate additional investigation and some remediation on
certain properties may be necessary. The Portland, Oregon manufacturing facility
is located on the Willamette River. The United States Environmental Protection
Agency (EPA) has classified portions of the river bed, including the portion
fronting the facility, as a federal "national priority list" or "superfund" site
due to sediment contamination (the "Portland Harbor Site"). The Company and more
than 60 other parties have received a "General Notice" of potential liability
from the EPA relating to the Portland Harbor Site. The letter advised the
Company that it may be liable for the costs of investigation and remediation
(which liability may be joint and several with other potentially responsible
parties) as well as for natural resource damages resulting from releases of
hazardous substances to the site. At this time, ten private and public entities
have signed an Administrative Order on Consent to perform a remedial
investigation/feasibility study of the Portland Harbor Site under EPA oversight,
and five additional entities have not signed such consent, but are nevertheless
contributing money to the effort. The study is expected to be completed in 2007.
In addition, the Company has entered into a Voluntary Clean-Up Agreement with
the Oregon Department of Environmental Quality in which the Company agreed to
conduct an investigation of whether, and to what extent, past or present
operations at the Portland property may have released hazardous substances to
the environment. Under this oversight, the Company is also conducting
groundwater remediation relating to a historical spill on the property.
There is no indication that Company operations have contributed to
contamination of the Willamette River bed, although uses by prior owners and
operators of the property may have contributed. Nevertheless, this
classification of the Willamette River may have an impact on the value of the
Company's investment in the property and has resulted in the Company initially
bearing a portion of the cost of an EPA mandated remedial investigation,
feasibility study, natural resources damages assessment and incurring costs
mandated by the State of Oregon to control groundwater discharges to the
Willamette River. Neither the cost of the investigation nor the groundwater
control effort is currently determinable. However, a portion of the outlay
related to the state of Oregon mandated costs has been reimbursed by an
unaffiliated party, and other outlays may also be recoverable. The Company may
be required to perform periodic maintenance dredging in order to continue to
launch vessels from its launch ways on the river, and classification as a
superfund site could result in some limitations on future dredging and launch
activity. Because these investigations are still underway, the Company is unable
to determine the amount of its ultimate liability relating to these matters.
Based on the results of the pending investigations and future assessments of
natural resource damages, the Company may be required to incur costs associated
with additional phases of investigation or remedial action, and the Company may
be liable for damages to natural resources. Any of these matters could adversely
affect the Company's business and results of operations. Management believes
that the Company's operations adhere to sound environmental practices,
applicable laws and regulations.
Schedule 5.09
SCHEDULE 5.11
TAX DISCLOSURES
The Internal Revenue Service is currently conducting an audit of the
Company's income tax returns for the years ended 1999, 2000, 2001 and 2002. In
connection with the audit, the Service has focused particular attention on the
Company's decision in 2002 to write-off of substantial portions of its
investment in European operations. As of the date of the Closing, the Service
has not completed its fieldwork or proposed any assessment or deficiency.
However, the Company anticipates that, upon completion of its audit, the Service
may propose adjustments or assessments.
Schedule 5.11
SCHEDULE 5.13
SUBSIDIARIES AND
OTHER EQUITY INVESTMENTS
SUBSIDIARIES
PART (A) PERCENTAGE OWNERSHIP
-------- --------------------
Autostack Corporation 100% Greenbrier Leasing Corporation
Greenbrier-Concarril, LLC 100% The Greenbrier Companies, Inc.
Greenbrier Europe B.V. 100% Greenbrier UK Limited
Greenbrier Germany GmbH 100% Greenbrier Europe B.V.
Greenbrier Leasing Corporation 100% The Greenbrier Companies, Inc.
Greenbrier Leasing, L.P. Its General Partner is Greenbrier Management Services,
LLC
Greenbrier Leasing Limited 100% Greenbrier Leasing Corporation
Greenbrier Leasing Limited Partner, LLC 100% Greenbrier Leasing Corporation
Greenbrier Management Services, LLC 100% Greenbrier Leasing Corporation
Greenbrier Railcar, Inc. 100% Greenbrier Leasing Corporation
Greenbrier U.K. Limited 100% The Greenbrier Companies, Inc.
Gunderson, Inc. 67% The Greenbrier Companies, Inc.
33% Greenbrier Leasing Corporation
Gunderson-Concarril, S.A. de C.V. 100% Greenbrier-Concarril, LLC
Gunderson Marine, Inc. 100% Gunderson, Inc.
Gunderson Rail Services, Inc. 100% Gunderson, Inc.
Gunderson Specialty Products, LLC 100% Gunderson, Inc.
Trenton Works Limited 3048389 Nova Scotia Limited
PART (B) PERCENTAGE OWNERSHIP
-------- --------------------
3048389 Nova Scotia Limited 100% of the common stock owned by The Greenbrier
Companies, Inc.
Preferred investors
also have an
interest in this
entity.
Ohio Castings Company, LLC 33 1/3% Gunderson Specialty Products, LLC
Alliance Castings Company, LLC 100% Ohio Castings Company, LLC
Chicago Castings Company, LLC 100% Ohio Castings Company, LLC
WagonySwidnica S.A. 97% owned by Greenbrier Europe B.V.
Schedule 5.13
SCHEDULE 7.01(B)
EXISTING LIENS
THE GREENBRIER COMPANIES, INC.
Delaware Lien No. 40606998, IOS Capital, Secured Party, Expires 02-26-09
Delaware Lien No. 40608481, IOS Capital, Secured Party, Expires 02-26-09
Delaware Lien No. 41828872, US Bancorp, Secured Party, Expires 06-30-09
Delaware Lien No. 41980608, IOS Capital, Secured Party, Expires 07-13-09
Delaware Lien No. 50688375, IOS Capital, Secured Party, Expires 02-23-10
Oregon Lien No. 594684, U.S. Bancorp, Secured Party, Expires 07-30-07
Oregon Lien No. 623352, U.S. Bancorp, Secured Party, Expires 06-05-08
Oregon Lien No. 6405515 IOS Capital, Secured Party, Expires 11-25-08
Nova Scotia Lien No. 8898981, Bank of America, National Association, Secured
Party, Expires 11-01-14.
GREENBRIER LEASING CORPORATION
Delaware Lien No. 10924782, The Cit Group/Equipment, Secured Party, Expires
08-28-06
*Delaware Lien No. 21972540, Union Bank of California, N.A., Secured Party,
Expires 07-15-07
Delaware Lien No. 21973720, The Cit Group/Equipment, Secured Party, Expires
08-07-07
Delaware Lien No. 31453946, Dell Financial Services, L.P., Secured Party,
Expires 06-09-08
Delaware Lien No. 31525933, First Union Commercial Corporation Equipment Leasing
Division, Secured Party, Expires 05-13-08
Oregon Lien No. 354519, Metlife Capital Credit LP, Secured Party, Expires
1-14-2007
Oregon Lien No. 530270, Bombardier Capital Rail, Inc., Secured Party, Expires
10-18-2005
Oregon Lien No. 6337526, Key Equipment Finance (Key Corporate Capital, Inc.),
Secured Party, Expires 9-15-2008
Schedule 7.01
*Surface Transportation Board Filing #20879 - The current Union Bank of
California/Bank of America Security Agreement financing -- Debtors under this
financing include Greenbrier Leasing Corporation, Greenbrier Railcar, Inc. and
Autostack Corporation.
GREENBRIER RAILCAR, INC.
*Delaware Lien No. 21939192, Union Bank of California, N.A., Secured Party,
Expires 07-15-07
GREENBRIER LEASING, LTD.
NONE.
AUTOSTACK CORPORATION
*Oregon Original Lien No. 589746, Union Bank of California NA, Secured Party,
Expires 06-10-07.
GUNDERSON, INC.
*Oregon Lien No. 8642, U.S. Bank National Association, Secured Party, Expires
05-24-10
*Oregon Lien No. 19860, U.S. Bank National Association, Secured Party, Expires
09-01-07
*Oregon Lien No. 208053, US Bank NA, Secured Party, Expires 02-04-09.
Oregon Lien No. 325167, Yale Financial Services Inc., Secured Party, Expires
06-26-06.
Oregon Lien No. 406342, KeyCorp Leasing, a Division of Key Corporate Capital
Inc., Secured Party, Expires 01-14-08.
Oregon Lien No. 406343, KeyCorp Leasing, a Division of Key Corporate Capital
Inc., Secured Party, Expires 01-14-08.
Oregon Lien No. 483009, KeyCorp Leasing, a Division of Key Corporate Capital
Inc., Secured Party, Expires 09-10-09.
Oregon Lien No. 517685, Wells Fargo Equipment Finance Inc., Secured Party,
Expires 06-25-05
Oregon Lien No. 518560, Pacific Office Automation, Secured Party, Expires
07-03-05
Oregon Lien No. 542219, Toyota Motor Credit Corporation, Secured party, Expires
02-13-06
*Oregon Lien No. 585171, U.S. Bank National Association, Secured Party, Expires
04-25-07
Schedule 7.01
Oregon Lien No. 589098, Key Equipment Finance, a Division of Key Corporate
Capital Inc., Secured Party, Expires 06-04-07
Oregon Lien No. 601032, Toyota Motor Credit Corporation, Secured Party, Expires
10-07-07
*Oregon Lien No. 604529, Sause Bros., Inc., Secured Party, Expires 11-15-07
*Oregon Lien No. 610210, Sause Bros., Inc., Secured Party, Expires 01-22-08
Oregon Lien No. 617405, CIT Technology Financing Services, Inc., Secured Party,
Expires 04-08-08
Oregon Lien No. 631270, Toyota Motor Credit Corporation, Secured Party, Expires
08-19-08
Oregon Lien No. 631254, Toyota Motor Credit Corporation, Secured Party, Expires
08-19-08
Oregon Lien No. 631249, Toyota Motor Credit Corporation, Secured Party, Expires
08-19-08
Oregon Lien No. 631248, Toyota Motor Credit Corporation, Secured Party, Expires
08-19-08
Oregon Lien No. 631276, Toyota Motor Credit Corporation, Secured Party, Expires
08-19-08
Oregon Lien No. 6363329, Ferguson Enterprises, Inc. and Famillan Northwest, Inc.
Secured Parties, Expires 10-09-08
Oregon Lien No. 6381266, Toyota Motor Credit Corporation, Secured Party, Expires
10-28-08
Oregon Lien No. 6407179, Toyota Motor Credit Corporation, Secured Party, Expires
11-25-08
Oregon Lien No. 6470083, Toyota Motor Credit Corporation, Secured Party, Expires
02-06-09
Oregon Lien No. 6543238, Toyota Motor Credit Corporation, Secured Party, Expires
04-20-09
Oregon Lien No. 6543288, Toyota Motor Credit Corporation, Secured Party, Expires
04-20-09
Oregon Lien No. 6660995, Sause Bros., Inc., Secured Party, Expires 08-10-09
Oregon Lien No. 6787129, Key Corp. Capital, Secured Party, Expires 12-29-09
Oregon Lien No. 6795479, CIT Technology Financing Services, Inc., Secured Party,
Expires 01-04-10
*Surface Transportation Board Filing #18689 - Security Agreement between
Gunderson, Inc., the Debtor, and United States National Bank of Oregon (now U.S.
Bank National Association) dated January 31, 1994
Schedule 7.01
GUNDERSON RAIL SERVICES, INC.
*Oregon Lien No. 269064, U.S. Bank National Association, as Agent, Secured
Party, Expires 06-01-10.
*Oregon Lien No. 269167, U.S. Bank National Association, as Agent, Secured
Party, Expires 06-01-10.
*Oregon Lien No. 512957, U.S. Bank National Association, as Agent, Secured
Party, Expires 05-18-10.
*Oregon Lien No. 603028, U.S. Bank National Association, as Agent, Secured
Party, Expires 10-30-07
Oregon Lien No. 604799, GE Capital Corporation, Secured Party, Expires 11-19-07
*Oregon Lien No. 631861, U.S. Bank National Association, Secured Party, Expires
08-26-08
*Oregon Lien No. 631860, U.S. Bank National Association, Secured Party, Expires
08-26-08
Oregon Lien No. 6399005, Air Liquide America LP, Secured Party, Expires 11-18-08
*Oregon Lien No. 6453728, U.S. Bank National Association, Secured Party, Expires
01-22-09
*Oregon Lien No. 6453740, U.S. Bank National Association, Secured Party, Expires
01-22-09
Oregon Lien No. 6588913, Toyota Motor Credit Corporation, Secured Party, Expires
06-03-09
Oregon Lien No. 6817192, Gunderson Rail Services, Inc., Secured Party, Expires
01-28-10
*Oregon Lien No. 208053, US Bank NA, Secured Party, Expires 02-04-09.
*Washington Lien No. 97-101-0050, United States National Bank of Oregon, Secured
Party, Expires 04-11-07
Texas Lien No. 03-0029174581, NMHG Financial Services, Inc., Secured Party,
recorded 05-28-03.
*Surface Transportation Board Filing #18691 - Security Agreement between
Gunderson Rail Car Services, Inc., the Debtor, and United States National Bank
of Oregon (now U.S. Bank National Association) dated January 31, 1994
GUNDERSON LEASING INC.
*Oregon Lien No. 208053, US Bank NA, Secured Party, Expires 02-04-09.
Schedule 7.01
GUNDERSON MARINE, INC.
*Oregon Lien No. 208053, US Bank NA, Secured Party, Expires 02-04-09.
Oregon Lien No. 483009, KeyCorp Leasing, a Division of Key Corporate Capital
Inc., Secured Party, Expires 09-10-09
*Surface Transportation Board Filing #18692 - Security Agreement between
Gunderson Marine, Inc., the Debtor, and United States National Bank of Oregon
(now U.S. Bank National Association) dated January 31, 1994
GREENBRIER-CONCARRIL, LLC
Delaware Lien No. 30990534, Gunderson, Inc., Secured Party, Expires 04-16-08
*Delaware Lien No. 31410292, Bombardier Corporation, Secured Party, Expires
06-04-08
Surface Transportation Board Filing #24429 - An "in-house" financing with
Gunderson, Inc. as creditor and Greenbrier Concarril LLC as debtor, dated April
1, 2003.
*Surface Transportation Board Filing #24484 - A financing with Greenbrier
Concarril LLC as debtor and Bombardier Corporation as creditor, dated April 1,
2003.
ALLIANCE CASTINGS COMPANY, LLC
Delaware Lien No. 33323212, Director of the Department of Development of the
State of Ohio, Expires 12-17-08
TRENTONWORKS LIMITED
Nova Scotia Lien No. 318824, Caterpillar Financial Services Ltd., Secured Party,
Expires 08-03-05
Nova Scotia Lien No. 3483885, The Greenbrier Companies, Inc., Secured Party,
Expires 10-25-10. The Secured Party subordinated its security interest to Bank
of America, NA pursuant to Postponement and Subordination Agreement dated
10-29-04.
Nova Scotia Lien No. 3608420, Caterpillar Financial Services Ltd., Secured
Party, Expires 11-23-05
Nova Scotia Lien No. 3608439, Caterpillar Financial Services Ltd., Secured
Party, Expires 11-23-05
Nova Scotia Lien No. 5844624, Honda Canada Finance Inc., Secured Party, Expires
08-29-07
Schedule 7.01
Nova Scotia Lien No. 6174873, Her Majesty the Queen in right of the Province of
Nova Scotia, Secured Party, Expires 11-28-12. The Secured Party subordinated its
security interest to Bank of America, NA pursuant to Postponement and
Subordination Agreement dated 10-29-04.
Nova Scotia Lien No. 6491343, CIT Financial Ltd., Secured Party, Expires
02-28-10.
Nova Scotia Lien No. 6670104, BMW Canada Inc., Secured Party, Expires 04-15-07
Nova Scotia Lien No. 7196884, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 08-18-08
Nova Scotia Lien No. 7737924, VW Credit Canada Inc., Secured Party, Expires
01-14-09.
Nova Scotia Lien No. 7947706, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 03-17-09.
Nova Scotia Lien No. 8694200, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 09-08-09
Nova Scotia Lien No. 8694246, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 09-08-09
Nova Scotia Lien No. 8694273, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 09-08-09
Nova Scotia Lien No. 8694291, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 09-08-09
Nova Scotia Lien No. 8694317, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 09-08-09.
Nova Scotia Lien No. 8892969, Bank of America, National Association,, Secured
Party, Expires 10-20-14.
Nova Scotia Lien No. 9211989, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 02-07-10
Nova Scotia Lien No. 9212023, CitiCorp Vendor Finance, Ltd., Secured Party,
Expires 02-07-10
* Denotes liens to be released at or shortly after closing.
Schedule 7.01
SCHEDULE 7.03(B)
INDEBTEDNESS
(AMOUNTS AS OF MAY 31, 2005)
DEBT MAXIMUM INDEBTEDNESS
---- --------------------
1. TrentonWorks - Term Loan CDN8,800,000
2. Senior Unsecured Notes $175,000,000
3. Guarantee performance of Gunderson Rail Services under Supply Agreement Unknown
4. Redemption debt Greenbrier -Concarril $ 7,500,000
5. Guaranty of Swap Contracts - Foreign Currency : N/A
UBOC
Key Bank
Wells Fargo
Bank of America
European Operations
6. Guaranty of Swap Contracts - Interest Rate N/A
KeyBank
Bank of America
11. Guaranty of Ohio Castings Company, LLC $ 3,100,000(4)
11. Borrowings of Greenbrier Germany with KfW E 5,400,000
12. Borrowings of The Greenbrier Companies, Inc. with KfW $ 8,300,000
13. Various Performance Guarantees - European Operations $ 20,100,000*
14. Various Lines of Credit - European Operations(5) $ 19,800,000*
15. Key Bank Capitalized Leases $ 10,900,000
16. Letters of Credit - Domestic Manufacturing Operations $ 1,800,000
17. Non-Competes and other debt $ 200,000
18. Subordinated Debt - Golden West Agreements $ 9,800,000
* Translated at U.S. dollar equivalent.
- --------
(4) Ohio Castings, as of May 31, 2005, has $9.3 million of third party debt for
which the Company has guaranteed approximately $3.1 million. In the event
there is a change of control or insolvency by any of the three 33%
investors that have guaranteed the debt, the remaining investors' share of
the guarantee will increase proportionately.
(5) Non-recourse to The Greenbrier Companies, Inc.
Schedule 7.03(b)
SCHEDULE 7.09
CONTRACTUAL OBLIGATIONS LIMITING RESTRICTED PAYMENTS BY
ANY SUBSIDIARY GUARANTOR
The Golden West Agreements
Master Equipment Lease Agreement between Keycorp Leasing and Gunderson entities
dated 8/31/99
Schedule 7.09
Page 1
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
THE GREENBRIER COMPANIES, INC.
One Centerpointe Drive, Suite 200
Lake Oswego, OR 97035
Attn: Mark J. Rittenbaum
Telephone: (503)598-3828
Telecopier: (503)684-7553
Electronic Mail: mark.rittenbaum@gbrx.com
TRENTONWORKS LIMITED
34 Power Plant Road
Trenton, Nova Scotia
Canada B0K1X0
Attn: Eldon MacDonald
Telephone: (902)752-1541 Ext. 263
Telecopier: (902)752-6648
Electronic Mail: emacdonald@trentonworks.ca
ADMINISTRATIVE AGENT'S OFFICE:
Administrative Agent's Office (U.S.)
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
Credit Services West
Mail Code: CA4-702-02-25
2001 Clayton Road, Floor 2, Building B
Concord, CA 94520
Attention: Gardelyn Jayme
Telephone: (925)675-7184
Telecopier: (888)969-9232
Electronic Mail: gardelyn.o.jayme@bankofamerica.com
Wire Instruction (for Dollars - including Swing Line)
Bank of America, Dallas TX
ABA# 111000012
Account Name: Corporate FTA
Account No.: 3750836479
Attention: Gardelyn Jayme
Ref.: The Greenbrier Companies
Schedule 10.02
Page 1
Administrative Agent's Office (Canada)
Bank of America, N.A., Canada Branch
200 Front Street West, Suite 2700
Toronto, Ontario, M5V3L2
Attention: Medina Sales De Andrade
Telephone: (416)349-5433
Telecopier: (416)349-4283
Electronic Mail: medina.sales_de_andrade@bankofamerica.com
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Mail Code: WA1-501-37-20
800 Fifth Avenue, Floor 37
Seattle, WA 98104
Attention: Tiffany Shin
Telephone: (206)358-0078
Telecopier: (206)358-0971
Electronic Mail: tiffany.shin@bankofamerica.com
SWING LINE LENDER:
Bank of America, N.A.
Credit Services West
Mail Code: CA4-702-02-25
2001 Clayton Road, Floor 2, Building B
Concord, CA 94520
Attention: Gardelyn Jayme
Telephone: (925)675-7184
Telecopier: (888)969-9232
Electronic Mail: gardelyn.o.jayme@bankofamerica.com
L/C ISSUER:
Standby Letters of Credit:
Bank of America, N.A.
Trade Operations-STANDBY LC
Mail Code: CA9-703-19-23
333 S. Beaudry Avenue, 19th Floor
Los Angeles, CA 90017-1466
Attention: Bolivar Carrillo
Telephone: (213)345-0089
Telecopier: (213)345-6684
Electronic Mail: Bolivar.carrillo@bankofamerica.com
Schedule 10.02
Page 2
Commercial Letters of Credit
Bank of America, N.A.
Trade Operations-Commercial LC
Mail Code: CA9-703-19-15
333 S. Beaudry Avenue, 19th Floor
Los Angeles, CA 90017-1466
Attention: Frantz Bellevue
Telephone: (213)345-6616
Telecopier: (213)345-6691
Electronic Mail: frantz.bellevue@bankofamerica.com
CANADIAN LENDER PAYMENT INSTRUCTIONS
Canadian Dollar
LVTS - Large Value Transaction System
Bank of America Canada
200 Front Street West
Toronto, Ontario M5V3L2
Attention: Loans Department
Swift Code: BOFACATT
Transit #: 01312-241 Account #: 90083255
Ref: Trentonworks Limited
US Dollar
Bank of America International New York
335 Madison Avenue
New York, NY 10017
Swift Code: BOFAUS3N
ABA # 026009593
For the Account of: Bank of America, N.A., Canada Branch
Account #: 65502-01805
Swift Code: BOFACATT
Ref: Trentonworks Limited
Schedule 10.02
Page 3
SCHEDULE 10.06
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge to the appropriate Lender a
processing and recordation fee (an "Assignment Fee") in the amount of $2,500 for
each assignment; provided, however, that in the event of two or more concurrent
assignments to members of the same Assignee Group (which may be effected by a
suballocation of an assigned amount among members of such Assignee Group) or two
or more concurrent assignments by members of the same Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group), the Assignment Fee will be $2,500 plus the amount set forth below:
TRANSACTION ASSIGNMENT FEE
----------- --------------
First four concurrent assignments or suballocations -0-
to members of an Assignee Group (or from members of
an Assignee Group, as applicable)
Each additional concurrent assignment or $500
suballocation to a member of such Assignee Group (or
from a member of such Assignee Group, as applicable)
Schedule 10.06
Page 1
SCHEDULE 11.01
LETTERS OF CREDIT
Domestic Manufacturing Operations Letters of Credit for up to $1,800,000.
Schedule 11.01
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June ____,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among The Greenbrier Companies, Inc., a Delaware
corporation (the "Company"), TrentonWorks Limited, a Nova Scotia corporation,
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.
The Company hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation of
Loans
1. On __________________________ (a Business Day).
2. In the amount of __________________________.
3. Comprised of __________________________.
[Type of Committed Loan requested]
4. In the following currency: ________________________
5. For Eurocurrency Rate Loans: with an Interest Period of __ months.
The Committed Borrowing, if any, requested herein complies with the
provisos to the first sentence of Section 2.01 of the Agreement.
THE GREENBRIER COMPANIES, INC., a
Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Schedule 11.01
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 29,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among The Greenbrier Companies, Inc., a Delaware
corporation (the "Company"), TrentonWorks Limited, a Nova Scotia corporation,
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On __________________________(a Business Day).
2. In the amount of $__________________________.
The Swing Line Borrowing requested herein complies with the requirements
of the provisos to the first sentence of Section 2.04(a) of the Agreement.
THE GREENBRIER COMPANIES, INC., a
Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
B - 1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF NOTE
________________
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to
pay to _____________________ or registered assigns (the "Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Loan from time to time made by the Lender to the Borrower under
that certain Credit Agreement, dated as of June 29, 2005 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among The Greenbrier Companies, Inc., a Delaware corporation, TrentonWorks
Limited, a Nova Scotia corporation, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in the currency in which such Committed Loan was
denominated and in Same Day Funds at the Administrative Agent's Office for such
currency. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment (and before as well as after judgment) computed
at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Subsidiary Guaranty and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender
may also attach schedules to this Note and endorse thereon the date, amount,
currency and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF OREGON.
THE GREENBRIER COMPANIES, INC., a
Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
C-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
CURRENCY AND PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
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C-3
Form of Note
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ___________,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 29,
2005, (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among The Greenbrier Companies, Inc., a Delaware
corporation (the "Company"), TrentonWorks Limited, a Nova Scotia corporation,
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the __________________ of the Company, and that, as such, he/she
is authorized to execute and deliver this Certificate to the Administrative
Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Company ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Company ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of the Company and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
reasonable review of the transactions and condition (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. A reasonable review of the activities of the Company during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Company performed and observed
all its Obligations under the Loan Documents, and
[SELECT ONE:]
D - 1
Form of Compliance Certificate
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
COMPANY PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN DOCUMENTS
APPLICABLE TO IT, AND NO DEFAULT HAS OCCURRED AND IS CONTINUING.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED
AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The representations and warranties of (i) the Borrowers contained in
Article V of the Agreement and (ii) each Loan Party contained in each other Loan
Document or in any document furnished at any time under or in connection with
the Loan Documents, are true and correct in all material respects on and as of
the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date, and except that for purposes
of this Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________ , ___________.
THE GREENBRIER COMPANIES, INC., A
DELAWARE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D - 2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.11(A) - CONSOLIDATED TANGIBLE NET WORTH.
A. Actual Consolidated Tangible Net Worth as of May 31,
2005:
1. Stockholders' Equity: $
--------
2. Intangible Assets: $
--------
3. Consolidated Tangible Net Worth (Line I.A1
less Line I.A.2 x 80%): $
--------
B. 50% of Consolidated Net Income for each full
fiscal quarter ending after May 31, 2005 (no
reduction for losses): $
--------
C. 50% of any increase in Stockholders' Equity
after date of Agreement from issuance and
sale of Equity Interests (including from
conversion of debt securities): $
--------
D. Minimum required Consolidated Tangible Net Worth
(Lines I.A + I.B + I.C): $
--------
II. SECTION 7.11 (B) - CONSOLIDATED FIXED CHARGE COVERAGE
RATIO.
A. Consolidated EBITDA for four consecutive fiscal
quarters ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $
--------
2. Consolidated Interest Charges for Subject
Period: $
--------
3. Provision for income taxes for Subject Period: $
--------
4. Depreciation expenses for Subject Period: $
--------
5. Amortization expenses for Subject Period: $
--------
6. Non-recurring non-cash reductions of
Consolidated Net Income for Subject Period: $
--------
7. Income tax credits for Subject Period: $
--------
8. Non-cash additions to Consolidated Net Income
for Subject Period: $
--------
9. Consolidated EBITDA (Lines II.A.1 + 2 + 3 + 4
+ 5 + 6 - 7 - 8): $
--------
B. Consolidated rent expense (including option lease
expense) for Subject Period: $
--------
C. Consolidated Interest Charges for Subject Period: $
--------
SCHEDULE 2 - 1
Schedule 2 to Compliance Certificate
D. Consolidated Interest Coverage Ratio (Line II.A.9 +
Line II.B / Line II.C + Line II.B): to 1.00
-----------
Minimum required: 1.75 to 1.00
III. SECTION 7.11 (C) - CONSOLIDATED CAPITALIZATION RATIO.
A. Consolidated Funded Indebtedness at Statement Date: $
--------
B. Stockholders' Equity at Statement Date: $
--------
C. Consolidated Capitalization Ratio (Line III.A / Line
III.A + Line III.B): to 1.00
-----------
Maximum permitted: .675 to 1.00
SCHEDULE 2 - 2
Schedule 2 to Compliance Certificate
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases from the
Assignor and assumes and agrees to perform, subject to and in accordance with
the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the
Assignor's rights and obligations as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including, without limitation, the Letters of
Credit and the Swing Line Loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved
Fund of [identify Lender]]
3. Borrower(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of [___________, _____],
among [____________________________], the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender
E - 1
Assignment and Assumption
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
Facility Assigned for all Lenders* Assigned* Commitment CUSIP Number
----------------- --------------- -------- ---------- ------------
$ $ %
------------- ----------------- ----------------- --------------
$ $ %
------------- ----------------- ----------------- --------------
$ $ %
------------- ----------------- ----------------- --------------
[7. Trade Date: __________________]
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Title:
Consented to:
[COMPANY]
By: _________________________________
Title:
E - 2
Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Company, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the
Company, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section __ thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
ANNEX 1 - 1
Annex to Assignment and Assumption
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Oregon. Borrowers are intended beneficiaries of this Agreement.
ANNEX 1 - 2
Annex to Assignment and Assumption
EXHIBIT F
FORM OF SUBSIDIARY GUARANTY
F - 1
Form of Subsidiary Guaranty
EXHIBIT G
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement
should be covered by the legal opinion on behalf of each Borrower:
- Section 5.01(a), (b) and (c)
- Section 5.02
- Section 5.03
- Section 5.04
- Section 5.06
- Section 5.14(b)
G - 1
Opinion Matters
EXHIBIT H
BORROWING BASE CERTIFICATE
THE GREENBRIER COMPANIES,
INC.
BORROWING BASE CERTIFICATE
CREDIT AGREEMENT DATED AS OF JUNE 29, 2005
BORROWING BASE DATA AND COMPUTATIONS AS OF __________, 200__
CONTRIBUTION TO
BORROWING BASE
(TOTAL AMOUNT X
TOTAL ASSET CATEGORY AMOUNT(US$) ADVANCE RATE ADVANCE RATE)
-------------------- ----------- ------------ -------------
Perfected Lease Assets 90% $ --
Unperfected Lease Assets 60% $ -- (A)
Eligible Accounts 80% $ --
Eligible Inventory 50% $ --
Eligible Property, Plant & Equipment 50% $ --
Subtotal - U.S. Borrowing Base $ --
U.S. Revolver Ceiling $125,000,000
Lesser of Subtotal and U.S. Revolver Ceiling $ --
U.S. Borrowings
U.S. Letters of Credit
U.S. Borrowing Availability $ --
Unused U.S. Borrowing Base $ --
(A) Amount cannot be greater than $10,000,000
H - 1
Borrowing Base Certificate
TRENTONWORKS LTD.
BORROWING BASE CERTIFICATE
CREDIT AGREEMENT DATED AS OF JUNE 29, 2005
BORROWING BASE DATA AND COMPUTATIONS AS OF __________, 200__
CONTRIBUTION TO
BORROWING BASE
(TOTAL AMOUNT X
TOTAL ASSET CATEGORY AMOUNT(CAN$) ADVANCE RATE ADVANCE RATE)
-------------------- ------------ ------------ -------------
Eligible Accounts 80% $ --
Eligible Inventory 50% $ --
Eligible Property, Plant & Equipment $ -- 50% $ --
Subtotal $ --
Amount of unused US Borrowing Base
(converted to CAN$) $ --
New Subtotal - Canadian Borrowing
Base $ --
Canadian Revolver Ceiling $ 30,000,000
Lesser of Canadian Borrowing Base and
Canadian Revolver Ceiling $ --
Canadian Borrowings & Overdrafts
Canadian Letters of Credit
Canadian Borrowing Availability $ --
USD/CAD exchange rate as of
certificate date 0.85
H - 2
Borrowing Base Certificate
Perfected Lease Assets = Equipment on Op Leases & Investment
in direct finance leases
Unperfected Lease Assets1 = What is not perfected under Equipment
on Op Leases & Investment in direct
finance leases
Eligible Accounts = Accounts and notes receivable
Eligible Inventory = Inventories
Eligible Property, Plant & Equipment = PP&E
H - 3
Borrowing Base Certificate